Republic of the
Supreme Court
|
GEN. AVELINO I. RAZON, JR., Chief,
Philippine National Police (PNP); Police Chief Superintendent RAUL CASTAÑEDA,
Chief, Criminal Investigation and Detection Group (CIDG); Police Senior
Superintendent LEONARDO A. ESPINA, Chief, Police Anti-Crime and Emergency
Response (PACER); and GEN. JOEL R. GOLTIAO, Regional Director of ARMM,
PNP, Petitioners, -
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, velasco, JR., NACHURA, leonardo-de castro, brion, peralta, BERSAMIN, DEL
CASTILLO, ABAD, VILLARAMA,
JR., perez, and mendoza, JJ. Promulgated: February 16, 2010 |
x-----------------------------------------------------------------------------------------x
R E S O L U T I O N
BRION, J.:
We resolve in this Resolution the
Motion for Reconsideration filed by the
petitioners -- Gen. Avelino I. Razon, former Chief of the Philippine
National Police (PNP);[1] Gen.
Edgardo M. Doromal, former Chief of the Criminal Investigation and Detection
Group (CIDG), PNP;[2] Police
Senior Superintendent Leonardo A. Espina, former Chief of the Police Anti-Crime
and Emergency Response (PACER), PNP;[3] and Gen.
Joel Goltiao, former Regional Director of the PNP-Autonomous Region of Muslim
Mindanao[4] (petitioners)
-- addressing our Decision of December 3, 2009. This Decision affirmed the Court of Appeals’ (CA) decision of
Our December 3, 2009 Decision was based, among
other considerations, on the finding that Col. Julasirim Ahadin Kasim (Col. Kasim) informed the respondent Mary
Jean Tagitis (respondent) and her friends that her husband had been
under surveillance since January 2007 because an informant notified the
authorities, through a letter, that Tagitis was a liaison for the JI;[5]
that he was “in good hands” and under custodial investigation for
complicity with the JI after he was seen talking to one Omar Patik and a
certain “Santos” of Bulacan, a “Balik Islam” charged with terrorism (Kasim evidence).
We considered Col. Kasim’s information,
together with the consistent denials by government authorities of any
complicity in the disappearance of Tagitis, the dismissive approach of the
police authorities to the report of the disappearance, as well as the haphazard
investigations conducted that did not translate into any meaningful results, to
be indicative of government complicity in the disappearance of Tagitis (for
purposes of the Rule on the Writ of Amparo).
We explained
that although the Kasim evidence was patently hearsay (and was thus incompetent
and inadmissible under our rules of evidence), the unique evidentiary
difficulties posed by enforced disappearance cases compel us to adopt standards
that were appropriate and responsive to the evidentiary difficulties
faced. We noted that while we must
follow the substantial evidence rule, we must also observe flexibility in considering the evidence that we shall take into
account. Thus, we introduced a new
evidentiary standard for Writ of Amparo cases
in this wise:
The fair and proper rule, to our mind, is to consider all
the pieces of evidence adduced in their totality, and to consider any evidence otherwise
inadmissible under our usual rules to be admissible if it is consistent with
the admissible evidence adduced. In
other words, we reduce our rules to the
most basic test of reason – i.e., to the relevance of the evidence to the issue
at hand and its consistency with all the other pieces of adduced evidence, Thus, even hearsay evidence can be admitted
if it satisfies this minimum test. [Emphasis in the original]
We held
further that the Kasim evidence was crucial to the resolution of the present
case for two reasons: first, it
supplied the gaps that were never looked into or clarified by police
investigation; and second, it
qualified a simple missing person report into an enforced disappearance case by
injecting the element of participation by agents of the State and thus brought
into question how the State reacted to the disappearance.
Based on
these considerations, we held that the government in general, through the PNP
and the PNP-CIDG, and in particular, the Chiefs of these organizations, together
with Col. Kasim, were fully accountable[6]
for the enforced disappearance of Tagitis.
Specifically, we held Col. Kasim accountable for his failure to disclose
under oath information relating to the enforced disappearance; for the purpose
of this accountability, we ordered that Col. Kasim be impleaded as a party to
this case. Similarly, we also held the
PNP accountable for the suppression of vital information that Col. Kasim could,
but did not, provide with the same obligation of disclosure that Col. Kasim
carries.
The Motion for Reconsideration
The petitioners cited two
grounds in support of their Motion for Reconsideration.
First, the petitioners argue that there was no sufficient evidence to conclude
that Col. Kasim’s disclosure unequivocally points to some government complicity
in the disappearance of Tagitis.
Specifically, the petitioners contend that this Court erred in unduly
relying on the raw information given to Col. Kasim by a personal intelligence “asset”
without any other evidence to support it.
The petitioners also point out that the Court misapplied its cited cases
(Secretary of Defense v. Manalo,[7] Velasquez Rodriguez v. Honduras,[8] and Timurtas v. Turkey[9]) to support its December 3, 2009
decision; in those cases, more than one
circumstance pointed to the complicity of the government and its agents. The petitioners emphasize that in the present
case, the respondent only presented a “token piece of evidence” that
points to Col. Kasim as the source of information that Tagitis was under
custodial investigation for having been suspected as a “terrorist supporter.”
This, according to the petitioners, cannot be equated to the substantial
evidence required by the Rule on the Writ of Amparo.[10]
Second, the petitioners contend that Col. Kasim’s death renders impossible
compliance with the Court’s directive in its
The Court’s Ruling
We hold that our directive to implead Col. Kasim as a party
to the present case has been rendered moot and academic by his death. Nevertheless, we resolve to deny the
petitioners’ motion for reconsideration for lack of merit.
Paragraph (e) of the dispositive portion of
our
e. Ordering Colonel Julasirim Ahadin Kasim impleaded in this case and holding him accountable with the obligation to disclose information known to him and to his “assets” in relation with the enforced disappearance of Engineer Morced N. Tagitis;
Undisputably, this
directive can no longer be enforced, and has been rendered moot and academic,
given Col. Kasim's demise. His intervening death, however, does not necessarily
signify the loss of the information Col. Kasim may have left behind,
particularly the network of “assets” he utilized while he was in the
service. Intelligence gathering is not an activity conducted in isolation, and
involves an interwoven network of informants existing on the basis of symbiotic
relationships with the police and the military.
It is not farfetched that a resourceful investigator, utilizing the
extraordinary diligence that the Rule on the Writ of Amparo requires,[13]
can still access or reconstruct the information Col. Kasim received from his “asset”
or network of assets during his lifetime.
The extinction of Col.
Kasim’s personal accountability and obligation to disclose material information,
known to him and his assets, does not also erase the burden of disclosure and
investigation that rests with the PNP and the CIDG. Lest this Court be misunderstood, we
reiterate that our holding in our December 3, 2009 Decision that the PNP -- through
the incumbent PNP Chief; and the PNP-CIDG, through its incumbent Chief -- are directly responsible[14] for the
disclosure of material facts known to the government and to their offices
regarding the disappearance of Tagitis; and that the conduct of proper
investigation using extraordinary diligence still subsists. These are
continuing obligations that will not truly be terminated until the enforced
disappearance of the victim, Engr. Morced N. Tagitis, is fully addressed by the
responsible or accountable parties, as we directed in our Decision.
We now turn to the
petitioners’ substantial challenge to the merits of our
We see no merit in the
petitioners’ submitted position that no sufficient evidence exists to support
the conclusion that the Kasim evidence unequivocally points to some government
complicity in the disappearance.
Contrary to the petitioners’ claim that our conclusions only relied on
Col. Kasim’s report, our Decision plainly and pointedly considered other
evidence supporting our conclusion, particularly the consistent
denials by government authorities of any complicity in the disappearance of
Tagitis; the dismissive approach of the police authorities to the report of the
disappearance; and the conduct of haphazard investigations that did not
translate into any meaningful results.
We painstakingly ruled:
To give full meaning to our Constitution and
the rights it protects, we hold that, as in Velasquez,
we should at least take a close look at the available evidence to determine the
correct import of every piece of evidence – even of those usually considered
inadmissible under the general rules of evidence – taking into account the
surrounding circumstances and the test of reason that we can use as basic
minimum admissibility requirement. In
the present case, we should at least determine whether the Kasim evidence
before us is relevant and meaningful to the disappearance of Tagistis and
reasonably consistent with other evidence in the case.
x x x
The Kasim evidence assumes critical
materiality given the dearth of direct evidence on the above aspects of the
case, as it supplies the gaps that were
never looked into and clarified by police investigation. It is the evidence, too, that colors a simple
missing person report into an enforced disappearance case, as it injects the
element of participation by agents of the State and thus brings into question
how the State reacted to the disappearance.
x x x
We
glean from all these pieces of evidence and developments a consistency in the
government’s denial of any complicity in the disappearance of Tagitis,
disrupted only by the report made by Col. Kasim to the respondent at
As the CA found through Task Force Tagitis, the investigation
was at best haphazard since the authorities were looking for a man whose
picture they initially did not even secure. The returns and reports made to the
CA fared no better, as the CIDG efforts themselves were confined to searching
for custodial records of Tagitis in their
various departments and divisions.
To point out the obvious, if the abduction of Tagitis was a “black”
operation because it was unrecorded or officially unauthorized, no record of
custody would ever appear in the CIDG records; Tagitis, too, would not be
detained in the usual police or CIDG detention places. In sum, none of the reports on
record contains any meaningful results or details on the depth and extent of
the investigation made. To be sure,
reports of top police officials indicating the personnel and units they
directed to investigate can never constitute exhaustive and meaningful
investigation, or equal detailed investigative reports of the activities
undertaken to search for Tagitis.
Indisputably, the police authorities from the very beginning failed to
come up to the extraordinary diligence that the Amparo Rule requires. [Emphasis in the original]
Likewise, we see no merit
in the petitioners’ claim that the Kasim evidence does not amount to
substantial evidence required by the Rule on the Writ of Amparo. This is not a new issue; we extensively and thoroughly
considered and resolved it in our
We also cannot agree with
the petitioners’ contention that we misapplied Secretary of Defense v. Manalo,[15] Velasquez Rodriguez v. Honduras,[16] and Timurtas v. Turkey[17] to
support our
At the risk of
repetition, we stress that other pieces of evidence point the way towards our
conclusion, particularly the unfounded and consistent denials by government
authorities of any complicity in the disappearance; the dismissive approach of
the police to the report of the disappearance; and the haphazard handling of
the investigation that did not produce any meaningful results. In cruder but more understandable language,
the run-around given to the respondent and the government responses to the
request for meaningful investigation, considered in the light of the Kasim
evidence, pointed to the conclusion that the Tagitis affair carried a “foul
smell” indicative of government complicity or, at the very least, an attempt
at cover-up and concealment. This is the
situation that the Writ of Amparo
specifically seeks to address.
Manalo, Velasquez Rodriguez and Timurtas, read in proper perspective, fully support our findings
and conclusions in this case.
Manalo is different from Tagitis in terms of their factual settings, as enforced
disappearance was no longer a problem in that case. The enforced disappearance of the brothers
Raymond and Reynaldo Manalo effectively ended when they escaped from captivity
and surfaced, while Tagitis is still
nowhere to be found and remains missing more than two years after his reported
disappearance. An Amparo situation
subsisted in Manalo, however, because
of the continuing threat to the brothers’ right to security; the brothers
claimed that since the persons responsible for their enforced disappearance
were still at large and had not been held accountable, the former were still
under the threat of being once again abducted, kept captive or even killed,
which threat constituted a direct violation of their right to security of
person. In ruling that substantial
evidence existed to support the conclusion that the respondents’ right to
security had been violated, the Court not only considered the respondents’ affidavit
and testimony which positively identified the perpetrators, but also noted other evidence showing the ineffective investigation and protection
on the part of the military. The
Court significantly found that:
Next, the
violation of the right to security as protection by the government. Apart from the failure
of military elements to provide
protection to respondents by themselves perpetrating the abduction, detention,
and torture, they also miserably failed
in conducting an effective investigation of respondents’ abduction as revealed
by the testimony and investigation report of petitioners’ own witness, Lt. Col.
Ruben Jimenez, Provost Marshall of the 7th Infantry Division.
The one-day investigation
conducted by Jimenez was very limited, superficial, and one-sided. He merely relied on the Sworn Statements of the six
implicated members of the CAFGU and civilians whom he met in the investigation
for the first time. He was present at
the investigation when his subordinate Lingad was taking the sworn statements,
but he did not propound a single question to ascertain the veracity of their
statements or their credibility. He did
not call for other witnesses to test the alibis given by the six implicated
persons nor for the family or neighbors of the respondents.
In his affidavit,
petitioner Secretary of National Defense attested that in a Memorandum
Directive dated October 31, 2007, he issued a policy directive addressed to the
AFP Chief of Staff, that the AFP should adopt rules of action in the event the
writ of amparo is issued by a competent court against
any members of the AFP, which should essentially include verification of the
identity of the aggrieved party; recovery and preservation of relevant
evidence; identification of witnesses and securing statements from them;
determination of the cause, manner, location and time of death or
disappearance; identification and apprehension of the person or persons
involved in the death or disappearance; and bringing of the suspected offenders
before a competent court. Petitioner AFP Chief of Staff also submitted his own
affidavit attesting that he received the above directive of respondent
Secretary of National Defense and that acting on this directive, he immediately
caused to be issued a directive to the units of the AFP for the purpose of
establishing the circumstances of the alleged disappearance and the recent
reappearance of the respondents, and undertook to provide results of the
investigations to respondents. To this day, however, almost a year after the
policy directive was issued by petitioner Secretary of National Defense on
Under these circumstances,
there is substantial evidence to warrant the conclusion that there is a
violation of respondents’ right to security as a guarantee of protection by the
government.
[Emphasis supplied][18]
Similarly in Velasquez Rodriguez, the Inter-American Court of Human Rights (IACHR) acknowledged that when the Honduran Government carried out or tolerated enforced disappearances, the police customarily used a distinctive form of kidnapping. Consequently, the IACHR presumed that Velasquez disappeared at the “hands of or with the acquiescence of those officials within the framework of that practice.” Moreover, the IACHR found that negative inferences may be drawn from the fact that the government failed to investigate or to inquire into his disappearance, and thwarted the attempts by the victim’s family to do so; these according to the Court strongly suggested the government’s involvement in the disappearance, even if there was no direct evidence indicating that the government kidnapped Velasquez.[19] The Court thus held:[20]
iii. In the case of Manfredo Velásquez, there were the same type of denials by his captors and the Armed Forces, the same omissions of the latter and of the Government in investigating and revealing his whereabouts, and the same ineffectiveness of the courts where three writs of HABEAS corpus and two criminal complaints were brought ( testimony of Miguel Angel Pavón Salazar, Ramón Custodio López, Zenaida Velásquez, press clippings and documentary evidence ).
h. There is no evidence in the record that Manfredo Velásquez had disappeared in order to join subversive groups, other than a letter from the Mayor of Langue, which contained rumors to that effect. The letter itself shows that the Government associated him with activities it considered a threat to national security. However, the Government did not corroborate the view expressed in the letter with any other evidence. Nor is there any evidence that he was kidnapped by common criminals or other persons unrelated to the practice of disappearances existing at that time."
148. Based upon the above, the Court finds that the following facts have been proven in this proceeding: (1) a practice of disappearances carried out or tolerated by Honduran officials existed between 1981 and 1984; ( 2) Manfredo Velásquez disappeared at the hands of or with the acquiescence of those officials within the framework of that practice; and (3) the Government of Honduras failed to guarantee the human rights affected by that practice.
Finally,
in Timurtas, the European Court of
Human Rights (ECHR) altered the
prevailing jurisprudence by permitting a
lesser evidentiary burden in cases of enforced disappearances. The ECHR dismissed
the need for direct evidence previously held necessary in the leading case
of Kurt v. Turkey,[21] and
instead permitted the use of
circumstantial evidence to establish a violation of the right to life. It stated that “whether the failure on the part of authorities to
provide a plausible explanation as to a detainee’s fate, in the absence of a body, might raise
issues under Article 2 of the Convention (right to life), will depend on the circumstances of the case and, in
particular, on the existence of sufficient circumstantial evidence based on
concrete elements, from which it may be concluded to the requisite standard
of proof that the detainee must be presumed to have died in custody.”[22] The ECHR found that:[23]
Noting that more than six and a half years has gone by since Abdulvahap Timurtas’ apprehension and having regard to all the other circumstances of the case, the Court found that the disappearance of Abdulvahap Timurtas after he had been taken into detention led, in the circumstances of this case, to a presumption that he had died. No explanation having been provided by the Government as to what had happened to him during his detention, the Government was liable for his death and there was a violation of Article 2 of the Convention. [Emphasis supplied]
Significantly (in the context of the
present case), the ECHR also noted
that the inadequacy of the investigation into the disappearance of Timurtas
also constituted a violation of his right to life under Article 2 of the
European Convention on Human Rights.
Thus viewed, common threads that plainly run
in the three cited cases are applicable to the present case. There is the evidence of ineffective
investigation in Manalo and Velasquez Rodriguez, while in all
three was the recognition that the burden of proof must be lowered or relaxed
(either through the use of circumstantial or indirect evidence or even by
logical inference); the requirement for direct evidence to establish that an enforced
disappearance occurred -- as the petitioners effectively suggest -- would
render it extremely difficult, if not impossible, to prove that an individual
has been made to disappear. In these
lights, we emphasized in our December 3, 2009 Decision that while the need for
substantial evidence remains the rule, flexibility must be observed where
appropriate (as the Courts in Velasquez Rodriguez and Timurtas did) for the protection of the precious rights to life, liberty and
security. This flexibility, we noted,
requires that “we should take a close look at the available evidence to
determine the correct import of every piece of evidence – even of those usually
considered inadmissible under the general rules of evidence – taking into
account the surrounding circumstances and the test of reason that we can use as
basic minimum admissibility requirement.” From these perspectives, we see no error
that we should rectify or reconsider.
WHEREFORE,
premises considered, we resolve to GRANT
the motion to declare the inclusion of PS/Supt. Julasirim Ahadin Kasim moot
and academic, but, otherwise, DENY the
petitioners’ motion for reconsideration.
Let this case be remanded to the Court of Appeals for further
proceedings as directed in our Decision of December 3, 2009.
SO ORDERED.
ARTURO
D. BRION
Associate Justice
WE CONCUR:
REYNATO S.
PUNO
Chief Justice
|
ANTONIO T. CARPIO Acting Chief Justice CONCHITA CARPIO MORALES Associate Justice ANTONIO EDUARDO B. NACHURA Associate Justice DIOSDADO M. PERALTA Associate Justice |
RENATO C. CORONA Associate Justice PRESBITERO J. VELASCO, JR. Associate Justice TERESITA J. LEONARDO-DE CASTRO Associate Justice LUCAS P. BERSAMIN Associate Justice |
|
MARIANO
C. DEL CASTILLO ROBERTO A. ABAD Associate Justice
Associate Justice
|
|
MARTIN
S. VILLARAMA, JR.
JOSE P. PEREZ
Associate
Justice Associate Justice
JOSE CATRAL MENDOZA
Associate Justice
CERTIFICATION
REYNATO S.
PUNO
Chief Justice
[1]
General/Police Director General Avelino I. Razon was compulsorily retired from
the PNP service effective
[2] General/Police Director Edgardo M. Doromal
was compulsorily retired from the PNP service effective
[3] Police Senior Superintendent
(now, Police Chief
Superintendent) Leonardo A. Espina
has been reassigned to the OCPNP, specifically, the PNP’s Public Information
Office (PIO), effective
[4] General/Police Chief Superintendent
Joel Goltiao was compulsorily
retired from the PNP service effective
[5] Jema’ah Islamiah.
[6] In our December 3, 2009 ruling, we defined the concept of responsibility and accountability for Writ of Amparo cases as follows: “Responsibility refers to the extent the actors have been established by substantial evidence to have participated in whatever way, by action or omission, in an enforced disappearance, as a measure of remedies this Court shall craft, among them, the directive to file the appropriate criminal and civil cases against the responsible parties in the proper courts. Accountability refers to the measure of remedies that should be addressed to those who exhibited involvement in the enforced disappearance without bringing the level of their complicity to the level of responsibility defined above; or who are imputed with knowledge relating to the enforced disappearance and who carry the burden of disclosure; or those who carry, but have failed to discharge, the burden of extraordinary diligence in the investigation of the enforced disappearance.”
[7] G.R. No. 180906,
[8] I/A Court H.R. Velasquez Rodriguez Case,
Judgment of
[9] (23531/94) [2000] ECHR 221 (
[10] THE RULE ON THE WRIT OF AMPARO, Section 17.
[11]
Annex “A,” Petitioners’ Motion for Reconsideration dated
[12]
Annex “A-1,” Petitioners’ Motion for Reconsideration dated
[13] Supra note 10.
[14] See Supra note 6.
[15] Supra note 7.
[16] Supra note 8.
[17] Supra note 9.
[18] Supra note 7, pp. 62-64.
[19] Gobind Singh Sethi, The European Court of Human Rights Jurisprudence on Issue of Enforced Disappearances, 8 No. 3Hum. Rts. Brief 29 (2001).
[20] Supra note 8.
[21] 27 Eur. H.R. Rep. 373 (1998).
[22] Supra note 19.
[23] Supra note 9.