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CHR (IV) No. A2009-172
(CHR CASE NO. 2009-046)

IN THE MATTER OF:
THE DISAPPEARANCE
AND/OR ARREST AND
DETENTION OF
MUHAMADIYA K. HAMJA.

x - - - - - - - - - - - - - - - - - - - - - - - x

R E S O L U T I O N

At around 1:15 in the afternoon of November 28, 2008 , Muhamadiya Hamja, fifty years old, Filipino, married, and a resident of 154 Rogan St. , Brgy. Maharlika Village , Taguig City , was apprehended by armed men in civilian clothes and forcibly taken to a white van while he was walking from the Blue Mosque along Mindanao Ave. in Maharlika Village , Taguig City after attending afternoon prayers. Hamja is a fisherman from Kumalarang, Isabela City , Basilan and a suspected member of the Abu Sayyaf Group (ASG).

Immediately after the incident, frantic efforts were made by his relatives to locate the whereabouts of Mr. Hamja, to no avail. They searched nearby police stations and possible places of detention while at the same time reporting what then appeared as an abduction to the same police authorities. Finally, with the help of the group Karapatan, they approached and sought the assistance of this Commission in locating the person of Muhamadiya Hamja.

Upon receipt of the complaint of the son of the victim, Ahmad Hamja, the Commission issued a Mission Order dated December 3, 2008 directing a Composite Investigation Team to investigate the alleged abduction by proceeding to 1) the Southern Police District (SPD) to verify the information that the victim was being held there, 2) Maharlika Village, Taguig City to interview possible witnesses, and 3) the Intelligence Services of the Armed Forces of the Philippines (ISAFP) Headquarters and Custodial Center to gather information.

The team also opted to go to the Criminal Investigation and Detective Group (CIDG) at Camp Crame , Quezon City . There, in the premises of said Office, the team accidentally discovered Muhamadiya Hamja. Ahmad Hamja recognized his father’s sandals

when an office door was slightly opened. Hamja was discovered in the office of a certain Police Senior Inspector (PSINSP) Wilfredo V. Sy, located at the second level of the CIDG office, on December 4, 2008 , six days after he was allegedly arrested by virtue of an alias arrest warrant.

The CHR investigation team observed that at the time they discovered Hamja, he seemed to be weak and his eyes dark red, as if they were bleeding. There was a wound on his nose and hands, the latter the result of handcuffs he was wearing. Hamja executed a sworn statement right then and there relating the circumstances surrounding his alleged abduction.

Hamja stated that while walking from the Blue Mosque, he was grabbed around his neck and dragged to a vehicle. Once inside the vehicle, he was blindfolded with the turban he was wearing and handcuffed. Upon reaching their destination, he was interrogated about the Abu Sayaff. After five days, he was taken to the CIDG and it was only then that his blindfold was removed.

The day after his discovery by the CHR Investigation Team, the victim was medically examined by a CHR physician. The examination revealed that the victim sustained injuries as a result of torture, requiring medical attendance for a period of one to nine days from the date of infliction.

Thereafter, the Commission held a series of public inquiries in aid of its investigation to further cull the facts surrounding the alleged abduction of Muhamadiya Hamja. The Commission invited officers of the CIDG, the Naval Intelligence and Security Force (NISF), the Naval Intelligence Unit (NIU), and the National Intelligence and Coordinating Agency (NICA) to testify in the public inquiries.

In the first inquiry held on December 12, 2008 , the Regional Chief of the CIDG for the National Capital Region (NCRCIDU-CIDG), Police Senior Superintendent (PSS) Isagani R. Nerez, testified that the arrest of Hamja was the result of a joint operation of the CIDG, the NIU, and the NICA. It was also established that the team from the CIDG consisted of Special Police Officer 2 (SPO2) Cresendo Molina, Police Officer 2 (PO2) Darwin Linatoc, and Police Senior Inspector (PSINSP) Wilfredo V. Sy. PSINSP Sy was the leader of the CIDG group under the direct supervision of Police Superintendent (PS) Jonnel Estomo. The team used a private red Toyota Lite Ace with plate number TSN 448 and a white Toyota Revo service vehicle with plate number SFV 313.

According to the testimony of PSINSP Sy, the arrest of Hamja was made by virtue of an Alias Order of Arrest dated February 7, 2007 , issued by Presiding Judge Danilo M. Bucoy of the Regional Trial Court of Basilan, Branch 2 with Case No. 3537-1129, entitled, “People of the Philippines , versus Khadaffy Janjalani, et. al.”

Atty. Pura Ferrer-Calleja, private counsel of Muhamadiya Hamja, interposed that the warrant of arrest was for one “Madja Hamja” whereas the name of her client is “Muhamadiya Hamja.” She also asserts that her client had also been arrested sometime in 2001 for fifty-two cases of kidnapping and illegal detention but was never identified after the presentation of more than sixty witnesses, leading to the dismissal of the cases against him.

In the next public inquiry held on January 8, 2009 , PSS Nerez testified again, this time claiming that the request for a joint operation came from a certain Lieutenant de los Santos of the NISF, and not the NIU as he previously stated. He added that it was indicated in their November 28, 2008 arrest report that the arrest was a joint operation of the NICA, the NISF and the CIDG-NCR, a copy of which they gave to the CHR investigating team.

PSINSP Wilfredo Sy also admitted in his testimony that he was not in his proper police uniform at the time of the arrest, and that among the members of his team, only one was in uniform.

Mr. Ahmad Hamja, the son of the victim Muhamadiya Hamja, also testified on the alleged torture of his father while under custody of the authorities.

Toward the end of the inquiry, the Commission directed the CHR Region IX Office to secure the permission of the Regional Trial Court of Basilan to allow them to interview Muhamadiya Hamja and to have access to court records pertaining to the charges against him.

Pursuant to the above-mentioned directive, the CHR Region IX Office submitted on January 23, 2009 an After Mission Report, the Supplemental Sworn Statement of Muhamadiya Hamja, and court documents secured from the Regional Trial Court of Basilan, Branches 1 and 2.

In his supplemental sworn statement, Muhamadiya Hamja related that while he was in the custody of his captors, he was subjected to torture. He was blindfolded, interrogated and forced to admit that he was a member of the Abu Sayaff and to reveal the identities of the members of the same group. When he denied being an Abu Sayaff member, they started to torture him by covering his head with a plastic bag, hitting him with a blunt object on the ribs, electrocuting him, and choking him with the use of his turban.

Hamja also related in his supplemental sworn statement that upon his transfer to the CIDG offices, he was not allowed to contact anyone, whether a relative or counsel, as he was refused to make phone calls or communicate with the outside world.

The CHR-Region IX’s After Mission Report elaborated on Hamja’s claims, to wit:

“ During the proper interview of Mohamadiya Hamja at Basilan Provincial Jail of Basilan, the former averred that he was maltreated by his captors while he was still under their custody. Accordingly, while blindfolded he was interrogated forcing him to admit as member of the Abu Sayyaf Group (ASG) and to reveal all the identities of other members of the ASG. When he denied any involvement with the ASG, he was subjected to torture by his interrogators. His head was covered by plastic bag causing him to gasp for his breath. This was repeated several times whenever his interrogators don’t get favorable answers to their queries. In one instance, his interrogators hit him with a hard blunt object repeatedly on the right portion of his body particularly on the ribs which he felt intense pain. He was also electrocuted once since he was firmed (sic) on his stand that he has no knowledge and nothing to do with all the accusations hurled against him by his interrogators. There was also one instance that he fainted, because his interrogators choked him on the neck using his turban.”

In the meantime, the NISF filed a Manifestation dated January 26, 2009 signed by Capt. Antonio Habulan in his capacity as the Commander of the NISF, pursuant to the January 12, 2009 Order of the Commission directing the Commander of the NISF to appear at the public inquiries and to submit a sworn statement describing the role of the agency in the arrest and detention of Muhamadiya Hamja as well as the names of the operatives who took part in the operation. The NISF contended in its Manifestation that it could not provide the names of the operatives who participated in the operation because there are still other follow-up operations/monitoring being conducted by said agents on other ASG personalities, and for the protection and security of said agents.

With regard to its role in the operation, the NISF averred that the unit’s participation was limited to a support role. The NISF supplied the information on, and identification of, Muhamadiya Hamja as well as his whereabouts. Thereafter, the police authorities effected the arrest of Muhamadiya Hamja, who, when presented the warrant of arrest, allegedly gave no resistance. From then on, the police authorities allegedly had custody of Muhamadiya Hamja.

In the third public inquiry on February 18 2009 , the legal counsel of the NISF, Atty. Christopher Ciubal, manifested that Capt. Antonio Habulan has been replaced by Capt. Bayani Gaerlan as the Commander of the NISF. The latter was subsequently ordered to appear before the Commission but likewise failed to do so.

In the same inquiry, the Commission clarified with PSINSP Sy the apparent discrepancy between his previous testimonies and a joint affidavit he submitted to the Regional Trial Court of Basilan. While in his previous testimonies before the Commission PSINSP Sy claimed that the CIDG only had custody of Muhamadiya Hamja on December 2, 2008, he stated in his affidavit to the court that after the arrest of Hamja on November 28, 2008, the latter was brought to the NCR-CIDU, CIDG, Camp Crame, Quezon City for documentation and then was transferred to the PNP Custodial Center, Camp Crame, Quezon City. To quote from the proceedings:

“ Chair de Lima : xxx I have here a copy of a Joint Affidavit of Arresting Officers purportedly to have been executed by you PI Wilfredo V. Sy, PNP and Spo2 Cresendo M. Molina, PNP dated January 6, 2009 , but there seems to be an error in the jurat portion. It says here that you were subscribed and sworn to on November 6, 2008 by State Prosecutor Peter Medalle. I think maybe this is an error, a typo error? How come your affidavit is dated January 6, 2009 , but you subscribed to it ahead, November 6, 2008 . Is it a typo error?

“PINSP. SY : Yes, Ma’am.

“ Chair de Lima : Okay, so obviously. So, this should also be January 6 of 2009? But anyway, you know about this joint affidavit, right?

“PINSP. SY : Yes, Ma’am.

“ Chair de Lima : You confirm that this is your joint affidavit?

“PINSP. SY : Yes, Ma’am.

“ Chair de Lima : That you submitted this before Branch 1 of RTC, Basilan?

“PINSP. SY : Yes, Madam Chair.”

“Chair de Lima : Okay. May I point you to your last paragraph before THAT FURTHER AFFIANT SAYETH NAUGHT portion? I quote, Furthemore, after the arrest of subject MADJA HAMJA who is also known”… (italics supplied) No, I might as well start with the sentence before that, the second to the last paragraph. I quote, “That on November 28, 2008, at around 1:30 in the afternoon, we the undersigned together with the operatives of the National Intelligence Coordination Agency (NICA) arrested MADJA HAMJA who is also known as “MOHAMADIYA HAMJA;” (italics supplied) Then the last paragraph says, “Furthermore, after the arrest of subject MADJA HAMJA who is also known as “MOHAMMADIYA HAMJA”, the team brought him to NCR-CIDU, CIDG, Camp Crame, Quezon City for documentation. Subject Arrested person was turn over to PNP Custodial Center , Camp Crame , Quezon City for temporary detention pending on the issuance of Commitment Order of the court concerned.” (italics supplied) So, you… what? Are you contradicting yourself, Insp. Sy? You categorically declared during the first two hearings and corroborated by Supt. Nerez that you had custody of Hamja only on December 2 and not from the time of the arrest in November 28. How come in this January 6, 2009 Joint Affidavit submitted to the RTC Basilan, you are now corroborating the claim of the NISF that it was actually CIDG. So which is which? Ano bang klaseng mga kwento ‘yan, hindi magkatugma-tugma? That’s why I’m telling you the last time, didn’t I warn you about that? Kayo ang last touch at wala kayong record, wala kayong dokumento. xxx”

Thereafter, pursuant to the Order of the Commission dated February 20, 2009 , PSS Nerez, PS Jonnel Estomo, PSINSP Wilfredo V. Sy, SPO2 Cresendo M. Molina and PO3 Darwin M. Linatoc submitted sworn statements.

In his sworn statement, PSS Nerez stated that in reality, he had no personal knowledge of the whereabouts of Muhamadiya Hamja from November 28, 2008 up to the time he was physically turned over to the CIDG on December 2, 2008 . He was informed only later that after Hamja’s arrest, he was turned over to the NISF for documentation purposes as a matter of operational courtesy.

For his part, PS Jonnel Estomo stated in his affidavit that he was the one who personally received Muhamadiya Hamja from the custody of the NISF and that no turn-over receipt was made by him upon the justification that the arrest of Hamja was a joint operation of the CIDG, NISF and NICA and that the transfer of custody to the CIDG was just a continuation of said operation.

PSINSP Wilfredo V. Sy, SPO2 Cresendo M. Molina and PO3 Darwin M. Linatoc executed a joint affidavit wherein they stated that the arrest of Muhamadiya Hamja was made by them and elements of the NISF and NICA by virtue of a warrant of arrest. PSINSP Sy and SPO2 Molina went undercover while PO3 Linatoc was the only one in uniform. After his arrest, Hamja was handled by the NISF until December 2, 2008 when he was delivered to the CIDG. Thereafter, PSINSP Sy went to Basilan on January 4, 2009 to coordinate with the Regional Trial Court concerning the service of the Alias Order of Arrest against Hamja. On January 6, 2009 , Hamja was brought to Zamboanga City and before the Regional Trial Court by PSINSP Sy and SPO2 Molina.

In the last public hearing, the Commission deemed the case submitted for resolution insofar as the CIDG was concerned. With regard the NISF, however, the Commission in an Order dated April 20, 2009, directed Capt. Bayani R. Gaerlan to manifest in writing and under oath his adoption of, or concurrence with, the January 26, 2009 Manifestation of Capt. Antonio Habulan and to submit the names of the personnel involved in the operations against Muhamadiya Hamja. On April 29, 2009 , Capt. Bayani R. Gaerlan submitted his adoption of and concurrence with the January 26, 2009 Manifestation. He, however, failed to comply with the second directive to submit the names of the NISF personnel involved in the Hamja operation.

FINDINGS OF FACT

From the field investigations and public inquiries conducted by the Commission, it was established that certain unlawful acts and irregularities in the arrest and detention of Muhamadiya Hamja were committed by the law enforcement and military intelligence officers who conducted the arrest operations, particularly those belonging to the NISF and the CIDG.

There is no question that the arrest of Hamja was a joint operation conducted by elements of the CIDG, NICA and the NISF. This is culled from the testimonies and sworn affidavits of the CIDG and NISF personnel themselves, particularly those of PSS Isagani R. Nerez, PS Jonnel Estomo, Captain Antonio Habulan, and the members of the arresting team themselves, PSINSP Wilfredo V. Sy, SPO2 Cresendo M. Molina, and PO3 Darwin M. Linatoc.

There is strong evidence to believe the claims of Hamja in his sworn affidavit. He claims that during his arrest, he was grabbed around the neck (“sinakal”), dragged to and put inside a vehicle, blindfolded and detained for four days. He further claims that during the period of his detention in an unknown place, he was interrogated and tortured in order to draw information from him about the Abu Sayyaf.

Hamja initially kept mum about his torture ordeal. He declined to talk about it when first interviewed by the CHR Central Office team. Curiously, Hamja’s sworn statement (original) bears this colatilla: “ NA PANSAMANTALA AY WALA NA MUNA AKONG SASABIHIN PA.” The reason for Hamja’s initial silence was subsequently revealed to the CHR-Region IX team who went to see Hamja at the Basilan Provincial Jail. The team reported that:

“When asked why he was not able to reveal this matter during the investigation conducted by CHR personnel in Manila, he disclosed that he was apprehensive of revealing all those facts that time to the CHR personnel for fear that the CIDG personnel might (be) able to discover it (and) something bad might happen since he was still under their (CIDG) custody. Mohamadiya Hamja further averred, that he was not able to identify those persons who tortured him and the agency they carried since at the time of the interrogation he was in blindfold and only can hear voices of the interrogators. His blindfold was removed only when he was transferred and turned over to the CIDG Office Camp Crame. At the CIDG Office he was not allowed to use their phone to call his relatives nor CIDG personnel inform his relatives about his whereabouts. His movement also was confined in one room of the said office . He also revealed that one personnel of the CIDG, whom he identified as a certain MOLINA, advised him not to file a case anymore against them. A certain Police Officer SY, also talked to him while he was in the said office. The former allegedly told him that he was one of those who arrested him.”

The physical condition of Hamja at the time he was accidentally discovered by the CHR team four days after his arrest is consistent with his claims. At the time he was found at the CIDG office, Hamja was weak. His eyes were dark red as if they were bleeding. He had wounds in his nose and hands.

On the other hand, his physical condition is inconsistent with the testimony of the police authorities. If the police effected the arrest of Hamja who in their own testimonies gave no resistance, why and how then did Hamja sustain his apparent injuries?

Also, the irregularities in this arrest and detention of Hamja further reinforce Hamja’s statement. There were no turn-over receipt issued by the arresting officers. His arrest was not logged. In other words, there was no documentation whatsoever of his arrest and detention. Hi arrest and whereabouts was not communicated to his relatives. These facts raise question as to the objective of the authorities’ arrest and fortify Hamja’s testimony.

The evidence of torture is likewise present in the testimony and findings of Dr. Joseph Andrew Jimenez who conducted the medical examination on the victim on December 5, 2008 , the day after he was found at the CIDG office by his son, Ahmad, and the CHR Investigation Team.

All throughout his detention before December 5, 2008 , Hamja was not submitted to a medical examination, either immediately after his arrest or prior to the supposed change in his custody from the NISF to the CIDG, as required under the PNP Manual of Operations. No documentation was ever made on his arrest and detention by the NISF or the CIDG from November 28, 2008 to December 2, 2008 . Neither the NISF nor the CIDG made any documentation whatsoever on the supposed turn-over of Hamja’s custody from the former agency to the latter, thus making the CIDG claim of non-custody of Hamja during the period when he was being tortured solely reliant upon the CIDG officials’ claim that it was the NISF who “handled” him from his arrest on November 28, 2008 until his turn-over to the CIDG on December 2, 2008.

As to Hamja’s own sworn statements, the same are not conclusive that he was not held by the CIDG from November 28 to December 2, 2008 as admittedly, he was blindfolded and could not identify either the men who were holding him or the place where he was being held. All that is definite is that upon the removal of his blindfold four days after he was forcibly taken, the first thing he saw was the CIDG office to where he was supposedly given a ride (“binyahe”) by his captors. As such, it is entirely possible that he was held by the CIDG in their office all the while and after four days, simply taken for a ride around the block before his blindfold was removed before the same CIDG office.

It was only upon Hamja’s supposed transfer from the NISF “handlers” to the CIDG office that the proper documentation of his arrest and detention was undertaken with the preparation and submission of the Return of the Alias Warrant of Arrest to the Regional Trial Court of Basilan and his eventual delivery to the jurisdiction of said court more than one month after his arrest. However, even after his supposed turn-over to the CIDG, Hamja was still being held incommunicado by the CIDG until his discovery by his son and the CHR Investigation Team on December 4, 2008 , as he was not allowed to communicate the fact of his detention to a counsel or relative.

With regard to the question of who was responsible for Hamja’s custody immediately after his arrest, his delivery to an unknown place blindfolded, and his interrogation and torture before he was supposedly delivered to the CIDG, the same is the subject of the concluding portions of this Resolution.

 

CONCLUSIONS

Arrest

The defense raised by the CIDG and the NISF throughout the proceedings in this case was that Muhamadiya Hamja was arrested by virtue of a valid Alias Warrant of Arrest issued by Judge Danilo M. Bucoy of the Regional Trial Court of Basilan.

The facts adduced, and the records in the possession of the Commission, are insufficient to arrive at a finding of an invalid or unenforceable alias warrant of arrest as insisted upon by Hamja through counsel. Not enough information, let alone proven facts, were brought to the Commission’s attention on this score.

Be that as it may, the fact remains that Hamja’s arrest was made in the most unlawful and irregular manner it can possibly be made.

There may have been a valid ground for Hamja’s arrest, but the manner the same was undertaken, the purpose for which it was made, and the attendant illegal acts and irregularities committed by the law enforcement and national security officials throughout Muhamadiya Hamja’s ordeal, all render his arrest and detention utterly unlawful and illegal.

It is during the event of an arrest that the rights of an individual are most highlighted for the very purpose of assuring that the person being deprived of his liberty will not likewise be deprived of his life. The arrest of Muhamadiya Hamja was made under circumstances contrary to the intent and purpose of the recognition of these rights. To say the least, the observation of such rights was farthest from the minds of the members of the arresting team, CIDG and NISF alike, from the very beginning.

Hamja’s arrest bears all the hallmarks of a classic abduction, not a legitimate arrest. Most of the arresting officers were not in uniform, in violation of existing regulations. Some of them were even observed by witnesses to be wearing ski masks.

After being physically immobilized by the team by being grabbed in the neck, Hamja was immediately dragged to a waiting vehicle, blindfolded and taken to a secret, undisclosed detention place. No introductions or explanations were made to Hamja after he was already physically restrained that he was being arrested by virtue of a warrant or that those making the arrests were law enforcement officers. Most importantly, no effort was made to notify anyone, including himself, where he was being taken or what his rights were under the law as an arrested person. The last omissions proved most conducive to holding Hamja incommunicado in a secret detention place where he was eventually interrogated and tortured.

Thus, from the point of view of an ordinary observer, the arrest of Hamja was executed in the fashion of an abduction, not a legitimate arrest. The events that followed thereafter only go to show that more than an arrest for purposes of delivering Hamja to the court which issued the warrant of arrest, the operation was actually an abduction for purposes of bringing Hamja to a secret detention place where he can be interrogated and tortured. The law cannot contemplate an arrest made under such circumstances to be a legitimate arrest. The law requires that once arrested, the person is brought to the nearest police station or jail and provided the assistance of counsel and communication with relatives, not blindfolded and taken incommunicado, interrogated, and tortured for four days in a secret detention place.

 

Detention

During the period November 28 to December 4, 2008, when Muhamadiya Hamja was nowhere to be found because of the fact that both the CIDG and the NISF did not allow him to communicate with either a relative or counsel, he can be logically inferred as having been held in a secret detention place because: one, his whereabouts were unknown to all including himself as he was blindfolded for the entire duration; second, his location at that time was not identified to his family or counsel; and lastly, the CIDG in particular has no record of his existence in their blotter or files. In effect, during this period, Muhamadiya Hamja was incommunicado with the rest of the world.

The detention of Hamja, either at an alleged NISF secret detention place or at the CIDG office of PSINSP Sy cannot be said to be the proper and legitimate detention places for an arrested person. As it happened, the commitment of Hamja to the proper jail or detention facility has been made more than two weeks after the arrest when he was finally transferred to the PNP Custodial Center prior to his delivery to the Regional Trial Court of Basilan on the first week of January, 2009.

Hamja could not be legally held incommunicado or held in a secret detention place for more than two weeks from November 28, 2008 until the middle of December, 2008 when he was transferred to the PNP Custodial Center . He could not be legally detained at the office of PSINSP Sy in the 2 nd Floor of the CIDG Bldg at Camp Crame from December 2, 2008 until he was transferred to the PNP Custodial Center around middle of December since the same cannot be considered as a detention place or jail under any circumstance. The CIDG cannot hide behind the flimsy excuse of citing the denial of the PNP Custodial Center to admit Hamja for lack of a Commitment Order. It was precisely their failure to secure the Order immediately which was the basis of the PNP Custodial Center ’s refusal.

The effort of the CIDG and the NISF to keep the whereabouts of Muhamadiya Hamja unknown to the outside world from the very start of his arrest cum abduction is therefore readily apparent. It must be recalled that the whereabouts of Hamja could not have been known if not for the actions of his son and this Commission. The intentional act of the CIDG and the NISF to keep the whereabouts of Hamja unknown to the outside world is a patent violation of the provisions of Republic Act No. 7438 (Act Defining Certain Rights of Persons Arrested, Detained or Under Custodial Investigation) and Art. 125 of the Revised Penal Code which assure an arrested individual that his whereabouts cannot remain unknown to his counsel or relatives, that he cannot be held incommunicado. The first order of the day for arresting law officers is to make the whereabouts of the arrested person known to his relatives or counsel and allow him to communicate with them. Otherwise, the rights granted to persons under arrest or detention are rendered nugatory, particularly the right to counsel and to be visited by relatives, physicians or ministers.

The danger sought to be avoided by the Constitution and the law is for any person who is arrested for a crime to be caught in a precarious situation and left defenseless and vulnerable at the hands of state authorities who have the vast power of the state at their disposal. Because of the gross violation of Hamja’s rights as an arrested person and utter disregard of the Constitution and the law by the CIDG and the NISF, Hamja had fallen prey to the mercy of state authorities who subjected him to interrogation, torture, and secret detention in order to force him to give information on the Abu Sayyaf.

All these acts and omissions on the part of the CIDG and the NISF are in clear violation of the law and the Constitution for which the guilty parties should be criminally and administratively held liable.

 

Torture

There is strong indication that Muhamadiya Hamja was subjected to torture from the moment he was blindfolded for four days, suffocated, electrocuted, beaten, and choked with his own turban while under the custody of the arresting team.

Torture and ill-treatment are explicitly proscribed under the 1987 Philippine Constitution. The United Nations Convention Against Torture establishes a regime of absolute prohibition on torture under any circumstances. “Torture” is defined in article 1 of the Convention as:

“Any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession punishing him for an act or a third person has committed or is suspected of having committed, or intimidating him or coercing him or a third person, or for any person based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.

As signatory to the Convention, the Philippines commits itself to ensure that under its criminal law, all acts of torture are offenses punishable by appropriate penalties.Torture is a serious human rights violation and an international crime. Its use is absolutely prohibited under any circumstance, as a matter of international law. The Philippines has been a state party to the UN Convention against Torture since 1987 and is thus obliged to take genuine steps to do away with such acts of inhumanity.” The recent passage of the much awaited Anti-Torture Act of 2009 (Republic Act No. 9745) can only serve to highlight the reprehensible nature of acts of torture and the Philippine government’s commitment to address more firmly specific proven instances of torture.

The CIDG officials would like to impress in their affidavits that they had nothing to do with Hamja’s whereabouts during the time he was tortured as he was allegedly then in the custody of the NISF.

According to the Joint Affidavit of PINSP Sy, SPO2 Molina, and PO3 Linatoc, Hamja “was handled by the NISF for documentation as a matter of operational courtesy, trust and confidence among the arresting elements.” The affidavits of PSS Nerez and PS Estomo are in the same tenor as the Joint Affidavit of the three members of the CIDG arresting team when they both relate that the NISF took custody of Hamja after he was arrested on November 28, 2008 and was only turned over to the CIDG on December 2, 2008 . By that time, Hamja already bore signs of torture.

Finally, the CIDG officials also point out to Hamja’s own sworn statements that he was blindfolded, interrogated and tortured in an undisclosed place before he was delivered to the CIDG.

The determination of who was in actual custody of Hamja from November 28 to December 2, 2008 is crucial. It was during this period that he was kept blindfolded, handcuffed, interrogated and tortured.

Although per the CIDG official’s disclaimers it can be reasonably argued that Hamja was indeed in the custody of the NISF when he was interrogated and tortured, this alone cannot absolve the CIDG officials from liability for Hamja’s maltreatment. The fact remains that Hamja was in CIDG’s custody when discovered, with no medical examination or turn-over documents to show that they only acquired custody over his person after he had already been tortured. Unfortunately, this Commission cannot exclusively rely on their own words to exculpate them from responsibility over the torture of Hamja, especially because of all the attendant irregularities and violations of law committed by said officials in the arrest and detention of Hamja.

The Commission is likewise not persuaded by the offered explanation of PSINSP Wilfredo V. Sy on the inconsistency between his statements, oral and written, before this Commission and his written claims in the 6 January 2009 Joint affidavit submitted to RTC-Basilan as to the factual issue of Hamja’s custody right after his arrest cum abduction. What is clear to the Commission is that PSINSP Sy’s representations before the Commission are at loggerheads with his written assertion before the RTC-Basilan.

Thus, in the absence of any documentation, Hamja appears to have been in the hands of the CIDG from the moment he was arrested on November 28, 2008 up to the time he was discovered in the CIDG office of PSINPS Sy by the CHR team on December 4, 2008 .

On the other hand, the liability of the NISF, then headed by Captain Antonio Habulan, is reinforced by the mere refusal of the NISF to participate in the investigation, by not sending its Commanders to shed light on their participation in the operation, and by making Captain Habulan conveniently unavailable all throughout the investigation and public inquiries conducted by the Commission.

Public officials can ignore orders and summons of this Commission, but at their own peril. The non-cooperation of the NISF in these investigations and public inquiries, i.e., the non-appearance by any of the summoned officers and operatives and the non-disclosure of the names of the members of the team which conducted the operation on Hamja, cannot be countenanced. The government's intelligence units are not beyond the scrutiny of civilian authorities like the Commission on Human Rights. This country remains under the Rule of Law, and not martial law. Members of the military and its sub-agencies are well reminded that they still operate within a system of government where the Constitution and the Bill of Rights reign supreme, and that no invocation of national security or war on terror can obliterate the fact that each individual human being has inalienable rights which should be respected and protected.

WHEREFORE, in view of the foregoing, the Commission hereby disposes of this case in the following wise:

SPO2 Cresendo M. Molina, PO3 Darwin M. Linatoc, PS Jonnel Estomo, PSS Isagani R. Nerez, Capt. Antonio Habulan, a certain Lt. de los Santos of the NISF, and several John Does, being members and immediate superiors of the joint CIDG-NISF-NICA arresting team responsible for the arrest, abduction, detention, and torture of Muhamadiya K. Hamja, for violation of Republic Act No. 7438 as penalized therein, and for the commission of crimes under the Revised Penal Code, specifically for: a) delay in the delivery of detained persons to the proper judicial authorities, b) unlawful arrest, c) maltreatment of prisoners, d) physical injuries, and e) coercion;

2) The Commission likewise RECOMMENDS to the proper disciplining authorities the filing of the proper administrative charges against the same police and military officials;

For these purposes, this Resolution and the records of this case are hereby ordered to be furnished to the National Police Commission, the Judge Advocate General’s Office, the Chief – Philippine National Police, the Chief of Staff of the Armed Forces of the Philippines, the Ombudsman for the Military, and the Office of the Prosecutor, for the filing of administrative charges and the determination of probable cause for the filing of criminal charges;

3) The Commission hereby ORDERS the Legal and Investigation Office (LIO), CHR, to file the necessary complaint for perjury before the Office of the City Prosecutor of Quezon City against PSINSP Wilfredo V. Sy for his misrepresentations under oath, specifically, by testifying in this Commission’s public inquiries and stating in his March 8, 2009 Joint Affidavit submitted to the Commission that Muhamadiya Hamja was taken by the NISF after his arrest and delivered to the CIDG office only on December 2, 2008 while stating in his January 6, 2009 Joint Affidavit to the RTC of Basilan that after Hamja’s arrest on November 28, 2009, he was taken to the NCR-CIDU, CIDG, Camp Crame by the arresting team;

4) Captains Antonio Habulan and Bayani Gaerlan as well as a certain Lt. de los Santos, all of the Naval Intelligence Security Force (NISF), are hereby ORDERED to explain within fifteen (15) days from their receipt of this Resolution why they should not be cited in contempt of this Commission for their non-appearance in its public inquiries despite Order and due notice, and for not disclosing the names of the military personnel under their command involved in the arrest and detention of Muhamadiya K. Hamja; and

5) Finally, the Commission RECOMMENDS to the leadership of both the AFP and PNP to improve their procedural guidelines, rules and regulations governing the proper turn-over, documentation and record keeping of arrested and detained persons within their authority.  

SO RESOLVED .

Done this 21 st day of December 2009, Quezon City , Philippines .

 

LEILA M. DE LIMA
Chairperson

CECILIA RACHEL V. QUISUMBING
MA. VICTORIA V. CARDONA
Commissioner
Commissioner
   
NORBERTO DELA CRUZ
JOSE MANUEL S. MAMAUAG
Commissioner
Commissioner

 

ATTESTED BY:

 

MARIA ASUNCION I. MARIANO-MARAVILLA
Commission Secretary

 

Copy Furnished:

1. P/Ssupt. Franklin Jesus Bucayu
Chief, PNP HRAO
Philippine National Police
Camp Crame , Quezon City

2. Col. Onesimo Bañaga
Chief, Human Rights Office
Armed Forces of the Philippines
Camp Aguinaldo , Quezon City

3. Gen. Raul Castaneda
Chief/Director
CIDG, Philippine National Police
Camp Crame , Quezon City

4. Atty. Isagani R.Nerez, P/Supt. (DSC)
Criminal Investigation Detention Group
Philippine National Police
Camp Crame , Quezon City

5. P/Supt. Jonnel Estomo
P/Inspector Wilfredo V. Sy
SPO2 Cresendo Molina
PO2 Darwin Linatoc
Criminal Investigation and Detection Group
Philippine National Police
Camp Crame , Quezon City

6. The Chief and /or Records Custodian
Land Transportation Office
Quezon City

7. Mr. Ahmad Hamja
Maharlika Village , Taguig City

8. Atty. Pura Ferrer Calleja
Counsel for Mr. Ahmad Hamja
Maharlika Village , Taguig City

9. Capt. Bayani R. Gaerlan
Commander
Naval Intelligence Service Forces
Fort Bonifacio , Taguig City

10 . Mr. Pedro R. Cabuay
Director-General
National Intelligence and Coordinating Agency
Quezon City

11 . Atty. Flora Atilano
Director, Legal and Investigation Office
Commission on Human Rights
UP Complex, Diliman, Quezon City

12.Hon. Ronaldo V. Puno
Chairman
NAPOLCOM
371 Gil Puyat Avenue , Makati City

13. Col. Gilberto Jose C. Roa
The Judge Advocate General’s Office
Camp Aguinaldo , Quezon City

14. Gen. Victor S. Ibrado
CHIEF OF STAFF, AFP
Camp Aguinaldo , Quezon City

15. Hon. Emilio A. Gonzalez III
Deputy Ombudsman - MOLEO
Office of the Ombudsman
3rd Floor Ombudsman Building ,
Agham Road, North Triangle,
Diliman, Quezon City 1101

16. Hon. Agnes VST Devanadera
Secretary, Department of Justice
Padre Faura St. , Ermita, Manila
December 5, 2008 Investigation Report.

Sinumpaang Salaysay of Muhamadiya Hamja, December 4, 2008.

Medical Evaluation of Torture, Physical Injury and Ill-Treatment Report (MPT-08-16).

TSN, pp. 32-34, December 12, 2008.

TSN, p. 46, December 12, 2008.

TSN, p. 30, December 12, 2008

TSN, pp. 5-6, January 8, 2009.

TSN, p. 50-51, January 8, 2009.

TSN, pp. 61 & 64, January 8, 2009.

Affidavit of Muhamadiya Hamja, January 22, 2009.

bid.

Capt. Antonio Habulan’s, Manifestation, January 26, 2009

TSN, pp. 13-16, February 18, 2009; Joint Affidavit of PSINSP Wilfredo V. Sy and SPO2 Cresendo

Molina, January 6, 2009.

TSN, pp.13-16, February 18, 2009

Affidavit of Atty. Isagani R. Nerez, March 8, 2009.

Affidavit of P/SUPT. Jonnel Estomo, March 8, 2009.

Joint Affidavit of P/INSP. Wilfredo V. Sy, SPO2 Cresendo M. Molina and PO3 Darwin M. Linatoc, March 8, 2009.

After Mission Report, January 23, 2009

Sec. 7. of the PNP Manual of Operations requires the Physical Examination of the Arrested Person/ Suspect – Immediately after the arrest of a person ordered arrested by the court, or of a suspect under investigation, he should be subjected to a physical examination by a medico-legal officer or, in the absence of such medico-legal officer, by any government physician in the area. Prior to his release or any change of custody, the suspect shall also be physically examined.

Rule 3 of the PNP Manual of Operations enunciates that generally, all police intervention operations (arrest, raid, search and seizure, checkpoint, etc) shall be conducted: a) With a marked police vehicle;b) Preferably led by a Commissioned Officer; c) With personnel in proper police uniform (italics supplied)

Sec.4. Arrests by virtue of a Warrant of Arrest - PNP Manual of Operations: b) When making an arrest by virtue of a warrant, the officer shall inform the person to be arrested of the cause of the arrest and of the fact that a warrant has been issued for his arrest, except when he flees or forcibly resists before the officer has the opportunity to so inform him or when giving of such information will imperil the arrest. The officer need not have the warrant in his possession at the time of the arrest, if the person arrested so requires, the warrant shall be shown to him as soon as practicable.

Sec.4. Arrests by virtue of a Warrant of Arrest- PNP Manual of Operations: a) It shall be the duty of the officer executing the warrant to arrest the accused without unnecessary delay and deliver him to the nearest police station or jail.

See also following footnote.

SECTION 1. Statement of Policy. – It is the policy of the State to value the dignity of every human being and guarantee full respect for human rights.

SEC. 2. Rights of Persons Arrested, Detained or Under Custodial Investigation; Duties of Public Officers. – (a) Any person arrested, detained or under custodial investigation shall at all times be assisted by counsel.

(b) Any public officer or employee, or anyone acting under his order or in his place, who arrests, detains or investigates any person for the commission of an offense shall inform the latter, in a language known to and understood by him, of his rights to remain silent and to have competent and independent counsel, preferably of his own choice, who shall at all times be allowed to confer privately with the person arrested, detained or under custodial investigation. xxx

(f) Any person arrested or detained or under custodial investigation shall be allowed visits by or conferences with any member of his immediate family, or any medical doctor or priest or religious minister chosen by him or by any member of his immediate family or by his counsel, or by any national non-governmental organization duly accredited by the Commission on Human Rights or by any international non-governmental organization duly accredited by the Office of the President. xxx

Art. 125. Delay in the delivery of detained persons to the proper judicial authorities. — The penalties provided in the next preceding article shall be imposed upon the public officer or employee who shall 1detain any person for some legal ground and shall fail to deliver such person to the proper judicial authorities within the period of twelve (12) hours, for crimes or offenses punishable by light penalties, or their equivalent; eighteen (18) hours, for crimes or offenses punishable by correctional penalties, or their equivalent and thirty-six (36) hours, for crimes, or offenses punishable by afflictive or capital penalties, or their equivalent.

In every case, the person detained shall be informed of the cause of his detention and shall be allowed upon his request, to communicate and confer at any time with his attorney or counsel. (As amended by E.O. Nos. 59 and 272, Nov. 7, 1986 and July 25, 1987, respectively)

Section 12, Article III of the 1987 Philippine Constitution states: xxx (2) No torture, force, violence, threat, intimidation, or any other means which vitiates the free will shall be used against him. Secret detention places, solitary, incommunicado, or other similar forms of detention are prohibited.

Section 19 xxx 2) The employment of physical, psychological, or degrading punishment against any prisoner or detainee, or the use of substandard or inadequate penal facilities under subhuman conditions shall be dealt with by law.”

Convention Against Torture.

Alberto T. Muyot, Philippine Law and Jurisprudence (The Institute of Human Rights University of the Philippines Law Center, 1999), p.70

Revised Penal Code, Art. 235. Maltreatment of prisoners. — The penalty of arresto mayor in its medium period to prision correccional in its minimum period, in addition to his liability for the physical injuries or damage caused, shall be imposed upon any public officer or employee who shall overdo himself in the correction or handling of a prisoner or detention prisoner under his charge, by the imposition of punishment not authorized by the regulations, or by inflicting such punishment in a cruel and humiliating manner.

If the purpose of the maltreatment is to extort a confession, or to obtain some information from the prisoner, the offender shall be punished by prision correccional in its minimum period, temporary special disqualification and a fine not exceeding 500 pesos, in addition to his liability for the physical injuries or damage caused.

Balay Rehabilitation Center, Inc. “ Recommendations on the 60 th year of the Universal Declaration of Human Rights on the Advancement of the Inherent and Non-Derogable Right not to be Tortured,” Rehabilitation and Research Centre for Torture Victims.