The Court of Appeals (CA) has denied the application for protective writs of red-tagged environmental activists Jonila Castro and Jhed Tamano, leading a dissenting justice to say it was “uncharacteristic for.. this Court to simply fold their arms and ignore the palpable threats.”

The CA former special 8th division ruled by split decision to deny the petition for the writs of amparo and habeas data to Castro and Tamano, the two young activists who declared in a military-organized press conference that it was the army which abducted them. The court ruled that the activists “failed to sufficiently identify that the perpetrators of their abduction are, in fact, affiliated with the Philippine military or any of the government agencies.”

The privileges of the writ of amparo, if it had been granted, would have acted like a restraining order against members of the 70th Infantry Battalion of the Philippine Army, and the privileges of the writ of habeas data would have prevented members of the National Task Force to End Local Communist Armed Conflict (NTF-ELCAC) from red-tagging the two.

But justices of the CA division won the vote to deny the privileges. This is after conducting hearings as ordered by the Supreme Court which already granted the activists temporary protection order in October 2023, which is rarely extended to activists these days. By procedure, it’s the CA that should conduct a full hearing to decide whether the full protection will be granted, which was denied in this case.

Castro and Tamano were abducted in Bataan on September 2, 2023. The military claims the pair voluntarily surrendered as “rebel returnees” on September 12, 2023, and were presented in a press conference on September 15, 2023.

“The records are bereft of any proof linking the actual abductors to any agency of the government,” said the decision dated August 2, 2024, and penned by Associate Justice Lorenza Bordios, with full concurrences from Associate Justices Fernanda Lampas Peralta and Jaime Fortunato Caringal. Associate Justice Rex Bernardo Pascual concurred and dissented.

The full dissenter was Associate Justice Emily San Gaspar-Gito who said, “It would be uncharacteristic for the courts, especially this Court, to simply fold their arms and ignore the palpable threats to petitioners’ life, liberty and security and just wait for the irreversible to happen to them.”

The decision and dissent The writs of amparo and habeas data are extraordinary protective writs which were innovations of the Philippine judiciary in response to the problems of extrajudicial killings and enforced disappearances. It had been constantly criticized for lacking teeth in actually protecting harassed and surveilled human rights defenders. For example, activist Zara Alvarez lost her writs case at the Court of Appeals, which she elevated to the Supreme Court. But she was killed by gunmen in her hometown in 2020 before the High Court could act.

The CA division for this case said that Castro and Tamano failed to prove that they were subjected “to any form of threat to their life, liberty, or security during the latter’s stay at the military camp of the 70th Infantry Battalion,” or from September 12 to 15, 2023. The CA also said the two “miserably failed to prove the existence of an imminent or continuing threat” since being released on September 15, 2023.

Castro and Tamano have continued their activism work, mostly protesting against reclamation. They claim that the red-tagging, or labeling them as armed communist rebels, had continued.

Dissenting justice San Gaspar-Gito pointed out the Supreme Court’s landmark decision, made public in May 2024, that declared for the first time that red-tagging is a threat to life, liberty and security. That decision was also an amparo grant.

“The danger of further harm against petitioners is real, considering that they have recently been victims of enforced disappearance, which is the subject of the instant Petition,” said the justice’s dissenting opinion.

The dissenting justice questioned why the military could not account for the days that the activists were missing, or from their abduction on September 2 to their supposed surrender on September 12.

The army claimed that informants and operatives named “Bea” and “Bert” accompanied Castro and Tamano to their headquarters after the surrender. But Bea and Bert were not presented as witnesses.  “Despite the vast machinery and resources of the State, witnesses for the respondents could muster only vague and tentative answers,” said Justice San Gaspar-Gito.

For the majority justices, it’s Castro and Tamano who should prove their accusations against the army, and that they “cannot be permitted to fumble in the dark, hoping to find the light switch.”

But for the dissenting justice, the State should have done due diligence in investigating what happened to Castro and Tamano from September 2 to September 12. The local police identified the registered owner of the vehicle that was used in the two’s abduction, but “neither tracing nor probing was done” by the police or the military, said Justice San Gaspar-Gito.

In an earlier case of abduction of two activists from Cebu, the independent Commission on Human Rights (CHR) traced a vehicle, and a person, involved in the abduction to the army’s intelligence service. There is no known update to that investigation, as the Philippine military pivoted to external security, mostly over a territorial dispute with China.

The majority justices said that “assuming that public officials…failed to exercise extraordinary diligence, the same does not justify the granting of the privilege of the writ of amparo and habeas data.”

Next actions The NTF-ELCAC held a press conference on Monday, August 12, to hail the decision as a win “against a foregone ideology.” Castro and Tamano had already been indicted for slander or grave oral defamation for their accusations against the military. The NTF-ELCAC’s original perjury complaint was dismissed.

But asked on Monday whether a case will be filed against Castro and Tamano after the CA decision, the NTF-ELCAC’s lawyer, Assistant Solicitor General Angelita Miranda said: “At this point in time I don’t want to say whatever legal actions we will do, but surely we will.”

“The future actions will be revealed in due time…We’re going to resort to all legal means,” said Miranda.

Dino De Leon, lawyer of Castro and Tamano said: “We believe that the Honorable Court of Appeals committed reversible errors. We will file the appropriate remedy.”

“If the respondents will not be held accountable and responsible to the petitioners’ abduction, state impunity is exacerbated necessarily signaling to society that perpetrators can evade accountability and justice. Addressing these heinous acts is not merely a matter of legal obligation but a moral imperative,” said Castro and Tamano in a manifestation submitted to the CA after their hearings were conducted.