Philippine Supreme Court Jurisprudence > Year 2010 > February 2010 Decisions > [G.R. No. 182498 : February 16, 2010] GEN. AVELINO I. RAZON, JR., CHIEF, PHILIPPINE NATIONAL POLICE (PNP); POLICE CHIEF SUPERINTENDENT RAUL CASTAÑEDA, CHIEF, CRIMINAL INVESTIGATION AND DETECTION GROUP (CIDG); POLICE SENIOR SUPERINTENDENT LEONARDO A. ESPINA, CHIEF, POLICE ANTI-CRIME AND EMERGENCY RESPONSE (PACER); AND GEN. JOEL R. GOLTIAO, REGIONAL DIRECTOR OF ARMM, PNP, PETITIONERS, VS. MARY JEAN B. TAGITIS, HEREIN REPRESENTED BY ATTY. FELIPE P. ARCILLA, JR., ATTORNEY-IN-FACT, RESPONDENT.:

We resolve in this Resolution the Motion for Reconsideration filed by the petitioners -- Gen. Avelino I. Razon, former Chief of the Philippine National Police (PNP);^[1] Gen. Edgardo M. Doromal, former Chief of the Criminal Investigation and Detection Group (CIDG), PNP;^[2] Police Senior Superintendent Leonardo A. Espina, former Chief of the Police Anti-Crime and Emergency Response (PACER), PNP;^[3] and Gen. Joel Goltiao, former Regional Director of the PNP-Autonomous Region of Muslim Mindanao^[4] (petitioners) -- addressing our Decision of December 3, 2009. This Decision affirmed the Court of Appeals' (CA) decision of March 7, 2008 confirming the enforced disappearance of Engineer Morced N. Tagitis (Tagitis) and granting the Writ of Amparo.

Our December 3, 2009 Decision was based, among other considerations, on the finding that Col. Julasirim Ahadin Kasim (Col. Kasim) informed the respondent Mary Jean Tagitis (respondent) and her friends that her husband had been under surveillance since January 2007 because an informant notified the authorities, through a letter, that Tagitis was a liaison for the JI;^[5] that he was "in good hands" and under custodial investigation for complicity with the JI after he was seen talking to one Omar Patik and a certain "Santos" of Bulacan, a "Balik Islam" charged with terrorism (Kasim evidence).

We considered Col. Kasim's information, together with the consistent denials by government authorities of any complicity in the disappearance of Tagitis, the dismissive approach of the police authorities to the report of the disappearance, as well as the haphazard investigations conducted that did not translate into any meaningful results, to be indicative of government complicity in the disappearance of Tagitis (for purposes of the Rule on the Writ of Amparo).

We explained that although the Kasim evidence was patently hearsay (and was thus incompetent and inadmissible under our rules of evidence), the unique evidentiary difficulties posed by enforced disappearance cases compel us to adopt standards that were appropriate and responsive to the evidentiary difficulties faced. We noted that while we must follow the substantial evidence rule, we must also observe flexibility in considering the evidence that we shall take into account. Thus, we introduced a new evidentiary standard for Writ of Amparo cases in this wise:

The fair and proper rule, to our mind, is to consider all the pieces of evidence adduced in their totality, and to consider any evidence otherwise inadmissible under our usual rules to be admissible if it is consistent with the admissible evidence adduced. In other words, we reduce our rules to the most basic test of reason - i.e., to the relevance of the evidence to the issue at hand and its consistency with all the other pieces of adduced evidence, Thus, even hearsay evidence can be admitted if it satisfies this minimum test. [Emphasis in the original]

We held further that the Kasim evidence was crucial to the resolution of the present case for two reasons: first, it supplied the gaps that were never looked into or clarified by police investigation; and second, it qualified a simple missing person report into an enforced disappearance case by injecting the element of participation by agents of the State and thus brought into question how the State reacted to the disappearance.

Based on these considerations, we held that the government in general, through the PNP and the PNP-CIDG, and in particular, the Chiefs of these organizations, together with Col. Kasim, were fully accountable^[6] for the enforced disappearance of Tagitis. Specifically, we held Col. Kasim accountable for his failure to disclose under oath information relating to the enforced disappearance; for the purpose of this accountability, we ordered that Col. Kasim be impleaded as a party to this case. Similarly, we also held the PNP accountable for the suppression of vital information that Col. Kasim could, but did not, provide with the same obligation of disclosure that Col. Kasim carries.

The Motion for Reconsideration

The petitioners cited two grounds in support of their Motion for Reconsideration.

First, the petitioners argue that there was no sufficient evidence to conclude that Col. Kasim's disclosure unequivocally points to some government complicity in the disappearance of Tagitis. Specifically, the petitioners contend that this Court erred in unduly relying on the raw information given to Col. Kasim by a personal intelligence "asset" without any other evidence to support it. The petitioners also point out that the Court misapplied its cited cases (Secretary of Defense v. Manalo,^[7] Velasquez Rodriguez v. Honduras,^[8] and Timurtas v. Turkey^[9]) to support its December 3, 2009 decision; in those cases, more than one circumstance pointed to the complicity of the government and its agents. The petitioners emphasize that in the present case, the respondent only presented a "token piece of evidence" that points to Col. Kasim as the source of information that Tagitis was under custodial investigation for having been suspected as a "terrorist supporter." This, according to the petitioners, cannot be equated to the substantial evidence required by the Rule on the Writ of Amparo.^[10]

Second, the petitioners contend that Col. Kasim's death renders impossible compliance with the Court's directive in its December 3, 2009 decision that Col. Kasim be impleaded in the present case and held accountable with the obligation to disclose information known to him and to his "assets" on the enforced disappearance of Tagitis. The petitioners alleged that Col. Kasim was killed in an encounter with the Abu Sayaff Group on May 7, 2009. To prove Col. Kasim's death, the petitioners attached to their motion a copy of an article entitled "Abus kill Sulu police director" published by the Philippine Daily Inquirer on May 8, 2009.^[11] This article alleged that "Senior Supt. Julasirim Kasim, his brother Rosalin, a police trainee, and two other police officers were killed in a fire fight with Abu Sayyaf bandits that started at about 1 p.m. on Thursday, May 7, 2009 at the boundaries of Barangays Kulasi and Bulabog in Maimbung town, Sulu." The petitioners also attached an official copy of General Order No. 1089 dated May 15, 2009 issued by the PNP National Headquarters, indicating that "PS SUPT [Police Senior Superintendent] Julasirim Ahadin Kasim 0-05530, PRO ARMM, is posthumously retired from PNP service effective May 8, 2009."^[12] Additionally, the petitioners point out that the intelligence "assets" who supplied the information that Tagitis was under custodial investigation were personal to Col. Kasim; hence, the movants can no longer comply with this Court's order to disclose any information known to Col. Kasim and his "assets."

The Court's Ruling

We hold that our directive to implead Col. Kasim as a party to the present case has been rendered moot and academic by his death. Nevertheless, we resolve to deny the petitioners' motion for reconsideration for lack of merit.

Paragraph (e) of the dispositive portion of our December 3, 2009 decision directs:

e. Ordering Colonel Julasirim Ahadin Kasim impleaded in this case and holding him accountable with the obligation to disclose information known to him and to his "assets" in relation with the enforced disappearance of Engineer Morced N. Tagitis;

Undisputably, this directive can no longer be enforced, and has been rendered moot and academic, given Col. Kasim's demise. His intervening death, however, does not necessarily signify the loss of the information Col. Kasim may have left behind, particularly the network of "assets" he utilized while he was in the service. Intelligence gathering is not an activity conducted in isolation, and involves an interwoven network of informants existing on the basis of symbiotic relationships with the police and the military. It is not farfetched that a resourceful investigator, utilizing the extraordinary diligence that the Rule on the Writ of Amparo requires,^[13] can still access or reconstruct the information Col. Kasim received from his "asset" or network of assets during his lifetime.

The extinction of Col. Kasim's personal accountability and obligation to disclose material information, known to him and his assets, does not also erase the burden of disclosure and investigation that rests with the PNP and the CIDG. Lest this Court be misunderstood, we reiterate that our holding in our December 3, 2009 Decision that the PNP -- through the incumbent PNP Chief; and the PNP-CIDG, through its incumbent Chief -- are directly responsible^[14] for the disclosure of material facts known to the government and to their offices regarding the disappearance of Tagitis; and that the conduct of proper investigation using extraordinary diligence still subsists. These are continuing obligations that will not truly be terminated until the enforced disappearance of the victim, Engr. Morced N. Tagitis, is fully addressed by the responsible or accountable parties, as we directed in our Decision.

We now turn to the petitioners' substantial challenge to the merits of our December 3, 2009 decision.

We see no merit in the petitioners' submitted position that no sufficient evidence exists to support the conclusion that the Kasim evidence unequivocally points to some government complicity in the disappearance. Contrary to the petitioners' claim that our conclusions only relied on Col. Kasim's report, our Decision plainly and pointedly considered other evidence supporting our conclusion, particularly the consistent denials by government authorities of any complicity in the disappearance of Tagitis; the dismissive approach of the police authorities to the report of the disappearance; and the conduct of haphazard investigations that did not translate into any meaningful results. We painstakingly ruled:

To give full meaning to our Constitution and the rights it protects, we hold that, as in Velasquez, we should at least take a close look at the available evidence to determine the correct import of every piece of evidence - even of those usually considered inadmissible under the general rules of evidence - taking into account the surrounding circumstances and the test of reason that we can use as basic minimum admissibility requirement. In the present case, we should at least determine whether the Kasim evidence before us is relevant and meaningful to the disappearance of Tagistis and reasonably consistent with other evidence in the case.

x x x

The Kasim evidence assumes critical materiality given the dearth of direct evidence on the above aspects of the case, as it supplies the gaps that were never looked into and clarified by police investigation. It is the evidence, too, that colors a simple missing person report into an enforced disappearance case, as it injects the element of participation by agents of the State and thus brings into question how the State reacted to the disappearance.

x x x

We glean from all these pieces of evidence and developments a consistency in the government's denial of any complicity in the disappearance of Tagitis, disrupted only by the report made by Col. Kasim to the respondent at Camp Katitipan. Even Col. Kasim, however, eventually denied that he ever made the disclosure that Tagitis was under custodial investigation for complicity in terrorism. Another distinctive trait that runs through these developments is the government's dismissive approach to the disappearance, starting from the initial response by the Jolo police to Kunnong's initial reports of the disappearance, to the responses made to the respondent when she herself reported and inquired about her husband's disappearance, and even at Task Force Tagitis itself.

As the CA found through Task Force Tagitis, the investigation was at best haphazard since the authorities were looking for a man whose picture they initially did not even secure. The returns and reports made to the CA fared no better, as the CIDG efforts themselves were confined to searching for custodial records of Tagitis in their various departments and divisions. To point out the obvious, if the abduction of Tagitis was a "black" operation because it was unrecorded or officially unauthorized, no record of custody would ever appear in the CIDG records; Tagitis, too, would not be detained in the usual police or CIDG detention places. In sum, none of the reports on record contains any meaningful results or details on the depth and extent of the investigation made. To be sure, reports of top police officials indicating the personnel and units they directed to investigate can never constitute exhaustive and meaningful investigation, or equal detailed investigative reports of the activities undertaken to search for Tagitis. Indisputably, the police authorities from the very beginning failed to come up to the extraordinary diligence that the Amparo Rule requires. [Emphasis in the original]

Likewise, we see no merit in the petitioners' claim that the Kasim evidence does not amount to substantial evidence required by the Rule on the Writ of Amparo. This is not a new issue; we extensively and thoroughly considered and resolved it in our December 3, 2009 Decision. At this point, we need not go into another full discussion of the justifications supporting an evidentiary standard specific to the Writ of Amparo. Suffice it to say that we continue to adhere to the substantial evidence rule that the Rule on the Writ of Amparo requires, with some adjustments for flexibility in considering the evidence presented. When we ruled that hearsay evidence (usually considered inadmissible under the general rules of evidence) may be admitted as the circumstances of the case may require, we did not thereby dispense with the substantial evidence rule; we merely relaxed the evidentiary rule on the admissibility of evidence, maintaining all the time the standards of reason and relevance that underlie every evidentiary situation. This, we did, by considering the totality of the obtaining situation and the consistency of the hearsay evidence with the other available evidence in the case.

We also cannot agree with the petitioners' contention that we misapplied Secretary of Defense v. Manalo,^[15] Velasquez Rodriguez v. Honduras,^[16] and Timurtas v. Turkey^[17] to support our December 3, 2009 decision. The petitioners make this claim with the view that in these cases, more than one circumstance pointed to the government or its agents as the parties responsible for the disappearance, while we can only point to the Kasim evidence. A close reading of our December 3, 2009 Decision shows that it rests on more than one basis.

At the risk of repetition, we stress that other pieces of evidence point the way towards our conclusion, particularly the unfounded and consistent denials by government authorities of any complicity in the disappearance; the dismissive approach of the police to the report of the disappearance; and the haphazard handling of the investigation that did not produce any meaningful results. In cruder but more understandable language, the run-around given to the respondent and the government responses to the request for meaningful investigation, considered in the light of the Kasim evidence, pointed to the conclusion that the Tagitis affair carried a "foul smell" indicative of government complicity or, at the very least, an attempt at cover-up and concealment. This is the situation that the Writ of Amparo specifically seeks to address.

Manalo, Velasquez Rodriguez and Timurtas, read in proper perspective, fully support our findings and conclusions in this case.

Manalo is different from Tagitis in terms of their factual settings, as enforced disappearance was no longer a problem in that case. The enforced disappearance of the brothers Raymond and Reynaldo Manalo effectively ended when they escaped from captivity and surfaced, while Tagitis is still nowhere to be found and remains missing more than two years after his reported disappearance. An Amparo situation subsisted in Manalo, however, because of the continuing threat to the brothers' right to security; the brothers claimed that since the persons responsible for their enforced disappearance were still at large and had not been held accountable, the former were still under the threat of being once again abducted, kept captive or even killed, which threat constituted a direct violation of their right to security of person. In ruling that substantial evidence existed to support the conclusion that the respondents' right to security had been violated, the Court not only considered the respondents' affidavit and testimony which positively identified the perpetrators, but also noted other evidence showing the ineffective investigation and protection on the part of the military. The Court significantly found that:

Next, the violation of the right to security as protection by the government. Apart from the failure of military elements to provide protection to respondents by themselves perpetrating the abduction, detention, and torture, they also miserably failed in conducting an effective investigation of respondents' abduction as revealed by the testimony and investigation report of petitioners' own witness, Lt. Col. Ruben Jimenez, Provost Marshall of the 7^th Infantry Division.

The one-day investigation conducted by Jimenez was very limited, superficial, and one-sided. He merely relied on the Sworn Statements of the six implicated members of the CAFGU and civilians whom he met in the investigation for the first time. He was present at the investigation when his subordinate Lingad was taking the sworn statements, but he did not propound a single question to ascertain the veracity of their statements or their credibility. He did not call for other witnesses to test the alibis given by the six implicated persons nor for the family or neighbors of the respondents.

In his affidavit, petitioner Secretary of National Defense attested that in a Memorandum Directive dated October 31, 2007, he issued a policy directive addressed to the AFP Chief of Staff, that the AFP should adopt rules of action in the event the writ of amparo is issued by a competent court against any members of the AFP, which should essentially include verification of the identity of the aggrieved party; recovery and preservation of relevant evidence; identification of witnesses and securing statements from them; determination of the cause, manner, location and time of death or disappearance; identification and apprehension of the person or persons involved in the death or disappearance; and bringing of the suspected offenders before a competent court. Petitioner AFP Chief of Staff also submitted his own affidavit attesting that he received the above directive of respondent Secretary of National Defense and that acting on this directive, he immediately caused to be issued a directive to the units of the AFP for the purpose of establishing the circumstances of the alleged disappearance and the recent reappearance of the respondents, and undertook to provide results of the investigations to respondents. To this day, however, almost a year after the policy directive was issued by petitioner Secretary of National Defense on October 31, 2007, respondents have not been furnished the results of the investigation which they now seek through the instant petition for a writ of amparo.

Under these circumstances, there is substantial evidence to warrant the conclusion that there is a violation of respondents' right to security as a guarantee of protection by the government. [Emphasis supplied]^[18]

Similarly in Velasquez Rodriguez, the Inter-American Court of Human Rights (IACHR) acknowledged that when the Honduran Government carried out or tolerated enforced disappearances, the police customarily used a distinctive form of kidnapping. Consequently, the IACHR presumed that Velasquez disappeared at the "hands of or with the acquiescence of those officials within the framework of that practice." Moreover, the IACHR found that negative inferences may be drawn from the fact that the government failed to investigate or to inquire into his disappearance, and thwarted the attempts by the victim's family to do so; these according to the Court strongly suggested the government's involvement in the disappearance, even if there was no direct evidence indicating that the government kidnapped Velasquez.^[19] The Court thus held:^[20]

iii. In the case of Manfredo Velásquez, there were the same type of denials by his captors and the Armed Forces, the same omissions of the latter and of the Government in investigating and revealing his whereabouts, and the same ineffectiveness of the courts where three writs of HABEAS corpus and two criminal complaints were brought ( testimony of Miguel Angel Pavón Salazar, Ramón Custodio López, Zenaida Velásquez, press clippings and documentary evidence ).

h. There is no evidence in the record that Manfredo Velásquez had disappeared in order to join subversive groups, other than a letter from the Mayor of Langue, which contained rumors to that effect. The letter itself shows that the Government associated him with activities it considered a threat to national security. However, the Government did not corroborate the view expressed in the letter with any other evidence. Nor is there any evidence that he was kidnapped by common criminals or other persons unrelated to the practice of disappearances existing at that time."

148. Based upon the above, the Court finds that the following facts have been proven in this proceeding: (1) a practice of disappearances carried out or tolerated by Honduran officials existed between 1981 and 1984; ( 2) Manfredo Velásquez disappeared at the hands of or with the acquiescence of those officials within the framework of that practice; and (3) the Government of Honduras failed to guarantee the human rights affected by that practice.

Finally, in Timurtas, the European Court of Human Rights (ECHR) altered the prevailing jurisprudence by permitting a lesser evidentiary burden in cases of enforced disappearances. The ECHR dismissed the need for direct evidence previously held necessary in the leading case of Kurt v. Turkey,^[21] and instead permitted the use of circumstantial evidence to establish a violation of the right to life. It stated that "whether the failure on the part of authorities to provide a plausible explanation as to a detainee's fate, in the absence of a body, might raise issues under Article 2 of the Convention (right to life), will depend on the circumstances of the case and, in particular, on the existence of sufficient circumstantial evidence based on concrete elements, from which it may be concluded to the requisite standard of proof that the detainee must be presumed to have died in custody."^[22] The ECHR found that:^[23]

Noting that more than six and a half years has gone by since Abdulvahap Timurtas' apprehension and having regard to all the other circumstances of the case, the Court found that the disappearance of Abdulvahap Timurtas after he had been taken into detention led, in the circumstances of this case, to a presumption that he had died. No explanation having been provided by the Government as to what had happened to him during his detention, the Government was liable for his death and there was a violation of Article 2 of the Convention. [Emphasis supplied]

Significantly (in the context of the present case), the ECHR also noted that the inadequacy of the investigation into the disappearance of Timurtas also constituted a violation of his right to life under Article 2 of the European Convention on Human Rights.

Thus viewed, common threads that plainly run in the three cited cases are applicable to the present case. There is the evidence of ineffective investigation in Manalo and Velasquez Rodriguez, while in all three was the recognition that the burden of proof must be lowered or relaxed (either through the use of circumstantial or indirect evidence or even by logical inference); the requirement for direct evidence to establish that an enforced disappearance occurred -- as the petitioners effectively suggest -- would render it extremely difficult, if not impossible, to prove that an individual has been made to disappear. In these lights, we emphasized in our December 3, 2009 Decision that while the need for substantial evidence remains the rule, flexibility must be observed where appropriate (as the Courts in Velasquez Rodriguez and Timurtas did) for the protection of the precious rights to life, liberty and security. This flexibility, we noted, requires that "we should take a close look at the available evidence to determine the correct import of every piece of evidence - even of those usually considered inadmissible under the general rules of evidence - taking into account the surrounding circumstances and the test of reason that we can use as basic minimum admissibility requirement." From these perspectives, we see no error that we should rectify or reconsider.

WHEREFORE, premises considered, we resolve to GRANT the motion to declare the inclusion of PS/Supt. Julasirim Ahadin Kasim moot and academic, but, otherwise, DENY the petitioners' motion for reconsideration. Let this case be remanded to the Court of Appeals for further proceedings as directed in our Decision of December 3, 2009.

SO ORDERED.

Puno, C.J., Carpio, Corona, Carpio Morales, Velasco, Jr., Nachura, Leonardo-De Castro, Peralta, Bersamin, Del Castillo, Abad, Villarama, Jr., Perez, and Mendoza, JJ., concur.

Endnotes:

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^[1] General/Police Director General Avelino I. Razon was compulsorily retired from the PNP service effective September 27, 2008. Police Director General Jesus A. Versoza is currently the incumbent Chief of the PNP.

^[2] General/Police Director Edgardo M. Doromal was compulsorily retired from the PNP service effective February 9, 2008. The PNP-CIDG is currently headed by Police Director Raul Castañeda.

^[3] Police Senior Superintendent (now, Police Chief Superintendent) Leonardo A. Espina has been reassigned to the OCPNP, specifically, the PNP's Public Information Office (PIO), effective June 4, 2009. At present, the incumbent Chief of PACER is Police Senior Superintendent Isagani R. Nerez.

^[4] General/Police Chief Superintendent Joel Goltiao was compulsorily retired from the PNP service effective September 19, 2008. Police Senior Superintendent Bienvenido Latag is currently the Acting Regional Director of the ARMM Police Regional Office.

^[5] Jema'ah Islamiah.

^[6] In our December 3, 2009 ruling, we defined the concept of responsibility and accountability for Writ of Amparo cases as follows: "Responsibility refers to the extent the actors have been established by substantial evidence to have participated in whatever way, by action or omission, in an enforced disappearance, as a measure of remedies this Court shall craft, among them, the directive to file the appropriate criminal and civil cases against the responsible parties in the proper courts. Accountability refers to the measure of remedies that should be addressed to those who exhibited involvement in the enforced disappearance without bringing the level of their complicity to the level of responsibility defined above; or who are imputed with knowledge relating to the enforced disappearance and who carry the burden of disclosure; or those who carry, but have failed to discharge, the burden of extraordinary diligence in the investigation of the enforced disappearance."

^[7] G.R. No. 180906, October 7, 2008, 568 SCRA 1.

^[8] I/A Court H.R. Velasquez Rodriguez Case, Judgment of July 29, 1988, Series C No. 4.

^[9] (23531/94) [2000] ECHR 221 (13 June 2000).

^[10] THE RULE ON THE WRIT OF AMPARO, Section 17.

^[11] Annex "A," Petitioners' Motion for Reconsideration dated January 4, 2010.

^[12] Annex "A-1," Petitioners' Motion for Reconsideration dated January 4, 2010.

^[13] Supra note 10.

^[14] See Supra note 6.

^[15] Supra note 7.

^[16] Supra note 8.

^[17] Supra note 9.

^[18] Supra note 7, pp. 62-64.

^[19] Gobind Singh Sethi, The European Court of Human Rights Jurisprudence on Issue of Enforced Disappearances, 8 No. 3Hum. Rts. Brief 29 (2001).

^[20] Supra note 8.

^[21] 27 Eur. H.R. Rep. 373 (1998).

^[22] Supra note 19.

^[23] Supra note 9.