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Agustin vs Edu 88 SCRA 195

Facts: Justice JBL Reyes filed a petition on behalf of the Anti-Bases

Facts This case is a petition assailing the validity or the

Coalition to compel the issuance of a permit for a rally to be held at

constitutionality of a Letter of Instruction No. 229, issued by

the Luneta and a subsequent march to the U.S. Embassy on Roxas

President Ferdinand E. Marcos, requiring all vehicle owners, users

Boulevard. The petition was filed the day before the scheduled

or drivers to procure early warning devices to be installed a distance

assembly as no action had apparently been taken on the application,

away from such vehicle when it stalls or is disabled. In compliance

although it turned out later that it had been rejected in a letter sent

with such letter of instruction, the Commissioner of the Land

earlier by ordinary mail. The reasons for the denial was the mayors

Transportation Office issued Administrative Order No. 1 directing

fear that the assemblage might be infiltrated by subversive elements

the compliance thereof.

to the prejudice of the public order, and thus the intended rally

This petition alleges that such letter of instruction and subsequent

would violate a city ordinance implementing the provisions of the

administrative order are unlawful and unconstitutional as it violates

Diplomatic Convention requiring the receiving state to afford

the provisions on due process, equal protection of the law and

adequate protection to foreign embassies; hence his suggestion that

undue delegation of police power.

the rally be held at an enclosed place like Rizal Coliseum for better

Issue: Whether or not the Letter of Instruction No. 229 and the
subsequent Administrative Order issued is unconstitutional

Issue: Whether the denial of the issuance and modification of the

permit is meritorious and is guaranteed under Article II, Section 3 of

Ruling: The Supreme Court ruled for the dismissal of the petition.

the Constitution.

The statutes in question are deemed not unconstitutional. These

were definitely in the exercise of police power as such was

Held: The court set aside the denial or the modification of the

established to promote public welfare and public safety. In fact, the

permit sought and order the respondent official to grant it. The

letter of instruction is based on the constitutional provision of

choice of Luneta and U.S. Embassy for a public rally cannot legally

adopting to the generally accepted principles of international law as

objected to in the absence of clear and present danger to life or

part of the law of the land. The letter of instruction mentions, as its

property of the embassy. The Philippines, being a signatory of

premise and basis, the resolutions of the 1968 Vienna Convention on

Vienna Conventions which calls for the protection of the premises of

Road Signs and Signals and the discussions on traffic safety by the

a diplomatic mission, adopts the generally accepted principles of

United Nations - that such letter was issued in consideration of a

international law as part of the law of the land as cited in Article II,

growing number of road accidents due to stalled or parked vehicles

Section 3 of the Constitution.

on the streets and highways.

Pharmaceutical and Health Care Association of the Philippines vs.
The petition itself quoted these two whereas clauses of the assailed

Duque III

Letter of Instruction: [Whereas], the hazards posed by such

(Austria-Martinez, October 9, 2007)

obstructions to traffic have been recognized by international bodies

concerned with traffic safety, the 1968 Vienna Convention on Road

Facts: Executive Order No. 51 (The Milk Code - TMC) was issued by

Signs and Signals and the United Nations Organization (U.N.);

Pres. Aquino on Oct. 28, 1986 by virtue of the legislative powers

[Whereas], the said Vienna Convention, which was ratified by the

granted to her under the Freedom Constitution.

Philippine Government under P.D. No. 207, recommended the


enactment of local legislation for the installation of road safety signs

give effect to Article 11 of the International Code of Marketing of

and devices: * * *: It cannot be disputed then that this Declaration of

Breastmilk Substituttes (ICMBS), a code adopted by the WHA

Principle found in the Constitution possesses relevance: The

(World Health Assembly) in 1981.

Philippines * * * adopts the generally accepted principles of

international law as part of the law of the land, * * *: The 1968

Convention on the Rights of the Child. Art. 24 of the instrument

Vienna Convention on Road Signs and Signals is impressed with

mandates that States should take measure to diminish infant

such a character. It is not for this country to repudiate a commitment

mortality and should ensure that all segments of society are

to which it had pledged its word. The concept of Pacta sunt

informed of the advantages of breastfeeding.

servanda stands in the way of such an attitude, which is, moreover,

at war with the principle of international morality. [Agustin vs. Edu,

the effect that breastfeeding should be supported, promoted and

88 SCRA 195(1979)]

protected, hence, it should be ensured that nutrition and health

One of the preambular clauses of TMC the law seeks to

In 1990, the Philippine ratified the International

From 1982 2006, the WHA adopted several resolutions to

claims are not permitted for breastmilk substitutes.


125 SCRA 553

Implementing Rules and Regulations of E.O. 51 or A.O. No. 2006-

May 15, 2006 DOH issues the assailed RIRR (Revised

0012) which was to take effect on July 7, 2006. The RIRR imposes a


ban on all advertisements of breastmilk substitutes

domestic law through a constitutional mechanism such as local


June 28, 2006 Petitioner filed the present Petition for

Transformation an international law is transformed into a

Certiorari and Prohibition with Prayer for the Issuance of a TRO or

Writ of Preliminary injunction.

method, pursuant to Art 7, Sec 21 wherein no treaty or

international agreement shall be valid.. unless concurred by at least

August 15, 2006 the Court issued a Resolution granting

Treaties become part of law of the land through this

the TRO, enjoining the respondents from implementing the assailed

2/3 of Senate


Petitioner assails the RIRR for going beyond the provisions

The ICMBS and WHA Resolutions are NOT treaties as they

havent been concurred in by the required 2/3 vote.

of TMC thereby amending and expanding the coverage of the said


domestic law through local legislation that is TMC.

DOH meanwhile contends that the RIRR implements not

HOWEVER, the ICMBS has been transformed into

Therefore, it is not the ICMBS per se that has the force of

only TMC but also various international instruments regarding

law but its TMC.

infant and young child nutrition. They posit that the said

international instruments are deemed part of the law of the land and

ICMBS, it did not adopt the latters provision on the absolute

therefore may be implemented by the DOH in the RIRR.

prohibition on advertising of products within the scope of the

While TMC is almost a verbatim reproduction of the

ICMBS. Instead the MC provides that advertising promotion or

Issue: W/n the RIRR is unconstitutional?

other marketing materials may be allowed if such materials are

Sub-issue(s): W/n the RIRR is in accord with TMC? W/n pertinent

approved by a committee.

international agreements entered into by the Philippines are part of


the law of the land and may thus be implemented through an RIRR,

international law is deemed to have the force of domestic law

if so, is the RIRR in accord with such international agreements?

Incorporation by mere constitutional declaration,

This is found under Art 2, Sec 2 The Philippines adopts

generally accepted principles of international law as part of the law

Note: I focused on the parts on international law. The other matters

of the land

(in case maam asks) are at the bottom of the digest.

In Mihares v. Ranada: International law becomes

customary rules accepted as binding as a result of two elements:

Held: No. However what may be implemented is the RIRR based on


the Milk Code which in turn is based on the ICMBS as this is

the state

Established, widespread, and consistent practice on part of

deemed part of the law of the land. The other WHA Resolutions


however cannot be imposed as they are not deemed part of the law


of the land.

Opinion juris sive necessitates (opinion as to law or

Generally accepted principles of international law refer to

norms of general or customary international law which are binding


on all states, valid through all kinds of human societies, and basic to
Are the international instruments referred to by the

legal systems generally

respondents part of the law of the land?

Customary international law has two factors:

The various international instruments invoked by

Fr. Bernas has a definition similar to the one above.

respondents are:


Material factor how states behave


The UN Conventions on the Rights of the Child

The consistency and the generality of the practice


The International Convenant on Economic, Social, and


Psychological or subjective factor why they behave the

Cultural Rights

way they do


Convention on the Elimination of All Forms of

Once state practice has been established, now determine

Discrimination Against Women

why they behave they do. Is it ouor of courtesy or opinio juris (the

belief that a certain type of behavior is obligatory)

These instruments only provide general terms of the steps

that States must take to prevent child mortality. Hence, they do not

When a law satisfies the two factors it becomes part of

have anything about the use and marketing of breastmilk substitutes

customary international law which is then incorporated into our

domestic system

The ICMBS and other WHA Resolutions however, are the

international instruments which have specific provisions on


breastmilk substitutes

local legislation, have they attained the status of customary law and

hence part of our law of the land?

Under the 1987 Constitution, international law can become

part of domestic law in 2 ways:

Since the WHA Resolutions have not been embodied in any

The World Health Organization (WHO) is one of the

international specialized agencies of the UN.

According to the WHO Constitution, its the WHA which

In the petitioners Amended Articles of Incorporation, it

determines the policies of the WHO, the former also has the power

states that the association is formed to represent directly or through

to adopt regulations concerning advertising and labeling of

approved representatives the pharmaceutical and health care

pharmaceutical and similar products and to make

industry before the Philippine Government and any of its agencies,

recommendations to members on any matter within the

the medical professions and the general public.

Organizations competence

in fulfilling its avowed purpose of representing members who are

Note that the legal effect of a regulation as opposed to

Therefore, the petitioner, as an organization, has an interest

recommendation is quite different

part of the pharmaceutical and health care industry. Petitioner is


duly authorized to bring to the attention of the government agencies

Regulations which are duly adopted by the WHA are

binding on member states

and courts any grievance suffered by its members which are directly


affected by the assailed RIRR.

On the other hand, recommendations of the WHA do not

come into force for its members unlike regulations. Rather, they

carry moral and political weight as they constitute the judgment on

its members, should be considered as a legal party-in-interest which

The petitioner, whose legal identity is deemed fused with

a health issue of the collective membership of the highest body in

stands to be benefited or injured by any judgment in the case.

the field of health.


The WHA resolution adopting the ICMBS and the

W/n the DOH has the power to implement the WHA Resolutions

subsequent WHA resolutions urging states to implement the ICMBS

under the Revised Administrative Code even in the absence of a

are merely recommendatory and legally non-binding.

domestic law? Only the provisions of the Milk Code. (as per the

discussion above)

Hence, unlike the ICMBS which has become TMC through

legislative enactment, the subsequent WHA Resolutions, which

provide for exclusive breastfeeding and prohibition on

that the DOH shall define the national health policy and can issue

advertisements and promotions of breastmilk have not been adopted

orders and regulations concerning the implementation of

as domestic law.

established health policies.

WHA Resolutions have been viewed to constitute soft

Section 3, Chapter 1, Title IX of the RAC of 1987 provides

A.O. No 2005 -0014 which provides the national policy on

law or non-binding norms, which influence state behavior. Soft law

infant and young child feeding, does not declare that as part of its

has been noted to be a rapid means of norm creation, in order to

policy, the advertisement or promotion of breastmilk substitutes

reflect and respond to the changing needs and demands of

should be absolutely prohibited.

constituents (of the UN.)

subsequent WHA Resolutions, can be validly implemented by the

As previously discussed, for an international rule to be

Only the provisions of the Milk Code, but not those of the

DOH through the subject RIRR.

considered customary law, it must be established that such rule is

followed by states because it is considered obligatory (opinio juris).

W/n the provisions of the RIRR being in accordance with the Milk

In the case at bar, respondents have not presented any

evidence to prove that the WHA Resolutions are in fact enforced or

Code? Not all of them

practice by member states. Further, they failed to establish that

provisions of pertinent WHA Resolutions are customary

children; [2] imposing exclusive breastfeeding for infants from 0-6

international law that may be deemed part of law of the land.

months; [3] imposes an absolute ban on advertising and promotion

for breastmilk substitutes; [4] requiring additional labeling

Hence, legislation is necessary to transform the WHA

Assailed provisions: [1] extending the coverage to young

resolutions into domestic law. They cannot thus be implemented by

requirements; [5] prohibits the dissemination of information on

executive agencies without the need of a law to be enacted by

infant formula; [6] forbids milk manufacturers and distributors to


extend assistance in research and continuing education Although

the DOH has the power under the Milk Code to control information

On other issues:

regarding breastmilk vis--vis breastmilk substitutes, this power is

W/n the petitioner is the real party in interest? Yes.

not absolute because it has no power to impose an absolute

prohibition in the marketing, promotion and advertising of

An association has standing to file suit for its workers

despite its lack of direct interest of its members are affected by the

breastmilk substitutes. Several provisions of the Milk Code attest to

action. An organization has standing to assert the concerns of its

the fact that such power to control information is not absolute.

constituents. (Exec Sec vs CA)

Milk Code because such provisions impose an absolute prohibition

The Court has rules that an association has the legal

Sections 11 and 4(f) of the RIRR are clearly violative of the

personality to represent its members because the results of the case

on advertising, promotion and marketing of breastmilk substitutes,

will affect their vital interests. (Purok Bagong Silang Association Inc.

which is not provided for in the Milk Code. Section 46 is violative of

vs. Yuipco)

the Milk Code because the DOH has exceeded its authority in

imposing such fines or sanctions when the Milk Code does not do

MARY JEAN B. TAGITIS, herein represented by ATTY. FELIPE P.

so. Other assailed provisions are in accordance with the Milk Code.

ARCILLA, JR., Attorney-in-Fact,Respondent.

G.R. No. 182498

December 3, 2009

W/n Section 13 of the RIRR providing a sufficient standard? Yes.



Questioned provision, in addition to Section 26 of Rule VII

provide labeling requirements for breastmilk substitutes found to

be in consonance with the Milk Code

We review in this petition for review on certiorari the decision dated

March 7, 2008 of the Court of Appeals (CA) in C.A-G.R. AMPARO

The provisions in question provide reasonable means of

No. 00009. This CA decision confirmed the enforced disappearance

enforcing related provisions in the Milk Code.

of Engineer Morced N. Tagitis (Tagitis) and granted the Writ of

W/n Section 57 of the RIRR repeals existing laws?

Amparo at the petition of his wife, Mary Jean B. Tagitis

(respondent). The dispositive portion of the CA decision reads:

Section in question only repeals orders, issuances and rules

and regulations, not laws. The provision is valid as it is within the

DOHs rule-making power.

WHEREFORE, premises considered, petition is hereby GRANTED.

The Court hereby FINDS that this is an "enforced disappearance"

An administrative agency has quasi-legislative or rule-

making power. However, such power is limited to making rules and

within the meaning of the United Nations instruments, as used in

regulation subjected to the boundaries set by the granting statute

the Amparo Rules. The privileges of the writ of amparo are hereby

and the Constitution. The power is also subject to the doctrine of

extended to Engr. Morced Tagitis.

non-delegability and separability of powers. The power, which

includes amending, revising, altering or repealing, is granted to

Consequently: (1) respondent GEN. EDGARDO M. DOROMAL,

allow for flexibility in the implementation of the laws.

Chief, Criminal Investigation and Detention Group (CIDG) who

should order COL. JOSE VOLPANE PANTE, CIDG-9 Chief,

W/n On Section 4, 5(w), 11, 22, 32, 47 and 52 violates the due

Zamboanga City, to aid him; (2) respondent GEN. AVELINO I.

process clause of the Constitution (Article III Section 1)?

RAZON, Chief, PNP, who should order his men, namely: (a)

respondent GEN. JOEL GOLTIAO, Regional Director of ARMM

Despite the fact that the present Constitution enshrines free

enterprise as a policy, it nonetheless reserves to the government the


power to intervene whenever necessary to promote the general


welfare free enterprise does not call for the removal of protective

A. ESPINA, Chief, Police Anti-Crime and Emergency Response, to

regulations. It must be clearly explained and proven by competent

aid him as their superior- are hereby DIRECTED to exert

evidence just exactly how such protective regulation would result in

extraordinary diligence and efforts, not only to protect the life,

the restraint of trade.

liberty and security of Engr. Morced Tagitis, but also to extend the

privileges of the writ of amparo to Engr. Morced Tagitis and his

Section 4 proscription of milk manufacturers

participation in any policymaking body; Section 22 classes and

family, and to submit a monthly report of their actions to this Court,

seminars for women and children; Section 32 giving of assistance,

as a way of PERIODIC REVIEW to enable this Court to monitor the

support and logistics or training; Section 52 giving of donations

action of respondents.

In the instant case, petitioner failed to show how the

aforementioned sections hamper the trade of breastmilk substitutes.

This amparo case is hereby DISMISSED as to respondent LT. GEN.

They also failed to establish that these activities are essential and

ALEXANDER YANO, Commanding General, Philippine Army, and

indispensable to their trade.

as to respondent GEN. RUBEN RAFAEL, Chief Anti-Terror Task

Force Comet, Zamboanga City, both being with the military, which

Disposition: The Petition is Partially Granted. Only sections 4(f), 11

is a separate and distinct organization from the police and the CIDG,

and 46 of A.O. 2006-0014 are declared null and void for being ultra

in terms of operations, chain of command and budget.

vires. The TRO is lifted insofar as the rest of the provisions of A.O.
2006-0012 is concerned.

This Decision reflects the nature of the Writ of Amparo a protective

remedy against violations or threats of violation against the rights to

GEN. AVELINO I. RAZON, JR., Chief, Philippine National Police

life, liberty and security. It embodies, as a remedy, the courts

(PNP); Police Chief Superintendent RAUL CASTAEDA, Chief,

directive to police agencies to undertake specified courses of action

Criminal Investigation and Detection Group (CIDG); Police

to address the disappearance of an individual, in this case, Engr.

Senior Superintendent LEONARDO A. ESPINA, Chief, Police

Morced N. Tagitis. It does not determine guilt nor pinpoint criminal

Anti-Crime and Emergency Response (PACER); and GEN. JOEL R.

culpability for the disappearance; rather, it determines

GOLTIAO, Regional Director of ARMM, PNP, Petitioners, vs.

responsibility, or at least accountability, for the enforced

disappearance for purposes of imposing the appropriate remedies to

Investigation and Detention Group (CIDG); Sr. Supt. Leonardo A.

address the disappearance.

Espina, Chief, Police Anti-Crime and Emergency Response; Gen. Joel

Goltiao, Regional Director, ARMM-PNP; and Gen. Ruben Rafael,

Responsibility refers to the extent the actors have been established

Chief, Anti-Terror Task Force Comet.

by substantial evidence to have participated in whatever way, by

action or omission, in an enforced disappearance, as a measure of

Mary Jean said in her statement that she approached some of her co-

the remedies this Court shall craft, among them, the directive to file

employees with the Land Bank in Digos branch, Digos City, Davao

the appropriate criminal and civil cases against the responsible

del Sur who likewise sought help from some of their friends in the

parties in the proper courts.

military who could help them find/locate the whereabouts of her

husband. All of her efforts did not produce any positive results

Accountability, on the other hand, refers to the measure of remedies

except the information from persons in the military who do not

that should be addressed to those who exhibited involvement in the

want to be identified that Engr. Tagitis is in the hands of the

enforced disappearance without bringing the level of their

uniformed men. According to reliable information she received,

complicity to the level of responsibility defined above; or who are

subject Engr. Tagitis is in the custody of police intelligence

imputed with knowledge relating to the enforced disappearance and

operatives, specifically with the CIDG, PNP Zamboanga City, being

who carry the burden of disclosure; or those who carry, but have

held against his will in an earnest attempt of the police to involve

failed to discharge, the burden of extraordinary diligence in the

and connect Engr. Tagitis with the different terrorist groups

investigation of the enforced disappearance. In all these cases, the

particularly the Jemaah Islamiyah or JI.

issuance of the Writ of Amparo is justified by our primary goal of

addressing the disappearance, so that the life of the victim is

She then filed her complaint with the PNP Police Station in the

preserved and his liberty and security are restored.

ARMM in Cotobato and in Jolo, seeking their help to find her

husband, but was told of an intriguing tale by the police that her


husband was not missing but was with another woman having good

The established facts show that Tagitis, a consultant for the World

time somewhere, which is a clear indication of the refusal of the

Bank and the Senior Honorary Counselor for the Islamic

PNP to help and provide police assistance in locating her missing

Development Bank (IDB) Scholarship Programme, was last seen in


Jolo, Sulu. Together with Arsimin Kunnong (Kunnong), an IDB

scholar, Tagitis arrived in Jolo by boat in the early morning of

Heeding an advise of one police officer, she went to the different

October 31, 2007 from a seminar in Zamboanga City. They

police headquarters namely Police Headquarters in Cotabato City,

immediately checked-in at ASY Pension House. Tagitis asked

Davao City, Zamboanga City and eventually in the National

Kunnong to buy him a boat ticket for his return trip the following

Headquarters in Camp Crame in Quezon City but her efforts

day to Zamboanga. When Kunnong returned from this errand,

produced no positive results. These trips exhausted all of her

Tagitis was no longer around. The receptionist related that Tagitis

resources which pressed her to ask for financial help from friends

went out to buy food at around 12:30 in the afternoon and even left

and relatives.

his room key with the desk. Kunnong looked for Tagitis and even
sent a text message to the latters Manila-based secretary who did

She has exhausted all administrative avenues and remedies but to no

not know of Tagitis whereabouts and activities either; she advised

avail, and under the circumstances, she has no other plain, speedy

Kunnong to simply wait.

and adequate remedy to protect and get the release of her husband,
Engr. Morced Tagitis, from the illegal clutches of his captors, their

On November 4, 2007, Kunnong and Muhammad Abdulnazeir N.

intelligence operatives and the like which are in total violation of the

Matli, a UP professor of Muslim studies and Tagitis fellow student

subjects human and constitutional rights, except the issuance of a

counselor at the IDB, reported Tagitis disappearance to the Jolo


Police Station. On November 7, 2007, Kunnong executed a sworn

affidavit attesting to what he knew of the circumstances surrounding

On the same day the petition was filed, the CA immediately issued

Tagitis disappearance.

the Writ of Amparo, set the case for hearing on January 7, 2008, and
directed the petitioners to file their verified return within seventy-

More than a month later (on December 28, 2007), Mary Jean Tagitis

two (72) hours from service of the writ.

filed a Petition for the Writ of Amparo (petition) with the CA

through her Attorney-in-Fact, Atty. Felipe P. Arcilla.The petition was

In their verified Return filed during the hearing of January 27, 2008,

directed against Lt. Gen. Alexander Yano, Commanding General,

the petitioners denied any involvement in or knowledge of Tagitis

Philippine Army; Gen. Avelino I. Razon, Chief, Philippine National

alleged abduction. They argued that the allegations of the petition

Police (PNP); Gen. Edgardo M. Doromal, Chief, Criminal

were incomplete and did not constitute a cause of action against

them; were baseless, or at best speculative; and were merely based

on hearsay evidence. In addition, they all claimed that they


exhausted all means, particularly taking pro-active measures to

investigate, search and locate Tagitis and to apprehend the persons

The disappearance of Engr. Morced Tagitis is classified as an

responsible for his disappearance.

enforced disappearance, thus the privilege of the Writ of Amparo


On March 7, 2008, the CA issued its decision confirming that the

Under the UN Declaration enforced disappearance as "the arrest,

disappearance of Tagitis was an "enforced disappearance" under the

detention, abduction or any other form of deprivation of liberty by

United Nations (UN) Declaration on the Protection of All Persons

agents of the State or by persons or groups of persons acting with

from Enforced Disappearances. The CA held that "raw reports" from

the authorization, support or acquiescence of the State, followed by

an "asset" carried "great weight" in the intelligence world. It also

a refusal to acknowledge the deprivation of liberty or by

labeled as "suspect" Col. Kasims subsequent and belated retraction

concealment of the fate or whereabouts of the disappeared person,

of his statement that the military, the police, or the CIDG was

which place such a person outside the protection of the law." Under

involved in the abduction of Tagitis.

this definition, the elements that constitute enforced disappearance

are essentially fourfold:

The CA characterized as "too farfetched and unbelievable" and "a

bedlam of speculation" police theories painting the disappearance as

(a) arrest, detention, abduction or any form of deprivation of liberty;

"intentional" on the part of Tagitis. He had no previous brushes with

(b) carried out by agents of the State or persons or groups of persons

the law or any record of overstepping the bounds of any trust

acting with the authorization, support or acquiescence of the State;

regarding money entrusted to him; no student of the IDB

(c) followed by a refusal to acknowledge the detention, or a

scholarship program ever came forward to complain that he or she

concealment of the fate of the disappeared person;

did not get his or her stipend. The CA also found no basis for the

(d) placement of the disappeared person outside the protection of

police theory that Tagitis was "trying to escape from the clutches of

the law.

his second wife," on the basis of the respondents testimony that

Tagitis was a Muslim who could have many wives under the Muslim

There was no direct evidence indicating how the victim actually

faith, and that there was "no issue" at all when the latter divorced his

disappeared. The direct evidence at hand only shows that Tagitis

first wife in order to marry the second. Finally, the CA also ruled out

went out of the ASY Pension House after depositing his room key

kidnapping for ransom by the Abu Sayyaf or by the ARMM

with the hotel desk and was never seen nor heard of again. The

paramilitary as the cause for Tagitis disappearance, since the

undisputed conclusion, however, from all concerned the petitioner,

respondent, the police and the military noted that there was no

Tagitis colleagues and even the police authorities is that Tagistis

acknowledgement of Tagitis abduction or demand for payment of

disappeared under mysterious circumstances and was never seen

ransom the usual modus operandi of these terrorist groups.


Based on these considerations, the CA thus extended the privilege of

the writ to Tagitis and his family, and directed the CIDG Chief, Col.
Jose Volpane Pante, PNP Chief Avelino I. Razon, Task Force Tagitis

A petition for the Writ of Amparo shall be signed and verified and

heads Gen. Joel Goltiao and Col. Ahiron Ajirim, and PACER Chief

shall allege, among others (in terms of the portions the petitioners

Sr. Supt. Leonardo A. Espina to exert extraordinary diligence and


efforts to protect the life, liberty and security of Tagitis, with the

(c) The right to life, liberty and security of the aggrieved party

obligation to provide monthly reports of their actions to the CA. At

violated or threatened with violation by an unlawful act or omission

the same time, the CA dismissed the petition against the then

of the respondent, and how such threat or violation is committed

respondents from the military, Lt. Gen Alexander Yano and Gen.

with the attendant circumstances detailed in supporting affidavits;

Ruben Rafael, based on the finding that it was PNP-CIDG, not the

(d) The investigation conducted, if any, specifying the names,

military, that was involved.

personal circumstances, and addresses of the investigating authority

or individuals, as well as the manner and conduct of the

On March 31, 2008, the petitioners moved to reconsider the CA

investigation, together with any report;(e) The actions and recourses

decision, but the CA denied the motion in its Resolution of April 9,

taken by the petitioner to determine the fate or whereabouts of the


aggrieved party and the identity of the person responsible for the
threat, act or omission.

Whether or not the privilege of the Writ of Amparo should be

The framers of the Amparo Rule never intended Section 5(c) to be

extended to Engr. Morced Tagitis.

complete in every detail in stating the threatened or actual violation

of a victims rights. As in any other initiatory pleading, the pleader

The phenomenon of enforced disappearance arising from State

must of course state the ultimate facts constituting the cause of

action first attracted notice in Adolf Hitlers Nact und Nebel Erlass

action, omitting the evidentiary details.76 In an Amparo petition,

or Night and Fog Decree of December 7, 1941. The Third Reichs

however, this requirement must be read in light of the nature and

Night and Fog Program, a State policy, was directed at persons in

purpose of the proceeding, which addresses a situation of

occupied territories "endangering German security"; they were

uncertainty; the petitioner may not be able to describe with certainty

transported secretly to Germany where they disappeared without a

how the victim exactly disappeared, or who actually acted to

trace. In order to maximize the desired intimidating effect, the policy

kidnap, abduct or arrest him or her, or where the victim is detained,

prohibited government officials from providing information about

because these information may purposely be hidden or covered up

the fate of these targeted persons.

by those who caused the disappearance. In this type of situation, to

require the level of specificity, detail and precision that the

In the Philippines, enforced disappearances generally fall within the

petitioners apparently want to read into the Amparo Rule is to make

first two categories, and 855 cases were recorded during the period

this Rule a token gesture of judicial concern for violations of the

of martial law from 1972 until 1986. Of this number, 595 remained

constitutional rights to life, liberty and security.

missing, 132 surfaced alive and 127 were found dead. During former
President Corazon C. Aquinos term, 820 people were reported to

To read the Rules of Court requirement on pleadings while

have disappeared and of these, 612 cases were documented. Of this

addressing the unique Amparo situation, the test in reading the

number, 407 remain missing, 108 surfaced alive and 97 were found

petition should be to determine whether it contains the details

dead. The number of enforced disappearances dropped during

available to the petitioner under the circumstances, while presenting

former President Fidel V. Ramos term when only 87 cases were

a cause of action showing a violation of the victims rights to life,

reported, while the three-year term of former President Joseph E.

liberty and security through State or private party action. The

Estrada yielded 58 reported cases. KARAPATAN, a local non-

petition should likewise be read in its totality, rather than in terms of

governmental organization, reports that as of March 31, 2008, the

its isolated component parts, to determine if the required elements

records show that there were a total of 193 victims of enforced

namely, of the disappearance, the State or private action, and the

disappearance under incumbent President Gloria M. Arroyos

actual or threatened violations of the rights to life, liberty or security

administration. The Commission on Human Rights records show a

are present.

total of 636 verified cases of enforced disappearances from 1985 to

1993. Of this number, 406 remained missing, 92 surfaced alive, 62

The properly pleaded ultimate facts within the pleaders knowledge

were found dead, and 76 still have undetermined status.Currently,

about Tagitis disappearance, the participation by agents of the State

the United Nations Working Group on Enforced or Involuntary

in this disappearance, the failure of the State to release Tagitis or to

Disappearance reports 619 outstanding cases of enforced or

provide sufficient information about his whereabouts, as well as the

involuntary disappearances covering the period December 1, 2007 to

actual violation of his right to liberty. Thus, the petition cannot be

November 30, 2008.

faulted for any failure in its statement of a cause of action.

Under Philippine Law
If a defect can at all be attributed to the petition, this defect is its lack

The Amparo Rule expressly provides that the "writ shall cover

of supporting affidavit, as required by Section 5(c) of the Amparo

extralegal killings and enforced disappearances or threats

Rule. Owing to the summary nature of the proceedings for the writ

thereof."We note that although the writ specifically covers "enforced

and to facilitate the resolution of the petition, the Amparo Rule

disappearances," this concept is neither defined nor penalized in this

incorporated the requirement for supporting affidavits, with the

jurisdiction. The records of the Supreme Court Committee on the

annotation that these can be used as the affiants direct testimony.

Revision of Rules (Committee) reveal that the drafters of the

This requirement, however, should not be read as an absolute one

Amparo Rule initially considered providing an elemental definition

that necessarily leads to the dismissal of the petition if not strictly

of the concept of enforced disappearance:

followed. Where, as in this case, the petitioner has substantially

complied with the requirement by submitting a verified petition

Justice Puno stated that, as the law now stands, extra-judicial

sufficiently detailing the facts relied upon, the strict need for the

killings and enforced disappearances in this jurisdiction are not

sworn statement that an affidavit represents is essentially fulfilled.

crimes penalized separately from the component criminal acts

We note that the failure to attach the required affidavits was fully

undertaken to carry out these killings and enforced disappearances

cured when the respondent and her witness (Mrs. Talbin) personally

and are now penalized under the Revised Penal Code and special

testified in the CA hearings held on January 7 and 17 and February


18, 2008 to swear to and flesh out the allegations of the petition.
Thus, even on this point, the petition cannot be faulted.

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

person is rendered ineffective if government does not afford

through the procedures it sets in addressing extrajudicial killings

protection to these rights especially when they are under threat.

and enforced disappearances. The Court, through its procedural

rules, can set the procedural standards and thereby directly compel

Protection includes conducting effective investigations, organization

the public authorities to act on actual or threatened violations of

of the government apparatus to extend protection to victims of

constitutional rights. To state the obvious, judicial intervention can

extralegal killings or enforced disappearances (or threats thereof)

make a difference even if only procedurally in a situation when

and/or their families, and bringing offenders to the bar of justice.

the very same investigating public authorities may have had a hand

The duty to investigate must be undertaken in a serious manner and

in the threatened or actual violations of constitutional rights.

not as a mere formality preordained to be ineffective.

The burden for the public authorities to discharge in these

Evidentiary Difficulties Posed by the Unique Nature of an Enforced

situations, under the Rule on the Writ of Amparo, is twofold. The


first is to ensure that all efforts at disclosure and investigation are

The unique evidentiary difficulties presented by enforced

undertaken under pain of indirect contempt from this Court when

disappearance cases; these difficulties form part of the setting that

governmental efforts are less than what the individual situations

the implementation of the Amparo Rule shall encounter. These

require. The second is to address the disappearance, so that the life

difficulties largely arise because the State itself the party whose

of the victim is preserved and his or her liberty and security

involvement is alleged investigates enforced disappearances. Past

restored. In these senses, our orders and directives relative to the

experiences in other jurisdictions show that the evidentiary

writ are continuing efforts that are not truly terminated until the

difficulties are generally threefold.

extrajudicial killing or enforced disappearance is fully addressed by

the complete determination of the fate and the whereabouts of the

First, there may be a deliberate concealment of the identities of the

victim, by the production of the disappeared person and the

direct perpetrators. In addition, there are usually no witnesses to the

restoration of his or her liberty and security, and, in the proper case,

crime; if there are, these witnesses are usually afraid to speak out

by the commencement of criminal action against the guilty parties.

publicly or to testify on the disappearance out of fear for their own


During the International Convention for the Protection of All

Persons from Enforced Disappearance (in Paris, France on February

Second, deliberate concealment of pertinent evidence of the

6, 2007, "enforced disappearance" is considered to be the arrest,

disappearance is a distinct possibility; the central piece of evidence

detention, abduction or any other form of deprivation of liberty by

in an enforced disappearance

agents of the State or by persons or groups of persons acting with

the authorization, support or acquiescence of the State, followed by

Third is the element of denial; in many cases, the State authorities

a refusal to acknowledge the deprivation of liberty or by

deliberately deny that the enforced disappearance ever occurred.

concealment of the fate or whereabouts of the disappeared person,

"Deniability" is central to the policy of enforced disappearances, as

which place such a person outside the protection of the law.

the absence of any proven disappearance makes it easier to escape

the application of legal standards ensuring the victims human

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

Substantial evidence is more than a mere scintilla. It means such

the sphere of domestic law either by transformation or

relevant evidence as a reasonable mind might accept as adequate to

incorporation. The transformation method requires that an

support a conclusion.

international law be transformed into a domestic law through a

constitutional mechanism such as local legislation. The

The remedy of the writ of amparo provides rapid judicial relief as it

incorporation method applies when, by mere constitutional

partakes of a summary proceeding that requires only substantial

declaration, international law is deemed to have the force of

evidence to make the appropriate reliefs available to the petitioner; it

domestic law.

is not an action to determine criminal guilt requiring proof beyond

reasonable doubt, or liability for damages requiring preponderance

The right to security of person in this third sense is a corollary of the

of evidence, or administrative responsibility requiring substantial

policy that the State "guarantees full respect for human rights"

evidence that will require full and exhaustive proceedings.

under Article II, Section 11 of the 1987 Constitution. As the

government is the chief guarantor of order and security, the

We note in this regard that the use of flexibility in the consideration

Constitutional guarantee of the rights to life, liberty and security of

of evidence is not at all novel in the Philippine legal system. In child

abuse cases, Section 28 of the Rule on Examination of a Child

Witness is expressly recognized as an exception to the hearsay rule.

disappearance that the Amparo Rule covers. From the prism of the

This Rule allows the admission of the hearsay testimony of a child

UN Declaration, heretofore cited and quoted, evidence at hand and

describing any act or attempted act of sexual abuse in any criminal

the developments in this case confirm the fact of the enforced

or non-criminal proceeding, subject to certain prerequisites and the

disappearance and government complicity, under a background of

right of cross-examination by the adverse party.

consistent and unfounded government denials and haphazard

handling. The disappearance as well effectively placed Tagitis
outside the protection of the law a situation that will subsist unless


this Court acts.

Based on these considerations, we conclude that Col. Kasims

disclosure, made in an unguarded moment, unequivocally point to

Given their mandates, the PNP and PNP-CIDG officials and

some government complicity in the disappearance. The consistent

members were the ones who were remiss in their duties when the

but unfounded denials and the haphazard investigations cannot but

government completely failed to exercise the extral.'

point to this conclusion. For why would the government and its
officials engage in their chorus of concealment if the intent had not
been to deny what they already knew of the disappearance? Would

To fully enforce the Amparo remedy, we refer this case back to the

not an in-depth and thorough investigation that at least credibly

CA for appropriate proceedings directed at the monitoring of the

determined the fate of Tagitis be a feather in the governments cap

PNP and the PNP-CIDG investigations and actions, and the

under the circumstances of the disappearance? From this

validation of their results through hearings the CA may deem

perspective, the evidence and developments, particularly the Kasim

appropriate to conduct.

evidence, already establish a concrete case of enforced