EN BANC

 

GEN. AVELINO I. RAZON, JR., Chief, Philippine National Police (PNP); Police Chief Superintendent RAUL CASTAEDA, Chief, Criminal Investigation and Detection Group (CIDG); Police Senior Superintendent LEONARDO A. ESPINA, Chief, Police Anti-Crime and Emergency Response (PACER); and GEN. JOEL R. GOLTIAO, Regional Director of ARMM, PNP,

Petitioners,

- versus -

 

 

MARY JEAN B. TAGITIS, herein represented by ATTY. FELIPE P. ARCILLA, JR., Attorney-in-Fact,

Respondent.

G.R. No. 182498

Present:

 

PUNO, C.J.,

CARPIO,

CORONA,

CARPIO MORALES,

CHICO-NAZARIO,

velasco, JR.,

NACHURA,

leonardo-de castro,

brion,

peralta,

BERSAMIN,

DEL CASTILLO,

ABAD, and

VILLARAMA, JR., JJ.

 

 

 

Promulgated:

 

December 3, 2009

 

x-----------------------------------------------------------------------------------------x

D E C I S I O N

BRION, J.:

 

We review in this petition for review on certiorari[1] the decision dated March 7, 2008 of the Court of Appeals (CA) in C.A-G.R. AMPARO No. 00009.[2] This CA decision confirmed the enforced disappearance of Engineer Morced N. Tagitis (Tagitis) and granted the Writ of Amparo at the petition of his wife, Mary Jean B. Tagitis (respondent). The dispositive portion of the CA decision reads:

 

WHEREFORE, premises considered, petition is hereby GRANTED. The Court hereby FINDS that this is an enforced disappearance within the meaning of the United Nations instruments, as used in the Amparo Rules. The privileges of the writ of amparo are hereby extended to Engr. Morced Tagitis.

 

Consequently: (1) respondent GEN. EDGARDO M. DOROMAL, Chief, Criminal Investigation and Detention Group (CIDG) who should order COL. JOSE VOLPANE PANTE, CIDG-9 Chief, Zamboanga City, to aid him; (2) respondent GEN. AVELINO I. RAZON, Chief, PNP, who should order his men, namely: (a) respondent GEN. JOEL GOLTIAO, Regional Director of ARMM PNP, (b) COL. AHIRON AJIRIM, both head of TASK FORCE TAGITIS, and (c) respondent SR. SUPERINTENDENT LEONARDO A. ESPINA, Chief, Police Anti-Crime and Emergency Response, to aid him as their superior- are hereby DIRECTED to exert extraordinary diligence and efforts, not only to protect the life, liberty and security of Engr. Morced Tagitis, but also to extend the privileges of the writ of amparo to Engr. Morced Tagitis and his family, and to submit a monthly report of their actions to this Court, as a way of PERIODIC REVIEW to enable this Court to monitor the action of respondents.

 

This amparo case is hereby DISMISSED as to respondent LT. GEN. ALEXANDER YANO, Commanding General, Philippine Army, and as to respondent GEN. RUBEN RAFAEL, Chief Anti-Terror Task Force Comet, Zamboanga City, both being with the military, which is a separate and distinct organization from the police and the CIDG, in terms of operations, chain of command and budget.

 

This Decision reflects the nature of the Writ of Amparo a protective remedy against violations or threats of violation against the rights to life, liberty and security.[3] It embodies, as a remedy, the courts directive to police agencies to undertake specified courses of action to address the disappearance of an individual, in this case, Engr. Morced N. Tagitis. It does not determine guilt nor pinpoint criminal culpability for the disappearance; rather, it determines responsibility, or at least accountability, for the enforced disappearance for purposes of imposing the appropriate remedies to address the disappearance. Responsibility refers to the extent the actors have been established by substantial evidence to have participated in whatever way, by action or omission, in an enforced disappearance, as a measure of the remedies this Court shall craft, among them, the directive to file the appropriate criminal and civil cases against the responsible parties in the proper courts. Accountability, on the other hand, refers to the measure of remedies that should be addressed to those who exhibited involvement in the enforced disappearance without bringing the level of their complicity to the level of responsibility defined above; or who are imputed with knowledge relating to the enforced disappearance and who carry the burden of disclosure; or those who carry, but have failed to discharge, the burden of extraordinary diligence in the investigation of the enforced disappearance. In all these cases, the issuance of the Writ of Amparo is justified by our primary goal of addressing the disappearance, so that the life of the victim is preserved and his liberty and security are restored.

 

We highlight this nature of a Writ of Amparo case at the outset to stress that the unique situations that call for the issuance of the writ, as well as the considerations and measures necessary to address these situations, may not at all be the same as the standard measures and procedures in ordinary court actions and proceedings. In this sense, the Rule on the Writ of Amparo[4] (Amparo Rule) issued by this Court is unique. The Amparo Rule should be read, too, as a work in progress, as its directions and finer points remain to evolve through time and jurisprudence and through the substantive laws that Congress may promulgate.

 

THE FACTUAL ANTECEDENTS

 

The background facts, based on the petition and the records of the case, are summarized below.

The established facts show that Tagitis, a consultant for the World Bank and the Senior Honorary Counselor for the Islamic Development Bank (IDB) Scholarship Programme, was last seen in Jolo, Sulu. Together with Arsimin Kunnong (Kunnong), an IDB scholar, Tagitis arrived in Jolo by boat in the early morning of October 31, 2007 from a seminar in Zamboanga City. They immediately checked-in at ASY Pension House. Tagitis asked Kunnong to buy him a boat ticket for his return trip the following day to Zamboanga. When Kunnong returned from this errand, Tagitis was no longer around.[5] The receptionist related that Tagitis went out to buy food at around 12:30 in the afternoon and even left his room key with the desk.[6] Kunnong looked for Tagitis and even sent a text message to the latters Manila-based secretary who did not know of Tagitis whereabouts and activities either; she advised Kunnong to simply wait.[7]

 

On November 4, 2007, Kunnong and Muhammad Abdulnazeir N. Matli, a UP professor of Muslim studies and Tagitis fellow student counselor at the IDB, reported Tagitis disappearance to the Jolo Police Station.[8] On November 7, 2007, Kunnong executed a sworn affidavit attesting to what he knew of the circumstances surrounding Tagitis disappearance.[9]

 

More than a month later (on December 28, 2007), the respondent filed a Petition for the Writ of Amparo (petition) with the CA through her Attorney-in-Fact, Atty. Felipe P. Arcilla.[10] The petition was directed against Lt. Gen. Alexander Yano, Commanding General, Philippine Army; Gen. Avelino I. Razon, Chief, Philippine National Police (PNP); Gen. Edgardo M. Doromal, Chief, Criminal Investigation and Detention Group (CIDG); Sr. Supt. Leonardo A. Espina, Chief, Police Anti-Crime and Emergency Response; Gen. Joel Goltiao, Regional Director, ARMM-PNP; and Gen. Ruben Rafael, Chief, Anti-Terror Task Force Comet [collectively referred to as petitioners]. After reciting Tagitis personal circumstances and the facts outlined above, the petition went on to state:

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;

 

8. As instructed, in the late afternoon of the same day, Kunnong returned to the pension house, and was surprised to find out that subject Engr. Tagitis cannot [sic] be contacted by phone and was not also around and his room was closed and locked;

 

9. Kunnong requested for the key from the desk of the pension house who [sic] assisted him to open the room of Engr. Tagitis, where they discovered that the personal belongings of Engr. Tagitis, including cell phones, documents and other personal belongings were all intact inside the room;

 

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 [sic] 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. [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;

 

14. All of these efforts of the [respondent] did not produce any positive results except the information from persons in the military who do not want to be identified that Engr. Tagitis is in the hands of the uniformed men;

 

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. [Respondent] filed her complaint with the PNP Police Station in the ARMM in Cotobato and in Jolo, as suggested by her friends, seeking their help to find her husband, but [respondents] request and pleadings failed to produce any positive results;

 

18. Instead of helping the [respondent], she [sic] was told of an intriguing tale by the police that her husband, subject of the petition, was not missing but was with another woman having good time somewhere, which is a clear indication of the [petitioners] refusal to help and provide police assistance in locating her missing husband;

 

19. The continued failure and refusal of the [petitioners] to release and/or turn-over subject Engr. Tagitis to his family or even to provide truthful information to [the respondent] of the subjects whereabouts, and/or allow [the respondent] to visit her husband Engr. Morced Tagitis, caused so much sleepless nights and serious anxieties;

 

20. Lately, [the 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 [those] 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 [sic] to the different suggestions of these police officers, despite of which, her efforts produced no positive results up to the present time;

 

21. In fact at times, some police officers, who [sympathized with] the sufferings undergone by the [respondent], informed her that they are not the proper persons that she should approach, but assured her not to worry because her husband is [sic] in good hands;

 

22. The unexplained uncooperative behavior of the [petitioners] to the [respondents] request for help and failure and refusal of the [petitioners] to extend the needed help, support and assistance in locating the whereabouts of Engr. Tagitis who had been declared missing since October 30, 2007 which is almost two (2) months now, clearly indicates that the [petitioners] are actually in physical possession and custody of [respondents] husband, Engr. Tagitis;

 

x x x x

 

25. [The respondent] has exhausted all administrative avenues and remedies but to no avail, and under the circumstances, [the 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 subjects human and constitutional rights, except the issuance of a WRIT OF AMPARO. [Emphasis supplied]

 

On the same day the petition was filed, the CA immediately issued the Writ of Amparo, set the case for hearing on January 7, 2008, and directed the petitioners to file their verified return within seventy-two (72) hours from service of the writ.[11]

 

In their verified Return filed during the hearing of January 27, 2008, the petitioners denied any involvement in or knowledge of Tagitis alleged abduction. They argued that the allegations of the petition were incomplete and did not constitute a cause of action against them; were baseless, or at best speculative; and were merely based on hearsay evidence. [12]

 

The affidavit of PNP Chief Gen. Avelino I. Razon, attached to the Return, stated that: he did not have any personal knowledge of, or any participation in, the alleged disappearance; that he had been designated by President Gloria Macapagal Arroyo as the head of a special body called TASK FORCE USIG, to address concerns about extralegal killings and enforced disappearances; the Task Force, inter alia, coordinated with the investigators and local police, held case conferences, rendered legal advice in connection to these cases; and gave the following summary:[13]

 

x x x x

4.

a)                 On November 5, 2007, the Regional Director, Police Regional Office ARMM submitted a report on the alleged disappearance of one Engr. Morced Tagitis. According to the said report, the victim checked-in at ASY Pension House on October 30, 2007 at about 6:00 in the morning and then roamed around Jolo, Sulu with an unidentified companion. It was only after a few days when the said victim did not return that the matter was reported to Jolo MPS. Afterwards, elements of Sulu PPO conducted a thorough investigation to trace and locate the whereabouts of the said missing person, but to no avail. The said PPO is still conducting investigation that will lead to the immediate findings of the whereabouts of the person.

 

b)                Likewise, the Regional Chief, 9RCIDU submitted a Progress Report to the Director, CIDG. The said report stated among others that: subject person attended an Education Development Seminar set on October 28, 2007 conducted at Ateneo de Zamboanga, Zamboanga City together with a Prof. Matli. On October 30, 2007, at around 5:00 oclock in the morning, Engr. Tagitis reportedly arrived at Jolo Sulu wharf aboard M/V Bounty Cruise, he was then billeted at ASY Pension House. At about 6:15 oclock in the morning of the same date, he instructed his student to purchase a fast craft ticket bound for Zamboanga City and will depart from Jolo, Sulu on October 31, 2007. That on or about 10:00 oclock in the morning, Engr. Tagitis left the premises of ASY Pension House as stated by the cashier of the said pension house. Later in the afternoon, the student instructed to purchase the ticket arrived at the pension house and waited for Engr. Tagitis, but the latter did not return. On its part, the elements of 9RCIDU is now conducting a continuous case build up and information gathering to locate the whereabouts of Engr. Tagitis.

 

c)                 That the Director, CIDG directed the conduct of the search in all divisions of the CIDG to find Engr. Tagitis who was allegedly abducted or illegally detained by covert CIDG-PNP Intelligence Operatives since October 30, 2007, but after diligent and thorough search, records show that no such person is being detained in CIDG or any of its department or divisions.

 

5. On this particular case, the Philippine National Police exhausted all possible efforts, steps and actions available under the circumstances and continuously search and investigate [sic] the instant case. This immense mandate, however, necessitates the indispensable role of the citizenry, as the PNP cannot stand alone without the cooperation of the victims and witnesses to identify the perpetrators to bring them before the bar of justice and secure their conviction in court.

 

 

The petitioner PNP-CIDG Chief, Gen. Edgardo M. Doromal, submitted as well his affidavit, also attached to the Return of the Writ, attesting that upon receipt of the Writ of Amparo, he caused the following:[14]

x x x x

That immediately upon receipt on December 29, 2007 of the Resolution of the Honorable Special Fourth Division of the Court of Appeals, I immediately directed the Investigation Division of this Group [CIDG] to conduct urgent investigation on the alleged enforced disappearance of Engineer Morced Tagitis.

 

That based on record, Engr. Morced N. Tagitis attended an Education Development Seminar on October 28, 2007 at Ateneo de Zamboanga at Zamboanga City together with Prof. Abdulnasser Matli. On October 30, 2007, at around six oclock in the morning he arrived at Jolo, Sulu. He was assisted by his student identified as Arsimin Kunnong of the Islamic Development Bank who was also one of the participants of the said seminar. He checked in at ASY pension house located [sic] Kakuyagan, Patikul, Sulu on October 30, 2007 with [sic] unidentified companion. At around six oclock in the morning of even date, Engr. Tagitis instructed his student to purchase a fast craft ticket for Zamboanga City. In the afternoon of the same date, Kunnong arrived at the pension house carrying the ticket he purchased for Engr. Tagitis, but the latter was nowhere to be found anymore. Kunnong immediately informed Prof. Abdulnasser Matli who reported the incident to the police. The CIDG is not involved in the disappearance of Engr. Morced Tagitis to make out a case of an enforced disappearance which presupposes a direct or indirect involvement of the government.

 

That herein [petitioner] searched all divisions and departments for a person named Engr. Morced N. Tagitis, who was allegedly abducted or illegally detained by covert CIDG-PNP Intelligence Operatives since October 30, 2007 and after a diligent and thorough research records show that no such person is being detained in CIDG or any of its department or divisions.

 

That nevertheless, in order to determine the circumstances surrounding Engr. Morced Tagitis [sic] alleged enforced disappearance, the undersigned had undertaken immediate investigation and will pursue investigations up to its full completion in order to aid in the prosecution of the person or persons responsible therefore.

 

Likewise attached to the Return of the Writ was PNP-PACER[15] Chief PS Supt. Leonardo A. Espinas affidavit which alleged that:[16]

 

x x x x

 

That, I and our men and women in PACER vehemently deny any participation in the alleged abduction or illegally [sic] detention of ENGR. MORCED N. TAGITS on October 30, 2007. As a matter of fact, nowhere in the writ was mentioned that the alleged abduction was perpetrated by elements of PACER nor was there any indication that the alleged abduction or illegal detention of ENGR. TAGITIS was undertaken jointly by our men and by the alleged covert CIDG-PNP intelligence operatives alleged to have abducted or illegally detained ENGR. TAGITIS.

That I was shocked when I learned that I was implicated in the alleged disappearance of ENGR. MORCED in my capacity as the chief PACER [sic] considering that our office, the Police Anti-Crime and Emergency Response (PACER), a special task force created for the purpose of neutralizing or eradicating kidnap-for-ransom groups which until now continue to be one of the menace of our society is a respondent in kidnapping or illegal detention case. Simply put, our task is to go after kidnappers and charge them in court and to abduct or illegally detain or kidnap anyone is anathema to our mission.

 

That right after I learned of the receipt of the WRIT OF AMPARO, I directed the Chief of PACER Mindanao Oriental (PACER-MOR) to conduct pro-active measures to investigate, locate/search the subject, identify and apprehend the persons responsible, to recover and preserve evidence related to the disappearance of ENGR. MORCED TAGITIS, which may aid in the prosecution of the person or persons responsible, to identify witnesses and obtain statements from them concerning the disappearance and to determine the cause, manner, location and time of disappearance as well as any pattern or practice that may have brought about the disappearance.

 

That I further directed the chief of PACER-MOR, Police Superintendent JOSE ARNALDO BRIONES JR., to submit a written report regarding the disappearance of ENGR. MORCED.

 

That in compliance with my directive, the chief of PACER-MOR sent through fax his written report.

 

That the investigation and measures being undertaken to locate/search the subject in coordination with Police Regional Office, Autonomous Region of Muslim Mindanao (PRO-ARMM) and Jolo Police Provincial Office (PPO) and other AFP and PNP units/agencies in the area are ongoing with the instruction not to leave any stone unturned so to speak in the investigation until the perpetrators in the instant case are brought to the bar of justice.

 

That I have exercised EXTRAORDINARY DILIGENCE in dealing with the WRIT OF AMPARO just issued.

 

 

Finally, the PNP PRO ARMM Regional Director PC Supt. Joel R. Goltiao (Gen. Goltiao), also submitted his affidavit detailing the actions that he had taken upon receipt of the report on Tagitis disappearance, viz:[17]

x x x x

 

3) For the record:

 

1.                 I am the Regional Director of Police Regional Office ARMM now and during the time of the incident;

 

x x x x

 

4. It is my duty to look into and take appropriate measures on any cases of reported enforced disappearances and when they are being alluded to my office;

 

5. On November 5, 2007, the Provincial Director of Sulu Police Provincial Office reported to me through Radio Message Cite No. SPNP3-1105-07-2007 that on November 4, 2007 at around 3:30 p.m., a certain Abdulnasser Matli, an employee of Islamic Development Bank, appeared before the Office of the Chief of Police, Jolo Police Station, and reported the disappearance of Engr. Morced Tagitis, scholarship coordinator of Islamic Development Bank, Manila;

 

6. There was no report that Engr. Tagibis was last seen in the company of or taken by any member of the Philippine National Police but rather he just disappeared from ASY Pension House situated at Kakuyagan Village, Village, Patikul, Sulu, on October 30, 2007, without any trace of forcible abduction or arrest;

 

7. The last known instance of communication with him was when Arsimin Kunnong, a student scholar, was requested by him to purchase a vessel ticket at the Office of Weezam Express, however, when the student returned back to ASY Pension House, he no longer found Engr. Tagitis there and when he immediately inquired at the information counter regarding his whereabouts [sic], the person in charge in the counter informed him that Engr. Tagitis had left the premises on October 30, 2007 around 1 oclock p.m. and never returned back to his room;

 

8. Immediately after learning the incident, I called and directed the Provincial Director of Sulu Police Provincial Office and other units through phone call and text messages to conduct investigation [sic] to determine the whereabouts of the aggrieved party and the person or persons responsible for the threat, act or omission, to recover and preserve evidence related to the disappearance of Engr. Tagitis, to identify witnesses and obtain statements from them concerning his disappearance, to determine the cause and manner of his disappearance, to identify and apprehend the person or persons involved in the disappearance so that they shall be brought before a competent court;

 

9. Thereafter, through my Chief of the Regional Investigation and Detection Management Division, I have caused the following directives:

 

a)      Radio Message Cite No. RIDMD-1122-07-358 dated November 22, 2007 directing PD Sulu PPO to conduct joint investigation with CIDG and CIDU ARMM on the matter;

 

b)     Radio Message Cite No. RIDMD-1128-07-361 dated November 28, 2007 directing PD Sulu PPO to expedite compliance to my previous directive;

 

c)      Memorandum dated December 14, 2007 addressed to PD Sulu PPO reiterating our series of directives for investigation and directing him to undertake exhaustive coordination efforts with the owner of ASY Pension House and student scholars of IDB in order to secure corroborative statements regarding the disappearance and whereabouts of said personality;

 

d)     Memorandum dated December 24, 2007 addressed to PD Sulu PPO directing him to maximize efforts to establish clues on the whereabouts of Engr. Tagitis by seeking the cooperation of Prof. Abdulnasser Matli and Arsimin Kunnong and/or whenever necessary, for them to voluntarily submit for polygraph examination with the NBI so as to expunge all clouds of doubt that they may somehow have knowledge or idea to his disappearance;

 

e)      Memorandum dated December 27, 2007 addressed to the Regional Chief, Criminal Investigation and Detection Group, Police Regional Office 9, Zamboanga City, requesting assistance to investigate the cause and unknown disappearance of Engr. Tagitis considering that it is within their area of operational jurisdiction;

 

f)      Memorandum from Chief, Intelligence Division, PRO ARMM dated December 30, 2007 addressed to PD Sulu PPO requiring them to submit complete investigation report regarding the case of Engr. Tagitis;

 

10. In compliance to our directives, PD Sulu PPO has exerted his [sic] efforts to conduct investigation [sic] on the matter to determine the whereabouts of Engr. Tagitis and the circumstances related to his disappearance and submitted the following:

 

a)      Progress Report dated November 6, 2007 through Radio Message Cite No. SPNP3-1106-10-2007;

 

b)      Radio Message Cite No. SPIDMS-1205-47-07 informing this office that they are still monitoring the whereabouts of Engr. Tagitis;

 

c)      Investigation Report dated December 31, 2007 from the Chief of Police, Jolo Police Station, Sulu PPO;

 

11. This incident was properly reported to the PNP Higher Headquarters as shown in the following:

 

a)      Memorandum dated November 6, 2007 addressed to the Chief, PNP informing him of the facts of the disappearance and the action being taken by our office;

 

b)      Memorandum dated November 6, 2007 addressed to the Director, Directorate for Investigation and Detection Management, NHQ PNP;

 

c)      Memorandum dated December 30, 2007 addressed to the Director, DIDM;

 

4) In spite of our exhaustive efforts, the whereabouts of Engr. Tagitis cannot be determined but our office is continuously intensifying the conduct of information gathering, monitoring and coordination for the immediate solution of the case.

 

Since the disappearance of Tagistis was practically admitted and taking note of favorable actions so far taken on the disappearance, the CA directed Gen. Goltiao as the officer in command of the area of disappearance to form TASK FORCE TAGITIS.[18]

 

Task Force Tagitis

 

On January 11, 2008, Gen. Goltiao designated PS Supt. Ahiron Ajirim (PS Supt. Ajirim) to head TASK FORCE TAGITIS.[19] The CA subsequently set three hearings to monitor whether TASK FORCE TAGITIS was exerting extraordinary efforts in handling the disappearance of Tagitis.[20] As planned, (1) the first hearing would be to mobilize the CIDG, Zamboanga City; (2) the second hearing would be to mobilize intelligence with Abu Sayyaf and ARMM; and (3) the third hearing would be to mobilize the Chief of Police of Jolo, Sulu and the Chief of Police of Zamboanga City and other police operatives.[21]

In the hearing on January 17, 2008, TASK FORCE TAGITIS submitted to the CA an intelligence report from PSL Usman S. Pingay, the Chief of Police of the Jolo Police Station, stating a possible motive for Tagitis disappearance.[22] The intelligence report was apparently based on the sworn affidavit dated January 4, 2008 of Muhammad Abdulnazeir N. Matli (Prof. Matli), Professor of Islamic Studies at the University of the Philippines and an Honorary Student Counselor of the IDB Scholarship Program in the Philippines, who told the Provincial Governor of Sulu that:[23]

 

[Based] on reliable information from the Office of Muslim Affairs in Manila, Tagitis has reportedly taken and carried away more or less Five Million Pesos (P5,000,000.00) deposited and entrusted to his [personal] bank accounts by the Central Office of IDB, Jeddah, Kingdom of Saudi Arabia, which [was] intended for the IDB Scholarship Fund.

 

In the same hearing, PS Supt. Ajirim testified that since the CIDG was alleged to be responsible, he personally went to the CIDG office in Zamboanga City to conduct an ocular inspection/investigation, particularly of their detention cells.[24] PS Supt. Ajirim stated that the CIDG, while helping TASK FORCE TAGITIS investigate the disappearance of Tagitis, persistently denied any knowledge or complicity in any abduction.[25] He further testified that prior to the hearing, he had already mobilized and given specific instructions to their supporting units to perform their respective tasks; that they even talked to, but failed to get any lead from the respondent in Jolo.[26] In his submitted investigation report dated January 16, 2008, PS Supt. Ajirim concluded:[27]

 

9. Gleaned from the undersigned inspection and observation at the Headquarters 9 RCIDU and the documents at hand, it is my own initial conclusion that the 9RCIDU and other PNP units in the area had no participation neither [sic] something to do with [sic] mysterious disappearance of Engr. Morced Tagitis last October 30, 2007. Since doubt has been raised regarding the emolument on the Islamic Development Bank Scholar program of IDB that was reportedly deposited in the personal account of Engr. Tagitis by the IDB central office in Jeddah, Kingdom of Saudi Arabia. Secondly, it could might [sic] be done by resentment or sour grape among students who are applying for the scholar [sic] and were denied which was allegedly conducted/screened by the subject being the coordinator of said program.

 

20. It is also premature to conclude but it does or it may and [sic] presumed that the motive behind the disappearance of the subject might be due to the funds he maliciously spent for his personal interest and wanted to elude responsibilities from the institution where he belong as well as to the Islamic student scholars should the statement of Prof. Matli be true or there might be a professional jealousy among them.

 

x x x x

It is recommended that the Writ of Amparo filed against the respondents be dropped and dismissed considering on [sic] the police and military actions in the area particularly the CIDG are exerting their efforts and religiously doing their tasked [sic] in the conduct of its intelligence monitoring and investigation for the early resolution of this instant case. But rest assured, our office, in coordination with other law-enforcement agencies in the area, are continuously and religiously conducting our investigation for the resolution of this case.

 

On February 4, 2008, the CA issued an ALARM WARNING that Task Force Tagitis did not appear to be exerting extraordinary efforts in resolving Tagitis disappearance on the following grounds:[28]

 

(1)              This Court FOUND that it was only as late as January 28, 2008, after the hearing, that GEN. JOEL GOLTIAO and COL. AHIRON AJIRIM had requested for clear photographs when it should have been standard operating procedure in kidnappings or disappearances that the first agenda was for the police to secure clear pictures of the missing person, Engr. Morced Tagitis, for dissemination to all parts of the country and to neighboring countries. It had been three (3) months since GEN. JOEL GOLTIAO admitted having been informed on November 5, 2007 of the alleged abduction of Engr. Morced Tagitis by alleged bad elements of the CIDG. It had been more than one (1) month since the Writ of Amparo had been issued on December 28, 2007. It had been three (3) weeks when battle formation was ordered through Task Force Tagitis, on January 17, 2008. It was only on January 28, 2008 when the Task Force Tagitis requested for clear and recent photographs of the missing person, Engr. Morced Tagitis, despite the Task Force Tagitis claim that they already had an all points bulletin, since November 5, 2007, on the missing person, Engr. Morced Tagitis. How could the police look for someone who disappeared if no clear photograph had been disseminated?

 

(2)              Furthermore, Task Force Tagitis COL. AHIROM AJIRIM informed this Court that P/Supt KASIM was designated as Col. Ahirom Ajirims replacement in the latters official designated post. Yet, P/Supt KASIMs subpoena was returned to this Court unserved. Since this Court was made to understand that it was P/Supt KASIM who was the petitioners unofficial source of the military intelligence information that Engr. Morced Tagitis was abducted by bad elements of the CIDG (par. 15 of the Petition), the close contact between P/Supt KASIM and Col. Ahirom Ajirim of TASK FORCE TAGITIS should have ensured the appearance of Col. KASIM in response to this courts subpoena and COL. KASIM could have confirmed the military intelligence information that bad elements of the CIDG had abducted Engr. Morced Tagitis.

 

 

 

Testimonies for the Respondent

On January 7, 2008, the respondent, Mary Jean B. Tagitis, testified on direct examination that she went to Jolo and Zamboanga in her efforts to locate her husband. She said that a friend from Zamboanga holding a high position in the military (whom she did not then identify) gave her information that allowed her to specify her allegations, particularly paragraph 15 of the petition.[29] This friend also told her that her husband [was] in good hands.[30] The respondent also testified that she sought the assistance of her former boss in Davao City, Land Bank Bajada Branch Manager Rudy Salvador, who told her that PNP CIDG is holding [her husband], Engineer Morced Tagitis.[31] The respondent recounted that she went to Camp Katitipan in Davao City where she met Col. Julasirim Ahadin Kasim (Col. Kasim/Sr. Supt Kasim) who read to her and her friends (who were then with her) a highly confidential report that contained the alleged activities of Engineer Tagitis and informed her that her husband was abducted because he is under custodial investigation for being a liaison for J.I. or Jemaah Islamiah.[32]

 

On January 17, 2008, the respondent on cross-examination testified that she is Tagitis second wife, and they have been married for thirteen years; Tagitis was divorced from his first wife.[33] She last communicated with her husband on October 29, 2007 at around 7:31 p.m. through text messaging; Tagitis was then on his way to Jolo, Sulu, from Zamboanga City.[34]

 

The respondent narrated that she learned of her husbands disappearance on October 30, 2007 when her stepdaughter, Zaynah Tagitis (Zaynah), informed her that she had not heard from her father since the time they arranged to meet in Manila on October 31, 2007.[35] The respondent explained that it took her a few days (or on November 5, 2007) to personally ask Kunnong to report her husbands disappearance to the Jolo Police Station, since she had the impression that her husband could not communicate with her because his cellular phones battery did not have enough power, and that he would call her when he had fully-charged his cellular phones battery.[36]

 

The respondent also identified the high-ranking military friend, who gave her the information found in paragraph 15 of her petition, as Lt. Col. Pedro L. Ancanan, Jr (Col. Ancanan). She met him in Camp Karingal, Zamboanga through her boss.[37] She also testified that she was with three other people, namely, Mrs. Marydel Martin Talbin and her two friends from Mati City, Davao Oriental, when Col. Kasim read to them the contents of the highly confidential report at Camp Katitipan, Davao City. The respondent further narrated that the report indicated that her husband met with people belonging to a terrorist group and that he was under custodial investigation. She then told Col. Kasim that her husband was a diabetic taking maintenance medication, and asked that the Colonel relay to the persons holding him the need to give him his medication.[38]

 

On February 11, 2008, TASK FORCE TAGITIS submitted two narrative reports,[39] signed by the respondent, detailing her efforts to locate her husband which led to her meetings with Col. Ancanan of the Philippine Army and Col. Kasim of the PNP. In her narrative report concerning her meeting with Col. Ancanan, the respondent recounted, viz:[40]

On November 11, 2007, we went to Zamboanga City with my friend Mrs. Marydel Talbin. Our flight from Davao City is 9:00 oclock in the morning; we arrived at Zamboanga Airport at around 10:00 oclock. We [were] fetched by the two staffs of Col. Ancanan. We immediately proceed [sic] to West Mindanao Command (WESTMINCOM).

On that same day, we had private conversation with Col. Ancanan. He interviewed me and got information about the personal background of Engr. Morced N. Tagitis. After he gathered all information, he revealed to us the contents of text messages they got from the cellular phone of the subject Engr. Tagitis. One of the very important text messages of Engr. Tagitis sent to his daughter Zaynah Tagitis was that she was not allowed to answer any telephone calls in his condominium unit.

 

While we were there he did not tell us any information of the whereabouts of Engr. Tagitis. After the said meeting with Col. Ancanan, he treated us as guests to the city. His two staffs accompanied us to the mall to purchase our plane ticket going back to Davao City on November 12, 2007.

When we arrived in Davao City on November 12, 2007 at 9:00 in the morning, Col. Ancanan and I were discussing some points through phone calls. He assured me that my husband is alive and hes last looked [sic] in Talipapao, Jolo, Sulu. Yet I did not believe his given statements of the whereabouts of my husband, because I contacted some of my friends who have access to the groups of MILF, MNLF and ASG. I called up Col. Ancanan several times begging to tell me the exact location of my husband and who held him but he refused.

 

While I was in Jolo, Sulu on November 30, 2007, I called him up again because the PNP, Jolo did not give me any information of the whereabouts of my husband. Col. Ancanan told me that Sana ngayon alam mo na kung saan ang kinalalagyan ng asawa mo. When I was in Zamboanga, I was thinking of dropping by the office of Col. Ancanan, but I was hesitant to pay him a visit for the reason that the Chief of Police of Jolo told me not to contact any AFP officials and he promised me that he can solve the case of my husband (Engr. Tagitis) within nine days.

 

I appreciate the effort of Col. Ancanan on trying to solve the case of my husband Engr. Morced Tagitis, yet failed to do so.

 

 

The respondent also narrated her encounter with Col. Kasim, as follows:[41]

On November 7, 2007, I went to Land Bank of the Philippines, Bajada Branch, Davao City to meet Mr. Rudy Salvador. I told him that my husband, Engineer Morced Tagitis was presumed to be abducted in Jolo, Sulu on October 30, 2007. I asked him a favor to contact his connections in the military in Jolo, Sulu where the abduction of Engr. Tagitis took place. Mr. Salvador immediately called up Camp Katitipan located in Davao City looking for high-ranking official who can help me gather reliable information behind the abduction of subject Engineer Tagitis.

 

On that same day, Mr. Salvador and my friend, Anna Mendoza, Executive Secretary, accompanied me to Camp Katitipan to meet Col. Kasim. Mr. Salvador introduced me to Col. Kasim and we had a short conversation. And he assured me that hell do the best he can to help me find my husband.

 

After a few weeks, Mr. Salvador called me up informing me up informing me that I am to go to Camp Katitipan to meet Col. Kasim for he has an urgent, confidential information to reveal.

 

On November 24, 2007, we went back to Camp Katitipan with my three friends. That was the time that Col. Kasim read to us the confidential report that Engr. Tagitis was allegedly connected [with] different terrorist [groups], one of which he mentioned in the report was OMAR PATIK and a certain SANTOS - a Balik Islam.

It is also said that Engr. Tagitis is carrying boxes of medicines for the injured terrorists as a supplier. These are the two information that I can still remember. It was written in a long bond paper with PNP Letterhead. It was not shown to us, yet Col. Kasim was the one who read it for us.

 

He asked a favor to me that Please dont quote my Name! Because this is a raw report. He assured me that my husband is alive and he is in the custody of the military for custodial investigation. I told him to please take care of my husband because he has aliments and he recently took insulin for he is a diabetic patient.

 

In my petition for writ of amparo, I emphasized the information that I got from Kasim.

On February 11, 2008, the respondent presented Mrs. Marydel Martin Talbin (Mrs. Talbin) to corroborate her testimony regarding her efforts to locate her husband, in relation particularly with the information she received from Col. Kasim. Mrs. Talbin testified that she was with the respondent when she went to Zamboanga to see Col. Ancanan, and to Davao City at Camp Katitipan to meet Col. Kasim.[42]

 

In Zamboanga, Mrs. Talbin recounted that they met with Col. Ancanan, who told them that there was a report and that he showed them a series of text messages from Tagitis cellular phone, which showed that Tagitis and his daughter would meet in Manila on October 30, 2007.[43]

 

She further narrated that sometime on November 24, 2007, she went with the respondent together with two other companions, namely, Salvacion Serrano and Mini Leong, to Camp Katitipan to talk to Col. Kasim.[44] The respondent asked Col. Kasim if he knew the exact location of Engr. Tagitis. Col. Kasim told them that Tagitis was in good hands, although he was not certain whether he was with the PNP or with the Armed Forces of the Philippines (AFP). She further recounted that based on the report Col. Kasim read in their presence, Tagitis was under custodial investigation because he was being charged with terrorism; Tagitis in fact had been under surveillance since January 2007 up to the time he was abducted when he was seen talking to Omar Patik and a certain Santos of Bulacan, a Balik Islam charged with terrorism. Col. Kasim also told them that he could not give a copy of the report because it was a raw report.[45] She also related that the Col. Kasim did not tell them exactly where Tagitis was being kept, although he mentioned Talipapao, Sulu.Prof., lalabas din yan.[50] Prof. Matli also emphasized that despite what his January 4, 2008 affidavit indicated,[51] he never told PS Supt. Pingay, or made any accusation, that Tagitis took away money entrusted to him.[52] Prof. Matli confirmed, however, that that he had received an e-mail report[53] from Nuraya Lackian of the Office of Muslim Affairs in Manila that the IDB was seeking assistance of the office in locating the funds of IDB scholars deposited in Tagitis personal account.[54]

 

On cross-examination by the respondents counsel, Prof. Matli testified that his January 4, 2008 affidavit was already prepared when PS Supt. Pingay asked him to sign it.[55] Prof Matli clarified that although he read the affidavit before signing it, he was not so much aware of [its] contents.[56]

 

On February 11, 2008, the petitioners presented Col. Kasim to rebut material portions of the respondents testimony, particularly the allegation that he had stated that Tagitis was in the custody of either the military or the PNP.[57] Col. Kasim categorically denied the statements made by the respondent in her narrative report, specifically: (1) that Tagitis was seen carrying boxes of medicines as supplier for the injured terrorists; (2) that Tagitis was under the custody of the military, since he merely said to the respondent that your husband is in good hands and is probably taken cared of by his armed abductors; and (3) that Tagitis was under custodial investigation by the military, the PNP or the CIDG Zamboanga City.[58] Col. Kasim emphasized that the informal letter he received from his informant in Sulu did not indicate that Tagitis was in the custody of the CIDG.[59] He also stressed that the information he provided to the respondent was merely a raw report sourced from barangay intelligence that still needed confirmation and follow-up as to its veracity.[60]

On cross-examination, Col. Kasim testified that the information he gave the respondent was given to him by his informant, who was a civilian asset, through a letter which he considered as unofficial.[61] Col. Kasim stressed that the letter was only meant for his consumption and not for reading by others.[62] He testified further that he destroyed the letter right after he read it to the respondent and her companions because it was not important to him and also because the information it contained had no importance in relation with the abduction of Tagitis.[63] He explained that he did not keep the letter because it did not contain any information regarding the whereabouts of Tagitis and the person(s) responsible for his abduction.[64]

 

In the same hearing on February 11, 2008, the petitioners also presented Police Senior Superintendent Jose Volpane Pante (Col. Pante), Chief of the CIDG-9, to disprove the respondents allegation that Tagitis was in the custody of CIDG-Zamboanga City.[65] Col. Pante clarified that the CIDG was the investigative arm of the PNP, and that the CIDG investigates and prosecutes all cases involving violations in the Revised Penal Code particularly those considered as heinous crimes.[66] Col. Pante further testified that the allegation that 9 RCIDU personnel were involved in the disappearance of Tagitis was baseless, since they did not conduct any operation in Jolo, Sulu before or after Tagitis reported disappearance.[67] Col. Pante added that the four (4) personnel assigned to the Sulu CIDT had no capability to conduct any operation, since they were only assigned to investigate matters and to monitor the terrorism situation.[68] He denied that his office conducted any surveillance on Tagitis prior to the latters disappearance.[69] Col. Pante further testified that his investigation of Tagitis disappearance was unsuccessful; the investigation was still facing a blank wall on the whereabouts of Tagitis.[70]

 

THE CA RULING

On March 7, 2008, the CA issued its decision[71] confirming that the disappearance of Tagitis was an enforced disappearance under the United Nations (UN) Declaration on the Protection of All Persons from Enforced Disappearances.[72] The CA ruled that when military intelligence pinpointed the investigative arm of the PNP (CIDG) to be involved in the abduction, the missing-person case qualified as an enforced disappearance. The conclusion that the CIDG was involved was based on the respondents testimony, corroborated by her companion, Mrs. Talbin. The CA noted that the information that the CIDG, as the police intelligence arm, was involved in Tagitis abduction came from no less than the military an independent agency of government. The CA thus greatly relied on the raw report from Col. Kasims asset, pointing to the CIDGs involvement in Tagitis abduction. The CA held that raw reports from an asset carried great weight in the intelligence world. It also labeled as suspect Col. Kasims subsequent and belated retraction of his statement that the military, the police, or the CIDG was involved in the abduction of Tagitis.

 

The CA characterized as too farfetched and unbelievable and a bedlam of speculation police theories painting the disappearance as intentional on the part of Tagitis. He had no previous brushes with the law or any record of overstepping the bounds of any trust regarding money entrusted to him; no student of the IDB scholarship program ever came forward to complain that he or she did not get his or her stipend. The CA also found no basis for the police theory that Tagitis was trying to escape from the clutches of his second wife, on the basis of the respondents testimony that Tagitis was a Muslim who could have many wives under the Muslim faith, and that there was no issue at all when the latter divorced his first wife in order to marry the second. Finally, the CA also ruled out kidnapping for ransom by the Abu Sayyaf or by the ARMM paramilitary as the cause for Tagitis disappearance, since the respondent, the police and the military noted that there was no acknowledgement of Tagitis abduction or demand for payment of ransom the usual modus operandi of these terrorist groups.

 

Based on these considerations, the CA thus extended the privilege of the writ to Tagitis and his family, and directed the CIDG Chief, Col. Jose Volpane Pante, PNP Chief Avelino I. Razon, Task Force Tagitis heads Gen. Joel Goltiao and Col. Ahiron Ajirim, and PACER Chief Sr. Supt. Leonardo A. Espina to exert extraordinary diligence and efforts to protect the life, liberty and security of Tagitis, with the obligation to provide monthly reports of their actions to the CA. At the same time, the CA dismissed the petition against the then respondents from the military, Lt. Gen Alexander Yano and Gen. Ruben Rafael, based on the finding that it was PNP-CIDG, not the military, that was involved.

On March 31, 2008, the petitioners moved to reconsider the CA decision, but the CA denied the motion in its Resolution of April 9, 2008.[73]

 

THE PETITION

In this Rule 45 appeal questioning the CAs March 7, 2008 decision, the petitioners mainly dispute the sufficiency in form and substance of the Amparo petition filed before the CA; the sufficiency of the legal remedies the respondent took before petitioning for the writ; the finding that the rights to life, liberty and security of Tagitis had been violated; the sufficiency of evidence supporting the conclusion that Tagitis was abducted; the conclusion that the CIDG Zamboanga was responsible for the abduction; and, generally, the ruling that the respondent discharged the burden of proving the allegations of the petition by substantial evidence.[74]

 

THE COURTS RULING

 

We do not find the petition meritorious.

 

Sufficiency in Form and Substance

 

In questioning the sufficiency in form and substance of the respondents 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 respondents 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):[75]

 

(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 victims 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.[76] 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 victims 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.[77]

 

These allegations, in our view, properly pleaded ultimate facts within the pleaders 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 affiants direct testimony.[78] 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.[79]

We reject the petitioners argument that the respondents 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 respondents personal inquiries that yielded the factual bases for her petition.[80]

 

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 respondents 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.[81] The petitioners contend that the respondents 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 Courts intervention.

 

We do not see the respondents 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 respondents 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 respondents] 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 subjects human and constitutional rights, except the issuance of a WRIT OF AMPARO.

 

Based on these considerations, we rule that the respondents 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 Desaparecidos

 

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 Hitlers Nact und Nebel Erlass or Night and Fog Decree of December 7, 1941.[82] The Third Reichs 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.[83]

 

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[84] and during the Dirty War[85] 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,[86] which literally means the disappeared ones.[87] 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.[88]

 

In the Philippines, enforced disappearances generally fall within the first two categories,[89] 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. Aquinos 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. Arroyos 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.[90] Currently, the United Nations Working Group on Enforced or Involuntary Disappearance[91] reports 619 outstanding cases of enforced or involuntary disappearances covering the period December 1, 2007 to November 30, 2008.[92]

 

Enforced Disappearances

Under Philippine Law

 

The Amparo Rule expressly provides that the writ shall cover extralegal killings and enforced disappearances or threats thereof.[93] 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:[94]

 

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 well 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] [95]

 

In the end, the Committee took cognizance of several bills filed in the House of Representatives[96] and in the Senate[97] 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.[98]

 

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.[99] 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 countrys 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,[100] 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 Courts 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.

 

 

Enforced Disappearance

Under International Law

 

From the International Law perspective, involuntary or enforced disappearance is considered a flagrant violation of human rights.[101] 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.[102]

 

The UN General Assembly first considered the issue of Disappeared Persons in December 1978 under Resolution 33/173. The Resolution expressed the General Assemblys 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.[103]

 

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).[104] 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).[105] The Convention was opened for signature in Paris, France on February 6, 2007.[106] 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[107] and that this right is non-derogable.[108] 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.[109] 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.[110] 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.[111]

 

 

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.[112] Although no universal agreement has been reached on the precise extent of the human rights and fundamental freedoms guaranteed to all by the Charter,[113] it was the UN itself that issued the Declaration on enforced disappearance, and this Declaration states:[114]

 

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.[115]

 

In the recent case of Pharmaceutical and Health Care Association of the Philippines v. Duque III,[116] 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:[117]

 

[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.[118] 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.[119] Sometimes referred to as evidence of international law,[120] 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.[121] 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.[122] 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.[123] 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.[124] 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.[125]

 

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 Conventions 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,[126] where the ECHR found a violation of the right to liberty and security of the disappeared person when the applicants 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 persons 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.[127]

 

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,[128] 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.[129] 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[130] 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.[131]

 

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,[132] 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,[133] 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.[134] 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.[135]

 

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:[136]

 

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:

Article 2

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:[137]

 

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:[138]

 

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,[139] this Court, in ruling that the right to security of persons is a guarantee of the protection of ones 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,[140] 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

Enforced Disappearance

 

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.[141] 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.[142]

 

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.[143] We have had occasion to note this difficulty in Secretary of Defense v. Manalo[144] 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 victims body is usually concealed to effectively thwart the start of any investigation or the progress of one that may have begun.[145] The problem for the victims family is the States virtual monopoly of access to pertinent evidence. The Inter-American Court of Human Rights (IACHR) observed in the landmark case of Velasquez Rodriguez[146] that inherent to the practice of enforced disappearance is the deliberate use of the States power to destroy the pertinent evidence. The IACHR described the concealment as a clear attempt by the State to commit the perfect crime.[147]

 

Third is the element of denial; in many cases, the State authorities deliberately deny that the enforced disappearance ever occurred.[148] 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 victims human rights.[149] 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.[150]

 

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 victims 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[151] 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,[152] which was the Courts 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,[153] 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.[154] 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 Velsquez (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 Velsquez, the victims sister, who described Manfredos 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.[155] 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.[156]

 

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[157] 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.[158] 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.[159] Under this definition, the elements that constitute enforced disappearance are essentially fourfold:[160]

 

(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 respondents 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 respondents 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: Jemaah 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.[161] [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, maam.

 

Q: And a certain Col. Kasim told you that your husband was abducted and under custodial investigation?

 

A: Yes, maam.

 

Q: And you mentioned that he showed you a report?

 

A: Yes, maam.

 

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, maam.

 

Q: But you were able to read the contents?

 

A: No. But he read it in front of us, my friends, maam.

 

Q: How many were you when you went to see Col. Kasim?

 

A: There were three of us, maam.

 

Q: Who were your companions?

 

A: Mrs. Talbin, tapos yung dalawang friends nya from Mati City, Davao Oriental, maam.[162]

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, maam.[163]

 

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, maam.[164]

 

 

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 Ive 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 dont know if it was computerized but Im certain that it was typewritten. Im 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.[165]

 

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 Ive 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][166]

 

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.[167]

 

To be sure, the respondents and Mrs. Talbins 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. Talbins 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.[168] 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 prevarication[169]and 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.[170]

 

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 informants 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 respondents and Mrs. Talbins testimonies cannot simply be defeated by Col. Kasims plain denial and his claim that he had destroyed his informants letter, the critical piece of evidence that supports or negates the parties conflicting claims. Col. Kasims 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.[171] 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).[172]

 

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 respondents 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. Kasims 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. Kasims 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 Ajirims replacement in the latters 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. Kasims asset and what he indeed wrote.

 

We glean from all these pieces of evidence and developments a consistency in the governments 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 governments dismissive approach to the disappearance, starting from the initial response by the Jolo police to Kunnongs initial reports of the disappearance, to the responses made to the respondent when she herself reported and inquired about her husbands 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. Kasims 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 governments 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,[173] 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,[174] 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 Abdulvahaps 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,[175] 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.[176] 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).[177] 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.

 

SO ORDERED.

 

 

ARTURO D. BRION

Associate Justice

 

WE CONCUR:

 

 

REYNATO S. PUNO

Chief Justice

 

 

 

 

ANTONIO T. CARPIO

Associate Justice

 

 

 

 

 

 

CONCHITA CARPIO MORALES

Associate Justice

 

 

 

 

PRESBITERO J. VELASCO, JR.

Associate Justice

 

 

 

 

TERESITA J. LEONARDO-DE CASTRO

Associate Justice

 

 

 

 

LUCAS P. BERSAMIN

Associate Justice

 

 

 

 

ROBERTO A. ABAD

Associate Justice

 

 

 

 

RENATO C. CORONA

Associate Justice

 

 

 

 

 

MINITA V. CHICO-NAZARIO

Associate Justice

 

 

 

 

ANTONIO EDUARDO B. NACHURA

Associate Justice

 

 

 

 

DIOSDADO M. PERALTA

Associate Justice

 

 

 

 

MARIANO C. DEL CASTILLO

Associate Justice

 

 

 

 

MARTIN S. VILLARAMA, JR.

Associate Justice

 

 

 

 

CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution, it is hereby certified that the conclusions in the above Decision were reached in consultation before the case was assigned to the writer of the opinion of the Court.

 

 

 

REYNATO S. PUNO

Chief Justice



[1] Under Rule 45 of the Rules of Court; rollo, pp. 826-919.

[2] Penned by Associate Justice Vicente Q. Roxas and concurred in by Associate Justice Hakim S. Abdulwahid and Associate Justice Arturo G. Tayag; rollo, pp. 108-128.

[3] Section 1 of the Rule on the Writ of Amparo states:

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.

[4] A.M. No. 07-9-12-SC, October 24, 2007.

[5] Sworn Affidavit of Arsimin H. Kunnong dated November 7, 2007; rollo, p. 348.

[6] Sworn Affidavit of Rion Adam dated November 20, 2007; rollo, p. 349.

[7] Supra note 4.

[8] Id.

[9] Id.

[10] Annex C; rollo, pp. 135-143.

[11] CA Resolution dated December 28, 2004, CA rollo, pp. 13-16. The CA required that the Return contain the following minimum information:

(A) Respondents [referring to herein petitioners] personal and lawful defenses to show that the respondent did not violate or threaten with violation the right to life, liberty and security of the aggrieved party, through any act or omission; (B) steps or actions taken by respondent to determine the fate or whereabouts of the aggrieved party and the person or persons responsible for the threat, act or omission; (C) all relevant information in the possession of each respondent pertaining to the threat, act or omission against the aggrieved party; and (D) since the respondents were all public officials, being either members of the Armed Forces of the Philippines or the Philippine National Police, the return should further state the actions that have been or would be taken: (i) To verify the identity of the aggrieved party; (ii) To recover and preserve evidence related to the disappearance of ENGINEER MORCED N. TAGITIS, the person identified in the petition, which may aid in the prosecution of the person or persons responsible; (iii) To identify witnesses and obtain statements from them concerning the disappearance; (iv) To determine the cause, manner, location and time of disappearance as well as any pattern or practice that may have brought about the disappearance; (v) To identify and apprehend the person or persons involved in the disappearance of ENGINEER MORCED N. TAGITIS; and (vi) To bring the suspected offenders before a competent court. General denial of the allegations in the petition would not be allowed and all defenses not raised in the return would be considered as waived. Id.

[12] CA rollo, pp. 56-90.

[13] Annex 2; id. at 91-96.

[14] Annex 3; id. at 97-98.

[15] Police Anti-Crime Emergency Response.

[16] Annex 4; id. at 99-103.

[17] Annex 5; id. at 104-120.

[18] CA Resolution dated January 9, 2008; rollo, p. 275.

[19] TSN, January 11, 2008, p. 39; CA Resolution dated January 11, 2008, rollo, pp. 280-283.

[20] The hearings were conducted on January 17, 2008, January 28, 2008, and February 11, 2008 respectively.

[21] CA Resolution dated January 11, 2008, rollo, pp. 280-283.

[22] TSN, January 17, 2008, pp. 10-11; CA Resolution dated January 18, 2008, CA rollo, pp. 283-286.

[23] Exhibit 6, CA rollo, p. 250.

[24] TSN, January 17, 2008, p. 77.

[25] Id.

[26] Id. at 80-81.

[27] Annex L; rollo, pp. 347.

[28] CA rollo, pp. 311-313.

[29] TSN, January 7, 2008, p. 20.

[30] Id. at 21.

[31] Id. at 22. Mr. Rudy Salvador later executed an affidavit dated January 21, 2008 detailing the assistance he provided for the respondent in locating the whereabouts of her husband, viz:

 

That on November 12, 2007, Ms. Mary Jean B. Tagitis, my former staff in Land Bank of the Philippines Digos Branch Digos City, came to my office at Land Bank Philippines, Bajada Branch, Bajada, Davao City asking for help regarding the abduction of her husband Engr. Morced Tagitis, a Senior Honorary Counselor of the Islamic Development Bank Scholarship Program and a World Bank Consultant who was presumed to be abducted in Jolo, Sulu on October 30, 2007;

 

During our meeting, I immediately called up my friends in the military asking them a favor to help her to find the whereabouts her husband Engr. Morced Tagitis;

 

After then, we faxed a letter to PCSUPT RODOLFO B. MENDOZA JR. of the PHILIPPINE NATIONAL POLICE, CAMP CRAME, QUEZON CITY appealing for assistance in locating/gathering information on the abduction of Engr. Morced N. Tagitis. Exhibit C, TSN, January 28, 2008, p. 8-9.

[32] Id. at 23.

[33] TSN, January 17, 2008, pp. 18-20.

[34] Id. at 34-35.

[35] Id. at 24-25.

[36] Id. at 33.

[37] Id. at 47-44; rollo, pp. 772-773. Col. Ancanan later executed an affidavit dated January 30, 2008 contradicting the respondents allegations. The pertinent portions of the affidavit state:

 

3. That, mid of November 2007, Mrs. Tagitis of Davao City appeared before our office and asked for help/assistance in locating her husband allegedly missing since November 4, 2007 in Jolo, Sulu;

4. That, I told her that her problem was purely a police matter which does not fall under our mandate but that nonetheless I was willing to extend my help;

5. That during our conversation, I asked her to provide me with some documents/information for purposes of back tracking/tracing the possible personalities whom her husband supposedly met in Jolo before he was reported missing. However, this did not materialize because Mrs. Tagitis was hesitant to produce said documents/information for an unknown reason;

6. That during the Joint Reward Valuation conference (JRVC) on January 29, 2008, I was astonished when PS SUPT JOSE VOLPANE PANTE, Regional Chief 9RCIDU, informed me that accordingly (sic) I was the one who told Mrs. Tagitis that her husband was in the custody of the 9RCIDU ;

7. That in the course of my conversation with Mrs. Tagitis, I never told her or made mention of any word to that effect implicating the CIDG personnel particularly members of 9RCIDU as being responsible or involved in the disappearance of her husband, Engr. Morced Tagitis;

That I am executing this affidavit to contradict and dispute the allegation of Mrs. Tagitis that I told her that the CIDG personnel were involved in the disappearance of her husband.

[38] Id. at 48-52.

[39] TSN, February 11, 2008, p. 43.

[40] Id. at 44-47; rollo, pp. 808-809.

[41] Id. at 810-811.

[42] TSN, February 11, 2008, p. 29.

[43] Id. at 31-32.

[44] Id. at 32-33.

[45] Id. at 33-34.

[46] Id. at 36.

[47] Id. at 41.

[48] TSN, January 28, 2008, pp. 45-46.

[49] Id. at 59.

[50] Id. at 61-63.

[51] Id. at 80-81. Paragraph 13 of Prof. Matlis January 26, 2008 affidavit states:

 

13. Contrary to the contents of the affidavit I signed on January 4, 2008, it was not I who said that Brother Engr.[sic] Morced converted the money that were entrusted and deposited to be [sic] said institution he was working with, by means of deceitful performance, grave abuse of trust and confidence, misappropriate, misapply and convert the same to his own personal and [sic] benefits (Paragraph 6 of January 4, 2008 Affidavit) and it was not also I who said: That, I am appearing before the competent authority in order to reveal the truth of facts that Engr. [sic] Morced Tagitis, have reportedly taken and carried away the deposited above mentioned IDB Scholarship Fund who was [sic] entrusted to his own personal account.

[52] Id. at 81.

[53] Id. at 74-76. As read by Prof. Matli in his January 28, 2008 cross-examination, the e-mail stated:

To: Nuraya Lackian

CC: Abdulrahman R.T. Linzag

Subject: Re: Financial Problem (Refund and Stipend)

From: Salam@isdb.org

Date: Tue, 27 November 2007

 

Br. Tahirodin Benzar A. Ampatuan

GEN. COORDINATOR

IDB Scholarship Programme in Philippines

 

Assalamo Alaikum

 

Thanks for your below mail.

 

Could you please, in coordination and cooperation with Br. Hj. Abdul Raman R.T. Linzag, personally visit Br. Engr. Morceds office and try to find/locate documents related with the Scholarship Programme and, if found, please try to solve these problems, i.e.,

 

-          Did or how may students get their monthly stipends and where are other bank drafts to be delivered to them (Br. Morceds account has no amount left in his concern)

-          What about stipends for new students (26 new intake in 2007), which we also transferred to Br. Morced [sic] account.

 

Thanks for your kind cooperation and closely follow-up on this subject.

 

Regards,

Saeed Zafar

[54] Id. at 1-82.

[55] Id. at 96-97.

[56] Id. at 98-99.

[57] TSN, February 11, 2008, p. 48.

[58] Id. at 53-56.

[59] Id. at 56.

[60] Id. at 57-58.

[61] Id. at 61-62.

[62] Id. at 63.

[63] Id. at 68.

[64] Id. at 70.

[65] Id. at 85.

[66] Id. at 88.

[67] Sworn Affidavit of Col. Pante dated February 6, 2008; rollo, p. 775.

[68] Id.

[69] TSN, February 11, 2008, p. 99.

[70] Supra note 66.

[71] Supra note 2.

[72] Declaration on the Protection of all Persons from Enforced Disappearance, G.A. Res 47/133 3, U.N. Doc. A/RES/47/133 (December 18, 1992).

[73] Rollo, pp. 129-131.

[74] Id. at 13-105.

[75] Section 5, Rule on the Writ of Amparo.

[76] Section 1, Rule 8 of the Rules of Court provides:

Section 1. In General. Every pleading shall contain in a methodical and logical form, a plain, concise and direct statement of the ultimate facts on which the party pleading relies for his claim or defense, as the case may be, omitting the statement of mere evidentiary facts.

 

[77] Supra note 9.

[78] The Rule on the Writ of Amparo: Annotation, p. 52.

[79] Id. Section 17 of the Rule on the Writ of Amparo pertinently states that [t]he 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.

[80] Supra note 9.

[81] Supra note 78.

[82] Brian Finucane, Enforced Disappearance as a Crime under International Law: A Neglected Origins in the Laws of War, 35 Yale Journal of International Law (June 28, 2009) 6, available at < http://ssrn.com/abstract=1427062> (last visited November 12, 2009).

[83] Christos Pourgourides, Enforced Disappearances, Council of Europe-Parliamentary Assembly, Doc. 10679, September 19, 2005, http://assembly.coe.int/Main.asp?link=/Documents/Working Docs/Doc05/EDOC10679.htm (last visited November 12, 2009). The aim of the secret arrest and detention prescribed by the Night and Fog Decree was twofold. First, an individual was to be removed from the protection of law. Second and more importantly, secret arrest and detention served as a form of general deterrence, achieved through the intimidation and anxiety caused by the persistent uncertainty of the missing persons family. By terrorizing the occupied populations of Western Europe through a program of enforced disappearance, Hitler hoped to suppress resistance. Id. at 8.

[84] Operation Condor was a campaign of political repressions involving assassination and intelligence operations officially implemented in 1975 by the governments of the Southern Cone of South America. The program aimed to eradicate alleged socialist/communist influence and ideas and to control active or potential opposition movements against the governments. Due to its clandestine nature, the precise number of deaths directly attributable to Operation Condor will likely never be known, but it is reported to have caused over sixty thousand victims, possibly even more. Condor's key members were the governments in Argentina, Chile, Uruguay, Paraguay, Bolivia and Brazil, with Ecuador and Peru joining later in more peripheral roles. Operation Condor, http://en.wikipedia.org/wiki/Operation_Condor (last visited November 12, 2009).

[85] The Dirty War refers to the state-sponsored violence against Argentine citizenry and left-wing guerrillas from roughly 1976 to 1983 carried out primarily by Jorge Rafael Videla's military government. The exact chronology of the repression is still debated, as trade unionists were targeted for assassination as early as 1973; Isabel Martnez de Pern's "annihilation decrees" of 1975, during Operativo Independencia, have also been suggested as the origin of The Dirty War. The Dirty War, http://en.wikepedia.org/wiki/Dirty_War (last visited November 12, 2009).

[86] Human rights organizations first coined the term "disappeared" ("desaparecido") in 1966, during secret government crackdowns on political opponents in Guatemala, with systematic documentation of disappearances developing through the mid 1970s. See Wasana Punyasena, The Faade of Accountability: Disappearances in Sri Lanka, 23 B.C. Third World L.J. 115,117 (Winter 2003) citing Amnesty International, Disappearances and Political Killings: Human Rights Crisis of the 1990s, A Manual for Action, 13 (1994).

[87] Cited in Diana Grace L. Uy, The Problem of Enforced Disappearances: Examining the Writs of Habeas Corpus, Amparo and Habeas Data (2009), p. 8 (unpublished J.D. thesis, Ateneo de Manila University, on file with the Professional Schools Library, Ateneo de Manila University) citing Ibon Foundation, Inc., Stop the Killings, Abductions, and Involuntary or Enforced Disappearances in the Philippines, 39 (2007).

[88] Id. at 14, citing Amnesty International USA, Disappearances: A Workbook, p. 91 (1981).

[89] Id.

[90] Id. at 14-15.

[91] Established by resolution 20 (XXXVI) of 29 February 1980 of the Commission on Human Rights, the Working Group on Enforced or Involuntary Disappearances was created with the basic mandate to assist relatives to ascertain the fate and whereabouts of their disappeared family members. The Working Group examines the reports of disappearances received from relatives of disappeared persons or human rights organizations acting on their behalf and transmits individual cases to the Governments concerned requesting them to carry out investigations and inform the Working Group of the results. See Enforced or Involuntary Disappearances, Office of the United Nations High Commissioner for Human Rights Fact Sheet No. 6/Rev.3, pp. 9-10 (2009), available at http://www.unhcr.org/refworld/category,REFERENCE,OHCHR,THEMREPORT,,4794774bd,0.html (last visited November 12, 2009).

[92] See Report of the Working Group on Enforced or Involuntary Disappearance, A/HRC/10/9, February 6, 2009, available at http://www.ohchr.org/english/issues/disappear/docs/A.HRC.10.9.pdf (last visited November 12, 2009).

[93] Section 1, Rule on the Writ of Amparo.

[94] Felipe Enrique M. Gozon, Jr. & Theoben Jerdan C. Orosa, Watching the Watchers: A Look into Drafting of the Writ of Amparo, 52 ATENEO L.J. 665,675 (2007). The Committee, in considering a definition for the concept of enforced disappearance, noted several international instruments such as the Declaration on the Protection of All Persons from Enforced Disappearance and the International Convention for the Protection of All Persons from Enforced Disappearance.

[95] Id.

[96]See House Bill No. 00326 entitled, An Act Defining and Penalizing Enforced or Involuntary Disappearance and for Other Purposes, filed by Representative Edcel Lagman on July 2, 2007 and House Bill 2263 entitled, An Act Defining and Penalizing the Crime of Enforced or Involuntary Disappearance filed by Representative Satur Ocampo et al.

[97]See Senate Bill No. 1307 entitled, An Act Defining and Penalizing Enforced or Involuntary Disappearance and for Other Purposes, filed by Senator Francis Escudero on July 24, 2007 and Senate Bill No. 2107 entitled, Enforced or Involuntary Disappearance Act of 2008, filed by Senator Miriam Defensor Santiago on March 4, 2008.

[98] Supra note 94, at 681.

[99] Perpetrators of enforced disappearances may be penalized for the crime of arbitrary detention under Article 124 of the Revised Penal Code or kidnapping and serious illegal detention under Article 267 of the Revised Penal Code. See supra note 87, at 16.

[100] CONSTITUTION, Article VIII, Section 5.

[101] Supra note 91, at 1.

[102] Supra note 86.

[103]A/RES/133, 20 December 1997, available at http://www.un.org./documents/ga/res/33/ares335173.pdf (last visited November 12, 2009).

[104] Supra note 72.

[105] G.A. Res. 61/177, UN Doc. A/RES/61/177 (December 20, 2006).

[106] See Susan McCrory, The International Convention for the Protection of All Persons from Enforced Disappearances, 7 Hum. Rts. L. Rev. 545,547 (2007). Unlike the Declaration, the Convention is a legally binding instrument for the states to ratify it. The Convention shall enter into force after ratification by 20 state parties. As of this writing, there are already eighty-one (81) state signatories and only sixteen (16) of those states have ratified the Convention. Currently, the state parties to the Convention are only Albania, Argentina, Bolivia, Cuba, Ecuador, France, Germany, Honduras, Japan, Kazakhstan, Mali, Mexico, Nigeria, Senegal, Spain and Uruguay. See Status of the International Convention for the Protection of All Persons from Enforced Disappearance at http://treaties.un.org/pages/ViewDetails.aspx?src=TREATY&mtdsg-ho=iv-168&chapter=4&lang=en (last visited November 12, 2009). At present, the Philippines is neither a signatory nor a state party to the Convention.

[107] Article 1, 1 of the Convention states that [n]o one shall be subjected to enforced disappearance.

[108] A non-derogable right is a right that may not be restricted or suspended, even in times of war or other public emergency (i.e., the right to life and the right to be free from torture); supra note 91.

[109] Article 4 of the Convention states that [e]ach State Party shall take the necessary measures to ensure that enforced disappearance constitutes an offence under its criminal law.

[110] See Preamble, 8 of the Convention that affirms the right of any victim to know the truth about the circumstances of an enforced disappearance and the fate of the disappeared person, and the right to freedom to seek, receive and impart information to this end.

[111] Supra note 87, at 13. Article 8 of the Convention states that [a] State Party which applies a statute of limitations in respect of enforced disappearance shall take the necessary measures to ensure that the term of limitation for criminal proceedings: (a) Is of long duration and is proportionate to the extreme seriousness of this offence; (b) Commences from the moment when the offence of enforced disappearance ceases, taking into account its continuous nature.

[112] Article 55 of the UN Charter states that: [w]ith a view to the creation of conditions of stability and well-being which are necessary for peaceful and friendly relations among nations the United Nations shall promote universal respect for, and observance of, human rights and fundamental freedoms for all without distinctions as to race, sex, language or religion. Article 55 states further: [a]ll members pledge themselves to take joint and separate action in cooperation with the Organization for the achievement of the purposes set forth in Article 55.

[113] See Filartiga v. Pena-Irala, 630 F.2d 876 (2d Cir. 1980).

[114] Article 1, 1, Declaration on the Protection of All Persons from Enforced Disappearance; supra note 72.

[115] CONSTITUTION, Article II, Section 2 states:

Section. 2. The Philippines renounces war as an instrument of national policy, adopts the generally accepted principles of international law as part of the law of the land and adheres to the policy of peace, equality, justice, freedom, cooperation, and amity with all nations. [Emphasis supplied]

[116] G.R. No. 173034, October 9, 2007, 535 SCRA 265, 289.

[117] Id. at 290 citing Mijares v. Ranada, G.R. No. 139325, April 12, 2005, 455 SCRA 397.

[118] Ian Brownlie, Principles of Public International Law, 6th ed., p. 5.

[119] Id. at 6.

[120] Joaquin G. Bernas, SJ, An Introduction to Public International Law, 1st ed., p. 8.

[121] Aloysius P. Llamzon, The Generally Accepted Principles of International Law as Philippine Law: Towards a Structurally Consistent Use of Customary International Law in Philippine Courts, 47 ATENEO L.J. 243, 370 (2002).

[122] Supra note 83.

[123] Article 1, 1 of the Inter-American Convention on Enforced Disappearances. Article II of the Inter-American Convention defined enforced disappearance as the act of depriving a person or persons of his or her freedom, in whatever way, perpetrated by agents of the state or by persons or groups persons acting with the authorization, support, or acquiescence of the state, followed by an absence of information or a refusal to acknowledge that deprivation of freedom, or to give information on the whereabouts of that person, thereby impeding his or her recourse to the applicable remedies and procedural guarantees.

[124] Supra note 83.

[125] See Judgment of the Supreme Court of Nepal in Writ No. 3575, 100, 104, 323, 500, 45, 41, 155, 162, 164, 167, 97, 110, 111, 142, 211, 250, 223, 262, 378, 418, 485, 617, 632, 635, 54(0002) 0004, 2588/0038, June 1, 2007.

[126] 27 Eur. H.R. Rep. 373 (1998).

[127] Supra note 83.

[128] The Foreign Relations Law of the United States.

[129] American Law Institute, Restatement of the Law, the Third, the Foreign Relations Law of the United States, 1987, Vol. 2, 702.

[130] 630 F.2d 876 (2d Cir. 1980).

[131] General Comment No. 31 [80], 18, The Nature of the General Legal Obligation Imposed on States Parties to the Covenant, CCPR/C/21/Rev.1/Add.13., adopted on March 29, 2004.

[132] Under Article 7 (1) of the Rome Statute, enforced disappearance, the systematic practice of which can be a crime against humanity, is the arrest, detention or abduction of persons by, or with the authorization, support or acquiescence of, a State or a political organization, followed by a refusal to acknowledge that deprivation of freedom or to give information on the fate or whereabouts of those persons, with the intention of removing them from the protection of the law for a prolonged period of time. See Joan Lou P. Gamboa, Creative Rule-Making In Response To Deficiencies of Existing Remedies, Vol. LII, U.S.T. LAW REV, at 57 (2007-2008).

[133] Working Group on Enforced or Involuntary Disappearance General Comment, Enforced Disappearance as a Crime Against Humanity, 12, p. 2.

[134] Id.

[135] Supra note 83. See Article 7 (i) of the UK International Criminal Court Act 2001 which states that [f]or the purpose of this Statute crime against humanity means any of the following acts when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack: .xxx(i) Enforced disappearance of persons.

[136] Supra note 91, at 3. Enforced disappearances can also involve serious breaches of international instruments that are not conventions such as:

1) The Body of Principals for the Protection of All Persons under Any Form of Detention or Imprisonment;

2) The Code of Conduct for Law Enforcement Officials, the Standard Minimum Rules for the Treatment of Prisoners;

3) The Principles on the Effective Prevention and Investigation of Extra-Legal, Arbitrary and Summary Executions and

4) The Declaration on the Protection of All Persons from Enforced Disappearances. Id.

 

[137] Supra note 131.

[138] Id.

[139] G.R. No. 180906, October 7, 2008, 568 SCRA 1, 57-58.

[140] Kurt v. Turkey (1999) 27 E.H.R.R. 373.

[141]Irum Taqi, Adjudicating Disappearance Cases in Turkey, An Argument for Adopting the Inter-American Court of Human Rights Approach, 24 Fordham Int'l L.J. 940, 945-946 (2001).

[142] Juan E. Mendez & Jose Miguel Vivanco, Disappearances and the Inter-American Court: Reflections on a Litigation Experience, 13 Hamline L. Rev. 507 (1990).

[143] Supra note 141.

[144] Supra note 139.

[145] Supra note 141.

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

[147] Supra note 142, at 557.

[148] Supra note 141.

[149] Supra note 142, at 509.

[150] Id.

[151] 69 Phil. 635, 643 (1940), citing Consolidated Edison Co. v. National Labor Relations Board, 59 S. Ct. 206, 83 Law. Ed. No. 4, Adv. Op., p. 131.

[152] Supra note 139.

[153] Supra note 146.

[154] The novel, two-step process involves: First, a complainant must prove that the government engaged in a systemic practice of disappearances. Second, the complainant must establish a link between that practice and the individual case. Once the complainant has satisfied both prongs to the requisite standard of proof, the burden of proof shifts to the government to refute the allegations. If the government fails to disprove the allegations, the IACHR could presume government liability for the disappearance. See Irum Taqi, Adjudicating Disappearance Cases in Turkey, An Argument for Adopting the Inter-American Court of Human Rights Approach, 24 Fordham Int'l L.J. 940 (2001).

 

[155] The substance of Zenaidas testimony as found by the IACHR:

107. According to the testimony of his sister, eyewitnesses to the kidnapping of Manfredo Velsquez told her that he was detained on September 12, 1981, between 4:30 and 5:00 p.m., in a parking lot in downtown Tegucigalpa by seven heavily-armed men dressed in civilian clothes (one of them being First Sgt. Jos Isaas Vilorio ), who used a white Ford without license plates ( testimony of Zenaida Velsquez. See also testimony of Ramn Custodio Lpez).

108. This witness informed the Court that Col. Leonidas Torres Arias, who had been head of Honduran military intelligence, announced in a press conference in Mexico City that Manfredo Velsquez was kidnapped by a special squadron commanded by Capt. Alexander Hernndez, who was carrying out the direct orders of General Gustavo Alvarez Martnez (testimony of Zenaida Velsquez ).

[156] Gobind Singh Sethi, The European Court of Human Rights Jurisprudence on Issues of Enforced Disappearances, 8 NO. 3 Hum. Rts. Brief 29 (2001).

 

[157] A.M. No. 00-4-07-SC, December 15, 2000.

[158] Section 28 of the Rule on Examination of a Child Witness states:

 

SEC. 28. Hearsay exception in child abuse cases. A statement made by a child describing any act or attempted act of child abuse, not otherwise admissible under the hearsay rule, may be admitted in evidence in any criminal or non-criminal proceeding subject to the following rules:

 

(a)                      Before such hearsay statement may be admitted, its proponent shall make known to the adverse party the intention to offer such statement and its particulars to provide him a fair opportunity to object. If the child is available, the court shall, upon motion of the adverse party, require the child to be present at the presentation of the hearsay statement for cross-examination by the adverse party. When the child is unavailable, the fact of such circumstance must be proved by the proponent.

(b)                      In ruling on the admissibility of such hearsay statement, the court shall consider the time, content, and circumstances thereof which provide sufficient indicia of reliability. It shall consider the following factors:

 

(1)     Whether there is a motive to lie;

(2)     The general character of the declarant child;

(3)     Whether more than one person heard the statement;

(4)     Whether the statement was spontaneous;

(5)     The timing of the statement and the relationship between the declarant child and witness;

(6)     Cross-examination could not show the lack of knowledge of the declarant child;

(7)     The possibility of faulty recollection of the declarant child is remote; and

(8)     The circumstances surrounding the statement are such that there is no reason to suppose the declarant child misrepresented the involvement of the accused. [Emphasis supplied]

[159] Article 2 of the International Convention for the Protection of All Persons from Enforced Disappearance.

[160] Susan McCrory, The International Convention For the Protection of All Persons from Enforced Disappearances, 7 Hum. Rts. L. Rev. 545 (2007).

[161] TSN, January 7, 2008, pp. 23-24.

[162] TSN, January 17, 2008, pp. 48-50.

[163] Id. at 52.

[164] Id. at 66.

[165] TSN, February 11, 2008, pp. 32-35.

[166] Id. at 36.

[167] Supra note 60.

[168] People v. Modelo, L- 29144, October 30, 1970, 35 SCRA 639, 643.

[169] People v. Vinas, L-21756, October 28, 1968, 25 SCRA 682, 686.

[170] People v. Alviar, L-32276, September 12, 1974, 59 SCRA 136, 153-154.

[171] Section 3 of Rule 131 of the Rules of Court provides:

The following presumptions are satisfactory if uncontradicted, but may be contradicted and overcome by other evidence:

x x x x

(e) That evidence willfully suppressed would be adversed if produced.

See Metrobank & Trust Company v. Court of Appeals, G.R. No. 122899, June 8, 2000, 333 SCRA 212, 219-220; Manila Bay Club Corporation v. Court of Appeals, 249 SCRA 303, 306 (1995).

[172] See Rules of Court, Rule 130, Section 36.

[173] Supra note 104.

[174] (23531/94) [2000] ECHR 221 (13 June 2000).

[175] An Act Establishing the Philippine National Police Under a Reorganized Department of the Interior and Local Government and for Other Purposes.

[176] Supra note 66.

[177] See CIDG Profile, available at: http://www.pnp.gov.ph/about/content/offices/central/cidg/content/cidg.html (last visited November 12, 2009).

sited November 12, 2009).