GEN. AVELINO I. RAZON, JR.

, Chief, Philippine National Police

(PNP); Police Chief Superintendent RAUL CASTAÑEDA, Chief,
Criminal Investigation and Detection Group (CIDG); Police Senior
Superintendent LEONARDO A. ESPINA, Chief, Police Anti-Crime
and Emergency Response (PACER); and GEN. JOEL R. GOLTIAO,
Regional Director of ARMM, PNP, Petitioners,
vs.
MARY JEAN B. TAGITIS, herein represented by ATTY. FELIPE P.
ARCILLA, JR., Attorney-in-Fact, Respondent.
__________________

G.R. No. 182498

December 3, 2009
Brion, J.
 WRIT
a form of written command in the name of a court or other
legal authority to act, or abstain from acting, in some way.
 WRIT OF AMPARO
Sec. 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.

RULE ON THE WRIT OF AMPARO

PARTIES
 PETITIONERS
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);
GEN. JOEL R. GOLTIAO, Regional Director of ARMM, PNP
RESPONDENTS
MARY JEAN B. TAGITIS
represented by
ATTY. FELIPE P. ARCILLA, JR.
Attorney-in-Fact
FACTS
o A petition for review on certiorari on the decision of the
Court of Appeals confirming 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).

oTagitis is a consultant for the World Bank and the Senior

Honorary Counselor for the Islamic Development Bank (IDB)
Scholarship Programme.

oHe was last seen in Jolo, Sulu. Together with Arsimin

Kunnong (Kunnong), an IDB scholar.
o Tagitis asked Kunnong to buy him a return ticket to
Zamboanga. When the latter returned Tagitis was no longer
around.

oKunnong and Prof. Matli (fellow student counselor at the

IDB) reported Tagitis’ disappearance to thr Jolo Police
Station.

oA month later, the respondent filed a Petition for the Writ of

Amparo with the Court of Appeals.
oRespondent alleged that 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.

oKunnong reported the incident to the local police agency

which failed to address the concern.

oEfforts of the respondent did not produce any positive

results except the information from persons in the military
that Engr. Tagitis is in the hands of the uniformed men;
oThe 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 subject’s human and
constitutional rights, except the issuance of a WRIT OF AMPARO.

oCA issued the Writ of Amparo.

oPetitioners denied any involvement in the disappearance of
Tagitis and argued that the petition was baseless, without
cause of action, at best speculative and was merely based on
hearsay evidence.

oAll petitioners filed their affidavits detailing almost the same

scenarios.
 TASK FORCE TAGITIS
oCA directed Gen. Goltiao – as the officer in command of the area of
disappearance – to form TASK FORCE TAGITIS.
oThe CA subsequently set three hearings to monitor whether TASK
FORCE TAGITIS was exerting "extraordinary efforts" in handling the
disappearance of Tagitis.
oAs 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.
 One possible motive for the disappearance according to the
affidavit of Prof. Matli:
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.

oCA said that this information is premature. They said that

there might be professional jealousy between Tagitis and
Prof. Matli.
 RESPONDENT’S TESTIMONIES
oLt. Col. Ancanan gave her information about the
disappearance of Tagitis.

oCol. Kasim read in front of the respondent and some other

friends a “highly confidential report” that indicated that her
husband met with people belonging to a terrorist group and
was under custodial investigation.
CA RULING
oCA confirmed the disappearance of Tagitis as an
“enforced disappearance” under the United Nations
Declaration on the Protection of All Persons from
Enforced Disappearances.
o 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.

oCA characterized as "too farfetched and unbelievable" and "a

bedlam of speculation" police theories painting the
disappearance as "intentional" on the part of Tagitis.

oPetitioners moved to reconsider the CA decision, but the CA

denied the motion.
SUPREME
COURT
o Rule 45 Appeal

oPetition denied.

oThe Amparo Petition is sufficient in form and

substance.
 Petitioners allege that the respondent failed to:
1) allege any act or omission the petitioners committed in violation of Tagitis’ rights
to life, liberty and security;
2) allege in a complete manner how Tagitis was abducted, the persons responsible
for his disappearance, and the respondent’s source of information;
3) allege that the abduction was committed at the petitioners’ instructions or with
their consent;
4) implead the members of CIDG regional office in Zamboanga alleged to have
custody over her husband;
5) attach the affidavits of witnesses to support her accusations;
6) allege any action or inaction attributable to the petitioners in the performance of
their duties in the investigation of Tagitis’ disappearance; and
7) specify what legally available efforts she took to determine the fate or
whereabouts of her husband.
 Sufficient in Form and
Substance
oThe framers of the Amparo Rule never intended Section 5(c) to be
complete in every detail in stating the threatened or actual violation
of a victim’s rights.
oThe allegations properly pleaded ultimate facts within the pleader’s
knowledge about Tagitis’ disappearance, the participation by agents
of the State in this disappearance, the failure of the State to release
Tagitis or to provide sufficient information about his whereabouts, as
well as the actual violation of his right to liberty. Thus, the petition
cannot be faulted for any failure in its statement of a cause of action.
 The Desaparecidos
oThe phenomenon of enforced disappearance arising from State action
first attracted notice in Adolf Hitler’s Nact und Nebel Erlass or Night
and Fog Decree of December 7, 1941.
oThe Third Reich’s Night and Fog Program, a State policy, was directed
at persons in occupied territories "endangering German security";
they were transported secretly to Germany where they disappeared
without a trace. In order to maximize the desired intimidating effect,
the policy prohibited government officials from providing information
about the fate of these targeted persons
 The Desaparecidos

oIn the mid-1970s, the phenomenon of enforced disappearances

resurfaced in Argentina. Latin American media standardized the term
"disappearance" to describe the phenomenon. The victims of
enforced disappearances were called the "desaparecidos," which
literally means the "disappeared ones.
 The Desaparecidos
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
 ENFORCED
DISAPPEARANCES
 Under Philippine Law
The Amparo Rule expressly provides that the "writ shall cover
extralegal killings and enforced disappearances or threats thereof.“

Although the writ specifically covers "enforced disappearances," this

concept is neither defined nor penalized in this jurisdiction.

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.
 Under Philippine Law

The burden for the public authorities to discharge in these

situations, under the Rule on the Writ of Amparo, is twofold.
oThe 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.
oThe second is to address the disappearance, so that the life of the
victim is preserved and his or her liberty and security restored.
 Under International Law
oFrom the International Law perspective, involuntary or enforced
disappearance is considered a flagrant violation of human rights.
oA double form of torture. 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.
 Under International Law
oUN General Assembly first considered the issue of "Disappeared
Persons" in December 1978. The Resolution expressed the General
Assembly’s deep concern arising from "reports from various parts of
the world relating to enforced or involuntary disappearances," and
requested the "UN Commission on Human Rights to consider the
issue of enforced disappearances with a view to making appropriate
recommendations.
 Under International Law
oIn 1992, UN General Assembly adopted the Declaration on the
Protection of All Persons from Enforced Disappearance (Declaration).
“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.”
 Under International Law
oOn December 20, 2006, the UN General Assembly adopted the
International Convention for the Protection of All Persons from
Enforced Disappearance (Convention). The Convention was opened
for signature in Paris, France on February 6, 2007. Article 2 of the
Convention defined enforced disappearance as follows:
“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.”
 Binding Effect of UN
Action of the Philippines
oTo 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.
oThe 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.
 Binding Effect of UN
Action of the Philippines
oUnder 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.“
oAny 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.
 Binding Effect of UN
Action of the Philippines

oAs 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”.
Pharmaceutical and Health Care Association
of the Philippines v. Duque III

oUnder the 1987 Constitution, international law can become

part of the sphere of domestic law either
by transformation or incorporation.
oThe 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.
 Generally 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.
 Organization of American States
General Assembly

oAdopted the Inter-American Convention on Enforced Disappearance

of Persons in June 1994. State parties undertook under this
Convention "not to practice, permit, or tolerate the forced
disappearance of persons, even in states of emergency or suspension
of individual guarantees."
 European Court of Human Rights

oEuropean Convention on Human Rights has no explicit provision

dealing with the protection against enforced disappearance.
oECHR, however, has applied the Convention in a way that provides
ample protection for the underlying rights affected by enforced
disappearance through the Convention’s Article 2 on the right to life;
Article 3 on the prohibition of torture; Article 5 on the right to liberty
and security; Article 6, paragraph 1 on the right to a fair trial; and
Article 13 on the right to an effective remedy.
oKurt V. Turkey
 United States of America

oStatus of the prohibition on enforced disappearance as part of

customary international law is recognized in the most recent edition
of Restatement of the Law: The Third, which provides that "[a] State
violates international law if, as a matter of State policy, it practices,
encourages, or condones… (3) the murder or causing the
disappearance of individuals.“
oFilartiga v. Pena-Irala
oThese 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."
oUniversal 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."
 International Convention on Civil and
Political Rights
oPhilippines is both a signatory and a State Party
oUN 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.
 1998 Rome Statute

oEstablished International Criminal Court

oCovers enforced disappearances insofar as they are defined as crimes
against humanity
oWhile more than 100 countries have ratified the Rome Statute, the
Philippines is still merely a signatory and has not yet ratified it.
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.
 Secretary of Defense v. Manalo
oAs 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.
oProtection 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.
 Kurt v. Turkey
oECHR found a violation of the right to liberty and security of the
disappeared person when the applicant’s son disappeared after being
taken into custody by Turkish forces in the Kurdish village of Agilli in
November 1993.
oIt further found the applicant (the disappeared person’s mother) to
be a victim of a violation of Article 3, as a result of the silence of the
authorities and the inadequate character of the investigations
undertaken. The ECHR also saw the lack of any meaningful
investigation by the State as a violation of Article 13.
Evidentiary Difficulties
Posed by the Unique
Nature of an Enforced
Disappearance
oThere may be a deliberate concealment of the identities of
the direct perpetrators.
oThere 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.
oDeliberate concealment of pertinent evidence of the
disappearance is a distinct possibility; the central piece of
evidence in an enforced disappearance – i.e., the corpus
delicti or the victim’s body – is usually concealed to
effectively thwart the start of any investigation or the
progress of one that may have begun
oDenial; 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.
oExperience 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.
 Was there an Enforced
Disappearance within the
meaning of this term under
the UN Declaration we have
cited?
 ELEMENTS
(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.
• An immediate dismissal for the reason of inadmissibility of
evidence 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
CONCLUSIONS AND
THE AMPARO
REMEDY
oCol. Kasim’s disclosure, made in an unguarded moment,
unequivocally point to some government complicity in the
disappearance.
oThis kind of fact situation and the conclusion reached are not
without precedent in international enforced disappearance
rulings.
oFollowing 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.
PETITION FOR REVIEW ON
CERTIORARI IS DENIED
FOR LACK OF MERIT.
DECISION OF CA IS
AFFIRMED.