Perversion of habeas corpus writ indicates breakdown in justice system

A Statement by the Asian Human Rights Commission
October 18, 2011

The Asian Human Rights Commission (AHRC) is disappointed by a local court’s unnecessarily delay in concluding the habeas corpus writ of torture victim Abdul Khan Ajid. The purpose of the writ was to question the legality of Ajid's detention in the place of the real accused, Kanneh Malikil, member of the Abu Sayaff Group (ASG), an illegal armed group involved in kidnap-for-ransom activities. In essence, the court delay serves to justify Ajid’s arbitrary detention.

Ajid is presently detained at the provincial jail in Isabela City, and is now on self-help treatment for the injuries he suffered due to brutal torture, following limited medical treatment from a local hospital. Ajid was submerged in a drum filled with water, and the neck of a bottle was inserted into his anus and set on fire by soldiers in Basilan, Mindanao, after his arrest on July 23, 2011 (for further details please see AHRC-UAC-157-2011).

Details of the habeas corpus petition

On July 27 at 11:05am, Ajid's wife, Noraisa Imban Induh, filed a habeas corpus petition on behalf of her husband with "prayer for the production of the warrant of arrest"i at the Regional Trial Court (RTC), 9th Judicial Region in Isabela, Basilan. At 3pm of the same day, the soldiers produced her husband in court in compliance with the order of Judge Leo T. Principe of RTC, Branch I. After Ajid was forcibly taken from his home on July 23, his wife and family next saw him on that day in court.

Rather than ruling on whether Ajid's custody and subsequent detention in place of the real accused had legal grounds, Judge Principe issued a remand order for Ajid's detention. Moreover, the judge did not dismiss or resolve the writ petition promptly; he instead scheduled court hearings, as if it were a criminal trial. The remand order made Ajid's detention appear de facto as legal. Since July 23, Ajid has been detained with no criminal charges and arrest orders under his name.

Since the petition was filed on July 27, the hearing was postponed on numerous occasions for reasons like "lack of material time"ii, "the respondent's counsel is out of town"iii and the respondent could not produce one of his witnesses who was "still in engaged in combat operations in the mountains"iv. Finally, when the hearing was scheduled to be heard, the respondents did not appear because they "will no longer present their witnesses", thus postponing the hearing again.

Charges against Kanneh Malikil, not Abdul Khan Ajid

In justifying their illegal arrest and detention of Ajid, the soldiers invoked that Ajid and Kanneh Malikil are the same person. However, it was only Malikil's name that appeared in Criminal Cases 3608-1162, 3611-1165, 3537-1129, 3674-1187, filed before the Regional Trial Court (RTC) of Basilan, Branch 2 in 2004, for charges of "Kidnapping and serious illegal detention with Ransom defined and Penalized under Article 267 of the Revised Penal Code of the Philippines, as Amended by R.A. 7659".

In a petition for amendment dated April 22, 2004 Prosecutors Domingo Kinazo and Ricardo Cabaron included Maliki’s name as the person "identified and positively pointed to by the complaining victims and material witnesses for the prosecution" as "among the captors and responsible in the kidnapping and taking of the victims as their hostages". Ajid's name however, cannot be found.

Any authentic arrest orders should have been procedurally served by the police, not the soldiers. Similarly, it is the police who should have taken custody of any persons as ordered by the court. Soldiers have no police powers and no legal authority to serve arrest orders. Furthermore, RTC Branch 2, which has the original jurisdiction to the criminal cases, should be issuing any arrest and remand orders, not RTC Branch 1.

Court's perversion of writ petition

It can thus be seen that from the very beginning, Ajid has been deprived of due process – first, by soldiers usurping police powers in arresting persons in place of the real accused, and second, by a court that is meant to hear only the merit of a habeas corpus petition, issuing a remand order for the victim's detention in place of the court with jurisdiction over the criminal cases.

Additionally, when Ajid's wife and NGOs supporting her petition requested the court and the provincial jail where Ajid is presently detained for a copy of Judge Principe's remand order, both institutions refused. Neither institution offered any explanation for the refusal. Furthermore, no transcripts of writ petition hearings are made promptly available to petitioners. This is despite the existence of Rule 102 (d) of the Rules of Court: "a copy of the commitment or cause of detention of such person" is required to be given to habeas corpus petitioners. In essence, the inability of the court system to produce arrest orders and transcripts of the hearing has meant a tolerance of Ajid’s detention.

Ajid's quest in prosecuting the soldiers involved in torturing him under the Anti-Torture Act of 2009 has been undermined by the military establishment’s protective stance towards the responsible soldiers. At the time of writing, apart from the administrative charges made by the military’s own internal disciplining mechanism, no criminal charges have been filed against the soldiers.

According to legal principles, the habeas corpus petition should have focused entirely on the legality of Ajid's detention, not on his guilt or innocence. The petition requires urgency since it "is the only legal remedy for obtaining his release, in order to avoid his detention for an unreasonable period of time". Therefore, the habeas corpus petition is a proceeding based on the right to adequate remedy, not a criminal trial. The soldiers' deliberate attempts to delay the proceedings left the family vulnerable to bribery attempts by the respondents, through military agents who relayed their intention to settle the case out of court.

Bribery attempt

Ajid’s sister Haniba, in July 2011, was offered the amount of P500,000 pesos (USD11,600) as well as the cost of Ajid’s hospital expenses, by a person she personally knew to be attached to the military, in exchange for an "out of court settlement". Haniba was fortunately strong enough to refuse any financial offers in exchange for withdrawing their complaint. This is understandably not the case with many victims and their families however.