. 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 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.

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 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. 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 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.

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 to generally 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 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.

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.