Razon v.

Tagitis The Incorporation Clause

NOTE: CASE IS VERY LONG, RELEVANT PROVISION OF INCORPORATION CLAUSE IS PLACED ON TOP SUMMARY: The incorporation method applies when, by mere constitutional declaration, international law is deemed to have the force of domestic law. In this case, 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. BINDING EFFECT OF UN ACTION ON THE PHILIPPINES 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. 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." 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 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] In the recent case of Pharmaceutical and Health Care Association of the Philippines v. Duque III,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. [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 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.Sometimes referred to as "evidence" of international law, 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. 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.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." 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 InterAmerican Convention. 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

Razon v. Tagitis The Incorporation Clause

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. 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,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." 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. 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, 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, 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. 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. 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. 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. 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 IN RELATION TO THIS CASE These rulings (based from the case) 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.

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

Razon v. Tagitis The Incorporation Clause

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 and even sent a text message to the latters Manila-based secretary, who advised Kunnong to simply wait for Tagitis return. 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. 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 dated April 9, 2008. Aggrieved, the petitioners filed a petition for review with the Supreme Court.

PERTINENT ISSUES: 1. Whether or not the requirement that the pleader must state the ultimate facts, i.e. complete in every detail in stating the threatened or actual violation of a victims rights, is indispensable in an amparo petition. 2. Whether or not the presentation of substantial evidence by the petitioner to prove her allegations is sufficient for the court to grant the privilege of the writ. 3. Whether or not the writ of amparo determines guilt nor pinpoint criminal culpability for the alleged enforced disappearance of the subject of the petition for the writ. ANSWERS: 1. No. However, it must contain 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. 2. Yes. 3. No. SUPREME COURT RULINGS: 1. REQUIREMENTS IN AN AMPARO PETITION The requirement that the pleader must state the ultimate facts must be read in light of the nature and purpose of the proceeding, which addresses a situation of uncertainty 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. 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, lib erty 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.

Razon v. Tagitis The Incorporation Clause

2. EVIDENCE REQUIRED IN AN AMPARO PETITION Burden of proof of Amparo petitioner [T]he 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. Substantial evidence required in amparo proceedings The [characteristics of amparo proceedings] 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 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. 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. 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. Minor inconsistencies in the testimony should not affect the credibility of the witness As a rule, minor inconsistencies such as these indicate truthfulness rather than prevarication 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. 3. ENFORCED DISAPPEARANCES in relation to THE WRIT OF AMPARO The writ of amparo 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 [The writ of amparo is] a protective remedy against violations or threats of violation against the rights to life, liberty and security. 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. 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 [T]he 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 (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.

Razon v. Tagitis The Incorporation Clause

The concept of enforced disappearances is neither defined nor penalized in this jurisdiction The Amparo Rule expressly provides that the writ shall cover extralegal killings and enforced disappearances or threats thereof. 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: x x x In the end, the Committee took cognizance of several bills filed in the House of Representatives and in the Senate 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. 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. 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. Source of the power of the Supreme Court to act on extrajudicial killings and enforced disappearances 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, 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. DISPOSITIVE: The Supreme Court affirmed the decision of the Court of Appeals dated March 7, 2008 under the following terms: 1. Recognition that the disappearance of Engineer Morced N. Tagitis is an enforced disappearance covered by the Rule on the Writ of Amparo; 2. 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; 3. Confirmation of the validity of the Writ of Amparo the Court of Appeals issued; 4. 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; 5. 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; 6. 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; 7. 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; 8. 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; The abovementioned directives and those of the Court of Appeals made pursuant to this Decision were given to, and were 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 the Supreme 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, the aforementioned 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.

Razon v. Tagitis The Incorporation Clause

The Supreme Court likewise affirmed 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. NOTE:

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