This month the Philippine Supreme Court issued two decisions related to the rule on the writ of amparo. One granted the amparo petition filed in connection with the disappearance of an engineer in Sulu in 2007, while the other denied the petition filed by “running priest” Fr. Robert P. Reyes.
According to a news item released by the Court, in a 75-page decision penned by Justice Arturo D. Brion, the Court En Banc upheld the decision of the Court of Appeals (CA) which granted the petition of the missing engineer’s wife for the issuance of the writ of amparo, and held the Philippine National Police (PNP) accountable for the his disappearance.
The High Court denied for lack of merit the petition for review on certiorari filed by former PNP Chief Gen. Avelino I. Razon, Jr., et. al. questioning the March 7, 2008 decision of the CA. The Court also affirmed the dismissal of the amparo petition with respect to Philippine Army Commanding Officer Lt. Gen. Alexander Yano and Anti-Terrorism Task Force Comet-Zamboanga City Chief Gen. Ruben Rafael.
Engr. Morced Tagitis, a consultant for the World Bank and the Senior Honorary Counselor for the Islamic Development Bank Scholarship Programme, was last seen in Jolo, Sulu on October 31, 2007. The Supreme Court held “that the government in general, through the PNP and the PNP-CIDG, and in particular, the Chiefs of these organizations together with (former Sulu Police Chief Col. Julasirim Ahadin Kasim), should be held fully accountable for the enforced disappearance of Tagitis.”
The Court held the PNP and the CIDG accountable in view of the fact that Sec. 24 of RA 6975, otherwise known as the PNP Law, specifies the PNP as the governmental office with the mandate “to investigate and prevent crimes, effect the arrest of criminal offenders, bring offenders to justice and assist in their prosecution” whereas the PNP-CIDG, under the organizational structure of the PNP, is tasked to investigate all major crimes involving violations of the Revised Penal Code, particularly those considered as heinous crimes.
“Given their mandates, the PNP and the PNP-CIDG officials and members were the ones who were remiss in their duties when the government completely failed to exercise extraordinary diligence that the Amparo rule requires,” said the Court.
The Court also held former Col. Kasim liable for his failure to disclose under oath information relating to Tagitis’s disappearance and ordered that he be impleaded as a party to the case. It also held the PNP accountable for the suppression of vital information that Col. Kasim could but did not provide, “and, as the entity with direct authority over Col. Kasim, is held with the same obligation of disclosure that Col. Kasim carries.”
The High Court referred the case back to the CA for appropriate proceedings directed at the monitoring of the PNP and the PNP-CIDG investigations and actions. It ordered the PNP and the PNP-CIDG to present to the CA a plan of action for further investigation. The Court also directed the CA to pass upon the need of the PNP and the PNP-CIDG to make disclosures of matters known to them relative to the case, the sufficiency of their investigative reports, and to submit to the Court a quarterly report containing its actions and recommendations as regards the case.
In the other case, the Supreme Court En Banc, in a 14-page decision penned by Justice Teresita J. Leonardo-De Castro,unanimously dismissed Father Reyes’s petition for review of a decision of the CA dated February 4, 2008 which denied him the privilege of the writ of amparo in connection with a Hold Departure Order issued against him by then Department of Justice (DOJ) Secretary Raul Gonzalez.
Reyes sought the issuance of the said writ based on his claim that his constitutional right to travel was impaired by the Hold Departure Order issued against him by the DOJ in connection with the pendency of a criminal case against him due to his alleged involvement in the November 30, 2007 Manila Peninsula Hotel siege.
In upholding the CA’s denial of the privilege of the writ of amparo to Reyes, the Court ruled that the restriction on Reyes’s right to travel as a consequence of the criminal case against him was not unlawful. It added that Reyes failed to establish that his right to travel was impaired in the manner and to the extent that it amounted to a serious violation of his right to life, liberty and security, for which there exists no readily available legal recourse or remedy.
The Court added that Reyes’s direct recourse to the Supreme Court was inappropriate as he should have filed with the Regional Trial Court a motion to lift the Hold Departure Order against him. It said that the Reyes’s apprehension that the DOJ may deny his motion to lift the said travel order “is at best merely speculative.”
(GR No. 182498, Razon v. Tagitis; GR No. 182161, Reyes v. Court of Appeals, December 3, 2009)
I am digesting below the findings and conclusions of the Court in the aforecited cases for legal research purposes of the visitors of this blog.
GEN. AVELINO I. RAZON, JR., Chief, Philippine National Police (PNP); et. al. vs. MARY JEAN B. TAGITIS, et. al., EN BANC, G.R. No. 182498, December 3, 2009
X x x.
THE COURT’S RULING
We do not find the petition meritorious.
Sufficiency in Form and Substance
In questioning the sufficiency in form and substance of the respondent’s Amparo petition, the petitioners contend that the petition violated Section 5(c), (d), and (e) of the Amparo Rule. Specifically, the petitioners allege that the respondent failed to:
1) allege any act or omission the petitioners committed in violation of Tagitis’ rights to life, liberty and security;
2) allege in a complete manner how Tagitis was abducted, the persons responsible for his disappearance, and the respondent’s source of information;
3) allege that the abduction was committed at the petitioners’ instructions or with their consent;
4) implead the members of CIDG regional office in Zamboanga alleged to have custody over her husband;
5) attach the affidavits of witnesses to support her accusations;
6) allege any action or inaction attributable to the petitioners in the performance of their duties in the investigation of Tagitis’ disappearance; and
7) specify what legally available efforts she took to determine the fate or whereabouts of her husband.
A petition for the Writ of Amparo shall be signed and verified and shall allege, among others (in terms of the portions the petitioners cite):
(c) The right to life, liberty and security of the aggrieved party violated or threatened with violation by an unlawful act or omission of the respondent, and how such threat or violation is committed with the attendant circumstances detailed in supporting affidavits;
(d) The investigation conducted, if any, specifying the names, personal circumstances, and addresses of the investigating authority or individuals, as well as the manner and conduct of the investigation, together with any report;
(e) The actions and recourses taken by the petitioner to determine the fate or whereabouts of the aggrieved party and the identity of the person responsible for the threat, act or omission; and
The framers of the Amparo Rule never intended Section 5(c) to be complete in every detail in stating the threatened or actual violation of a victim’s rights. As in any other initiatory pleading, the pleader must of course state the ultimate facts constituting the cause of action, omitting the evidentiary details. In an Amparo petition, however, this requirement must be read in light of the nature and purpose of the proceeding, which addresses a situation of uncertainty; the petitioner may not be able to describe with certainty how the victim exactly disappeared, or who actually acted to kidnap, abduct or arrest him or her, or where the victim is detained, because these information may purposely be hidden or covered up by those who caused the disappearance. In this type of situation, to require the level of specificity, detail and precision that the petitioners apparently want to read into the Amparo Rule is to make this Rule a token gesture of judicial concern for violations of the constitutional rights to life, liberty and security.
To read the Rules of Court requirement on pleadings while addressing the unique Amparo situation, the test in reading the petition should be to determine whether it contains the details available to the petitioner under the circumstances, while presenting a cause of action showing a violation of the victim’s rights to life, liberty and security through State or private party action. The petition should likewise be read in its totality, rather than in terms of its isolated component parts, to determine if the required elements – namely, of the disappearance, the State or private action, and the actual or threatened violations of the rights to life, liberty or security – are present.
In the present case, the petition amply recites in its paragraphs 4 to 11 the circumstances under which Tagitis suddenly dropped out of sight after engaging in normal activities, and thereafter was nowhere to be found despite efforts to locate him. The petition alleged, too, under its paragraph 7, in relation to paragraphs 15 and 16, that according to reliable information, police operatives were the perpetrators of the abduction. It also clearly alleged how Tagitis’ rights to life, liberty and security were violated when he was “forcibly taken and boarded on a motor vehicle by a couple of burly men believed to be police intelligence operatives,” and then taken “into custody by the respondents’ police intelligence operatives since October 30, 2007, specifically by the CIDG, PNP Zamboanga City, x x x held against his will in an earnest attempt of the police to involve and connect [him] with different terrorist groups.”
These allegations, in our view, properly pleaded ultimate facts within the pleader’s knowledge about Tagitis’ disappearance, the participation by agents of the State in this disappearance, the failure of the State to release Tagitis or to provide sufficient information about his whereabouts, as well as the actual violation of his right to liberty. Thus, the petition cannot be faulted for any failure in its statement of a cause of action.
If a defect can at all be attributed to the petition, this defect is its lack of supporting affidavit, as required by Section 5(c) of the Amparo Rule. Owing to the summary nature of the proceedings for the writ and to facilitate the resolution of the petition, the Amparo Rule incorporated the requirement for supporting affidavits, with the annotation that these can be used as the affiant’s direct testimony. This requirement, however, should not be read as an absolute one that necessarily leads to the dismissal of the petition if not strictly followed. Where, as in this case, the petitioner has substantially complied with the requirement by submitting a verified petition sufficiently detailing the facts relied upon, the strict need for the sworn statement that an affidavit represents is essentially fulfilled. We note that the failure to attach the required affidavits was fully cured when the respondent and her witness (Mrs. Talbin) personally testified in the CA hearings held on January 7 and 17 and February 18, 2008 to swear to and flesh out the allegations of the petition. Thus, even on this point, the petition cannot be faulted.
Section 5(d) of the Amparo Rule requires that prior investigation of an alleged disappearance must have been made, specifying the manner and results of the investigation. Effectively, this requirement seeks to establish at the earliest opportunity the level of diligence the public authorities undertook in relation with the reported disappearance.
We reject the petitioners’ argument that the respondent’s petition did not comply with the Section 5(d) requirements of the Amparo Rule, as the petition specifies in its paragraph 11 that Kunnong and his companions immediately reported Tagitis’ disappearance to the police authorities in Jolo, Sulu as soon as they were relatively certain that he indeed had disappeared. The police, however, gave them the “ready answer” that Tagitis could have been abducted by the Abu Sayyaf group or other anti-government groups. The respondent also alleged in paragraphs 17 and 18 of her petition that she filed a “complaint” with the PNP Police Station in Cotobato and in Jolo, but she was told of “an intriguing tale” by the police that her husband was having “a good time with another woman.” The disappearance was alleged to have been reported, too, to no less than the Governor of the ARMM, followed by the respondent’s personal inquiries that yielded the factual bases for her petition.
These allegations, to our mind, sufficiently specify that reports have been made to the police authorities, and that investigations should have followed. That the petition did not state the manner and results of the investigation that the Amparo Rule requires, but rather generally stated the inaction of the police, their failure to perform their duty to investigate, or at the very least, their reported failed efforts, should not be a reflection on the completeness of the petition. To require the respondent to elaborately specify the names, personal circumstances, and addresses of the investigating authority, as well the manner and conduct of the investigation is an overly strict interpretation of Section 5(d), given the respondent’s frustrations in securing an investigation with meaningful results. Under these circumstances, we are more than satisfied that the allegations of the petition on the investigations undertaken are sufficiently complete for purposes of bringing the petition forward.
Section 5(e) is in the Amparo Rule to prevent the use of a petition – that otherwise is not supported by sufficient allegations to constitute a proper cause of action – as a means to “fish” for evidence. The petitioners contend that the respondent’s petition did not specify what “legally available efforts were taken by the respondent,” and that there was an “undue haste” in the filing of the petition when, instead of cooperating with authorities, the respondent immediately invoked the Court’s intervention.
We do not see the respondent’s petition as the petitioners view it.
Section 5(e) merely requires that the Amparo petitioner (the respondent in the present case) allege “the actions and recourses taken to determine the fate or whereabouts of the aggrieved party and the identity of the person responsible for the threat, act or omission.” The following allegations of the respondent’s petition duly outlined the actions she had taken and the frustrations she encountered, thus compelling her to file her petition.
x x x x
7. Soon after the student left the room, Engr. Tagitis went out of the pension house to take his early lunch but while out on the street, a couple of burly men believed to be police intelligence operatives, forcibly took him and boarded the latter on a motor vehicle then sped away without the knowledge of his student, Arsimin Kunnong;
x x x x
10. When Kunnong could not locate Engr. Tagitis, the former sought the help of another IDB scholar and reported the matter to the local police agency;
11. Arsimin Kunnong, including his friends and companions in Jolo, exerted efforts in trying to locate the whereabouts of Engr. Tagitis and when he reported the matter to the police authorities in Jolo, he was immediately given a ready answer that Engr. Tagitis could [have been] abducted by the Abu Sayyaf group and other groups known to be fighting against the government;
12. Being scared with these suggestions and insinuations of the police officers, Kunnong reported the matter to the [respondent](wife of Engr. Tagitis) by phone and other responsible officers and coordinators of the IDB Scholarship Programme in the Philippines who alerted the office of the Governor of ARMM who was then preparing to attend the OIC meeting in Jeddah, Saudi Arabia;
13. [The respondent], on the other hand, approached some of her co-employees with the Land Bank in Digos branch, Digos City, Davao del Sur, who likewise sought help from some of their friends in the military who could help them find/locate the whereabouts of her husband;
x x x x
15. According to reliable information received by the [respondent], subject Engr. Tagitis is in the custody of police intelligence operatives, specifically with the CIDG, PNP Zamboanga City, being held against his will in an earnest attempt of the police to involve and connect Engr. Tagitis with the different terrorist groups;
x x x x
17. [The respondent] filed her complaint with the PNP Police Station at the ARMM in Cotobato and in Jolo, as suggested by her friends, seeking their help to find her husband, but [the respondent’s] request and pleadings failed to produce any positive results
x x x x
20. Lately, [respondent] was again advised by one of the [petitioners] to go to the ARMM Police Headquarters again in Cotobato City and also to the different Police Headquarters including the police headquarters in Davao City, in Zamboanga City, in Jolo, and in Camp Crame, Quezon City, and all these places have been visited by the [respondent] in search for her husband, which entailed expenses for her trips to these places thereby resorting her to borrowings and beggings [sic] for financial help from friends and relatives only to try complying to the different suggestions of these police officers, despite of which, her efforts produced no positive results up to the present time;
x x x x
25. [The respondent] has exhausted all administrative avenues and remedies but to no avail, and under the circumstances, [respondent] has no other plain, speedy and adequate remedy to protect and get the release of subject Engr. Morced Tagitis from the illegal clutches of [the petitioners], their intelligence operatives and the like which are in total violation of the subject’s human and constitutional rights, except the issuance of a WRIT OF AMPARO.
Based on these considerations, we rule that the respondent’s petition for the Writ of Amparo is sufficient in form and substance and that the Court of Appeals had every reason to proceed with its consideration of the case.
The present case is one of first impression in the use and application of the Rule on the Writ of Amparo in an enforced disappearance situation. For a deeper appreciation of the application of this Rule to an enforced disappearance situation, a brief look at the historical context of the writ and enforced disappearances would be very helpful.
The phenomenon of enforced disappearance arising from State action first attracted notice in Adolf Hitler’s Nact und Nebel Erlass or Night and Fog Decree of December 7, 1941. The Third Reich’s Night and Fog Program, a State policy, was directed at persons in occupied territories “endangering German security”; they were transported secretly to Germany where they disappeared without a trace. In order to maximize the desired intimidating effect, the policy prohibited government officials from providing information about the fate of these targeted persons.
In the mid-1970s, the phenomenon of enforced disappearances resurfaced, shocking and outraging the world when individuals, numbering anywhere from 6,000 to 24,000, were reported to have “disappeared” during the military regime in Argentina. Enforced disappearances spread in Latin America, and the issue became an international concern when the world noted its widespread and systematic use by State security forces in that continent under Operation Condor and during the Dirty War in the 1970s and 1980s. The escalation of the practice saw political activists secretly arrested, tortured, and killed as part of governments’ counter-insurgency campaigns. As this form of political brutality became routine elsewhere in the continent, the Latin American media standardized the term “disappearance” to describe the phenomenon. The victims of enforced disappearances were called the “desaparecidos,” which literally means the “disappeared ones.” In general, there are three different kinds of “disappearance” cases:
1) those of people arrested without witnesses or without positive identification of the arresting agents and are never found again;
2) those of prisoners who are usually arrested without an appropriate warrant and held in complete isolation for weeks or months while their families are unable to discover their whereabouts and the military authorities deny having them in custody until they eventually reappear in one detention center or another; and
3) those of victims of “salvaging” who have disappeared until their lifeless bodies are later discovered.
In the Philippines, enforced disappearances generally fall within the first two categories, and 855 cases were recorded during the period of martial law from 1972 until 1986. Of this number, 595 remained missing, 132 surfaced alive and 127 were found dead. During former President Corazon C. Aquino’s term, 820 people were reported to have disappeared and of these, 612 cases were documented. Of this number, 407 remain missing, 108 surfaced alive and 97 were found dead. The number of enforced disappearances dropped during former President Fidel V. Ramos’ term when only 87 cases were reported, while the three-year term of former President Joseph E. Estrada yielded 58 reported cases. KARAPATAN, a local non-governmental organization, reports that as of March 31, 2008, the records show that there were a total of 193 victims of enforced disappearance under incumbent President Gloria M. Arroyo’s administration. The Commission on Human Rights’ records show a total of 636 verified cases of enforced disappearances from 1985 to 1993. Of this number, 406 remained missing, 92 surfaced alive, 62 were found dead, and 76 still have undetermined status. Currently, the United Nations Working Group on Enforced or Involuntary Disappearance reports 619 outstanding cases of enforced or involuntary disappearances covering the period December 1, 2007 to November 30, 2008.
Under Philippine Law
The Amparo Rule expressly provides that the “writ shall cover extralegal killings and enforced disappearances or threats thereof.” We note that although the writ specifically covers “enforced disappearances,” this concept is neither defined nor penalized in this jurisdiction. The records of the Supreme Court Committee on the Revision of Rules (Committee) reveal that the drafters of the Amparo Rule initially considered providing an elemental definition of the concept of enforced disappearance:
JUSTICE MARTINEZ: I believe that first and foremost we should come up or formulate a specific definition [for] extrajudicial killings and enforced disappearances. From that definition, then we can proceed to formulate the rules, definite rules concerning the same.
CHIEF JUSTICE PUNO: … As things stand, there is no law penalizing extrajudicial killings and enforced disappearances… so initially also we have to [come up with] the nature of these extrajudicial killings and enforced disappearances [to be covered by the Rule] because our concept of killings and disappearances will define the jurisdiction of the courts. So we’ll have to agree among ourselves about the nature of killings and disappearances for instance, in other jurisdictions, the rules only cover state actors. That is an element incorporated in their concept of extrajudicial killings and enforced disappearances. In other jurisdictions, the concept includes acts and omissions not only of state actors but also of non state actors. Well, more specifically in the case of the Philippines for instance, should these rules include the killings, the disappearances which may be authored by let us say, the NPAs or the leftist organizations and others. So, again we need to define the nature of the extrajudicial killings and enforced disappearances that will be covered by these rules. [Emphasis supplied]
In the end, the Committee took cognizance of several bills filed in the House of Representatives and in the Senate on extrajudicial killings and enforced disappearances, and resolved to do away with a clear textual definition of these terms in the Rule. The Committee instead focused on the nature and scope of the concerns within its power to address and provided the appropriate remedy therefor, mindful that an elemental definition may intrude into the ongoing legislative efforts.
As the law now stands, extra-judicial killings and enforced disappearances in this jurisdiction are not crimes penalized separately from the component criminal acts undertaken to carry out these killings and enforced disappearances and are now penalized under the Revised Penal Code and special laws. The simple reason is that the Legislature has not spoken on the matter; the determination of what acts are criminal and what the corresponding penalty these criminal acts should carry are matters of substantive law that only the Legislature has the power to enact under the country’s constitutional scheme and power structure.
Even without the benefit of directly applicable substantive laws on extra-judicial killings and enforced disappearances, however, the Supreme Court is not powerless to act under its own constitutional mandate to promulgate “rules concerning the protection and enforcement of constitutional rights, pleading, practice and procedure in all courts,” since extrajudicial killings and enforced disappearances, by their nature and purpose, constitute State or private party violation of the constitutional rights of individuals to life, liberty and security. Although the Court’s power is strictly procedural and as such does not diminish, increase or modify substantive rights, the legal protection that the Court can provide can be very meaningful through the procedures it sets in addressing extrajudicial killings and enforced disappearances. The Court, through its procedural rules, can set the procedural standards and thereby directly compel the public authorities to act on actual or threatened violations of constitutional rights. To state the obvious, judicial intervention can make a difference – even if only procedurally – in a situation when the very same investigating public authorities may have had a hand in the threatened or actual violations of constitutional rights.
Lest this Court intervention be misunderstood, we clarify once again that we do not rule on any issue of criminal culpability for the extrajudicial killing or enforced disappearance. This is an issue that requires criminal action before our criminal courts based on our existing penal laws. Our intervention is in determining whether an enforced disappearance has taken place and who is responsible or accountable for this disappearance, and to define and impose the appropriate remedies to address it. The burden for the public authorities to discharge in these situations, under the Rule on the Writ of Amparo, is twofold. The first is to ensure that all efforts at disclosure and investigation are undertaken under pain of indirect contempt from this Court when governmental efforts are less than what the individual situations require. The second is to address the disappearance, so that the life of the victim is preserved and his or her liberty and security restored. In these senses, our orders and directives relative to the writ are continuing efforts that are not truly terminated until the extrajudicial killing or enforced disappearance is fully addressed by the complete determination of the fate and the whereabouts of the victim, by the production of the disappeared person and the restoration of his or her liberty and security, and, in the proper case, by the commencement of criminal action against the guilty parties.
Under International Law
From the International Law perspective, involuntary or enforced disappearance is considered a flagrant violation of human rights. It does not only violate the right to life, liberty and security of the desaparecido; it affects their families as well through the denial of their right to information regarding the circumstances of the disappeared family member. Thus, enforced disappearances have been said to be “a double form of torture,” with “doubly paralyzing impact for the victims,” as they “are kept ignorant of their own fates, while family members are deprived of knowing the whereabouts of their detained loved ones” and suffer as well the serious economic hardship and poverty that in most cases follow the disappearance of the household breadwinner.
The UN General Assembly first considered the issue of “Disappeared Persons” in December 1978 under Resolution 33/173. The Resolution expressed the General Assembly’s deep concern arising from “reports from various parts of the world relating to enforced or involuntary disappearances,” and requested the “UN Commission on Human Rights to consider the issue of enforced disappearances with a view to making appropriate recommendations.”
In 1992, in response to the reality that the insidious practice of enforced disappearance had become a global phenomenon, the UN General Assembly adopted the Declaration on the Protection of All Persons from Enforced Disappearance (Declaration). This Declaration, for the first time, provided in its third preambular clause a working description of enforced disappearance, as follows:
Deeply concerned that in many countries, often in a persistent manner, enforced disappearances occur, in the sense that persons are arrested, detained or abducted against their will or otherwise deprived of their liberty by officials of different branches or levels of Government, or by organized groups or private individuals acting on behalf of, or with the support, direct or indirect, consent or acquiescence of the Government, followed by a refusal to disclose the fate or whereabouts of the persons concerned or a refusal to acknowledge the deprivation of their liberty, which places such persons outside the protection of the law. [Emphasis supplied]
Fourteen years after (or on December 20, 2006), the UN General Assembly adopted the International Convention for the Protection of All Persons from Enforced Disappearance (Convention). The Convention was opened for signature in Paris, France on February 6, 2007. Article 2 of the Convention defined enforced disappearance as follows:
For the purposes of this Convention, “enforced disappearance” is considered to be the arrest, detention, abduction or any other form of deprivation of liberty by agents of the State or by persons or groups of persons acting with the authorization, support or acquiescence of the State, followed by a refusal to acknowledge the deprivation of liberty or by concealment of the fate or whereabouts of the disappeared person, which place such a person outside the protection of the law. [Emphasis supplied]
The Convention is the first universal human rights instrument to assert that there is a right not to be subject to enforced disappearance and that this right is non-derogable. It provides that no one shall be subjected to enforced disappearance under any circumstances, be it a state of war, internal political instability, or any other public emergency. It obliges State Parties to codify enforced disappearance as an offense punishable with appropriate penalties under their criminal law. It also recognizes the right of relatives of the disappeared persons and of the society as a whole to know the truth on the fate and whereabouts of the disappeared and on the progress and results of the investigation. Lastly, it classifies enforced disappearance as a continuing offense, such that statutes of limitations shall not apply until the fate and whereabouts of the victim are established.
Binding Effect of UN
Action on the Philippines
To date, the Philippines has neither signed nor ratified the Convention, so that the country is not yet committed to enact any law penalizing enforced disappearance as a crime. The absence of a specific penal law, however, is not a stumbling block for action from this Court, as heretofore mentioned; underlying every enforced disappearance is a violation of the constitutional rights to life, liberty and security that the Supreme Court is mandated by the Constitution to protect through its rule-making powers.
Separately from the Constitution (but still pursuant to its terms), the Court is guided, in acting on Amparo cases, by the reality that the Philippines is a member of the UN, bound by its Charter and by the various conventions we signed and ratified, particularly the conventions touching on humans rights. Under the UN Charter, the Philippines pledged to “promote universal respect for, and observance of, human rights and fundamental freedoms for all without distinctions as to race, sex, language or religion.” Although no universal agreement has been reached on the precise extent of the “human rights and fundamental freedoms” guaranteed to all by the Charter, it was the UN itself that issued the Declaration on enforced disappearance, and this Declaration states:
Any act of enforced disappearance is an offence to dignity. It is condemned as a denial of the purposes of the Charter of the United Nations and as a grave and flagrant violation of human rights and fundamental freedoms proclaimed in the Universal Declaration of Human Rights and reaffirmed and developed in international instruments in this field. [Emphasis supplied]
As a matter of human right and fundamental freedom and as a policy matter made in a UN Declaration, the ban on enforced disappearance cannot but have its effects on the country, given our own adherence to “generally accepted principles of international law as part of the law of the land.”
In the recent case of Pharmaceutical and Health Care Association of the Philippines v. Duque III, we held that:
Under the 1987 Constitution, international law can become part of the sphere of domestic law either by transformation or incorporation. The transformation method requires that an international law be transformed into a domestic law through a constitutional mechanism such as local legislation. The incorporation method applies when, by mere constitutional declaration, international law is deemed to have the force of domestic law. [Emphasis supplied]
We characterized “generally accepted principles of international law” as norms of general or customary international law that are binding on all states. We held further:
[G]enerally accepted principles of international law, by virtue of the incorporation clause of the Constitution, form part of the laws of the land even if they do not derive from treaty obligations. The classical formulation in international law sees those customary rules accepted as binding result from the combination [of] two elements: the established, widespread, and consistent practice on the part of States; and a psychological element known as the opinion juris sive necessitates (opinion as to law or necessity). Implicit in the latter element is a belief that the practice in question is rendered obligatory by the existence of a rule of law requiring it. [Emphasis in the original]
The most widely accepted statement of sources of international law today is Article 38(1) of the Statute of the International Court of Justice, which provides that the Court shall apply “international custom, as evidence of a general practice accepted as law.” The material sources of custom include State practice, State legislation, international and national judicial decisions, recitals in treaties and other international instruments, a pattern of treaties in the same form, the practice of international organs, and resolutions relating to legal questions in the UN General Assembly. Sometimes referred to as “evidence” of international law, these sources identify the substance and content of the obligations of States and are indicative of the “State practice” and “opinio juris” requirements of international law. We note the following in these respects:
First, barely two years from the adoption of the Declaration, the Organization of American States (OAS) General Assembly adopted the Inter-American Convention on Enforced Disappearance of Persons in June 1994. State parties undertook under this Convention “not to practice, permit, or tolerate the forced disappearance of persons, even in states of emergency or suspension of individual guarantees.” One of the key provisions includes the States’ obligation to enact the crime of forced disappearance in their respective national criminal laws and to establish jurisdiction over such cases when the crime was committed within their jurisdiction, when the victim is a national of that State, and “when the alleged criminal is within its territory and it does not proceed to extradite him,” which can be interpreted as establishing universal jurisdiction among the parties to the Inter-American Convention. At present, Colombia, Guatemala, Paraguay, Peru and Venezuela have enacted separate laws in accordance with the Inter-American Convention and have defined activities involving enforced disappearance to be criminal.
Second, in Europe, the European Convention on Human Rights has no explicit provision dealing with the protection against enforced disappearance. The European Court of Human Rights (ECHR), however, has applied the Convention in a way that provides ample protection for the underlying rights affected by enforced disappearance through the Convention’s Article 2 on the right to life; Article 3 on the prohibition of torture; Article 5 on the right to liberty and security; Article 6, paragraph 1 on the right to a fair trial; and Article 13 on the right to an effective remedy. A leading example demonstrating the protection afforded by the European Convention is Kurt v. Turkey, where the ECHR found a violation of the right to liberty and security of the disappeared person when the applicant’s son disappeared after being taken into custody by Turkish forces in the Kurdish village of Agilli in November 1993. It further found the applicant (the disappeared person’s mother) to be a victim of a violation of Article 3, as a result of the silence of the authorities and the inadequate character of the investigations undertaken. The ECHR also saw the lack of any meaningful investigation by the State as a violation of Article 13.
Third, in the United States, the status of the prohibition on enforced disappearance as part of customary international law is recognized in the most recent edition of Restatement of the Law: The Third, which provides that “[a] State violates international law if, as a matter of State policy, it practices, encourages, or condones… (3) the murder or causing the disappearance of individuals.” We significantly note that in a related matter that finds close identification with enforced disappearance – the matter of torture – the United States Court of Appeals for the Second Circuit Court held in Filartiga v. Pena-Irala that the prohibition on torture had attained the status of customary international law. The court further elaborated on the significance of UN declarations, as follows:
These U.N. declarations are significant because they specify with great precision the obligations of member nations under the Charter. Since their adoption, "(m)embers can no longer contend that they do not know what human rights they promised in the Charter to promote.” Moreover, a U.N. Declaration is, according to one authoritative definition, "a formal and solemn instrument, suitable for rare occasions when principles of great and lasting importance are being enunciated.” Accordingly, it has been observed that the Universal Declaration of Human Rights "no longer fits into the dichotomy of ‘binding treaty’ against ‘non-binding pronouncement,' but is rather an authoritative statement of the international community." Thus, a Declaration creates an expectation of adherence, and "insofar as the expectation is gradually justified by State practice, a declaration may by custom become recognized as laying down rules binding upon the States." Indeed, several commentators have concluded that the Universal Declaration has become, in toto, a part of binding, customary international law. [Citations omitted]
Fourth, in interpreting Article 2 (right to an effective domestic remedy) of the International Convention on Civil and Political Rights (ICCPR), to which the Philippines is both a signatory and a State Party, the UN Human Rights Committee, under the Office of the High Commissioner for Human Rights, has stated that the act of enforced disappearance violates Articles 6 (right to life), 7 (prohibition on torture, cruel, inhuman or degrading treatment or punishment) and 9 (right to liberty and security of the person) of the ICCPR, and the act may also amount to a crime against humanity.
Fifth, Article 7, paragraph 1 of the 1998 Rome Statute establishing the International Criminal Court (ICC) also covers enforced disappearances insofar as they are defined as crimes against humanity, i.e., crimes “committed as part of a widespread or systematic attack against any civilian population, with knowledge of the attack.” While more than 100 countries have ratified the Rome Statute, the Philippines is still merely a signatory and has not yet ratified it. We note that Article 7(1) of the Rome Statute has been incorporated in the statutes of other international and hybrid tribunals, including Sierra Leone Special Court, the Special Panels for Serious Crimes in Timor-Leste, and the Extraordinary Chambers in the Courts of Cambodia. In addition, the implementing legislation of State Parties to the Rome Statute of the ICC has given rise to a number of national criminal provisions also covering enforced disappearance.
While the Philippines is not yet formally bound by the terms of the Convention on enforced disappearance (or by the specific terms of the Rome Statute) and has not formally declared enforced disappearance as a specific crime, the above recital shows that enforced disappearance as a State practice has been repudiated by the international community, so that the ban on it is now a generally accepted principle of international law, which we should consider a part of the law of the land, and which we should act upon to the extent already allowed under our laws and the international conventions that bind us.
The following civil or political rights under the Universal Declaration of Human Rights, the ICCPR and the International Convention on Economic, Social and Cultural Rights (ICESR) may be infringed in the course of a disappearance:
1) the right to recognition as a person before the law;
2) the right to liberty and security of the person;
3) the right not to be subjected to torture and other cruel, inhuman or degrading treatment or punishment;
4) the right to life, when the disappeared person is killed;
5) the right to an identity;
6) the right to a fair trial and to judicial guarantees;
7) the right to an effective remedy, including reparation and compensation;
8) the right to know the truth regarding the circumstances of a disappearance.
9) the right to protection and assistance to the family;
10) the right to an adequate standard of living;
11) the right to health; and
12) the right to education [Emphasis supplied]
Article 2 of the ICCPR, which binds the Philippines as a state party, provides:
3. Each State Party to the present Covenant undertakes:
(a) To ensure that any person whose rights or freedoms as herein recognized are violated shall have an effective remedy, notwithstanding that the violation has been committed by persons acting in an official capacity;
(b) To ensure that any person claiming such a remedy shall have his right thereto determined by competent judicial, administrative or legislative authorities, or by any other competent authority provided for by the legal system of the State, and to develop the possibilities of judicial remedy;
(c) To ensure that the competent authorities shall enforce such remedies when granted. [Emphasis supplied]
In General Comment No. 31, the UN Human Rights Committee opined that the right to an effective remedy under Article 2 of the ICCPR includes the obligation of the State to investigate ICCPR violations promptly, thoroughly, and effectively, viz:
15. Article 2, paragraph 3, requires that in addition to effective protection of Covenant rights, States Parties must ensure that individuals also have accessible and effective remedies to vindicate those rights… The Committee attaches importance to States Parties' establishing appropriate judicial and administrative mechanisms for addressing claims of rights violations under domestic law… Administrative mechanisms are particularly required to give effect to the general obligation to investigate allegations of violations promptly, thoroughly and effectively through independent and impartial bodies. A failure by a State Party to investigate allegations of violations could in and of itself give rise to a separate breach of the Covenant. Cessation of an ongoing violation is an essential element of the right to an effective remedy. [Emphasis supplied]
The UN Human Rights Committee further stated in the same General Comment No. 31 that failure to investigate as well as failure to bring to justice the perpetrators of ICCPR violations could in and of itself give rise to a separate breach of the Covenant, thus:
18. Where the investigations referred to in paragraph 15 reveal violations of certain Covenant rights, States Parties must ensure that those responsible are brought to justice. As with failure to investigate, failure to bring to justice perpetrators of such violations could in and of itself give rise to a separate breach of the Covenant. These obligations arise notably in respect of those violations recognized as criminal under either domestic or international law, such as torture and similar cruel, inhuman and degrading treatment (article 7), summary and arbitrary killing (article 6) and enforced disappearance (articles 7 and 9 and, frequently, 6). Indeed, the problem of impunity for these violations, a matter of sustained concern by the Committee, may well be an important contributing element in the recurrence of the violations. When committed as part of a widespread or systematic attack on a civilian population, these violations of the Covenant are crimes against humanity (see Rome Statute of the International Criminal Court, article 7). [Emphasis supplied]
In Secretary of National Defense v. Manalo, this Court, in ruling that the right to security of persons is a guarantee of the protection of one’s right by the government, held that:
The right to security of person in this third sense is a corollary of the policy that the State “guarantees full respect for human rights” under Article II, Section 11 of the 1987 Constitution. As the government is the chief guarantor of order and security, the Constitutional guarantee of the rights to life, liberty and security of person is rendered ineffective if government does not afford protection to these rights especially when they are under threat. Protection includes conducting effective investigations, organization of the government apparatus to extend protection to victims of extralegal killings or enforced disappearances (or threats thereof) and/or their families, and bringing offenders to the bar of justice. The Inter-American Court of Human Rights stressed the importance of investigation in the Velasquez Rodriguez Case, viz:
(The duty to investigate) must be undertaken in a serious manner and not as a mere formality preordained to be ineffective. An investigation must have an objective and be assumed by the State as its own legal duty, not as a step taken by private interests that depends upon the initiative of the victim or his family or upon their offer of proof, without an effective search for the truth by the government. [Emphasis supplied]
Manalo significantly cited Kurt v. Turkey, where the ECHR interpreted the “right to security” not only as a prohibition on the State against arbitrary deprivation of liberty, but also as the imposition of a positive duty to afford protection to the right to liberty. The Court notably quoted the following ECHR ruling:
[A]ny deprivation of liberty must not only have been effected in conformity with the substantive and procedural rules of national law but must equally be in keeping with the very purpose of Article 5, namely to protect the individual from arbitrariness... Having assumed control over that individual, it is incumbent on the authorities to account for his or her whereabouts. For this reason, Article 5 must be seen as requiring the authorities to take effective measures to safeguard against the risk of disappearance and to conduct a prompt effective investigation into an arguable claim that a person has been taken into custody and has not been seen since. [Emphasis supplied]
These rulings effectively serve as the backdrop for the Rule on the Writ of Amparo, which the Court made effective on October 24, 2007. Although the Amparo Rule still has gaps waiting to be filled through substantive law, as evidenced primarily by the lack of a concrete definition of “enforced disappearance,” the materials cited above, among others, provide ample guidance and standards on how, through the medium of the Amparo Rule, the Court can provide remedies and protect the constitutional rights to life, liberty and security that underlie every enforced disappearance.
Evidentiary Difficulties Posed
by the Unique Nature of an
Before going into the issue of whether the respondent has discharged the burden of proving the allegations of the petition for the Writ of Amparo by the degree of proof required by the Amparo Rule, we shall discuss briefly the unique evidentiary difficulties presented by enforced disappearance cases; these difficulties form part of the setting that the implementation of the Amparo Rule shall encounter.
These difficulties largely arise because the State itself – the party whose involvement is alleged – investigates enforced disappearances. Past experiences in other jurisdictions show that the evidentiary difficulties are generally threefold.
First, there may be a deliberate concealment of the identities of the direct perpetrators. Experts note that abductors are well organized, armed and usually members of the military or police forces, thus:
The victim is generally arrested by the security forces or by persons acting under some form of governmental authority. In many countries the units that plan, implement and execute the program are generally specialized, highly-secret bodies within the armed or security forces. They are generally directed through a separate, clandestine chain of command, but they have the necessary credentials to avoid or prevent any interference by the "legal" police forces. These authorities take their victims to secret detention centers where they subject them to interrogation and torture without fear of judicial or other controls.
In addition, there are usually no witnesses to the crime; if there are, these witnesses are usually afraid to speak out publicly or to testify on the disappearance out of fear for their own lives. We have had occasion to note this difficulty in Secretary of Defense v. Manalo when we acknowledged that “where powerful military officers are implicated, the hesitation of witnesses to surface and testify against them comes as no surprise.”
Second, deliberate concealment of pertinent evidence of the disappearance is a distinct possibility; the central piece of evidence in an enforced disappearance – i.e., the corpus delicti or the victim’s body – is usually concealed to effectively thwart the start of any investigation or the progress of one that may have begun. The problem for the victim’s family is the State’s virtual monopoly of access to pertinent evidence. The Inter-American Court of Human Rights (IACHR) observed in the landmark case of Velasquez Rodriguez that inherent to the practice of enforced disappearance is the deliberate use of the State’s power to destroy the pertinent evidence. The IACHR described the concealment as a clear attempt by the State to commit the perfect crime.
Third is the element of denial; in many cases, the State authorities deliberately deny that the enforced disappearance ever occurred. “Deniability” is central to the policy of enforced disappearances, as the absence of any proven disappearance makes it easier to escape the application of legal standards ensuring the victim’s human rights. Experience shows that government officials typically respond to requests for information about desaparecidos by saying that they are not aware of any disappearance, that the missing people may have fled the country, or that their names have merely been invented.
These considerations are alive in our minds, as these are the difficulties we confront, in one form or another, in our consideration of this case.
Evidence and Burden of Proof in
Enforced Disappearances Cases
Sections 13, 17 and 18 of the Amparo Rule define the nature of an Amparo proceeding and the degree and burden of proof the parties to the case carry, as follows:
Section 13. Summary Hearing. The hearing on the petition shall be summary. However, the court, justice or judge may call for a preliminary conference to simplify the issues and determine the possibility of obtaining stipulations and admissions from the parties.
x x x x
Section 17. Burden of Proof and Standard of Diligence Required. – The parties shall establish their claims by substantial evidence.
The respondent who is a private individual must prove that ordinary diligence as required by applicable laws, rules and regulations was observed in the performance of duty.
The respondent who is a public official or employee must prove that extraordinary diligence as required by applicable laws, rules and regulations was observed in the performance of duty.
The respondent public official or employee cannot invoke the presumption that official duty has been regularly performed or evade responsibility or liability.
Section 18. Judgment. – … If the allegations in the petition are proven by substantial evidence, the court shall grant the privilege of the writ and such reliefs as may be proper and appropriate; otherwise, the privilege shall be denied. [Emphasis supplied]
These characteristics – namely, of being summary and the use of substantial evidence as the required level of proof (in contrast to the usual preponderance of evidence or proof beyond reasonable doubt in court proceedings) – reveal the clear intent of the framers of the Amparo Rule to have the equivalent of an administrative proceeding, albeit judicially conducted, in addressing Amparo situations. The standard of diligence required – the duty of public officials and employees to observe extraordinary diligence – point, too, to the extraordinary measures expected in the protection of constitutional rights and in the consequent handling and investigation of extra-judicial killings and enforced disappearance cases.
Thus, in these proceedings, the Amparo petitioner needs only to properly comply with the substance and form requirements of a Writ of Amparo petition, as discussed above, and prove the allegations by substantial evidence. Once a rebuttable case has been proven, the respondents must then respond and prove their defenses based on the standard of diligence required. The rebuttable case, of course, must show that an enforced disappearance took place under circumstances showing a violation of the victim’s constitutional rights to life, liberty or security, and the failure on the part of the investigating authorities to appropriately respond.
The landmark case of Ang Tibay v. Court of Industrial Relations provided the Court its first opportunity to define the substantial evidence required to arrive at a valid decision in administrative proceedings. To directly quote Ang Tibay:
Substantial evidence is more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. [citations omitted] The statute provides that ‘the rules of evidence prevailing in courts of law and equity shall not be controlling.’ The obvious purpose of this and similar provisions is to free administrative boards from the compulsion of technical rules so that the mere admission of matter which would be deemed incompetent in judicial proceedings would not invalidate the administrative order. [citations omitted] But this assurance of a desirable flexibility in administrative procedure does not go so far as to justify orders without a basis in evidence having rational probative force. [Emphasis supplied]
In Secretary of Defense v. Manalo, which was the Court’s first petition for a Writ of Amparo, we recognized that the full and exhaustive proceedings that the substantial evidence standard regularly requires do not need to apply due to the summary nature of Amparo proceedings. We said:
The remedy [of the writ of amparo] provides rapid judicial relief as it partakes of a summary proceeding that requires only substantial evidence to make the appropriate reliefs available to the petitioner; it is not an action to determine criminal guilt requiring proof beyond reasonable doubt, or liability for damages requiring preponderance of evidence, or administrative responsibility requiring substantial evidence that will require full and exhaustive proceedings. [Emphasis supplied]
Not to be forgotten in considering the evidentiary aspects of Amparo petitions are the unique difficulties presented by the nature of enforced disappearances, heretofore discussed, which difficulties this Court must frontally meet if the Amparo Rule is to be given a chance to achieve its objectives. These evidentiary difficulties compel the Court to adopt standards appropriate and responsive to the circumstances, without transgressing the due process requirements that underlie every proceeding.
In the seminal case of Velasquez Rodriguez, the IACHR – faced with a lack of direct evidence that the government of Honduras was involved in Velasquez Rodriguez’ disappearance – adopted a relaxed and informal evidentiary standard, and established the rule that presumes governmental responsibility for a disappearance if it can be proven that the government carries out a general practice of enforced disappearances and the specific case can be linked to that practice. The IACHR took note of the realistic fact that enforced disappearances could be proven only through circumstantial or indirect evidence or by logical inference; otherwise, it was impossible to prove that an individual had been made to disappear. It held:
130. The practice of international and domestic courts shows that direct evidence, whether testimonial or documentary, is not the only type of evidence that may be legitimately considered in reaching a decision. Circumstantial evidence, indicia, and presumptions may be considered, so long as they lead to conclusions consistent with the facts.
131. Circumstantial or presumptive evidence is especially important in allegations of disappearances, because this type of repression is characterized by an attempt to suppress all information about the kidnapping or the whereabouts and fate of the victim. [Emphasis supplied]
In concluding that the disappearance of Manfredo Velásquez (Manfredo) was carried out by agents who acted under cover of public authority, the IACHR relied on circumstantial evidence including the hearsay testimony of Zenaida Velásquez, the victim’s sister, who described Manfredo’s kidnapping on the basis of conversations she had with witnesses who saw Manfredo kidnapped by men in civilian clothes in broad daylight. She also told the Court that a former Honduran military official had announced that Manfredo was kidnapped by a special military squadron acting under orders of the Chief of the Armed Forces. The IACHR likewise considered the hearsay testimony of a second witness who asserted that he had been told by a Honduran military officer about the disappearance, and a third witness who testified that he had spoken in prison to a man who identified himself as Manfredo.
Velasquez stresses the lesson that flexibility is necessary under the unique circumstances that enforced disappearance cases pose to the courts; to have an effective remedy, the standard of evidence must be responsive to the evidentiary difficulties faced. On the one hand, we cannot be arbitrary in the admission and appreciation of evidence, as arbitrariness entails violation of rights and cannot be used as an effective counter-measure; we only compound the problem if a wrong is addressed by the commission of another wrong. On the other hand, we cannot be very strict in our evidentiary rules and cannot consider evidence the way we do in the usual criminal and civil cases; precisely, the proceedings before us are administrative in nature where, as a rule, technical rules of evidence are not strictly observed. Thus, while we must follow the substantial evidence rule, we must observe flexibility in considering the evidence we shall take into account.
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 other pieces of adduced evidence. Thus, even hearsay evidence can be admitted if it satisfies this basic minimum test.
We note in this regard that the use of flexibility in the consideration of evidence is not at all novel in the Philippine legal system. In child abuse cases, Section 28 of the Rule on Examination of a Child Witness is expressly recognized as an exception to the hearsay rule. This Rule allows the admission of the hearsay testimony of a child describing any act or attempted act of sexual abuse in any criminal or non-criminal proceeding, subject to certain prerequisites and the right of cross-examination by the adverse party. The admission of the statement is determined by the court in light of specified subjective and objective considerations that provide sufficient indicia of reliability of the child witness. These requisites for admission find their counterpart in the present case under the above-described conditions for the exercise of flexibility in the consideration of evidence, including hearsay evidence, in extrajudicial killings and enforced disappearance cases.
Assessment of the Evidence
The threshold question for our resolution is: was there an enforced disappearance within the meaning of this term under the UN Declaration we have cited?
The Convention defines enforced disappearance as “the arrest, detention, abduction or any other form of deprivation of liberty by agents of the State or by persons or groups of persons acting with the authorization, support or acquiescence of the State, followed by a refusal to acknowledge the deprivation of liberty or by concealment of the fate or whereabouts of the disappeared person, which place such a person outside the protection of the law.” Under this definition, the elements that constitute enforced disappearance are essentially fourfold:
(a) arrest, detention, abduction or any form of deprivation of liberty;
(b) carried out by agents of the State or persons or groups of persons acting with the authorization, support or acquiescence of the State;
(c) followed by a refusal to acknowledge the detention, or a concealment of the fate of the disappeared person; and
(d) placement of the disappeared person outside the protection of the law. [Emphasis supplied]
We find no direct evidence indicating how the victim actually disappeared. The direct evidence at hand only shows that Tagitis went out of the ASY Pension House after depositing his room key with the hotel desk and was never seen nor heard of again. The undisputed conclusion, however, from all concerned – the petitioner, Tagitis’ colleagues and even the police authorities – is that Tagistis disappeared under mysterious circumstances and was never seen again. The respondent injected the causal element in her petition and testimony, as we shall discuss below.
We likewise find no direct evidence showing that operatives of PNP CIDG Zamboanga abducted or arrested Tagitis. If at all, only the respondent’s allegation that Tagistis was under CIDG Zamboanga custody stands on record, but it is not supported by any other evidence, direct or circumstantial.
In her direct testimony, the respondent pointed to two sources of information as her bases for her allegation that Tagistis had been placed under government custody (in contrast with CIDG Zamboanga custody). The first was an unnamed friend in Zamboanga (later identified as Col. Ancanan), who occupied a high position in the military and who allegedly mentioned that Tagitis was in good hands. Nothing came out of this claim, as both the respondent herself and her witness, Mrs. Talbin, failed to establish that Col. Ancanan gave them any information that Tagitis was in government custody. Col. Ancanan, for his part, admitted the meeting with the respondent but denied giving her any information about the disappearance.
The more specific and productive source of information was Col. Kasim, whom the respondent, together with her witness Mrs. Talbin, met in Camp Katitipan in Davao City. To quote the relevant portions of the respondent’s testimony:
Q: Were you able to speak to other military officials regarding the whereabouts of your husband particularly those in charge of any records or investigation?
A: I went to Camp Katitipan in Davao City. Then one military officer, Col. Casim, told me that my husband is being abducted [sic] because he is under custodial investigation because he is allegedly “parang liason ng J.I.”, sir.
Q: What is J.I.?
A: Jema’ah Islamiah, sir.
Q: Was there any information that was read to you during one of those visits of yours in that Camp?
A: Col. Casim did not furnish me a copy of his report because he said those reports are highly confidential, sir.
Q: Was it read to you then even though you were not furnished a copy?
A: Yes, sir. In front of us, my friends.
Q: And what was the content of that highly confidential report?
A: Those alleged activities of Engineer Tagitis, sir. [Emphasis supplied]
She confirmed this testimony in her cross-examination:
Q: You also mentioned that you went to Camp Katitipan in Davao City?
A: Yes, ma’am.
Q: And a certain Col. Kasim told you that your husband was abducted and under custodial investigation?
A: Yes, ma’am.
Q: And you mentioned that he showed you a report?
A: Yes, ma’am.
Q: Were you able to read the contents of that report?
A: He did not furnish me a copy of those [sic] report because those [sic] were highly confidential. That is a military report, ma’am.
Q: But you were able to read the contents?
A: No. But he read it in front of us, my friends, ma’am.
Q: How many were you when you went to see Col. Kasim?
A: There were three of us, ma’am.
Q: Who were your companions?
A: Mrs. Talbin, tapos yung dalawang friends nya from Mati City, Davao Oriental, ma’am.
x x x x
Q: When you were told that your husband is in good hands, what was your reaction and what did you do?
A: May binasa kasi sya that my husband has a parang meeting with other people na parang mga terorista na mga tao. Tapos at the end of the report is [sic] under custodial investigation. So I told him “Colonel, my husband is sick. He is diabetic at nagmemaintain yun ng gamot. Pakisabi lang sa naghohold sa asawa ko na bigyan siya ng gamot, ma’am.”
x x x x
Q: You mentioned that you received information that Engineer Tagitis is being held by the CIDG in Zamboanga, did you go to CIDG Zamboanga to verify that information?
A: I did not go to CIDG Zamboanga. I went to Camp Karingal instead. Enough na yun na effort ko because I know that they would deny it, ma’am.
On February 11, 2008, the respondent presented Mrs. Talbin to corroborate her testimony that her husband was abducted and held under custodial investigation by the PNP-CIDG Zamboanga City, viz:
Q: You said that you went to Camp Katitipan in Davao City sometime November 24, 2007, who was with you when you went there?
A: Mary Jean Tagitis, sir.
Q: Only the two of you?
A: No. We have some other companions. We were four at that time, sir.
Q: Who were they?
A: Salvacion Serrano, Mini Leong, Mrs. Tagitis and me, sir.
Q: Were you able to talk, see some other officials at Camp Katitipan during that time?
A: Col. Kasim (PS Supt. Julasirim Ahadin Kasim) only, sir.
Q: Were you able to talk to him?
A: Yes, sir.
Q: The four of you?
A: Yes, sir.
Q: What information did you get from Col. Kasim during that time?
A: The first time we met with [him] I asked him if he knew of the exact location, if he can furnish us the location of Engr. Tagitis. And he was reading this report. He told us that Engr. Tagitis is in good hands. He is with the military, but he is not certain whether he is with the AFP or PNP. He has this serious case. He was charged of terrorism because he was under surveillance from January 2007 up to the time that he was abducted. He told us that he was under custodial investigation. As I’ve said earlier, he was seen under surveillance from January. He was seen talking to Omar Patik, a certain Santos of Bulacan who is also a Balik Islam and charged with terrorism. He was seen carrying boxes of medicines. Then we asked him how long will he be in custodial investigation. He said until we can get some information. But he also told us that he cannot give us that report because it was a raw report. It was not official, sir.
Q: You said that he was reading a report, was that report in document form, in a piece of paper or was it in the computer or what?
A: As far as I can see it, sir, it is written in white bond paper. I don’t know if it was computerized but I’m certain that it was typewritten. I’m not sure if it used computer, fax or what, sir.
Q: When he was reading it to you, was he reading it line by line or he was reading in a summary form?
A: Sometimes he was glancing to the report and talking to us, sir.
x x x x
Q: Were you informed as to the place where he was being kept during that time?
A: He did not tell us where he [Tagitis] was being kept. But he mentioned this Talipapao, Sulu, sir.
Q: After that incident, what did you do if any?
A: We just left and as I’ve mentioned, we just waited because that raw information that he was reading to us [sic] after the custodial investigation, Engineer Tagitis will be released. [Emphasis supplied]
Col. Kasim never denied that he met with the respondent and her friends, and that he provided them information based on the input of an unnamed asset. He simply claimed in his testimony that the “informal letter” he received from his informant in Sulu did not indicate that Tagitis was in the custody of the CIDG. He also stressed that the information he provided the respondent was merely a “raw report” from “barangay intelligence” that still needed confirmation and “follow up” as to its veracity.
To be sure, the respondent’s and Mrs. Talbin’s testimonies were far from perfect, as the petitioners pointed out. The respondent mistakenly characterized Col. Kasim as a “military officer” who told her that “her husband is being abducted because he is under custodial investigation because he is allegedly ‘parang liason ng J.I.’” The petitioners also noted that “Mrs. Talbin’s testimony imputing certain statements to Sr. Supt. Kasim that Engr. Tagitis is with the military, but he is not certain whether it is the PNP or AFP is not worthy of belief, since Sr. Supt. Kasim is a high ranking police officer who would certainly know that the PNP is not part of the military.”
Upon deeper consideration of these inconsistencies, however, what appears clear to us is that the petitioners never really steadfastly disputed or presented evidence to refute the credibility of the respondent and her witness, Mrs. Talbin. The inconsistencies the petitioners point out relate, more than anything else, to details that should not affect the credibility of the respondent and Mrs. Talbin; the inconsistencies are not on material points. We note, for example, that these witnesses are lay people in so far as military and police matters are concerned, and confusion between the police and the military is not unusual. As a rule, minor inconsistencies such as these indicate truthfulness rather than prevaricationand only tend to strengthen their probative value, in contrast to testimonies from various witnesses dovetailing on every detail; the latter cannot but generate suspicion that the material circumstances they testified to were integral parts of a well thought of and prefabricated story.
Based on these considerations and the unique evidentiary situation in enforced disappearance cases, we hold it duly established that Col. Kasim informed the respondent and her friends, based on the informant’s letter, that Tagitis, reputedly a liaison for the JI and who had been under surveillance since January 2007, 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. The respondent’s and Mrs. Talbin’s testimonies cannot simply be defeated by Col. Kasim’s plain denial and his claim that he had destroyed his informant’s letter, the critical piece of evidence that supports or negates the parties’ conflicting claims. Col. Kasim’s admitted destruction of this letter – effectively, a suppression of this evidence – raises the presumption that the letter, if produced, would be proof of what the respondent claimed. For brevity, we shall call the evidence of what Col. Kasim reported to the respondent to be the “Kasim evidence.”
Given this evidence, our next step is to decide whether we can accept this evidence, in lieu of direct evidence, as proof that the disappearance of Tagitis was due to action with government participation, knowledge or consent and that he was held for custodial investigation. We note in this regard that Col. Kasim was never quoted to have said that the custodial investigation was by the CIDG Zamboanga. The Kasim evidence only implies government intervention through the use of the term “custodial investigation,” and does not at all point to CIDG Zamboanga as Tagitis’ custodian.
Strictly speaking, we are faced here with a classic case of hearsay evidence – i.e., evidence whose probative value is not based on the personal knowledge of the witnesses (the respondent, Mrs. Talbin and Col. Kasim himself) but on the knowledge of some other person not on the witness stand (the informant).
To say that this piece of evidence is incompetent and inadmissible evidence of what it substantively states is to acknowledge – as the petitioners effectively suggest – that in the absence of any direct evidence, we should simply dismiss the petition. To our mind, an immediate dismissal for this reason is no different from a statement that the Amparo Rule – despite its terms – is ineffective, as it cannot allow for the special evidentiary difficulties that are unavoidably present in Amparo situations, particularly in extrajudicial killings and enforced disappearances. The Amparo Rule was not promulgated with this intent or with the intent to make it a token gesture of concern for constitutional rights. It was promulgated to provide effective and timely remedies, using and profiting from local and international experiences in extrajudicial killings and enforced disappearances, as the situation may require. Consequently, we have no choice but to meet the evidentiary difficulties inherent in enforced disappearances with the flexibility that these difficulties demand.
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.
The evidence about Tagitis’ personal circumstances surrounded him with an air of mystery. He was reputedly a consultant of the World Bank and a Senior Honorary Counselor for the IDB who attended a seminar in Zamboanga and thereafter proceded to Jolo for an overnight stay, indicated by his request to Kunnong for the purchase of a return ticket to Zamboanga the day after he arrived in Jolo. Nothing in the records indicates the purpose of his overnight sojourn in Jolo. A colleague in the IDB, Prof. Matli, early on informed the Jolo police that Tagitis may have taken funds given to him in trust for IDB scholars. Prof Matli later on stated that he never accused Tagitis of taking away money held in trust, although he confirmed that the IDB was seeking assistance in locating funds of IDB scholars deposited in Tagitis’ personal account. Other than these pieces of evidence, no other information exists in the records relating to the personal circumstances of Tagitis.
The actual disappearance of Tagitis is as murky as his personal circumstances. While the Amparo petition recited that he was taken away by “burly men believed to be police intelligence operatives,” no evidence whatsoever was introduced to support this allegation. Thus, the available direct evidence is that Tagitis was last seen at 12.30 p.m. of October 30, 2007 – the day he arrived in Jolo – and was never seen again.
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.
Denials on the part of the police authorities, and frustration on the part of the respondent, characterize the attempts to locate Tagitis. Initially in Jolo, the police informed Kunnong that Tagitis could have been taken by the Abu Sayyaf or other groups fighting the government. No evidence was ever offered on whether there was active Jolo police investigation and how and why the Jolo police arrived at this conclusion. The respondent’s own inquiry in Jolo yielded the answer that he was not missing but was with another woman somewhere. Again, no evidence exists that this explanation was arrived at based on an investigation. As already related above, the inquiry with Col. Ancanan in Zamboanga yielded ambivalent results not useful for evidentiary purposes. Thus, it was only the inquiry from Col. Kasim that yielded positive results. Col. Kasim’s story, however, confirmed only the fact of his custodial investigation (and, impliedly, his arrest or abduction), without identifying his abductor/s or the party holding him in custody. The more significant part of Col. Kasim’s story is that the abduction came after Tagitis was seen talking with Omar Patik and a certain Santos of Bulacan, a “Balik Islam” charged with terrorism. Mrs. Talbin mentioned, too, that Tagitis was being held at Talipapao, Sulu. None of the police agencies participating in the investigation ever pursued these leads. Notably, TASK FORCE TAGITIS to which this information was relayed did not appear to have lifted a finger to pursue these aspects of the case.
More denials were manifested in the Returns on the writ to the CA made by the petitioners. Then PNP Chief Gen. Avelino I. Razon merely reported the directives he sent to the ARMM Regional Director and the Regional Chief of the CIDG on Tagitis, and these reports merely reiterated the open-ended initial report of the disappearance. The CIDG directed a search in all of its divisions with negative results. These, to the PNP Chief, constituted the exhaustion “of all possible efforts.” PNP-CIDG Chief General Edgardo M. Doromal, for his part, also reported negative results after searching “all divisions and departments [of the CIDG] for a person named Engr. Morced N. Tagitis . . . and after a diligent and thorough research, records show that no such person is being detained in the CIDG or any of its department or divisions.” PNP-PACER Chief PS Supt. Leonardo A. Espina and PNP PRO ARMM Regional Director PC Superintendent Joel R. Goltiao did no better in their affidavits-returns, as they essentially reported the results of their directives to their units to search for Tagitis.
The extent to which the police authorities acted was fully tested when the CA constituted TASK FORCE TAGITIS, with specific directives on what to do. The negative results reflected in the Returns on the writ were again replicated during the three hearings the CA scheduled. Aside from the previously mentioned “retraction” that Prof. Matli made to correct his accusation that Tagitis took money held in trust for students, PS Supt. Ajirim reiterated in his testimony that the CIDG consistently denied any knowledge or complicity in any abduction and said that there was no basis to conclude that the CIDG or any police unit had anything to do with the disappearance of Tagitis; he likewise considered it premature to conclude that Tagitis simply ran away with the money in his custody. As already noted above, the TASK FORCE notably did not pursue any investigation about the personal circumstances of Tagitis, his background in relation to the IDB and the background and activities of this Bank itself, and the reported sighting of Tagistis with terrorists and his alleged custody in Talipapao, Sulu. No attempt appears to have ever been made to look into the alleged IDB funds that Tagitis held in trust, or to tap any of the “assets” who are indispensable in investigations of this nature. These omissions and negative results were aggravated by the CA findings that it was only as late as January 28, 2008 or three months after the disappearance that the police authorities requested for clear pictures of Tagitis. Col. Kasim could not attend the trial because his subpoena was not served, despite the fact that he was designated as Ajirim’s replacement in the latter’s last post. Thus, Col. Kasim was not then questioned. No investigation – even an internal one – appeared to have been made to inquire into the identity of Col. Kasim’s “asset” and what he indeed wrote.
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.
CONCLUSIONS AND THE AMPARO REMEDY
Based on these considerations, we conclude that Col. Kasim’s disclosure, made in an unguarded moment, unequivocally point to some government complicity in the disappearance. The consistent but unfounded denials and the haphazard investigations cannot but point to this conclusion. For why would the government and its officials engage in their chorus of concealment if the intent had not been to deny what they already knew of the disappearance? Would not an in-depth and thorough investigation that at least credibly determined the fate of Tagitis be a feather in the government’s cap under the circumstances of the disappearance? From this perspective, the evidence and developments, particularly the Kasim evidence, already establish a concrete case of enforced disappearance that the Amparo Rule covers. From the prism of the UN Declaration, heretofore cited and quoted, the evidence at hand and the developments in this case confirm the fact of the enforced disappearance and government complicity, under a background of consistent and unfounded government denials and haphazard handling. The disappearance as well effectively placed Tagitis outside the protection of the law – a situation that will subsist unless this Court acts.
This kind of fact situation and the conclusion reached are not without precedent in international enforced disappearance rulings. While the facts are not exactly the same, the facts of this case run very close to those of Timurtas v. Turkey, a case decided by ECHR. The European tribunal in that case acted on the basis of the photocopy of a “post-operation report” in finding that Abdulvahap Timurtas (Abdulvahap) was abducted and later detained by agents (gendarmes) of the government of Turkey. The victim's father in this case brought a claim against Turkey for numerous violations of the European Convention, including the right to life (Article 2) and the rights to liberty and security of a person (Article 5). The applicant contended that on August 14, 1993, gendarmes apprehended his son, Abdulvahap for being a leader of the Kurdish Workers’ Party (PKK) in the Silopi region. The petition was filed in southeast Turkey nearly six and one half years after the apprehension. According to the father, gendarmes first detained Abdulvahap and then transferred him to another detainment facility. Although there was no eyewitness evidence of the apprehension or subsequent detainment, the applicant presented evidence corroborating his version of events, including a photocopy of a post-operation report signed by the commander of gendarme operations in Silopi, Turkey. The report included a description of Abdulvahap's arrest and the result of a subsequent interrogation during detention where he was accused of being a leader of the PKK in the Silopi region. On this basis, Turkey was held responsible for Abdulvahap’s enforced disappearance.
Following the lead of this Turkish experience - adjusted to the Philippine legal setting and the Amparo remedy this Court has established, as applied to the unique facts and developments of this case – we believe and so hold that the government in general, through the PNP and the PNP-CIDG, and in particular, the Chiefs of these organizations together with Col. Kasim, should be held fully accountable for the enforced disappearance of Tagitis.
The PNP and CIDG are accountable because Section 24 of Republic Act No. 6975, otherwise known as the “PNP Law,” specifies the PNP as the governmental office with the mandate “to investigate and prevent crimes, effect the arrest of criminal offenders, bring offenders to justice and assist in their prosecution.” The PNP-CIDG, as Col. Jose Volpane Pante (then Chief of CIDG Region 9) testified, is the “investigative arm” of the PNP and is mandated to “investigate and prosecute all cases involving violations of the Revised Penal Code, particularly those considered as heinous crimes.” Under the PNP organizational structure, the PNP-CIDG is tasked to investigate all major crimes involving violations of the Revised Penal Code and operates against organized crime groups, unless the President assigns the case exclusively to the National Bureau of Investigation (NBI). No indication exists in this case showing that the President ever directly intervened by assigning the investigation of Tagitis’ disappearance exclusively to the NBI.
Given their mandates, the PNP and PNP-CIDG officials and members were the ones who were remiss in their duties when the government completely failed to exercise the extral'>To fully enforce the Amparo remedy, we refer this case back to the CA for appropriate proceedings directed at the monitoring of the PNP and the PNP-CIDG investigations and actions, and the validation of their results through hearings the CA may deem appropriate to conduct. For purposes of these investigations, the PNP/PNP-CIDG shall initially present to the CA a plan of action for further investigation, periodically reporting the detailed results of its investigation to the CA for its consideration and action. On behalf of this Court, the CA shall pass upon: the need for the PNP and the PNP-CIDG to make disclosures of matters known to them as indicated in this Decision and as further CA hearings may indicate; the petitioners’ submissions; the sufficiency of their investigative efforts; and submit to this Court a quarterly report containing its actions and recommendations, copy furnished the petitioners and the respondent, with the first report due at the end of the first quarter counted from the finality of this Decision. The PNP and the PNP-CIDG shall have one (1) full year to undertake their investigation. The CA shall submit its full report for the consideration of this Court at the end of the 4th quarter counted from the finality of this Decision.
WHEREFORE, premises considered, we DENY the petitioners’ petition for review on certiorari for lack of merit, and AFFIRM the decision of the Court of Appeals dated March 7, 2008 under the following terms:
a. Recognition that the disappearance of Engineer Morced N. Tagitis is an enforced disappearance covered by the Rule on the Writ of Amparo;
b. Without any specific pronouncement on exact authorship and responsibility, declaring the government (through the PNP and the PNP-CIDG) and Colonel Julasirim Ahadin Kasim accountable for the enforced disappearance of Engineer Morced N. Tagitis;
c. Confirmation of the validity of the Writ of Amparo the Court of Appeals issued;
d. Holding the PNP, through the PNP Chief, and the PNP-CIDG, through its Chief, directly responsible for the disclosure of material facts known to the government and to their offices regarding the disappearance of Engineer Morced N. Tagitis, and for the conduct of proper investigations using extraordinary diligence, with the obligation to show investigation results acceptable to this Court;
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;
f. Referring this case back to the Court of Appeals for appropriate proceedings directed at the monitoring of the PNP and PNP-CIDG investigations, actions and the validation of their results; the PNP and the PNP-CIDG shall initially present to the Court of Appeals a plan of action for further investigation, periodically reporting their results to the Court of Appeals for consideration and action;
g. Requiring the Court of Appeals to submit to this Court a quarterly report with its recommendations, copy furnished the incumbent PNP and PNP-CIDG Chiefs as petitioners and the respondent, with the first report due at the end of the first quarter counted from the finality of this Decision;
h. The PNP and the PNP-CIDG shall have one (1) full year to undertake their investigations; the Court of Appeals shall submit its full report for the consideration of this Court at the end of the 4th quarter counted from the finality of this Decision;
These directives and those of the Court of Appeals’ made pursuant to this Decision shall be given to, and shall be directly enforceable against, whoever may be the incumbent Chiefs of the Philippine National Police and its Criminal Investigation and Detection Group, under pain of contempt from this Court when the initiatives and efforts at disclosure and investigation constitute less than the extraordinary diligence that the Rule on the Writ of Amparo and the circumstances of this case demand. Given the unique nature of Amparo cases and their varying attendant circumstances, these directives – particularly, the referral back to and monitoring by the CA – are specific to this case and are not standard remedies that can be applied to every Amparo situation.
The dismissal of the Amparo petition with respect to General Alexander Yano, Commanding General, Philippine Army, and General Ruben Rafael, Chief, Anti-Terrorism Task Force Comet, Zamboanga City, is hereby AFFIRMED.
REVEREND FATHER ROBERT P. REYES VS. COURT OF APPEALS, ET. AL., En Banc, G. R. No. 182161, December 3, 2009
X x x.
Petitioner maintains that the writ of amparo does not only exclusively apply to situations of extrajudicial killings and enforced disappearances but encompasses the whole gamut of liberties protected by the Constitution. Petitioner argues that “[liberty] includes the right to exist and the right to be free from arbitrary personal restraint or servitude and includes the right of the citizens to be free to use his faculties in all lawful ways.” Part of the right to liberty guaranteed by the Constitution is the right of a person to travel.
In their Comment, both respondents Secretary Gonzalez and Commissioner Libanan argue that: 1) HDO No. 45 was validly issued by the Secretary of Justice in accordance with Department of Justice Circular No. 17, Series of 1998, and Circular No. 18, Series of 2007, which were issued pursuant to said Secretary’s mandate under the Administrative Code of 1987, as head of the principal law agency of the government, to investigate the commission of crimes, prosecute offenders, and provide immigration regulatory services; and; 2) the issue of the constitutionality of the DOJ Secretary’s authority to issue hold departure orders under DOJ Circulars Nos. 17 and 18 is not within the ambit of a writ of amparo.
The case hinges on the issue as to whether or not petitioner’s right to liberty has been violated or threatened with violation by the issuance of the subject HDO, which would entitle him to the privilege of the writ of amparo.
The petition must fail.
Section 1 of the Rule on the Writ of Amparo provides:
SECTION 1. Petition. – The petition for a writ of amparo is a remedy available to any person whose right to life, liberty and security is violated or threatened with violation by an unlawful act or omission of a public official or employee, or of a private individual or entity.
The writ shall cover extralegal killings and enforced disappearances or threats thereof.
The Court, in Secretary of National Defense et al. v. Manalo et al., made a categorical pronouncement that the Amparo Rule in its present form is confined to these two instances of “extralegal killings” and “enforced disappearances,” or to threats thereof, thus:
x x x As the Amparo Rule was intended to address the intractable problem of “extralegal killings” and “enforced disappearances,” its coverage, in its present form, is confined to these two instances or to threats thereof. “Extralegal killings” are “killings committed without due process of law, i.e., without legal safeguards or judicial proceedings.” On the other hand, “enforced disappearances” are “attended by the following characteristics: an arrest, detention or abduction of a person by a government official or organized groups or private individuals acting with the direct or indirect acquiescence of the government; the refusal of the State to disclose the fate or whereabouts of the person concerned or a refusal to acknowledge the deprivation of liberty which places such persons outside the protection of law.”
In Tapuz v. Del Rosario, the Court laid down the basic principle regarding the rule on the writ of amparo as follows:
To start off with the basics, the writ of amparo was originally conceived as a response to the extraordinary rise in the number of killings and enforced disappearances, and to the perceived lack of available and effective remedies to address these extraordinary concerns. It is intended to address violations of or threats to the rights to life, liberty or security, as an extraordinary and independent remedy beyond those available under the prevailing Rules, or as a remedy supplemental to these Rules. What it is not, is a writ to protect concerns that are purely property or commercial. Neither is it a writ that we shall issue on amorphous and uncertain grounds. Consequently, the Rule on the Writ of Amparo – in line with the extraordinary character of the writ and the reasonable certainty that its issuance demands – requires that every petition for the issuance of the writ must be supported by justifying allegations of fact, to wit:
“(a) The personal circumstances of the petitioner;
(b) The name and personal circumstances of the respondent responsible for the threat, act or omission, or, if the name is unknown or uncertain, the respondent may be described by an assumed appellation;
(c) The right to life, liberty and security of the aggrieved party violated or threatened with violation by an unlawful act or omission of the respondent, and how such threat or violation is committed with the attendant circumstances detailed in supporting affidavits;
(d) The investigation conducted, if any, specifying the names, personal circumstances, and addresses of the investigating authority or individuals, as well as the manner and conduct of the investigation, together with any report;
(e) The actions and recourses taken by the petitioner to determine the fate or whereabouts of the aggrieved party and the identity of the person responsible for the threat, act or omission; and
(f) The relief prayed for.
The petition may include a general prayer for other just and equitable reliefs.”
The writ shall issue if the Court is preliminarily satisfied with the prima facie existence of the ultimate facts determinable from the supporting affidavits that detail the circumstances of how and to what extent a threat to or violation of the rights to life, liberty and security of the aggrieved party was or is being committed. (Emphasis supplied)
Here, petitioner invokes this extraordinary remedy of the writ of amparo for the protection of his right to travel. He insists that he is entitled to the protection covered by the Rule on the Writ of Amparo because the HDO is a continuing actual restraint on his right to travel. The Court is thus called upon to rule whether or not the right to travel is covered by the Rule on the Writ of Amparo.
The rights that fall within the protective mantle of the Writ of Amparo under Section 1 of the Rules thereon are the following: (1) right to life; (2) right to liberty; and (3) right to security.
In Secretary of National Defense et al. v. Manalo et al., the Court explained the concept of right to life in this wise:
While the right to life under Article III, Section 1 guarantees essentially the right to be alive- upon which the enjoyment of all other rights is preconditioned - the right to security of person is a guarantee of the secure quality of this life, viz: “The life to which each person has a right is not a life lived in fear that his person and property may be unreasonably violated by a powerful ruler. Rather, it is a life lived with the assurance that the government he established and consented to, will protect the security of his person and property. The ideal of security in life and property… pervades the whole history of man. It touches every aspect of man’s existence.” In a broad sense, the right to security of person “emanates in a person’s legal and uninterrupted enjoyment of his life, his limbs, his body, his health, and his reputation. It includes the right to exist, and the right to enjoyment of life while existing, and it is invaded not only by a deprivation of life but also of those things which are necessary to the enjoyment of life according to the nature, temperament, and lawful desires of the individual.”
The right to liberty, on the other hand, was defined in the City of Manila, et al. v. Hon. Laguio, Jr., in this manner:
Liberty as guaranteed by the Constitution was defined by Justice Malcolm to include “the right to exist and the right to be free from arbitrary restraint or servitude. The term cannot be dwarfed into mere freedom from physical restraint of the person of the citizen, but is deemed to embrace the right of man to enjoy the facilities with which he has been endowed by his Creator, subject only to such restraint as are necessary for the common welfare.” x x x
Secretary of National Defense et al. v. Manalo et al. thoroughly expounded on the import of the right to security, thus:
A closer look at the right to security of person would yield various permutations of the exercise of this right.
First, the right to security of person is “freedom from fear.” In its “whereas” clauses, the Universal Declaration of Human Rights (UDHR) enunciates that “a world in which human beings shall enjoy freedom of speech and belief and freedom from fear and want has been proclaimed as the highest aspiration of the common people.” (emphasis supplied) Some scholars postulate that “freedom from fear” is not only an aspirational principle, but essentially an individual international human right. It is the “right to security of person” as the word “security” itself means “freedom from fear.” Article 3 of the UDHR provides, viz:
Everyone has the right to life, liberty and security of person.
x x x
The Philippines is a signatory to both the UDHR and the ICCPR.
In the context of Section 1 of the Amparo Rule, “freedom from fear” is the right and any threat to the rights to life, liberty or security is the actionable wrong. Fear is a state of mind, a reaction; threat is a stimulus, a cause of action. Fear caused by the same stimulus can range from being baseless to well-founded as people react differently. The degree of fear can vary from one person to another with the variation of the prolificacy of their imagination, strength of character or past experience with the stimulus. Thus, in the amparo context, it is more correct to say that the “right to security” is actually the “freedom from threat.” Viewed in this light, the “threatened with violation” Clause in the latter part of Section 1 of the Amparo Rule is a form of violation of the right to security mentioned in the earlier part of the provision.
Second, the right to security of person is a guarantee of bodily and psychological integrity or security. Article III, Section II of the 1987 Constitution guarantees that, as a general rule, one’s body cannot be searched or invaded without a search warrant. Physical injuries inflicted in the context of extralegal killings and enforced disappearances constitute more than a search or invasion of the body. It may constitute dismemberment, physical disabilities, and painful physical intrusion. As the degree of physical injury increases, the danger to life itself escalates. Notably, in criminal law, physical injuries constitute a crime against persons because they are an affront to the bodily integrity or security of a person.
x x x
Third, the right to security of person is a guarantee of protection of one’s rights by the government. In the context of the writ of amparo, this right is built into the guarantees of the right to life and liberty under Article III, Section 1 of the 1987 Constitution and the right to security of person (as freedom from threat and guarantee of bodily and psychological integrity) under Article III, Section 2. The right to security of person in this third sense is a corollary of the policy that the State “guarantees full respect for human rights” under Article II, Section 11 of the 1987 Constitution. As the government is the chief guarantor of order and security, the Constitutional guarantee of the rights to life, liberty and security of person is rendered ineffective if government does not afford protection to these rights especially when they are under threat. Protection includes conducting effective investigations, organization of the government apparatus to extend protection to victims of extralegal killings or enforced disappearances (or threats thereof) and/or their families, and bringing offenders to the bar of justice. x x x (emphasis supplied)
The right to travel refers to the right to move from one place to another. As we have stated in Marcos v. Sandiganbayan, “xxx a person’s right to travel is subject to the usual constraints imposed by the very necessity of safeguarding the system of justice. In such cases, whether the accused should be permitted to leave the jurisdiction for humanitarian reasons is a matter of the court’s sound discretion.”
Here, the restriction on petitioner’s right to travel as a consequence of the pendency of the criminal case filed against him was not unlawful. Petitioner has also failed to establish that his right to travel was impaired in the manner and to the extent that it amounted to a serious violation of his right to life, liberty and security, for which there exists no readily available legal recourse or remedy.
In Canlas et al. v. Napico Homeowners Association I – XIII, Inc. et al., this Court ruled that:
This new remedy of writ of amparo which is made available by this Court is intended for the protection of the highest possible rights of any person, which is his or her right to life, liberty and security. The Court will not spare any time or effort on its part in order to give priority to petitions of this nature. However, the Court will also not waste its precious time and effort on matters not covered by the writ.
We find the direct recourse to this Court inappropriate, considering the provision of Section 22 of the Rule on the Writ of Amparo which reads:
Section 22. Effect of Filing of a Criminal Action. – When a criminal action has been commenced, no separate petition for the writ shall be filed. The reliefs under the writ shall be available by motion in the criminal case.
The procedure under this Rule shall govern the disposition of the reliefs available under the writ of amparo.
Pursuant to the aforementioned Section 22, petitioner should have filed with the RTC-Makati a motion to lift HDO No. 45 in Criminal Case No. 07-3126. Petitioner, however, did not file in the RTC-Makati a motion to lift the DOJ’s HDO, as his co-accused did in the same criminal case. Petitioner argues that it was not the RTC-Makati but the DOJ that issued the said HDO, and that it is his intention not to limit his remedy to the lifting of the HDO but also to question before this Court the constitutionality of the power of the DOJ Secretary to issue an HDO. We quote with approval the CA’s ruling on this matter:
The said provision [Section 22] is an affirmation by the Supreme Court of its pronouncement in Crespo v. Mogul that once a complaint or information is filed in court, any disposition of the case such as its dismissal or its continuation rests on the sound discretion of the court. Despite the denial of respondent’s MR of the dismissal of the case against petitioner, the trial court has not lost control over Criminal Case No. 07-3126 which is still pending before it. By virtue of its residual power, the court a quo retains the authority to entertain incidents in the instant case to the exclusion of even this Court. The relief petitioner seeks which is the lifting of the HDO was and is available by motion in the criminal case. (Sec. 22, Rule on the Writ of amparo, supra).
Even in civil cases pending before the trial courts, the Court has no authority to separately and directly intervene through the writ of amparo, as elucidated in Tapuz v. Del Rosario, thus:
Where, as in this case, there is an ongoing civil process dealing directly with the possessory dispute and the reported acts of violence and harassment, we see no point in separately and directly intervening through a writ of amparo in the absence of any clear prima facie showing that the right to life, liberty or securitythe personal concern that the writ is intended to protectis immediately in danger or threatened, or that the danger or threat is continuing. We see no legal bar, however, to an application for the issuance of the writ, in a proper case, by motion in a pending case on appeal or on certiorari, applying by analogy the provisions on the co-existence of the writ with a separately filed criminal case.
Additionally, petitioner is seeking the extraordinary writ of amparo due to his apprehension that the DOJ may deny his motion to lift the HDO. Petitioner’s apprehension is at best merely speculative. Thus, he has failed to show any clear threat to his right to liberty actionable through a petition for a writ of amparo. The absence of an actual controversy also renders it unnecessary for us on this occasion to pass upon the constitutionality of DOJ Circular No. 17, Series of 1998 (Prescribing Rules and Regulations Governing the Issuance of Hold Departure Orders); and Circular No. 18, Series of 2007 (Prescribing Rules and Regulations Governing the Issuance and Implementation of Watchlist Orders and for Other Purposes).
WHEREFORE, the petition is DISMISSED. The assailed Decision of the CA dated February 4, 2008 in CA-G.R. No. 00011 is hereby AFFIRMED.