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Razon v. TagitisDecember 3, 2009

BrionPaolo Q. Bernardo

If you can, please go beyond the summary-doctrine boxes; especially so you understand the ratio of the Court. Apologies for the delay AND length; as for the length, I omitted a lot of facts I deemed irrelevant. Lastly, please

see the dispositive.

SUMMARY: Engr. Morced N. Tagitis was last seen in Jolo, Sulu. His disappearance was reported to the Jolo Police Station. It was unacted upon for a month and hencee Mary B. Tagitis (Tagitis), Engr. Tagitis's wife, filed a Petition for the Writ of Amparo with the Court of Appeals against certain members of the the PNP.

The CA issued the Writ of Amparo.

The PNP members appealed the decision of the CA to the Supreme Court. They mainly dispute:

1. the sufficiency in form and substance of the Amparo petition filed before the CA;

2. the sufficiency of the legal remedies the Tagitis took before petitioning for the writ;

3. the finding that the rights to life, liberty and security of Tagitis had been violated;

4. the sufficiency of evidence supporting the conclusion that Tagitis was abducted;

5. the conclusion that the CIDG Zamboanga was responsible for the abduction; and,

6. generally, the ruling that the respondent discharged the burden of proving the allegations of the petition by substantial evidence

DOCTRINE: On the test for the sufficiency of a petition for writ of amparo: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 one filing the petition under the circumstances, WHILE presenting a cause of action showing a violation of the victim’s rights to life, liberty and security through State or private party action.

On whether enforced disappearance is a proper ground for a writ of amparo:The Amparo Rule expressly provides that the "writ shall cover extralegal killings and enforced disappearances or threats thereof.

However, while the Rule covers "enforced disappearances" this concept is neither defined nor penalized in this jurisdiction.

However, this not a stumbling block that will prevent the issuance of a writ of amparo, because 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.

Furthermore, the Court has surveyed international law and states 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 should be considered a part of the law of the land, and which should act upon to the extent already allowed under our laws and the international conventions that bind us.

On the elements of an enforced disappearance:Under the definition in the UN Convention, the elements that constitute enforced disappearance are essentially fourfold:

i. arrest, detention, abduction or any form of deprivation of liberty;

ii. carried out by agents of the State or persons or groups of persons acting with the authorization, support or acquiescence of the State;

iii. followed by a refusal to acknowledge the detention, or a concealment of the fate of the disappeared person; and

iv. placement of the disappeared person outside the protection of the law.

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On relaxing the general rules of evidence in amparo proceedings:To give full meaning to our Constitution and the rights it protects, the Court declares that courts in amparo proceedings should at least take a close look at the available evidence to determine the correct import of every piece of evidence; and this should include those usually considered inadmissible under the general rules of evidence

FACTS: Engr. Morced N. Tagitis is a consultant for the World Bank and the Senior Honorary Counselor for the Islamic Development Bank (IDB) Scholarship Programme

He was last seen in Jolo, Sulu.

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.

More than a month later , the Mary B. Tagitis (Tagitis), Engr. Tagitis's wife, filed a Petition for the Writ of Amparo (petition) with the Court of Appeals (CA).

The petition was directed against certain members of the Armed Forces of the Philippines (AFP) and the Philippine National Police (PNP):

Lt. Gen. Alexander Yano, Commanding General, Philippine Army; Gen. Avelino I. Razon, Chief, 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].

The petition went on to state:

Soon after the Tagitis 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

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.

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;

Information from persons in the military who do not want to be identified stated that Engr. Tagitis is in the hands of the uniformed men; and according to reliable information received by Tagitis, 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.

Tagitis filed her complaint with the PNP Police Station in the ARMM in Cotobato and in Jolo, seeking their help to find her husband, but Tagitis's request and pleadings failed to produce any positive results.

The unexplained uncooperative behavior of the [petitioners] to Tagitis's 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 Engr. Tagitis.

Tagitis has exhausted all administrative avenues and remedies but to no avail, and under the circumstances, Tagitis 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 thesubject’s human and constitutional rights, except the issuance of a WRIT OF AMPARO.

On the same day the petition was filed, the CA immediately issued the Writ of Amparo. The basis for the issuance by the Court of the Writ is as follows:

At the same time, the CA dismissed the petition against the Tagitis 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.

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Thereafter, the CA issued an ALARM WARNING that Task Force Tagitis of the PNP did not appear to be exerting extraordinary efforts in resolving Tagitis’ disappearance.

Petitioners appealed the decision of the CA to the Supreme Court/They mainly dispute:

1. the sufficiency in form and substance of the Amparo petition filed before the CA;2. the sufficiency of the legal remedies the Tagitis took before petitioning for the

writ; 3. the finding that the rights to life, liberty and security of Tagitis had been

violated; t4. the sufficiency of evidence supporting the conclusion that Tagitis was abducted;5. the conclusion that the CIDG Zamboanga was responsible for the abduction;

and, 6. generally, the ruling that the respondent discharged the burden of proving the

allegations of the petition by substantial evidence

ISSUES: 1. WON the petition for writ of amparo filed is sufficent in form and substance;2. WON an enforced disappearance is a proper ground for issuance of a writ of amparo;3. WON there was an enforced disappearance in this case;4. WON the PNP may be held accountable;

RULING:1. Yes;2. Yes;3. Yes;4. Yes;

RATIO: 1. In questioning the sufficiency in form and substance of the respondent’s Amparo

petition, the petitioners contend that the petition violated Section 5(c), (d), and (e) of the Amparo Rule.a. SPECIFICALLY, the petitioners allege that Tagitis failed to, in her petition:

i. allege: any ACT or OMISSION the petitioners committed in violation of Tagitis’

rights to LIFE, LIBERTY, and SECURITY

in a complete manner HOW Tagitis was ABDUCTED, the persons RESPONSIBLE for his DISAPPEARANCE, and the respondent’s SOURCE of INFORMATION;

the abduction was committed at the petitioners’ instructions or with their consent;

any action or inaction attributable to the petitioners in the performance of their duties in the investigation of Tagitis’ disappearance;

ii. implead the members of PNP-CIDG regional office in Zamboanga alleged to have custody over her husband;

iii. attach the affidavits of witnesses to support her accusations;iv. specify what legally available efforts she took to determine the fate or

whereabouts of her husband.b. The petitioners state that a petition for the Writ of Amparo shall be signed and

verified and shall allege, among others, as stated in Section 5 of the Rule on the Writ of Amparo:i. “(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;”

ii. “(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;”

iii. “(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”

c. The framers of the Amparo Rule never intended Section 5(c) of the Rule to be complete in every detail in stating the threatened or actual violation of a victim’s rights. i. As in any other initiatory pleading,the pleader must of course state the ultimate

facts constituting the cause of action, omitting the evidentiary details.ii. 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; hence the one filing the petition 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.

d. 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 one filing the petition under

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the circumstances, WHILE presenting a cause of action showing a violation of the victim’s rights to life, liberty and security through State or private party action.i. The petition should likewise be read in its totality, 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.

e. Applying these rules 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. i. 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.

ii. 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."

f. 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. i. This requirement, however, should not be read as an absolute one that

necessarily leads to the dismissal of the petition if not strictly followed.g. 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.

h. 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. i. The Court rejected the petitioners’ argument that the Tagitis's petition did not

comply with the Section 5(d) requirements of the Amparo Rule, as the petition specifies in its paragraph 11 that Kunnong and his companions immediately reported Tagitis’ disappearance to the police authorities in Jolo, Sulu as soon as they were relatively certain that he indeed had disappeared.

2. 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.

a. The Amparo Rule expressly provides that the "writ shall cover extralegal killings and enforced disappearances or threats thereof."i. However, while the Rule covers "enforced disappearances" this concept is

neither defined nor penalized in this jurisdiction.b. The Court clarifies that it does 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 existing penal laws. i. Its 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.

c. The burden for the public authorities to discharge in these situations, under the Rule on the Writ of Amparo, is twofold. i. 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.

ii. The second is to address the disappearance, so that the life of the victim is preserved and his or her liberty and security restored.

d. The absence of a specific penal law in the Philippines, however, is not a stumbling block for action from this Court through the issuance of a writ of amparo. i. Because 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.

e. Furthermore, the Court has surveyed international law and states 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 should be considered 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.i. This should serve as the backdrop for the Rule on the Writ of Amparo.

f. 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 some material, among others, provide ample guidance and standards on how, through the medium of the Amparo Rule, the Court can provide remedies.

g. The Court also states that certain evidentiary difficulties are present in the Amparo proceeding:i. First, there may be a deliberate concealment of the identities of the direct

perpetrators.

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Experts note that abductors are well organized, armed and usually members of the military or police forces.

ii. Second, deliberate concealment of pertinent evidence of the disappearance; The central piece of evidence in an enforced disappearance-–-i.e., the

corpus delicti or the victim’s body-–-is usually concealed to effectively thwart any investigation

The problem for the victim’s family is the State’s virtual monopoly of access to pertinent evidence.

iii. Third is the element of denial; In many cases, the State authorities deliberately deny that the enforced

disappearance ever occurred. "Deniability" is central to the policy of enforced disappearances, as the

absence of any proven disappearance makes it easier to escape the application of legal standards ensuring the victim’s human rights.

h. The characteristics an amparo proceeding of being summary and of 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) reveals the clear intent of the framers of the Amparo Rule to have it become similar to an administrative proceeding.

i. 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.

3. 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?a. 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."

b. Under this definition, the elements that constitute enforced disappearance are essentially fourfold:i. arrest, detention, abduction or any form of deprivation of liberty;ii. carried out by agents of the State or persons or groups of persons acting

with the authorization, support or acquiescence of the State;iii. followed by a refusal to acknowledge the detention, or a concealment of

the fate of the disappeared person; andiv. placement of the disappeared person outside the protection of the law.

c. There is 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.

d. The undisputed conclusion, however, from all concerned-–-the petitioner, Engr. Tagitis’ colleagues and even the police authorities-–-is that Engr Tagistis disappeared under mysterious circumstances and was never seen again.

e. Likewise, there is no direct evidence showing that operatives of PNP CIDG Zamboanga abducted or arrested Tagitis.

f. Col. Kasim never denied that he met with the Tatigits and her friends, and that he provided them information that Tagitis was being held by police officials. i. However, this is based on the input of an unnamed asset. ii. 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.

iii. 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.

g. To be sure, Tagitis’s and Mrs. Talbin’s testimonies were far from perfect, as the petitioners pointed out.i. 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.

h. To consider also that some pieces of evidence are incompetent and inadmissible evidence of is to state that in the absence of any direct evidence, a court should dismiss the petition. i. An immediate dismissal for this reason would make the Amparo Rule

ineffective, since it cannot allow for the special evidentiary difficulties that are unavoidably present in Amparo situations, particularly in extrajudicial killings and enforced disappearances.

ii. To give full meaning to our Constitution and the rights it protects, the Court declares that courts in amparo proceedings should at least take a close look at the available evidence to determine the correct import of every piece of evidence; and this should include those usually considered inadmissible under the general rules of evidence But the Court must take into account the surrounding circumstances and

the test of reason which shall be used as a basic minimum admissibility requirement.

i. The Court gleans from all these admitted pieces of evidence and developments a consistency in the government’s denial of any complicity in the disappearance of

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Tagitis, which is disrupted only by the report made by Col. Kasim to Tagitis about her husband. Even Col. Kasim, however, eventually denied that he ever made the disclosure that Tagitis was under custodial investigation for complicity in terrorism.

j. Based on these considerations, we conclude that Col. Kasim’s disclosure, made in an unguarded moment, unequivocally point to some government complicity in the disappearance.

4. The PNP and CIDG are accountable because Section 24 of Republic Act No. 6975, otherwise known as the "PNP Law," specifies the PNP as the governmental office with the mandate "to investigate and prevent crimes, effect the arrest of criminal offenders, bring offenders to justice and assist in their prosecution." a. The PNP-CIDG 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."

b. 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).

c. 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 its duties in entertaining the complaints of Tagitis.

d. To fully enforce the Amparo remedy, the Court refers 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.

DISPOSITIVE: The Court:

a. Ruled that the disapperance of Engr. 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 accountable for the enforced disappearance of Engr.Tagitis;

c. Holding the PNP directly responsible for the disclosure of material facts known to the government and to their offices regarding the disappearance of Engr. Morced N. Tagitis, and for the conduct of proper investigations using extraordinary diligence, with the obligation to show investigation results acceptable to this Court;

d. Ordering Col. 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 Engr. Tagitis;

e. Referring this case back to the CA for appropriate proceedings directed at the monitoring of the PNP investigations, actions and the validation of their results;

f. Requiring the CA to submit to this Court a quarterly report with its recommendations,

g. The PNP shall have one (1) full year to undertake their investigations; 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;