. AVELINO RAZON VS. MARY JEAN TAGITIS, December 9, 2009

Facts:

Engineer Morced N. Tagitis (Tagitis), a consultant for the World Bank and the Senior Honorary Counselor for the Islamic Development Bank (IDB) Scholarship Programme, together with Arsimin Kunnong (Kunnong), an IDB scholar, 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. Kunnong looked for Tagitis.

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. More than a month later, or on December 28, 2007, the respondent, May Jean Tagitis, through her attorney-in-fact, filed a Petition for the Writ of Amparo (petition) 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), with the Court of Appeals (CA). On the same day, the CA immediately issued the Writ of Amparo and set the case for hearing on January 7, 2008.

On March 7, 2008, the CA issued its decision 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. 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. Hence, the CA extended the privilege of the writ to Tagitis and his family, and directed the petitioners 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.

Issue:

Does Tagitis fall on International Law concept of enforced disappearance and if it is binding in the Philippines?

Held:

Enforced disappearanceis 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. The Convention is the first universal human rights instrument to assert that there is a right not to be subject to enforced disappearance and that this right is non-derogable. It provides that no one shall be subjected to enforced disappearance under any circumstances, be it a state of war, internal political instability, or any other public emergency.It obliges State Parties to codify enforced disappearance as an offense punishable with appropriate penalties under their criminal law. It also recognizes the right of relatives of the disappeared persons and of the society as a whole to know the truth on the fate and whereabouts of the disappeared and on the progress and results of the investigation Lastly, it classifies enforced disappearance as a continuing offense, such that statutes of limitations shall not apply until the fate and whereabouts of the victim are established.

To date, the Philippines hasneither signed nor ratifiedthe 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 onAmparocases, by the reality that the Philippines is a member of the UN, bound by its Charter and by the various conventions we signed and ratified, particularly the conventions touching on humans rights.Under the UN Charter, the Philippines pledged to promote universal respect for, and observance of, human rights and fundamental freedoms for all without distinctions as to race, sex, language or religion. Although no universal agreement has been reached on the precise extent of the human rights and fundamental freedoms guaranteed to all by the Charter, it was the UN itself that issued the Declaration on enforced disappearance, and this Declaration states: Any act of enforced disappearance is anoffence to dignity.It is condemned as adenial 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 Rightsand reaffirmed and developed in international instruments in this field. 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 togenerally accepted principles of international law as part of the law of the land. [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 thosecustomary rules accepted as bindingresult from the combination [of] two elements: the established, widespread, and consistentpractice on the part of States; and apsychological element known as theopinion jurissive necessitates(opinion as to law or necessity). Implicit in the latter element is abelief that the practice in question is rendered obligatory by the existence of a rule of law requiring it.While the Philippines is not yetformallybound 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 thatenforced disappearance as a State practice has been repudiated by the international community, so that the ban on it is now agenerally 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.