6 JANUARY 2010

CHR PUBLIC INQUIRY ON ARREST AND DETENTION OF MUHAMADIYA HAMJA: “BEARS THE HALLMARKS OF A CLASSIC ABDUCTION, NOT A LEGITIMATE ARREST” 

On 6 January 2010 , the Commission on Human Rights set the tone for the new calendar year with the issuance of CHR (IV) Resolution No. A2009-172 (CHR Case No. 2009-046), dispensing with the case entitled IN THE MATTER OF: THE DISAPPEARANCE AND/OR ARREST AND DETENTION OF MUHAMADIYA K. HAMJA. After a year of public inquiry on the case, the CHR had recommended the initiation of appropriate criminal and administrative charges against members of the police and military involved in the operation against Hamja, for the patent illegality of arrest, detention and torture of Hamja, a suspected terrorist.

CHR Chairperson Leila De Lima said, prior to the release of the Resolution, “We had held back on finalizing and issuing the Resolution if only to avoid souring the holidays for the PNP/CIDG officers/personnel concerned. However, where we have found persons culpable for human rights violations, they must eventually be held responsible, as now they will be.”

“The new year will only bring more of the same doggedness from the CHR,” De Lima added. “This Resolution of the Hamja Case is only the beginning, more will follow, and we fully expect to sustain our efforts to enforce human rights protection. The Resolution in the Parañaque case involving the deaths of innocent civilians, including the father and daughter De Veras, is also due for release any day now.”

 

BACKGROUND FACTS

On November 28, 2008 , Muhamadiya Hamja was apprehended by armed men in civilian clothes and forced into a white van after attending afternoon prayers at the Blue Mosque along Mindanao Ave. , Maharlika Village , Taguig City . After a frenetic but futile search initially, relatives approached the CHR through the assistance of the civil society group Karapatan.

Ahmad Hamja, the son of the abducted, filed a human rights complaint, upon which the CHR issued a Mission Order dated 3 December 2008 , directing a Composite Investigation Team to proceed to the Southern Police District Office, Maharlika Village and the Intelligence Services Headquarters of the AFP.

The team also opted to visit the Criminal Investigation and Detection Group (CIDG) at Camp Crame , Quezon City , on 4 December 2008 , where they accidentally discovered Muhamadiya Hamja in the office of PSINSP Wilfredo V. Sy. Hamja apparently had been arrested by virtue of an alias arrest warrant, under suspicion that he was a member of the Abu Sayyaf Group (ASG).

The team had observed that Hamja appeared weak and his eyes were dark red, as if they were bleeding. He had a wound on his nose and hands. In a medical evaluation, a CHR physician concluded that Hamja had sustained torture injuries.

 

INVESTIGATION OF THE CHR

The initial reports of the investigation team, finding Hamja was held incommunicado for 6 days and subjected to torture, warranted a full blown public inquiry by the CHR, which began on 12 December 2008 .

The NCR Chief of the CIDG, PSS Isagani R. Nerez testified that the arrest of Hamja was a joint operation between the CIDG, Naval Intelligence and Security Force (NISF) and the National Intelligence and Coordinating Agency (NICA). The CIDG contingent was led by PSINSP Sy, who was accompanied by SPO2 Cresendo Molina and PO2 Darwin Linatoc, all under the supervision of PS Jonnel Estomo. The arresting team used both a red Toyota Lite Ace and a white Toyota Revo service vehicle.

PSINSP Sy admitted that he was part of the arresting team and testified that he was not in the proper police uniform at the time of the arrest. He also testified that the CIDG only had custody of Hamja on 2 December 2008 , or 4 days after the arrest was effected. However, the CHR obtained Sy's joint affidavit to the RTC of Basilan, wherein he averred that on 28 November 2008 , Hamja was brought to the CIDG Headquarters at Camp Crame and transferred to the PNP Custodial Center . The discrepancy between his testimony at the public inquiry and his affidavit to the RTC of Basilan was scrutinized by the CHR officials during the public inquiry.

PSS Nerez clarified that he had no knowledge of Hamja's whereabouts until the latter was turned over to the CIDG on December 2. Only after the fact was Nerez informed of the arrest. PS Estomo in turn testified that he personally received Hamja from NISF but no turn-over receipt was made on the justification that the arrest was a joint operation between NISF and CIDG.

Curiously, NISF, through a Manifestation signed by the NISF Commander at the time, Capt. Antonio Habulan, denied any involvement beyond providing the CIDG with intelligence information and identification of Hamja during the arrest. Habulan further stated that Hamja did not resist arrest after being shown the warrant of arrest. NISF did not provide the names of its operatives and refused to participate further in the public inquiry before the CHR, save for a written manifestation of the new NISF Commander, Capt. Bayani R. Gaerlan, adopting the previous manifestation of Capt. Habulan.

From the CIDG contingent, SPO2 Molina and PO2 Linatoc stated in a joint affidavit that Hamja was handled by NISF from the time of arrest until December 2.

Meanwhile, Hamja stated in a supplemental sworn statement that he was grabbed by the neck during the arrest then blindfolded, and when he denied being a member of the ASG, his captors covered his head with a plastic bag, hit him with a blunt object on the ribs, electrocuted him and choked him with his turban. Hamja added that even until his alleged transfer to the CIDG office, where we was no longer blindfolded, he was not allowed to contact anyone.

 

CHR’s FINDINGS OF FACT and CONCLUSIONS

The CHR Resolution states that while there may be a valid alias arrest warrant upon the person of Hamja, such arrest and the ensuing detention had been conducted “in the most unlawful and irregular manner”. While the arrest may have been based on valid grounds, the manner and the attendant irregularities “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 Resolution states. “Hamja's arrest bears all the hallmarks of a classic abduction, not a legitimate arrest.”

His detention was profoundly illegal and it can be “logically inferred [he was] held in a secret detention place”. He was blindfolded for at least 4 days, his location was not communicated to his relatives and CIDG had no record of his detention in their blotter or files. Effectively, “Hamja was held incommunicado”, in clear violation of the Bill of Rights under the Philippine Constitution and several statutes.

Further, the statements of CIDG officers that Hamja was brought to the RTC on December 6 or a full 8 days after his arrest is also a clear violation of Art. 125 of the Revised Penal Code (RPC), which provides a maximum of 36 hours for arresting officers to deliver the accused to judicial authorities. Neither NISF facilities, the office of PSINSP Sy nor a secret detention facility are considered judicial authorities. To compound it further, the PNP Manual of Operations and the RPC require that upon arrest, the accused must be delivered to the nearest police station or jail without unnecessary delay. Again, none of the above mentioned places are characterized as police stations or jails.

In violation again of the PNP Manual, Hamja was not medically examined immediately after his arrest or prior to his supposed transfer to CIDG from the NISF. The irregularities add up in the detention of Hamja, notably the absence of proper documentation of his arrest and the absence of a turn-over receipt as stated by the CIDG. The lack of any official documentation of his detention, especially from November 28 to December 2, makes the CIDG claim of non-custody until December 2 solely reliant upon the CIDG officials' claim that NISF had custody.

According to the Resolution, the physical condition of Hamja at the time, as reported by the CHR physician, “is consistent with his claims of torture”. On the other hand, “his physical condition is inconsistent with the statements of authorities” conducting the arrest. If indeed Hamja did not resist arrest, as stated by the NISF, “how did Hamja sustain his injuries”?

There are strong indications that Hamja had in fact been tortured, in gross violation again of the Bill of Rights and the UN Convention Against Torture. Torture is defined in the UN Convention Against Torture, to which the Philippines is a signatory. It states thus, “Any act by which severe pain... is inflicted on a person for such purposes as obtaining... information or confession..”

According to the CHR Resolution, the CIDG officials tried to impress the opinion that Hamja was tortured during his detention under the NISF. While Hamja himself stated that he was tortured before being delivered to the CIDG, it must be noted that Hamja was blindfolded the whole time and there is no reason to believe that he could have known who his custodians were during the time.

Meanwhile, the liability of the NISF is “reinforced by the mere refusal... to participate in the investigation”. The Resolution underscores that intelligence units “are not beyond the scrutiny of civilian authorities like the CHR”.

In view of the findings, the CHR, by virtue of its recommendatory powers, urges the Department of Justice to file the proper criminal charges against the members of the arresting team and their immediate supervisors for several crimes including the delay in delivery of the accused to the proper authorities, maltreatment of prisoners, physical injuries, coercion and torture. In addition, the CHR calls on the proper disciplining authorities to file the appropriate administrative charges against the same officials. The CHR-Legal and Investigation Office has been ordered to file perjury charges against PSINSP Sy with the local city prosecutor's office. Finally, the NISF officials who had refused participation in the inquiry are directed to explain their non-appearance, else be charged with contempt of the CHR.

“We have to emphasize that the CHR's function is recommendatory, and we must allow the justice system to function as well,” De Lima added. “The DOJ and the proper agencies will have our findings, and we will remain vigilant to ensure that the process hereafter takes its due course especially in the DOJ.”

Asked on her opinion of the NISF's non-participation in the inquiry, De Lima said, “The NISF is not off the hook yet. Compelling them to toe the line is part of enforcing the justice system. Contempt proceedings are forthcoming if they continue with their conduct and disrespect of the Commission's powers. As far as the CIDG is concerned, they are now at the disposal of the DOJ and other authorities. But as for the NISF, this isn't over yet.