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Human Rights Treaties in Philippine Jurisprudence

1. Boris Mejoff v. Director of Prisons, G.R. No. L-4254, September 26, 1951
2. Marcos v. Manglapus, G.R. No. 88211, September 15, 1989
3. Government of Hong Kong v. Olalia, G.R. No. 153675, April 19, 2007
4. ISAE v. Quisumbing, G.R. No. 128845, June 1, 2000
Human Rights in Action

Mr. Justice Paras, now Chief Justice, Mr. Justice Feria, Mr. Justice Perfecto, and the writer
of this decision dissented. Mr. Justice Feria and Mr. Justice Perfecto voted for outright
discharge of the prisoner from custody. Mr. Justice Paras qualified his dissent by stating
that he might agree "to further detention of the herein petitioner, provided that he be
released if after six months, the Government is still unable to deport him." This writer joined
in the latter dissent but thought that two months constituted reasonable time.

The Commission on Human Rights


Read and memorize Article XIII, Section 17 to 19
1. Carino v. CHR, G.R. No. 96681, December 2, 1991
2. Simon v. CHR, G.R. No. 100150, January 5, 1994
3. EPZA v. CHR, G.R. No. 101476, April 14, 1992

Over two years having elapsed since the decision aforesaid was promulgated, the
Government has not found way and means of removing the petitioner out of the country,
and none are in sight, although it should be said in justice to the deportation authorities, it
was through no fault of theirs that no ship or country would take the petitioner.

The Writ of Amparo


1. Infant Julian Yusa v. Atty. Segui, G.R. No. 193652, August 5, 2014
2. Navia v. Pardico, G.R. No. 184467, June 19, 2012
3. Canlas v. NAPICO Homeowners Association, G.R. No. 182795, June 5, 2008
4. Secretary of Defense v. Manalo, G.R. No. 180906, October 7, 2008
The Writ of Habeas Data
1. Vivares v. St. Theresas College, G.R. No. 180906, October 7, 2008
2. Gamboa v. Chan, G.R. No. 193636, July 24, 2012
The Ugly Scars of the Marcos Regime:
An Ongoing Quest for Human Rights Victims Reparation and Recognition
Read and memorize Republic Act No. 10368 Human Rights Victims Reparation and
Recognition Act of 2013
1. Mijares v. Ranada, G.R. No. 139325, April 12, 2005
2. Republic v. Tuvera, G.R. No. 148246, February 16, 2007

BORIS MEJOFF, petitioner, vs.THE DIRECTOR OF PRISONS,


This is a second petition for habeas corpus by Boris Mejoff, the first having been denied in
a decision of this Court of July 30, 1949. The history of the petitioner's detention was thus
briefly set forth in that decision, written by Mr. Justice Bengzon:
The petitioner Boris Mejoff is an alien of Russian descent who was brought to this country
from Shanghai as a secret operative by the Japanese forces during the latter's regime in
these Islands. Upon liberation he was arrested as a Japanese spy, by U.S. Army Counter
Intelligence Corps. Later he was handed to theCommonwealth Government for disposition
in accordance with Commonwealth Act No. 682. Thereafter, the People's Court ordered his
release. But the deportation Board taking his case up, found that having no travel
documents Mejoff was illegally in this country, and consequently referred the matter to the
immigration authorities. After the corresponding investigation, the Board of commissioners
of Immigration on April 5, 1948, declared that Mejoff had entered the Philippines illegally in
1944, without inspection and admission by the immigration officials at a designation port of
entry and, therefore, it ordered that he be deported on the first available transportation to
Russia. The petitioner was then under custody, he having been arrested on March 18,
1948. In May 1948 he was transferred to the Cebu Provincial Jail together with three other
Russians to await the arrival of some Russian vessels. In July and August of that year two
boats of Russian nationality called at the Cebu Port. But their masters refused to take
petitioner and his companions alleging lack of authority to do so. In October 1948 after
repeated failures to ship this deportee abroad, the authorities removed him to Bilibid Prison
at Muntinglupa where he has been confined up to the present time, inasmuch as the
Commissioner of Immigration believes it is for the best interests of the country to keep him
under detention while arrangements for his departure are being made.
The Court held the petitioner's detention temporary and said that "temporary detention is a
necessary step in the process of exclusion or expulsion of undesirable aliens and that
pending arrangements for his deportation, the Government has the right to hold the
undesirable alien under confinement for a reasonable lenght of time." It took note of the
fact, manifested by the Solicitor General's representative in the course of the of the oral
argumment, that "this Government desires to expel the alien, and does not relish keeping
him at the people's expense . . . making efforts to carry out the decree of exclusion by the
highest officer of the land." No period was fixed within which the immigration authorities
should carry out the contemplated deportation beyond the statement that "The meaning of
'reasonable time' depends upon the circumstances, specially the difficulties of obtaining a
passport, the availability of transportation, the diplomatic arrangements with the
governments concerned and the efforts displayed to send the deportee away;" but the
Court warned that "under established precedents, too long a detention may justify the
issuance of a writ of habeas corpus."

Aliens illegally staying in the Philippines have no right of asylum therein (Sowapadji vs.
Wixon, Sept. 18, 1946, 157 F. ed., 289, 290), even if they are "stateless," which the
petitioner claims to be. It is no less true however, as impliedly stated in this Court's
decision, supra, that foreign nationals, not enemy against whom no charge has been made
other than that their permission to stay has expired, may not indefinitely be kept in
detention. The protection against deprivation of liberty without due process of law and
except for crimes committed against the laws of the land is not limited to Philippine citizens
but extends to all residents, except enemy aliens, regardless of nationality. Whether an
alien who entered the country in violation of its immigration laws may be detained for as
long as the Government is unable to deport him, is a point we need not decide. The
petitioner's entry into the Philippines was not unlawful; he was brought by the armed and
belligerent forces of a de facto government whose decrees were law furing the occupation.
Moreover, by its Constitution (Art. II, Sec. 3) the Philippines "adopts the generally accepted
principles of international law as part of the law of Nation." And in a resolution entitled
"Universal Declaration of Human Rights" and approved by the General Assembly of the
United Nations of which the Philippines is a member, at its plenary meeting on December
10, 1948, the right to life and liberty and all other fundamental rights as applied to all
human beings were proclaimed. It was there resolved that "All human beings are born free
and equal in degree and rights" (Art. 1); that "Everyone is entitled to all the rights and
freedom set forth in this Declaration, without distinction of any kind, such as race, colour,
sex, language, religion, political or other opinion, nationality or social origin, property, birth,
or other status" (Art. 2): that "Every one has the right to an effective remedy by the
competent national tribunals for acts violating the fundamental rights granted him by the
Constitution or by law" (Art. 8); that "No one shall be subjected to arbitrary arrest, detention
or exile" (Art. 9); etc.
In U. S. vs. Nichols, 47 Fed. Supp., 201, it was said that the court "has the power to
release from custody an alien who has been detained an unreasonably long period of time
by the Department of Justice after it has become apparent that although a warrant for his
deportation has been issued, the warrant can not be effectuated;" that "the theory on which
the court is given the power to act is that the warrant of deportation, not having been able
to be executed, is functus officio and the alien is being held without any authority of law."
The decision cited several cases which, it said, settled the matter definitely in that
jurisdiction, adding that the same result had reached in innumerable cases elsewhere. The
cases referred to were United States ex rel. Ross vs. Wallis, 2 Cir. 279 F. 401, 404;
Caranica vs. Nagle, 9 Cir., 28 F. 2d 955; Saksagansky vs. Weedin, 9 Cir., 53 F. 2d 13, 16
last paragraph; Ex parte Matthews, D.C.W.D. Wash., 277 F. 857; Moraitis vs. Delany, D.C.
Md. Aug. 28, 1942, 46 F. Supp. 425.
The most recent case, as far as we have been able to find, was that of Staniszewski vs.
Watkins (1948), 90 Fed. Supp., 132, which is nearly foursquare with the case at hand. In
that case a stateless person, formerly a Polish national, resident in the United States since
1911 and many times serving as a seaman on American vessels both in peace and in war,
was ordered excluded from the United States and detained at Ellis Island at the expense of
the steamship company, when he returned from a voyage on which he had shipped from
New York for one or more European ports and return to the United States. The grounds for
his exclusion were that he had no passport or immigration visa, and that in 1937 had been
convicted of perjury because in certain documents he presented himself to be an American
citizen. Upon his application for release on habeas corpus, the Court released him upon
his own recognizance. Judge Leibell, of the United States District Court for the Southern
District of New York, said in part:
When the return to the writ of habeas corpus came before this court, I suggested that all
interested parties . . . make an effort to arrange to have the petitioner ship out of some
country that he would receive him as a resident. He is, a native-born Pole but the Polish
Consul has advised him in writing that he is no longer a Polish subject. This Government
does not claim that he is a Polish citizen. His attorney says he is a stateless. The
Government is willing that he go back to the ship, but if he were sent back aboard a ship

and sailed to the Port (Cherbourg, France) from which he last sailed to the United States,
he would probably be denied permission to land. There is no other country that would take
him, without proper documents.
It seems to me that this is a genuine hardship case and that the petitioner should be
released from custody on proper terms. . . .
What is to be done with the petitioner? The government has had him in custody almost
seven months and practically admits it has no place to send him out of this country. The
steamship company, which employed him as one of a group sent to the ship by the Union,
with proper seaman's papers issued by the United States Coast Guard, is paying $3 a day
for petitioner's board at Ellis Island. It is no fault of the steamship company that petitioner is
an inadmissible alien as the immigration officials describe him. . . .
I intend to sustain the writ of habeas corpus and order the release of the petitioner on his
own recognizance. He will be required to inform the immigration officials at Ellis Island by
mail on the 15th of each month, stating where he is employed and where he can be
reached by mail. If the government does succeed in arranging for petitioner's deportation
to a country that will be ready to receive him as a resident, it may then advise the petitioner
to that effect and arrange for his deportation in the manner provided by law.
Although not binding upon this Court as a precedent, the case aforecited affords a happy
solution to the quandry in which the parties here finds themselves, solution which we think
is sensible, sound and compatible with law and the Constitution. For this reason, and since
the Philippine law on immigration was patterned after or copied from the American law and
practice, we choose to follow and adopt the reasoning and conclusions in the Staniszewski
decision with some modifications which, it is believed, are in consonance with the
prevailing conditions of peace and order in the Philippines.
It was said or insinuated at the hearing ofthe petition at bar, but not alleged in the return,
that the petitioner was engaged in subversive activities, and fear was expressed that he
might join or aid the disloyal elements if allowed to be at large. Bearing in mind the
Government's allegation in its answer that "the herein petitioner was brought to the
Philippines by the Japanese forces," and the fact that Japan is no longer at war with the
United States or the Philippines nor identified with the countries allied against these
nations, the possibility of the petitioner's entertaining or committing hostile acts prejudicial
to the interest and security of this country seems remote.
If we grant, for the sake of argument, that such a possibility exists, still the petitioner's
unduly prolonged detention would be unwarranted by law and the Constitution, if the only
purpose of the detention be to eliminate a danger that is by no means actual, present, or
uncontrolable. After all, the Government is not impotent to deal with or prevent any threat
by such measure as that just outlined. The thought eloquently expressed by Mr. Justice
Jackson of the United States Supreme Court in connection with the appliccation for bail of
ten Communists convicted by a lower court of advocacy of violent overthrow of the United
States Government is, in principle, pertinent and may be availed of at this juncture. Said
the learned Jurist:
The Governmet's alternative contention is that defendants, by misbehavior after conviction,
have forfeited their claim to bail. Grave public danger is said to result from what they may
be expected to do, in addition to what they have done since their conviction. If I assume
that defendants are disposed to commit every opportune disloyal to act helpful to
Communist countries, it is still difficult to reconcile with traditional American law the jailing
of persons by the courts because of anticipated but as yet uncommitted crimes.
lmprisonment to protect society from predicted but unconsummated offenses is so
unprecedented in this country and so fraught with danger of excesses and injustice that I
am loath to resort it, even as a discretionary judicial technique to supplement conviction of
such offenses as those of which defendants stand convicted.
But the right of every American to equal treatment before the law is wrapped up in the
same constitutional bundle with those of these Communists. If an anger or disgust with
these defendants we throw out the bundle, we alsocast aside protection for the liberties of
more worthy critics who may be in opposition to the government of some future day.
xxx

xxx

x x x1wphl.nt

If, however, I were to be wrong on all of these abstract or theoretical matters of principle,
there is a very practical aspect of this application which must not be overlooked or
underestimated that is the disastrous effect on the reputation of American justice if I
should now send these men to jail and the full Court later decide that their conviction is
invalid. All experience with litigation teaches that existence of a substantial question about

a conviction implies a more than negligible risk of reversal. Indeed this experience lies
back of our rule permitting and practice of allowing bail where such questions exist, to
avoid the hazard of unjustifiably imprisoning persons with consequent reproach to our
system of justice. If that is prudent judicial practice in the ordinary case, how much more
important to avoid every chance of handing to the Communist world such an ideological
weapon as it would have if this country should imprison this handful of Communist leaders
on a conviction that our highest Court would confess to be illegal. Risks, of course, are
involved in either granting or refusing bail. I am naive enough to underestimate the
troublemaking propensities of the defendants. But, with the Department of Justice alert to
the the dangers, the worst they can accomplish in the short time it will take to end the
litigation is preferable to the possibility of national embarrassment from a celebrated case
of unjustified imprisonment of Communist leaders. Under no circumstances must we
permit their symbolization of an evil force in the world to be hallowed and glorified by any
semblance of martyrdom. The way to avoid that risk is not to jail these men until it is finally
decided that they should stay jailed.
If that case is not comparable with ours on the issues presented, its underlying principle is
of universal application. In fact, its ratio decidendi applies with greater force to the present
petition, since the right of accused to bail pending apppeal of his case, as in the case of
the ten Communists, depends upon the discretion of the court, whereas the right to be
enlarged before formal charges are instituted is absolute. As already noted, not only are
there no charges pending against the petitioner, but the prospects of bringing any against
him are slim and remote.
Premises considered, the writ will issue commanding the respondents to release the
petitioner from custody upon these terms: The petitioner shall be placed under the
surveillance of the immigration authorities or their agents in such form and manner as may
be deemed adequate to insure that he keep peace and be available when the Government
is ready to deport him. The surveillance shall be reasonable and the question of
reasonableness shall be submitted to this Court or to the Court of First Instance of Manila
for decision in case of abuse. He shall also put up a bond for the above purpose in the
amount of P5,000 with sufficient surety or sureties, which bond the Commissioner of
Immigration is authorized to exact by section 40 of Commonwealth Act No. 613.
Separate Opinions
PABLO, M., disidente:
"The Petitioner's entry into the Philippines was not unlawful; he was brought by the armed
and belligerent forces of a de facto government whose decrees were law during the
occupation." "no one shall be subjected to arbitrary arrest, detention or exile."
En Moraitis vs. Delany, 46 F. Supp., 425, se dijo:
What constitutes a reasonable time for the detention of the petitioner in custody for
deportation depends upon the facts and circumstances of particular cases. This court
cannot shut its eyes to the vitally important interests of this country at this time with respect
to the bottleneck of shipping, when every available ship, domestic and foreign, must be
utilized to the utmost without delay consequent upon the lack of avilable seamen. Under
these present conditions the court should be liberal indeed in aiding the executive branch
of the govenment in the strict enforcement of laws so vitally necessary in the common
defns. There is sound authority for this view in United States ex. rel. Schlimm vs. Howe, D
C.N. U Y. 222 F. 96, 97, where Circuit Judge Lacombe refused to release an alien who had
come here from Germany and was ordered deported in 1915 when, by reason of the then
existing war between Germany and England, his deportation to Germany was not possible.
It was said:
At the present time there is no regular passenger ocean service to German ports, so the
authorities are unable to forward him, and are holding him until some opportunity of
returning him to Germany may present itself. His continual detention is unfortunate, but
certainly is not illegal. His present condition can be alleviated only by the action of the
executive branch of the government. A federal court would not be justified in discharging
him. . . .
If he is not really fit for sea service, it is not probable that he would be forced into it,
although he may be able to serve his government in some other capacity. But however that
may be, while this country has no power under existing legislation to impress him into sea
service against his will, he has no just cause to be relieved from the strict enforcement of
our deportation laws, and to remain at liberty in this country as a sanctuary contrary to our
laws.

No es arbitraria la detencion de Mejoff. Esta jutificada por las circunstancias anormales.


La proposicion de vigilar al recurrente hasta que el gobierno encuentre transporte para su
deportacion, supon un gasto innecesario.
FERDINAND E. MARCOS, IMELDA R. MARCOS, FERDINAND R. MARCOS, JR., IRENE
M. ARANETA, IMEE MANOTOC, TOMAS MANOTOC, GREGORIO ARANETA, PACIFICO
E. MARCOS, NICANOR YIGUEZ and PHILIPPINE CONSTITUTION ASSOCIATION
(PHILCONSA), represented by its President, CONRADO F. ESTRELLA, petitioners,
vs. HONORABLE RAUL MANGLAPUS, CATALINO MACARAIG, SEDFREY ORDOEZ,
MIRIAM DEFENSOR SANTIAGO, FIDEL RAMOS, RENATO DE VILLA, in their capacity
as Secretary of Foreign Affairs, Executive Secretary, Secretary of Justice, Immigration
Commissioner, Secretary of National Defense and Chief of Staff, respectively,
respondents.
Before the Court is a contreversy of grave national importance. While ostensibly only legal
issues are involved, the Court's decision in this case would undeniably have a profound
effect on the political, economic and other aspects of national life.
We recall that in February 1986, Ferdinand E. Marcos was deposed from the presidency
via the non-violent "people power" revolution and forced into exile. In his stead, Corazon C.
Aquino was declared President of the Republic under a revolutionary government. Her
ascension to and consilidation of power have not been unchallenged. The failed Manila
Hotel coup in 1986 led by political leaders of Mr. Marcos, the takeover of television station
Channel 7 by rebel troops led by Col. Canlas with the support of "Marcos loyalists" and the
unseccessful plot of the Marcos spouses to surreptitiously return from Hawii with
mercenaries aboard an aircraft chartered by a Lebanese arms dealer [Manila Bulletin,
January 30, 1987] awakened the nation to the capacity of the Marcoses to stir trouble even
from afar and to the fanaticism and blind loyalty of their followers in the country. The
ratification of the 1987 Constitution enshrined the victory of "people power" and also clearly
reinforced the constitutional moorings of Mrs. Aquino's presidency. This did not, however,
stop bloody challenges to the government. On August 28, 1987, Col. Gregorio Honasan,
one of the major players in the February Revolution, led a failed coup that left scores of
people, both combatants and civilians, dead. There were several other armed sorties of
lesser significance, but the message they conveyed was the same a split in the ranks of
the military establishment that thraetened civilian supremacy over military and brought to
the fore the realization that civilian government could be at the mercy of a fractious military.
But the armed threats to the Government were not only found in misguided elements and
among rabid followers of Mr. Marcos. There are also the communist insurgency and the
seccessionist movement in Mindanao which gained ground during the rule of Mr. Marcos,
to the extent that the communists have set up a parallel government of their own on the
areas they effectively control while the separatist are virtually free to move about in armed
bands. There has been no let up on this groups' determination to wrest power from the
govermnent. Not only through resort to arms but also to through the use of propaganda
have they been successful in dreating chaos and destabilizing the country.
Nor are the woes of the Republic purely political. The accumulated foreign debt and the
plunder of the nation attributed to Mr. Marcos and his cronies left the economy devastated.
The efforts at economic recovery, three years after Mrs. Aquino assumed office, have yet
to show concrete results in alleviating the poverty of the masses, while the recovery of the
ill-gotten wealth of the Marcoses has remained elusive.
Now, Mr. Marcos, in his deathbed, has signified his wish to return to the Philipppines to die.
But Mrs. Aquino, considering the dire consequences to the nation of his return at a time
when the stability of government is threatened from various directions and the economy is
just beginning to rise and move forward, has stood firmly on the decision to bar the return
of Mr. Marcos and his family.
The Petition
This case is unique. It should not create a precedent, for the case of a dictator forced out
of office and into exile after causing twenty years of political, economic and social havoc in
the country and who within the short space of three years seeks to return, is in a class by
itself.
This petition for mandamus and prohibition asks the Courts to order the respondents to
issue travel documents to Mr. Marcos and the immediate members of his family and to
enjoin the implementation of the President's decision to bar their return to the Philippines.
The Issue
Th issue is basically one of power: whether or not, in the exercise of the powers granted by
the Constitution, the President may prohibit the Marcoses from returning to the Philippines.

According to the petitioners, the resolution of the case would depend on the resolution of
the following issues:
1.
Does the President have the power to bar the return of former President
Marcos and family to the Philippines?
a.

Is this a political question?

2.
Assuming that the President has the power to bar former President Marcos
and his family from returning to the Philippines, in the interest of "national security, public
safety or public health
a.
Has the President made a finding that the return of former President Marcos
and his family to the Philippines is a clear and present danger to national security, public
safety or public health?
b.

Assuming that she has made that finding

(1)
finding?

Have the requirements of due process been complied with in making such

(2)

Has there been prior notice to petitioners?

(3)

Has there been a hearing?

(4)
Assuming that notice and hearing may be dispensed with, has the President's
decision, including the grounds upon which it was based, been made known to petitioners
so that they may controvert the same?
c.
Is the President's determination that the return of former President Marcos and
his family to the Philippines is a clear and present danger to national security, public safety,
or public health a political question?
d.
Assuming that the Court may inquire as to whether the return of former
President Marcos and his family is a clear and present danger to national security, public
safety, or public health, have respondents established such fact?
3.
Have the respondents, therefore, in implementing the President's decision to
bar the return of former President Marcos and his family, acted and would be acting
without jurisdiction, or in excess of jurisdiction, or with grave abuse of discretion, in
performing any act which would effectively bar the return of former President Marcos and
his family to the Philippines? [Memorandum for Petitioners, pp. 5-7; Rollo, pp. 234-236.1
The case for petitioners is founded on the assertion that the right of the Marcoses to return
to the Philippines is guaranteed under the following provisions of the Bill of Rights, to wit:
Section 1. No person shall be deprived of life, liberty, or property without due process of
law, nor shall any person be denied the equal protection of the laws.
xxx

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xxx

Section 6. The liberty of abode and of changing the same within the limits prescribed by
law shall not be impaired except upon lawful order of the court. Neither shall the right to
travel be impaired except in the interest of national security, public safety, or public health,
as may be provided by law.
The petitioners contend that the President is without power to impair the liberty of abode of
the Marcoses because only a court may do so "within the limits prescribed by law." Nor
may the President impair their right to travel because no law has authorized her to do so.
They advance the view that before the right to travel may be impaired by any authority or
agency of the government, there must be legislation to that effect.
The petitioners further assert that under international law, the right of Mr. Marcos and his
family to return to the Philippines is guaranteed.
The Universal Declaration of Human Rights provides:
Article 13. (1) Everyone has the right to freedom of movement and residence within the
borders of each state.
(2) Everyone has the right to leave any country, including his own, and to return to his
country.

Likewise, the International Covenant on Civil and Political Rights, which had been ratified
by the Philippines, provides:
Article 12
1)
Everyone lawfully within the territory of a State shall, within that territory, have
the right to liberty of movement and freedom to choose his residence.
2)

Everyone shall be free to leave any country, including his own.

3)
The above-mentioned rights shall not be subject to any restrictions except
those which are provided by law, are necessary to protect national security, public order
(order public), public health or morals or the rights and freedoms of others, and are
consistent with the other rights recognized in the present Covenant.

The parties are in agreement that the underlying issue is one of the scope of presidential
power and its limits. We, however, view this issue in a different light. Although we give due
weight to the parties' formulation of the issues, we are not bound by its narrow confines in
arriving at a solution to the controversy.
At the outset, we must state that it would not do to view the case within the confines of the
right to travel and the import of the decisions of the U.S. Supreme Court in the leading
cases of Kent v. Dulles [357 U.S. 116, 78 SCt 1113, 2 L Ed. 2d 1204] and Haig v. Agee
[453 U.S. 280, 101 SCt 2766, 69 L Ed. 2d 640) which affirmed the right to travel and
recognized exceptions to the exercise thereof, respectively.

Respondents submit that in its proper formulation, the issue is whether or not petitioners
Ferdinand E. Marcos and family have the right to return to the Philippines and reside here
at this time in the face of the determination by the President that such return and residence
will endanger national security and public safety.

It must be emphasized that the individual right involved is not the right to travel from the
Philippines to other countries or within the Philippines. These are what the right to travel
would normally connote. Essentially, the right involved is the right to return to one's
country, a totally distinct right under international law, independent from although related to
the right to travel. Thus, the Universal Declaration of Humans Rights and the International
Covenant on Civil and Political Rights treat the right to freedom of movement and abode
within the territory of a state, the right to leave a country, and the right to enter one's
country as separate and distinct rights. The Declaration speaks of the "right to freedom of
movement and residence within the borders of each state" [Art. 13(l)] separately from the
"right to leave any country, including his own, and to return to his country." [Art. 13(2).] On
the other hand, the Covenant guarantees the "right to liberty of movement and freedom to
choose his residence" [Art. 12(l)] and the right to "be free to leave any country, including
his own." [Art. 12(2)] which rights may be restricted by such laws as "are necessary to
protect national security, public order, public health or morals or enter qqqs own country" of
which one cannot be "arbitrarily deprived." [Art. 12(4).] It would therefore be inappropriate
to construe the limitations to the right to return to one's country in the same context as
those pertaining to the liberty of abode and the right to travel.

It may be conceded that as formulated by petitioners, the question is not a political


question as it involves merely a determination of what the law provides on the matter and
application thereof to petitioners Ferdinand E. Marcos and family. But when the question is
whether the two rights claimed by petitioners Ferdinand E. Marcos and family impinge on
or collide with the more primordial and transcendental right of the State to security and
safety of its nationals, the question becomes political and this Honorable Court can not
consider it.

The right to return to one's country is not among the rights specifically guaranteed in the
Bill of Rights, which treats only of the liberty of abode and the right to travel, but it is our
well-considered view that the right to return may be considered, as a generally accepted
principle of international law and, under our Constitution, is part of the law of the land [Art.
II, Sec. 2 of the Constitution.] However, it is distinct and separate from the right to travel
and enjoys a different protection under the International Covenant of Civil and Political
Rights, i.e., against being "arbitrarily deprived" thereof [Art. 12 (4).]

There are thus gradations to the question, to wit:

Thus, the rulings in the cases Kent and Haig which refer to the issuance of passports for
the purpose of effectively exercising the right to travel are not determinative of this case
and are only tangentially material insofar as they relate to a conflict between executive
action and the exercise of a protected right. The issue before the Court is novel and
without precedent in Philippine, and even in American jurisprudence.

4)

No one shall be arbitrarily deprived of the right to enter his own country.

On the other hand, the respondents' principal argument is that the issue in this case
involves a political question which is non-justiciable. According to the Solicitor General:
As petitioners couch it, the question involved is simply whether or not petitioners Ferdinand
E. Marcos and his family have the right to travel and liberty of abode. Petitioners invoke
these constitutional rights in vacuo without reference to attendant circumstances.

Do petitioners Ferdinand E. Marcos and family have the right to return to the Philippines
and reestablish their residence here? This is clearly a justiciable question which this
Honorable Court can decide.
Do petitioners Ferdinand E. Marcos and family have their right to return to the Philippines
and reestablish their residence here even if their return and residence here will endanger
national security and public safety? this is still a justiciable question which this Honorable
Court can decide.
Is there danger to national security and public safety if petitioners Ferdinand E. Marcos
and family shall return to the Philippines and establish their residence here? This is now a
political question which this Honorable Court can not decide for it falls within the exclusive
authority and competence of the President of the Philippines. [Memorandum for
Respondents, pp. 9-11; Rollo, pp. 297-299.]
Respondents argue for the primacy of the right of the State to national security over
individual rights. In support thereof, they cite Article II of the Constitution, to wit:
Section 4. The prime duty of the Government is to serve and protect the people. The
Government may call upon the people to defend the State and, in the fulfillment thereof, all
citizens may be required, under conditions provided by law, to render personal, military, or
civil service.
Section 5. The maintenance of peace and order, the protection of life, liberty, and
property, and the promotion of the general welfare are essential for the enjoyment by all
the people of the blessings of democracy.
Respondents also point out that the decision to ban Mr. Marcos and family from returning
to the Philippines for reasons of national security and public safety has international
precedents. Rafael Trujillo of the Dominican Republic, Anastacio Somoza Jr. of Nicaragua,
Jorge Ubico of Guatemala, Fulgencio batista of Cuba, King Farouk of Egypt, Maximiliano
Hernandez Martinez of El Salvador, and Marcos Perez Jimenez of Venezuela were among
the deposed dictators whose return to their homelands was prevented by their
governments. [See Statement of Foreign Affairs Secretary Raul S. Manglapus, quoted in
Memorandum for Respondents, pp. 26-32; Rollo, pp. 314-319.]

Consequently, resolution by the Court of the well-debated issue of whether or not there can
be limitations on the right to travel in the absence of legislation to that effect is rendered
unnecessary. An appropriate case for its resolution will have to be awaited.
Having clarified the substance of the legal issue, we find now a need to explain the
methodology for its resolution. Our resolution of the issue will involve a two-tiered
approach. We shall first resolve whether or not the President has the power under the
Constitution, to bar the Marcoses from returning to the Philippines. Then, we shall
determine, pursuant to the express power of the Court under the Constitution in Article VIII,
Section 1, whether or not the President acted arbitrarily or with grave abuse of discretion
amounting to lack or excess of jurisdiction when she determined that the return of the
Marcose's to the Philippines poses a serious threat to national interest and welfare and
decided to bar their return.
Executive Power
The 1987 Constitution has fully restored the separation of powers of the three great
branches of government. To recall the words of Justice Laurel in Angara v. Electoral
Commission [63 Phil. 139 (1936)], "the Constitution has blocked but with deft strokes and
in bold lines, allotment of power to the executive, the legislative and the judicial
departments of the government." [At 157.1 Thus, the 1987 Constitution explicitly provides
that "[the legislative power shall be vested in the Congress of the Philippines" Art VI, Sec.
11, "[t]he executive power shall bevested in the President of the Philippines" [Art. VII, Sec.
11, and "[te judicial power shall be vested in one Supreme Court and in such lower courts
as may be established by law" [Art. VIII, Sec. 1.] These provisions not only establish a
separation of powers by actual division [Angara v. Electoral Commission, supra] but also
confer plenary legislative, executive and judicial powers subject only to limitations provided
in the Constitution. For as the Supreme Court in Ocampo v. Cabangis [15 Phil. 626 (1910)]
pointed out "a grant of the legislative power means a grant of all legislative power; and a
grant of the judicial power means a grant of all the judicial power which may be exercised
under the government." [At 631-632.1 If this can be said of the legislative power which is
exercised by two chambers with a combined membership of more than two hundred

members and of the judicial power which is vested in a hierarchy of courts, it can equally
be said of the executive power which is vested in one official the President.

the powers of the President. It also grants the President other powers that do not involve
the execution of any provision of law, e.g., his power over the country's foreign relations.

As stated above, the Constitution provides that "[t]he executive power shall be vested in
the President of the Philippines." [Art. VII, Sec. 1]. However, it does not define what is
meant by executive power" although in the same article it touches on the exercise of
certain powers by the President, i.e., the power of control over all executive departments,
bureaus and offices, the power to execute the laws, the appointing power, the powers
under the commander-in-chief clause, the power to grant reprieves, commutations and
pardons, the power to grant amnesty with the concurrence of Congress, the power to
contract or guarantee foreign loans, the power to enter into treaties or international
agreements, the power to submit the budget to Congress, and the power to address
Congress [Art. VII, Sec. 14-23].

On these premises, we hold the view that although the 1987 Constitution imposes
limitations on the exercise of specific powers of the President, it maintains intact what is
traditionally considered as within the scope of "executive power." Corollarily, the powers of
the President cannot be said to be limited only to the specific powers enumerated in the
Constitution. In other words, executive power is more than the sum of specific powers so
enumerated,

The inevitable question then arises: by enumerating certain powers of the President did the
framers of the Constitution intend that the President shall exercise those specific powers
and no other? Are these se enumerated powers the breadth and scope of "executive
power"? Petitioners advance the view that the President's powers are limited to those
specifically enumerated in the 1987 Constitution. Thus, they assert: "The President has
enumerated powers, and what is not enumerated is impliedly denied to her. Inclusion unius
est exclusio alterius[Memorandum for Petitioners, p. 4- Rollo p. 233.1 This argument
brings to mind the institution of the U.S. Presidency after which ours is legally patterned.**
Corwin, in his monumental volume on the President of the United States grappled with the
same problem. He said:
Article II is the most loosely drawn chapter of the Constitution. To those who think that a
constitution ought to settle everything beforehand it should be a nightmare; by the same
token, to those who think that constitution makers ought to leave considerable leeway for
the future play of political forces, it should be a vision realized.
We encounter this characteristic of Article 11 in its opening words: "The executive power
shall be vested in a President of the United States of America." . . .. [The President: Office
and Powers, 17871957, pp. 3-4.]
Reviewing how the powers of the U.S. President were exercised by the different persons
who held the office from Washington to the early 1900's, and the swing from the
presidency by commission to Lincoln's dictatorship, he concluded that "what the
presidency is at any particular moment depends in important measure on who is
President." [At 30.]
This view is shared by Schlesinger who wrote in The Imperial Presidency:
For the American Presidency was a peculiarly personal institution. it remained of course,
an agency of government subject to unvarying demands and duties no remained, of cas
President. But, more than most agencies of government, it changed shape, intensity and
ethos according to the man in charge. Each President's distinctive temperament and
character, his values, standards, style, his habits, expectations, Idiosyncrasies,
compulsions, phobias recast the WhiteHouse and pervaded the entire government. The
executive branch, said Clark Clifford, was a chameleon, taking its color from the character
and personality of the President. The thrust of the office, its impact on the constitutional
order, therefore altered from President to President. Above all, the way each President
understood it as his personal obligation to inform and involve the Congress, to earn and
hold the confidence of the electorate and to render an accounting to the nation and
posterity determined whether he strengthened or weakened the constitutional order. [At
212- 213.]
We do not say that the presidency is what Mrs. Aquino says it is or what she does but,
rather, that the consideration of tradition and the development of presidential power under
the different constitutions are essential for a complete understanding of the extent of and
limitations to the President's powers under the 1987 Constitution. The 1935 Constitution
created a strong President with explicitly broader powers than the U.S. President. The
1973 Constitution attempted to modify the system of government into the parliamentary
type, with the President as a mere figurehead, but through numerous amendments, the
President became even more powerful, to the point that he was also the de facto
Legislature. The 1987 Constitution, however, brought back the presidential system of
government and restored the separation of legislative, executive and judicial powers by
their actual distribution among three distinct branches of government with provision for
checks and balances.
It would not be accurate, however, to state that "executive power" is the power to enforce
the laws, for the President is head of state as well as head of government and whatever
powers inhere in such positions pertain to the office unless the Constitution itself withholds
it. Furthermore, the Constitution itself provides that the execution of the laws is only one of

It has been advanced that whatever power inherent in the government that is neither
legislative nor judicial has to be executive. Thus, in the landmark decision of Springer v.
Government of the Philippine Islands, 277 U.S. 189 (1928), on the issue of who between
the Governor-General of the Philippines and the Legislature may vote the shares of stock
held by the Government to elect directors in the National Coal Company and the Philippine
National Bank, the U.S. Supreme Court, in upholding the power of the Governor-General
to do so, said:
...Here the members of the legislature who constitute a majority of the "board" and
"committee" respectively, are not charged with the performance of any legislative functions
or with the doing of anything which is in aid of performance of any such functions by the
legislature. Putting aside for the moment the question whether the duties devolved upon
these members are vested by the Organic Act in the Governor-General, it is clear that they
are not legislative in character, and still more clear that they are not judicial. The fact that
they do not fall within the authority of either of these two constitutes logical ground for
concluding that they do fall within that of the remaining one among which the powers of
government are divided ....[At 202-203; Emphasis supplied.]
We are not unmindful of Justice Holmes' strong dissent. But in his enduring words of
dissent we find reinforcement for the view that it would indeed be a folly to construe the
powers of a branch of government to embrace only what are specifically mentioned in the
Constitution:
The great ordinances of the Constitution do not establish and divide fields of black and
white. Even the more specific of them are found to terminate in a penumbra shading
gradually from one extreme to the other. ....
xxx

xxx

xxx

It does not seem to need argument to show that however we may disguise it by veiling
words we do not and cannot carry out the distinction between legislative and executive
action with mathematical precision and divide the branches into watertight compartments,
were it ever so desirable to do so, which I am far from believing that it is, or that the
Constitution requires. [At 210- 211.]
The Power Involved
The Constitution declares among the guiding principles that "[t]he prime duty of
theGovernment is to serve and protect the people" and that "[t]he maintenance of peace
and order,the protection of life, liberty, and property, and the promotion of the general
welfare are essential for the enjoyment by all the people of the blessings of democracy."
[Art. II, Secs. 4 and 5.]
Admittedly, service and protection of the people, the maintenance of peace and order, the
protection of life, liberty and property, and the promotion of the general welfare are
essentially ideals to guide governmental action. But such does not mean that they are
empty words. Thus, in the exercise of presidential functions, in drawing a plan of
government, and in directing implementing action for these plans, or from another point of
view, in making any decision as President of the Republic, the President has to consider
these principles, among other things, and adhere to them.
Faced with the problem of whether or not the time is right to allow the Marcoses to return
to the Philippines, the President is, under the Constitution, constrained to consider these
basic principles in arriving at a decision. More than that, having sworn to defend and
uphold the Constitution, the President has the obligation under the Constitution to protect
the people, promote their welfare and advance the national interest. It must be borne in
mind that the Constitution, aside from being an allocation of power is also a social contract
whereby the people have surrendered their sovereign powers to the State for the common
good. Hence, lest the officers of the Government exercising the powers delegated by the
people forget and the servants of the people become rulers, the Constitution reminds
everyone that "[s]overeignty resides in the people and all government authority emanates
from them." [Art. II, Sec. 1.]
The resolution of the problem is made difficult because the persons who seek to return to
the country are the deposed dictator and his family at whose door the travails of the

country are laid and from whom billions of dollars believed to be ill-gotten wealth are
sought to be recovered. The constitutional guarantees they invoke are neither absolute nor
inflexible. For the exercise of even the preferred freedoms of speech and ofexpression,
although couched in absolute terms, admits of limits and must be adjusted to the
requirements of equally important public interests [Zaldivar v. Sandiganbayan, G.R. Nos.
79690-707, October 7, 1981.]
To the President, the problem is one of balancing the general welfare and the common
good against the exercise of rights of certain individuals. The power involved is the
President's residual power to protect the general welfare of the people. It is founded on the
duty of the President, as steward of the people. To paraphrase Theodore Roosevelt, it is
not only the power of the President but also his duty to do anything not forbidden by the
Constitution or the laws that the needs of the nation demand [See Corwin, supra, at 153]. It
is a power borne by the President's duty to preserve and defend the Constitution. It also
may be viewed as a power implicit in the President's duty to take care that the laws are
faithfully executed [see Hyman, The American President, where the author advances the
view that an allowance of discretionary power is unavoidable in any government and is
best lodged in the President].
More particularly, this case calls for the exercise of the President's powers as protector of
the peace. Rossiter The American Presidency].The power of the President to keep the
peace is not limited merely to exercising the commander-in-chief powers in times of
emergency or to leading the State against external and internal threats to its existence.
The President is not only clothed with extraordinary powers in times of emergency, but is
also tasked with attending to the day-to-day problems of maintaining peace and order and
ensuring domestic tranquility in times when no foreign foe appears on the horizon. Wide
discretion, within the bounds of law, in fulfilling presidential duties in times of peace is not
in any way diminished by the relative want of an emergency specified in the commanderin-chief provision. For in making the President commander-in-chief the enumeration of
powers that follow cannot be said to exclude the President's exercising as Commander-inChief powers short of the calling of the armed forces, or suspending the privilege of the writ
of habeas corpus or declaring martial law, in order to keep the peace, and maintain public
order and security.
That the President has the power under the Constitution to bar the Marcose's from
returning has been recognized by memembers of the Legislature, and is manifested by the
Resolution proposed in the House of Representatives and signed by 103 of its members
urging the President to allow Mr. Marcos to return to the Philippines "as a genuine
unselfish gesture for true national reconciliation and as irrevocable proof of our collective
adherence to uncompromising respect for human rights under the Constitution and our
laws." [House Resolution No. 1342, Rollo, p. 321.1 The Resolution does not question the
President's power to bar the Marcoses from returning to the Philippines, rather, it appeals
to the President's sense of compassion to allow a man to come home to die in his country.
What we are saying in effect is that the request or demand of the Marcoses to be allowed
to return to the Philippines cannot be considered in the light solely of the constitutional
provisions guaranteeing liberty of abode and the right to travel, subject to certain
exceptions, or of case law which clearly never contemplated situations even remotely
similar to the present one. It must be treated as a matter that is appropriately addressed to
those residual unstated powers of the President which are implicit in and correlative to the
paramount duty residing in that office to safeguard and protect general welfare. In that
context, such request or demand should submit to the exercise of a broader discretion on
the part of the President to determine whether it must be granted or denied.
The Extent of Review
Under the Constitution, judicial power includes the duty to determine whether or not there
has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part
of any branch or instrumentality of the Government." [Art. VIII, Sec. 1] Given this wording,
we cannot agree with the Solicitor General that the issue constitutes a political question
which is beyond the jurisdiction of the Court to decide.
The present Constitution limits resort to the political question doctrine and broadens the
scope of judicial inquiry into areas which the Court, under previous constitutions, would
have normally left to the political departments to decide. But nonetheless there remain
issues beyond the Court's jurisdiction the determination of which is exclusively for the
President, for Congress or for the people themselves through a plebiscite or referendum.
We cannot, for example, question the President's recognition of a foreign government, no
matter how premature or improvident such action may appear. We cannot set aside a
presidential pardon though it may appear to us that the beneficiary is totally undeserving of
the grant. Nor can we amend the Constitution under the guise of resolving a dispute
brought before us because the power is reserved to the people.
There is nothing in the case before us that precludes our determination thereof on the
political question doctrine. The deliberations of the Constitutional Commission cited by

petitioners show that the framers intended to widen the scope of judicial review but they
did not intend courts of justice to settle all actual controversies before them. When political
questions are involved, the Constitution limits the determination to whether or not there has
been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of
the official whose action is being questioned. If grave abuse is not established, the Court
will not substitute its judgment for that of the official concerned and decide a matter which
by its nature or by law is for the latter alone to decide. In this light, it would appear clear
that the second paragraph of Article VIII, Section 1 of the Constitution, defining "judicial
power," which specifically empowers the courts to determine whether or not there has
been a grave abuse of discretion on the part of any branch or instrumentality of the
government, incorporates in the fundamental law the ruling in Lansang v. Garcia [G.R. No.
L-33964, December 11, 1971, 42 SCRA 4481 that:]
Article VII of the [1935] Constitution vests in the Executive the power to suspend the
privilege of the writ of habeas corpus under specified conditions. Pursuant to the principle
of separation of powers underlying our system of government, the Executive is supreme
within his own sphere. However, the separation of powers, under the Constitution, is not
absolute. What is more, it goes hand in hand with the system of checks and balances,
under which the Executive is supreme, as regards the suspension of the privilege, but only
if and when he acts within the sphere alloted to him by the Basic Law, and the authority to
determine whether or not he has so acted is vested in the Judicial Department, which, in
this respect, is, in turn, constitutionally supreme. In the exercise of such authority, the
function of the Court is merely to check not to supplant the Executive, or to ascertain
merely whether he has gone beyond the constitutional limits of his jurisdiction, not to
exercise the power vested in him or to determine the wisdom of his act [At 479-480.]
Accordingly, the question for the Court to determine is whether or not there exist factual
bases for the President to conclude that it was in the national interest to bar the return of
the Marcoses to the Philippines. If such postulates do exist, it cannot be said that she has
acted, or acts, arbitrarily or that she has gravely abused her discretion in deciding to bar
their return.
We find that from the pleadings filed by the parties, from their oral arguments, and the facts
revealed during the briefing in chambers by the Chief of Staff of the Armed Forces of the
Philippines and the National Security Adviser, wherein petitioners and respondents were
represented, there exist factual bases for the President's decision..
The Court cannot close its eyes to present realities and pretend that the country is not
besieged from within by a well-organized communist insurgency, a separatist movement in
Mindanao, rightist conspiracies to grab power, urban terrorism, the murder with impunity of
military men, police officers and civilian officials, to mention only a few. The documented
history of the efforts of the Marcose's and their followers to destabilize the country, as
earlier narrated in this ponencia bolsters the conclusion that the return of the Marcoses at
this time would only exacerbate and intensify the violence directed against the State and
instigate more chaos.
As divergent and discordant forces, the enemies of the State may be contained. The
military establishment has given assurances that it could handle the threats posed by
particular groups. But it is the catalytic effect of the return of the Marcoses that may prove
to be the proverbial final straw that would break the camel's back. With these before her,
the President cannot be said to have acted arbitrarily and capriciously and whimsically in
determining that the return of the Marcoses poses a serious threat to the national interest
and welfare and in prohibiting their return.
It will not do to argue that if the return of the Marcoses to the Philippines will cause the
escalation of violence against the State, that would be the time for the President to step in
and exercise the commander-in-chief powers granted her by the Constitution to suppress
or stamp out such violence. The State, acting through the Government, is not precluded
from taking pre- emptive action against threats to its existence if, though still nascent they
are perceived as apt to become serious and direct. Protection of the people is the essence
of the duty of government. The preservation of the State the fruition of the people's
sovereignty is an obligation in the highest order. The President, sworn to preserve and
defend the Constitution and to see the faithful execution the laws, cannot shirk from that
responsibility.
We cannot also lose sight of the fact that the country is only now beginning to recover from
the hardships brought about by the plunder of the economy attributed to the Marcoses and
their close associates and relatives, many of whom are still here in the Philippines in a
position to destabilize the country, while the Government has barely scratched the surface,
so to speak, in its efforts to recover the enormous wealth stashed away by the Marcoses in
foreign jurisdictions. Then, We cannot ignore the continually increasing burden imposed on
the economy by the excessive foreign borrowing during the Marcos regime, which stifles
and stagnates development and is one of the root causes of widespread poverty and all its
attendant ills. The resulting precarious state of our economy is of common knowledge and
is easily within the ambit of judicial notice.

The President has determined that the destabilization caused by the return of the
Marcoses would wipe away the gains achieved during the past few years and lead to total
economic collapse. Given what is within our individual and common knowledge of the state
of the economy, we cannot argue with that determination.
WHEREFORE, and it being our well-considered opinion that the President did not act
arbitrarily or with grave abuse of discretion in determining that the return of former
President Marcos and his family at the present time and under present circumstances
poses a serious threat to national interest and welfare and in prohibiting their return to the
Philippines, the instant petition is hereby DISMISSED.
Separate Opinions
FERNAN, C.J., concurring:
"The threats to national security and public order are real the mounting Communist
insurgency, a simmering separatist movement, a restive studentry, widespread labor
disputes, militant farmer groups. . . . Each of these threats is an explosive ingredient in a
steaming cauldron which could blow up if not handled properly." 1
These are not my words. They belong to my distinguished colleague in the Court, Mr.
Justice Hugo E. Gutierrez, Jr. But they express eloquently the basis of my full concurrence
to the exhaustive and well-written ponencia of Mme. Justice Irene R. Cortes.
Presidential powers and prerogatives are not fixed but fluctuate. They are not derived
solely from a particular constitutional clause or article or from an express statutory grant.
Their limits are likely to depend on the imperatives of events and contemporary
imponderables rather than on abstract theories of law. History and time-honored principles
of constitutional law have conceded to the Executive Branch certain powers in times of
crisis or grave and imperative national emergency. Many terms are applied to these
powers: "residual," "inherent," 44 moral," "implied," "aggregate," "emergency." whatever
they may be called, the fact is that these powers exist, as they must if the governance
function of the Executive Branch is to be carried out effectively and efficiently. It is in this
context that the power of the President to allow or disallow the Marcoses to return to the
Philippines should be viewed. By reason of its impact on national peace and order in these
admittedly critical times, said question cannot be withdrawn from the competence of the
Executive Branch to decide.
And indeed, the return of the deposed President, his wife and children cannot but pose a
clear and present danger to public order and safety. One needs only to recall the series of
destabilizing actions attempted by the so-called Marcos loyalists as well as the ultra-rightist
groups during the EDSA Revolution's aftermath to realize this. The most publicized of
these offensives is the Manila Hotel incident which occurred barely five (5) months after
the People's Power Revolution. Around 10,000 Marcos supporters, backed by 300 loyalist
soldiers led by Brigadier General Jose Zumel and Lt. Col. Reynaldo Cabauatan converged
at the Manila Hotel to witness the oath-taking of Arturo Tolentino as acting president of the
Philippines. The public disorder and peril to life and limb of the citizens engendered by this
event subsided only upon the eventual surrender of the loyalist soldiers to the authorities.
Then followed the Channel 7, Sangley, Villamor, Horseshoe Drive and Camp Aguinaldo
incidents. Military rebels waged simultaneous offensives in different parts of Metro Manila
and Sangley Point in Cavite. A hundred rebel soldiers took over Channel 7 and its radio
station DZBB. About 74 soldier rebels attacked Villamor Air Base, while another group
struck at Sangley Point in Cavite and held the 15th Air Force Strike wing commander and
his deputy hostage. Troops on board several vehicles attempted to enter Gate I of Camp
Aguinaldo even as another batch of 200 soldiers encamped at Horseshoe Village.
Another destabilization plot was carried out in April, 1987 by enlisted personnel who forced
their way through Gate 1 of Fort Bonifacio. They stormed into the army stockade but
having failed to convince their incarcerated members to unite in their cause, had to give up
nine (9) hours later.
And who can forget the August 28, 1987 coup attempt which almost toppled the Aquino
Government? Launched not by Marcos loyalists, but by another ultra-rightist group in the
military led by Col. Gregorio "Gringo" Honasan who remains at large to date, this most
serious attempt to wrest control of the government resulted in the death of many civilians.
Members of the so-called Black Forest Commando were able to cart away high-powered
firearms and ammunition from the Camp Crame Armory during a raid conducted in June
1988. Most of the group members were, however, captured in Antipolo, Rizal. The same
group was involved in an unsuccessful plot known as Oplan Balik Saya which sought the
return of Marcos to the country.

A more recent threat to public order, peace and safety was the attempt of a group named
CEDECOR to mobilize civilians from nearby provinces to act as blockading forces at
different Metro Manila areas for the projected link-up of Marcos military loyalist troops with
the group of Honasan. The pseudo "people power" movement was neutralized thru
checkpoints set up by the authorities along major road arteries where the members were
arrested or forced to turn back.
While not all of these disruptive incidents may be traced directly to the Marcoses, their
occurrence militates heavily against the wisdom of allowing the Marcoses' return. Not only
will the Marcoses' presence embolden their followers toward similar actions, but any such
action would be seized upon as an opportunity by other enemies of the State, such as the
Communist Party of the Philippines and the NPA'S, the Muslim secessionists and extreme
rightists of the RAM, to wage an offensive against the government. Certainly, the state
through its executive branch has the power, nay, the responsibility and obligation, to
prevent a grave and serious threat to its safety from arising.
Apparently lost amidst the debate on whether or not to allow the Marcoses to return to the
Philippines is one factor, which albeit, at first blush appears to be extra legal, constitutes a
valid justification for disallowing the requested return. I refer to the public pulse. It must be
remembered that the ouster of the Marcoses from the Philippines came about as an
unexpected, but certainly welcomed, result of the unprecedented peoples power"
revolution. Millions of our people braved military tanks and firepower, kept vigil, prayed,
and in countless manner and ways contributed time, effort and money to put an end to an
evidently untenable claim to power of a dictator. The removal of the Marcoses from the
Philippines was a moral victory for the Filipino people; and the installation of the present
administration, a realization of and obedience to the people's Will.
Failing in legal arguments for the allowance of the Marcoses' return, appeal is being made
to sympathy, compassion and even Filipino tradition. The political and economic gains we
have achieved during the past three years are however too valuable and precious to
gamble away on purely compassionate considerations. Neither could public peace, order
and safety be sacrificed for an individual's wish to die in his own country. Verily in the
balancing of interests, the scales tilt in favor of presidential prerogative, which we do not
find to have been gravely abused or arbitrarily exercised, to ban the Marcoses from
returning to the Philippines.
GUTIERREZ, JR., J., dissenting
"The Constitution ... is a law for rulers and people, equally in war and in peace, and covers
with the shield of its protection all classes of men, at all times, and under all circumstances.
No doctrine involving more pernicious consequences was ever invented by the wit of man
than that any of its provisions can be suspended during any of the great exigencies of
government." (Ex Parte Milligan, 4 Wall. 2; 18 L. Ed. 281 [1866])
Since our days as law students, we have proclaimed the stirring words of Ex Parte Milligan
as self-evident truth. But faced with a hard and delicate case, we now hesitate to qive
substance to their meaning. The Court has permitted a basic freedom enshrined in the Bill
of Rights to be taken away by Government.
There is only one Bill of Rights with the same interpretation of liberty and the same
guarantee of freedom for both unloved and despised persons on one hand and the rest
who are not so stigmatized on the other.
I am, therefore, disturbed by the majority ruling which declares that it should not be a
precedent. We are interpreting the Constitution for only one person and constituting him
into a class by himself. The Constitution is a law for all classes of men at all times. To have
a person as one class by himself smacks of unequal protection of the laws.
With all due respect for the majority in the Court, I believe that the issue before us is one of
rights and not of power. Mr. Marcos is insensate and would not live if separated from the
machines which have taken over the functions of his kidneys and other organs. To treat
him at this point as one with full panoply of power against whom the forces of Government
should be marshalled is totally unrealistic. The Government has the power to arrest and
punish him. But does it have the power to deny him his right to come home and die among
familiar surroundings?
Hence, this dissent.
The Bill of Rights provides:
Sec.
6. The liberty of abode and of changing the same within the limits prescribed
by law shall not be impaired except upon lawful order of the court. Neither shall the right to
travel be impaired except in the interest of national security, public safety, or public health,
as may be provided by law. (Emphasis supplied, Section 6, Art. 111, Constitution)

To have the petition dismissed, the Solicitor General repeats a ritual invocation of national
security and public safety which is hauntingly familiar because it was pleaded so often by
petitioner Ferdinand E. Marcos to justify his acts under martial law. There is, however, no
showing of the existence of a law prescribing the limits of the power to impair and the
occasions for its exercise. And except for citing breaches of law and order, the more
serious of which were totally unrelated to Mr. Marcos and which the military was able to
readily quell, the respondents have not pointed to any grave exigency which permits the
use of untrammeled Governmental power in this case and the indefinite suspension of the
constitutional right to travel.
The respondents' basic argument is that the issue before us is a political question beyond
our jurisdiction to consider. They contend that the decision to ban former President
Marcos, and his family on grounds of national security and public safety is vested by the
Constitution in the President alone. The determination should not be questioned before this
Court. The President's finding of danger to the nation should be conclusive on the Court.
What is a political question?

writ of habeas corpus or proclaim martial law in the event of invasion or rebellion, when the
public safety requires it.
There is, however, no showing, not even a claim that the followers of former President
Marcos are engaging in rebellion or that he is in a position to lead them. Neither is it
claimed that there is a need to suspend the privilege of the writ of habeas corpus or
proclaim martial law because of the arrival of Mr. Marcos and his family. To be sure, there
may be disturbances but not of a magnitude as would compel this Court to resort to a
doctrine of non- justiceability and to ignore a plea for the enforcement of an express Bill of
Rights guarantee.
The respondents themselves are hard-pressed to state who or what constitutes a Marcos
"loyalist." The constant insinuations that the "loyalist" group is heavily funded by Mr.
Marcos and his cronies and that the "loyalists" engaging in rallies and demonstrations have
to be paid individual allowances to do so constitute the strongest indication that the hard
core "loyalists" who would follow Marcos right or wrong are so few in number that they
could not possibly destabilize the government, much less mount a serious attempt to
overthrow it.

In Vera v. Avelino (77 Phil. 192, 223 [1946], the Court stated:
xxx

xxx

xxx

It is a well-settled doctrine that political questions are not within the province of the
judiciary, except to the extent that power to deal with such questions has been conferred
on the courts by express constitutional or statutory provisions. It is not so easy, however, to
define the phrase political question, nor to determine what matters fall within its scope. It is
frequently used to designate all questions that he outside the scope of the judicial power.
More properly, however, it means those questions which, under the constitution, are to be
decided by the people in their sovereign capacity, or in regard to which full discretionary
authority has been delegated to the legislative or executive branch of the government.
We defined a political question in Taniada v. Cuenco (103 Phil. 1051, 1066 [1957]), as
follows:
In short, the term 'Political question' connotes, in legal parlance, what it means in ordinary
parlance, namely, a question of policy. In other words, in the language of Corpus Juris
Secundum (supra), it refers to 'those questions which, under the Constitution, are to be
decided by the people in their sovereign capacity, or in regard to which full discretionary
authority has been delegated to the Legislature or executive branch of the Government. It
is concerned with issues dependent upon the wisdom, not legality, of a particular measure.
The most often quoted definition of political question was made by Justice William J.
Brennan Jr., who penned the decision of the United States Supreme Court in Baker v. Carr
(369 US 186,82, S. Ct. 691, L. Ed. 2d. 663 [1962]). The ingredients of a political question
as formulated in Baker v. Carr are:
It is apparent that several formulations which vary slightly according to the settings in
which the questions arise may describe a political question, which identifies it as
essentially a function of the separation of powers. Prominent on the surface of any case
held to involve a political question is found a textually demonstrable constitutional
commitment of the issue to a coordinate political department; or a lack of judicially
discoverable and manageable standards for resolving it; or the impossibility of deciding
without an initial policy determination of a kind clearly for non-judicial discretion; or the
impossibility of a court's undertaking independent resolution without expressing lack of the
respect due coordinate branches of government; or an unusual need for unquestioning
adherence to a political decision already made; or potentiality of embarrassment from
multifarious pronouncements by various departments on one question.
For a political question to exist, there must be in the Constitution a power vested
exclusively in the President or Congress, the exercise of which the court should not
examine or prohibit. A claim of plenary or inherent power against a civil right which claim is
not found in a specific provision is dangerous. Neither should we validate a roving
commission allowing public officials to strike where they please and to override everything
which to them represents evil. The entire Government is bound by the rule of law.
The respondents have not pointed to any provision of the Constitution which commits or
vests the determination of the question raised to us solely in the President.
The authority implied in Section 6 of the Bill of Rights itself does not exist because no law
has been enacted specifying the circumstances when the right may be impaired in the
interest of national security or public safety. The power is in Congress, not the Executive.
The closest resort to a textile demonstrable constitutional commitment of power may be
found in the commander-in-chief clause which allows the President to call out the armed
forces in case of lawless violence, invasion or rebellion and to suspend the privilege of the

Not every person who would allow Mr. Marcos to come home can be tagged a "loyalist." It
is in the best of Filipino customs and traditions to allow a dying person to return to his
home and breath his last in his native surroundings. Out of the 103 Congressmen who
passed the House resolution urging permission for his return, there are those who dislike
Mr. Marcos intensely or who suffered under his regime. There are also many Filipinos who
believe that in the spirit of national unity and reconciliation Mr. Marcos and his family
should be permitted to return to the Philippines and that such a return would deprive his
fanatic followers of any further reason to engage in rallies and demonstrations.
The Court, however, should view the return of Mr. Marcos and his family solely in the light
of the constitutional guarantee of liberty of abode and the citizen's right to travel as against
the respondents' contention that national security and public safety would be endangered
by a grant of the petition.
Apart from the absence of any text in the Constitution committing the issue exclusively to
the President, there is likewise no dearth of decisional data, no unmanageable standards
which stand in the way of a judicial determination.
Section 6 of the Bill of Rights states categorically that the liberty of abode and of changing
the same within the limits prescribed by law may be impaired only upon a lawful order of a
court. Not by an executive officer. Not even by the President. Section 6 further provides
that the right to travel, and this obviously includes the right to travel out of or back into the
Philippines, cannot be impaired except in the interest of national security, public safety, or
public health, as may be provided by law.
There is no law setting the limits on a citizen's right to move from one part of the country to
another or from the Philippines to a foreign country or from a foreign country to the
Philippines. The laws cited by the Solicitor General immigration, health, quarantine,
passports, motor vehicle, destierro probation, and parole are all inapplicable insofar as the
return of Mr. Marcos and family is concerned. There is absolutely no showing how any of
these statutes and regulations could serve as a basis to bar their coming home.
There is also no disrespect for a Presidential determination if we grant the petition. We
would simply be applying the Constitution, in the preservation and defense of which all of
us in Government, the President and Congress included, are sworn to participate.
Significantly, the President herself has stated that the Court has the last word when it
comes to constitutional liberties and that she would abide by our decision.
As early as 1983, it was noted that this Court has not been very receptive to the invocation
of the political question doctrine by government lawyers. (See Morales, Jr. .v Ponce Enrile,
121 SCRA 538 [1983]).
Many of those now occupying the highest positions in the executive departments,
Congress, and the judiciary criticized this Court for using what they felt was a doctrine of
convenience, expediency, utility or subservience. Every major challenge to the acts of
petitioner Ferdinand E. Marcos under his authoritarian regime the proclamation of martial
law, the ratification of a new constitution, the arrest and detention of "enemies of the State"
without charges being filed against them, the dissolution of Congress and the exercise by
the President of legislative powers, the trial of civilians for civil offenses by military
tribunals, the seizure of some of the country's biggest corporations, the taking over or
closure of newspaper offices, radio and television stations and other forms of media, the
proposals to amend the Constitution, etc. was invariably met by an invocation that the
petition involved a political question. It is indeed poetic justice that the political question
doctrine so often invoked by then President Marcos to justify his acts is now being used
against him and his family. Unfortunately, the Court should not and is not allowed to
indulge in such a persiflage. We are bound by the Constitution.

The dim view of the doctrine's use was such that when the present Constitution was
drafted, a broad definition of judicial power was added to the vesting in the Supreme Court
and statutory courts of said power.
The second paragraph of Section 1, Article VIII of the Constitution provides:
Judicial power includes the duty of the courts of justice to settle actual controversies
involving rights which are legally demandable and enforceable, and to determine whether
or not there has been a grave abuse of discretion amounting to lack or excess of
jurisdiction on the part of any branch or instrumentality of the Government.
This new provision was enacted to preclude this Court from using the political question
doctrine as a means to avoid having to make decisions simply because they are too
controversial, displeasing to the President or Congress, inordinately unpopular, or which
may be ignored and not enforced.
The framers of the Constitution believed that the free use of the political question doctrine
allowed the Court during the Marcos years to fall back on prudence, institutional difficulties,
complexity of issues, momentousness of consequences or a fear that it was extravagantly
extending judicial power in the cases where it refused to examine and strike down an
exercise of authoritarian power. Parenthetically, at least two of the respondents and their
counsel were among the most vigorous critics of Mr. Marcos (the main petitioner) and his
use of the political question doctrine. The Constitution was accordingly amended. We are
now precluded by its mandate from refusing to invalidate a political use of power through a
convenient resort to the question doctrine. We are compelled to decide what would have
been non-justiceable under our decisions interpreting earlier fundamental charters.
This is not to state that there can be no more political questions which we may refuse to
resolve. There are still some political questions which only the President, Congress, or a
plebiscite may decide. Definitely, the issue before us is not one of them.
The Constitution requires the Court "to determine whether or not there has been a grave
abuse of discretion amounting to lack or excess of jurisdiction."
How do we determine a grave abuse of discretion?
The tested procedure is to require the parties to present evidence. Unfortunately,
considerations of national security do not readily lend themselves to the presentation of
proof before a court of justice. The vital information essential to an objective determination
is usually highly classified and it cannot be rebutted by those who seek to overthrow the
government. As early as Barcelon v. Baker (5 Phil. 87, 93 [19051), the Court was faced
with a similar situation. It posed a rhetorical question. If after investigating conditions in the
Archipelago or any part thereof, the President finds that public safety requires the
suspension of the privilege of the writ of habeas corpus, can the judicial department
investigate the same facts and declare that no such conditions exist?
In the effort to follow the "grave abuse of discretion" formula in the second paragraph of
Section 1, Article VIII of the Constitution, the court granted the Solicitor General's offer that
the military give us a closed door factual briefing with a lawyer for the petitioners and a
lawyer for the respondents present.
The results of the briefing call to mind the concurrence of Justice Vicente Abad Santos in
Morales, Jr. v. Enrile, (121 SCRA 538, 592 [19831):
How can this Court determine the factual basis in order that it can ascertain whether or not
the president acted arbitrarily in suspending the writ when, in the truth words of
Montenegro, with its very limited machinery fit] cannot be in better position [than the
Executive Branch] to ascertain or evaluate the conditions prevailing in the Archipelago? (At
p. 887). The answer is obvious. It must rely on the Executive Branch which has the
appropriate civil and military machinery for the facts. This was the method which had to be
used in Lansang. This Court relied heavily on classified information supplied by the
military. Accordingly, an incongruous situation obtained. For this Court, relied on the very
branch of the government whose act was in question to obtain the facts. And as should be
expected the Executive Branch supplied information to support its position and this Court
was in no situation to disprove them. It was a case of the defendant judging the suit. After
all is said and done, the attempt by its Court to determine whether or not the President
acted arbitrarily in suspending the writ was a useless and futile exercise.
There is still another reason why this Court should maintain a detached attitude and refrain
from giving the seal of approval to the act of the Executive Branch. For it is possible that
the suspension of the writ lacks popular support because of one reason or another. But
when this Court declares that the suspension is not arbitrary (because it cannot do
otherwise upon the facts given to it by the Executive Branch) it in effect participates in the

decision-making process. It assumes a task which it is not equipped to handle; it lends its
prestige and credibility to an unpopular act.
The other method is to avail of judicial notice. In this particular case, judicial notice would
be the only basis for determining the clear and present danger to national security and
public safety. The majority of the Court has taken judicial notice of the Communist
rebellion, the separatist movement, the rightist conspiracies, and urban terrorism. But is it
fair to blame the present day Marcos for these incidents? All these problems are totally
unrelated to the Marcos of today and, in fact, are led by people who have always opposed
him. If we use the problems of Government as excuses for denying a person's right to
come home, we will never run out of justifying reasons. These problems or others like them
will always be with us.
Significantly, we do not have to look into the factual bases of the ban Marcos policy in
order to ascertain whether or not the respondents acted with grave abuse of discretion.
Nor are we forced to fall back upon judicial notice of the implications of a Marcos return to
his home to buttress a conclusion.
In the first place, there has never been a pronouncement by the President that a clear and
present danger to national security and public safety will arise if Mr. Marcos and his family
are allowed to return to the Philippines. It was only after the present petition was filed that
the alleged danger to national security and public safety conveniently surfaced in the
respondents' pleadings. Secondly, President Aquino herself limits the reason for the ban
Marcos policy to (1) national welfare and interest and (2) the continuing need to
preserve the gains achieved in terms of recovery and stability. (See page 7, respondents'
Comment at page 73 of Rollo). Neither ground satisfies the criteria of national security and
public safety. The President has been quoted as stating that the vast majority of Filipinos
support her position. (The Journal, front page, January 24,1989) We cannot validate their
stance simply because it is a popular one. Supreme Court decisions do not have to be
popular as long as they follow the Constitution and the law. The President's original
position "that it is not in the interest of the nation that Marcos be allowed to return at this
time" has not changed. (Manila Times, front page, February 7, 1989). On February 11,
1989, the President is reported to have stated that "considerations of the highest national
good dictate that we preserve the substantial economic and political gains of the past three
years" in justifying her firm refusal to allow the return of Mr. Marcos despite his failing
health. (Daily Globe, front page, February 15, 1989). "Interest of the nation national good,"
and "preserving economic and political gains," cannot be equated with national security or
public order. They are too generic and sweeping to serve as grounds for the denial of a
constitutional right. The Bill of Rights commands that the right to travel may not be
impaired except on the stated grounds of national security, public safety, or public health
and with the added requirement that such impairment must be "as provided by law." The
constitutional command cannot be negated by mere generalizations.
There is an actual rebellion not by Marcos followers but by the New Peoples' Army.
Feeding as it does on injustice, ignorance, poverty, and other aspects at underdevelopment, the Communist rebellion is the clearest and most present danger to national
security and constitutional freedoms. Nobody has suggested that one way to quell it would
be to catch and exile its leaders, Mr. Marcos himself was forced to flee the country
because of "peoples' power." Yet, there is no move to arrest and exile the leaders of
student groups, teachers' organizations, pea ant and labor federations, transport workers,
and government unions whose threatened mass actions would definitely endanger national
security and the stability of government. We fail to see how Mr. Marcos could be a greater
danger.
The fear that Communist rebels, Bangsa Moro secessionists, the Honasan ex-soldiers, the
hard core loyalists, and other dissatisfied elements would suddenly unite to overthrow the
Republic should a dying Marcos come home is too speculative and unsubstantial a ground
for denying a constitutional right. It is not shown how extremists from the right and the left
who loathe each other could find a rallying point in the coming of Mr. Marcos.
The "confluence theory" of the Solicitor General or what the majority calls "catalytic effect,"
which alone sustains the claim of danger to national security is fraught with perilous
implications. Any difficult problem or any troublesome person can be substituted for the
Marcos threat as the catalysing factor. The alleged confluence of NPAs, secessionists,
radical elements, renegade soldiers, etc., would still be present. Challenged by any critic or
any serious problem, the Government can state that the situation threatens a confluence of
rebel forces and proceed to ride roughshod over civil liberties in the name of national
security. Today, a passport is denied. Tomorrow, a newspaper may be closed. Public
assemblies may be prohibited. Human rights may be violated. Yesterday, the right to travel
of Senators Benigno Aquino, Jr. and Jovito Salonga was curtailed. Today, it is the right of
Mr. Marcos and family. Who will be tomorrow's pariahs I deeply regret that the Court's
decision to use the political question doctrine in a situation where it does not apply raises
all kinds of disturbing possibilities.

I must emphasize that General Renato de Villa, the Chief of Staff of the Armed Forces, has
personally assured the Court that a rebellion of the above combined groups will not
succeed and that the military is on top of the situation. Where then is the clear danger to
national security? The Court has taken judicial notice of something which even the military
denies. There would be severe strains on military capabilities according to General de
Villa. There would be set-backs in the expected eradication of the Communist threat. There
would be other serious problems but all can be successfully contained by the military. I
must stress that no reference was made to a clear and present danger to national security
as would allow an overriding of the Bill of Rights.
The Solicitor General's argument that the failure of Congress to enact a statute defining
the parameters of the right to travel and to freely choose one's abode has constrained the
President to fill in the vacuum, is too reminiscent of Amendment No. 6 of the martial law
Constitution to warrant serious consideration. Amendment No. 6 allowed Marcos to issue
decrees whenever the Batasang Pambansa failed or was unable to act adequately on any
matter for any reason that in his judgment required immediate action. When the Bill of
Rights provides that a right may not be impaired except in the interest of national security,
public safety, or public health and further requires that a law must provide when such
specifically defined interests are prejudiced or require protection, the inaction of Congress
does not give reason for the respondents to assume the grounds for its impairment.
The fact that the Marcoses have been indicted before American federal courts does not
obstruct us from ruling against an unconstitutional assertion of power by Philippine
officials. Let the United States apply its laws. We have to be true to our own.
Mr. Marcos may be too ill to withstand the rigors of a transpacific flight. The agony of
traveling while hooked up to machines which have taken over the functions of his heart,
lungs, and kidneys may hasten his death. The physical condition of Mr. Marcos does not
justify our ignoring or refusing to act on his claim to a basic right which is legally
demandable and enforceable. For his own good, it might be preferable to stay where he is.
But he invokes a constitutional right. We have no power to deny it to him.
The issuance of a passport may be discretionary but it should not be withheld if to do so
would run counter to a constitutional guarantee. Besides, the petitioners are not asking for
passports and nothing else. Any travel documents or any formal lifting of the Marcos ban
as would allow international airlines to sell them tickets would suffice.
With all due respect for the majority opinion, I disagree with its dictum on the right to travel.
I do not think we should differentiate the right to return home from the right to go abroad or
to move around in the Philippines. If at all, the right to come home must be more preferred
than any other aspect of the right to travel. It was precisely the banning by Mr. Marcos of
the right to travel by Senators Benigno Aquino, Jr., Jovito Salonga, and scores of other
"undesirables" and "threats to national security" during that unfortunate period which led
the framers of our present Constitution not only to re-enact but to strengthen the
declaration of this right. Media often asks, "what else is new?" I submit that we now have a
freedom loving and humane regime. I regret that the Court's decision in this case sets back
the gains that our country has achieved in terms of human rights, especially human rights
for those whom we do not like or those who are against us.
The respondent Secretary of Foreign Affairs, Raul S. Manglapus has disclosed a list of
former dictators who were barred by their successors from returning to their respective
countries. There is no showing that the countries involved have constitutions which
guarantee the liberty of abode and the freedom to travel and that despite such
constitutional protections, the courts have validated the "ban a return" policy. Neither is it
shown that the successors of the listed dictators are as deeply committed to democratic
principles and as observant of constitutional protections as President Aquino.
It is indeed regrettable that some followers of the former President are conducting a
campaign to sow discord and to divide the nation. Opposition to the government no matter
how odious or disgusting is, however, insufficient ground to ignore a constitutional
guarantee.
During the protracted deliberations on this case, the question was asked is the
Government helpless to defend itself against a threat to national security? Does the
President have to suspend the privilege of the writ of habeas corpus or proclaim martial
law? Can she not take less drastic measures?
Of course, the Government can act. It can have Mr. Marcos arrested and tried in court. The
Government has more than ample powers under eixisting law to deal with a person who
transgresses the peace and imperils public safety. But the denial of travel papers is not
one of those powers because the Bill of Rights says so. There is no law prescribing exile in
a foreign land as the penalty for hurting the Nation.
Considering all the foregoing, I vote to GRANT the petition.

CRUZ, J., dissenting:


It is my belief that the petitioner, as a citizen of the Philippines, is entitled to return to and
live and die in his own country. I say this with a heavy heart but say it nonetheless.
That conviction is not diminished one whit simply because many believe Marcos to be
beneath contempt and undeserving of the very liberties he flounted when he was the
absolute ruler of this land.
The right of the United States government to detain him is not the question before us, nor
can we resolve it. The question we must answer is whether or not, assuming that Marcos
is permitted to leave Hawaii (which may depend on the action we take today), the
respondents have acted with grave abuse of discretion in barring him from his own country.
My reluctant conclusion is that they have, absent the proof they said they were prepared to
offer, but could not, that the petitioner's return would prejudice the security of the State.
I was the one who, in the open hearing held on June 27,1989, asked the Solicitor General
if the government was prepared to prove the justification for opposing the herein petition,
i.e. that it had not acted arbitrarily. He said it was. Accordingly, the Court, appreciating the
classified nature of the information expected, scheduled a closed-door hearing on July
25,1988. The Solicitor General and three representatives from the military appeared for the
respondents, together with former Senator Arturo M. Tolentino, representing the
petitioners.
In about two hours of briefing, the government failed dismally to show that the return of
Marcos dead or alive would pose a threat to the national security as it had alleged. The
fears expressed by its representatives were based on mere conjectures of political and
economic destabilization without any single piece of concrete evidence to back up their
apprehensions.
Amazingly, however, the majority has come to the conclusion that there exist "factual
bases for the President's decision" to bar Marcos's return. That is not my recollection of the
impressions of the Court after that hearing.
In holding that the President of the Philippines has residual powers in addition to the
specific powers granted by the Constitution, the Court is taking a great leap backward and
reinstating the discredited doctrine announced in Planas v. Gil (67 Phil. 62). This does not
square with the announced policy of the Constitutional Commission, which was precisely to
limit rather than expand presidential powers, as a reaction to the excesses of the past
dictatorship.
I can only repeat Justice Black's wry observation in the Steel Seizure Case (343 U.S. 579)
that if it was true that the President had been granted the totality of executive power, "it is
difficult to see why our forefathers bothered to add several specific items, including some
trifling ones, . . . I cannot accept the view that this clause is a grant in bulk of all
conceivable executive power but regard it as an allocation to the presidential office of the
generic powers thereafter stated."
I have no illusion that the stand I am taking will be met with paeans of praise, considering
that Marcos is perhaps the most detested man in the entire history of our country. But we
are not concerned here with popularity and personalities. As a judge, I am not swayed by
what Justice Cardozo called the "hooting throng" that may make us see things through the
prisms of prejudice. I bear in mind that when I sit in judgment as a member of this Court, I
must cast all personal feelings aside.
The issue before us must be resolved with total objectivity, on the basis only of the
established facts and the applicable law and not of wounds that still fester and scars that
have not healed. And not even of fear, for fear is a phantom. That phantom did not rise
when the people stood fast at EDSA against the threat of total massacre in defense at last
of their freedom.
I cannot turn back on the lessons of liberty that I taught for more than three decades as a
professor of Constitutional Law. These principles have not changed simply because I am
now on the Court or a new administration is in power and the shoe is on the other foot.
Like the martyred Ninoy Aquino who also wanted to come back to the Philippines against
the prohibitions of the government then, Marcos is entitled to the same right to travel and
the liberty of abode that his adversary invoked. These rights are guaranteed by the
Constitution to all individuals, including the patriot and the homesick and the prodigal son
returning, and tyrants and charlatans and scoundrels of every stripe.
I vote to grant the petition.
PARAS, J., dissenting:

10

I dissent. Already, some people refer to us as a nation without discipline. Are we ready to
be also called a society without compassion?
The issue as to whether or not former President Ferdinand E. Marcos should be allowed to
return to the Philippines may be resolved by answering two simple questions: Does he
have the right to return to his own country and should national safety and security deny
him this right?
There is no dispute that the former President is still a Filipino citizen and both under the
Universal Declaration of Human Rights and the 1987 Constitution of the Philippines, he
has the right to return to his own country except only if prevented by the demands of
national safety and national security.
Our Armed Forces have failed to prove this danger. They are bereft of hard evidence, and
all they can rely on is sheer speculation. True, there is some danger but there is no
showing as to the extent.
It is incredible that one man alone together with his family, who had been ousted from this
country by popular will, can arouse an entire country to rise in morbid sympathy for the
cause he once espoused.
It is therefore clear to me, all other opinions to the contrary notwithstanding, that the former
President should be allowed to return to our country under the conditions that he and the
members of his family be under house arrest in his hometown in Ilocos Norte, and should
President Marcos or any member of his family die, the body should not be taken out of the
municipality of confinement and should be buried within ten (10) days from date.
If we do this, our country shall have maintained its regard for fundamental human rights,
for national discipline, and for human compassion.
PADILLA, J., dissenting:
I dissent. As I see it, the core issue in this case is, which right will prevail in the conflict
between the right of a Filipino, Ferdinand E. Marcos, to return to the Philippines, and the
right of the Philippine Government to bar such return in the interest of national security and
public safety. In this context, the issue is clearly justiciable involving, as it does, colliding
assertions of individual right and governmental power. Issues of this nature more than
explain why the 1986 Constitutional Commission, led by the illustrious former Chief Justice
Roberto Concepcion, incorporated in the 1987 Constitution, the new provision on the
power of Judicial Review, viz:
Judicial power includes the duty of the courts of justice to settle actual controversies
involving rights which are legally demandable and enforceable, and to determine whether
or not there has been a grave abuse of discretion amounting to lack or excess of
jurisdiction on the part of any branch or instrumentality of the Government. Article VIII,
Section 1, par. 2; (Emphasis supplied)
Mr. Marcos invokes in his favor the specific and precise constitutional right of every Filipino
to travel which, in the language of the Constitution, shall not be impaired "except in the
interest of national security, public safety, or public health, as may be provided by law" (Art.
III, Sec. 6). That the right to travel comprises the right to travel within the country, to travel
out of the country and to return to the country (Philippines), is hardly disputable. Short of all
such components, the right to travel is meaningless. The real question arises in the
interpretation of the qualifications attached by the Constitution to such right to travel.
Petitioners contend that, in the absence of restricting legislation, the right to travel is
absolute. I do not agree. It is my view that, with or without restricting legislation, the interest
of national security, public safety or public health can justify and even require restrictions
on the right to travel, and that the clause "as may be provided by law" contained in Article
III, Section 6 of the 1987 Constitution merely declares a constitutional leave or permission
for Congress to enact laws that may restrict the right to travel in the interest of national
security, public safety or public health. I do not, therefore, accept the petitioners'
submission that, in the absence of enabling legislation, the Philippine Government is
powerless to restrict travel even when such restriction is demanded by national security,
public safety or public health, The power of the State, in particular cases, to restrict travel
of its citizens finds abundant support in the police power of the state wich may be
exercised to preserve and maintain government as well as promote the general welfare of
the greatest number of people.
And yet, the power of the State, acting through a government in authority at any given
time, to restrict travel, even if founded on police power, cannot be absolute and unlimited
under all circumstances, much less, can it be arbitrary and irrational.
Mr. Marcos, I repeat, comes before the Court as a Filipino, invoking a specific
constitutional right, i.e., the right to return to the country. 1 Have the respondents
presented sufficient evidence to offset or override the exercise of this right invoked by Mr.

Marcos? Stated differently, have the respondents shown to the Court sufficient factual
bases and data which would justify their reliance on national security and public safety in
negating the right to return invoked by Mr. Marcos?
I have given these questions a searching examination. I have carefully weighed and
assessed the "briefing" given the Court by the highest military authorities of the land last 28
July 1989. 1 have searched, but in vain, for convincing evidence that would defeat and
overcome the right of Mr. Marcos as a Filipino to return to this country. It appears to me
that the apprehensions entertained and expressed by the respondents, including those
conveyed through the military, do not, with all due respect, escalate to proportions of
national security or public safety. They appear to be more speculative than real, obsessive
rather than factual. Moreover, such apprehensions even if translated into realities, would
be "under control," as admitted to the Court by said military authorities, given the resources
and facilities at the command of government. But, above all, the Filipino people
themselves, in my opinion, will know how to handle any situation brought about by a
political recognition of Mr. Marcos' right to return, and his actual return, to this country. The
Court, in short, should not accept respondents' general apprehensions, concerns and
perceptions at face value, in the light of a countervailing and even irresistible, specific,
clear, demandable, and enforceable right asserted by a Filipino.
Deteriorating political, social, economic or exceptional conditions, if any, are not to be used
as a pretext to justify derogation of human rights. 2
As a member of the United Nations, the Philippines has obligations under its charter. By
adopting the generally accepted principles of international law as part of the law of the
land, (Art. II, Sec. 2 of the Constitution), the Philippine government cannot just pay lip
service to Art. 13, par. 2 of the Universal Declaration of Human Rights which provides that
everyone has the right to leave any country, including his own, and to return to his country.
This guarantee is reiterated in Art. XII, par. 2 of the International Covenant on Civil and
Political Rights which states that "no one shall be arbitrarily deprived of the right to enter
his own country." (Emphasis supplied) "Arbitrary" or "arbitrarily" was specifically chosen by
the drafters of the Covenant 3 hoping to protect an individual against unexpected,
irresponsible or excessive encroachment on his rights by the state based on national
traditions or a particular sense of justice which falls short of international law or standards.
4
The Solicitor General maintains that because the respondents, as alter egos of the
President, have raised the argument of "national security" and "public safety," it is the duty
of this Court to unquestioningly yield thereto, thus casting the controversy to the realm of a
political question. I do not agree. I believe that it is one case where the human and
constitutional light invoked by one party is so specific, substantial and clear that it cannot
be overshadowed, much less, nullified by simplistic generalities; worse, the Court neglects
its duty under the Constitution when it allows the theory of political question to serve as a
convenient, and yet, lame excuse for evading what, to me, is its clearly pressing and
demandable duty to the Constitution.
During the oral arguments in this case, I asked the Solicitor General how one could validly
defend the right of former Senator Benigno S. Aquino, Jr., a Filipino, to return to the
Philippines in 1983 and, at the same time, credibly deny the right of Mr. Marcos, also a
Filipino, to return to the Philippines in 1989. I still have not found a satisfactory answer to
that question. Instead, it has become clearer by the day that the drama today is the same
drama in 1983 with the only difference that the actors are in opposite roles, which really
makes one hope, in the national interest, that the mistake in 1983 should not be made to
persist in 1989.
To one who owes Mr. Marcos, his wife and followers absolutely nothing, personal, political
or otherwise, the following are the cogent and decisive propositions in this case
1.
Mr. Marcos is a Filipino and, as such, entitled to return to die and be buried in
this country;
2.
respondents have not shown any "hard evidence" or convincing proof why his
right as a Filipino to return should be denied him. All we have are general conclusions of
"national security" and "public safety" in avoidance of a specific demandable and
enforceable constitutional and basic human right to return;
3.
the issue of Marcos' return to the Philippines, perhaps more than any issue
today, requires of all members of the Court, in what appears to be an extended political
contest, the "cold neutrality of an impartial judge." It is only thus that we fortify the
independence of this Court, with fidelity, not to any person, party or group but to the
Constitution and only to the Constitution.
ACCORDINGLY, I vote to GRANT the petition.
SARMIENTO, J., dissenting:

11

I vote to grant the petition.


The only issue that saddles the Court is simply: "whether or not, in the exercise of the
powers granted by the Constitution, the President may prohibit the Marcoses from
returning to the Philippines." 1 I therefore take exception to allusions 2 anent "the capacity
of the Marcoses to stir trouble even from afar." 3 I have legitimate reason to fear that my
brethren, in passing judgment on the Marcoses (insofar as their "capacity to stir trouble" is
concerned), have overstepped the bounds of judicial restraint, or even worse, convicted
them without trial.
I also find quite strained what the majority would have as the "real issues" facing the Court:
"The right to return to one's country," pitted against "the right of travel and freedom of
abode", and their supposed distinctions under international law, as if such distinctions,
under international law in truth and in fact exist. There is only one right involved here,
whether under municipal or international law: the light of travel, whether within one's own
country, or to another, and the right to return thereto. The Constitution itself makes no
distinctions; let then, no one make a distinction. Ubi lex non distinguish nec nos distinguere
debemus.
As the majority would indeed have it, the issue is one of power: Does the Executive have
the power to deny a citizen his right to travel (back to the country or to another)? It is a
question that, in essence, involves the application, and no more, of the provisions of the
1987 Constitution:
Sec. 6.
The liberty of abode and of changing the same within the limits prescribed by
law shall not be impaired except upon lawful order of the court. Neither shall the right to
travel be impaired except in the interest of national security, public safety, or public health,
as may be provided by law. 4
The majority says, with ample help from American precedents, that the President is
possessed of the power, thus:
On these premises, we hold the view that although the 1987 Constitution imposes
limitations on the exercise of specific powers of the President, it maintains intact what is
traditionally considered as within the scope of "executive power." Corollarily, the powers of
the President cannot be said to be limited only to the specific powers enumerated in the
Constitution. In other words, executive power is more than the sum of specific powers so
enumerated. 5
So also:
Faced with the problem of whether or not the time is right to allow the Marcoses to return
to the Philippines, the President is, under the Constitution, constrained to consider these
basic principles in arriving at a decision. More than that, having sworn to defend and
uphold the Constitution, the President has the obligation under the Constitution to protect
the people, promote their welfare and advance the national interest. It must be borne in
mind that the Constitution, aside from being an allocation of power is also a social contract
whereby the people have surrendered their sovereign powers to the State for the common
good. Hence, lest the officers of the Government exercising the powers delegated by the
people forget and the servants of the people become rulers, the Constitution reminds
everyone that "sovereignty resides in the people and all government authority emanates
from them." [Art. II, Sec. 1 . ] 6

human being is duly safeguarded. To be true to its primordial aim a constitution must lay
down the boundaries beyond which he's forbidden territory for state action" 8
My brethren have not demonstrated, to my satisfaction, how the President may override
the direct mandate of the fundamental law. It will not suffice, so I submit, to say that the
President's plenitude of powers, as provided in the Constitution, or by sheer constitutional
implication, prevail over express constitutional commands. "Clearly," so I borrow J.B.L.
Reyes, in his own right, a titan in the field of public law, "this argument ... rests ... not upon
the text of the (Constitution] ... but upon a mere inference therefrom." 9 For if it were,
indeed, the intent of the Charter to create an exception, that is, by Presidential action, to
the right of travel or liberty of abode and of changing the same other than what it explicitly
says already ("limits prescribed by law" 10 or "upon lawful order of the court" 11 the
Charter could have specifically declared so. As it is, the lone deterrents to the right in
question are: (1) decree of statute, or (2) lawful judicial mandate. Had the Constitution
intended a third exception, that is, by Presidential initiative, it could have so averred. It
would also have made the Constitution, as far as limits to the said right are concerned,
come full circle: Limits by legislative, judicial, and executive processes.
Obviously, none of the twin legal bars exist. There is no law banning the Marcoses from
the country; neither is there any court decree banishing him from Philippine territory.
It is to be noted that under the 1973 Constitution, the right to travel is worded as follows:
Sec. 5.
The liberty of abode and of travel shall not be impaired except upon lawful
order of the court, or when necessary in the interest of national security, public safety, or
public health. 12
Under this provision, the right may be abated: (1) upon a lawful court order, or (2) "when
necessary in the interest of national security, public safety, or public health. 13 Arguably,
the provision enabled the Chief Executive (Marcos) to moderate movement of citizens,
which, Bernas says, justified such practices as "hamletting", forced relocations, or the
establishment of free-fire zones. 14
The new Constitution, however, so it clearly appears, has divested the Executive's implied
power. And, as it so appears, the right may be impaired only "within the limits provided by
law . 15 The President is out of the picture.
Admittedly, the Chief Executive is the "sole" judge of all matters affecting national security
16 and foreign affairs; 17 the Bill of Rights precisely, a form of check against excesses of
officialdom is, in this case, a formidable barrier against Presidential action. (Even on
matters of State security, this Constitution prescribes limits to Executive's powers as
Commander-in-Chief.)
Second: Assuming, ex hypothesis that the President may legally act, the question that
emerges is: Has it been proved that Marcos, or his return, will, in fact, interpose a threat to
the national security , public safety, or public health?" What appears in the records are
vehement insistences that Marcos does pose a threat to the national good and yet, at the
same time, we have persistent claims, made by the military top brass during the lengthy
closed-door hearing on July 25, 1989, that "this Government will not fall" should the former
first family in exile step on Philippine soil. which is which?
At any rate, it is my opinion that we can not leave that determination solely to the Chief
Executive. The Court itself must be content that the threat is not only clear, but more so,
present. 18

And finally:
To the President, the problem is one of balancing the general welfare and the common
good against the exercise of rights of certain individuals. The power involved is the
President's residual power to protect the general welfare of the people. It is founded on the
duty of the President, as steward of the people. To paraphrase Theodore Roosevelt, it is
not only the power of the President but also his duty to do anything not forbidden by the
Constitution or the laws that the needs of the nation demanded [See Corwin, supra, at
153]. It is a power borne by the President's duty to preserve and defend the Constitution. It
also may be viewed as a power implicit in the President's duty to take care that the laws
are faithfully executed [See Hyman, The American President, where the author advances
the view that an allowance of discretionary power is unavoidable in any government and is
best lodged in the President]. 7
I am not persuaded.
First: While the Chief Executive exercises powers not found expressly in the Charter, but
has them by constitutional implication* the latter must yield to the paramountcy of the Bill of
Rights. According to Fernando: "A regime of constitutionalism is thus unthinkable without
an assurance of the primacy of a big of rights. Precisely a constitution exists to assure that
in the discharge of the governmental functions, the dignity that is the birthright of every

That the President "has the obligation under the Constitution to protect the people ... " 19 is
an obligation open to no doubt. But the question, and so I ask again and again, is: From
whom? If we say "from Marcos," we unravel chinks in our political armor. It also flies in the
face of claims, so confidently asserted, that "this Government will not fall" even if we
allowed Marcos to return.
It flies, finally, in the face of the fact that a good number of the henchmen trusted allies,
implementors of martial law, and pathetic parasites of the ex-first couple are, in fact, in the
Government, in the comfort of its offices, and or at the helm of its key agencies. Let us not,
therefore, joke ourselves of moral factors warranting the continued banishment of Marcos.
Morality is the last refuge of the self-righteous.
Third: The problem is not of balancing the general welfare against the exercise of
individual liberties. 20 As I indicated, not one shred of evidence, let alone solid evidence,
other than surmises of possibilities, has been shown to justify the 'balancing act" referred
to. Worse, these conjectures contradict contentions that as far as Philippine society is
concerned, Marcos is "history".
The power of the President, so my brethren declaim, "calls for the exercise of the
President's power as protector of peace. 21

12

This is the self-same falsehood Marcos foisted on the Filipino people to justify the
authoritarian rule. It also means that we are no better than he has.
That "[t]he power of the President to keep the peace is not limited merely to exercising the
commander-in-chief powers in times of emergency or to leading the State against external
and internal threats to its existence" 22 is a bigger fantasy: It not only summons the martial
law decisions of pre-"EDSA" (especially with respect to the detestable Amendment No. 6),
it is inconsistent with the express provisions of the commander-in-chief clause of the 1987
Charter, a Charter that has perceptibly reduced the Executive's powers vis-a-vis its 1973
counterpart. 23
II.
The undersigned would be lacking in candor to conceal his dislike, to say the least, for
Marcos. Because of Marcos, the writer of it's dissent lost a son His son's only "offense"
was that he openly and unabatedly criticized the dictator, his associates, and his military
machinery. He would pay dearly for it; he was arrested and detained, without judicial
warrant or decision, for seven months and seven days. He was held incommunicado a
greater part of the time, in the military stockade of Camp Crame. In his last week in
detention, he was, grudgingly, hospitalized (prison hospital) and confined for chronic
asthma. The deplorable conditions of his imprisonment exacerbated his delicate health
beyond cure. He died, on November 11, 1977, a martyr on the altar of the martial law
apparatus.
The undersigned also counts himself as one of the victims of Marcos' ruthless
apparatchiki. On August 14, 1979, he was, along with former President Diosdado
Macapagal, and Congressmen Rogaciano Mercado and Manuel Concordia, charged,
"ASSOed"and placed under house arrest, for "inciting to sedition" and "rumor mongering "
24 in the midst of the distribution of Ang Demokrasya Sa Pilipinas (Democracy In the
Philippines), a book extremely critical of martial rule, published by him and former
Congressman Concordia, authored by President Macapagal and translated into Tagalog by
Congressman Rogaciano Mercado. In addition, they were also all accused of libel in more
than two dozens of criminal complaints filed by the several military officers named in the
"condemned" book as having violated the human rights of dissenters, and for other crimes,
in the office of the Provincial Fiscal of Rizal. It had to take the events at "EDSA" to set
them free from house arrest and these political offenses. I am for Marcos' return not
because I have a score to settle with him. Ditto's death or my arrest are scores that can not
be settled.
I feel the ex-President's death abroad (presented in the dailies as 'imminent") would leave
him 'unpunished for his crimes to country and countrymen. If punishment is due, let this
leadership inflict it. But let him stand trial and accord him due process.
Modesty aside, I have staunchly and consistently advocated the human right of travel and
movement and the liberty of abode. 25 We would have betrayed our own Ideals if we
denied Marcos his rights. It is his constitutional right, a right that can not be abridged by
personal hatred, fear, founded or unfounded, and by speculations of the "man's "capacity"
"to stir trouble" Now that the shoe is on the other foot, let no more of human rights
violations be repeated against any one, friend or foe. In a democratic framework, there is
no this as getting even.
The majority started this inquiry on the question of power. I hold that the President, under
the present Constitution and existing laws, does not have it. Mandamus, I submit, lies.
Narvasa, Melencio-Herrera, Gancayco, Grio- Aquino, Medialdea and Regalado, JJ.,
concur.
Feliciano, J., is on leave.
Separate Opinions

imponderables rather than on abstract theories of law. History and time-honored principles
of constitutional law have conceded to the Executive Branch certain powers in times of
crisis or grave and imperative national emergency. Many terms are applied to these
powers: "residual," "inherent," 44 moral," "implied," "aggregate," 'emergency." whatever
they may be called, the fact is that these powers exist, as they must if the governance
function of the Executive Branch is to be carried out effectively and efficiently. It is in this
context that the power of the President to allow or disallow the Marcoses to return to the
Philippines should be viewed. By reason of its impact on national peace and order in these
admittedly critical times, said question cannot be withdrawn from the competence of the
Executive Branch to decide.
And indeed, the return of the deposed President, his wife and children cannot but pose a
clear and present danger to public order and safety. One needs only to recall the series of
destabilizing actions attempted by the so-called Marcos loyalists as well as the ultra-rightist
groups during the EDSA Revolution's aftermath to realize this. The most publicized of
these offensives is the Manila Hotel incident which occurred barely five (5) months after
the People's Power Revolution. Around 10,000 Marcos supporters, backed by 300 loyalist
soldiers led by Brigadier General Jose Zumel and Lt. Col. Reynaldo Cabauatan converged
at the Manila Hotel to witness the oath-taking of Arturo Tolentino as acting president of the
Philippines. The public disorder and peril to life and limb of the citizens engendered by this
event subsided only upon the eventual surrender of the loyalist soldiers to the authorities.
Then followed the Channel 7, Sangley, Villamor, Horseshoe Drive and Camp Aguinaldo
incidents. Military rebels waged simultaneous offensives in different parts of Metro Manila
and Sangley Point in Cavite. A hundred rebel soldiers took over Channel 7 and its radio
station DZBB. About 74 soldier rebels attacked Villamor Air Base, while another group
struck at Sangley Point in Cavite and held the 15th Air Force Strike wing commander and
his deputy hostage. Troops on board several vehicles attempted to enter Gate I of Camp
Aguinaldo even as another batch of 200 soldiers encamped at Horseshoe Village.
Another destabilization plot was carried out in April, 1987 by enlisted personnel who forced
their way through Gate 1 of Fort Bonifacio. They stormed into the army stockade but
having failed to convince their incarcerated members to unite in their cause, had to give up
nine (9) hours later.
And who can forget the August 28, 1987 coup attempt which almost toppled the Aquino
Government? Launched not by Marcos loyalists, but by another ultra-rightist group in the
military led by Col. Gregorio "Gringo" Honasan who remains at large to date, this most
serious attempt to wrest control of the government resulted in the death of many civilians.
Members of the so-called Black Forest Commando were able to cart away high-powered
firearms and ammunition from the Camp Crame Armory during a raid conducted in June
1988. Most of the group members were, however, captured in Antipolo, Rizal. The same
group was involved in an unsuccessful plot known as Oplan Balik Saya which sought the
return of Marcos to the country.
A more recent threat to public order, peace and safety was the attempt of a group named
CEDECOR to mobilize civilians from nearby provinces to act as blockading forces at
different Metro Manila areas for the projected link-up of Marcos military loyalist troops with
the group of Honasan. The pseudo "people power" movement was neutralized thru
checkpoints set up by the authorities along major road arteries where the members were
arrested or forced to turn back.
While not all of these disruptive incidents may be traced directly to the Marcoses, their
occurrence militates heavily against the wisdom of allowing the Marcoses' return. Not only
will the Marcoses' presence embolden their followers toward similar actions, but any such
action would be seized upon as an opportunity by other enemies of the State, such as the
Communist Party of the Philippines and the NPA'S, the Muslim secessionists and extreme
rightists of the RAM, to wage an offensive against the government. Certainly, the state
through its executive branch has the power, nay, the responsibility and obligation, to
prevent a grave and serious threat to its safety from arising.

FERNAN, C.J., concurring:


"The threats to national security and public order are real the mounting Communist
insurgency, a simmering separatist movement, a restive studentry, widespread labor
disputes, militant farmer groups. . . . Each of these threats is an explosive ingredient in a
steaming cauldron which could blow up if not handled properly." 1
These are not my words. They belong to my distinguished colleague in the Court, Mr.
Justice Hugo E. Gutierrez, Jr. But they express eloquently the basis of my full concurrence
to the exhaustive and well-written ponencia of Mme. Justice Irene R. Cortes.
Presidential powers and prerogatives are not fixed but fluctuate. They are not derived
solely from a particular constitutional clause or article or from an express statutory grant.
Their limits are likely to depend on the imperatives of events and contemporary

Apparently lost amidst the debate on whether or not to allow the Marcoses to return to the
Philippines is one factor, which albeit, at first blush appears to be extra legal, constitutes a
valid justification for disallowing the requested return. I refer to the public pulse. It must be
remembered that the ouster of the Marcoses from the Philippines came about as an
unexpected, but certainly welcomed, result of the unprecedented peoples power"
revolution. Millions of our people braved military tanks and firepower, kept vigil, prayed,
and in countless manner and ways contributed time, effort and money to put an end to an
evidently untenable claim to power of a dictator. The removal of the Marcoses from the
Philippines was a moral victory for the Filipino people; and the installation of the present
administration, a realization of and obedience to the people's Will.
Failing in legal arguments for the allowance of the Marcoses' return, appeal is being made
to sympathy, compassion and even Filipino tradition. The political and economic gains we

13

have achieved during the past three years are however too valuable and precious to
gamble away on purely compassionate considerations. Neither could public peace, order
and safety be sacrificed for an individual's wish to die in his own country. Verily in the
balancing of interests, the scales tilt in favor of presidential prerogative, which we do not
find to have been gravely abused or arbitrarily exercised, to ban the Marcoses from
returning to the Philippines.
GUTIERREZ, JR., J., dissenting
"The Constitution ... is a law for rulers and people, equally in war and in peace, and covers
with the shield of its protection all classes of men, at all times, and under all circumstances.
No doctrine involving more pernicious consequences was ever invented by the wit of man
than that any of its provisions can be suspended during any of the great exigencies of
government." (Ex Parte Milligan, 4 Wall. 2; 18 L. Ed. 281 [1866])
Since our days as law students, we have proclaimed the stirring words of Ex Parte Milligan
as self-evident truth. But faced with a hard and delicate case, we now hesitate to qive
substance to their meaning. The Court has permitted a basic freedom enshrined in the Bill
of Rights to be taken away by Government.
There is only one Bill of Rights with the same interpretation of liberty and the same
guarantee of freedom for both unloved and despised persons on one hand and the rest
who are not so stigmatized on the other.
I am, therefore, disturbed by the majority ruling which declares that it should not be a
precedent. We are interpreting the Constitution for only one person and constituting him
into a class by himself. The Constitution is a law for all classes of men at all times. To have
a person as one class by himself smacks of unequal protection of the laws.
With all due respect for the majority in the Court, I believe that the issue before us is one of
rights and not of power. Mr. Marcos is insensate and would not live if separated from the
machines which have taken over the functions of his kidneys and other organs. To treat
him at this point as one with full panoply of power against whom the forces of Government
should be marshalled is totally unrealistic. The Government has the power to arrest and
punish him. But does it have the power to deny him his right to come home and die among
familiar surroundings?
Hence, this dissent.

decided by the people in their sovereign capacity, or in regard to which full discretionary
authority has been delegated to the legislative or executive branch of the government.
We defined a political question in Taniada v. Cuenco (103 Phil. 1051, 1066 [1957]), as
follows:
In short, the term 'Political question' connotes, in legal parlance, what it means in ordinary
parlance, namely, a question of policy. In other words, in the language of Corpus Juris
Secundum (supra), it refers to 'those questions which, under the Constitution, are to be
decided by the people in their sovereign capacity, or in regard to which full discretionary
authority has been delegated to the Legislature or executive branch of the Government. It
is concerned with issues dependent upon the wisdom, not legality, of a particular measure.
The most often quoted definition of political question was made by Justice Wilham J.
Brennan Jr., who penned the decision of the United States Supreme Court in Baker v. Carr
(369 US 186,82, S. Ct. 691, L. Ed. 2d. 663 [1962]). The ingredients of a political question
as formulated in Baker v. Carr are:
It is apparent that several formulations which vary slightly according to the settings in
which the questions arise may describe a political question, which Identifies it as
essentially a function of the separation of powers. Prominent on the surface of any case
held to involve a political question is found a textually demonstrable constitutional
commitment of the issue to a coordinate political department; or a lack of judicially
discoverable and manageable standards for resolving it; or the impossibility of deciding
without an initial policy determination of a kind clearly for non-judicial discretion; or the
impossibility of a court's undertaking independent resolution without expressing lack of the
respect due coordinate branches of government; or an unusual need for unquestioning
adherence to a political decision already made; or potentiality of embarrassment from
multifarious pronouncements by various departments on one question.
For a political question to exist, there must be in the Constitution a power vested
exclusively in the President or Congress, the exercise of which the court should not
examine or prohibit. A claim of plenary or inherent power against a civil right which claim is
not found in a specific provision is dangerous. Neither should we validate a roving
commission allowing public officials to strike where they please and to override everything
which to them represents evil. The entire Govern ment is bound by the rule of law.
The respondents have not pointed to any provision of the Constitution which commits or
vests the determination of the question raised to us solely in the President.

The Bill of Rights provides:


Sec.
6. The liberty of abode and of changing the same within the limits prescribed
by law shall not be impaired except upon lawful order of the court. Neither shall the right to
travel be impaired except in the interest of national security, public safety, or public health,
as may be provided by law. (Emphasis supplied, Section 6, Art. 111, Constitution)
To have the petition dismissed, the Solicitor General repeats a ritual invocation of national
security and public safety which is hauntingly familiar because it was pleaded so often by
petitioner Ferdinand E. Marcos to justify his acts under martial law. There is, however, no
showing of the existence of a law prescribing the limits of the power to impair and the
occasions for its exercise. And except for citing breaches of law and order, the more
serious of which were totally unrelated to Mr. Marcos and which the military was able to
readily quell, the respondents have not pointed to any grave exigency which permits the
use of untrammeled Governmental power in this case and the indefinite suspension of the
constitutional right to travel.
The respondents' basic argument is that the issue before us is a political question beyond
our jurisdiction to consider. They contend that the decision to ban former President
Marcos, and his family on grounds of national security and public safety is vested by the
Constitution in the President alone. The determination should not be questioned before this
Court. The President's finding of danger to the nation should be conclusive on the Court.
What is a political question?
In Vera v. Avelino (77 Phil. 192, 223 [1946], the Court stated:
xxxxxxxxx
It is a well-settled doctrine that political questions are not within the province of the
judiciary, except to the extent that power to deal with such questions has been conferred
on the courts by express constitutional or statutory provisions. It is not so easy, however, to
define the phrase political question, nor to determine what matters fall within its scope. It is
frequently used to designate all questions that he outside the scope of the judicial power.
More properly, however, it means those questions which, under the constitution, are to be

The authority implied in Section 6 of the Bill of Rights itself does not exist because no law
has been enacted specifying the circumstances when the right may be impaired in the
interest of national security or public safety. The power is in Congress, not the Executive.
The closest resort to a textile demonstrable constitutional commitment of power may be
found in the commander-in-chief clause which allows the President to call out the armed
forces in case of lawless violence, invasion or rebellion and to suspend the privilege of the
writ of habeas corpus or proclaim martial law in the event of invasion or rebellion, when the
public safety requires it.
There is, however, no showing, not even a claim that the followers of former President
Marcos are engaging in rebellion or that he is in a position to lead them. Neither is it
claimed that there is a need to suspend the privilege of the writ of habeas corpus or
proclaim martial law because of the arrival of Mr. Marcos and his family. To be sure, there
may be disturbances but not of a magnitude as would compel this Court to resort to a
doctrine of non- justiceability and to ignore a plea for the enforcement of an express Bill of
Rights guarantee.
The respondents themselves are hard-pressed to state who or what constitutes a Marcos
"loyalist." The constant insinuations that the "loyalist" group is heavily funded by Mr.
Marcos and his cronies and that the "loyalists" engaging in rallies and demonstrations have
to be paid individual allowances to do so constitute the strongest indication that the hard
core "loyalists" who would follow Marcos right or wrong are so few in number that they
could not possibly destabilize the government, much less mount a serious attempt to
overthrow it.
Not every person who would allow Mr. Marcos to come home can be tagged a "loyalist." It
is in the best of Filipino customs and traditions to allow a dying person to return to his
home and breath his last in his native surroundings. Out of the 103 Congressmen who
passed the House resolution urging permission for his return, there are those who dislike
Mr. Marcos intensely or who suffered under his regime. There are also many Filipinos who
believe that in the spirit of national unity and reconciliation Mr. Marcos and his family
should be permitted to return to the Philippines and that such a return would deprive his
fanatic followers of any further reason to engage in rallies and demonstrations.

14

The Court, however, should view the return of Mr. Marcos and his family solely in the light
of the constitutional guarantee of liberty of abode and the citizen's right to travel as against
the respondents' contention that national security and public safety would be endangered
by a grant of the petition.
Apart from the absence of any text in the Constitution committing the issue exclusively to
the President, there is likewise no dearth of decisional data, no unmanageable standards
which stand in the way of a judicial determination.
Section 6 of the Bill of Rights states categorically that the liberty of abode and of changing
the same within the limits prescribed by law may be impaired only upon a lawful order of a
court. Not by an executive officer. Not even by the President. Section 6 further provides
that the right to travel, and this obviously includes the right to travel out of or back into the
Philippines, cannot be impaired except in the interest of national security, public safety, or
public health, as may be provided by law.
There is no law setting the limits on a citizen's right to move from one part of the country to
another or from the Philippines to a foreign country or from a foreign country to the
Philippines. The laws cited by the Solicitor General immigration, health, quarantine,
passports, motor vehicle, destierro probation, and parole are all inapplicable insofar as the
return of Mr. Marcos and family is concerned. There is absolutely no showing how any of
these statutes and regulations could serve as a basis to bar their coming home.
There is also no disrespect for a Presidential determination if we grant the petition. We
would simply be applying the Constitution, in the preservation and defense of which all of
us in Government, the President and Congress included, are sworn to participate.
Significantly, the President herself has stated that the Court has the last word when it
comes to constitutional liberties and that she would abide by our decision.
As early as 1983, it was noted that this Court has not been very receptive to the invocation
of the political question doctrine by government lawyers. (See Morales, Jr. .v Ponce Enrile,
121 SCRA 538 [1983]).
Many of those now occupying the highest positions in the executive departments,
Congress, and the judiciary criticized this Court for using what they felt was a doctrine of
convenience, expediency, utility or subservience. Every major challenge to the acts of
petitioner Ferdinand E. Marcos under his authoritarian regime the proclamation of martial
law, the ratification of a new constitution, the arrest and detention of "enemies of the State"
without charges being filed against them, the dissolution of Congress and the exercise by
the President of legislative powers, the trial of civilians for civil offenses by military
tribunals, the seizure of some of the country's biggest corporations, the taking over or
closure of newspaper offices, radio and television stations and other forms of media, the
proposals to amend the Constitution, etc. was invariably met by an invocation that the
petition involved a political question. It is indeed poetic justice that the political question
doctrine so often invoked by then President Marcos to justify his acts is now being used
against him and his family. Unfortunately, the Court should not and is not allowed to
indulge in such a persiflage. We are bound by the Constitution.
The dim view of the doctrine's use was such that when the present Constitution was
drafted, a broad definition of judicial power was added to the vesting in the Supreme Court
and statutory courts of said power.

This is not to state that there can be no more political questions which we may refuse to
resolve. There are still some political questions which only the President, Congress, or a
plebiscite may decide. Definitely, the issue before us is not one of them.
The Constitution requires the Court "to determine whether or not there has been a grave
abuse of discretion amounting to lack or excess of jurisdiction."
How do we determine a grave abuse of discretion?
The tested procedure is to require the parties to present evidence. Unfortunately,
considerations of national security do not readily lend themselves to the presentation of
proof before a court of justice. The vital information essential to an objective determination
is usually highly classified and it cannot be rebutted by those who seek to overthrow the
government. As early as Barcelon v. Baker (5 Phil. 87, 93 [19051), the Court was faced
with a similar situation. It posed a rhetorical question. If after investigating conditions in the
Archipelago or any part thereof, the President finds that public safety requires the
suspension of the privilege of the writ of habeas corpus, can the judicial department
investigate the same facts and declare that no such conditions exist?
In the effort to follow the "grave abuse of discretion" formula in the second paragraph of
Section 1, Article VIII of the Constitution, the court granted the Solicitor General's offer that
the military give us a closed door factual briefing with a lawyer for the petitioners and a
lawyer for the respondents present.
The results of the briefing call to mind the concurrence of Justice Vicente Abad Santos in
Morales, Jr. v. Enrile, (121 SCRA 538, 592 [19831):
How can this Court determine the factual basis in order that it can ascertain whether or not
the president acted arbitrarily in suspending the writ when, in the truth words of
Montenegro, with its very limited machinery fit] cannot be in better position [than the
Executive Branch] to ascertain or evaluate the conditions prevailing in the Archipelago? (At
p. 887). The answer is obvious. It must rely on the Executive Branch which has the
appropriate civil and military machinery for the facts. This was the method which had to be
used in Lansang. This Court relied heavily on classified information supplied by the
military. Accordingly, an incongruous situation obtained. For this Court, relied on the very
branch of the government whose act was in question to obtain the facts. And as should be
expected the Executive Branch supplied information to support its position and this Court
was in no situation to disprove them. It was a case of the defendant judging the suit. After
all is said and done, the attempt by its Court to determine whether or not the President
acted arbitrarily in suspending the writ was a useless and futile exercise.
There is still another reason why this Court should maintain a detached attitude and refrain
from giving the seal of approval to the act of the Executive Branch. For it is possible that
the suspension of the writ lacks popular support because of one reason or another. But
when this Court declares that the suspension is not arbitrary (because it cannot do
otherwise upon the facts given to it by the Executive Branch) it in effect participates in the
decision-making process. It assumes a task which it is not equipped to handle; it lends its
prestige and credibility to an unpopular act.

Judicial power includes the duty of the courts of justice to settle actual controversies
involving rights which are legally demandable and enforceable, and to determine whether
or not there has been a grave abuse of discretion amounting to lack or excess of
jurisdiction on the part of any branch or instrumentality of the Government.

The other method is to avail of judicial notice. In this particular case, judicial notice would
be the only basis for determining the clear and present danger to national security and
public safety. The majority of the Court has taken judicial notice of the Communist
rebellion, the separatist movement, the rightist conspiracies, and urban terrorism. But is it
fair to blame the present day Marcos for these incidents? All these problems are totally
unrelated to the Marcos of today and, in fact, are led by people who have always opposed
him. If we use the problems of Government as excuses for denying a person's right to
come home, we will never run out of justifying reasons. These problems or others like them
will always be with us.

This new provision was enacted to preclude this Court from using the political question
doctrine as a means to avoid having to make decisions simply because they are too
controversial, displeasing to the President or Congress, inordinately unpopular, or which
may be ignored and not enforced.

Significantly, we do not have to look into the factual bases of the ban Marcos policy in
order to ascertain whether or not the respondents acted with grave abuse of discretion.
Nor are we forced to fall back upon judicial notice of the implications of a Marcos return to
his home to buttress a conclusion.

The framers of the Constitution believed that the free use of the political question doctrine
allowed the Court during the Marcos years to fall back on prudence, institutional difficulties,
complexity of issues, momentousness of consequences or a fear that it was extravagantly
extending judicial power in the cases where it refused to examine and strike down an
exercise of authoritarian power. Parenthetically, at least two of the respondents and their
counsel were among the most vigorous critics of Mr. Marcos (the main petitioner) and his
use of the political question doctrine. The Constitution was accordingly amended. We are
now precluded by its mandate from refusing to invalidate a political use of power through a
convenient resort to the question doctrine. We are compelled to decide what would have
been non-justiceable under our decisions interpreting earlier fundamental charters.

In the first place, there has never been a pronouncement by the President that a clear and
present danger to national security and public safety will arise if Mr. Marcos and his family
are allowed to return to the Philippines. It was only after the present petition was filed that
the alleged danger to national security and public safety conveniently surfaced in the
respondents' pleadings. Secondly, President Aquino herself limits the reason for the ban
Marcos policy to-41) national welfare and interest and (2) the continuing need to preserve
the gains achieved in terms of recovery and stability. (See page 7, respondents' Comment
at page 73 of Rollo). Neither ground satisfies the criteria of national security and public
safety. The President has been quoted as stating that the vast majority of Filipinos support
her position. (The Journal, front page, January 24,1989) We cannot validate their stance
simply because it is a popular one. Supreme Court decisions do not have to be popular as

The second paragraph of Section 1, Article VIII of the Constitution provides:

15

long as they follow the Constitution and the law. The President's original position "that it is
not in the interest of the nation that Marcos be allowed to return at this time" has not
changed. (Manila Times, front page, February 7, 1989). On February 11, 1989, the
President is reported to have stated that "considerations of the highest national good
dictate that we preserve the substantial economic and political gains of the past three
years" in justifying her firm refusal to allow the return of Mr. Marcos despite his failing
health. (Daily Globe, front page, February 15, 1989). "Interest of the nation national good,"
and "preserving economic and political gains," cannot be equated with national security or
public order. They are too generic and sweeping to serve as grounds for the denial of a
constitutional right. The Bill of Rights commands that the right to travel may not be
impaired except on the stated grounds of national security, public safety, or public health
and with the added requirement that such impairment must be "as provided by law." The
constitutional command cannot be negated by mere generalizations.
There is an actual rebellion not by Marcos followers but by the New Peoples' Army.
Feeding as it does on injustice, ignorance, poverty, and other aspects at underdevelopment, the Communist rebellion is the clearest and most present danger to national
security and constitutional freedoms. Nobody has suggested that one way to quell it would
be to catch and exile its leaders, Mr. Marcos himself was forced to flee the country
because of "peoples' power." Yet, there is no move to arrest and exile the leaders of
student groups, teachers' organizations, pea ant and labor federations, transport workers,
and government unions whose threatened mass actions would definitely endanger national
security and the stability of government. We fail to see how Mr. Marcos could be a greater
danger.
The fear that Communist rebels, Bangsa Moro secessionists, the Honasan ex-soldiers, the
hard core loyalists, and other dissatisfied elements would suddenly unite to overthrow the
Republic should a dying Marcos come home is too speculative and unsubstantial a ground
for denying a constitutional right. It is not shown how extremists from the right and the left
who loathe each other could find a rallying point in the coming of Mr. Marcos.
The "confluence theory" of the Solicitor General or what the majority calls "catalytic effect,"
which alone sustains the claim of danger to national security is fraught with perilous
implications. Any difficult problem or any troublesome person can be substituted for the
Marcos threat as the catalysing factor. The alleged confluence of NPAS, secessionists,
radical elements, renegade soldiers, etc., would still be present. Challenged by any critic or
any serious problem, the Government can state that the situation threatens a confluence of
rebel forces and proceed to ride roughshod over civil liberties in the name of national
security. Today, a passport is denied. Tomorrow, a newspaper may be closed. Public
assemblies may be prohibited. Human rights may be violated. Yesterday, the right to travel
of Senators Benigno Aquino, Jr. and Jovito Salonga was curtailed. Today, it is the right of
Mr. Marcos and family. Who will be tomorrow's pariahs I deeply regret that the Court's
decision to use the political question doctrine in a situation where it does not apply raises
all kinds of disturbing possibilities.

demandable and enforceable. For his own good, it might be preferable to stay where he is.
But he invokes a constitutional right. We have no power to deny it to him.
The issuance of a passport may be discretionary but it should not be withheld if to do so
would run counter to a constitutional guarantee. Besides, the petitioners are not asking for
passports and nothing else. Any travel documents or any formal lifting of the Marcos ban
as would allow international airlines to sell them tickets would suffice.
With all due respect for the majority opinion, I disagree with its dictum on the right to travel.
I do not think we should differentiate the right to return home from the right to go abroad or
to move around in the Philippines. If at all, the right to come home must be more preferred
than any other aspect of the right to travel. It was precisely the banning by Mr. Marcos of
the right to travel by Senators Benigno Aquino, Jr., Jovito Salonga, and scores of other
"undesirables" and "threats to national security" during that unfortunate period which led
the framers of our present Constitution not only to re-enact but to strengthen the
declaration of this right. Media often asks, "what else is new?" I submit that we now have a
freedom loving and humane regime. I regret that the Court's decision in this case sets back
the gains that our country has achieved in terms of human rights, especially human rights
for those whom we do not like or those who are against us.
The respondent Secretary of Foreign Affairs, Raul S. Manglapus has disclosed a list of
former dictators who were barred by their successors from returning to their respective
countries. There is no showing that the countries involved have constitutions which
guarantee the liberty of abode and the freedom to travel and that despite such
constitutional protections, the courts have validated the "ban a return" policy. Neither is it
shown that the successors of the listed dictators are as deeply committed to democratic
principles and as observant of constitutional protections as President Aquino.
It is indeed regrettable that some followers of the former President are conducting a
campaign to sow discord and to divide the nation. Opposition to the government no matter
how odious or disgusting is, however, insufficient ground to ignore a constitutional
guarantee.
During the protracted deliberations on this case, the question was asked is the
Government helpless to defend itself against a threat to national security? Does the
President have to suspend the privilege of the writ of habeas corpus or proclaim martial
law? Can she not take less drastic measures?
Of course, the Government can act. It can have Mr. Marcos arrested and tried in court. The
Government has more than ample powers under eixisting law to deal with a person who
transgresses the peace and imperils public safety. But the denial of travel papers is not
one of those powers because the Bill of Rights says so. There is no law prescribing exile in
a foreign land as the penalty for hurting the Nation.
Considering all the foregoing, I vote to GRANT the petition.

I must emphasize that General Renato de Villa, the Chief of Staff of the Armed Forces, has
personally assured the Court that a rebellion of the above combined groups will not
succeed and that the military is on top of the situation. Where then is the clear danger to
national security? The Court has taken judicial notice of something which even the military
denies. There would be severe strains on military capabilities according to General de
Villa. There would be set-backs in the expected eradication of the Communist threat. There
would be other serious problems but all can be successfully contained by the military. I
must stress that no reference was made to a clear and present danger to national security
as would allow an overriding of the Bill of Rights.
The Solicitor General's argument that the failure of Congress to enact a statute defining
the parameters of the right to travel and to freely choose one's abode has constrained the
President to fill in the vacuum, is too reminiscent of Amendment No. 6 of the martial law
Constitution to warrant serious consideration. Amendment No. 6 allowed Marcos to issue
decrees whenever the Batasang Pambansa failed or was unable to act adequately on any
matter for any reason that in his judgment required immediate action. When the Bill of
Rights provides that a right may not be impaired except in the interest of national security,
public safety, or public health and further requires that a law must provide when such
specifically defined interests are prejudiced or require protection, the inaction of Congress
does not give reason for the respondents to assume the grounds for its impairment.
The fact that the Marcoses have been indicted before American federal courts does not
obstruct us from ruling against an unconstitutional assertion of power by Philippine
officials. Let the United States apply its laws. We have to be true to our own.
Mr. Marcos may be too ill to withstand the rigors of a transpacific flight. The agony of
traveling while hooked up to machines which have taken over the functions of his heart,
lungs, and kidneys may hasten his death. The physical condition of Mr. Marcos does not
justify our ignoring or refusing to act on his claim to a basic right which is legally

CRUZ, J., dissenting:


It is my belief that the petitioner, as a citizen of the Philippines, is entitled to return to and
live-and die-in his own country. I say this with a heavy heart but say it nonetheless. That
conviction is not diminished one whit simply because many believe Marcos to be beneath
contempt and undeserving of the very liberties he flounted when he was the absolute ruler
of this land.
The right of the United States government to detain him is not the question before us, nor
can we resolve it. The question we must answer is whether or not, assuming that Marcos
is permitted to leave Hawaii (which may depend on the action we take today), the
respondents have acted with grave abuse of discretion in barring him from his own country.
My reluctant conclusion is that they have, absent the proof they said they were prepared to
offer, but could not, that the petitioner's return would prejudice the security of the State.
I was the one who, in the open hearing held on June 27,1989, asked the Solicitor General
if the government was prepared to prove the justification for opposing the herein petition, i.
that it had not acted arbitrarily. He said it was. Accordingly, the Court, appreciating the
classified nature of the information expected, scheduled a closed-door hearing on July
25,1988. The Solicitor General and three representatives from the military appeared for the
respondents, together with former Senator Arturo M. Tolentino, representing the
petitioners.
In about two hours of briefing, the government failed dismally to show that the return of
Marcos dead or alive would pose a threat to the national security as it had alleged. The
fears expressed by its representatives were based on mere conjectures of political and
economic destabilization without any single piece of concrete evidence to back up their
apprehensions.

16

Amazingly, however, the majority has come to the conclusion that there exist "factual
bases for the President's decision" to bar Marcos's return. That is not my recollection of the
impressions of the Court after that hearing.
In holding that the President of the Philippines has residual powers in addition to the
specific powers granted by the Constitution, the Court is taking a great leap backward and
reinstating the discredited doctrine announced in Planas v. Gil (67 Phil. 62). This does not
square with the announced policy of the Constitutional Commission, which was precisely to
limit rather than expand presidential powers, as a reaction to the excesses of the past
dictatorship.
I can only repeat Justice Black's wry observation in the Steel Seizure Case (343 U.S. 579)
that if it was true that the President had been granted the totality of executive power, "it is
difficult to see why our forefathers bothered to add several specific items, including some
trifling ones, . . . I cannot accept the view that this clause is a grant in bulk of all
conceivable executive power but regard it as an allocation to the presidential office of the
generic powers thereafter stated."
I have no illusion that the stand I am taking will be met with paeans of praise, considering
that Marcos is perhaps the most detested man in the entire history of our country. But we
are not concerned here with popularity and personalities. As a judge, I am not swayed by
what Justice Cardozo called the "hooting throng" that may make us see things through the
prisms of prejudice. I bear in mind that when I sit in judgment as a member of this Court, I
must cast all personal feelings aside.
The issue before us must be resolved with total objectivity, on the basis only of the
established facts and the applicable law and not of wounds that still fester and scars that
have not healed. And not even of fear, for fear is a phantom. That phantom did not rise
when the people stood fast at EDSA against the threat of total massacre in defense at last
of their freedom.
I cannot turn back on the lessons of liberty that I taught for more than three decades as a
professor of Constitutional Law. These principles have not changed simply because I am
now on the Court or a new administration is in power and the shoe is on the other foot.
Like the martyred Ninoy Aquino who also wanted to come back to the Philippines against
the prohibitions of the government then, Marcos is entitled to the same right to travel and
the liberty of abode that his adversary invoked. These rights are guaranteed by the
Constitution to all individuals, including the patriot and the homesick and the prodigal son
returning, and tyrants and charlatans and scoundrels of every stripe.
I vote to grant the petition.
PARAS, J., dissenting:
I dissent. Already, some people refer to us as a nation without discipline. Are we ready to
be also called a society without compassion?
The issue as to whether or not former President Ferdinand E. Marcos should be allowed to
return to the Philippines may be resolved by answering two simple questions: Does he
have the right to return to his own country and should national safety and security deny
him this right?
There is no dispute that the former President is still a Filipino citizen and both under the
Universal Declaration of Human Rights and the 1987 Constitution of the Philippines, he
has the right to return to his own country except only if prevented by the demands of
national safety and national security.
Our Armed Forces have failed to prove this danger. They are bereft of hard evidence, and
all they can rely on is sheer speculation. True, there is some danger but there is no
showing as to the extent.
It is incredible that one man alone together with his family, who had been ousted from this
country by popular will, can arouse an entire country to rise in morbid sympathy for the
cause he once espoused.
It is therefore clear to me, all other opinions to the contrary notwithstanding, that the former
President should be allowed to return to our country under the conditions that he and the
members of his family be under house arrest in his hometown in Ilocos Norte, and should
President Marcos or any member of his family die, the body should not be taken out of the
municipality of confinement and should be buried within ten (10) days from date.
If we do this, our country shall have maintained its regard for fundamental human rights,
for national discipline, and for human compassion.

PADILLA, J., dissenting:


I dissent. As I see it, the core issue in this case is, which right will prevail in the conflict
between the right of a Filipino, Ferdinand E. Marcos, to return to the Philippines, and the
right of the Philippine Government to bar such return in the interest of national security and
public safety. In this context, the issue is clearly justiciable involving, as it does, colliding
assertions of individual right and governmental power. Issues of this nature more than
explain why the 1986 Constitutional Commission, led by the illustrious former Chief Justice
Roberto Concepcion, incorporated in the 1987 Constitution, the new provision on the
power of Judicial Review, viz:
Judicial power includes the duty of the courts of justice to settle actual controversies
involving rights which are legally demandable and enforceable, and to determine whether
or not there has been a grave abuse of discretion amounting to lack or excess of
jurisdiction on the part of any branch or instrumentality of the Government. Article VIII,
Section 1, par. 2; (Emphasis supplied)
Mr. Marcos invokes in his favor the specific and precise constitutional right of every Filipino
to travel which, in the language of the Constitution, shall not be impaired "except in the
interest of national security, public safety, or public health, as may be provided by law" (Art.
III, Sec. 6). That the right to travel comprises the right to travel within the country, to travel
out of the country and to return to the country (Philippines), is hardly disputable. Short of all
such components, the right to travel is meaningless. The real question arises in the
interpretation of the qualifications attached by the Constitution to such right to travel.
Petitioners contend that, in the absence of restricting legislation, the right to travel is
absolute. I do not agree. It is my view that, with or without restricting legislation, the interest
of national security, public safety or public health can justify and even require restrictions
on the right to travel, and that the clause "as may be provided by law" contained in Article
III, Section 6 of the 1987 Constitution merely declares a constitutional leave or permission
for Congress to enact laws that may restrict the right to travel in the interest of national
security, public safety or public health. I do not, therefore, accept the petitioners'
submission that, in the absence of enabling legislation, the Philippine Government is
powerless to restrict travel even when such restriction is demanded by national security,
public safety or public health, The power of the State, in particular cases, to restrict travel
of its citizens finds abundant support in the police power of the state wich may be
exercised to preserve and maintain government as well as promote the general welfare of
the greatest number of people.
And yet, the power of the State, acting through a government in authority at any given
time, to restrict travel, even if founded on police power, cannot be absolute and unlimited
under all circumstances, much less, can it be arbitrary and irrational.
Mr. Marcos, I repeat, comes before the Court as a Filipino, invoking a specific
constitutional right, i.e., the right to return to the country. 1 Have the respondents
presented sufficient evidence to offset or override the exercise of this right invoked by Mr.
Marcos? Stated differently, have the respondents shown to the Court sufficient factual
bases and data which would justify their reliance on national security and public safety in
negating the right to return invoked by Mr. Marcos?
I have given these questions a searching examination. I have carefully weighed and
assessed the "briefing" given the Court by the highest military authorities of the land last 28
July 1989. 1 have searched, but in vain, for convincing evidence that would defeat and
overcome the right of Mr. Marcos as a Filipino to return to this country. It appears to me
that the apprehensions entertained and expressed by the respondents, including those
conveyed through the military, do not, with all due respect, escalate to proportions of
national security or public safety. They appear to be more speculative than real, obsessive
rather than factual. Moreover, such apprehensions even if translated into realities, would
be "under control," as admitted to the Court by said military authorities, given the resources
and facilities at the command of government. But, above all, the Filipino people
themselves, in my opinion, will know how to handle any situation brought about by a
political recognition of Mr. Marcos' right to return, and his actual return, to this country. The
Court, in short, should not accept respondents' general apprehensions, concerns and
perceptions at face value, in the light of a countervailing and even irresistible, specific,
clear, demandable, and enforceable right asserted by a Filipino.
Deteriorating political, social, economic or exceptional conditions, if any, are not to be used
as a pretext to justify derogation of human rights. 2
As a member of the United Nations, the Philippines has obligations under its charter. By
adopting the generally accepted principles of international law as part of the law of the
land, (Art. II, Sec. 2 of the Constitution), the Philippine government cannot just pay lip
service to Art. 13, par. 2 of the Universal Declaration of Human Rights which provides that
everyone has the right to leave any country, including his own, and to return to his country.

17

This guarantee is reiterated in Art. XII, par. 2 of the International Covenant on Civil and
Political Rights which states that "no one shall be arbitrarily deprived of the right to enter
his own country." (Emphasis supplied) "Arbitrary" or "arbitrarily" was specifically chosen by
the drafters of the Covenant 3 hoping to protect an individual against unexpected,
irresponsible or excessive encroachment on his rights by the state based on national
traditions or a particular sense of justice which falls short of international law or standards.
4
The Solicitor General maintains that because the respondents, as alter egos of the
President, have raised the argument of "national security" and "public safety," it is the duty
of this Court to unquestioningly yield thereto, thus casting the controversy to the realm of a
political question. I do not agree. I believe that it is one case where the human and
constitutional light invoked by one party is so specific, substantial and clear that it cannot
be overshadowed, much less, nullified by simplistic generalities; worse, the Court neglects
its duty under the Constitution when it allows the theory of political question to serve as a
convenient, and yet, lame excuse for evading what, to me, is its clearly pressing and
demandable duty to the Constitution.
During the oral arguments in this case, I asked the Solicitor General how one could validly
defend the right of former Senator Benigno S. Aquino, Jr., a Filipino, to return to the
Philippines in 1983 and, at the same time, credibly deny the right of Mr. Marcos, also a
Filipino, to return to the Philippines in 1989. I still have not found a satisfactory answer to
that question. Instead, it has become clearer by the day that the drama today is the same
drama in 1983 with the only difference that the actors are in opposite roles, which really
makes one hope, in the national interest, that the mistake in 1983 should not be made to
persist in 1989.
To one who owes Mr. Marcos, his wife and followers absolutely nothing, personal, political
or otherwise, the following are the cogent and decisive propositions in this case1.
Mr. Marcos is a Filipino and, as such, entitled to return to die and be buried in
this country;
2.
respondents have not shown any "hard evidence" or con- vincing proof why
his right as a Filipino to return should be denied him. All we have are general conclusions
of "national security" and "public safety" in avoidance of a specific demandable and
enforceable constitutional and basic human right to return;
3.
the issue of Marcos' return to the Philippines, perhaps more than any issue
today, requires of all members of the Court, in what appears to be an extended political
contest, the "cold neutrality of an impartial judge." It is only thus that we fortify the
independence of this Court, with fidelity, not to any person, party or group but to the
Constitution and only to the Constitution.

travel be impaired except in the interest of national security, public safety, or public health,
as may be provided by law. 4
The majority says, with ample help from American precedents, that the President is
possessed of the power, thus:
On these premises, we hold the view that although the 1987 Constitution imposes
limitations on the exercise of specific powers of the President, it maintains intact what is
traditionally considered as within the scope of "executive power." Corollarily, the powers of
the President cannot be said to be limited only to the specific powers enumerated in the
Constitution. In other words, executive power is more than the sum of specific powers so
enumerated. 5
So also:
Faced with the problem of whether or not the time is right to allow the Marcoses to return
to the Philippines, the President is, under the Constitution, constrained to consider these
basic principles in arriving at a decision. More than that, having sworn to defend and
uphold the Constitution, the President has the obligation under the Constitution to protect
the people, promote their welfare and advance the national interest. It must be borne in
mind that the Constitution, aside from being an allocation of power is also a social contract
whereby the people have surrendered their sovereign powers to the State for the common
good. Hence, lest the officers of the Government exercising the powers delegated by the
people forget and the servants of the people become rulers, the Constitution reminds
everyone that "sovereignty resides in the people and all government authority emanates
from them." [Art. II, Sec. 1 . ] 6
And finally:
To the President, the problem is one of balancing the general welfare and the common
good against the exercise of rights of certain individuals. The power involved is the
President's residual power to protect the general welfare of the people. It is founded on the
duty of the President, as steward of the people. To paraphrase Theodore Roosevelt, it is
not only the power of the President but also his duty to do anything not forbidden by the
Constitution or the laws that the needs of the nation demanded [See Corwin, supra, at
153]. It is a power borne by the President's duty to preserve and defend the Constitution. It
also may be viewed as a power implicit in the President's duty to take care that the laws
are faithfully executed [See Hyman, The American President, where the author advances
the view that an allowance of discretionary power is unavoidable in any government and is
best lodged in the President]. 7
I am not persuaded.
I

ACCORDINGLY, I vote to GRANT the petition.


SARMIENTO, J., dissenting:
I vote to grant the petition.
The only issue that saddles the Court is simply: "whether or not, in the exercise of the
powers granted by the Constitution, the President may prohibit the Marcoses from
returning to the Philippines." 1 I therefore take exception to allusions 2 anent "the capacity
of the Marcoses to stir trouble even from afar." 3 I have legitimate reason to fear that my
brethren, in passing judgment on the Marcoses (insofar as their "capacity to stir trouble" is
concerned), have overstepped the bounds of judicial restraint, or even worse, convicted
them without trial.
I also find quite strained what the majority would have as the "real issues" facing the Court:
"The right to return to one's country," pitted against "the right of travel and freedom of
abode", and their supposed distinctions under international law, as if such distinctions,
under international law in truth and in fact exist. There is only one right involved here,
whether under municipal or international law: the light of travel, whether within one's own
country, or to another, and the right to return thereto. The Constitution itself makes no
distinctions; let then, no one make a distinction. Ubi lex non distinguish nec nos distinguere
debemus.
As the majority would indeed have it, the issue is one of power: Does the Executive have
the power to deny a citizen his right to travel (back to the country or to another)? It is a
question that, in essence, involves the application, and no more, of the provisions of the
1987 Constitution:

First: While the Chief Executive exercises powers not found expressly in the Charter, but
has them by constitutional implication* the latter must yield to the paramountcy of the Bill of
Rights. According to Fernando: "A regime of constitutionalism is thus unthinkable without
an assurance of the primacy of a big of rights. Precisely a constitution exists to assure that
in the discharge of the governmental functions, the dignity that is the birthright of every
human being is duly safeguarded. To be true to its primordial aim a constitution must lay
down the boundaries beyond which he's forbidden territory for state action" 8
My brethren have not demonstrated, to my satisfaction, how the President may override
the direct mandate of the fundamental law. It will not suffice, so I submit, to say that the
President's plenitude of powers, as provided in the Constitution, or by sheer constitutional
implication, prevail over express constitutional commands. "Clearly," so I borrow J.B.L.
Reyes, in Ms own right, a titan in the field of public law, "this argument ... rests ... not upon
the text of the (Constitution] ... but upon a mere inference therefrom." 9 For if it were,
indeed, the intent of the Charter to create an exception, that is, by Presidential action, to
the right of travel or liberty of abode and of changing the same other than what it explicitly
says already ("limits prescribed by law" 10 or "upon lawful order of the court" 11 the
Charter could have specifically declared so. As it is, the lone deterrents to the right in
question are: (1) decree of statute, or (2) lawful judicial mandate. Had the Constitution
intended a third exception, that is, by Presidential initiative, it could have so averred. It
would also have made the Constitution, as far as limits to the said right are concerned,
come full circle: Limits by legislative, judicial, and executive processes.
Obviously, none of the twin legal bars exist. There is no law banning the Marcoses from
the country; neither is there any court decree banishing him from Philippine territory.
It is to be noted that under the 1973 Constitution, the right to travel is worded as follows:

Sec. 6.
The liberty of abode and of changing the same within the limits prescribed by
law shall not be impaired except upon lawful order of the court. Neither shall the right to

18

Sec. 5.
The liberty of abode and of travel shall not be impaired except upon lawful
order of the court, or when necessary in the interest of national security, public safety, or
public health. 12
Under this provision, the right may be abated: (1) upon a lawful court order, or (2) "when
necessary in the interest of national security, public safety, or public health. 13 Arguably,
the provision enabled the Chief Executive (Marcos) to moderate movement of citizens,
which, Bernas says, justified such practices as "hamletting", forced relocations, or the
establishment of free-fire zones. 14
The new Constitution, however, so it clearly appears, has divested the Executive's implied
power. And, as it so appears, the right may be impaired only "within the limits provided by
law . 15 The President is out of the picture.
Admittedly, the Chief Executive is the "sole" judge of all matters affecting national security
16 and foreign affairs; 17 the Bill of Rights precisely, a form of check against excesses of
officialdom is, in this case, a formidable barrier against Presidential action. (Even on
matters of State security, this Constitution prescribes limits to Executive's powers as
Commander-in-Chief.)
Second: Assuming, ex hypothesis that the President may legally act, the question that
emerges is: Has it been proved that Marcos, or his return, will, in fact, interpose a threat to
the national security , public safety, or public health?" What appears in the records are
vehement insistences that Marcos does pose a threat to the national good and yet, at the
same time, we have persistent claims, made by the military top brass during the lengthy
closed-door hearing on July 25, 1989, that "this Government will not fall" should the former
first family in exile step on Philippine soil. which is which?
At any rate, it is my opinion that we can not leave that determination solely to the Chief
Executive. The Court itself must be content that the threat is not only clear, but more so,
present. 18
That the President "has the obligation under the Constitution to protect the people ... " 19 is
an obligation open to no doubt. But the question, and so I ask again and again, is: From
whom? If we say "from Marcos," we unravel chinks in our political armor. It also flies in the
face of claims, so confidently asserted, that "this Government will not fall" even if we
allowed Marcos to return.
It flies, finally, in the face of the fact that a good number of the henchmen trusted allies,
implementors of martial law, and pathetic parasites of the ex-first couple are, in fact, in the
Government, in the comfort of its offices, and or at the helm of its key agencies. Let us not,
therefore, joke ourselves of moral factors warranting the continued banishment of Marcos.
Morality is the last refuge of the self-righteous.
Third: The problem is not of balancing the general welfare against the exercise of
individual liberties. 20 As I indicated, not one shred of evidence, let alone solid evidence,
other than surmises of possibilities, has been shown to justify the 'balancing act" referred
to. Worse, these conjectures contradict contentions that as far as Philippine society is
concerned, Marcos is "history".
The power of the President, so my brethren declaim, "calls for the exercise of the
President's power as protector of peace. 21
This is the self-same falsehood Marcos foisted on the Filipino people to justify the
authoritarian rule. It also means that we are no better than he has.

beyond cure. He died, on November 11, 1977, a martyr on the altar of the martial law
apparatus.
The undersigned also counts himself as one of the victims of Marcos' ruthless
apparatchiki. On August 14, 1979, he was, along with former President Diosdado
Macapagal, and Congressmen Rogaciano Mercado and Manuel Concordia, charged,
"ASSOed"and placed under house arrest, for "inciting to sedition" and "rumor mongering "
24 in the midst of the distribution of Ang Demokrasya Sa Pilipinas (Democracy In the
Philippines), a book extremely critical of martial rule, published by him and former
Congressman Concordia, authored by President Macapagal and translated into Tagalog by
Congressman Rogaciano Mercado. In addition, they were also all accused of libel in more
than two dozens of criminal complaints filed by the several military officers named in the
"condemned" book as having violated the human rights of dissenters, and for other crimes,
in the office of the Provincial Fiscal of Rizal. It had to take the events at "EDSA" to set
them free from house arrest and these political offenses. I am for Marcos' return not
because I have a score to settle with him. Ditto's death or my arrest are scores that can not
be settled.
I feel the ex-President's death abroad (presented in the dailies as 'imminent") would leave
him 'unpunished for Ms crimes to country and countrymen. If punishment is due, let this
leadership inflict it. But let him stand trial and accord him due process.
Modesty aside, I have staunchly and consistently advocated the human right of travel and
movement and the liberty of abode. 25 We would have betrayed our own Ideals if we
denied Marcos his rights. It is his constitutional right, a right that can not be abridged by
personal hatred, fear, founded or unfounded, and by speculations of the "man's "capacity"
"to stir trouble" Now that the shoe is on the other foot, let no more of human rights
violations be repeated against any one, friend or foe. In a democratic framwork, there is no
this as getting even.
The majority started this inquiry on the question of power. I hold that the President, under
the present Constitution and existing laws, does not have it. Mandamus, I submit, lies.
Narvasa, Melencio-Herrera, Gancayco, Grio- Aquino, Medialdea and Regalado, JJ.,
concur.
Feliciano, J., is on leave.
Footnotes
** The Philippine presidency under the 1935 Constitution was patterned in large measure
after the American presidency. But at the outset, it must be pointed out that the Philippine
government established under the constitutions of 1935, 1973 and 1987 is a unitary
government with general powers unlike that of the United States which is a federal
government with limited and enumerated powers. Even so, the powers of the president of
the United States have through the years grown, developed and taken shape as students
of that presidency have demonstrated.
FERNAN, C. J.:
1
From the speech "Restrictions on Human Rights-States of Emergency,
National Security, Public Safety and Public Order" delivered at the Lawasia Seminar on
Human Rights, Today and Tomorrow: The Role of Human Rights Commissions and Other
Organs, at the Manila Hotel on August 27, 1988.
CRUZ, J.

That "[t]he power of the President to keep the peace is not limited merely to exercising the
commander-in-chief powers in times of emergency or to leading the State against external
and internal threats to its existence" 22 is a bigger fantasy: It not only summons the martial
law decisions of pre-"EDSA" (especially with respect to the detestable Amendment No. 6),
it is inconsistent with the express provisions of the commander-in-chief clause of the 1987
Charter, a Charter that has perceptibly reduced the Executive's powers vis-a-vis its 1973
counterpart. 23
II.
The undersigned would be lacking in candor to conceal his dislike, to say the least, for
Marcos. Because of Marcos, the writer of it's dissent lost a son His son's only "offense"
was that he openly and unabatedly criticized the dictator, his associates, and his military
machinery. He would pay dearly for it; he was arrested and detained, without judicial
warrant or decision, for seven months and seven days. He was held incommunicado a
greater part of the time, in the military stockade of Camp Crame. In his last week in
detention, he was, grudgingly, hospitalized (prison hospital) and confined for chronic
asthma. The deplorable conditions of his imprisonment exacerbated his delicate health

1
In addition, he invokes the right as a basic human right recognized by the
Universal Declaration ration of Human Rights. ni
2 S.P. Marks, Principles and Norms of Human Rights Applicable in Emergency Situations:
Under development, Catastrophies and Armed Conflicts, The International Dimensions of
Human Rights, Vol. 1 Unesco, 1982, pp. 175-204.
3 P. Hassan, The Word "Arbitrary" as used in the Universal Declaration of Human Rights:
"Illegal or Unjust", 10 Harv Int. L.J., p. 225 (1969). 4 FC Newman and IC Vasak Civil and
Political Rights, The International Dimensions of Human Rights, pp. 135-166.
4
F.C. Newman and K.Vasak and Poitical Rights, The International Dimensions
of Human Rights, pp. 135-166.5as to whether the U.S. Federal Government will allow Mr.
Marcos to leave the United States, is beyond the issues in this case; similarly, as to how
the Philippine government should deal with Mr. Marcos upon his return is also outside of
the issues in this case.

19

5 As to whether the U.S. Federal Government will allow Mr. Marcos to leave the United
States, is beyond the issues in this case; similarly, as to how the Philippine Government
should deal with Mr. Marcos upon his return is also outside of the issues in this case.
GOVERNMENT OF HONG KONG SPECIAL ADMINISTRATIVE REGION, represented by
the Philippine Department of Justice, Petitioner, vs.HON. FELIXBERTO T. OLALIA, JR.
and JUAN ANTONIO MUOZ, Respondents.
For our resolution is the instant Petition for Certiorari under Rule 65 of the 1997 Rules of
Civil Procedure, as amended, seeking to nullify the two Orders of the Regional Trial Court
(RTC), Branch 8, Manila (presided by respondent Judge Felixberto T. Olalia, Jr.) issued in
Civil Case No. 99-95773. These are: (1) the Order dated December 20, 2001 allowing
Juan Antonio Muoz, private respondent, to post bail; and (2) the Order dated April 10,
2002 denying the motion to vacate the said Order of December 20, 2001 filed by the
Government of Hong Kong Special Administrative Region, represented by the Philippine
Department of Justice (DOJ), petitioner. The petition alleges that both Orders were issued
by respondent judge with grave abuse of discretion amounting to lack or excess of
jurisdiction as there is no provision in the Constitution granting bail to a potential extraditee.
The facts are:
On January 30, 1995, the Republic of the Philippines and the then British Crown Colony of
Hong Kong signed an "Agreement for the Surrender of Accused and Convicted Persons." It
took effect on June 20, 1997.
On July 1, 1997, Hong Kong reverted back to the Peoples Republic of China and became
the Hong Kong Special Administrative Region.
Private respondent Muoz was charged before the Hong Kong Court with three (3) counts
of the offense of "accepting an advantage as agent," in violation of Section 9 (1) (a) of the
Prevention of Bribery Ordinance, Cap. 201 of Hong Kong. He also faces seven (7) counts
of the offense of conspiracy to defraud, penalized by the common law of Hong Kong. On
August 23, 1997 and October 25, 1999, warrants of arrest were issued against him. If
convicted, he faces a jail term of seven (7) to fourteen (14) years for each charge.
On September 13, 1999, the DOJ received from the Hong Kong Department of Justice a
request for the provisional arrest of private respondent. The DOJ then forwarded the
request to the National Bureau of Investigation (NBI) which, in turn, filed with the RTC of
Manila, Branch 19 an application for the provisional arrest of private respondent.
On September 23, 1999, the RTC, Branch 19, Manila issued an Order of Arrest against
private respondent. That same day, the NBI agents arrested and detained him.
On October 14, 1999, private respondent filed with the Court of Appeals a petition for
certiorari, prohibition and mandamus with application for preliminary mandatory injunction
and/or writ of habeas corpus questioning the validity of the Order of Arrest.
On November 9, 1999, the Court of Appeals rendered its Decision declaring the Order of
Arrest void.
On November 12, 1999, the DOJ filed with this Court a petition for review on certiorari,
docketed as G.R. No. 140520, praying that the Decision of the Court of Appeals be
reversed.
On December 18, 2000, this Court rendered a Decision granting the petition of the DOJ
and sustaining the validity of the Order of Arrest against private respondent. The Decision
became final and executory on April 10, 2001.
Meanwhile, as early as November 22, 1999, petitioner Hong Kong Special Administrative
Region filed with the RTC of Manila a petition for the extradition of private respondent,
docketed as Civil Case No. 99-95733, raffled off to Branch 10, presided by Judge Ricardo
Bernardo, Jr. For his part, private respondent filed, in the same case,- a petition for bail
which was opposed by petitioner.
After hearing, or on October 8, 2001, Judge Bernardo, Jr. issued an Order denying the
petition for bail, holding that there is no Philippine law granting bail in extradition cases and
that private respondent is a high "flight risk."
On October 22, 2001, Judge Bernardo, Jr. inhibited himself from further hearing Civil Case
No. 99-95733. It was then raffled off to Branch 8 presided by respondent judge.
On October 30, 2001, private respondent filed a motion for reconsideration of the Order
denying his application for bail. This was granted by respondent judge in an Order dated
December 20, 2001 allowing private respondent to post bail, thus:

In conclusion, this Court will not contribute to accuseds further erosion of civil liberties.
The petition for bail is granted subject to the following conditions:
1. Bail is set at Php750,000.00 in cash with the condition that accused hereby undertakes
that he will appear and answer the issues raised in these proceedings and will at all times
hold himself amenable to orders and processes of this Court, will further appear for
judgment. If accused fails in this undertaking, the cash bond will be forfeited in favor of the
government;
2. Accused must surrender his valid passport to this Court;
3. The Department of Justice is given immediate notice and discretion of filing its own
motion for hold departure order before this Court even in extradition proceeding; and
4. Accused is required to report to the government prosecutors handling this case or if they
so desire to the nearest office, at any time and day of the week; and if they further desire,
manifest before this Court to require that all the assets of accused, real and personal, be
filed with this Court soonest, with the condition that if the accused flees from his
undertaking, said assets be forfeited in favor of the government and that the corresponding
lien/annotation be noted therein accordingly.
SO ORDERED.
On December 21, 2001, petitioner filed an urgent motion to vacate the above Order, but it
was denied by respondent judge in his Order dated April 10, 2002.
Hence, the instant petition. Petitioner alleged that the trial court committed grave abuse of
discretion amounting to lack or excess of jurisdiction in admitting private respondent to bail;
that there is nothing in the Constitution or statutory law providing that a potential extraditee
has a right to bail, the right being limited solely to criminal proceedings.
In his comment on the petition, private respondent maintained that the right to bail
guaranteed under the Bill of Rights extends to a prospective extraditee; and that extradition
is a harsh process resulting in a prolonged deprivation of ones liberty.
Section 13, Article III of the Constitution provides that the right to bail shall not be impaired,
thus:
Sec. 13. All persons, except those charged with offenses punishable by reclusion perpetua
when evidence of guilt is strong, shall, before conviction, be bailable by sufficient sureties,
or be released on recognizance as may be provided by law. The right to bail shall not be
impaired even when the privilege of the writ of habeas corpus is suspended. Excessive bail
shall not be required.
Jurisprudence on extradition is but in its infancy in this jurisdiction. Nonetheless, this is not
the first time that this Court has an occasion to resolve the question of whether a
prospective extraditee may be granted bail.
In Government of United States of America v. Hon. Guillermo G. Purganan, Presiding
Judge, RTC of Manila, Branch 42, and Mark B. Jimenez, a.k.a. Mario Batacan Crespo,1
this Court, speaking through then Associate Justice Artemio V. Panganiban, later Chief
Justice, held that the constitutional provision on bail does not apply to extradition
proceedings. It is "available only in criminal proceedings," thus:
x x x. As suggested by the use of the word "conviction," the constitutional provision on bail
quoted above, as well as Section 4, Rule 114 of the Rules of Court, applies only when a
person has been arrested and detained for violation of Philippine criminal laws. It does not
apply to extradition proceedings because extradition courts do not render judgments of
conviction or acquittal.
Moreover, the constitutional right to bail "flows from the presumption of innocence in favor
of every accused who should not be subjected to the loss of freedom as thereafter he
would be entitled to acquittal, unless his guilt be proved beyond reasonable doubt" (De la
Camara v. Enage, 41 SCRA 1, 6, September 17, 1971, per Fernando, J., later CJ). It
follows that the constitutional provision on bail will not apply to a case like extradition,
where the presumption of innocence is not at issue.
The provision in the Constitution stating that the "right to bail shall not be impaired even
when the privilege of the writ of habeas corpus is suspended" does not detract from the
rule that the constitutional right to bail is available only in criminal proceedings. It must be
noted that the suspension of the privilege of the writ of habeas corpus finds application
"only to persons judicially charged for rebellion or offenses inherent in or directly connected
with invasion" (Sec. 18, Art. VIII, Constitution). Hence, the second sentence in the
constitutional provision on bail merely emphasizes the right to bail in criminal proceedings

20

for the aforementioned offenses. It cannot be taken to mean that the right is available even
in extradition proceedings that are not criminal in nature.

Court in Mejoff relied upon the Universal declaration of Human Rights in sustaining the
detainees right to bail.

At first glance, the above ruling applies squarely to private respondents case. However,
this Court cannot ignore the following trends in international law: (1) the growing
importance of the individual person in public international law who, in the 20th century, has
gradually attained global recognition; (2) the higher value now being given to human rights
in the international sphere; (3) the corresponding duty of countries to observe these
universal human rights in fulfilling their treaty obligations; and (4) the duty of this Court to
balance the rights of the individual under our fundamental law, on one hand, and the law
on extradition, on the other.

If bail can be granted in deportation cases, we see no justification why it should not also be
allowed in extradition cases. Likewise, considering that the Universal Declaration of
Human Rights applies to deportation cases, there is no reason why it cannot be invoked in
extradition cases. After all, both are administrative proceedings where the innocence or
guilt of the person detained is not in issue.

The modern trend in public international law is the primacy placed on the worth of the
individual person and the sanctity of human rights. Slowly, the recognition that the
individual person may properly be a subject of international law is now taking root. The
vulnerable doctrine that the subjects of international law are limited only to states was
dramatically eroded towards the second half of the past century. For one, the Nuremberg
and Tokyo trials after World War II resulted in the unprecedented spectacle of individual
defendants for acts characterized as violations of the laws of war, crimes against peace,
and crimes against humanity. Recently, under the Nuremberg principle, Serbian leaders
have been persecuted for war crimes and crimes against humanity committed in the former
Yugoslavia. These significant events show that the individual person is now a valid subject
of international law.
On a more positive note, also after World War II, both international organizations and
states gave recognition and importance to human rights. Thus, on December 10, 1948, the
United Nations General Assembly adopted the Universal Declaration of Human Rights in
which the right to life, liberty and all the other fundamental rights of every person were
proclaimed. While not a treaty, the principles contained in the said Declaration are now
recognized as customarily binding upon the members of the international community.
Thus, in Mejoff v. Director of Prisons,2 this Court, in granting bail to a prospective
deportee, held that under the Constitution,3 the principles set forth in that Declaration are
part of the law of the land. In 1966, the UN General Assembly also adopted the
International Covenant on Civil and Political Rights which the Philippines signed and
ratified. Fundamental among the rights enshrined therein are the rights of every person to
life, liberty, and due process.
The Philippines, along with the other members of the family of nations, committed to
uphold the fundamental human rights as well as value the worth and dignity of every
person. This commitment is enshrined in Section II, Article II of our Constitution which
provides: "The State values the dignity of every human person and guarantees full respect
for human rights." The Philippines, therefore, has the responsibility of protecting and
promoting the right of every person to liberty and due process, ensuring that those
detained or arrested can participate in the proceedings before a court, to enable it to
decide without delay on the legality of the detention and order their release if justified. In
other words, the Philippine authorities are under obligation to make available to every
person under detention such remedies which safeguard their fundamental right to liberty.
These remedies include the right to be admitted to bail. While this Court in Purganan
limited the exercise of the right to bail to criminal proceedings, however, in light of the
various international treaties giving recognition and protection to human rights, particularly
the right to life and liberty, a reexamination of this Courts ruling in Purganan is in order.
First, we note that the exercise of the States power to deprive an individual of his liberty is
not necessarily limited to criminal proceedings. Respondents in administrative
proceedings, such as deportation and quarantine,4 have likewise been detained.
Second, to limit bail to criminal proceedings would be to close our eyes to our
jurisprudential history. Philippine jurisprudence has not limited the exercise of the right to
bail to criminal proceedings only. This Court has admitted to bail persons who are not
involved in criminal proceedings. In fact, bail has been allowed in this jurisdiction to
persons in detention during the pendency of administrative proceedings, taking into
cognizance the obligation of the Philippines under international conventions to uphold
human rights.
The 1909 case of US v. Go-Sioco5 is illustrative. In this case, a Chinese facing deportation
for failure to secure the necessary certificate of registration was granted bail pending his
appeal. After noting that the prospective deportee had committed no crime, the Court
opined that "To refuse him bail is to treat him as a person who has committed the most
serious crime known to law;" and that while deportation is not a criminal proceeding, some
of the machinery used "is the machinery of criminal law." Thus, the provisions relating to
bail was applied to deportation proceedings.
In Mejoff v. Director of Prisons6 and Chirskoff v. Commission of Immigration,7 this Court
ruled that foreign nationals against whom no formal criminal charges have been filed may
be released on bail pending the finality of an order of deportation. As previously stated, the

Clearly, the right of a prospective extraditee to apply for bail in this jurisdiction must be
viewed in the light of the various treaty obligations of the Philippines concerning respect for
the promotion and protection of human rights. Under these treaties, the presumption lies in
favor of human liberty. Thus, the Philippines should see to it that the right to liberty of every
individual is not impaired.
Section 2(a) of Presidential Decree (P.D.) No. 1069 (The Philippine Extradition Law)
defines "extradition" as "the removal of an accused from the Philippines with the object of
placing him at the disposal of foreign authorities to enable the requesting state or
government to hold him in connection with any criminal investigation directed against him
or the execution of a penalty imposed on him under the penal or criminal law of the
requesting state or government."
Extradition has thus been characterized as the right of a foreign power, created by treaty,
to demand the surrender of one accused or convicted of a crime within its territorial
jurisdiction, and the correlative duty of the other state to surrender him to the demanding
state.8 It is not a criminal proceeding.9 Even if the potential extraditee is a criminal, an
extradition proceeding is not by its nature criminal, for it is not punishment for a crime,
even though such punishment may follow extradition.10 It is sui generis, tracing its
existence wholly to treaty obligations between different nations.11 It is not a trial to
determine the guilt or innocence of the potential extraditee.12 Nor is it a full-blown civil
action, but one that is merely administrative in character.13 Its object is to prevent the
escape of a person accused or convicted of a crime and to secure his return to the state
from which he fled, for the purpose of trial or punishment.14
But while extradition is not a criminal proceeding, it is characterized by the following: (a) it
entails a deprivation of liberty on the part of the potential extraditee and (b) the means
employed to attain the purpose of extradition is also "the machinery of criminal law." This is
shown by Section 6 of P.D. No. 1069 (The Philippine Extradition Law) which mandates the
"immediate arrest and temporary detention of the accused" if such "will best serve the
interest of justice." We further note that Section 20 allows the requesting state "in case of
urgency" to ask for the "provisional arrest of the accused, pending receipt of the request for
extradition;" and that release from provisional arrest "shall not prejudice re-arrest and
extradition of the accused if a request for extradition is received subsequently."
Obviously, an extradition proceeding, while ostensibly administrative, bears all earmarks of
a criminal process. A potential extraditee may be subjected to arrest, to a prolonged
restraint of liberty, and forced to transfer to the demanding state following the proceedings.
"Temporary detention" may be a necessary step in the process of extradition, but the
length of time of the detention should be reasonable.
Records show that private respondent was arrested on September 23, 1999, and remained
incarcerated until December 20, 2001, when the trial court ordered his admission to bail. In
other words, he had been detained for over two (2) years without having been convicted of
any crime. By any standard, such an extended period of detention is a serious deprivation
of his fundamental right to liberty. In fact, it was this prolonged deprivation of liberty which
prompted the extradition court to grant him bail.
While our extradition law does not provide for the grant of bail to an extraditee, however,
there is no provision prohibiting him or her from filing a motion for bail, a right to due
process under the Constitution.
The applicable standard of due process, however, should not be the same as that in
criminal proceedings. In the latter, the standard of due process is premised on the
presumption of innocence of the accused. As Purganan correctly points out, it is from this
major premise that the ancillary presumption in favor of admitting to bail arises. Bearing in
mind the purpose of extradition proceedings, the premise behind the issuance of the arrest
warrant and the "temporary detention" is the possibility of flight of the potential extraditee.
This is based on the assumption that such extraditee is a fugitive from justice.15 Given the
foregoing, the prospective extraditee thus bears the onus probandi of showing that he or
she is not a flight risk and should be granted bail.
The time-honored principle of pacta sunt servanda demands that the Philippines honor its
obligations under the Extradition Treaty it entered into with the Hong Kong Special
Administrative Region. Failure to comply with these obligations is a setback in our foreign
relations and defeats the purpose of extradition. However, it does not necessarily mean

21

that in keeping with its treaty obligations, the Philippines should diminish a potential
extraditees rights to life, liberty, and due process. More so, where these rights are
guaranteed, not only by our Constitution, but also by international conventions, to which
the Philippines is a party. We should not, therefore, deprive an extraditee of his right to
apply for bail, provided that a certain standard for the grant is satisfactorily met.
An extradition proceeding being sui generis, the standard of proof required in granting or
denying bail can neither be the proof beyond reasonable doubt in criminal cases nor the
standard of proof of preponderance of evidence in civil cases. While administrative in
character, the standard of substantial evidence used in administrative cases cannot
likewise apply given the object of extradition law which is to prevent the prospective
extraditee from fleeing our jurisdiction. In his Separate Opinion in Purganan, then
Associate Justice, now Chief Justice Reynato S. Puno, proposed that a new standard
which he termed "clear and convincing evidence" should be used in granting bail in
extradition cases. According to him, this standard should be lower than proof beyond
reasonable doubt but higher than preponderance of evidence. The potential extraditee
must prove by "clear and convincing evidence" that he is not a flight risk and will abide with
all the orders and processes of the extradition court.
In this case, there is no showing that private respondent presented evidence to show that
he is not a flight risk. Consequently, this case should be remanded to the trial court to
determine whether private respondent may be granted bail on the basis of "clear and
convincing evidence."
WHEREFORE, we DISMISS the petition. This case is REMANDED to the trial court to
determine whether private respondent is entitled to bail on the basis of "clear and
convincing evidence." If not, the trial court should order the cancellation of his bail bond
and his immediate detention; and thereafter, conduct the extradition proceedings with
dispatch.

NTERNATIONAL SCHOOL ALLIANCE OF EDUCATORS (ISAE), petitioner, vs.HON.


LEONARDO A. QUISUMBING in his capacity as the Secretary of Labor and Employment;
HON. CRESENCIANO B. TRAJANO in his capacity as the Acting Secretary of Labor and
Employment; DR. BRIAN MACCAULEY in his capacity as the Superintendent of
International School-Manila; and INTERNATIONAL SCHOOL, INC., respondents.
Receiving salaries less than their counterparts hired abroad, the local-hires of private
respondent School, mostly Filipinos, cry discrimination. We agree. That the local-hires are
paid more than their colleagues in other schools is, of course, beside the point. The point is
that employees should be given equal pay for work of equal value. That is a principle long
honored in this jurisdiction. That is a principle that rests on fundamental notions of justice.
That is the principle we uphold today.1wphi1.nt

hires have to endure, namely: (a) the "dislocation factor" and (b) limited tenure. The School
explains:
A foreign-hire would necessarily have to uproot himself from his home country, leave his
family and friends, and take the risk of deviating from a promising career path all for the
purpose of pursuing his profession as an educator, but this time in a foreign land. The new
foreign hire is faced with economic realities: decent abode for oneself and/or for one's
family, effective means of transportation, allowance for the education of one's children,
adequate insurance against illness and death, and of course the primary benefit of a basic
salary/retirement compensation.
Because of a limited tenure, the foreign hire is confronted again with the same economic
reality after his term: that he will eventually and inevitably return to his home country where
he will have to confront the uncertainty of obtaining suitable employment after along period
in a foreign land.
The compensation scheme is simply the School's adaptive measure to remain competitive
on an international level in terms of attracting competent professionals in the field of
international education.3
When negotiations for a new collective bargaining agreement were held on June 1995,
petitioner International School Alliance of Educators, "a legitimate labor union and the
collective bargaining representative of all faculty members"4 of the School, contested the
difference in salary rates between foreign and local-hires. This issue, as well as the
question of whether foreign-hires should be included in the appropriate bargaining unit,
eventually caused a deadlock between the parties.
On September 7, 1995, petitioner filed a notice of strike. The failure of the National
Conciliation and Mediation Board to bring the parties to a compromise prompted the
Department of Labor and Employment (DOLE) to assume jurisdiction over the dispute. On
June 10, 1996, the DOLE Acting Secretary, Crescenciano B. Trajano, issued an Order
resolving the parity and representation issues in favor of the School. Then DOLE Secretary
Leonardo A. Quisumbing subsequently denied petitioner's motion for reconsideration in an
Order dated March 19, 1997. Petitioner now seeks relief in this Court.
Petitioner claims that the point-of-hire classification employed by the School is
discriminatory to Filipinos and that the grant of higher salaries to foreign-hires constitutes
racial discrimination.
The School disputes these claims and gives a breakdown of its faculty members,
numbering 38 in all, with nationalities other than Filipino, who have been hired locally and
classified as local hires.5 The Acting Secretary of Labor found that these non-Filipino localhires received the same benefits as the Filipino local-hires.

Private respondent International School, Inc. (the School, for short), pursuant to
Presidential Decree 732, is a domestic educational institution established primarily for
dependents of foreign diplomatic personnel and other temporary residents.1 To enable the
School to continue carrying out its educational program and improve its standard of
instruction, Section 2(c) of the same decree authorizes the School to employ its own
teaching and management personnel selected by it either locally or abroad, from Philippine
or other nationalities, such personnel being exempt from otherwise applicable laws and
regulations attending their employment, except laws that have been or will be enacted for
the protection of employees.

The compensation package given to local-hires has been shown to apply to all, regardless
of race. Truth to tell, there are foreigners who have been hired locally and who are paid
equally as Filipino local hires.6

Accordingly, the School hires both foreign and local teachers as members of its faculty,
classifying the same into two: (1) foreign-hires and (2) local-hires. The School employs four
tests to determine whether a faculty member should be classified as a foreign-hire or a
local hire:

We also take cognizance of the existence of a system of salaries and benefits accorded to
foreign hired personnel which system is universally recognized. We agree that certain
amenities have to be provided to these people in order to entice them to render their
services in the Philippines and in the process remain competitive in the international
market.

a. What is one's domicile?

The Acting secretary upheld the point-of-hire classification for the distinction in salary rates:
The Principle "equal pay for equal work" does not find applications in the present case.
The international character of the School requires the hiring of foreign personnel to deal
with different nationalities and different cultures, among the student population.

c. To which country does one owe economic allegiance?

Furthermore, we took note of the fact that foreign hires have limited contract of
employment unlike the local hires who enjoy security of tenure. To apply parity therefore, in
wages and other benefits would also require parity in other terms and conditions of
employment which include the employment which include the employment contract.

d. Was the individual hired abroad specifically to work in the School and was the School
responsible for bringing that individual to the Philippines?2

A perusal of the parties' 1992-1995 CBA points us to the conditions and provisions for
salary and professional compensation wherein the parties agree as follows:

Should the answer to any of these queries point to the Philippines, the faculty member is
classified as a local hire; otherwise, he or she is deemed a foreign-hire.

All members of the bargaining unit shall be compensated only in accordance with Appendix
C hereof provided that the Superintendent of the School has the discretion to recruit and
hire expatriate teachers from abroad, under terms and conditions that are consistent with
accepted international practice.

b. Where is one's home economy?

The School grants foreign-hires certain benefits not accorded local-hires.1avvphi1 These
include housing, transportation, shipping costs, taxes, and home leave travel allowance.
Foreign-hires are also paid a salary rate twenty-five percent (25%) more than local-hires.
The School justifies the difference on two "significant economic disadvantages" foreign-

Appendix C of said CBA further provides:

22

The new salary schedule is deemed at equity with the Overseas Recruited Staff (OSRS)
salary schedule. The 25% differential is reflective of the agreed value of system
displacement and contracted status of the OSRS as differentiated from the tenured status
of Locally Recruited Staff (LRS).
To our mind, these provisions demonstrate the parties' recognition of the difference in the
status of two types of employees, hence, the difference in their salaries.
The Union cannot also invoke the equal protection clause to justify its claim of parity. It is
an established principle of constitutional law that the guarantee of equal protection of the
laws is not violated by legislation or private covenants based on reasonable classification.
A classification is reasonable if it is based on substantial distinctions and apply to all
members of the same class. Verily, there is a substantial distinction between foreign hires
and local hires, the former enjoying only a limited tenure, having no amenities of their own
in the Philippines and have to be given a good compensation package in order to attract
them to join the teaching faculty of the School.7
We cannot agree.
That public policy abhors inequality and discrimination is beyond contention. Our
Constitution and laws reflect the policy against these evils. The Constitution8 in the Article
on Social Justice and Human Rights exhorts Congress to "give highest priority to the
enactment of measures that protect and enhance the right of all people to human dignity,
reduce social, economic, and political inequalities." The very broad Article 19 of the Civil
Code requires every person, "in the exercise of his rights and in the performance of his
duties, [to] act with justice, give everyone his due, and observe honesty and good faith.
International law, which springs from general principles of law,9 likewise proscribes
discrimination. General principles of law include principles of equity, 10 i.e., the general
principles of fairness and justice, based on the test of what is reasonable. 11 The Universal
Declaration of Human Rights, 12 the International Covenant on Economic, Social, and
Cultural Rights, 13 the International Convention on the Elimination of All Forms of Racial
Discrimination, 14 the Convention against Discrimination in Education, 15 the Convention
(No. 111) Concerning Discrimination in Respect of Employment and Occupation 16 all
embody the general principle against discrimination, the very antithesis of fairness and
justice. The Philippines, through its Constitution, has incorporated this principle as part of
its national laws.
In the workplace, where the relations between capital and labor are often skewed in favor
of capital, inequality and discrimination by the employer are all the more reprehensible.

The School contends that petitioner has not adduced evidence that local-hires perform
work equal to that of foreign-hires. 23 The Court finds this argument a little cavalier. If an
employer accords employees the same position and rank, the presumption is that these
employees perform equal work. This presumption is borne by logic and human experience.
If the employer pays one employee less than the rest, it is not for that employee to explain
why he receives less or why the others receive more. That would be adding insult to injury.
The employer has discriminated against that employee; it is for the employer to explain
why the employee is treated unfairly.
The employer in this case has failed to discharge this burden. There is no evidence here
that foreign-hires perform 25% more efficiently or effectively than the local-hires. Both
groups have similar functions and responsibilities, which they perform under similar
working conditions.
The School cannot invoke the need to entice foreign-hires to leave their domicile to
rationalize the distinction in salary rates without violating the principle of equal work for
equal pay.
"Salary" is defined in Black's Law Dictionary (5th ed.) as "a reward or recompense for
services performed." Similarly, the Philippine Legal Encyclopedia states that "salary" is the
"[c]onsideration paid at regular intervals for the rendering of services." In Songco v.
National Labor Relations Commission, 24 we said that:
"salary" means a recompense or consideration made to a person for his pains or industry
in another man's business. Whether it be derived from "salarium," or more fancifully from
"sal," the pay of the Roman soldier, it carries with it the fundamental idea of compensation
for services rendered. (Emphasis supplied.)
While we recognize the need of the School to attract foreign-hires, salaries should not be
used as an enticement to the prejudice of local-hires. The local-hires perform the same
services as foreign-hires and they ought to be paid the same salaries as the latter. For the
same reason, the "dislocation factor" and the foreign-hires' limited tenure also cannot serve
as valid bases for the distinction in salary rates. The dislocation factor and limited tenure
affecting foreign-hires are adequately compensated by certain benefits accorded them
which are not enjoyed by local-hires, such as housing, transportation, shipping costs, taxes
and home leave travel allowances.

The Constitution 17 specifically provides that labor is entitled to "humane conditions of


work." These conditions are not restricted to the physical workplace the factory, the
office or the field but include as well the manner by which employers treat their
employees.

The Constitution enjoins the State to "protect the rights of workers and promote their
welfare," 25 "to afford labor full protection." 26 The State, therefore, has the right and duty
to regulate the relations between labor and capital. 27 These relations are not merely
contractual but are so impressed with public interest that labor contracts, collective
bargaining agreements included, must yield to the common good. 28 Should such
contracts contain stipulations that are contrary to public policy, courts will not hesitate to
strike down these stipulations.

The Constitution 18 also directs the State to promote "equality of employment


opportunities for all." Similarly, the Labor Code 19 provides that the State shall "ensure
equal work opportunities regardless of sex, race or creed." It would be an affront to both
the spirit and letter of these provisions if the State, in spite of its primordial obligation to
promote and ensure equal employment opportunities, closes its eyes to unequal and
discriminatory terms and conditions of employment. 20

In this case, we find the point-of-hire classification employed by respondent School to


justify the distinction in the salary rates of foreign-hires and local hires to be an invalid
classification. There is no reasonable distinction between the services rendered by foreignhires and local-hires. The practice of the School of according higher salaries to foreignhires contravenes public policy and, certainly, does not deserve the sympathy of this
Court.1avvphi1

Discrimination, particularly in terms of wages, is frowned upon by the Labor Code. Article
135, for example, prohibits and penalizes 21 the payment of lesser compensation to a
female employee as against a male employee for work of equal value. Article 248 declares
it an unfair labor practice for an employer to discriminate in regard to wages in order to
encourage or discourage membership in any labor organization.

We agree, however, that foreign-hires do not belong to the same bargaining unit as the
local-hires.

Notably, the International Covenant on Economic, Social, and Cultural Rights, supra, in
Article 7 thereof, provides:
The States Parties to the present Covenant recognize the right of everyone to the
enjoyment of just and favourable conditions of work, which ensure, in particular:
a. Remuneration which provides all workers, as a minimum, with:
(i) Fair wages and equal remuneration for work of equal value without distinction of any
kind, in particular women being guaranteed conditions of work not inferior to those enjoyed
by men, with equal pay for equal work;
The foregoing provisions impregnably institutionalize in this jurisdiction the long honored
legal truism of "equal pay for equal work." Persons who work with substantially equal
qualifications, skill, effort and responsibility, under similar conditions, should be paid similar
salaries. 22 This rule applies to the School, its "international character" notwithstanding.

A bargaining unit is "a group of employees of a given employer, comprised of all or less
than all of the entire body of employees, consistent with equity to the employer, indicate to
be the best suited to serve the reciprocal rights and duties of the parties under the
collective bargaining provisions of the law." 29 The factors in determining the appropriate
collective bargaining unit are (1) the will of the employees (Globe Doctrine); (2) affinity and
unity of the employees' interest, such as substantial similarity of work and duties, or
similarity of compensation and working conditions (Substantial Mutual Interests Rule); (3)
prior collective bargaining history; and (4) similarity of employment status. 30 The basic
test of an asserted bargaining unit's acceptability is whether or not it is fundamentally the
combination which will best assure to all employees the exercise of their collective
bargaining rights. 31
It does not appear that foreign-hires have indicated their intention to be grouped together
with local-hires for purposes of collective bargaining. The collective bargaining history in
the School also shows that these groups were always treated separately. Foreign-hires
have limited tenure; local-hires enjoy security of tenure. Although foreign-hires perform
similar functions under the same working conditions as the local-hires, foreign-hires are
accorded certain benefits not granted to local-hires. These benefits, such as housing,
transportation, shipping costs, taxes, and home leave travel allowance, are reasonably

23

related to their status as foreign-hires, and justify the exclusion of the former from the
latter. To include foreign-hires in a bargaining unit with local-hires would not assure either
group the exercise of their respective collective bargaining rights.
WHEREFORE, the petition is GIVEN DUE COURSE. The petition is hereby GRANTED IN
PART. The Orders of the Secretary of Labor and Employment dated June 10, 1996 and
March 19, 1997, are hereby REVERSED and SET ASIDE insofar as they uphold the
practice of respondent School of according foreign-hires higher salaries than local-hires.
SO ORDERED.
HON. ISIDRO CARIO, in his capacity as Secretary of the Department of Education,
Culture & Sports, DR. ERLINDA LOLARGA, in her capacity as Superintendent of City
Schools of Manila, petitioners,
vs.
THE COMMISSION ON HUMAN RIGHTS, GRACIANO BUDOY, JULIETA BABARAN,
ELSA IBABAO, HELEN LUPO, AMPARO GONZALES, LUZ DEL CASTILLO, ELSA
REYES and APOLINARIO ESBER, respondents.

NARVASA, J.:p
The issue raised in the special civil action of certiorari and prohibition at bar, instituted by
the Solicitor General, may be formulated as follows: where the relief sought from the
Commission on Human Rights by a party in a case consists of the review and reversal or
modification of a decision or order issued by a court of justice or government agency or
official exercising quasi-judicial functions, may the Commission take cognizance of the
case and grant that relief? Stated otherwise, where a particular subject-matter is placed by
law within the jurisdiction of a court or other government agency or official for purposes of
trial and adjudgment, may the Commission on Human Rights take cognizance of the same
subject-matter for the same purposes of hearing and adjudication?
The facts narrated in the petition are not denied by the respondents and are hence taken
as substantially correct for purposes of ruling on the legal questions posed in the present
action. These facts, 1 together with others involved in related cases recently resolved by
this Court 2 or otherwise undisputed on the record, are hereunder set forth.
1.
On September 17, 1990, a Monday and a class day, some 800 public school
teachers, among them members of the Manila Public School Teachers Association
(MPSTA) and Alliance of Concerned Teachers (ACT) undertook what they described as
"mass concerted actions" to "dramatize and highlight" their plight resulting from the alleged
failure of the public authorities to act upon grievances that had time and again been
brought to the latter's attention. According to them they had decided to undertake said
"mass concerted actions" after the protest rally staged at the DECS premises on
September 14, 1990 without disrupting classes as a last call for the government to
negotiate the granting of demands had elicited no response from the Secretary of
Education. The "mass actions" consisted in staying away from their classes, converging at
the Liwasang Bonifacio, gathering in peaceable assemblies, etc. Through their
representatives, the teachers participating in the mass actions were served with an order
of the Secretary of Education to return to work in 24 hours or face dismissal, and a
memorandum directing the DECS officials concerned to initiate dismissal proceedings
against those who did not comply and to hire their replacements. Those directives
notwithstanding, the mass actions continued into the week, with more teachers joining in
the days that followed. 3
Among those who took part in the "concerted mass actions" were the eight (8) private
respondents herein, teachers at the Ramon Magsaysay High School, Manila, who had
agreed to support the non-political demands of the MPSTA. 4
2.
For failure to heed the return-to-work order, the CHR complainants (private
respondents) were administratively charged on the basis of the principal's report and given
five (5) days to answer the charges. They were also preventively suspended for ninety (90)
days "pursuant to Section 41 of P.D. 807" and temporarily replaced (unmarked CHR
Exhibits, Annexes F, G, H). An investigation committee was consequently formed to hear
the charges in accordance with P.D. 807. 5
3.
In the administrative case docketed as Case No. DECS 90-082 in which CHR
complainants Graciano Budoy, Jr., Julieta Babaran, Luz del Castillo, Apolinario Esber
were, among others, named respondents, 6 the latter filed separate answers, opted for a
formal investigation, and also moved "for suspension of the administrative proceedings
pending resolution by . . (the Supreme) Court of their application for issuance of an
injunctive writ/temporary restraining order." But when their motion for suspension was
denied by Order dated November 8, 1990 of the Investigating Committee, which later also

denied their motion for reconsideration orally made at the hearing of November 14, 1990,
"the respondents led by their counsel staged a walkout signifying their intent to boycott the
entire proceedings." 7 The case eventually resulted in a Decision of Secretary Cario
dated December 17, 1990, rendered after evaluation of the evidence as well as the
answers, affidavits and documents submitted by the respondents, decreeing dismissal
from the service of Apolinario Esber and the suspension for nine (9) months of Babaran,
Budoy and del Castillo. 8
4.
In the meantime, the "MPSTA filed a petition for certiorari before the Regional
Trial Court of Manila against petitioner (Cario), which was dismissed (unmarked CHR
Exhibit, Annex I). Later, the MPSTA went to the Supreme Court (on certiorari, in an attempt
to nullify said dismissal, grounded on the) alleged violation of the striking teachers" right to
due process and peaceable assembly docketed as G.R. No. 95445, supra. The ACT also
filed a similar petition before the Supreme Court . . . docketed as G.R. No. 95590." 9 Both
petitions in this Court were filed in behalf of the teacher associations, a few named
individuals, and "other teacher-members so numerous similarly situated" or "other similarly
situated public school teachers too numerous to be impleaded."
5.
In the meantime, too, the respondent teachers submitted sworn statements
dated September 27, 1990 to the Commission on Human Rights to complain that while
they were participating in peaceful mass actions, they suddenly learned of their
replacements as teachers, allegedly without notice and consequently for reasons
completely unknown to them. 10
6.
Their complaints and those of other teachers also "ordered suspended by
the . . . (DECS)," all numbering forty-two (42) were docketed as "Striking Teachers CHR
Case No. 90775." In connection therewith the Commission scheduled a "dialogue" on
October 11, 1990, and sent a subpoena to Secretary Cario requiring his attendance
therein. 11
On the day of the "dialogue," although it said that it was "not certain whether he (Sec.
Cario) received the subpoena which was served at his office, . . . (the) Commission, with
the Chairman presiding, and Commissioners Hesiquio R. Mallilin and Narciso C. Monteiro,
proceeded to hear the case;" it heard the complainants' counsel (a) explain that his clients
had been "denied due process and suspended without formal notice, and unjustly, since
they did not join the mass leave," and (b) expatiate on the grievances which were "the
cause of the mass leave of MPSTA teachers, (and) with which causes they (CHR
complainants) sympathize." 12 The Commission thereafter issued an Order 13 reciting
these facts and making the following disposition:
To be properly apprised of the real facts of the case and be accordingly guided in its
investigation and resolution of the matter, considering that these forty two teachers are
now suspended and deprived of their wages, which they need very badly, Secretary Isidro
Cario, of the Department of Education, Culture and Sports, Dr. Erlinda Lolarga, school
superintendent of Manila and the Principal of Ramon Magsaysay High School, Manila, are
hereby enjoined to appear and enlighten the Commission en banc on October 19, 1990 at
11:00 A.M. and to bring with them any and all documents relevant to the allegations
aforestated herein to assist the Commission in this matter. Otherwise, the Commission will
resolve the complaint on the basis of complainants' evidence.
xxx

xxx

xxx

7.
Through the Office of the Solicitor General, Secretary Cario sought and was
granted leave to file a motion to dismiss the case. His motion to dismiss was submitted on
November 14, 1990 alleging as grounds therefor, "that the complaint states no cause of
action and that the CHR has no jurisdiction over the case." 14
8.
Pending determination by the Commission of the motion to dismiss, judgments
affecting the "striking teachers" were promulgated in two (2) cases, as aforestated, viz.:
a)
The Decision dated December l7, 1990 of Education Secretary Cario in Case
No. DECS 90-082, decreeing dismissal from the service of Apolinario Esber and the
suspension for nine (9) months of Babaran, Budoy and del Castillo; 15 and
b)
The joint Resolution of this Court dated August 6, 1991 in G.R. Nos. 95445
and 95590 dismissing the petitions "without prejudice to any appeals, if still timely, that the
individual petitioners may take to the Civil Service Commission on the matters complained
of," 16 and inter alia "ruling that it was prima facie lawful for petitioner Cario to issue
return-to-work orders, file administrative charges against recalcitrants, preventively
suspend them, and issue decision on those charges." 17
9.
In an Order dated December 28, 1990, respondent Commission denied Sec.
Cario's motion to dismiss and required him and Superintendent Lolarga "to submit their
counter-affidavits within ten (10) days . . . (after which) the Commission shall proceed to
hear and resolve the case on the merits with or without respondents counter affidavit." 18 It

24

held that the "striking teachers" "were denied due process of law; . . . they should not have
been replaced without a chance to reply to the administrative charges;" there had been a
violation of their civil and political rights which the Commission was empowered to
investigate; and while expressing its "utmost respect to the Supreme Court . . . the facts
before . . . (it) are different from those in the case decided by the Supreme Court" (the
reference being unmistakably to this Court's joint Resolution of August 6, 1991 in G.R.
Nos. 95445 and 95590, supra).
It is to invalidate and set aside this Order of December 28, 1990 that the Solicitor General,
in behalf of petitioner Cario, has commenced the present action of certiorari and
prohibition.
The Commission on Human Rights has made clear its position that it does not feel bound
by this Court's joint Resolution in G.R. Nos. 95445 and 95590, supra. It has also made
plain its intention "to hear and resolve the case (i.e., Striking Teachers HRC Case No. 90775) on the merits." It intends, in other words, to try and decide or hear and determine, i.e.,
exercise jurisdiction over the following general issues:
1)
whether or not the striking teachers were denied due process, and just cause
exists for the imposition of administrative disciplinary sanctions on them by their superiors;
and
2)
whether or not the grievances which were "the cause of the mass leave of
MPSTA teachers, (and) with which causes they (CHR complainants) sympathize," justify
their mass action or strike.
The Commission evidently intends to itself adjudicate, that is to say, determine with
character of finality and definiteness, the same issues which have been passed upon and
decided by the Secretary of Education, Culture & Sports, subject to appeal to the Civil
Service Commission, this Court having in fact, as aforementioned, declared that the
teachers affected may take appeals to the Civil Service Commission on said matters, if still
timely.
The threshold question is whether or not the Commission on Human Rights has the power
under the Constitution to do so; whether or not, like a court of justice, 19 or even a quasijudicial agency, 20 it has jurisdiction or adjudicatory powers over, or the power to try and
decide, or hear and determine, certain specific type of cases, like alleged human rights
violations involving civil or political rights.
The Court declares the Commission on Human Rights to have no such power; and that it
was not meant by the fundamental law to be another court or quasi-judicial agency in this
country, or duplicate much less take over the functions of the latter.
The most that may be conceded to the Commission in the way of adjudicative power is that
it may investigate, i.e., receive evidence and make findings of fact as regards claimed
human rights violations involving civil and political rights. But fact finding is not
adjudication, and cannot be likened to the judicial function of a court of justice, or even a
quasi-judicial agency or official. The function of receiving evidence and ascertaining
therefrom the facts of a controversy is not a judicial function, properly speaking. To be
considered such, the faculty of receiving evidence and making factual conclusions in a
controversy must be accompanied by the authority of applying the law to those factual
conclusions to the end that the controversy may be decided or determined authoritatively,
finally and definitively, subject to such appeals or modes of review as may be provided by
law. 21 This function, to repeat, the Commission does not have. 22
The proposition is made clear by the constitutional provisions specifying the powers of the
Commission on Human Rights.
The Commission was created by the 1987 Constitution as an independent office. 23 Upon
its constitution, it succeeded and superseded the Presidential Committee on Human Rights
existing at the time of the effectivity of the Constitution. 24 Its powers and functions are the
following 25
(1)
Investigate, on its own or on complaint by any party, all forms of human rights
violations involving civil and political rights;
(2)
Adopt its operational guidelines and rules of procedure, and cite for contempt
for violations thereof in accordance with the Rules of Court;
(3)
Provide appropriate legal measures for the protection of human rights of all
persons within the Philippines, as well as Filipinos residing abroad, and provide for
preventive measures and legal aid services to the underprivileged whose human rights
have been violated or need protection;
(4)

Exercise visitorial powers over jails, prisons, or detention facilities;

(5)
Establish a continuing program of research, education, and information to
enhance respect for the primacy of human rights;
(6)
Recommend to the Congress effective measures to promote human rights and
to provide for compensation to victims of violations of human rights, or their families;
(7)
Monitor the Philippine Government's compliance with international treaty
obligations on human rights;
(8)
Grant immunity from prosecution to any person whose testimony or whose
possession of documents or other evidence is necessary or convenient to determine the
truth in any investigation conducted by it or under its authority;
(9)
Request the assistance of any department, bureau, office, or agency in the
performance of its functions;
(10)

Appoint its officers and employees in accordance with law; and

(11)

Perform such other duties and functions as may be provided by law.

As should at once be observed, only the first of the enumerated powers and functions
bears any resemblance to adjudication or adjudgment. The Constitution clearly and
categorically grants to the Commission the power to investigate all forms of human rights
violations involving civil and political rights. It can exercise that power on its own initiative
or on complaint of any person. It may exercise that power pursuant to such rules of
procedure as it may adopt and, in cases of violations of said rules, cite for contempt in
accordance with the Rules of Court. In the course of any investigation conducted by it or
under its authority, it may grant immunity from prosecution to any person whose testimony
or whose possession of documents or other evidence is necessary or convenient to
determine the truth. It may also request the assistance of any department, bureau, office,
or agency in the performance of its functions, in the conduct of its investigation or in
extending such remedy as may be required by its findings. 26
But it cannot try and decide cases (or hear and determine causes) as courts of justice, or
even quasi-judicial bodies do. To investigate is not to adjudicate or adjudge. Whether in the
popular or the technical sense, these terms have well understood and quite distinct
meanings.
"Investigate," commonly understood, means to examine, explore, inquire or delve or probe
into, research on, study. The dictionary definition of "investigate" is "to observe or study
closely: inquire into systematically. "to search or inquire into: . . . to subject to an official
probe . . .: to conduct an official inquiry." 27 The purpose of investigation, of course, is to
discover, to find out, to learn, obtain information. Nowhere included or intimated is the
notion of settling, deciding or resolving a controversy involved in the facts inquired into by
application of the law to the facts established by the inquiry.
The legal meaning of "investigate" is essentially the same: "(t)o follow up step by step by
patient inquiry or observation. To trace or track; to search into; to examine and inquire into
with care and accuracy; to find out by careful inquisition; examination; the taking of
evidence; a legal inquiry;" 28 "to inquire; to make an investigation," "investigation" being in
turn describe as "(a)n administrative function, the exercise of which ordinarily does not
require a hearing. 2 Am J2d Adm L Sec. 257; . . . an inquiry, judicial or otherwise, for the
discovery and collection of facts concerning a certain matter or matters." 29
"Adjudicate," commonly or popularly understood, means to adjudge, arbitrate, judge,
decide, determine, resolve, rule on, settle. The dictionary defines the term as "to settle
finally (the rights and duties of the parties to a court case) on the merits of issues raised: . .
. to pass judgment on: settle judicially: . . . act as judge." 30 And "adjudge" means "to
decide or rule upon as a judge or with judicial or quasi-judicial powers: . . . to award or
grant judicially in a case of controversy . . . ." 31
In the legal sense, "adjudicate" means: "To settle in the exercise of judicial authority. To
determine finally. Synonymous with adjudge in its strictest sense;" and "adjudge" means:
"To pass on judicially, to decide, settle or decree, or to sentence or condemn. . . . Implies a
judicial determination of a fact, and the entry of a judgment." 32
Hence it is that the Commission on Human Rights, having merely the power "to
investigate," cannot and should not "try and resolve on the merits" (adjudicate) the matters
involved in Striking Teachers HRC Case No. 90-775, as it has announced it means to do;
and it cannot do so even if there be a claim that in the administrative disciplinary
proceedings against the teachers in question, initiated and conducted by the DECS, their
human rights, or civil or political rights had been transgressed. More particularly, the
Commission has no power to "resolve on the merits" the question of (a) whether or not the
mass concerted actions engaged in by the teachers constitute and are prohibited or

25

otherwise restricted by law; (b) whether or not the act of carrying on and taking part in
those actions, and the failure of the teachers to discontinue those actions, and return to
their classes despite the order to this effect by the Secretary of Education, constitute
infractions of relevant rules and regulations warranting administrative disciplinary
sanctions, or are justified by the grievances complained of by them; and (c) what where the
particular acts done by each individual teacher and what sanctions, if any, may properly be
imposed for said acts or omissions.
These are matters undoubtedly and clearly within the original jurisdiction of the Secretary
of Education, being within the scope of the disciplinary powers granted to him under the
Civil Service Law, and also, within the appellate jurisdiction of the Civil Service
Commission.
Indeed, the Secretary of Education has, as above narrated, already taken cognizance of
the issues and resolved them, 33 and it appears that appeals have been seasonably taken
by the aggrieved parties to the Civil Service Commission; and even this Court itself has
had occasion to pass upon said issues. 34
Now, it is quite obvious that whether or not the conclusions reached by the Secretary of
Education in disciplinary cases are correct and are adequately based on substantial
evidence; whether or not the proceedings themselves are void or defective in not having
accorded the respondents due process; and whether or not the Secretary of Education had
in truth committed "human rights violations involving civil and political rights," are matters
which may be passed upon and determined through a motion for reconsideration
addressed to the Secretary Education himself, and in the event of an adverse verdict, may
be reviewed by the Civil Service Commission and eventually the Supreme Court.
The Commission on Human Rights simply has no place in this scheme of things. It has no
business intruding into the jurisdiction and functions of the Education Secretary or the Civil
Service Commission. It has no business going over the same ground traversed by the
latter and making its own judgment on the questions involved. This would accord success
to what may well have been the complaining teachers' strategy to abort, frustrate or negate
the judgment of the Education Secretary in the administrative cases against them which
they anticipated would be adverse to them.
This cannot be done. It will not be permitted to be done.

(3)
not only with the human rights of those who rise against the government but
also those who defend the same;
(4)
not only the human rights of striking laborers but also those who as a
consequence of strikes may be laid off because of financial repercussions.
The defense of human rights is not a monopoly of a government agency (such as the
Commission on Human Rights) nor the monopoly of a group of lawyers defending socalled "human rights' but the responsibility of ALL AGENCIES (governmental or private)
and of ALL LAWYERS, JUDGES, and JUSTICES.
Finally, the Commission should realize that while there are "human rights", there are also
corresponding "human obligations."
PADILLA, J., dissenting:
I vote to dismiss the petition for the same reasons stated in my earlier separate opinion
filed in this case.
# Separate Opinions
GUTIERREZ, JR., J., concurring:
I concur in the result. The teachers are not to be blamed for exhausting all means to
overcome the Secretary's arbitrary act of not reinstating them.
PARAS, J., concurring:
I concur with the brilliant and enlightening decision of Chief Justice Andres R. Narvasa
I wish to add however that the Commission on Human Rights should concern itself in this
case and in many other similar cases:
(1)
not only with the human rights of striking teachers but also the human rights of
students and their parents;

In any event, the investigation by the Commission on Human Rights would serve no useful
purpose. If its investigation should result in conclusions contrary to those reached by
Secretary Cario, it would have no power anyway to reverse the Secretary's conclusions.
Reversal thereof can only by done by the Civil Service Commission and lastly by this
Court. The only thing the Commission can do, if it concludes that Secretary Cario was in
error, is to refer the matter to the appropriate Government agency or tribunal for
assistance; that would be the Civil Service Commission. 35 It cannot arrogate unto itself
the appellate jurisdiction of the Civil Service Commission.

(2)
not only with the human rights of the accused but also the human rights of the
victims and the latter's families;

WHEREFORE, the petition is granted; the Order of December 29, 1990 is ANNULLED and
SET ASIDE, and the respondent Commission on Human Rights and the Chairman and
Members thereof are prohibited "to hear and resolve the case (i.e., Striking Teachers HRC
Case No. 90-775) on the merits."

The defense of human rights is not a monopoly of a government agency (such as the
Commission on Human Rights) nor the monopoly of a group of lawyers defending socalled "human rights' but the responsibility of ALL AGENCIES (governmental or private)
and of ALL LAWYERS, JUDGES, and JUSTICES.

SO ORDERED.

Finally, the Commission should realize that while there are "human rights", there are also
corresponding "human obligations."

Melencio-Herrera, Cruz, Feliciano, Bidin, Grio-Aquino, Medialdea, Regalado, Davide, Jr.


and Romero, JJ, concur.
Separate Opinions

(3)
not only with the human rights of those who rise against the government but
also those who defend the same;
(4)
not only the human rights of striking laborers but also those who as a
consequence of strikes may be laid off because of financial repercussions.

PADILLA, J., dissenting:


I vote to dismiss the petition for the same reasons stated in my earlier separate opinion
filed in this case.

GUTIERREZ, JR., J., concurring:


I concur in the result. The teachers are not to be blamed for exhausting all means to
overcome the Secretary's arbitrary act of not reinstating them.
PARAS, J., concurring:
I concur with the brilliant and enlightening decision of Chief Justice Andres R. Narvasa
I wish to add however that the Commission on Human Rights should concern itself in this
case and in many other similar cases:
(1)
not only with the human rights of striking teachers but also the human rights of
students and their parents;
(2)
not only with the human rights of the accused but also the human rights of the
victims and the latter's families;

RIGIDO R. SIMON, JR., CARLOS QUIMPO, CARLITO ABELARDO, AND GENEROSO


OCAMPO, petitioners,
vs.COMMISSION ON HUMAN RIGHTS, ROQUE FERMO, AND OTHERS AS JOHN
The extent of the authority and power of the Commission on Human Rights ("CHR") is
again placed into focus in this petition for prohibition, with prayer for a restraining order and
preliminary injunction. The petitioners ask us to prohibit public respondent CHR from
further hearing and investigating CHR Case No. 90-1580, entitled "Fermo, et al. vs.
Quimpo, et al."
The case all started when a "Demolition Notice," dated 9 July 1990, signed by Carlos
Quimpo (one of the petitioners) in his capacity as an Executive Officer of the Quezon City
Integrated Hawkers Management Council under the Office of the City Mayor, was sent to,
and received by, the private respondents (being the officers and members of the North
EDSA Vendors Association, Incorporated). In said notice, the respondents were given a

26

grace-period of three (3) days (up to 12 July 1990) within which to vacate the questioned
premises of North EDSA. 1 Prior to their receipt of the demolition notice, the private
respondents were informed by petitioner Quimpo that their stalls should be removed to
give way to the "People's Park". 2 On 12 July 1990, the group, led by their President
Roque Fermo, filed a letter-complaint (Pinag-samang Sinumpaang Salaysay) with the CHR
against the petitioners, asking the late CHR Chairman Mary Concepcion Bautista for a
letter to be addressed to then Mayor Brigido Simon, Jr., of Quezon City to stop the
demolition of the private respondents' stalls, sari-sari stores, and carinderia along North
EDSA. The complaint was docketed as CHR Case No. 90-1580. 3 On 23 July 1990, the
CHR issued an Order, directing the petitioners "to desist from demolishing the stalls and
shanties at North EDSA pending resolution of the vendors/squatters' complaint before the
Commission" and ordering said petitioners to appear before the CHR. 4

(considered) a quasi-judicial body with the power to provide appropriate legal measures for
the protection of human rights of all persons within the Philippines . . . ." It added:
The right to earn a living is a right essential to one's right to development, to life and to
dignity. All these brazenly and violently ignored and trampled upon by respondents with
little regard at the same time for the basic rights of women and children, and their health,
safety and welfare. Their actions have psychologically scarred and traumatized the
children, who were witness and exposed to such a violent demonstration of Man's
inhumanity to man.
In an Order, 14 dated 25 April 1991, petitioners' motion for reconsideration was denied.
Hence, this recourse.

On the basis of the sworn statements submitted by the private respondents on 31 July
1990, as well as CHR's own ocular inspection, and convinced that on 28 July 1990 the
petitioners carried out the demolition of private respondents' stalls, sari-sari stores and
carinderia, 5 the CHR, in its resolution of 1 August 1990, ordered the disbursement of
financial assistance of not more than P200,000.00 in favor of the private respondents to
purchase light housing materials and food under the Commission's supervision and again
directed the petitioners to "desist from further demolition, with the warning that violation of
said order would lead to a citation for contempt and arrest." 6

The petition was initially dismissed in our resolution 15 of 25 June 1991; it was
subsequently reinstated, however, in our resolution 16 of 18 June 1991, in which we also
issued a temporary restraining order, directing the CHR to "CEASE and DESIST from
further hearing CHR No. 90-1580." 17
The petitioners pose the following:
Whether or not the public respondent has jurisdiction:

A motion to dismiss, 7 dated 10 September 1990, questioned CHR's jurisdiction. The


motion also averred, among other things, that:
1.
this case came about due to the alleged violation by the (petitioners) of the
Inter-Agency Memorandum of Agreement whereby Metro-Manila Mayors agreed on a
moratorium in the demolition of the dwellings of poor dwellers in Metro-Manila;
xxx

xxx

xxx

3.
. . . , a perusal of the said Agreement (revealed) that the moratorium referred
to therein refers to moratorium in the demolition of the structures of poor dwellers;
4.
that the complainants in this case (were) not poor dwellers but independent
business entrepreneurs even this Honorable Office admitted in its resolution of 1 August
1990 that the complainants are indeed, vendors;
5.
that the complainants (were) occupying government land, particularly the
sidewalk of EDSA corner North Avenue, Quezon City; . . . and
6.
that the City Mayor of Quezon City (had) the sole and exclusive discretion and
authority whether or not a certain business establishment (should) be allowed to operate
within the jurisdiction of Quezon City, to revoke or cancel a permit, if already issued, upon
grounds clearly specified by law and ordinance. 8
During the 12 September 1990 hearing, the petitioners moved for postponement, arguing
that the motion to dismiss set for 21 September 1990 had yet to be resolved. The
petitioners likewise manifested that they would bring the case to the courts.
On 18 September 1990 a supplemental motion to dismiss was filed by the petitioners,
stating that the Commission's authority should be understood as being confined only to the
investigation of violations of civil and political rights, and that "the rights allegedly violated
in this case (were) not civil and political rights, (but) their privilege to engage in business."
9
On 21 September 1990, the motion to dismiss was heard and submitted for resolution,
along with the contempt charge that had meantime been filed by the private respondents,
albeit vigorously objected to by petitioners (on the ground that the motion to dismiss was
still then unresolved). 10

a)
to investigate the alleged violations of the "business rights" of the private
respondents whose stalls were demolished by the petitioners at the instance and authority
given by the Mayor of Quezon City;
b)

to impose the fine of P500.00 each on the petitioners; and

c)
to disburse the amount of P200,000.00 as financial aid to the vendors affected
by the demolition.
In the Court's resolution of 10 October 1991, the Solicitor-General was excused from filing
his comment for public respondent CHR. The latter thus filed its own comment, 18 through
Hon. Samuel Soriano, one of its Commissioners. The Court also resolved to dispense with
the comment of private respondent Roque Fermo, who had since failed to comply with the
resolution, dated 18 July 1991, requiring such comment.
The petition has merit.
The Commission on Human Rights was created by the 1987
Constitution. 19 It was formally constituted by then President Corazon Aquino via
Executive Order No. 163, 20 issued on 5 May 1987, in the exercise of her legislative power
at the time. It succeeded, but so superseded as well, the Presidential Committee on
Human Rights. 21
The powers and functions 22 of the Commission are defined by the 1987 Constitution,
thus: to
(1)
Investigate, on its own or on complaint by any party, all forms of human rights
violations involving civil and political rights;
(2)
Adopt its operational guidelines and rules of procedure, and cite for contempt
for violations thereof in accordance with the Rules of Court;
(3)
Provide appropriate legal measures for the protection of human rights of all
persons within the Philippines, as well as Filipinos residing abroad, and provide for
preventive measures and legal aid services to the underprivileged whose human rights
have been violated or need protection;
(4)

Exercise visitorial powers over jails, prisons, or detention facilities;

In an Order, 11 dated 25 September 1990, the CHR cited the petitioners in contempt for
carrying out the demolition of the stalls, sari-sari stores and carinderia despite the "order to
desist", and it imposed a fine of P500.00 on each of them.

(5)
Establish a continuing program of research, education, and information to
enhance respect for the primacy of human rights;

On 1 March 1991, 12 the CHR issued an Order, denying petitioners' motion to dismiss and
supplemental motion to dismiss, in this wise:

(6)
Recommend to the Congress effective measures to promote human rights and
to provide for compensation to victims of violations of human rights, or their families;

Clearly, the Commission on Human Rights under its constitutional mandate had jurisdiction
over the complaint filed by the squatters-vendors who complained of the gross violations of
their human and constitutional rights. The motion to dismiss should be and is hereby
DENIED for lack of merit. 13

(7)
Monitor the Philippine Government's compliance with international treaty
obligations on human rights;

The CHR opined that "it was not the intention of the (Constitutional) Commission to create
only a paper tiger limited only to investigating civil and political rights, but it (should) be

(8)
Grant immunity from prosecution to any person whose testimony or whose
possession of documents or other evidence is necessary or convenient to determine the
truth in any investigation conducted by it or under its authority;

27

(9)
Request the assistance of any department, bureau, office, or agency in the
performance of its functions;
(10)

Appoint its officers and employees in accordance with law; and

(11)

Perform such other duties and functions as may be provided by law.

In its Order of 1 March 1991, denying petitioners' motion to dismiss, the CHR theorizes
that the intention of the members of the Constitutional Commission is to make CHR a
quasi-judicial body. 23 This view, however, has not heretofore been shared by this Court.
In Cario v. Commission on Human Rights, 24 the Court, through then Associate Justice,
now Chief Justice Andres Narvasa, has observed that it is "only the first of the enumerated
powers and functions that bears any resemblance to adjudication or adjudgment," but that
resemblance can in no way be synonymous to the adjudicatory power itself. The Court
explained:
. . . (T)he Commission on Human Rights . . . was not meant by the fundamental law to be
another court or quasi-judicial agency in this country, or duplicate much less take over the
functions of the latter.
The most that may be conceded to the Commission in the way of adjudicative power is that
it may investigate, i.e., receive evidence and make findings of fact as regards claimed
human rights violations involving civil and political rights. But fact finding is not
adjudication, and cannot be likened to the judicial function of a court of justice, or even a
quasi-judicial agency or official. The function of receiving evidence and ascertaining
therefrom the facts of a controversy is not a judicial function, properly speaking. To be
considered such, the faculty of receiving evidence and making factual conclusions in a
controversy must be accompanied by the authority of applying the law to those factual
conclusions to the end that the controversy may be decided or determined authoritatively,
finally and definitively, subject to such appeals or modes of review as may be provided by
law. This function, to repeat, the Commission does not have.
After thus laying down at the outset the above rule, we now proceed to the other kernel of
this controversy and, its is, to determine the extent of CHR's investigative power.
It can hardly be disputed that the phrase "human rights" is so generic a term that any
attempt to define it, albeit not a few have tried, could at best be described as inconclusive.
Let us observe. In a symposium on human rights in the Philippines, sponsored by the
University of the Philippines in 1977, one of the questions that has been propounded is
"(w)hat do you understand by "human rights?" The participants, representing different
sectors of the society, have given the following varied answers:
Human rights are the basic rights which inhere in man by virtue of his humanity. They are
the same in all parts of the world, whether the Philippines or England, Kenya or the Soviet
Union, the United States or Japan, Kenya or Indonesia . . . .
Human rights include civil rights, such as the right to life, liberty, and property; freedom of
speech, of the press, of religion, academic freedom, and the rights of the accused to due
process of law; political rights, such as the right to elect public officials, to be elected to
public office, and to form political associations and engage in politics; and social rights,
such as the right to an education, employment, and social services. 25

heard. Among those voices, aptly represented perhaps of the sentiments expressed by
others, comes from Mr. Justice J.B.L. Reyes, a respected jurist and an advocate of civil
liberties, who, in his paper, entitled "Present State of Human Rights in the Philippines," 29
observes:
But while the Constitution of 1935 and that of 1973 enshrined in their Bill of Rights most of
the human rights expressed in the International Covenant, these rights became
unavailable upon the proclamation of Martial Law on 21 September 1972. Arbitrary action
then became the rule. Individuals by the thousands became subject to arrest upon
suspicion, and were detained and held for indefinite periods, sometimes for years, without
charges, until ordered released by the Commander-in-Chief or this representative. The
right to petition for the redress of grievances became useless, since group actions were
forbidden. So were strikes. Press and other mass media were subjected to censorship and
short term licensing. Martial law brought with it the suspension of the writ of habeas
corpus, and judges lost independence and security of tenure, except members of the
Supreme Court. They were required to submit letters of resignation and were dismissed
upon the acceptance thereof. Torture to extort confessions were practiced as declared by
international bodies like Amnesty International and the International Commission of Jurists.
Converging our attention to the records of the Constitutional Commission, we can see the
following discussions during its 26 August 1986 deliberations:
MR. GARCIA . . . , the primacy of its (CHR) task must be made clear in view of the
importance of human rights and also because civil and political rights have been
determined by many international covenants and human rights legislations in the
Philippines, as well as the Constitution, specifically the Bill of Rights and subsequent
legislation. Otherwise, if we cover such a wide territory in area, we might diffuse its impact
and the precise nature of its task, hence, its effectivity would also be curtailed.
So, it is important to delienate the parameters of its tasks so that the commission can be
most effective.
MR. BENGZON.
That is precisely my difficulty because civil and political rights are
very broad. The Article on the Bill of Rights covers civil and political rights. Every single
right of an individual involves his civil right or his political right. So, where do we draw the
line?
MR. GARCIA.
Actually, these civil and political rights have been made clear in
the language of human rights advocates, as well as in the Universal Declaration of Human
Rights which addresses a number of articles on the right to life, the right against torture,
the right to fair and public hearing, and so on. These are very specific rights that are
considered enshrined in many international documents and legal instruments as
constituting civil and political rights, and these are precisely what we want to defend here.
MR. BENGZON. So, would the commissioner say civil and political rights as defined in the
Universal Declaration of Human Rights?
MR. GARCIA. Yes, and as I have mentioned, the International Covenant of Civil and
Political Rights distinguished this right against torture.
MR. BENGZON. So as to distinguish this from the other rights that we have?

Human rights are the entitlement that inhere in the individual person from the sheer fact of
his humanity. . . . Because they are inherent, human rights are not granted by the State but
can only be recognized and protected by it. 26

MR. GARCIA. Yes, because the other rights will encompass social and economic rights,
and there are other violations of rights of citizens which can be addressed to the proper
courts and authorities.

(Human rights include all) the civil, political, economic, social, and cultural rights defined in
the Universal Declaration of Human Rights. 27

xxx

xxx

xxx

Human rights are rights that pertain to man simply because he is human. They are part of
his natural birth, right, innate and inalienable. 28

MR. BENGZON. So, we will authorize the commission to define its functions, and,
therefore, in doing that the commission will be authorized to take under its wings cases
which perhaps heretofore or at this moment are under the jurisdiction of the ordinary
investigative and prosecutorial agencies of the government. Am I correct?

The Universal Declaration of Human Rights, as well as, or more specifically, the
International Covenant on Economic, Social and Cultural Rights and International
Covenant on Civil and Political Rights, suggests that the scope of human rights can be
understood to include those that relate to an individual's social, economic, cultural, political
and civil relations. It thus seems to closely identify the term to the universally accepted
traits and attributes of an individual, along with what is generally considered to be his
inherent and inalienable rights, encompassing almost all aspects of life.

MR. GARCIA. No. We have already mentioned earlier that we would like to define the
specific parameters which cover civil and political rights as covered by the international
standards governing the behavior of governments regarding the particular political and civil
rights of citizens, especially of political detainees or prisoners. This particular aspect we
have experienced during martial law which we would now like to safeguard.

Have these broad concepts been equally contemplated by the framers of our 1986
Constitutional Commission in adopting the specific provisions on human rights and in
creating an independent commission to safeguard these rights? It may of value to look
back at the country's experience under the martial law regime which may have, in fact,
impelled the inclusions of those provisions in our fundamental law. Many voices have been

MR. BENGZON. Then, I go back to that question that I had. Therefore, what we are really
trying to say is, perhaps, at the proper time we could specify all those rights stated in the
Universal Declaration of Human Rights and defined as human rights. Those are the rights
that we envision here?

28

MR. GARCIA. Yes. In fact, they are also enshrined in the Bill of Rights of our Constitution.
They are integral parts of that.
MR. BENGZON. Therefore, is the Gentleman saying that all the rights under the Bill of
Rights covered by human rights?

MR. GUINGONA. Correct. Therefore, just for the record, the Gentlemen is no longer
linking his concept or the concept of the Committee on Human Rights with the so-called
civil or political rights as contained in the Universal Declaration of Human Rights.

MR. GARCIA. No, only those that pertain to civil and political rights.

MR. GARCIA. When I mentioned earlier the Universal Declaration of Human Rights, I was
referring to an international instrument.

xxx

MR. GUINGONA. I know.

xxx

xxx

MR. RAMA. In connection with the discussion on the scope of human rights, I would like to
state that in the past regime, everytime we invoke the violation of human rights, the Marcos
regime came out with the defense that, as a matter of fact, they had defended the rights of
people to decent living, food, decent housing and a life consistent with human dignity.
So, I think we should really limit the definition of human rights to political rights. Is that the
sense of the committee, so as not to confuse the issue?
MR. SARMIENTO. Yes, Madam President.
MR. GARCIA. I would like to continue and respond also to repeated points raised by the
previous speaker.
There are actually six areas where this Commission on Human Rights could act effectively:
1) protection of rights of political detainees; 2) treatment of prisoners and the prevention of
tortures; 3) fair and public trials; 4) cases of disappearances; 5) salvagings and hamletting;
and 6) other crimes committed against the religious.

MR. GARCIA. But it does not mean that we will refer to each and every specific article
therein, but only to those that pertain to the civil and politically related, as we understand it
in this Commission on Human Rights.
MR. GUINGONA. Madam President, I am not even clear as to the distinction between civil
and social rights.
MR. GARCIA. There are two international covenants: the International Covenant and Civil
and Political Rights and the International Covenant on Economic, Social and Cultural
Rights. The second covenant contains all the different rights-the rights of labor to organize,
the right to education, housing, shelter, et cetera.
MR. GUINGONA. So we are just limiting at the moment the sense of the committee to
those that the Gentlemen has specified.
MR. GARCIA. Yes, to civil and political rights.
MR. GUINGONA. Thank you.

xxx

xxx

xxx
xxx

xxx

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The PRESIDENT. Commissioner Guingona is recognized.


MR. GUINGONA. Thank You Madam President.
I would like to start by saying that I agree with Commissioner Garcia that we should, in
order to make the proposed Commission more effective, delimit as much as possible,
without prejudice to future expansion. The coverage of the concept and jurisdictional area
of the term "human rights". I was actually disturbed this morning when the reference was
made without qualification to the rights embodied in the universal Declaration of Human
Rights, although later on, this was qualified to refer to civil and political rights contained
therein.
If I remember correctly, Madam President, Commissioner Garcia, after mentioning the
Universal Declaration of Human Rights of 1948, mentioned or linked the concept of human
right with other human rights specified in other convention which I do not remember. Am I
correct?
MR. GARCIA. Is Commissioner Guingona referring to the Declaration of Torture of 1985?
MR. GUINGONA. I do not know, but the commissioner mentioned another.

SR. TAN. Madam President, from the standpoint of the victims of human rights, I cannot
stress more on how much we need a Commission on Human Rights. . . .
. . . human rights victims are usually penniless. They cannot pay and very few lawyers will
accept clients who do not pay. And so, they are the ones more abused and oppressed.
Another reason is, the cases involved are very delicate torture, salvaging, picking up
without any warrant of arrest, massacre and the persons who are allegedly guilty are
people in power like politicians, men in the military and big shots. Therefore, this Human
Rights Commission must be independent.
I would like very much to emphasize how much we need this commission, especially for
the little Filipino, the little individual who needs this kind of help and cannot get it. And I
think we should concentrate only on civil and political violations because if we open this to
land, housing and health, we will have no place to go again and we will not receive any
response. . . . 30 (emphasis supplied)
The final outcome, now written as Section 18, Article XIII, of the 1987 Constitution, is a
provision empowering the Commission on Human Rights to "investigate, on its own or on
complaint by any party, all forms of human rights violations involving civil and political
rights" (Sec. 1).

MR. GARCIA. Madam President, the other one is the International Convention on Civil and
Political Rights of which we are signatory.

The term "civil rights," 31 has been defined as referring

MR. GUINGONA. I see. The only problem is that, although I have a copy of the Universal
Declaration of Human Rights here, I do not have a copy of the other covenant mentioned.
It is quite possible that there are rights specified in that other convention which may not be
specified here. I was wondering whether it would be wise to link our concept of human
rights to general terms like "convention," rather than specify the rights contained in the
convention.

(t)o those (rights) that belong to every citizen of the state or country, or, in wider sense, to
all its inhabitants, and are not connected with the organization or administration of the
government. They include the rights of property, marriage, equal protection of the laws,
freedom of contract, etc. Or, as otherwise defined civil rights are rights appertaining to a
person by virtue of his citizenship in a state or community. Such term may also refer, in its
general sense, to rights capable of being enforced or redressed in a civil action.

As far as the Universal Declaration of Human Rights is concerned, the Committee, before
the period of amendments, could specify to us which of these articles in the Declaration will
fall within the concept of civil and political rights, not for the purpose of including these in
the proposed constitutional article, but to give the sense of the Commission as to what
human rights would be included, without prejudice to expansion later on, if the need arises.
For example, there was no definite reply to the question of Commissioner Regalado as to
whether the right to marry would be considered a civil or a social right. It is not a civil right?

Also quite often mentioned are the guarantees against involuntary servitude, religious
persecution, unreasonable searches and seizures, and imprisonment for debt. 32

MR. GARCIA. Madam President, I have to repeat the various specific civil and political
rights that we felt must be envisioned initially by this provision freedom from political
detention and arrest prevention of torture, right to fair and public trials, as well as crimes
involving disappearance, salvagings, hamlettings and collective violations. So, it is limited
to politically related crimes precisely to protect the civil and political rights of a specific
group of individuals, and therefore, we are not opening it up to all of the definite areas.

Recalling the deliberations of the Constitutional Commission, aforequoted, it is readily


apparent that the delegates envisioned a Commission on Human Rights that would focus
its attention to the more severe cases of human rights violations. Delegate Garcia, for
instance, mentioned such areas as the "(1) protection of rights of political detainees, (2)
treatment of prisoners and the prevention of tortures, (3) fair and public trials, (4) cases of
disappearances, (5) salvagings and hamletting, and (6) other crimes committed against the

Political rights, 33 on the other hand, are said to refer to the right to participate, directly or
indirectly, in the establishment or administration of government, the right of suffrage, the
right to hold public office, the right of petition and, in general, the rights appurtenant to
citizenship vis-a-vis the management of government. 34

29

religious." While the enumeration has not likely been meant to have any preclusive effect,
more than just expressing a statement of priority, it is, nonetheless, significant for the tone
it has set. In any event, the delegates did not apparently take comfort in peremptorily
making a conclusive delineation of the CHR's scope of investigatorial jurisdiction. They
have thus seen it fit to resolve, instead, that "Congress may provide for other cases of
violations of human rights that should fall within the authority of the Commission, taking
into account its recommendation." 35
In the particular case at hand, there is no cavil that what are sought to be demolished are
the stalls, sari-sari stores and carinderia, as well as temporary shanties, erected by private
respondents on a land which is planned to be developed into a "People's Park". More than
that, the land adjoins the North EDSA of Quezon City which, this Court can take judicial
notice of, is a busy national highway. The consequent danger to life and limb is not thus to
be likewise simply ignored. It is indeed paradoxical that a right which is claimed to have
been violated is one that cannot, in the first place, even be invoked, if it is, in fact, extant.
Be that as it may, looking at the standards hereinabove discoursed vis-a-vis the
circumstances obtaining in this instance, we are not prepared to conclude that the order for
the demolition of the stalls, sari-sari stores and carinderia of the private respondents can
fall within the compartment of "human rights violations involving civil and political rights"
intended by the Constitution.
On its contempt powers, the CHR is constitutionally authorized to "adopt its operational
guidelines and rules of procedure, and cite for contempt for violations thereof in
accordance with the Rules of Court." Accordingly, the CHR acted within its authority in
providing in its revised rules, its power "to cite or hold any person in direct or indirect
contempt, and to impose the appropriate penalties in accordance with the procedure and
sanctions provided for in the Rules of Court." That power to cite for contempt, however,
should be understood to apply only to violations of its adopted operational guidelines and
rules of procedure essential to carry out its investigatorial powers. To exemplify, the power
to cite for contempt could be exercised against persons who refuse to cooperate with the
said body, or who unduly withhold relevant information, or who decline to honor summons,
and the like, in pursuing its investigative work. The "order to desist" (a semantic interplay
for a restraining order) in the instance before us, however, is not investigatorial in character
but prescinds from an adjudicative power that it does not possess. In Export Processing
Zone Authority vs. Commission on Human Rights, 36 the Court, speaking through Madame
Justice Carolina Grio-Aquino, explained:

and from implementing the P500.00 fine for contempt. The temporary restraining order
heretofore issued by this Court is made permanent. No costs.
SO ORDERED.
Separate Opinions
I reiterate my separate opinion in "Carino, et al. vs. The Commission on Human rights, et
al.," G.R. No. 96681, 2 December 1991, 204 SCRA 483 in relation to the resolution of 29
January 1991 and my dissenting opinion in "Export Processing Zone Authority vs. The
Commission on Human Rights,
et al.," G.R. No. 101476, 14 April 1992, 208 SCRA 125. I am of the considered view that
the CHR can issue a cease and desist order to maintain a status quo pending its
investigation of a case involving an alleged human rights violation; that such cease and
desist order maybe necessary in situations involving a threatened violation of human
rights, which the CHR intents to investigate.
In the case at bench, I would consider the threatened demolition of the stalls, sari-sari
stores and carinderias as well as the temporary shanties owned by the private respondents
as posing prima facie a case of human rights violation because it involves an impairment of
the civil rights of said private respondents, under the definition of civil rights cited by the
majority opinion (pp. 20-21) and which the CHR has unquestioned authority to investigate
(Section 18, Art. XIII, 1987 Constitution).
Human rights demand more than lip service and extend beyond impressive displays of
placards at street corners. Positive action and results are what count. Certainly, the cause
of human rights is not enhanced when the very constitutional agency tasked to protect and
vindicate human rights is transformed by us, from the start, into a tiger without dentures but
with maimed legs to boot. I submit the CHR should be given a wide latitude to look into and
investigate situations which may (or may not ultimately) involve human rights violations.
ACCORDINGLY, I vote to DISMISS the petition and to remand the case to the CHR for
further proceedings.
# Separate Opinions
PADILLA, J., dissenting:

The constitutional provision directing the CHR to "provide for preventive measures and
legal aid services to the underprivileged whose human rights have been violated or need
protection" may not be construed to confer jurisdiction on the Commission to issue a
restraining order or writ of injunction for, it that were the intention, the Constitution would
have expressly said so. "Jurisdiction is conferred only by the Constitution or by law". It is
never derived by implication.
Evidently, the "preventive measures and legal aid services" mentioned in the Constitution
refer to extrajudicial and judicial remedies (including a writ of preliminary injunction) which
the CHR may seek from proper courts on behalf of the victims of human rights violations.
Not being a court of justice, the CHR itself has no jurisdiction to issue the writ, for a writ of
preliminary injunction may only be issued "by the judge of any court in which the action is
pending [within his district], or by a Justice of the Court of Appeals, or of the Supreme
Court. . . . A writ of preliminary injunction is an ancillary remedy. It is available only in a
pending principal action, for the preservation or protection of the rights and interests of a
party thereto, and for no other purpose." (footnotes omitted).
The Commission does have legal standing to indorse, for appropriate action, its findings
and recommendations to any appropriate agency of government. 37
The challenge on the CHR's disbursement of the amount of P200,000.00 by way of
financial aid to the vendors affected by the demolition is not an appropriate issue in the
instant petition. Not only is there lack of locus standi on the part of the petitioners to
question the disbursement but, more importantly, the matter lies with the appropriate
administrative agencies concerned to initially consider.
The public respondent explains that this petition for prohibition filed by the petitioners has
become moot and academic since the case before it (CHR Case No. 90-1580) has already
been fully heard, and that the matter is merely awaiting final resolution. It is true that
prohibition is a preventive remedy to restrain the doing of an act about to be done, and not
intended to provide a remedy for an act already accomplished. 38 Here, however, said
Commission admittedly has yet to promulgate its resolution in CHR Case No. 90-1580.
The instant petition has been intended, among other things, to also prevent CHR from
precisely doing that. 39
WHEREFORE, the writ prayed for in this petition is GRANTED. The Commission on
Human Rights is hereby prohibited from further proceeding with CHR Case No. 90-1580

I reiterate my separate opinion in "Carino, et al. vs. The Commission on Human rights, et
al.," G.R. No. 96681, 2 December 1991, 204 SCRA 483 in relation to the resolution of 29
January 1991 and my dissenting opinion in "Export Processing Zone Authority vs. The
Commission on Human Rights,
et al.," G.R. No. 101476, 14 April 1992, 208 SCRA 125. I am of the considered view that
the CHR can issue a cease and desist order to maintain a status quo pending its
investigation of a case involving an alleged human rights violation; that such cease and
desist order maybe necessary in situations involving a threatened violation of human
rights, which the CHR intents to investigate.
In the case at bench, I would consider the threatened demolition of the stalls, sari-sari
stores and carinderias as well as the temporary shanties owned by the private respondents
as posing prima facie a case of human rights violation because it involves an impairment of
the civil rights of said private respondents, under the definition of civil rights cited by the
majority opinion (pp. 20-21) and which the CHR has unquestioned authority to investigate
(Section 18, Art. XIII, 1987 Constitution).
Human rights demand more than lip service and extend beyond impressive displays of
placards at street corners. Positive action and results are what count. Certainly, the cause
of human rights is not enhanced when the very constitutional agency tasked to protect and
vindicate human rights is transformed by us, from the start, into a tiger without dentures but
with maimed legs to boot. I submit the CHR should be given a wide latitude to look into and
investigate situations which may (or may not ultimately) involve human rights violations.
ACCORDINGLY, I vote to DISMISS the petition and to remand the case to the CHR for
further
EXPORT PROCESSING ZONE AUTHORITY, petitioner,
vs.THE COMMISSION ON HUMAN RIGHTS, TERESITA VALLES, LORETO ALEDIA
On May 30, 1980, P.D. 1980 was issued reserving and designating certain parcels of land
in Rosario and General Trias, Cavite, as the "Cavite Export Processing Zone" (CEPZ). For
purposes of development, the area was divided into Phases I to IV. A parcel of Phase IV
was bought by Filoil Refinery Corporation, formerly Filoil Industrial Estate, Inc. The same
parcel was later sold by Filoil to the Export Processing Zone Authority (EPZA).

30

Before EPZA could take possession of the area, several individuals had entered the
premises and planted agricultural products therein without permission from EPZA or its
predecessor, Filoil. To convince the intruders to depart peacefully, EPZA, in 1981, paid a
P10,000-financial-assistance to those who accepted the same and signed quitclaims.
Among them were Teresita Valles and Alfredo Aledia, father of respondent Loreto Aledia.

In its comment on the petition, the CHR asked for the immediate lifting of this Court's
restraining order, and for an order restraining petitioner EPZA from doing further acts of
destruction and harassment. The CHR contends that its principal function under Section
18, Art. 13 of the 1987 Constitution, "is not limited to mere investigation" because it is
mandated, among others, to:

Ten years later, on May 10, 1991, respondent Teresita Valles, Loreto Aledia and Pedro
Ordoez filed in the respondent Commission on Human Rights (CHR) a joint complaint
(Pinagsamahang Salaysay) praying for "justice and other reliefs and remedies"
("Katarungan at iba pang tulong"). The CHR conducted an investigation of the complaint.

a.
Investigate, on its own or on complaint by any party, all forms of human rights
violations involving civil and political rights;

According to the CHR, the private respondents, who are farmers, filed in the Commission
on May 10, 1991 a verified complaint for violation of their human rights. They alleged that
on March 20, 1991, at 10:00 o'clock in the morning. Engineer Neron Damondamon, EPZA
Project Engineer, accompanied by his subordinates and members of the 215th PNP
Company, brought a bulldozer and a crane to level the area occupied by the private
respondents who tried to stop them by showing a copy of a letter from the Office of the
President of the Philippines ordering postponement of the bulldozing. However, the letter
was crumpled and thrown to the ground by a member of Damondamon's group who
proclaimed that: "The President in Cavite is Governor Remulla!"
On April 3, 1991, mediamen who had been invited by the private respondents to cover the
happenings in the area were beaten up and their cameras were snatched from them by
members of the Philippine National Police and some government officials and their civilian
followers.
On May 17, 1991, the CHR issued an Order of injunction commanding EPZA, the 125th
PNP Company and Governor Remulla and their subordinates to desist from committing
further acts of demolition, terrorism, and harassment until further orders from the
Commission and to appeal before the Commission on May 27, 1991 at 9:00 a.m. for a
dialogue (Annex A).
On May 25, 1991, two weeks later, the same group accompanied by men of Governor
Remulla, again bulldozed the area. They allegedly handcuffed private respondent Teresita
Valles, pointed their firearms at the other respondents, and fired a shot in the air.
On May 28, 1991, CHR Chairman Mary Concepcion Bautista issued another injunction
Order reiterating her order of May 17, 1991 and expanded it to include the Secretary of
Public Works and Highways, the contractors, and their subordinates. The order reads as
follows:
Considering the sworn statements of the farmers whose farmlands are being bulldozed
and the wanton destruction of their irrigation canals which prevent cultivation at the
farmlands as well as the claim of ownership of the lands by some farmers-complainants,
and their possession and cultivation thereof spanning decades, including the failure of the
officials concerned to comply with the Constitutional provision on the eviction of rural
"squatters", the Commission reiterates its Order of May 17, 1991, and further orders the
Secretary of Public Works and Highways, their Contractors and representatives to refrain
and desist from bulldozing the farmlands of the complainants-farmers who have come to
the Commission for relief, during the pendency of this investigation and to refrain from
further destruction of the irrigation canals in the area until further orders of the
Commission.
This dialogue is reset to June 10, 1991 at 9 00 a.m. and the Secretary of the Department
of Public Works and Highways or his representative is requested to appear. (p. 20, Rollo;
emphasis supplied)
On July 1, 1991, EPZA filed in the CHR a motion to lift the Order of Injunction for lack of
authority to issue injunctive writs and temporary restraining orders.

b.
Adopt its operational guidelines and rules of procedure, and cite for contempt
for violations thereof in accordance with the Rules of Court;
c.
Provide appropriate legal measures for the protection of human rights of all
persons within the Philippines, as well as Filipinos residing abroad, and provide for
preventive measures and legal aid services to the under privileged whose human rights
have been violated or need protection;
d.
Monitor the Philippine Government's compliance with international treaty
obligations on human rights. (Emphasis supplied.) (p. 45, Rollo)
On November 14, 1991, the Solicitor General filed a Manifestation and Motion praying that
he be excused from filing a Comment for the CHR on the ground that the Comment filed by
the latter "fully traversed and squarely met all the issues raised and discussed in the main
Petition for Certiorari and Prohibition" (p. 83, Rollo).
Does the CHR have jurisdiction to issue a writ of injunction or restraining order against
supposed violators of human rights, to compel them to cease and desist from continuing
the acts complained of?
In Hon. Isidro Cario, et al. vs. Commission on Human Rights, et al., G.R No. 96681,
December 2, 1991, we held that the CHR is not a court of justice nor even a quasi-judicial
body.
The most that may be conceded to the Commission in the way of adjudicative power is that
it may investigate, i.e., receive evidence and make findings of fact as regards claimed
human rights violations involving civil and political rights. But fact-finding is not
adjudication, and cannot be likened to the judicial function of a court of justice, or even a
quasi-judicial agency or official. The function of receiving evidence and ascertaining
therefrom the facts of a controversy is not a judicial function, properly speaking. To be
considered such, the faculty of receiving evidence and making factual conclusions in a
controversy must be accompanied by the authority of applying the law to those factual
conclusions to the end that the controversy may be decided or determined authoritatively,
finally and definitely, subject to such appeals or modes of review as may be provided by
law. This function, to repeat, the Commission does not have.
Hence it is that the Commission on Human Rights, having merely the power "to
investigate," cannot and should not "try and resolve on the merits" (adjudicate) the matters
involved in Striking Teachers HRC Case No. 90-775, as it has announced it means to do;
and it cannot do so even if there be a claim that in the administrative disciplinary
proceedings against the teachers in question, initiated and conducted by the DECS, their
human rights, or civil or political rights had been transgressed. More particularly, the
Commission has no power to "resolve on the merits" the question of (a) whether or not the
mass concerted actions engaged in by the teachers constitute a strike and are prohibited
or otherwise restricted by law; (b) whether or not the act of carrying on and taking part in
those actions, and the failure of the teachers to discontinue those actions and return to
their classes despite the order to this effect by the Secretary of Education, constitute
infractions of relevant rules and regulations warranting administrative disciplinary
sanctions, or are justified by the grievances complained of by them; and (c) what were the
particular acts done by each individual teacher and what sanctions, if any, may properly be
imposed for said acts or omissions. (pp. 5 & 8.)

On August 16, 1991, the Commission denied the motion.


On September 11, 1991, the petitioner, through the Government Corporate Counsel, filed
in this Court a special civil action of certiorari and prohibition with a prayer for the issuance
of a restraining order and/or preliminary injunction, alleging that the CHR acted in excess
of its jurisdiction and with grave abuse of discretion in issuing the restraining order and
injunctive writ; that the private respondents have no clear, positive right to be protected by
an injunction; that the CHR abused its discretion in entertaining the private respondent's
complaint because the issue raised therein had been decided by this Court, hence, it is
barred by prior judgment.
On September 19, 1991, this Court issued a temporary restraining order, ordering the CHR
to cease and desist from enforcing and/or implementing the questioned injunction orders.

The constitutional provision directing the CHR to "provide for preventive measures and
legal aid services to the underprivileged whose human rights have been violated or need
protection" may not be construed to confer jurisdiction on the Commission to issue a
restraining order or writ of injunction for, if that were the intention, the Constitution would
have expressly said so. "Jurisdiction is conferred only by the Constitution or by law"
(Oroso, Jr. vs. Court of Appeals, G.R. Nos. 76828-32, 28 January 1991; Bacalso vs.
Ramolete, G.R. No. L-22488, 26 October 1967, 21 SCRA 519). It is never derived by
implication (Garcia, et al. vs. De Jesus, et al., G.R. No. 88158; Tobon Uy vs. Commission
on Election, et al.. G.R. Nos. 97108-09, March 4, 1992).
Evidently, the "preventive measures and legal aid services" mentioned in the Constitution
refer to extrajudicial and judicial remedies (including a preliminary writ of injunction) which
the CHR may seek from the proper courts on behalf of the victims of human rights
violations. Not being a court of justice, the CHR itself has no jurisdiction to issue the writ,

31

for a writ of preliminary injunction may only be issued "by the judge of any court in which
the action is pending [within his district], or by a Justice of the Court of Appeals, or of the
Supreme Court. It may also be granted by the judge of a Court of First Instance [now
Regional Trial Court] in any action pending in an inferior court within his district." (Sec. 2,
Rule 58, Rules of Court). A writ of preliminary injunction is an ancillary remedy. It is
available only in a pending principal action, for the preservation or protection of the rights
and interest of a party thereto, and for no other purpose
WHEREFORE, the petition for certiorari and prohibition is GRANTED. The orders of
injunction dated May 17 and 28, 1991 issued by the respondent Commission on Human
Right are here by ANNULLED and SET ASIDE and the temporary restraining order which
this Court issued on September 19, 1991, is hereby made PERMANENT.
SO ORDERED.
Narvasa, C.J., Melencio-Herrera, Gutierrez, Jr., Cruz, Paras, Bidin, Medialdea, Regalado,
Devide, Jr., Romero and Nocon, JJ., concur.
Feliciano and Bellosillo, JJ., are on leave.
Separate Opinions

Before us is a petition for review on certiorari under Rule 45 of the 1997 Rules of Civil
Procedure, as amended, and Section 191 of the Rule on the Writ of Amparo2 seeking to
set aside the August 17, 20103 and September 6, 20104 Orders of the Regional Trial Court
(RTC), Branch 106 of Quezon City, in Sp. Proc. Case No. Q-10-67604. The RTC had
dismissed petitioners petition for the issuance ofa writ of amparo which petitioner filed in
order for her to regain parental authority and custody of Julian Yusay Caram (Baby Julian),
her biological child, from the respondent officers of the Department of Social Welfare and
Development (DSWD). The factual antecedents as gleaned from the records follow:
Petitioner Ma. Christina Yusay Caram(Christina) had an amorous relationship with
Marcelino Gicano Constantino III (Marcelino) and eventually became pregnant with the
latters child without the benefit of marriage. After getting pregnant, Christina mislead
Marcelino into believing that she had an abortion when in fact she proceeded to complete
the term of her pregnancy. During this time, she intended to have the child adopted
through Sun and Moon Home for Children (Sun and Moon) in Paraaque City to avoid
placing her family ina potentially embarrassing situation for having a second illegitimate
son.5
On July 26, 2009, Christina gavebirth to Baby Julian at Amang Rodriguez Memorial
MedicalCenter, Marikina City.6 Sun and Moon shouldered all the hospital and medical
expenses. On August 13, 2009, Christina voluntarily surrendered Baby Julian by way of a
Deed of Voluntary Commitment7 to the DSWD.

PADILLA, J., concurring:


I dissent for the reasons stated in my separate opinion in Hon. Isidro Carino, et al. vs.
Commission on Human Rights, et al., G. R. No. 96681, 2 December 1991. In addition, it is
my considered view that the CHR has the unquestioned authority in appropriate cases to
"provide for preventive measures and legal aid services to the under privileged whose
human rights have been violated or need protection." (Section 18(c), Article XIII, 1987
Constitution)
If the CHR can not, by itself, issue any cease and desist order in order to maintain the
status quo pending its investigation of cases involving alleged human rights violations, then
it is, in effect, an ineffective instrument for the protection of human rights. I submit that the
CHR, consistent with the intent of the framers of the 1987 Constitution, may issue cease
and desist orders particularly in situations involving a threatened violation of human rights,
which it intends to investigate, and such cease and desist orders may be judicially
challenged like the orders of the other constitutional commissions, which are not courts
of law under Rule 65 of the Rules of Court, on grounds of lack or excess of jurisdiction
or grave abuse of discretion.
ACCORDINGLY, I vote to DISMISS the petition and to remand the case to the CHR for
further proceedings (investigation).
Separate Opinions

On November 26, 2009, Marcelino suffered a heart attack and died8 without knowing
about the birth of his son. Thereafter, during the wake, Christina disclosed to Marcelinos
family that she and the deceased had a son that she gave up for adoption due to financial
distress and initial embarrassment. Marcelinos family was taken aback by the revelation
and sympathized with Christina. After the emotional revelation, they vowed to help her
recover and raise the baby.9 On November 27, 2009, the DSWD, through Secretary
Esperanza I. Cabral issued a certificate10 declaring Baby Julian as "Legally Available for
Adoption." A local matching conference was held on January 27, 2010 and on February 5,
2010, Baby Julian was "matched" with the spouses Vergel and Filomina Medina (Medina
Spouses) of the Kaisahang Bahay Foundation. Supervised trial custody then
commenced.11
On May 5, 2010, Christina who had changed her mind about the adoption, wrote a letter to
the DSWDasking for the suspension of Baby Julians adoption proceedings. She alsosaid
she wanted her family back together.12
On May 28, 2010, the DSWD, through respondent Atty. Marijoy D. Segui, sent a
Memorandum13 to DSWD Assistant Secretary Vilma B. Cabrera informing her that the
certificate declaring Baby Julian legally available for adoption had attained finality on
November 13, 2009, or three months after Christina signed the Deed of Voluntary
Commitment which terminated her parental authority and effectively made Baby Julian a
ward of the State. The said Memorandum was noted by respondent Atty. Sally D. Escutin,
Director IV of the Legal Service, DSWD.

PADILLA, J., concurring:


I dissent for the reasons stated in my separate opinion in Hon. Isidro Carino, et al. vs.
Commission on Human Rights, et al., G. R. No. 96681, 2 December 1991. In addition, it is
my considered view that the CHR has the unquestioned authority in appropriate cases to
"provide for preventive measures and legal aid services to the under privileged whose
human rights have been violated or need protection." (Section 18(c), Article XIII, 1987
Constitution)
If the CHR can not, by itself, issue any cease and desist order in order to maintain the
status quo pending its investigation of cases involving alleged human rights violations, then
it is, in effect, an ineffective instrument for the protection of human rights. I submit that the
CHR, consistent with the intent of the framers of the 1987 Constitution, may issue cease
and desist orders particularly in situations involving a threatened violation of human rights,
which it intends to investigate, and such cease and desist orders may be judicially
challenged like the orders of the other constitutional commissions, which are not courts
of law under Rule 65 of the Rules of Court, on grounds of lack or excess of jurisdiction
or grave abuse of discretion.
ACCORDINGLY, I vote to DISMISS the petition and to remand the case to the CHR for
further proceedings (investigation).
Infant JULIAN YUSA Y CARAM, represented by his mother, MA. CHRISTINA YUSAY
CARAM, Petitioner,
vs. Atty. MARIJOY D. SEGUI, Atty. SALLY D. ESCUTIN, VILMA B. CABRERA, and CELIA
C. YANGCO, Respondents.
DECISION
VILLARAMA, JR., J.:

On July 12, 2010, Noel Gicano Constantino, Marcelinos brother, sent a letter to Atty.
Escutin informing her that a DNA testing was scheduled on July 16, 2010 at the DNA
Analysis Laboratory at the University of the Philippines.14
On July 16, 2010, Assistant Secretary Cabrera sent a letter15 to Noel Constantino stating
that it would not allow Baby Julian to undergo DNA testing. Assistant Secretary Cabrera
informed Noel Constantino that the procedures followed relative to the certification on the
availability of the child for adoption and the childs subsequent placement to prospective
adoptive parents were proper, and that the DSWD was no longer in the position to stop the
adoption process. Assistant Secretary Cabrera further stated that should Christina wish to
reacquire her parental authority over Baby Julian or halt the adoption process, she may
bring the matter to the regular courts as the reglementary period for her to regain her
parental rights had already lapsed under Section 7 of Republic Act (R.A.) No. 9523.16
On July 27, 2010, Christina filed a petition17 for the issuance of a writ of amparo before
the RTC of Quezon City seeking to obtain custody of Baby Julian from Atty. Segui, Atty.
Escutin, Assistant Secretary Cabrera and Acting Secretary Celia C. Yangco, all of the
DSWD.
In her petition, Christina accused respondents of "blackmailing" her into surrendering
custody of her childto the DSWD utilizing what she claims to be an invalid certificate of
availability for adoption which respondents allegedly used as basis to misrepresent that all
legal requisites for adoption of the minor child had been complied with.
Christina argued that by making these misrepresentations, the respondents had acted
beyond the scope of their legal authority thereby causing the enforced disappearance of
the said child and depriving her of her custodial rights and parental authority over him.

32

On the basis of the said petition,the RTC, Branch 106 of Quezon City, through its Presiding
Judge, the Honorable Angelene Mary W. Quimpo-Sale, issued a Writ of Amparo18 on July
28, 2010 commanding the four respondents to produce the body of Baby Julian at a
hearing scheduled on August 4, 2010. Respondents were alsorequired to file their verified
written return to the writ pursuant to Section 919 of the Amparo Rule, within five working
days from the service of the writ.
The respondents complied with the writ and filed their Return20 on August 2, 2010 praying
that the petition be denied for being the improper remedy to avail of in a case relating toa
biological parents custodial rights over her child.
On August 4, 2010, respondents appeared before the RTC but respondents did not bring
the child, stating that threats of kidnapping were made on the child and his caregivers. To
give respondents another chance, the RTC reset the hearing to August 5, 2010.

supposedunconstitutionality or R.A. No. 9523 as Congress has the plenary power to


repeal, alter and modify existing laws29 and A.M. No. 02-6-02-SC functions only as a
means to enforce the provisions of all adoption and adoption-related statutes before the
courts.
Now, in her petition, Christina argues that the life, liberty and security of Baby Julian is
being violated or threatened by the respondent DSWD officers enforcement of an illegal
Deed of Voluntary Commitment between her and Sun and Moon. She claims thatshe had
been "blackmailed" through the said Deed by the DSWD officers and Sun and Moons
representatives into surrendering her child thereby causing the "forced separation" of the
said infant from his mother. Furthermore, she also reiterates that the respondent DSWD
officers acted beyond the scope of their authority when they deprived her of Baby Julians
custody.30
The Court rejects petitioners contentions and denies the petition.

At the August 5, 2010 hearing, the Office of the Solicitor General (OSG) entered its
appearance as representative of the State and prayed that its lawyers be given time to file
their memorandum or position paper in this case. In turn, the RTC acknowledged the
appearance of the OSG and allowed its representatives to actively participate in the
arguments raised during the said hearing. Relative to the matter of the parties submitting
additional pleadings, Judge Sale narrowed the issues to be discussed by providing for the
following guidelines, thus:

Section 1 of the Rule on the Writ of Amparo provides as follows:


SECTION 1. Petition. The petition for a writ of amparois a remedy available to any
person whose right to life, liberty and security is violated or threatened with violation by an
unlawful actor omission of a public official or employee, or of a private individual or entity.
The writ shall cover extralegal killings and enforced disappearances or threats thereof.

To abbreviate the proceedings, in view of all the manifestations and counter-manifestations


made by the counsels, the court enjoined the parties to file their respective position papers
on the following issues:
1. Whether or not this court has jurisdiction over the instant case;
2. Whether or not this petition isthe proper remedy based on the facts of the case and
prayer in the petition; and
3. Whether or not the prayer in the petition should be granted and custody of the child be
given to his biological mother.
The parties were given five (5) days from today to file their respective position papers
based on these three main issues. They may include other related issues they deem
essential for the resolution of this case. Set this case for further hearing, if necessary, on
August 18, 2010 at 9:00 a.m.21
In the same order, Judge Sale alsoacknowledged that the child subject of the case was
brought before the court and the petitioner was allowed to see him and take photographs
of him.
On August 17, 2010, the RTC dismissed the petition for issuance of a writ of amparo
without prejudice to the filing of the appropriate action in court. The RTC held that Christina
availed of the wrong remedy to regain custody of her child Baby Julian.22 The RTC further
stated that Christina should have filed a civil case for custody of her child as laid down in
the Family Code and the Rule on Custody of Minors and Writ of Habeas Corpus in
Relation to Custody of Minors. If there is extreme urgency to secure custody of a minor
who has been illegallydetained by another, a petition for the issuance of a writ of habeas
corpus may be availed of, either as a principal or ancillary remedy, pursuant to the Rule on
Custody of Minors and Writ of Habeas Corpus inRelation to Custody of Minors.23
On August 20, 2010, Christina filed a motion for reconsideration24 arguing that since the
RTC assumed jurisdiction of the petition for the issuance of a writ of amparo, the latter is
duty-bound to dispose the case on the merits.25 The RTC, however, deniedChristinas
motion for reconsideration on September 6, 2010 maintaining that the latter availed of the
wrong remedy and that the Supreme Court intended the writ of amparo to address the
problem of extrajudicial killings and enforced disappearances.26
On September 28, 2010, Christina directly elevated the case before this Court, via a
petition for review on certiorari under Rule 45 of the 1997 Rules of Civil Procedure, as
amended, in relation to Section 19 of the Rule on the Writ of Amparo. In her petition,
Christina prayed that the Court (1) set aside the August 17, 2010 and September 6, 2010
Orders of the RTC, (2) declare R.A. No. 9523 unconstitutional for being contrary to A.M.
No. 02-6-02-SC,27 which was promulgated by the Supreme Court, and for violating the
doctrine of separation of powers, (3) declare the "enforced separation" between her and
Baby Julian as violative of her rights to life, liberty and security, and (4) grant her the
privilege of availing the benefits of a writ of amparo so she could be reunited with her
son.28
The only relevant issue presented before the Court worthy of attention is whether a petition
for a writ of amparo is the proper recourse for obtaining parental authority and custody of a
minor child. This Court will not belabor to discuss Christinas argumentsrelating to the

In the landmark case of Secretary of National Defense, et al. v. Manalo, et al.,31 this Court
held:
[T]he AmparoRule was intended to address the intractable problem of "extralegal killings"
and "enforced disappearances," its coverage, in its present form, is confined to these two
instances or to threats thereof. "Extralegal killings" are "killings committed without due
process of law, i.e., without legal safeguards or judicial proceedings." On the other hand,
"enforced disappearances" are "attended by the following characteristics: an arrest,
detention or abduction of a person by a government official or organized groupsor private
individuals acting with the direct or indirect acquiescence of the government; the refusal of
the State to disclose the fate or whereabouts of the person concerned or a refusal to
acknowledge the deprivation of liberty which places such persons outside the protection of
law.
This pronouncement on the coverage of the writ was further cemented in the latter case of
Lozada, Jr. v. Macapagal-Arroyo32 where this Court explicitly declared that as it stands,
the writ of amparo is confined only to cases of extrajudicial killings and enforced
disappearances, or to threats thereof. As to what constitutes "enforced disappearance," the
Court in Navia v. Pardico33 enumerated the elementsconstituting "enforced
disappearances" as the term is statutorily defined in Section 3(g) of R.A. No. 985134 to wit:
(a) that there be an arrest, detention, abduction or any form of deprivation of liberty;
(b) that it be carried out by, or with the authorization, support or acquiescence of, the State
ora political organization;
(c) that it be followed by the State or political organizations refusal to acknowledge or give
information on the fate or whereabouts of the person subject of the amparopetition; and,
(d) that the intention for such refusal isto remove subject person from the protection of the
law for a prolonged period of time.1wphi1
In this case, Christina alleged that the respondent DSWD officers caused her "enforced
separation" from Baby Julian and that their action amounted to an "enforced
disappearance" within the context of the Amparo rule. Contrary to her position, however,
the respondent DSWD officers never concealed Baby Julian's whereabouts. In fact,
Christina obtained a copy of the DSWD's May 28, 2010 Memorandum35 explicitly stating
that Baby Julian was in the custody of the Medina Spouses when she filed her petition
before the RTC. Besides, she even admitted in her petition for review on certiorari that the
respondent DSWD officers presented Baby Julian before the RTC during the hearing held
in the afternoon of August 5, 2010.36 There is therefore, no "enforced disappearance" as
used in the context of the Amparo rule as the third and fourth elements are missing.
Christina's directly accusing the respondents of forcibly separating her from her child and
placing the latter up for adoption, supposedly without complying with the necessary legal
requisites to qualify the child for adoption, clearly indicates that she is not searching for a
lost child but asserting her parental authority over the child and contesting custody over
him.37 Since it is extant from the pleadings filed that what is involved is the issue of child
custody and the exercise of parental rights over a child, who, for all intents and purposes,
has been legally considered a ward of the State, the Amparo rule cannot be properly
applied.

33

To reiterate, the privilege of the writ of amparo is a remedy available to victims of extrajudicial killings and enforced disappearances or threats of a similar nature, regardless of
whether the perpetrator of the unlawful act or omission is a public official or employee or a
private individual. It is envisioned basically to protect and guarantee the right to life, liberty
and security of persons, free from fears and threats that vitiate the quality of life.
WHEREFORE, the petition is DENIED. The August 17, 2010 and September 6, 2010
Orders of the Regional Trial Court, Branch 106, Quezon City in Sp. Proc. Case No. Q-1067604 are AFFIRMED without prejudice to petitioner's right to avail of proper legal
remedies afforded to her by law and related rules.
EDGARDO NAVIA,[1] RUBEN
G.R. No. 184467
DIO,[2] and ANDREW BUISING,
PetitionersPresent- versus - BERSAMIN,DEL CASTILLO,ABAD,
REYES, and
VIRGINIA PARDICO, for and in
PERLAS-BERNABE, JJ.
behalf and in representation of
BENHUR V. PARDICO
x-------------------------------------------------For the protective writ of amparo to issue in enforced disappearance cases, allegation and
proof that the persons subject thereof are missing are not enough. It must also be shown
by the required quantum of proof that their disappearance was carried out by, or with the
authorization, support or acquiescence of, [the government] or a political organization,
followed by a refusal to acknowledge [the same or] give information on the fate or
whereabouts of [said missing] persons.[3]
This petition for review on certiorari[4] filed in relation to Section 19 of A.M. No. 07-9-12SC[5] challenges the July 24, 2008 Decision[6] of the Regional Trial Court (RTC), Branch
20, Malolos City which granted the Petition for Writ of Amparo[7] filed by herein respondent
against the petitioners.
Factual Antecedents
On March 31, 2008, at around 8:30 p.m., a vehicle of Asian Land Strategies Corporation[8]
(Asian Land) arrived at the house of Lolita M. Lapore (Lolita) located at 7A Lot 9, Block 54,
Grand Royale Subdivision, Barangay Lugam, Malolos City. The arrival of the vehicle
awakened Lolitas son, Enrique Lapore (Bong), and Benhur Pardico (Ben), who were then
both staying in her house. When Lolita went out to investigate, she saw two uniformed
guards disembarking from the vehicle. One of them immediately asked Lolita where they
could find her son Bong. Before Lolita could answer, the guard saw Bong and told him that
he and Ben should go with them to the security office of Asian Land because a complaint
was lodged against them for theft of electric wires and lamps in the subdivision.[9]
Shortly thereafter, Bong, Lolita and Ben were in the office of the security department of
Asian Land also located in Grand Royale Subdivision.[10] The supervisor of the security
guards, petitioner Edgardo Navia (Navia), also arrived thereat.
As to what transpired next, the parties respective versions diverge.
Version of the Petitioners
Petitioners alleged that they invited Bong and Ben to their office because they received a
report from a certain Mrs. Emphasis, a resident of Grand Royale Subdivision, that she saw
Bong and Ben removing a lamp from a post in said subdivision.[11] The reported
unauthorized taking of the lamp was relayed thru radio to petitioners Ruben Dio (Dio) and
Andrew Buising (Buising), who both work as security guards at the Asian Land security
department. Following their departments standard operating procedure, Dio and Buising
entered the report in their logbook and proceeded to the house of Mrs. Emphasis. It was
there where Dio and Buising were able to confirm who the suspects were. They thus
repaired to the house of Lolita where Bong and Ben were staying to invite the two suspects
to their office. Bong and Ben voluntarily went with them.
At the security office, Dio and Buising interviewed Bong and Ben. The suspects admitted
that they took the lamp but clarified that they were only transferring it to a post nearer to
the house of Lolita.[12] Soon, Navia arrived and Buising informed him that the complainant
was not keen in participating in the investigation. Since there was no complainant, Navia
ordered the release of Bong and Ben. Bong then signed a statement to the effect that the
guards released him without inflicting any harm or injury to him.[13] His mother Lolita also

signed the logbook below an entry which states that she will never again harbor or
entertain Ben in her house. Thereafter, Lolita and Bong left the security office.
Ben was left behind as Navia was still talking to him about those who might be involved in
the reported loss of electric wires and lamps within the subdivision. After a brief discussion
though, Navia allowed Ben to leave. Ben also affixed his signature on the logbook to affirm
the statements entered by the guards that he was released unharmed and without any
injury.[14]
Upon Navias instructions, Dio and Buising went back to the house of Lolita to make her
sign the logbook as witness that they indeed released Ben from their custody. Lolita asked
Buising to read aloud that entry in the logbook where she was being asked to sign, to
which Buising obliged. Not contented, Lolita put on her reading glasses and read the entry
in the logbook herself before affixing her signature therein. After which, the guards left.
Subsequently, petitioners received an invitation[15] from the Malolos City Police Station
requesting them to appear thereat on April 17, 2008 relative to the complaint of Virginia
Pardico (Virginia) about her missing husband Ben. In compliance with the invitation, all
three petitioners appeared at the Malolos City Police Station. However, since Virginia was
not present despite having received the same invitation, the meeting was reset to April 22,
2008.[16]
On April 22, 2008, Virginia attended the investigation. Petitioners informed her that they
released Ben and that they have no information as to his present whereabouts.[17] They
assured Virginia though that they will cooperate and help in the investigation of her missing
husband.[18]
Version of the Respondent
According to respondent, Bong and Ben were not merely invited. They were unlawfully
arrested, shoved into the Asian Land vehicle and brought to the security office for
investigation. Upon seeing Ben at the security office, Navia lividly grumbled Ikaw na
naman?[19] and slapped him while he was still seated. Ben begged for mercy, but his
pleas were met with a flurry of punches coming from Navia hitting him on different parts of
his body.[20] Navia then took hold of his gun, looked at Bong, and said, Wala kang nakita
at wala kang narinig, papatayin ko na si Ben.[21]
Bong admitted that he and Ben attempted to take the lamp. He explained that the area
where their house is located is very dark and his father had long been asking the
administrator of Grand Royale Subdivision to install a lamp to illumine their area. But since
nothing happened, he took it upon himself to take a lamp from one of the posts in the
subdivision and transfer it to a post near their house. However, the lamp Bong got was no
longer working. Thus, he reinstalled it on the post from which he took it and no longer
pursued his plan. [22]
Later on, Lolita was instructed to sign an entry in the guards logbook where she undertook
not to allow Ben to stay in her house anymore.[23] Thereafter, Navia again asked Lolita to
sign the logbook. Upon Lolitas inquiry as to why she had to sign again, Navia explained
that they needed proof that they released her son Bong unharmed but that Ben had to stay
as the latters case will be forwarded to the barangay. Since she has poor eyesight, Lolita
obligingly signed the logbook without reading it and then left with Bong.[24] At that
juncture, Ben grabbed Bong and pleaded not to be left alone. However, since they were
afraid of Navia, Lolita and Bong left the security office at once leaving Ben behind.[25]
Moments after Lolita and Bong reached their house, Buising arrived and asked Lolita to
sign the logbook again. Lolita asked Buising why she had to sign again when she already
twice signed the logbook at the headquarters. Buising assured her that what she was
about to sign only pertains to Bongs release. Since it was dark and she has poor eyesight,
Lolita took Buisings word and signed the logbook without, again, reading what was written
in it. [26]
The following morning, Virginia went to the Asian Land security office to visit her husband
Ben, but only to be told that petitioners had already released him together with Bong the
night before. She then looked for Ben, asked around, and went to the barangay. Since she
could not still find her husband, Virginia reported the matter to the police.
In the course of the investigation on Bens disappearance, it dawned upon Lolita that
petitioners took advantage of her poor eyesight and naivete. They made her sign the
logbook as a witness that they already released Ben when in truth and in fact she never
witnessed his actual release. The last time she saw Ben was when she left him in
petitioners custody at the security office.[27]

34

Exasperated with the mysterious disappearance of her husband, Virginia filed a Petition for
Writ of Amparo[28] before the RTC of Malolos City. Finding the petition sufficient in form
and substance, the amparo court issued an Order[29] dated June 26, 2008 directing,
among others, the issuance of a writ of amparo and the production of the body of Ben
before it on June 30, 2008. Thus:
WHEREFORE, conformably with Section 6 of the Supreme Court Resolution [in] A.M. No.
07-[9]-12-SC, also known as The Rule On The Writ Of Amparo, let a writ of amparo be
issued, as follows:
(1)
ORDERING [petitioners] Edgardo Navia, Ruben Dio and Andrew Buising of the
Asian Land Security Agency to produce before the Court the body of aggrieved party
Benhur Pardico, on Monday, June 30, 2008, at 10:30 a.m.;

(b)
To hereby direct the NBI to extend to the family of [Benhur] Pardico and the
witnesses who testified in this case protection as it may deem necessary to secure their
safety and security; and
(c)
To hereby direct the Office of the Provincial Prosecutor of Bulacan to investigate
the circumstances concerning the legality of the arrest of [Benhur] Pardico by the
[petitioners] in this case, utilizing in the process, as part of said investigation, the pertinent
documents and admissions forming part of the record of this case, and take whatever
course/s of action as may be warranted.
Furnish immediately copies of this decision to the NBI, through the Office of Director
Nestor Mantaring, and to the Provincial Prosecutor of Bulacan.
SO ORDERED.[36]

(2)
ORDERING the holding of a summary hearing of the petition on the
aforementioned date and time, and DIRECTING the [petitioners] to personally appear
thereat;
(3)
COMMANDING [petitioners] Edgardo Navia, Ruben Dio and Andrew Buising to
file, within a non-extendible period of seventy-two (72) hours from service of the writ, a
verified written return with supporting affidavits which shall, among other things, contain
the following:
a) The lawful defenses to show that the [petitioners] did not violate or threaten with
violation the right to life, liberty and security of the aggrieved party, through any act or
omission;
b)
The steps or actions taken by the [petitioners] to determine the fate or
whereabouts of the aggrieved party and the person or persons responsible for the threat,
act or omission; and
c)
All relevant information in the possession of the [petitioners] pertaining to the
threat, act or omission against the aggrieved party.
(4)
GRANTING, motu proprio, a Temporary Protection Order prohibiting the
[petitioners], or any persons acting for and in their behalf, under pain of contempt, from
threatening, harassing or inflicting any harm to [respondent], his immediate family and any
[member] of his household.
The Branch Sheriff is directed to immediately serve personally on the [petitioners], at their
address indicated in the petition, copies of the writ as well as this order, together with
copies of the petition and its annexes.[30]

A Writ of Amparo[31] was accordingly issued and served on the petitioners on June 27,
2008.[32] On June 30, 2008, petitioners filed their Compliance[33] praying for the denial of
the petition for lack of merit.
A summary hearing was thereafter conducted. Petitioners presented the testimony of
Buising, while Virginia submitted the sworn statements[34] of Lolita and Enrique which the
two affirmed on the witness stand.
Ruling of the Regional Trial Court
On July 24, 2008, the trial court issued the challenged Decision[35] granting the petition. It
disposed as follows:
WHEREFORE, the Court hereby grants the privilege of the writ of amparo, and deems it
proper and appropriate, as follows:
(a)
To hereby direct the National Bureau of Investigation (NBI) to immediately
conduct a deep and thorough investigation of the [petitioners] Edgardo Navia, Ruben Dio
and Andrew Buising in connection with the circumstances surrounding the disappearance
of [Benhur] Pardico, utilizing in the process, as part of the investigation, the documents
forming part of the records of this case;

Petitioners filed a Motion for Reconsideration[37] which was denied by the trial court in an
Order[38] dated August 29, 2008.
Hence, this petition raising the following issues for our consideration:
4.1. WHETHER X X X THE HONORABLE TRIAL COURT GRAVELY ERRED IN RULING
THAT RESPONDENT IS ENTITLED TO THE PRIVILEGE OF THE WRIT OF AMPARO.
4.1.1. WHETHER X X X RESPONDENT WAS ABLE TO ESTABLISH THAT PETITIONERS
HAVE COMMITTED OR ARE COMMITTING ACTS IN VIOLATION OF HER HUSBANDS
RIGHT TO LIFE, LIBERTY, OR SECURITY.
4.1.2. WHETHER X X X RESPONDENT SUFFICIENTLY ESTABLISHED THE FACT OF
THE DISAPPEARANCE OF BENHUR PARDICO.
4.1.3. WHETHER X X X RESPONDENT WAS ABLE TO ESTABLISH THAT THE
ALLEGED DISAPPEARANCE OF BENHUR PARDICO WAS AT THE INSTANCE OF
HEREIN PETITIONERS.[39]
Petitioners Arguments

Petitioners essentially assail the sufficiency of the amparo petition. They contend that the
writ of amparo is available only in cases where the factual and legal bases of the violation
or threatened violation of the aggrieved partys right to life, liberty and security are clear.
Petitioners assert that in the case at bench, Virginia miserably failed to establish all these.
First, the petition is wanting on its face as it failed to state with some degree of specificity
the alleged unlawful act or omission of the petitioners constituting a violation of or a threat
to Bens right to life, liberty and security. And second, it cannot be deduced from the
evidence Virginia adduced that Ben is missing; or that petitioners had a hand in his alleged
disappearance. On the other hand, the entries in the logbook which bear the signatures of
Ben and Lolita are eloquent proof that petitioners released Ben on March 31, 2008 at
around 10:30 p.m. Petitioners thus posit that the trial court erred in issuing the writ and in
holding them responsible for Bens disappearance.
Our Ruling
Virginias Petition for Writ of Amparo is fatally defective and must perforce be dismissed,
but not for the reasons adverted to by the petitioners.
A.M. No. 07-9-12-SC or The Rule on the Writ of Amparo was promulgated to arrest the
rampant extralegal killings and enforced disappearances in the country. Its purpose is to
provide an expeditious and effective relief to any person whose right to life, liberty and
security is violated or threatened with violation by an unlawful act or omission of a public
official or employee, or of a private individual or entity. [40]
Here, Bens right to life, liberty and security is firmly settled as the parties do not dispute his
identity as the same person summoned and questioned at petitioners security office on the
night of March 31, 2008. Such uncontroverted fact ipso facto established Bens inherent
and constitutionally enshrined right to life, liberty and security. Article 6[41] of the
International Covenant on Civil and Political Rights[42] recognizes every human beings
inherent right to life, while Article 9[43] thereof ordains that everyone has the right to liberty
and security. The right to life must be protected by law while the right to liberty and security
cannot be impaired except on grounds provided by and in accordance with law. This

35

overarching command against deprivation of life, liberty and security without due process
of law is also embodied in our fundamental law.[44]
The pivotal question now that confronts us is whether Bens disappearance as alleged in
Virginias petition and proved during the summary proceedings conducted before the court
a quo, falls within the ambit of A.M. No. 07-9-12-SC and relevant laws.
It does not. Section 1 of A.M. No. 07-9-12-SC provides:
SECTION 1. Petition. The petition for a writ of amparo is a remedy available to any person
whose right to life, liberty and security is violated or threatened with violation by an
unlawful act or omission of a public official or employee, or of a private individual or entity.
The writ shall cover extralegal killings and enforced disappearances or threats thereof.
(Emphasis ours.)

While Section 1 provides A.M. No. 07-9-12-SCs coverage, said Rules does not, however,
define extralegal killings and enforced disappearances. This omission was intentional as
the Committee on Revision of the Rules of Court which drafted A.M. No. 07-9-12-SC chose
to allow it to evolve through time and jurisprudence and through substantive laws as may
be promulgated by Congress.[45] Then, the budding jurisprudence on amparo blossomed
in Razon, Jr. v. Tagitis[46] when this Court defined enforced disappearances. The Court in
that case applied the generally accepted principles of international law and adopted the
International Convention for the Protection of All Persons from Enforced Disappearances
definition of enforced disappearances, as the arrest, detention, abduction or any other form
of deprivation of liberty by agents of the State or by persons or groups of persons acting
with the authorization, support or acquiescence of the State, followed by a refusal to
acknowledge the deprivation of liberty or by concealment of the fate or whereabouts of the
disappeared person, which place such a person outside the protection of the law.[47]
Not long thereafter, another significant development affecting A.M. No. 07-9-12-SC came
about after Congress enacted Republic Act (RA) No. 9851[48] on December 11, 2009.
Section 3(g) thereof defines enforced or involuntary disappearances as follows:
(g) "Enforced or involuntary disappearance of persons" means the arrest, detention, or
abduction of persons by, or with the authorization, support or acquiescence of, a State or a
political organization followed by a refusal to acknowledge that deprivation of freedom or to
give information on the fate or whereabouts of those persons, with the intention of
removing from the protection of the law for a prolonged period of time.

Then came Rubrico v. Macapagal-Arroyo[49] where Justice Arturo D. Brion wrote in his
Separate Opinion that with the enactment of RA No. 9851, the Rule on the Writ of Amparo
is now a procedural law anchored, not only on the constitutional rights to the rights to life,
liberty and security, but on a concrete statutory definition as well of what an enforced or
involuntary disappearance is.[50] Therefore, A.M. No. 07-9-12-SCs reference to enforced
disappearances should be construed to mean the enforced or involuntary disappearance
of persons contemplated in Section 3(g) of RA No. 9851. Meaning, in probing enforced
disappearance cases, courts should read A.M. No. 07-9-12-SC in relation to RA No. 9851.
From the statutory definition of enforced disappearance, thus, we can derive the following
elements that constitute it:
(a)

that there be an arrest, detention, abduction or any form of deprivation of liberty;

(b)
that it be carried out by, or with the authorization, support or acquiescence of, the
State or a political organization;
(c)
that it be followed by the State or political organizations refusal to acknowledge or
give information on the fate or whereabouts of the person subject of the amparo petition;
and,
(d)
that the intention for such refusal is to remove subject person from the protection
of the law for a prolonged period of time.

As thus dissected, it is now clear that for the protective writ of amparo to issue, allegation
and proof that the persons subject thereof are missing are not enough. It must also be
shown and proved by substantial evidence that the disappearance was carried out by, or
with the authorization, support or acquiescence of, the State or a political organization,
followed by a refusal to acknowledge the same or give information on the fate or
whereabouts of said missing persons, with the intention of removing them from the
protection of the law for a prolonged period of time. Simply put, the petitioner in an amparo
case has the burden of proving by substantial evidence the indispensable element of
government participation.
In the present case, we do not doubt Bongs testimony that Navia had a menacing attitude
towards Ben and that he slapped and inflicted fistic blows upon him. Given the
circumstances and the pugnacious character of Navia at that time, his threatening
statement, Wala kang nakita at wala kang narinig, papatayin ko na si Ben, cannot be taken
lightly. It unambiguously showed his predisposition at that time. In addition, there is nothing
on record which would support petitioners assertion that they released Ben on the night of
March 31, 2008 unscathed from their wrath. Lolita sufficiently explained how she was
prodded into affixing her signatures in the logbook without reading the entries therein. And
so far, the information petitioners volunteered are sketchy at best, like the alleged
complaint of Mrs. Emphasis who was never identified or presented in court and whose
complaint was never reduced in writing.
But lest it be overlooked, in an amparo petition, proof of disappearance alone is not
enough. It is likewise essential to establish that such disappearance was carried out with
the direct or indirect authorization, support or acquiescence of the government. This
indispensable element of State participation is not present in this case. The petition does
not contain any allegation of State complicity, and none of the evidence presented tend to
show that the government or any of its agents orchestrated Bens disappearance. In fact,
none of its agents, officials, or employees were impleaded or implicated in Virginias
amparo petition whether as responsible or accountable persons.[51] Thus, in the absence
of an allegation or proof that the government or its agents had a hand in Bens
disappearance or that they failed to exercise extraordinary diligence in investigating his
case, the Court will definitely not hold the government or its agents either as responsible or
accountable persons.
We are aware that under Section 1 of A.M. No. 07-9-12-SC a writ of amparo may lie
against a private individual or entity. But even if the person sought to be held accountable
or responsible in an amparo petition is a private individual or entity, still, government
involvement in the disappearance remains an indispensable element. Here, petitioners are
mere security guards at Grand Royale Subdivision in Brgy. Lugam, Malolos City and their
principal, the Asian Land, is a private entity. They do not work for the government and
nothing has been presented that would link or connect them to some covert police, military
or governmental operation. As discussed above, to fall within the ambit of A.M. No. 07-912-SC in relation to RA No. 9851, the disappearance must be attended by some
governmental involvement. This hallmark of State participation differentiates an enforced
disappearance case from an ordinary case of a missing person.
WHEREFORE, the July 24, 2008 Decision of the Regional Trial Court, Branch 20, Malolos
City, is REVERSED and SET ASIDE. The Petition for Writ of Amparo filed by Virginia
Pardico is hereby DISMISSED.
ARMANDO Q. CANLAS, MIGUEL D. CAPISTRANO, MARRIETA PIA,
Petitioners,
versu
NAPICO HOMEOWNERS ASSN., I XIII, INC., ET AL.,
Respondents.
G.R. No. 182795
June 5, 2008
x------------------------------------------------------------------------------------------THE present petition filed on May 26, 2008 seeks the issuance of a Writ of Amparo upon
the following premise:
Petitioners were deprived of their liberty, freedom and/or rights to shelter enshrined and
embodied in our Constitution, as the result of these nefarious activities of both the Private
and Public Respondents. This ardent request filed before this Honorable Supreme Court is
the only
solution to this problem via this newly advocated principles incorporated in the Rules the
RULE ON THE WRIT OF AMPARO.[1]

36

It appears that petitioners are settlers in a certain parcel of land situated in Barangay
Manggahan, Pasig City. Their dwellings/houses have either been demolished as of the
time of filing of the petition, or is about to be demolished pursuant to a court judgment.
While they attempted to focus on issuance of what they claimed to be fraudulent and
spurious land titles, to wit:
Petitioners herein are desirous to help the government, the best way they can, to unearth
these so-called syndicates clothed with governmental functions, in cahoots with the
squatting syndicates - - - - the low so defines. If only to give its proper meanings, the
Government must be the first one to cleans (sic) its ranks from these unscrupulous political
protges. If unabated would certainly ruin and/or destroy the efficacy of the Torrens System
of land registration in this Country. It is therefore the ardent initiatives of the herein
Petitioners, by way of the said prayer for the issuance of the Writ of Amparo, that these
unprincipled Land Officials be summoned to answer their participation in the issuances of
these fraudulent and spurious titles, NOW, in the hands of the Private Respondents. The
Courts of Justice, including this Honorable Supreme Court, are likewise being made to
believe that said titles in the possession of the Private Respondents were issued untainted
with frauds.[2]
what the petition ultimately seeks is the reversal of this Courts dismissal of petitions in G.R.
Nos. 177448, 180768, 177701, 177038, thus:
That, Petitioners herein knew before hand that: there can be no motion for reconsideration
for the second or third time to be filed before this Honorable Supreme Court. As such
therefore, Petitioners herein are aware of the opinion that this present petition should not in
any way be treated as such motions fore reconsideration. Solely, this petition is only for the
possible issuance of the writ of amparo, although it might affect the previous rulings of this
Honorable Supreme Court in these cases, G.R. Nos. 177448, 180768, 177701 and
177038. Inherent in the powers of the Supreme Court of the Philippines is to modify,
reverse and set aside, even its own previous decision, that can not be thwarted nor
influenced by any one, but, only on the basis of merits and evidence. This is the purpose of
this petition for the Writ of Amparo.[3]
We dismiss the petition.
The Rule on the Writ of Amparo provides:
SECTION 1. Petition. The petition for a writ of amparo is a remedy available to any person
whose right to life, liberty and security is violated or threatened with violation by an
unlawful act or omission of a public official or employee, or of a private individual or entity.
The writ shall cover extralegal killings and enforced disappearances or threats thereof.
(Emphasis supplied.)

The threatened demolition of a dwelling by virtue of a final judgment of the court, which in
this case was affirmed with finality by this Court in G.R. Nos. 177448, 180768, 177701,
177038, is not included among the enumeration of rights as stated in the above-quoted
Section 1 for which the remedy of a writ of amparo is made available. Their claim to their
dwelling, assuming they still have any despite the final and executory judgment adverse to
them, does not constitute right to life, liberty and security. There is, therefore, no legal
basis for the issuance of the writ of amparo.
Besides, the factual and legal basis for petitioners claim to the land in question is not
alleged in the petition at all. The Court can only surmise that these rights and interest had
already been threshed out and settled in the four cases cited above. No writ of amparo
may be issued unless there is a clear allegation of the supposed factual and legal basis of
the right sought to be protected.
Under Section 6 of the same rules, the court shall issue the writ upon the filing of the
petition, only if on its face, the court ought to issue said writ.
SECTION 6. Issuance of the Writ. Upon the filing of the petition, the court, justice or judge
shall immediately order the issuance of the writ if on its face it ought to issue. The clerk of
court shall issue the writ under the seal of the court; or in case of urgent necessity, the
justice or the judge may issue the writ under his or her own hand, and may deputize any
officer or person to serve it.

The writ shall also set the date and time for summary hearing of the petition which shall not
be later than seven (7) days from the date of its issuance.
Considering that there is no legal basis for its issuance, as in this case, the writ will not be
issued and the petition will be dismissed outright.
This new remedy of writ of amparo which is made available by this Court is intended for
the protection of the highest possible rights of any person, which is his or her right to life,
liberty and security. The Court will not spare any time or effort on its part in order to give
priority to petitions of this nature. However, the Court will also not waste its precious time
and effort on matters not covered by the writ.
WHEREFORE, the petition is DISMISSED.
THE SECRETARY OF NATIONAL DEFENSE, THE CHIEF OF STAFF, ARMED FORCES
OF THE PHILIPPINES,
Petitioners,
- versus - RAYMOND MANALO and REYNALDO MANALO,
Respondents.
x- - -- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - PUNO, C.J.:
While victims of enforced disappearances are separated from the rest of the world behind
secret walls, they are not separated from the constitutional protection of their basic rights.
The constitution is an overarching sky that covers all in its protection. The case at bar
involves the rights to life, liberty and security in the first petition for a writ of amparo filed
before this Court.
This is an appeal via Petition for Review under Rule 45 of the Rules of Court in relation to
Section 19[1] of the Rule on the Writ of Amparo, seeking to reverse and set aside on both
questions of fact and law, the Decision promulgated by the Court of Appeals in C.A. G.R.
AMPARO No. 00001, entitled Raymond Manalo and Reynaldo Manalo, petitioners, versus
The Secretary of National Defense, the Chief of Staff, Armed Forces of the Philippines,
respondents.
This case was originally a Petition for Prohibition, Injunction, and Temporary Restraining
Order (TRO)[2] filed before this Court by herein respondents (therein petitioners) on
August 23, 2007 to stop herein petitioners (therein respondents) and/or their officers and
agents from depriving them of their right to liberty and other basic rights. Therein
petitioners also sought ancillary remedies, Protective Custody Orders, Appointment of
Commissioner, Inspection and Access Orders, and all other legal and equitable reliefs
under Article VIII, Section 5(5)[3] of the 1987 Constitution and Rule 135, Section 6 of the
Rules of Court. In our Resolution dated August 24, 2007, we (1) ordered the Secretary of
the Department of National Defense and the Chief of Staff of the AFP, their agents,
representatives, or persons acting in their stead, including but not limited to the Citizens
Armed Forces Geographical Unit (CAFGU) to submit their Comment; and (2) enjoined
them from causing the arrest of therein petitioners, or otherwise restricting, curtailing,
abridging, or depriving them of their right to life, liberty, and other basic rights as
guaranteed under Article III, Section 1[4] of the 1987 Constitution.[5]
While the August 23, 2007 Petition was pending, the Rule on the Writ of Amparo took
effect on October 24, 2007. Forthwith, therein petitioners filed a Manifestation and
Omnibus Motion to Treat Existing Petition as Amparo Petition, to Admit Supporting
Affidavits, and to Grant Interim and Final Amparo Reliefs. They prayed that: (1) the petition
be considered a Petition for the Writ of Amparo under Sec. 26[6] of the Amparo Rule; (2)
the Court issue the writ commanding therein respondents to make a verified return within
the period provided by law and containing the specific matter required by law; (3) they be
granted the interim reliefs allowed by the Amparo Rule and all other reliefs prayed for in the
petition but not covered by the Amparo Rule; (4) the Court, after hearing, render judgment
as required in Sec. 18[7] of the Amparo Rule; and (5) all other just and equitable reliefs.[8]
On October 25, 2007, the Court resolved to treat the August 23, 2007 Petition as a petition
under the Amparo Rule and further resolved, viz:
WHEREFORE, let a WRIT OF AMPARO be issued to respondents requiring them to file
with the CA (Court of Appeals) a verified written return within five (5) working days from
service of the writ. We REMAND the petition to the CA and designate the Division of
Associate Justice Lucas P. Bersamin to conduct the summary hearing on the petition on
November 8, 2007 at 2:00 p.m. and decide the petition in accordance with the Rule on the
Writ of Amparo.[9]
On December 26, 2007, the Court of Appeals rendered a decision in favor of therein
petitioners (herein respondents), the dispositive portion of which reads, viz:
ACCORDINGLY, the PRIVILEGE OF THE WRIT OF AMPARO is GRANTED.

37

The respondents SECRETARY OF NATIONAL DEFENSE and AFP CHIEF OF STAFF are
hereby REQUIRED:

got drunk, they also manhandled respondents. During this time, Raymond was fed only at
night, usually with left-over and rotten food.[17]

1.
To furnish to the petitioners and to this Court within five days from notice of this
decision all official and unofficial reports of the investigation undertaken in connection with
their case, except those already on file herein;

On the third week of respondents detention, two men arrived while Raymond was sleeping
and beat him up. They doused him with urine and hot water, hit his stomach with a piece of
wood, slapped his forehead twice with a .45 pistol, punched him on the mouth, and burnt
some parts of his body with a burning wood. When he could no longer endure the torture
and could hardly breathe, they stopped. They then subjected Reynaldo to the same ordeal
in another room. Before their torturers left, they warned Raymond that they would come
back the next day and kill him.[18]

2.
To confirm in writing the present places of official assignment of M/Sgt Hilario aka
Rollie Castillo and Donald Caigas within five days from notice of this decision.
3. To cause to be produced to this Court all medical reports, records and charts, reports
of any treatment given or recommended and medicines prescribed, if any, to the
petitioners, to include a list of medical and (sic) personnel (military and civilian) who
attended to them from February 14, 2006 until August 12, 2007 within five days from notice
of this decision.
The compliance with this decision shall be made under the signature and oath of
respondent AFP Chief of Staff or his duly authorized deputy, the latters authority to be
express and made apparent on the face of the sworn compliance with this directive.
SO ORDERED.[10]
Hence, this appeal. In resolving this appeal, we first unfurl the facts as alleged by herein
respondents:
Respondent Raymond Manalo recounted that about one or two weeks before February 14,
2006, several uniformed and armed soldiers and members of the CAFGU summoned to a
meeting all the residents of their barangay in San Idelfonso, Bulacan. Respondents were
not able to attend as they were not informed of the gathering, but Raymond saw some of
the soldiers when he passed by the barangay hall.[11]
On February 14, 2006, Raymond was sleeping in their house in Buhol na Mangga, San
Ildefonso, Bulacan. At past noon, several armed soldiers wearing white shirts, fatigue
pants and army boots, entered their house and roused him. They asked him if he was
Bestre, but his mother, Ester Manalo, replied that he was Raymond, not Bestre. The armed
soldier slapped him on both cheeks and nudged him in the stomach. He was then
handcuffed, brought to the rear of his house, and forced to the ground face down. He was
kicked on the hip, ordered to stand and face up to the light, then forcibly brought near the
road. He told his mother to follow him, but three soldiers stopped her and told her to stay.
[12]
Among the men who came to take him, Raymond recognized brothers Michael de la Cruz,
Madning de la Cruz, Puti de la Cruz, and Pula de la Cruz, who all acted as lookout. They
were all members of the CAFGU and residing in Manuzon, San Ildefonso, Bulacan. He
also recognized brothers Randy Mendoza and Rudy Mendoza, also members of the
CAFGU. While he was being forcibly taken, he also saw outside of his house two barangay
councilors, Pablo Cunanan and Bernardo Lingasa, with some soldiers and armed men.[13]
The men forced Raymond into a white L300 van. Once inside, he was blindfolded. Before
being blindfolded, he saw the faces of the soldiers who took him. Later, in his 18 months of
captivity, he learned their names. The one who drove the van was Rizal Hilario alias Rollie
Castillo, whom he estimated was about 40 years of age or older. The leader of the team
who entered his house and abducted him was Ganata. He was tall, thin, curly-haired and a
bit old. Another one of his abductors was George who was tall, thin, white-skinned and
about 30 years old.[14]
The van drove off, then came to a stop. A person was brought inside the van and made to
sit beside Raymond. Both of them were beaten up. On the road, he recognized the voice of
the person beside him as his brother Reynaldos. The van stopped several times until they
finally arrived at a house. Raymond and Reynaldo were each brought to a different room.
With the doors of their rooms left open, Raymond saw several soldiers continuously hitting
his brother Reynaldo on the head and other parts of his body with the butt of their guns for
about 15 minutes. After which, Reynaldo was brought to his (Raymonds) room and it was
his (Raymonds) turn to be beaten up in the other room. The soldiers asked him if he was a
member of the New Peoples Army. Each time he said he was not, he was hit with the butt
of their guns. He was questioned where his comrades were, how many soldiers he had
killed, and how many NPA members he had helped. Each time he answered none, they hit
him.[15]
In the next days, Raymonds interrogators appeared to be high officials as the soldiers who
beat him up would salute them, call them sir, and treat them with respect. He was in
blindfolds when interrogated by the high officials, but he saw their faces when they arrived
and before the blindfold was put on. He noticed that the uniform of the high officials was
different from those of the other soldiers. One of those officials was tall and thin, wore
white pants, tie, and leather shoes, instead of combat boots. He spoke in Tagalog and
knew much about his parents and family, and a habeas corpus case filed in connection
with the respondents abduction.[16] While these officials interrogated him, Raymond was
not manhandled. But once they had left, the soldier guards beat him up. When the guards

The following night, Raymond attempted to escape. He waited for the guards to get drunk,
then made noise with the chains put on him to see if they were still awake. When none of
them came to check on him, he managed to free his hand from the chains and jumped
through the window. He passed through a helipad and firing range and stopped near a
fishpond where he used stones to break his chains. After walking through a forested area,
he came near a river and an Iglesia ni Kristo church. He talked to some women who were
doing the laundry, asked where he was and the road to Gapan. He was told that he was in
Fort Magsaysay.[19] He reached the highway, but some soldiers spotted him, forcing him
to run away. The soldiers chased him and caught up with him. They brought him to another
place near the entrance of what he saw was Fort Magsaysay. He was boxed repeatedly,
kicked, and hit with chains until his back bled. They poured gasoline on him. Then a socalled Mam or Madam suddenly called, saying that she wanted to see Raymond before he
was killed. The soldiers ceased the torture and he was returned inside Fort Magsaysay
where Reynaldo was detained.[20]
For some weeks, the respondents had a respite from all the torture. Their wounds were
treated. When the wounds were almost healed, the torture resumed, particularly when
respondents guards got drunk.[21]
Raymond recalled that sometime in April until May 2006, he was detained in a room
enclosed by steel bars. He stayed all the time in that small room measuring 1 x 2 meters,
and did everything there, including urinating, removing his bowels, bathing, eating and
sleeping. He counted that eighteen people[22] had been detained in that bartolina,
including his brother Reynaldo and himself.[23]
For about three and a half months, the respondents were detained in Fort Magsaysay.
They were kept in a small house with two rooms and a kitchen. One room was made into
the bartolina. The house was near the firing range, helipad and mango trees. At dawn,
soldiers marched by their house. They were also sometimes detained in what he only
knew as the DTU.[24]
At the DTU, a male doctor came to examine respondents. He checked their body and
eyes, took their urine samples and marked them. When asked how they were feeling, they
replied that they had a hard time urinating, their stomachs were aching, and they felt other
pains in their body. The next day, two ladies in white arrived. They also examined
respondents and gave them medicines, including orasol, amoxicillin and mefenamic acid.
They brought with them the results of respondents urine test and advised them to drink
plenty of water and take their medicine. The two ladies returned a few more times.
Thereafter, medicines were sent through the master of the DTU, Master Del Rosario alias
Carinyoso at Puti. Respondents were kept in the DTU for about two weeks. While there, he
met a soldier named Efren who said that Gen. Palparan ordered him to monitor and take
care of them.[25]
One day, Rizal Hilario fetched respondents in a Revo vehicle. They, along with Efren and
several other armed men wearing fatigue suits, went to a detachment in Pinaud, San
Ildefonso, Bulacan. Respondents were detained for one or two weeks in a big two-storey
house. Hilario and Efren stayed with them. While there, Raymond was beaten up by
Hilarios men.[26]
From Pinaud, Hilario and Efren brought respondents to Sapang, San Miguel, Bulacan on
board the Revo. They were detained in a big unfinished house inside the compound of
Kapitan for about three months. When they arrived in Sapang, Gen. Palparan talked to
them. They were brought out of the house to a basketball court in the center of the
compound and made to sit. Gen. Palparan was already waiting, seated. He was about two
arms length away from respondents. He began by asking if respondents felt well already,
to which Raymond replied in the affirmative. He asked Raymond if he knew him. Raymond
lied that he did not. He then asked Raymond if he would be scared if he were made to face
Gen. Palparan. Raymond responded that he would not be because he did not believe that
Gen. Palparan was an evil man.[27]
Raymond narrated his conversation with Gen. Palparan in his affidavit, viz:
Tinanong ako ni Gen. Palparan, Ngayon na kaharap mo na ako, di ka ba natatakot sa
akin?

38

Sumagot akong, Siyempre po, natatakot din


Sabi ni Gen. Palparan: Sige, bibigyan ko kayo ng isang pagkakataon na mabuhay, bastat
sundin nyo ang lahat ng sasabihin ko sabihin mo sa magulang mo huwag pumunta sa mga
rali, sa hearing, sa Karapatan at sa Human Right dahil niloloko lang kayo. Sabihin sa
magulang at lahat sa bahay na huwag paloko doon. Tulungan kami na kausapin si Bestre
na sumuko na sa gobyerno.[28]
Respondents agreed to do as Gen. Palparan told them as they felt they could not do
otherwise. At about 3:00 in the morning, Hilario, Efren and the formers men - the same
group that abducted them - brought them to their parents house. Raymond was shown to
his parents while Reynaldo stayed in the Revo because he still could not walk. In the
presence of Hilario and other soldiers, Raymond relayed to his parents what Gen.
Palparan told him. As they were afraid, Raymonds parents acceded. Hilario threatened
Raymonds parents that if they continued to join human rights rallies, they would never see
their children again. The respondents were then brought back to Sapang.[29]
When respondents arrived back in Sapang, Gen. Palparan was about to leave. He was
talking with the four masters who were there: Arman, Ganata, Hilario and Cabalse.[30]
When Gen. Palparan saw Raymond, he called for him. He was in a big white vehicle.
Raymond stood outside the vehicle as Gen. Palparan told him to gain back his strength
and be healthy and to take the medicine he left for him and Reynaldo. He said the
medicine was expensive at Php35.00 each, and would make them strong. He also said
that they should prove that they are on the side of the military and warned that they would
not be given another chance.[31] During his testimony, Raymond identified Gen. Palparan
by his picture.[32]
One of the soldiers named Arman made Raymond take the medicine left by Gen.
Palparan. The medicine, named Alive, was green and yellow. Raymond and Reynaldo
were each given a box of this medicine and instructed to take one capsule a day. Arman
checked if they were getting their dose of the medicine. The Alive made them sleep each
time they took it, and they felt heavy upon waking up.[33]
After a few days, Hilario arrived again. He took Reynaldo and left Raymond at Sapang.
Arman instructed Raymond that while in Sapang, he should introduce himself as Oscar, a
military trainee from Sariaya, Quezon, assigned in Bulacan. While there, he saw again
Ganata, one of the men who abducted him from his house, and got acquainted with other
military men and civilians.[34]
After about three months in Sapang, Raymond was brought to Camp Tecson under the
24th Infantry Battalion. He was fetched by three unidentified men in a big white vehicle.
Efren went with them. Raymond was then blindfolded. After a 30-minute ride, his blindfold
was removed. Chains were put on him and he was kept in the barracks.[35]
The next day, Raymonds chains were removed and he was ordered to clean outside the
barracks. It was then he learned that he was in a detachment of the Rangers. There were
many soldiers, hundreds of them were training. He was also ordered to clean inside the
barracks. In one of the rooms therein, he met Sherlyn Cadapan from Laguna. She told him
that she was a student of the University of the Philippines and was abducted in Hagonoy,
Bulacan. She confided that she had been subjected to severe torture and raped. She was
crying and longing to go home and be with her parents. During the day, her chains were
removed and she was made to do the laundry.[36]
After a week, Reynaldo was also brought to Camp Tecson. Two days from his arrival, two
other captives, Karen Empeo and Manuel Merino, arrived. Karen and Manuel were put in
the room with Allan whose name they later came to know as Donald Caigas, called master
or commander by his men in the 24th Infantry Battalion. Raymond and Reynaldo were put
in the adjoining room. At times, Raymond and Reynaldo were threatened, and Reynaldo
was beaten up. In the daytime, their chains were removed, but were put back on at night.
They were threatened that if they escaped, their families would all be killed.[37]
On or about October 6, 2006, Hilario arrived in Camp Tecson. He told the detainees that
they should be thankful they were still alive and should continue along their renewed life.
Before the hearing of November 6 or 8, 2006, respondents were brought to their parents to
instruct them not to attend the hearing. However, their parents had already left for Manila.
Respondents were brought back to Camp Tecson. They stayed in that camp from
September 2006 to November 2006, and Raymond was instructed to continue using the
name Oscar and holding himself out as a military trainee. He got acquainted with soldiers
of the 24th Infantry Battalion whose names and descriptions he stated in his affidavit.[38]
On November 22, 2006, respondents, along with Sherlyn, Karen, and Manuel, were
transferred to a camp of the 24th Infantry Battalion in Limay, Bataan. There were many
huts in the camp. They stayed in that camp until May 8, 2007. Some soldiers of the
battalion stayed with them. While there, battalion soldiers whom Raymond knew as Mar
and Billy beat him up and hit him in the stomach with their guns. Sherlyn and Karen also
suffered enormous torture in the camp. They were all made to clean, cook, and help in
raising livestock.[39]

Raymond recalled that when Operation Lubog was launched, Caigas and some other
soldiers brought him and Manuel with them to take and kill all sympathizers of the NPA.
They were brought to Barangay Bayan-bayanan, Bataan where he witnessed the killing of
an old man doing kaingin. The soldiers said he was killed because he had a son who was
a member of the NPA and he coddled NPA members in his house.[40] Another time, in
another Operation Lubog, Raymond was brought to Barangay Orion in a house where NPA
men stayed. When they arrived, only the old man of the house who was sick was there.
They spared him and killed only his son right before Raymonds eyes.[41]
From Limay, Raymond, Reynaldo, Sherlyn, Karen, and Manuel were transferred to
Zambales, in a safehouse near the sea. Caigas and some of his men stayed with them. A
retired army soldier was in charge of the house. Like in Limay, the five detainees were
made to do errands and chores. They stayed in Zambales from May 8 or 9, 2007 until June
2007.[42]
In June 2007, Caigas brought the five back to the camp in Limay. Raymond, Reynaldo,
and Manuel were tasked to bring food to detainees brought to the camp. Raymond
narrated what he witnessed and experienced in the camp, viz:
Isang gabi, sinabihan kami ni Donald (Caigas) na matulog na kami. Nakita ko si Donald na
inaayos ang kanyang baril, at nilagyan ng silenser. Sabi ni Donald na kung mayroon man
kaming makita o marinig, walang nangyari. Kinaumagahan, nakita naming ang bangkay ng
isa sa mga bihag na dinala sa kampo. Mayroong binuhos sa kanyang katawan at itoy
sinunog. Masansang ang amoy.
Makaraan ang isang lingo, dalawang bangkay and ibinaba ng mga unipormadong sundalo
mula sa 6 x 6 na trak at dinala sa loob ng kampo. May naiwang mga bakas ng dugo
habang hinihila nila ang mga bangkay. Naamoy ko iyon nang nililinis ang bakas.
Makalipas ang isa o dalawang lingo, may dinukot sila na dalawang Ita. Itinali sila sa labas
ng kubo, piniringan, ikinadena at labis na binugbog. Nakita kong nakatakas ang isa sa
kanila at binaril siya ng sundalo ngunit hindi siya tinamaan. Iyong gabi nakita kong pinatay
nila iyong isang Ita malapit sa Post 3; sinilaban ang bangkay at ibinaon ito.
Pagkalipas ng halos 1 buwan, 2 pang bangkay ang dinala sa kampo. Ibinaba ang mga
bangkay mula sa pick up trak, dinala ang mga bangkay sa labas ng bakod. Kinaumagahan
nakita kong mayroong sinilaban, at napakamasangsang ang amoy.
May nakilala rin akong 1 retiradong koronel at 1 kasama niya. Pinakain ko sila. Sabi nila sa
akin na dinukot sila sa Bataan. Iyong gabi, inilabas sila at hindi ko na sila nakita.
xxx xxx xxx
Ikinadena kami ng 3 araw. Sa ikatlong araw, nilabas ni Lat si Manuel dahil kakausapin daw
siya ni Gen. Palparan. Nakapiring si Manuel, wala siyang suot pang-itaas, pinosasan.
Nilakasan ng mga sundalo ang tunog na galing sa istiryo ng sasakyan. Di nagtagal, narinig
ko ang hiyaw o ungol ni Manuel. Sumilip ako sa isang haligi ng kamalig at nakita kong
sinisilaban si Manuel.
Kinaumagahan, naka-kadena pa kami. Tinanggal ang mga kadena mga 3 o 4 na araw
pagkalipas. Sinabi sa amin na kaya kami nakakadena ay dahil pinagdedesisyunan pa ng
mga sundalo kung papatayin kami o hindi.
Tinanggal ang aming kadena. Kinausap kami ni Donald. Tinanong kami kung ano ang sabi
ni Manuel sa amin. Sabi ni Donald huwag na raw naming hanapin ang dalawang babae at
si Manuel, dahil magkakasama na yung tatlo. Sabi pa ni Donald na kami ni Reynaldo ay
magbagong buhay at ituloy namin ni Reynaldo ang trabaho. Sa gabi, hindi na kami
kinakadena.[43]
On or about June 13, 2007, Raymond and Reynaldo were brought to Pangasinan,
ostensibly to raise poultry for Donald (Caigas). Caigas told respondents to also farm his
land, in exchange for which, he would take care of the food of their family. They were also
told that they could farm a small plot adjoining his land and sell their produce. They were
no longer put in chains and were instructed to use the names Rommel (for Raymond) and
Rod (for Reynaldo) and represent themselves as cousins from Rizal, Laguna.[44]
Respondents started to plan their escape. They could see the highway from where they
stayed. They helped farm adjoining lands for which they were paid Php200.00 or
Php400.00 and they saved their earnings. When they had saved Php1,000.00 each,
Raymond asked a neighbor how he could get a cellular phone as he wanted to exchange
text messages with a girl who lived nearby. A phone was pawned to him, but he kept it first
and did not use it. They earned some more until they had saved Php1,400.00 between
them.
There were four houses in the compound. Raymond and Reynaldo were housed in one of
them while their guards lived in the other three. Caigas entrusted respondents to Nonong,
the head of the guards. Respondents house did not have electricity. They used a lamp.

39

There was no television, but they had a radio. In the evening of August 13, 2007, Nonong
and his cohorts had a drinking session. At about 1:00 a.m., Raymond turned up the volume
of the radio. When none of the guards awoke and took notice, Raymond and Reynaldo
proceeded towards the highway, leaving behind their sleeping guards and barking dogs.
They boarded a bus bound for Manila and were thus freed from captivity.[45]

a Memorandum Directive also dated October 31, 2007, I have issued a policy directive
addressed to the Chief of Staff, AFP that the AFP should adopt the following rules of action
in the event the Writ of Amparo is issued by a competent court against any members of the
AFP:
(1) to verify the identity of the aggrieved party;

Reynaldo also executed an affidavit affirming the contents of Raymonds affidavit insofar as
they related to matters they witnessed together. Reynaldo added that when they were
taken from their house on February 14, 2006, he saw the faces of his abductors before he
was blindfolded with his shirt. He also named the soldiers he got acquainted with in the 18
months he was detained. When Raymond attempted to escape from Fort Magsaysay,
Reynaldo was severely beaten up and told that they were indeed members of the NPA
because Raymond escaped. With a .45 caliber pistol, Reynaldo was hit on the back and
punched in the face until he could no longer bear the pain.

(2) to recover and preserve evidence related to the death or disappearance of the person
identified in the petition which may aid in the prosecution of the person or persons
responsible;

At one point during their detention, when Raymond and Reynaldo were in Sapang,
Reynaldo was separated from Raymond and brought to Pinaud by Rizal Hilario. He was
kept in the house of Kapitan, a friend of Hilario, in a mountainous area. He was instructed
to use the name Rodel and to represent himself as a military trainee from Meycauayan,
Bulacan. Sometimes, Hilario brought along Reynaldo in his trips. One time, he was brought
to a market in San Jose, del Monte, Bulacan and made to wait in the vehicle while Hilario
was buying. He was also brought to Tondo, Manila where Hilario delivered boxes of Alive in
different houses. In these trips, Hilario drove a black and red vehicle. Reynaldo was
blindfolded while still in Bulacan, but allowed to remove the blindfold once outside the
province. In one of their trips, they passed by Fort Magsaysay and Camp Tecson where
Reynaldo saw the sign board, Welcome to Camp Tecson.[46]
Dr. Benito Molino, M.D., corroborated the accounts of respondents Raymond and
Reynaldo Manalo. Dr. Molino specialized in forensic medicine and was connected with the
Medical Action Group, an organization handling cases of human rights violations,
particularly cases where torture was involved. He was requested by an NGO to conduct
medical examinations on the respondents after their escape. He first asked them about
their ordeal, then proceeded with the physical examination. His findings showed that the
scars borne by respondents were consistent with their account of physical injuries inflicted
upon them. The examination was conducted on August 15, 2007, two days after
respondents escape, and the results thereof were reduced into writing. Dr. Molino took
photographs of the scars. He testified that he followed the Istanbul Protocol in conducting
the examination.[47]
Petitioners dispute respondents account of their alleged abduction and torture. In
compliance with the October 25, 2007 Resolution of the Court, they filed a Return of the
Writ of Amparo admitting the abduction but denying any involvement therein, viz:
13. Petitioners Raymond and Reynaldo Manalo were not at any time arrested, forcibly
abducted, detained, held incommunicado, disappeared or under the custody by the
military. This is a settled issue laid to rest in the habeas corpus case filed in their behalf by
petitioners parents before the Court of Appeals in C.A.-G.R. SP No. 94431 against M/Sgt.
Rizal Hilario aka Rollie Castillo, as head of the 24th Infantry Battalion; Maj. Gen. Jovito
Palparan, as Commander of the 7th Infantry Division in Luzon; Lt. Gen. Hermogenes
Esperon, in his capacity as the Commanding General of the Philippine Army, and members
of the Citizens Armed Forces Geographical Unit (CAFGU), namely: Michael dela Cruz, Puti
dela Cruz, Madning dela Cruz, Pula dela Cruz, Randy Mendoza and Rudy Mendoza. The
respondents therein submitted a return of the writ On July 4, 2006, the Court of Appeals
dropped as party respondents Lt. Gen. Hermogenes C. Esperon, Jr., then Commanding
General of the Philippine Army, and on September 19, 2006, Maj. (sic) Jovito S. Palparan,
then Commanding General, 7th Infantry Division, Philippine Army, stationed at Fort
Magsaysay, Palayan City, Nueva Ecija, upon a finding that no evidence was introduced to
establish their personal involvement in the taking of the Manalo brothers. In a Decision
dated June 27, 2007, it exonerated M/Sgt. Rizal Hilario aka Rollie Castillo for lack of
evidence establishing his involvement in any capacity in the disappearance of the Manalo
brothers, although it held that the remaining respondents were illegally detaining the
Manalo brothers and ordered them to release the latter.[48]
Attached to the Return of the Writ was the affidavit of therein respondent (herein petitioner)
Secretary of National Defense, which attested that he assumed office only on August 8,
2007 and was thus unaware of the Manalo brothers alleged abduction. He also claimed
that:
7.
The Secretary of National Defense does not engage in actual military directional
operations, neither does he undertake command directions of the AFP units in the field, nor
in any way micromanage the AFP operations. The principal responsibility of the Secretary
of National Defense is focused in providing strategic policy direction to the Department
(bureaus and agencies) including the Armed Forces of the Philippines;
8. In connection with the Writ of Amparo issued by the Honorable Supreme Court in this
case, I have directed the Chief of Staff, AFP to institute immediate action in compliance
with Section 9(d) of the Amparo Rule and to submit report of such compliance Likewise, in

(3) to identify witnesses and obtain statements from them concerning the death or
disappearance;
(4) to determine the cause, manner, location and time of death or disappearance as well
as any pattern or practice that may have brought about the death or disappearance;
(5)
to identify and apprehend the person or persons involved in the death or
disappearance; and
(6) to bring the suspected offenders before a competent court.[49]
Therein respondent AFP Chief of Staff also submitted his own affidavit, attached to the
Return of the Writ, attesting that he received the above directive of therein respondent
Secretary of National Defense and that acting on this directive, he did the following:
3.1. As currently designated Chief of Staff, Armed Forces of the Philippines (AFP), I have
caused to be issued directive to the units of the AFP for the purpose of establishing the
circumstances of the alleged disappearance and the recent reappearance of the
petitioners.
3.2. I have caused the immediate investigation and submission of the result thereof to
Higher headquarters and/or direct the immediate conduct of the investigation on the matter
by the concerned unit/s, dispatching Radio Message on November 05, 2007, addressed to
the Commanding General, Philippine Army (Info: COMNOLCOM, CG, 71D PA and CO 24
IB PA). A Copy of the Radio Message is attached as ANNEX 3 of this Affidavit.
3.3. We undertake to provide result of the investigations conducted or to be conducted by
the concerned unit relative to the circumstances of the alleged disappearance of the
persons in whose favor the Writ of Amparo has been sought for as soon as the same has
been furnished Higher headquarters.
3.4. A parallel investigation has been directed to the same units relative to another Petition
for the Writ of Amparo (G.R. No. 179994) filed at the instance of relatives of a certain
Cadapan and Empeo pending before the Supreme Court.
3.5. On the part of the Armed Forces, this respondent will exert earnest efforts to establish
the surrounding circumstances of the disappearances of the petitioners and to bring those
responsible, including any military personnel if shown to have participated or had
complicity in the commission of the complained acts, to the bar of justice, when warranted
by the findings and the competent evidence that may be gathered in the process.[50]
Also attached to the Return of the Writ was the affidavit of Lt. Col. Felipe Anontado, INF
(GSC) PA, earlier filed in G.R. No. 179994, another amparo case in this Court, involving
Cadapan, Empeo and Merino, which averred among others, viz:
10) Upon reading the allegations in the Petition implicating the 24th Infantry Batallion
detachment as detention area, I immediately went to the 24th IB detachment in Limay,
Bataan and found no untoward incidents in the area nor any detainees by the name of
Sherlyn Cadapan, Karen Empeo and Manuel Merino being held captive;
11) There was neither any reports of any death of Manuel Merino in the 24th IB in Limay,
Bataan;
12) After going to the 24th IB in Limay, Bataan, we made further inquiries with the
Philippine National Police, Limay, Bataan regarding the alleged detentions or deaths and
were informed that none was reported to their good office;
13) I also directed Company Commander 1st Lt. Romeo Publico to inquire into the alleged
beachhouse in Iba, Zambales also alleged to be a detention place where Sherlyn
Cadapan, Karen Empeo and Manuel Merino were detained. As per the inquiry, however,
no such beachhouse was used as a detention place found to have been used by armed
men to detain Cadapan, Empeo and Merino.[51]
It was explained in the Return of the Writ that for lack of sufficient time, the affidavits of
Maj. Gen Jovito S. Palparan (Ret.), M/Sgt. Rizal Hilario aka Rollie Castillo, and other
persons implicated by therein petitioners could not be secured in time for the submission of
the Return and would be subsequently submitted.[52]

40

Herein petitioners presented a lone witness in the summary hearings, Lt. Col. Ruben U.
Jimenez, Provost Marshall, 7th Infantry Division, Philippine Army, based in Fort
Magsaysay, Palayan City, Nueva Ecija. The territorial jurisdiction of this Division covers
Nueva Ecija, Aurora, Bataan, Bulacan, Pampanga, Tarlac and a portion of Pangasinan.[53]
The 24th Infantry Battalion is part of the 7th Infantry Division.[54]
On May 26, 2006, Lt. Col. Jimenez was directed by the Commanding General of the 7th
Infantry Division, Maj. Gen. Jovito Palaran,[55] through his Assistant Chief of Staff,[56] to
investigate the alleged abduction of the respondents by CAFGU auxiliaries under his unit,
namely: CAA Michael de la Cruz; CAA Roman de la Cruz, aka Puti; CAA Maximo de la
Cruz, aka Pula; CAA Randy Mendoza; ex-CAA Marcelo de la Cruz aka Madning; and a
civilian named Rudy Mendoza. He was directed to determine: (1) the veracity of the
abduction of Raymond and Reynaldo Manalo by the alleged elements of the CAFGU
auxiliaries; and (2) the administrative liability of said auxiliaries, if any.[57] Jimenez testified
that this particular investigation was initiated not by a complaint as was the usual
procedure, but because the Commanding General saw news about the abduction of the
Manalo brothers on the television, and he was concerned about what was happening
within his territorial jurisdiction.[58]
Jimenez summoned all six implicated persons for the purpose of having them execute
sworn statements and conducting an investigation on May 29, 2006.[59] The investigation
started at 8:00 in the morning and finished at 10:00 in the evening.[60] The investigating
officer, Technical Sgt. Eduardo Lingad, took the individual sworn statements of all six
persons on that day. There were no other sworn statements taken, not even of the Manalo
family, nor were there other witnesses summoned and investigated[61] as according to
Jimenez, the directive to him was only to investigate the six persons.[62]
Jimenez was beside Lingad when the latter took the statements.[63] The six persons were
not known to Jimenez as it was in fact his first time to meet them.[64] During the entire
time that he was beside Lingad, a subordinate of his in the Office of the Provost Marshall,
Jimenez did not propound a single question to the six persons.[65]
Jimenez testified that all six statements were taken on May 29, 2006, but Marcelo
Mendoza and Rudy Mendoza had to come back the next day to sign their statements as
the printing of their statements was interrupted by a power failure. Jimenez testified that
the two signed on May 30, 2006, but the jurats of their statements indicated that they were
signed on May 29, 2006.[66] When the Sworn Statements were turned over to Jimenez, he
personally wrote his investigation report. He began writing it in the afternoon of May 30,
2006 and finished it on June 1, 2006.[67] He then gave his report to the Office of the Chief
of Personnel.[68]
As petitioners largely rely on Jimenezs Investigation Report dated June 1, 2006 for their
evidence, the report is herein substantially quoted:
III. BACKGROUND OF THE CASE
4. This pertains to the abduction of RAYMOND MANALO and REYNALDO MANALO who
were forcibly taken from their respective homes in Brgy. Buhol na Mangga, San Ildefonso,
Bulacan on 14 February 2006 by unidentified armed men and thereafter were forcibly
disappeared. After the said incident, relatives of the victims filed a case for Abduction in the
civil court against the herein suspects: Michael dela Cruz, Madning dela Cruz, Puti Dela
Cruz, Pula Dela Cruz, Randy Mendoza and Rudy Mendoza as alleged members of the
Citizen Armed Forces Geographical Unit (CAFGU).
a) Sworn statement of CAA Maximo F. dela Cruz, aka Pula dated 29 May 2006 in (Exhibit
B) states that he was at Sitio Mozon, Brgy. Bohol na Mangga, San Ildefonso, Bulacan
doing the concrete building of a church located nearby his residence, together with some
neighbor thereat. He claims that on 15 February 2006, he was being informed by Brgy.
Kagawad Pablo Umayan about the abduction of the brothers Raymond and Reynaldo
Manalo. As to the allegation that he was one of the suspects, he claims that they only
implicated him because he was a CAFGU and that they claimed that those who abducted
the Manalo brothers are members of the Military and CAFGU. Subject vehemently denied
any participation or involvement on the abduction of said victims.
b) Sworn statement of CAA Roman dela Cruz y Faustino Aka Puti dtd 29 May 2006 in
(Exhibit C) states that he is a resident of Sitio Muzon, Brgy. Buhol na Mangga, San
Ildefonso, Bulacan and a CAA member based at Biak na Bato Detachment, San Miguel,
Bulacan. He claims that Raymond and Reynaldo Manalo being his neighbors are active
members/sympathizers of the CPP/NPA and he also knows their elder Rolando Manalo @
KA BESTRE of being an NPA Leader operating in their province. That at the time of the
alleged abduction of the two (2) brothers and for accusing him to be one of the suspects,
he claims that on February 14, 2006, he was one of those working at the concrete chapel
being constructed nearby his residence. He claims further that he just came only to know
about the incident on other day (15 Feb 06) when he was being informed by Kagawad

Pablo Kunanan. That subject CAA vehemently denied any participation about the incident
and claimed that they only implicated him because he is a member of the CAFGU.
c) Sworn Statement of CAA Randy Mendoza y Lingas dated 29 May 2006 in (Exhibit O)
states that he is a resident of Brgy. Buhol na Mangga, San Ildefonso, Bulacan and a
member of CAFGU based at Biak na Bato Detachment. That being a neighbor, he was
very much aware about the background of the two (2) brothers Raymond and Reynaldo as
active supporters of the CPP NPA in their Brgy. and he also knew their elder brother
KUMANDER BESTRE TN: Rolando Manalo. Being one of the accused, he claims that on
14 February 2006, he was at Brgy. Magmarate, San Miguel, Bulacan in the house of his
aunt and he learned only about the incident when he arrived home in their place. He claims
further that the only reason why they implicated him was due to the fact that his mother
has filed a criminal charge against their brother Rolando Manalo @ KA BESTRE who is an
NPA Commander who killed his father and for that reason they implicated him in support of
their brother. Subject CAA vehemently denied any involvement on the abduction of said
Manalo brothers.
d) Sworn Statement of Rudy Mendoza y Lingasa dated May 29, 2006 in (Exhibit E) states
that he is a resident of Brgy. Marungko, Angat, Bulacan. He claims that Raymond and
Reynaldo Manalo are familiar to him being his barriomate when he was still unmarried and
he knew them since childhood. Being one of the accused, he claims that on 14 February
2006, he was at his residence in Brgy. Marungko, Angat, Bulacan. He claims that he was
being informed only about the incident lately and he was not aware of any reason why the
two (2) brothers were being abducted by alleged members of the military and CAFGU. The
only reason he knows why they implicated him was because there are those people who
are angry with their family particularly victims of summary execution (killing) done by their
brother @ KA Bestre Rolando Manalo who is an NPA leader. He claims further that it was
their brother @ KA BESTRE who killed his father and he was living witness to that incident.
Subject civilian vehemently denied any involvement on the abduction of the Manalo
brothers.
e) Sworn statement of Ex-CAA Marcelo dala Cruz dated 29 May 2006 in (Exhibit F) states
that he is a resident of Sitio Muzon, Brgy. Buhol na Mangga, San Ildefonso, Bulacan, a
farmer and a former CAA based at Biak na Bato, San Miguel, Bulacan. He claims that
Raymond and Reynaldo Manalo are familiar to him being their barrio mate. He claims
further that they are active supporters of CPP/NPA and that their brother Rolando Manalo
@ KA BESTRE is an NPA leader. Being one of the accused, he claims that on 14 February
2006, he was in his residence at Sitio Muzon, Brgy. Buhol na Mangga, San Ildefonso,
Bulacan. That he vehemently denied any participation of the alleged abduction of the two
(2) brothers and learned only about the incident when rumors reached him by his barrio
mates. He claims that his implication is merely fabricated because of his relationship to
Roman and Maximo who are his brothers.
f) Sworn statement of Michael dela Cruz y Faustino dated 29 May 2006 in (Exhibit G)
states that he is a resident of Sitio Muzon, Brgy. Buhol na Mangga, San Ildefonso,
Bulacan, the Chief of Brgy. Tanod and a CAFGU member based at Biak na Bato
Detachment, San Miguel, Bulacan. He claims that he knew very well the brothers
Raymond and Reynaldo Manalo in their barangay for having been the Tanod Chief for
twenty (20) years. He alleged further that they are active supporters or sympathizers of the
CPP/NPA and whose elder brother Rolando Manalo @ KA BESTRE is an NPA leader
operating within the area. Being one of the accused, he claims that on 14 Feb 2006 he was
helping in the construction of their concrete chapel in their place and he learned only about
the incident which is the abduction of Raymond and Reynaldo Manalo when one of the
Brgy. Kagawad in the person of Pablo Cunanan informed him about the matter. He claims
further that he is truly innocent of the allegation against him as being one of the abductors
and he considers everything fabricated in order to destroy his name that remains loyal to
his service to the government as a CAA member.
IV. DISCUSSION
5. Based on the foregoing statements of respondents in this particular case, the proof of
linking them to the alleged abduction and disappearance of Raymond and Reynaldo
Manalo that transpired on 14 February 2006 at Sitio Muzon, Brgy. Buhol na Mangga, San
Ildefonso, Bulacan, is unsubstantiated. Their alleged involvement theretofore to that
incident is considered doubtful, hence, no basis to indict them as charged in this
investigation.
Though there are previous grudges between each families (sic) in the past to quote: the
killing of the father of Randy and Rudy Mendoza by @ KA BESTRE TN: Rolando Manalo,
this will not suffice to establish a fact that they were the ones who did the abduction as a
form of revenge. As it was also stated in the testimony of other accused claiming that the
Manalos are active sympathizers/supporters of the CPP/NPA, this would not also mean,
however, that in the first place, they were in connivance with the abductors. Being their
neighbors and as members of CAFGUs, they ought to be vigilant in protecting their village
from any intervention by the leftist group, hence inside their village, they were fully aware

41

of the activities of Raymond and Reynaldo Manalo in so far as their connection with the
CPP/NPA is concerned.
V.

CONCLUSION

6. Premises considered surrounding this case shows that the alleged charges of abduction
committed by the above named respondents has not been established in this investigation.
Hence, it lacks merit to indict them for any administrative punishment and/or criminal
liability. It is therefore concluded that they are innocent of the charge.
VI.

provision for his native state, Yucatan,[79] which granted judges the power to protect all
persons in the enjoyment of their constitutional and legal rights. This idea was incorporated
into the national constitution in 1847, viz:

RECOMMENDATIONS

7. That CAAs Michael F. dela Cruz, Maximo F. Dela Cruz, Roman dela Cruz, Randy
Mendoza, and two (2) civilians Maximo F. Dela Cruz and Rudy L. Mendoza be exonerated
from the case.
8. Upon approval, this case can be dropped and closed.[69]
In this appeal under Rule 45, petitioners question the appellate courts assessment of the
foregoing evidence and assail the December 26, 2007 Decision on the following grounds,
viz:
I.
THE COURT OF APPEALS SERIOUSLY AND GRIEVOUSLY ERRED IN BELIEVING AND
GIVING FULL FAITH AND CREDIT TO THE INCREDIBLE, UNCORROBORATED,
CONTRADICTED, AND OBVIOUSLY SCRIPTED, REHEARSED AND SELF-SERVING
AFFIDAVIT/TESTIMONY OF HEREIN RESPONDENT RAYMOND MANALO.
II.

THE COURT OF APPEALS SERIOUSLY AND GRIEVOUSLY ERRED IN REQUIRING


RESPONDENTS (HEREIN PETITIONERS) TO: (A) FURNISH TO THE MANALO
BROTHER(S) AND TO THE COURT OF APPEALS ALL OFFICIAL AND UNOFFICIAL
REPORTS OF THE INVESTIGATION UNDERTAKEN IN CONNECTION WITH THEIR
CASE, EXCEPT THOSE ALREADY IN FILE WITH THE COURT; (B) CONFIRM IN
WRITING THE PRESENT PLACES OF OFFICIAL ASSIGNMENT OF M/SGT. HILARIO
aka ROLLIE CASTILLO AND DONALD CAIGAS; AND (C) CAUSE TO BE PRODUCED TO
THE COURT OF APPEALS ALL MEDICAL REPORTS, RECORDS AND CHARTS, AND
REPORTS OF ANY TREATMENT GIVEN OR RECOMMENDED AND MEDICINES
PRESCRIBED, IF ANY, TO THE MANALO BROTHERS, TO INCLUDE A LIST OF
MEDICAL PERSONNEL (MILITARY AND CIVILIAN) WHO ATTENDED TO THEM FROM
FEBRUARY 14, 2006 UNTIL AUGUST 12, 2007.[70]

The case at bar is the first decision on the application of the Rule on the Writ of Amparo
(Amparo Rule). Let us hearken to its beginning.
The adoption of the Amparo Rule surfaced as a recurring proposition in the
recommendations that resulted from a two-day National Consultative Summit on
Extrajudicial Killings and Enforced Disappearances sponsored by the Court on July 16-17,
2007. The Summit was envisioned to provide a broad and fact-based perspective on the
issue of extrajudicial killings and enforced disappearances,[71] hence representatives from
all sides of the political and social spectrum, as well as all the stakeholders in the justice
system[72] participated in mapping out ways to resolve the crisis.
On October 24, 2007, the Court promulgated the Amparo Rule in light of the prevalence of
extralegal killing and enforced disappearances.[73] It was an exercise for the first time of
the Courts expanded power to promulgate rules to protect our peoples constitutional rights,
which made its maiden appearance in the 1987 Constitution in response to the Filipino
experience of the martial law regime.[74] As the Amparo Rule was intended to address the
intractable problem of extralegal killings and enforced disappearances, its coverage, in its
present form, is confined to these two instances or to threats thereof. Extralegal killings are
killings committed without due process of law, i.e., without legal safeguards or judicial
proceedings.[75] On the other hand, enforced disappearances are attended by the
following characteristics: an arrest, detention or abduction of a person by a government
official or organized groups or private individuals acting with the direct or indirect
acquiescence of the government; the refusal of the State to disclose the fate or
whereabouts of the person concerned or a refusal to acknowledge the deprivation of liberty
which places such persons outside the protection of law.[76]
The writ of amparo originated in Mexico. Amparo literally means protection in Spanish.[77]
In 1837, de Tocquevilles Democracy in America became available in Mexico and stirred
great interest. Its description of the practice of judicial review in the U.S. appealed to many
Mexican jurists.[78] One of them, Manuel Crescencio Rejn, drafted a constitutional

The federal courts shall protect any inhabitant of the Republic in the exercise and
preservation of those rights granted to him by this Constitution and by laws enacted
pursuant hereto, against attacks by the Legislative and Executive powers of the federal or
state governments, limiting themselves to granting protection in the specific case in
litigation, making no general declaration concerning the statute or regulation that motivated
the violation.[80]
Since then, the protection has been an important part of Mexican constitutionalism.[81] If,
after hearing, the judge determines that a constitutional right of the petitioner is being
violated, he orders the official, or the officials superiors, to cease the violation and to take
the necessary measures to restore the petitioner to the full enjoyment of the right in
question. Amparo thus combines the principles of judicial review derived from the U.S. with
the limitations on judicial power characteristic of the civil law tradition which prevails in
Mexico. It enables courts to enforce the constitution by protecting individual rights in
particular cases, but prevents them from using this power to make law for the entire nation.
[82]
The writ of amparo then spread throughout the Western Hemisphere, gradually evolving
into various forms, in response to the particular needs of each country.[83] It became, in
the words of a justice of the Mexican Federal Supreme Court, one piece of Mexicos selfattributed task of conveying to the worlds legal heritage that institution which, as a shield of
human dignity, her own painful history conceived.[84] What began as a protection against
acts or omissions of public authorities in violation of constitutional rights later evolved for
several purposes: (1) amparo libertad for the protection of personal freedom, equivalent to
the habeas corpus writ; (2) amparo contra leyes for the judicial review of the
constitutionality of statutes; (3) amparo casacion for the judicial review of the
constitutionality and legality of a judicial decision; (4) amparo administrativo for the judicial
review of administrative actions; and (5) amparo agrario for the protection of peasants
rights derived from the agrarian reform process.[85]
In Latin American countries, except Cuba, the writ of amparo has been constitutionally
adopted to protect against human rights abuses especially committed in countries under
military juntas. In general, these countries adopted an all-encompassing writ to protect the
whole gamut of constitutional rights, including socio-economic rights.[86] Other countries
like Colombia, Chile, Germany and Spain, however, have chosen to limit the protection of
the writ of amparo only to some constitutional guarantees or fundamental rights.[87]
In the Philippines, while the 1987 Constitution does not explicitly provide for the writ of
amparo, several of the above amparo protections are guaranteed by our charter. The
second paragraph of Article VIII, Section 1 of the 1987 Constitution, the Grave Abuse
Clause, provides for the judicial power to determine whether or not there has been a grave
abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or
instrumentality of the Government. The Clause accords a similar general protection to
human rights extended by the amparo contra leyes, amparo casacion, and amparo
administrativo. Amparo libertad is comparable to the remedy of habeas corpus found in
several provisions of the 1987 Constitution.[88] The Clause is an offspring of the U.S.
common law tradition of judicial review, which finds its roots in the 1803 case of Marbury v.
Madison.[89]
While constitutional rights can be protected under the Grave Abuse Clause through
remedies of injunction or prohibition under Rule 65 of the Rules of Court and a petition for
habeas corpus under Rule 102,[90] these remedies may not be adequate to address the
pestering problem of extralegal killings and enforced disappearances. However, with the
swiftness required to resolve a petition for a writ of amparo through summary proceedings
and the availability of appropriate interim and permanent reliefs under the Amparo Rule,
this hybrid writ of the common law and civil law traditions - borne out of the Latin American
and Philippine experience of human rights abuses - offers a better remedy to extralegal
killings and enforced disappearances and threats thereof. The remedy provides rapid
judicial relief as it partakes of a summary proceeding that requires only substantial
evidence to make the appropriate reliefs available to the petitioner; it is not an action to
determine criminal guilt requiring proof beyond reasonable doubt, or liability for damages
requiring preponderance of evidence, or administrative responsibility requiring substantial
evidence that will require full and exhaustive proceedings.[91]
The writ of amparo serves both preventive and curative roles in addressing the problem of
extralegal killings and enforced disappearances. It is preventive in that it breaks the
expectation of impunity in the commission of these offenses; it is curative in that it
facilitates the subsequent punishment of perpetrators as it will inevitably yield leads to
subsequent investigation and action. In the long run, the goal of both the preventive and
curative roles is to deter the further commission of extralegal killings and enforced
disappearances.

42

In the case at bar, respondents initially filed an action for Prohibition, Injunction, and
Temporary Restraining Order[92] to stop petitioners and/or their officers and agents from
depriving the respondents of their right to liberty and other basic rights on August 23, 2007,
[93] prior to the promulgation of the Amparo Rule. They also sought ancillary remedies
including Protective Custody Orders, Appointment of Commissioner, Inspection and
Access Orders and other legal and equitable remedies under Article VIII, Section 5(5) of
the 1987 Constitution and Rule 135, Section 6 of the Rules of Court. When the Amparo
Rule came into effect on October 24, 2007, they moved to have their petition treated as an
amparo petition as it would be more effective and suitable to the circumstances of the
Manalo brothers enforced disappearance. The Court granted their motion.
With this backdrop, we now come to the arguments of the petitioner. Petitioners first
argument in disputing the Decision of the Court of Appeals states, viz:
The Court of Appeals seriously and grievously erred in believing and giving full faith and
credit to the incredible uncorroborated, contradicted, and obviously scripted, rehearsed
and self-serving affidavit/testimony of herein respondent Raymond Manalo.[94]
In delving into the veracity of the evidence, we need to mine and refine the ore of
petitioners cause of action, to determine whether the evidence presented is metal-strong to
satisfy the degree of proof required.
Section 1 of the Rule on the Writ of Amparo provides for the following causes of action, viz:
Section 1. Petition. The petition for a writ of amparo is a remedy available to any person
whose right to life, liberty and security is violated or threatened with violation by an
unlawful act or omission of a public official or employee, or of a private individual or entity.
The writ shall cover extralegal killings and enforced disappearances or threats thereof.
(emphasis supplied)
Sections 17 and 18, on the other hand, provide for the degree of proof required, viz:
Sec. 17. Burden of Proof and Standard of Diligence Required. The parties shall establish
their claims by substantial evidence.

xxx xxx xxx


Sec. 18. Judgment. If the allegations in the petition are proven by substantial evidence, the
court shall grant the privilege of the writ and such reliefs as may be proper and
appropriate; otherwise, the privilege shall be denied. (emphases supplied)
Substantial evidence has been defined as such relevant evidence as a reasonable mind
might accept as adequate to support a conclusion.[95]
After careful perusal of the evidence presented, we affirm the findings of the Court of
Appeals that respondents were abducted from their houses in Sito Muzon, Brgy. Buhol na
Mangga, San Ildefonso, Bulacan on February 14, 2006 and were continuously detained
until they escaped on August 13, 2007. The abduction, detention, torture, and escape of
the respondents were narrated by respondent Raymond Manalo in a clear and convincing
manner. His account is dotted with countless candid details of respondents harrowing
experience and tenacious will to escape, captured through his different senses and etched
in his memory. A few examples are the following: Sumilip ako sa isang haligi ng kamalig at
nakita kong sinisilaban si Manuel.[96] (N)ilakasan ng mga sundalo ang tunog na galing sa
istiryo ng sasakyan. Di nagtagal, narinig ko ang hiyaw o ungol ni Manuel.[97] May naiwang
mga bakas ng dugo habang hinihila nila ang mga bangkay. Naamoy ko iyon nang nililinis
ang bakas.[98] Tumigil ako sa may palaisdaan kung saan ginamit ko ang bato para
tanggalin ang mga kadena.[99] Tinanong ko sa isang kapit-bahay kung paano ako
makakakuha ng cell phone; sabi ko gusto kong i-text ang isang babae na nakatira sa
malapit na lugar.[100]
We affirm the factual findings of the appellate court, largely based on respondent Raymond
Manalos affidavit and testimony, viz:
the abduction was perpetrated by armed men who were sufficiently identified by the
petitioners (herein respondents) to be military personnel and CAFGU auxiliaries. Raymond
recalled that the six armed men who barged into his house through the rear door were
military men based on their attire of fatigue pants and army boots, and the CAFGU
auxiliaries, namely: Michael de la Cruz, Madning de la Cruz, Puti de la Cruz and Pula de la
Cruz, all members of the CAFGU and residents of Muzon, San Ildefonso, Bulacan, and the
brothers Randy Mendoza and Rudy Mendoza, also CAFGU members, served as lookouts
during the abduction. Raymond was sure that three of the six military men were Ganata,
who headed the abducting team, Hilario, who drove the van, and George. Subsequent
incidents of their long captivity, as narrated by the petitioners, validated their assertion of
the participation of the elements of the 7th Infantry Division, Philippine Army, and their
CAFGU auxiliaries.

We are convinced, too, that the reason for the abduction was the suspicion that the
petitioners were either members or sympathizers of the NPA, considering that the
abductors were looking for Ka Bestre, who turned out to be Rolando, the brother of
petitioners.
The efforts exerted by the Military Command to look into the abduction were, at best,
merely superficial. The investigation of the Provost Marshall of the 7th Infantry Division
focused on the one-sided version of the CAFGU auxiliaries involved. This one-sidedness
might be due to the fact that the Provost Marshall could delve only into the participation of
military personnel, but even then the Provost Marshall should have refrained from
outrightly exculpating the CAFGU auxiliaries he perfunctorily investigated
Gen. Palparans participation in the abduction was also established. At the very least, he
was aware of the petitioners captivity at the hands of men in uniform assigned to his
command. In fact, he or any other officer tendered no controversion to the firm claim of
Raymond that he (Gen. Palparan) met them in person in a safehouse in Bulacan and told
them what he wanted them and their parents to do or not to be doing. Gen. Palparans
direct and personal role in the abduction might not have been shown but his knowledge of
the dire situation of the petitioners during their long captivity at the hands of military
personnel under his command bespoke of his indubitable command policy that
unavoidably encouraged and not merely tolerated the abduction of civilians without due
process of law and without probable cause.
In the habeas proceedings, the Court, through the Former Special Sixth Division (Justices
Buzon, chairman; Santiago-Lagman, Sr., member; and Romilla-Lontok, Jr.,
member/ponente.) found no clear and convincing evidence to establish that M/Sgt. Rizal
Hilario had anything to do with the abduction or the detention. Hilarios involvement could
not, indeed, be then established after Evangeline Francisco, who allegedly saw Hilario
drive the van in which the petitioners were boarded and ferried following the abduction, did
not testify. (See the decision of the habeas proceedings at rollo, p. 52)
However, in this case, Raymond attested that Hilario drove the white L-300 van in which
the petitioners were brought away from their houses on February 14, 2006. Raymond also
attested that Hilario participated in subsequent incidents during the captivity of the
petitioners, one of which was when Hilario fetched them from Fort Magsaysay on board a
Revo and conveyed them to a detachment in Pinaud, San Ildefonso, Bulacan where they
were detained for at least a week in a house of strong materials (Exhibit D, rollo, p. 205)
and then Hilario (along with Efren) brought them to Sapang, San Miguel, Bulacan on board
the Revo, to an unfinished house inside the compound of Kapitan where they were kept for
more or less three months. (Exhibit D, rollo, p. 205) It was there where the petitioners
came face to face with Gen. Palparan. Hilario and Efren also brought the petitioners one
early morning to the house of the petitioners parents, where only Raymond was presented
to the parents to relay the message from Gen. Palparan not to join anymore rallies. On that
occasion, Hilario warned the parents that they would not again see their sons should they
join any rallies to denounce human rights violations. (Exhibit D, rollo, pp. 205-206) Hilario
was also among four Master Sergeants (the others being Arman, Ganata and Cabalse)
with whom Gen. Palparan conversed on the occasion when Gen. Palparan required
Raymond to take the medicines for his health. (Exhibit D, rollo, p. 206) There were other
occasions when the petitioners saw that Hilario had a direct hand in their torture.
It is clear, therefore, that the participation of Hilario in the abduction and forced
disappearance of the petitioners was established. The participation of other military
personnel like Arman, Ganata, Cabalse and Caigas, among others, was similarly
established.
xxx xxx xxx
As to the CAFGU auxiliaries, the habeas Court found them personally involved in the
abduction. We also do, for, indeed, the evidence of their participation is overwhelming.
[101]
We reject the claim of petitioners that respondent Raymond Manalos statements were not
corroborated by other independent and credible pieces of evidence.[102] Raymonds
affidavit and testimony were corroborated by the affidavit of respondent Reynaldo Manalo.
The testimony and medical reports prepared by forensic specialist Dr. Molino, and the
pictures of the scars left by the physical injuries inflicted on respondents,[103] also
corroborate respondents accounts of the torture they endured while in detention.
Respondent Raymond Manalos familiarity with the facilities in Fort Magsaysay such as the
DTU, as shown in his testimony and confirmed by Lt. Col. Jimenez to be the Division
Training Unit,[104] firms up respondents story that they were detained for some time in
said military facility.
In Ortiz v. Guatemala,[105] a case decided by the Inter-American Commission on Human
Rights, the Commission considered similar evidence, among others, in finding that
complainant Sister Diana Ortiz was abducted and tortured by agents of the Guatemalan
government. In this case, Sister Ortiz was kidnapped and tortured in early November 1989.
The Commissions findings of fact were mostly based on the consistent and credible

43

statements, written and oral, made by Sister Ortiz regarding her ordeal.[106] These
statements were supported by her recognition of portions of the route they took when she
was being driven out of the military installation where she was detained.[107] She was also
examined by a medical doctor whose findings showed that the 111 circular second degree
burns on her back and abrasions on her cheek coincided with her account of cigarette
burning and torture she suffered while in detention.[108]
With the secret nature of an enforced disappearance and the torture perpetrated on the
victim during detention, it logically holds that much of the information and evidence of the
ordeal will come from the victims themselves, and the veracity of their account will depend
on their credibility and candidness in their written and/or oral statements. Their statements
can be corroborated by other evidence such as physical evidence left by the torture they
suffered or landmarks they can identify in the places where they were detained. Where
powerful military officers are implicated, the hesitation of witnesses to surface and testify
against them comes as no surprise.
We now come to the right of the respondents to the privilege of the writ of amparo. There is
no quarrel that the enforced disappearance of both respondents Raymond and Reynaldo
Manalo has now passed as they have escaped from captivity and surfaced. But while
respondents admit that they are no longer in detention and are physically free, they assert
that they are not free in every sense of the word[109] as their movements continue to be
restricted for fear that people they have named in their Judicial Affidavits and testified
against (in the case of Raymond) are still at large and have not been held accountable in
any way. These people are directly connected to the Armed Forces of the Philippines and
are, thus, in a position to threaten respondents rights to life, liberty and security.[110]
(emphasis supplied) Respondents claim that they are under threat of being once again
abducted, kept captive or even killed, which constitute a direct violation of their right to
security of person.[111]
Elaborating on the right to security, in general, respondents point out that this right is often
associated with liberty; it is also seen as an expansion of rights based on the prohibition
against torture and cruel and unusual punishment. Conceding that there is no right to
security expressly mentioned in Article III of the 1987 Constitution, they submit that their
rights to be kept free from torture and from incommunicado detention and solitary detention
places[112] fall under the general coverage of the right to security of person under the writ
of Amparo. They submit that the Court ought to give an expansive recognition of the right
to security of person in view of the State Policy under Article II of the 1987 Constitution
which enunciates that, The State values the dignity of every human person and guarantees
full respect for human rights. Finally, to justify a liberal interpretation of the right to security
of person, respondents cite the teaching in Moncupa v. Enrile[113] that the right to liberty
may be made more meaningful only if there is no undue restraint by the State on the
exercise of that liberty[114] such as a requirement to report under unreasonable
restrictions that amounted to a deprivation of liberty[115] or being put under monitoring and
surveillance.[116]
In sum, respondents assert that their cause of action consists in the threat to their right to
life and liberty, and a violation of their right to security.
Let us put this right to security under the lens to determine if it has indeed been violated as
respondents assert. The right to security or the right to security of person finds a textual
hook in Article III, Section 2 of the 1987 Constitution which provides, viz:
Sec. 2. The right of the people to be secure in their persons, houses, papers and effects
against unreasonable searches and seizures of whatever nature and for any purpose shall
be inviolable, and no search warrant or warrant of arrest shall issue except upon probable
cause to be determined personally by the judge
At the core of this guarantee is the immunity of ones person, including the extensions of
his/her person houses, papers, and effects against government intrusion. Section 2 not
only limits the states power over a persons home and possessions, but more importantly,
protects the privacy and sanctity of the person himself.[117] The purpose of this provision
was enunciated by the Court in People v. CFI of Rizal, Branch IX, Quezon City, viz: [118]
The purpose of the constitutional guarantee against unreasonable searches and seizures
is to prevent violations of private security in person and property and unlawful invasion of
the security of the home by officers of the law acting under legislative or judicial sanction
and to give remedy against such usurpation when attempted. (Adams v. New York, 192
U.S. 858; Alvero v. Dizon, 76 Phil. 637 [1946]). The right to privacy is an essential condition
to the dignity and happiness and to the peace and security of every individual, whether it
be of home or of persons and correspondence. (Taada and Carreon, Political Law of the
Philippines, Vol. 2, 139 [1962]). The constitutional inviolability of this great fundamental
right against unreasonable searches and seizures must be deemed absolute as nothing is
closer to a mans soul than the serenity of his privacy and the assurance of his personal
security. Any interference allowable can only be for the best causes and reasons.[119]
(emphases supplied)
While the right to life under Article III, Section 1[120] guarantees essentially the right to be
alive[121] - upon which the enjoyment of all other rights is preconditioned - the right to

security of person is a guarantee of the secure quality of this life, viz: The life to which each
person has a right is not a life lived in fear that his person and property may be
unreasonably violated by a powerful ruler. Rather, it is a life lived with the assurance that
the government he established and consented to, will protect the security of his person and
property. The ideal of security in life and property pervades the whole history of man. It
touches every aspect of mans existence.[122] In a broad sense, the right to security of
person emanates in a persons legal and uninterrupted enjoyment of his life, his limbs, his
body, his health, and his reputation. It includes the right to exist, and the right to enjoyment
of life while existing, and it is invaded not only by a deprivation of life but also of those
things which are necessary to the enjoyment of life according to the nature, temperament,
and lawful desires of the individual.[123]
A closer look at the right to security of person would yield various permutations of the
exercise of this right.
First, the right to security of person is freedom from fear. In its whereas clauses, the
Universal Declaration of Human Rights (UDHR) enunciates that a world in which human
beings shall enjoy freedom of speech and belief and freedom from fear and want has been
proclaimed as the highest aspiration of the common people. (emphasis supplied) Some
scholars postulate that freedom from fear is not only an aspirational principle, but
essentially an individual international human right.[124] It is the right to security of person
as the word security itself means freedom from fear.[125] Article 3 of the UDHR provides,
viz:
Everyone has the right to life, liberty and security of person.[126] (emphasis supplied)
In furtherance of this right declared in the UDHR, Article 9(1) of the International Covenant
on Civil and Political Rights (ICCPR) also provides for the right to security of person, viz:
1. Everyone has the right to liberty and security of person. No one shall be subjected to
arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds
and in accordance with such procedure as are established by law. (emphasis supplied)
The Philippines is a signatory to both the UDHR and the ICCPR.
In the context of Section 1 of the Amparo Rule, freedom from fear is the right and any
threat to the rights to life, liberty or security is the actionable wrong. Fear is a state of mind,
a reaction; threat is a stimulus, a cause of action. Fear caused by the same stimulus can
range from being baseless to well-founded as people react differently. The degree of fear
can vary from one person to another with the variation of the prolificacy of their
imagination, strength of character or past experience with the stimulus. Thus, in the
amparo context, it is more correct to say that the right to security is actually the freedom
from threat. Viewed in this light, the threatened with violation Clause in the latter part of
Section 1 of the Amparo Rule is a form of violation of the right to security mentioned in the
earlier part of the provision.[127]
Second, the right to security of person is a guarantee of bodily and psychological integrity
or security. Article III, Section II of the 1987 Constitution guarantees that, as a general rule,
ones body cannot be searched or invaded without a search warrant.[128] Physical injuries
inflicted in the context of extralegal killings and enforced disappearances constitute more
than a search or invasion of the body. It may constitute dismemberment, physical
disabilities, and painful physical intrusion. As the degree of physical injury increases, the
danger to life itself escalates. Notably, in criminal law, physical injuries constitute a crime
against persons because they are an affront to the bodily integrity or security of a person.
[129]
Physical torture, force, and violence are a severe invasion of bodily integrity. When
employed to vitiate the free will such as to force the victim to admit, reveal or fabricate
incriminating information, it constitutes an invasion of both bodily and psychological
integrity as the dignity of the human person includes the exercise of free will. Article III,
Section 12 of the 1987 Constitution more specifically proscribes bodily and psychological
invasion, viz:
(2) No torture, force, violence, threat or intimidation, or any other means which vitiate the
free will shall be used against him (any person under investigation for the commission of
an offense). Secret detention places, solitary, incommunicado or other similar forms of
detention are prohibited.
Parenthetically, under this provision, threat and intimidation that vitiate the free will although not involving invasion of bodily integrity - nevertheless constitute a violation of the
right to security in the sense of freedom from threat as afore-discussed.
Article III, Section 12 guarantees freedom from dehumanizing abuses of persons under
investigation for the commission of an offense. Victims of enforced disappearances who
are not even under such investigation should all the more be protected from these
degradations.
An overture to an interpretation of the right to security of person as a right against torture
was made by the European Court of Human Rights (ECHR) in the recent case of Popov v.
Russia.[130] In this case, the claimant, who was lawfully detained, alleged that the state
authorities had physically abused him in prison, thereby violating his right to security of
person. Article 5(1) of the European Convention on Human Rights provides, viz: Everyone

44

has the right to liberty and security of person. No one shall be deprived of his liberty save
in the following cases and in accordance with a procedure prescribed by law ... (emphases
supplied) Article 3, on the other hand, provides that (n)o one shall be subjected to torture
or to inhuman or degrading treatment or punishment. Although the application failed on the
facts as the alleged ill-treatment was found baseless, the ECHR relied heavily on the
concept of security in holding, viz:
...the applicant did not bring his allegations to the attention of domestic authorities at the
time when they could reasonably have been expected to take measures in order to ensure
his security and to investigate the circumstances in question.
xxx xxx xxx
... the authorities failed to ensure his security in custody or to comply with the procedural
obligation under Art.3 to conduct an effective investigation into his allegations.[131]
(emphasis supplied)
The U.N. Committee on the Elimination of Discrimination against Women has also made a
statement that the protection of the bodily integrity of women may also be related to the
right to security and liberty, viz:
gender-based violence which impairs or nullifies the enjoyment by women of human rights
and fundamental freedoms under general international law or under specific human rights
conventions is discrimination within the meaning of article 1 of the Convention (on the
Elimination of All Forms of Discrimination Against Women). These rights and freedoms
include . . . the right to liberty and security of person.[132]
Third, the right to security of person is a guarantee of protection of ones rights by the
government. In the context of the writ of amparo, this right is built into the guarantees of
the right to life and liberty under Article III, Section 1 of the 1987 Constitution and the right
to security of person (as freedom from threat and guarantee of bodily and psychological
integrity) under Article III, Section 2. The right to security of person in this third sense is a
corollary of the policy that the State guarantees full respect for human rights under Article
II, Section 11 of the 1987 Constitution.[133] As the government is the chief guarantor of
order and security, the Constitutional guarantee of the rights to life, liberty and security of
person is rendered ineffective if government does not afford protection to these rights
especially when they are under threat. Protection includes conducting effective
investigations, organization of the government apparatus to extend protection to victims of
extralegal killings or enforced disappearances (or threats thereof) and/or their families, and
bringing offenders to the bar of justice. The Inter-American Court of Human Rights
stressed the importance of investigation in the Velasquez Rodriguez Case,[134] viz:
(The duty to investigate) must be undertaken in a serious manner and not as a mere
formality preordained to be ineffective. An investigation must have an objective and be
assumed by the State as its own legal duty, not as a step taken by private interests that
depends upon the initiative of the victim or his family or upon their offer of proof, without an
effective search for the truth by the government.[135]
This third sense of the right to security of person as a guarantee of government protection
has been interpreted by the United Nations Human Rights Committee[136] in not a few
cases involving Article 9[137] of the ICCPR. While the right to security of person appears in
conjunction with the right to liberty under Article 9, the Committee has ruled that the right to
security of person can exist independently of the right to liberty. In other words, there need
not necessarily be a deprivation of liberty for the right to security of person to be invoked.
In Delgado Paez v. Colombia,[138] a case involving death threats to a religion teacher at a
secondary school in Leticia, Colombia, whose social views differed from those of the
Apostolic Prefect of Leticia, the Committee held, viz:
The first sentence of article 9 does not stand as a separate paragraph. Its location as a
part of paragraph one could lead to the view that the right to security arises only in the
context of arrest and detention. The travaux prparatoires indicate that the discussions of
the first sentence did indeed focus on matters dealt with in the other provisions of article 9.
The Universal Declaration of Human Rights, in article 3, refers to the right to life, the right
to liberty and the right to security of the person. These elements have been dealt with in
separate clauses in the Covenant. Although in the Covenant the only reference to the right
of security of person is to be found in article 9, there is no evidence that it was intended to
narrow the concept of the right to security only to situations of formal deprivation of liberty.
At the same time, States parties have undertaken to guarantee the rights enshrined in the
Covenant. It cannot be the case that, as a matter of law, States can ignore known threats
to the life of persons under their jurisdiction, just because that he or she is not arrested or
otherwise detained. States parties are under an obligation to take reasonable and
appropriate measures to protect them. An interpretation of article 9 which would allow a
State party to ignore threats to the personal security of non-detained persons within its
jurisdiction would render totally ineffective the guarantees of the Covenant.[139] (emphasis
supplied)
The Paez ruling was reiterated in Bwalya v. Zambia,[140] which involved a political activist
and prisoner of conscience who continued to be intimidated, harassed, and restricted in his
movements following his release from detention. In a catena of cases, the ruling of the

Committee was of a similar import: Bahamonde v. Equatorial Guinea,[141] involving


discrimination, intimidation and persecution of opponents of the ruling party in that state;
Tshishimbi v. Zaire,[142] involving the abduction of the complainants husband who was a
supporter of democratic reform in Zaire; Dias v. Angola,[143] involving the murder of the
complainants partner and the harassment he (complainant) suffered because of his
investigation of the murder; and Chongwe v. Zambia,[144] involving an assassination
attempt on the chairman of an opposition alliance.
Similarly, the European Court of Human Rights (ECHR) has interpreted the right to security
not only as prohibiting the State from arbitrarily depriving liberty, but imposing a positive
duty on the State to afford protection of the right to liberty.[145] The ECHR interpreted the
right to security of person under Article 5(1) of the European Convention of Human Rights
in the leading case on disappearance of persons, Kurt v. Turkey.[146] In this case, the
claimants son had been arrested by state authorities and had not been seen since. The
familys requests for information and investigation regarding his whereabouts proved futile.
The claimant suggested that this was a violation of her sons right to security of person. The
ECHR ruled, viz:
... any deprivation of liberty must not only have been effected in conformity with the
substantive and procedural rules of national law but must equally be in keeping with the
very purpose of Article 5, namely to protect the individual from arbitrariness... Having
assumed control over that individual it is incumbent on the authorities to account for his or
her whereabouts. For this reason, Article 5 must be seen as requiring the authorities to
take effective measures to safeguard against the risk of disappearance and to conduct a
prompt effective investigation into an arguable claim that a person has been taken into
custody and has not been seen since.[147] (emphasis supplied)
Applying the foregoing concept of the right to security of person to the case at bar, we now
determine whether there is a continuing violation of respondents right to security.
First, the violation of the right to security as freedom from threat to respondents life, liberty
and security.
While respondents were detained, they were threatened that if they escaped, their families,
including them, would be killed. In Raymonds narration, he was tortured and poured with
gasoline after he was caught the first time he attempted to escape from Fort Magsaysay. A
call from a certain Mam, who wanted to see him before he was killed, spared him.
This time, respondents have finally escaped. The condition of the threat to be killed has
come to pass. It should be stressed that they are now free from captivity not because they
were released by virtue of a lawful order or voluntarily freed by their abductors. It ought to
be recalled that towards the end of their ordeal, sometime in June 2007 when respondents
were detained in a camp in Limay, Bataan, respondents captors even told them that they
were still deciding whether they should be executed. Respondent Raymond Manalo
attested in his affidavit, viz:
Kinaumagahan, naka-kadena pa kami. Tinanggal ang mga kadena mga 3 o 4 na araw
pagkalipas. Sinabi sa amin na kaya kami nakakadena ay dahil pinagdedesisyunan pa ng
mga sundalo kung papatayin kami o hindi.[148]
The possibility of respondents being executed stared them in the eye while they were in
detention. With their escape, this continuing threat to their life is apparent, moreso now that
they have surfaced and implicated specific officers in the military not only in their own
abduction and torture, but also in those of other persons known to have disappeared such
as Sherlyn Cadapan, Karen Empeo, and Manuel Merino, among others.
Understandably, since their escape, respondents have been under concealment and
protection by private citizens because of the threat to their life, liberty and security. The
threat vitiates their free will as they are forced to limit their movements or activities.[149]
Precisely because respondents are being shielded from the perpetrators of their abduction,
they cannot be expected to show evidence of overt acts of threat such as face-to-face
intimidation or written threats to their life, liberty and security. Nonetheless, the
circumstances of respondents abduction, detention, torture and escape reasonably support
a conclusion that there is an apparent threat that they will again be abducted, tortured, and
this time, even executed. These constitute threats to their liberty, security, and life,
actionable through a petition for a writ of amparo.
Next, the violation of the right to security as protection by the government. Apart from the
failure of military elements to provide protection to respondents by themselves perpetrating
the abduction, detention, and torture, they also miserably failed in conducting an effective
investigation of respondents abduction as revealed by the testimony and investigation
report of petitioners own witness, Lt. Col. Ruben Jimenez, Provost Marshall of the 7th
Infantry Division.
The one-day investigation conducted by Jimenez was very limited, superficial, and onesided. He merely relied on the Sworn Statements of the six implicated members of the
CAFGU and civilians whom he met in the investigation for the first time. He was present at
the investigation when his subordinate Lingad was taking the sworn statements, but he did

45

not propound a single question to ascertain the veracity of their statements or their
credibility. He did not call for other witnesses to test the alibis given by the six implicated
persons nor for the family or neighbors of the respondents.
In his affidavit, petitioner Secretary of National Defense attested that in a Memorandum
Directive dated October 31, 2007, he issued a policy directive addressed to the AFP Chief
of Staff, that the AFP should adopt rules of action in the event the writ of amparo is issued
by a competent court against any members of the AFP, which should essentially include
verification of the identity of the aggrieved party; recovery and preservation of relevant
evidence; identification of witnesses and securing statements from them; determination of
the cause, manner, location and time of death or disappearance; identification and
apprehension of the person or persons involved in the death or disappearance; and
bringing of the suspected offenders before a competent court.[150] Petitioner AFP Chief of
Staff also submitted his own affidavit attesting that he received the above directive of
respondent Secretary of National Defense and that acting on this directive, he immediately
caused to be issued a directive to the units of the AFP for the purpose of establishing the
circumstances of the alleged disappearance and the recent reappearance of the
respondents, and undertook to provide results of the investigations to respondents.[151] To
this day, however, almost a year after the policy directive was issued by petitioner
Secretary of National Defense on October 31, 2007, respondents have not been furnished
the results of the investigation which they now seek through the instant petition for a writ of
amparo.
Under these circumstances, there is substantial evidence to warrant the conclusion that
there is a violation of respondents right to security as a guarantee of protection by the
government.
In sum, we conclude that respondents right to security as freedom from threat is violated
by the apparent threat to their life, liberty and security of person. Their right to security as a
guarantee of protection by the government is likewise violated by the ineffective
investigation and protection on the part of the military.
Finally, we come to the reliefs granted by the Court of Appeals, which petitioners question.
First, that petitioners furnish respondents all official and unofficial reports of the
investigation undertaken in connection with their case, except those already in file with the
court.
Second, that petitioners confirm in writing the present places of official assignment of
M/Sgt. Hilario aka Rollie Castillo and Donald Caigas.
Third, that petitioners cause to be produced to the Court of Appeals all medical reports,
records and charts, and reports of any treatment given or recommended and medicines
prescribed, if any, to the Manalo brothers, to include a list of medical personnel (military
and civilian) who attended to them from February 14, 2006 until August 12, 2007.
With respect to the first and second reliefs, petitioners argue that the production order
sought by respondents partakes of the characteristics of a search warrant. Thus, they
claim that the requisites for the issuance of a search warrant must be complied with prior to
the grant of the production order, namely: (1) the application must be under oath or
affirmation; (2) the search warrant must particularly describe the place to be searched and
the things to be seized; (3) there exists probable cause with one specific offense; and (4)
the probable cause must be personally determined by the judge after examination under
oath or affirmation of the complainant and the witnesses he may produce.[152] In the case
at bar, however, petitioners point out that other than the bare, self-serving and vague
allegations made by respondent Raymond Manalo in his unverified declaration and
affidavit, the documents respondents seek to be produced are only mentioned generally by
name, with no other supporting details. They also argue that the relevancy of the
documents to be produced must be apparent, but this is not true in the present case as the
involvement of petitioners in the abduction has not been shown.
Petitioners arguments do not hold water. The production order under the Amparo Rule
should not be confused with a search warrant for law enforcement under Article III, Section
2 of the 1987 Constitution. This Constitutional provision is a protection of the people from
the unreasonable intrusion of the government, not a protection of the government from the
demand of the people such as respondents.
Instead, the amparo production order may be likened to the production of documents or
things under Section 1, Rule 27 of the Rules of Civil Procedure which provides in relevant
part, viz:
Section 1. Motion for production or inspection order.
Upon motion of any party showing good cause therefor, the court in which an action is
pending may (a) order any party to produce and permit the inspection and copying or
photographing, by or on behalf of the moving party, of any designated documents, papers,
books of accounts, letters, photographs, objects or tangible things, not privileged, which

constitute or contain evidence material to any matter involved in the action and which are
in his possession, custody or control
In Material Distributors (Phil.) Inc. v. Judge Natividad,[153] the respondent judge, under
authority of Rule 27, issued a subpoena duces tecum for the production and inspection of
among others, the books and papers of Material Distributors (Phil.) Inc. The company
questioned the issuance of the subpoena on the ground that it violated the search and
seizure clause. The Court struck down the argument and held that the subpoena pertained
to a civil procedure that cannot be identified or confused with unreasonable searches
prohibited by the Constitution
Moreover, in his affidavit, petitioner AFP Chief of Staff himself undertook to provide results
of the investigations conducted or to be conducted by the concerned unit relative to the
circumstances of the alleged disappearance of the persons in whose favor the Writ of
Amparo has been sought for as soon as the same has been furnished Higher
headquarters.
With respect to the second and third reliefs, petitioners assert that the disclosure of the
present places of assignment of M/Sgt. Hilario aka Rollie Castillo and Donald Caigas, as
well as the submission of a list of medical personnel, is irrelevant, improper, immaterial,
and unnecessary in the resolution of the petition for a writ of amparo. They add that it will
unnecessarily compromise and jeopardize the exercise of official functions and duties of
military officers and even unwittingly and unnecessarily expose them to threat of personal
injury or even death.
On the contrary, the disclosure of the present places of assignment of M/Sgt. Hilario aka
Rollie Castillo and Donald Caigas, whom respondents both directly implicated as
perpetrators behind their abduction and detention, is relevant in ensuring the safety of
respondents by avoiding their areas of territorial jurisdiction. Such disclosure would also
help ensure that these military officers can be served with notices and court processes in
relation to any investigation and action for violation of the respondents rights. The list of
medical personnel is also relevant in securing information to create the medical history of
respondents and make appropriate medical interventions, when applicable and necessary.
In blatant violation of our hard-won guarantees to life, liberty and security, these rights are
snuffed out from victims of extralegal killings and enforced disappearances. The writ of
amparo is a tool that gives voice to preys of silent guns and prisoners behind secret walls.
WHEREFORE, premises considered, the petition is DISMISSED. The Decision of the
Court of Appeals dated December 26, 2007 is affirmed.
RHONDA AVE S. VIVARES and SPS. MARGARITA and DAVID SUZARA, Petitioners,
vs.ST. THERESA'S COLLEGE, MYLENE RHEZA T. ESCUDERO, and JOHN DOES,
Respondents.
The individual's desire for privacy is never absolute, since participation in society is an
equally powerful desire. Thus each individual is continually engaged in a personal
adjustment process in which he balances the desire for privacy with the desire for
disclosure and communication of himself to others, in light of the environmental conditions
and social norms set by the society in which he lives.
- Alan Westin, Privacy and Freedom (1967)
The Case
Before Us is a Petition for Review on Certiorari under Rule 45 of the Rules of Court, in
relation to Section 19 of A.M. No. 08-1-16-SC,1 otherwise known as the "Rule on the Writ
of Habeas Data." Petitioners herein assail the July 27, 2012 Decision2 of the Regional Trial
Court, Branch 14 in Cebu City (RTC) in SP. Proc. No. 19251-CEB, which dismissed their
habeas data petition.
The Facts
Nenita Julia V. Daluz (Julia) and Julienne Vida Suzara (Julienne), both minors, were,
during the period material, graduating high school students at St. Theresa's College (STC),
Cebu City. Sometime in January 2012, while changing into their swimsuits for a beach
party they were about to attend, Julia and Julienne, along with several others, took digital
pictures of themselves clad only in their undergarments. These pictures were then
uploaded by Angela Lindsay Tan (Angela) on her Facebook3 profile.
Back at the school, Mylene Rheza T. Escudero (Escudero), a computer teacher at STCs
high school department, learned from her students that some seniors at STC posted
pictures online, depicting themselves from the waist up, dressed only in brassieres.
Escudero then asked her students if they knew who the girls in the photos are. In turn, they
readily identified Julia, Julienne, and Chloe Lourdes Taboada (Chloe), among others.

46

Using STCs computers, Escuderos students logged in to their respective personal


Facebook accounts and showed her photos of the identified students, which include: (a)
Julia and Julienne drinking hard liquor and smoking cigarettes inside a bar; and (b) Julia
and Julienne along the streets of Cebu wearing articles of clothing that show virtually the
entirety of their black brassieres. What is more, Escuderos students claimed that there
were times when access to or the availability of the identified students photos was not
confined to the girls Facebook friends,4 but were, in fact, viewable by any Facebook
user.5
Upon discovery, Escudero reported the matter and, through one of her students Facebook
page, showed the photosto Kristine Rose Tigol (Tigol), STCs Discipline-in-Charge, for
appropriate action. Thereafter, following an investigation, STC found the identified students
to have deported themselves in a manner proscribed by the schools Student Handbook, to
wit:
1. Possession of alcoholic drinks outside the school campus;
2. Engaging in immoral, indecent, obscene or lewd acts;
3. Smoking and drinking alcoholicbeverages in public places;

6. All the data and digital images that were extracted were boldly broadcasted by
respondents through their memorandum submitted to the RTC in connection with Civil
Case No. CEB-38594. To petitioners, the interplay of the foregoing constitutes an invasion
of their childrens privacy and, thus, prayed that: (a) a writ of habeas databe issued; (b)
respondents be ordered to surrender and deposit with the court all soft and printed copies
of the subjectdata before or at the preliminary hearing; and (c) after trial, judgment be
rendered declaring all information, data, and digital images accessed, saved or stored,
reproduced, spread and used, to have been illegally obtained inviolation of the childrens
right to privacy.
Finding the petition sufficient in form and substance, the RTC, through an Order dated July
5, 2012, issued the writ of habeas data. Through the same Order, herein respondents were
directed to file their verified written return, together with the supporting affidavits, within five
(5) working days from service of the writ.
In time, respondents complied with the RTCs directive and filed their verified written return,
laying down the following grounds for the denial of the petition, viz: (a) petitioners are not
the proper parties to file the petition; (b) petitioners are engaging in forum shopping; (c) the
instant case is not one where a writ of habeas data may issue;and (d) there can be no
violation of their right to privacy as there is no reasonable expectation of privacy on
Facebook.

4. Apparel that exposes the underwear;


Ruling of the Regional Trial Court
5. Clothing that advocates unhealthy behaviour; depicts obscenity; contains sexually
suggestive messages, language or symbols; and 6. Posing and uploading pictures on the
Internet that entail ample body exposure.

On July 27, 2012, the RTC rendered a Decision dismissing the petition for habeas data.
The dispositive portion of the Decision pertinently states:

On March 1, 2012, Julia, Julienne, Angela, and the other students in the pictures in
question, reported, as required, to the office of Sr. Celeste Ma. Purisima Pe (Sr. Purisima),
STCs high school principal and ICM6 Directress. They claimed that during the meeting,
they were castigated and verbally abused by the STC officials present in the conference,
including Assistant Principal Mussolini S. Yap (Yap), Roswinda Jumiller, and Tigol. What is
more, Sr. Purisima informed their parents the following day that, as part of their penalty,
they are barred from joining the commencement exercises scheduled on March 30, 2012.

WHEREFORE, in view of the foregoing premises, the Petition is hereby DISMISSED.

A week before graduation, or on March 23, 2012, Angelas mother, Dr. Armenia M. Tan
(Tan), filed a Petition for Injunction and Damages before the RTC of Cebu City against
STC, et al., docketed as Civil Case No. CEB-38594.7 In it, Tan prayed that defendants
therein be enjoined from implementing the sanction that precluded Angela from joining the
commencement exercises.

To the trial court, petitioners failed to prove the existence of an actual or threatened
violation of the minors right to privacy, one of the preconditions for the issuance of the writ
of habeas data. Moreover, the court a quoheld that the photos, having been uploaded on
Facebook without restrictions as to who may view them, lost their privacy in some way.
Besides, the RTC noted, STC gathered the photographs through legal means and for a
legal purpose, that is, the implementation of the schools policies and rules on discipline.

On March 25, 2012,petitioner Rhonda Ave Vivares (Vivares), the mother of Julia, joined the
fray as an intervenor. On March 28, 2012, defendants inCivil Case No. CEB-38594 filed
their memorandum, containing printed copies of the photographs in issue as annexes. That
same day, the RTC issued a temporary restraining order (TRO) allowing the students to
attend the graduation ceremony, to which STC filed a motion for reconsideration.
Despite the issuance of the TRO,STC, nevertheless, barred the sanctioned students from
participating in the graduation rites, arguing that, on the date of the commencement
exercises, its adverted motion for reconsideration on the issuance ofthe TRO remained
unresolved.
Thereafter, petitioners filed before the RTC a Petition for the Issuance of a Writ of Habeas
Data, docketed as SP. Proc. No. 19251-CEB8 on the basis of the following considerations:
1. The photos of their children in their undergarments (e.g., bra) were taken for posterity
before they changed into their swimsuits on the occasion of a birthday beach party;

The parties and media must observe the aforestated confidentiality.


xxxx
SO ORDERED.9

Not satisfied with the outcome, petitioners now come before this Court pursuant to Section
19 of the Rule on Habeas Data.10
The Issues
The main issue to be threshed out inthis case is whether or not a writ of habeas
datashould be issued given the factual milieu. Crucial in resolving the controversy,
however, is the pivotal point of whether or not there was indeed an actual or threatened
violation of the right to privacy in the life, liberty, or security of the minors involved in this
case.
Our Ruling
We find no merit in the petition.
Procedural issues concerning the availability of the Writ of Habeas Data

2. The privacy setting of their childrens Facebook accounts was set at "Friends Only."
They, thus, have a reasonable expectation of privacy which must be respected.
3. Respondents, being involved in the field of education, knew or ought to have known of
laws that safeguard the right to privacy. Corollarily, respondents knew or ought to have
known that the girls, whose privacy has been invaded, are the victims in this case, and not
the offenders. Worse, after viewing the photos, the minors were called "immoral" and were
punished outright;
4. The photos accessed belong to the girls and, thus, cannot be used and reproduced
without their consent. Escudero, however, violated their rights by saving digital copies of
the photos and by subsequently showing them to STCs officials. Thus, the Facebook
accounts of petitioners children were intruded upon;
5. The intrusion into the Facebook accounts, as well as the copying of information, data,
and digital images happened at STCs Computer Laboratory; and

The writ of habeas datais a remedy available to any person whose right to privacy in life,
liberty or security is violated or threatened by an unlawful act or omission of a public official
or employee, or of a private individual or entity engaged in the gathering, collecting or
storing of data or information regarding the person, family, home and correspondence of
the aggrieved party.11 It is an independent and summary remedy designed to protect the
image, privacy, honor, information, and freedom of information of an individual, and to
provide a forum to enforce ones right to the truth and to informational privacy. It seeks to
protect a persons right to control information regarding oneself, particularly in instances in
which such information is being collected through unlawful means in order to achieve
unlawful ends.12
In developing the writ of habeas data, the Court aimed to protect an individuals right to
informational privacy, among others. A comparative law scholar has, in fact, defined
habeas dataas "a procedure designed to safeguard individual freedom from abuse in the
information age."13 The writ, however, will not issue on the basis merely of an alleged

47

unauthorized access to information about a person.Availment of the writ requires the


existence of a nexus between the right to privacy on the one hand, and the right to life,
liberty or security on the other.14 Thus, the existence of a persons right to informational
privacy and a showing, at least by substantial evidence, of an actual or threatened violation
of the right to privacy in life, liberty or security of the victim are indispensable before the
privilege of the writ may be extended.15
Without an actionable entitlement in the first place to the right to informational privacy, a
habeas datapetition will not prosper. Viewed from the perspective of the case at bar,this
requisite begs this question: given the nature of an online social network (OSN)(1) that it
facilitates and promotes real-time interaction among millions, if not billions, of users, sans
the spatial barriers,16 bridging the gap created by physical space; and (2) that any
information uploaded in OSNs leavesan indelible trace in the providers databases, which
are outside the control of the end-usersis there a right to informational privacy in OSN
activities of its users? Before addressing this point, We must first resolve the procedural
issues in this case.
a. The writ of habeas data is not only confined to cases of extralegal killings and enforced
disappearances
Contrary to respondents submission, the Writ of Habeas Datawas not enacted solely for
the purpose of complementing the Writ of Amparoin cases of extralegal killings and
enforced disappearances.

aggrieved party and his or her correspondences, or about his or her family. Such individual
or entity need not be in the business of collecting or storing data.
To "engage" in something is different from undertaking a business endeavour. To "engage"
means "to do or take part in something."19 It does not necessarily mean that the activity
must be done in pursuit of a business. What matters is that the person or entity must be
gathering, collecting or storing said data or information about the aggrieved party or his or
her family. Whether such undertaking carries the element of regularity, as when one
pursues a business, and is in the nature of a personal endeavour, for any other reason or
even for no reason at all, is immaterial and such will not prevent the writ from getting to
said person or entity.
To agree with respondents above argument, would mean unduly limiting the reach of the
writ to a very small group, i.e., private persons and entities whose business is data
gathering and storage, and in the process decreasing the effectiveness of the writ asan
instrument designed to protect a right which is easily violated in view of rapid
advancements in the information and communications technologya right which a great
majority of the users of technology themselves are not capable of protecting.
Having resolved the procedural aspect of the case, We now proceed to the core of the
controversy.
The right to informational privacy on Facebook

Section 2 of the Rule on the Writ of Habeas Data provides:

a. The Right to Informational Privacy

Sec. 2. Who May File. Any aggrieved party may file a petition for the writ of habeas data.
However, in cases of extralegal killings and enforced disappearances, the petition may be
filed by:

The concept of privacyhas, through time, greatly evolved, with technological


advancements having an influential part therein. This evolution was briefly recounted in
former Chief Justice Reynato S. Punos speech, The Common Right to Privacy,20 where
he explained the three strands of the right to privacy, viz: (1) locational or situational
privacy;21 (2) informational privacy; and (3) decisional privacy.22 Of the three, what is
relevant to the case at bar is the right to informational privacyusually defined as the right
of individuals to control information about themselves.23

(a) Any member of the immediate family of the aggrieved party, namely: the spouse,
children and parents; or
(b) Any ascendant, descendant or collateral relative of the aggrieved party within the fourth
civil degreeof consanguinity or affinity, in default of those mentioned in the preceding
paragraph. (emphasis supplied)
Had the framers of the Rule intended to narrow the operation of the writ only to cases of
extralegal killings or enforced disappearances, the above underscored portion of Section 2,
reflecting a variance of habeas data situations, would not have been made.
Habeas data, to stress, was designed "to safeguard individual freedom from abuse in the
information age."17 As such, it is erroneous to limit its applicability to extralegal killings and
enforced disappearances only. In fact, the annotations to the Rule preparedby the
Committee on the Revision of the Rules of Court, after explaining that the Writ of Habeas
Data complements the Writ of Amparo, pointed out that:
The writ of habeas data, however, can be availed of as an independent remedy to enforce
ones right to privacy, more specifically the right to informational privacy. The remedies
against the violation of such right can include the updating, rectification, suppression or
destruction of the database or information or files in possession or in control of
respondents.18 (emphasis Ours) Clearly then, the privilege of the Writ of Habeas Datamay
also be availed of in cases outside of extralegal killings and enforced disappearances.

With the availability of numerous avenues for information gathering and data sharing
nowadays, not to mention each systems inherent vulnerability to attacks and intrusions,
there is more reason that every individuals right to control said flow of information should
be protected and that each individual should have at least a reasonable expectation of
privacy in cyberspace. Several commentators regarding privacy and social networking
sites, however, all agree that given the millions of OSN users, "[i]n this [Social Networking]
environment, privacy is no longer grounded in reasonable expectations, but rather in some
theoretical protocol better known as wishful thinking."24
It is due to this notion that the Court saw the pressing need to provide for judicial remedies
that would allow a summary hearing of the unlawful use of data or information and to
remedy possible violations of the right to privacy.25 In the same vein, the South African
High Court, in its Decision in the landmark case, H v. W,26 promulgated on January30,
2013, recognized that "[t]he law has to take into account the changing realities not only
technologically but also socially or else it will lose credibility in the eyes of the people. x x x
It is imperative that the courts respond appropriately to changing times, acting cautiously
and with wisdom." Consistent with this, the Court, by developing what may be viewed as
the Philippine model of the writ of habeas data, in effect, recognized that, generally
speaking, having an expectation of informational privacy is not necessarily incompatible
with engaging in cyberspace activities, including those that occur in OSNs.

b. Meaning of "engaged" in the gathering, collecting or storing of data or information


Respondents contention that the habeas data writ may not issue against STC, it not being
an entity engaged in the gathering, collecting or storing of data or information regarding the
person, family, home and correspondence of the aggrieved party, while valid to a point, is,
nonetheless, erroneous.

The question now though is up to whatextent is the right to privacy protected in OSNs?
Bear in mind that informational privacy involves personal information. At the same time, the
very purpose of OSNs is socializingsharing a myriad of information,27 some of which
would have otherwise remained personal.
b. Facebooks Privacy Tools: a response to the clamor for privacy in OSN activities

To be sure, nothing in the Rule would suggest that the habeas data protection shall be
available only against abuses of a person or entity engaged in the businessof gathering,
storing, and collecting of data. As provided under Section 1 of the Rule:
Section 1. Habeas Data. The writ of habeas datais a remedy available to any person
whose right to privacy in life, liberty or security is violated or threatened by an unlawful act
or omission of a public official or employee, or of a private individual or entity engaged in
the gathering, collecting or storing of data or information regarding the person, family,
home and correspondence of the aggrieved party. (emphasis Ours)
The provision, when taken in its proper context, as a whole, irresistibly conveys the idea
that habeas data is a protection against unlawful acts or omissions of public officials and of
private individuals or entities engaged in gathering, collecting, or storing data about the

Briefly, the purpose of an OSN is precisely to give users the ability to interact and to stay
connected to other members of the same or different social media platform through the
sharing of statuses, photos, videos, among others, depending on the services provided by
the site. It is akin to having a room filled with millions of personal bulletin boards or "walls,"
the contents of which are under the control of each and every user. In his or her bulletin
board, a user/owner can post anythingfrom text, to pictures, to music and videos
access to which would depend on whether he or she allows one, some or all of the other
users to see his or her posts. Since gaining popularity, the OSN phenomenon has paved
the way to the creation of various social networking sites, includingthe one involved in the
case at bar, www.facebook.com (Facebook), which, according to its developers, people
use "to stay connected with friends and family, to discover whats going on in the world,
and to share and express what matters to them."28

48

Facebook connections are established through the process of "friending" another user. By
sending a "friend request," the user invites another to connect their accounts so that they
can view any and all "Public" and "Friends Only" posts of the other.Once the request is
accepted, the link is established and both users are permitted to view the other users
"Public" or "Friends Only" posts, among others. "Friending," therefore, allows the user to
form or maintain one-to-one relationships with other users, whereby the user gives his or
her "Facebook friend" access to his or her profile and shares certain information to the
latter.29
To address concerns about privacy,30 but without defeating its purpose, Facebook was
armed with different privacy tools designed to regulate the accessibility of a users profile31
as well as information uploaded by the user. In H v. W,32 the South Gauteng High Court
recognized this ability of the users to "customize their privacy settings," but did so with this
caveat: "Facebook states in its policies that, although it makes every effort to protect a
users information, these privacy settings are not foolproof."33
For instance, a Facebook user canregulate the visibility and accessibility of digital
images(photos), posted on his or her personal bulletin or "wall," except for the usersprofile
picture and ID, by selecting his or her desired privacy setting:
(a) Public - the default setting; every Facebook user can view the photo;
(b) Friends of Friends - only the users Facebook friends and their friends can view the
photo;
(b) Friends - only the users Facebook friends can view the photo;
(c) Custom - the photo is made visible only to particular friends and/or networks of the
Facebook user; and

the minors limit the disclosure of the photos such that the images were kept within their
zones of privacy? This determination is necessary in resolving the issue of whether the
minors carved out a zone of privacy when the photos were uploaded to Facebook so that
the images will be protected against unauthorized access and disclosure.
Petitioners, in support of their thesis about their childrens privacy right being violated,
insist that Escudero intruded upon their childrens Facebook accounts, downloaded copies
ofthe pictures and showed said photos to Tigol. To them, this was a breach of the minors
privacy since their Facebook accounts, allegedly, were under "very private" or "Only
Friends" setting safeguarded with a password.39 Ultimately, they posit that their childrens
disclosure was only limited since their profiles were not open to public viewing. Therefore,
according to them, people who are not their Facebook friends, including respondents, are
barred from accessing said post without their knowledge and consent. Aspetitioners
children testified, it was Angelawho uploaded the subjectphotos which were only viewable
by the five of them,40 although who these five are do not appear on the records.
Escudero, on the other hand, stated in her affidavit41 that "my students showed me some
pictures of girls cladin brassieres. This student [sic] of mine informed me that these are
senior high school [students] of STC, who are their friends in [F]acebook. x x x They then
said [that] there are still many other photos posted on the Facebook accounts of these
girls. At the computer lab, these students then logged into their Facebook account [sic],
and accessed from there the various photographs x x x. They even told me that there had
been times when these photos were public i.e., not confined to their friends in Facebook."
In this regard, We cannot give muchweight to the minors testimonies for one key reason:
failure to question the students act of showing the photos to Tigol disproves their
allegation that the photos were viewable only by the five of them. Without any evidence to
corroborate their statement that the images were visible only to the five of them, and
without their challenging Escuderos claim that the other students were able to view the
photos, their statements are, at best, self-serving, thus deserving scant consideration.42

(d) Only Me - the digital image can be viewed only by the user.
The foregoing are privacy tools, available to Facebook users, designed to set up barriers to
broaden or limit the visibility of his or her specific profile content, statuses, and photos,
among others, from another users point of view. In other words, Facebook extends its
users an avenue to make the availability of their Facebook activities reflect their choice as
to "when and to what extent to disclose facts about [themselves] and to put others in the
position of receiving such confidences."34 Ideally, the selected setting will be based on
ones desire to interact with others, coupled with the opposing need to withhold certain
information as well as to regulate the spreading of his or her personal information.
Needless to say, as the privacy setting becomes more limiting, fewer Facebook users can
view that users particular post.

It is well to note that not one of petitioners disputed Escuderos sworn account that her
students, who are the minors Facebook "friends," showed her the photos using their own
Facebook accounts. This only goes to show that no special means to be able to viewthe
allegedly private posts were ever resorted to by Escuderos students,43 and that it is
reasonable to assume, therefore, that the photos were, in reality, viewable either by (1)
their Facebook friends, or (2) by the public at large.
Considering that the default setting for Facebook posts is"Public," it can be surmised that
the photographs in question were viewable to everyone on Facebook, absent any proof
that petitioners children positively limited the disclosure of the photograph. If suchwere the
case, they cannot invoke the protection attached to the right to informational privacy. The
ensuing pronouncement in US v. Gines-Perez44 is most instructive:

STC did not violate petitioners daughters right to privacy


Without these privacy settings, respondents contention that there is no reasonable
expectation of privacy in Facebook would, in context, be correct. However, such is not the
case. It is through the availability of said privacy tools that many OSN users are said to
have a subjective expectation that only those to whomthey grant access to their profile will
view the information they post or upload thereto.35
This, however, does not mean thatany Facebook user automatically has a protected
expectation of privacy inall of his or her Facebook activities.

[A] person who places a photograph on the Internet precisely intends to forsake and
renounce all privacy rights to such imagery, particularly under circumstances suchas here,
where the Defendant did not employ protective measures or devices that would have
controlled access to the Web page or the photograph itself.45
Also, United States v. Maxwell46 held that "[t]he more open the method of transmission is,
the less privacy one can reasonably expect. Messages sent to the public at large inthe
chat room or e-mail that is forwarded from correspondent to correspondent loses any
semblance of privacy."

Before one can have an expectation of privacy in his or her OSN activity, it is first
necessary that said user, in this case the children of petitioners,manifest the intention to
keepcertain posts private, through the employment of measures to prevent access thereto
or to limit its visibility.36 And this intention can materialize in cyberspace through the
utilization of the OSNs privacy tools. In other words, utilization of these privacy tools is the
manifestation,in cyber world, of the users invocation of his or her right to informational
privacy.37

That the photos are viewable by "friends only" does not necessarily bolster the petitioners
contention. In this regard, the cyber community is agreed that the digital images under this
setting still remain to be outside the confines of the zones of privacy in view of the
following:

Therefore, a Facebook user who opts to make use of a privacy tool to grant or deny
access to his or her post orprofile detail should not be denied the informational privacy
right which necessarily accompanies said choice.38 Otherwise, using these privacy tools
would be a feckless exercise, such that if, for instance, a user uploads a photo or any
personal information to his or her Facebook page and sets its privacy level at "Only Me" or
a custom list so that only the user or a chosen few can view it, said photo would still be
deemed public by the courts as if the user never chose to limit the photos visibility and
accessibility. Such position, if adopted, will not only strip these privacy tools of their
function but it would also disregard the very intention of the user to keep said photo or
information within the confines of his or her private space.

(2) A good number of Facebook users "befriend" other users who are total strangers;48

We must now determine the extent that the images in question were visible to other
Facebook users and whether the disclosure was confidential in nature. In other words, did

(1) Facebook "allows the world to be more open and connected by giving its users the
tools to interact and share in any conceivable way;"47

(3) The sheer number of "Friends" one user has, usually by the hundreds; and
(4) A users Facebook friend can "share"49 the formers post, or "tag"50 others who are not
Facebook friends with the former, despite its being visible only tohis or her own Facebook
friends.
It is well to emphasize at this point that setting a posts or profile details privacy to
"Friends" is no assurance that it can no longer be viewed by another user who is not
Facebook friends with the source of the content. The users own Facebook friend can
share said content or tag his or her own Facebook friend thereto, regardless of whether the
user tagged by the latter is Facebook friends or not with the former. Also, when the post is

49

shared or when a person is tagged, the respective Facebook friends of the person who
shared the post or who was tagged can view the post, the privacy setting of which was set
at "Friends."
To illustrate, suppose A has 100 Facebook friends and B has 200. A and B are not
Facebook friends. If C, As Facebook friend, tags B in As post, which is set at "Friends,"
the initial audience of 100 (As own Facebook friends) is dramatically increased to 300 (As
100 friends plus Bs 200 friends or the public, depending upon Bs privacy setting). As a
result, the audience who can view the post is effectively expandedand to a very large
extent.
This, along with its other features and uses, is confirmation of Facebooks proclivity
towards user interaction and socialization rather than seclusion or privacy, as it
encourages broadcasting of individual user posts. In fact, it has been said that OSNs have
facilitated their users self-tribute, thereby resulting into the "democratization of fame."51
Thus, it is suggested, that a profile, or even a post, with visibility set at "Friends Only"
cannot easily, more so automatically, be said to be "very private," contrary to petitioners
argument.
As applied, even assuming that the photos in issue are visible only to the sanctioned
students Facebook friends, respondent STC can hardly be taken to task for the perceived
privacy invasion since it was the minors Facebook friends who showed the pictures to
Tigol. Respondents were mere recipients of what were posted. They did not resort to any
unlawful means of gathering the information as it was voluntarily given to them by persons
who had legitimate access to the said posts. Clearly, the fault, if any, lies with the friends of
the minors. Curiously enough, however, neither the minors nor their parents imputed any
violation of privacy against the students who showed the images to Escudero.
Furthermore, petitioners failed to prove their contention that respondents reproduced and
broadcasted the photographs. In fact, what petitioners attributed to respondents as an act
of offensive disclosure was no more than the actuality that respondents appended said
photographs in their memorandum submitted to the trial court in connection with Civil Case
No. CEB-38594.52 These are not tantamount to a violation of the minors informational
privacy rights, contrary to petitioners assertion.

As such, STC cannot be faulted for being steadfast in its duty of teaching its students to
beresponsible in their dealings and activities in cyberspace, particularly in OSNs, whenit
enforced the disciplinary actions specified in the Student Handbook, absenta showing that,
in the process, it violated the students rights.
OSN users should be aware of the risks that they expose themselves to whenever they
engage incyberspace activities.1wphi1 Accordingly, they should be cautious enough to
control their privacy and to exercise sound discretion regarding how much information
about themselves they are willing to give up. Internet consumers ought to be aware that,
by entering or uploading any kind of data or information online, they are automatically and
inevitably making it permanently available online, the perpetuation of which is outside the
ambit of their control. Furthermore, and more importantly, information, otherwise private,
voluntarily surrendered by them can be opened, read, or copied by third parties who may
or may not be allowed access to such.
It is, thus, incumbent upon internet users to exercise due diligence in their online dealings
and activities and must not be negligent in protecting their rights. Equity serves the vigilant.
Demanding relief from the courts, as here, requires that claimants themselves take utmost
care in safeguarding a right which they allege to have been violated. These are
indispensable. We cannot afford protection to persons if they themselves did nothing to
place the matter within the confines of their private zone. OSN users must be mindful
enough to learn the use of privacy tools, to use them if they desire to keep the information
private, and to keep track of changes in the available privacy settings, such as those of
Facebook, especially because Facebook is notorious for changing these settings and the
site's layout often.
In finding that respondent STC and its officials did not violate the minors' privacy rights, We
find no cogent reason to disturb the findings and case disposition of the court a quo.
In light of the foregoing, the Court need not belabor the other assigned errors.
WHEREFORE, premises considered, the petition is hereby DENIED. The Decision dated
July 27, 2012 of the Regional Trial Court, Branch 14 in Cebu City in SP. Proc. No. 19251CEB is hereby AFFIRMED.

In sum, there can be no quibbling that the images in question, or to be more precise, the
photos of minor students scantily clad, are personal in nature, likely to affect, if
indiscriminately circulated, the reputation of the minors enrolled in a conservative
institution. However, the records are bereft of any evidence, other than bare assertions that
they utilized Facebooks privacy settings to make the photos visible only to them or to a
select few. Without proof that they placed the photographs subject of this case within the
ambit of their protected zone of privacy, they cannot now insist that they have an
expectation of privacy with respect to the photographs in question.

No pronouncement as to costs.

Had it been proved that the access tothe pictures posted were limited to the original
uploader, through the "Me Only" privacy setting, or that the users contact list has been
screened to limit access to a select few, through the "Custom" setting, the result may have
been different, for in such instances, the intention to limit access to the particular post,
instead of being broadcasted to the public at large or all the users friends en masse,
becomes more manifest and palpable.

EN.BANC

On Cyber Responsibility
It has been said that "the best filter is the one between your childrens ears."53 This means
that self-regulation on the part of OSN users and internet consumers ingeneral is the best
means of avoiding privacy rights violations.54 As a cyberspace communitymember, one
has to be proactive in protecting his or her own privacy.55 It is in this regard that many
OSN users, especially minors, fail.Responsible social networking or observance of the
"netiquettes"56 on the part of teenagers has been the concern of many due to the
widespreadnotion that teenagers can sometimes go too far since they generally lack the
people skills or general wisdom to conduct themselves sensibly in a public forum.57
Respondent STC is clearly aware of this and incorporating lessons on good cyber
citizenship in its curriculum to educate its students on proper online conduct may be
mosttimely. Too, it is not only STC but a number of schools and organizations have already
deemed it important to include digital literacy and good cyber citizenshipin their respective
programs and curricula in view of the risks that the children are exposed to every time they
participate in online activities.58 Furthermore, considering the complexity of the cyber
world and its pervasiveness,as well as the dangers that these children are wittingly or
unwittingly exposed to in view of their unsupervised activities in cyberspace, the
participation of the parents in disciplining and educating their children about being a good
digital citizen is encouraged by these institutions and organizations. In fact, it is believed
that "to limit such risks, theres no substitute for parental involvement and supervision."59

SO ORDERED.
REPUBLIC OF THE PHILIPPINES
SUPREME COURT
MANILA

MARYNETTE R. GAMBOA,
Petitioner,
-versusP/SSUPT. MARLOU C. CHAN, in
his capacity as the PNP-Provincial
Director of Ilocos Norte, and
P/SUPT. WILLIAM 0. FANG, in
his capacity as Chief~ Intelligence
Division, PNP Provincial Office,
Ilocos Norte,
Respondents.

SERENO, J.:
Before this Court is an Appeal by Certiorari (Under Rule 45 of the
Rules of Court) filed pursuant to Rule 19 1 of the Rule on the Writ of Habeas
1 Sec. 19. Appeal. - Any party may appeal from the final judgment or order to the Supreme
Court under
Data,2 seeking a review of the 9 September 2010 Decision in Special Proc.
No. 14979 of the Regional Trial Court, First Judicial Region, Laoag City,
Branch 13 (RTC Br. 13).3 The questioned Decision denied petitioner the
privilege of the writ of habeas data.4
At the time the present Petition was filed, petitioner Marynette R.
Gamboa (Gamboa) was the Mayor of Dingras, Ilocos Norte.5 Meanwhile,

50

respondent Police Senior Superintendent (P/SSUPT.) Marlou C. Chan was


the Officer-in-Charge, and respondent Police Superintendent (P/SUPT.)
William O. Fang was the Chief of the Provincial Investigation and Detective
Management Branch, both of the Ilocos Norte Police Provincial Office.6
On 8 December 2009, former President Gloria Macapagal-Arroyo
issued Administrative Order No. 275 (A.O. 275), Creating an Independent
Commission to Address the Alleged Existence of Private Armies in the
Country.7 The body, which was later on referred to as the Zearosa
Commission,8 was formed to investigate the existence of private army
groups (PAGs) in the country with a view to eliminating them before the 10
May 2010 elections and dismantling them permanently in the future.9 Upon
the conclusion of its investigation, the Zearosa Commission released and
submitted to the Office of the President a confidential report entitled A
Journey Towards H.O.P.E.: The Independent Commission Against Private
Armies Report to the President (the Report).10
The period of appeal shall be five (5) working days from the date of notice of the judgment
or final
order.
The appeal shall be given the same priority as in habeas corpus and amparo cases.
2 A.M. No. 08-1-06-SC, 22 January 2008.
3 Rollo, pp. 36-47; Decision dated 9 September 2010.
4 Id. at 47.
5 Id. at 4, Appeal by Certiorari.
6 Id. at 39-40, Decision; id. at 142-143, Affidavit of P/SSupt. Chan dated 21 July 2010; id.
at 144-145,
Affidavit of P/Supt. Fang dated 21 July 2010.
7 108 O.G. 310 (Jan., 2010).
8 Named after the Chairperson, retired Court of Appeals Associate Justice Monina ArevaloZearosa. The
other members of the body included Bishop Juan de Dios Pueblos, D.D., Alleem Mahmod
Mala L. Adilao,
(Ret.) General Virtus V. Gil, (Ret.) Lieutenant General Edilberto Pardo Adan, (Ret.) Herman
Zamora
Basbao, Dante Lazaro Jimenez, and General Jaime Callada Echeverria(+). Rollo, pp.
292-299.
9 Supra note 7.
10 Rollo, pp. 287-563; rollo, p. 20, Appeal by Certiorari; rollo, p. 591, Comment.
Gamboa alleged that the Philippine National Police in Ilocos Norte
(PNPIlocos Norte) conducted a series of surveillance operations against
her and her aides,11 and classified her as someone who keeps a
PAG.12 Purportedly without the benefit of data verification, PNPIlocos
Norte forwarded the information gathered on her to the Zearosa
Commission,13 thereby causing her inclusion in the Reports enumeration of
individuals maintaining PAGs.14 More specifically, she pointed out the
following items reflected therein:
(a) The Report cited the PNP as its source for the portion
regarding the status of PAGs in the Philippines.15
(b) The Report stated that x x x the PNP organized one
dedicated Special Task Group (STG) for each private armed group
(PAG) to monitor and counteract their activities.16
(c) Attached as Appendix F of the Report is a tabulation
generated by the PNP and captioned as Status of PAGs Monitoring
by STGs as of April 19, 2010, which classifies PAGs in the country
according to region, indicates their identity, and lists the prominent
personalities with whom these groups are associated.17 The first entry
in the table names a PAG, known as the Gamboa Group, linked to
herein petitioner Gamboa.18
(d) Statistics on the status of PAGs were based on data from
the PNP, to wit:
The resolutions were the subject of a national press conference
held in Malacaang on March 24, 2010 at which time, the Commission
was also asked to comment on the PNP report that out of one hundred
seventeen (117) partisan armed groups validated, twenty-four (24) had
11 Id. at 6, Appeal by Certiorari; id. at 51-52, Petition for the Writ of Habeas Data.
12 Id. at 20-23, Appeal by Certiorari; id. at 52, Petition for the Writ of Habeas Data.
13 Id.
14 Id. at 20-23, Appeal by Certiorari.
15 Id. at 20, Appeal by Certiorari; id. at 337, Report.
16 Id. at 20-21, Appeal by Certiorari; id. at 338, Report.

17 Id. at 21, Appeal by Certiorari; id. at 430-463, Appendix F of the Report.


18 Id. at 431, Appendix F of the Report.
been dismantled with sixty-seven (67) members apprehended and more
than eighty-six (86) firearms confiscated.
Commissioner Herman Basbao qualified that said statistics were
based on PNP data but that the more significant fact from his report is that
the PNP has been vigilant in monitoring the activities of these armed
groups and this vigilance is largely due to the existence of the Commission
which has continued communicating with the [Armed Forces of the
Philippines (AFP)] and PNP personnel in the field to constantly provide
data on the activities of the PAGs. Commissioner Basbao stressed that
the Commissions efforts have preempted the formation of the PAGs
because now everyone is aware that there is a body monitoring the
PAGs[] movement through the PNP. Commissioner [Lieutenant General
Edilberto Pardo Adan] also clarified that the PAGs are being destabilized
so that their ability to threaten and sow fear during the election has been
considerably weakened.19
(e) The Report briefly touched upon the validation system of
the PNP:
Also, in order to provide the Commission with accurate data which
is truly reflective of the situation in the field, the PNP complied with the
Commissions recommendation that they revise their validation system to
include those PAGs previously listed as dormant. In the most recent
briefing provided by the PNP on April 26, 2010, there are one hundred
seven (107) existing PAGs. Of these groups, the PNP reported that seven
(7) PAGs have been reorganized.20
On 6 and 7 July 2010, ABS-CBN broadcasted on its evening news
program the portion of the Report naming Gamboa as one of the politicians
alleged to be maintaining a PAG.21 Gamboa averred that her association with
a PAG also appeared on print media.22 Thus, she was publicly tagged as
someone who maintains a PAG on the basis of the unverified information
that the PNP-Ilocos Norte gathered and forwarded to the Zearosa
Commission.23 As a result, she claimed that her malicious or reckless
inclusion in the enumeration of personalities maintaining a PAG as
published in the Report also made her, as well as her supporters and other
19 Id. at 21-22, Appeal by Certiorari; id. at 348-349, Report.
20 Id. at 22, Appeal by Certiorari; id. at 364, Report.
21 The records refer to two different television news programs: the Position Paper
indicates TV Patrol
World, while the Return of the Writ mentions Bandila; id. at 6-7, Appeal by Certiorari; id. at
37, Decision;
id. at 59, Affidavit of Demijon Castillo dated 9 July 2010; id. at 133, Return of the Writ; id. at
147-148,
Position Paper of Gamboa; id. at 591, Comment.
22 Id. at 6-7, Appeal by Certiorari; id. at 166, Position Paper of Gamboa.
23 Id. at 52-53, Petition for the Writ of Habeas Data.
people identified with her, susceptible to harassment and police surveillance
operations.24
Contending that her right to privacy was violated and her reputation
maligned and destroyed, Gamboa filed a Petition dated 9 July 2010 for the
issuance of a writ of habeas data against respondents in their capacities as
officials of the PNP-Ilocos Norte.25 In her Petition, she prayed for the
following reliefs: (a) destruction of the unverified reports from the PNPIlocos
Norte database; (b) withdrawal of all information forwarded to higher
PNP officials; (c) rectification of the damage done to her honor; (d) ordering
respondents to refrain from forwarding unverified reports against her; and
(e) restraining respondents from making baseless reports.26
The case was docketed as Special Proc. No. 14979 and was raffled to
RTC Br. 13, which issued the corresponding writ on 14 July 2010 after
finding the Petition meritorious on its face.27 Thus, the trial court (a)
instructed respondents to submit all information and reports forwarded to
and used by the Zearosa Commission as basis to include her in the list of
persons maintaining PAGs; (b) directed respondents, and any person acting
on their behalf, to cease and desist from forwarding to the Zearosa
Commission, or to any other government entity, information that they may
have gathered against her without the approval of the court; (c) ordered
respondents to make a written return of the writ together with supporting
affidavits; and (d) scheduled the summary hearing of the case on 23 July

51

2010.28
In their Return of the Writ, respondents alleged that they had acted
within the bounds of their mandate in conducting the investigation and

September 2010,38 raising the following assignment of errors:


1. The trial court erred in ruling that the Zearosa Commission be
impleaded as either a necessary or indispensable party;

24 Id. at 52-54.
25 Id. at 48-58.
26 Id.
27 Id. at 113-114, Writ of Habeas Data dated 14 July 2010; id. at 115-117, Order dated 14
July 2010.
28 Id.

34 Id. at 41-42.
35 Id. at 44.
36 Id. at 44-46.
37 Id. at 47.
38 Id. at 3-34.

surveillance of Gamboa.29 The information stored in their database


supposedly pertained to two criminal cases in which she was implicated,
namely: (a) a Complaint for murder and frustrated murder docketed as NPS
DOC No. 1-04-INQ-091-00077, and (b) a Complaint for murder, frustrated
murder and direct assault upon a person in authority, as well as indirect
assault and multiple attempted murder, docketed as NPS DOCKET No. 104-INV-10-A-00009.30
Respondents likewise asserted that the Petition was incomplete for
failing to comply with the following requisites under the Rule on the Writ of
Habeas Data: (a) the manner in which the right to privacy was violated or
threatened with violation and how it affected the right to life, liberty or
security of Gamboa; (b) the actions and recourses she took to secure the data
or information; and (c) the location of the files, registers or databases, the
government office, and the person in charge, in possession or in control of the
data or information.31 They also contended that the Petition for Writ of
Habeas Data, being limited to cases of extrajudicial killings and enforced
disappearances, was not the proper remedy to address the alleged
besmirching of the reputation of Gamboa.32
RTC Br. 13, in its assailed Decision dated 9 September 2010,
dismissed the Petition.33 The trial court categorically ruled that the inclusion
of Gamboa in the list of persons maintaining PAGs, as published in the
Report, constituted a violation of her right to privacy, to wit:
In this light, it cannot also be disputed that by her inclusion in the
list of persons maintaining PAGs, [Gamboa]s right to privacy indubitably
has been violated. The violation understandably affects her life, liberty and
security enormously. The untold misery that comes with the tag of having
a PAG could even be insurmountable. As she essentially alleged in her
petition, she fears for her security that at any time of the day the unlimited
29 Id. at 118-145, Return of the Writ dated 22 July 2010.
30 Id. at 125.
31 Id. at 126-131.
32 Id. at 131-132.
33 Id. at 36-47, Decision.
powers of respondents may likely be exercised to further malign and
destroy her reputation and to transgress her right to life.
By her inclusion in the list of persons maintaining PAGs, it is
likewise undisputed that there was certainly intrusion into [Gamboa]s
activities. It cannot be denied that information was gathered as basis
therefor. After all, under Administrative Order No. 275, the Zearosa
Commission was tasked to investigate the existence of private armies in
the country, with all the powers of an investigative body under Section 37,
Chapter 9, Book I of the Administrative Code of 1987.
xxxxxxxxx
By her inclusion in the list of persons maintaining PAGs,
[Gamboa] alleged as she accused respondents, who are public officials, of
having gathered and provided information that made the Zearosa
Commission to include her in the list. Obviously, it was this gathering and
forwarding of information supposedly by respondents that petitioner barks
at as unlawful. x x x.34
Despite the foregoing findings, RTC Br. 13 nevertheless dismissed the
Petition on the ground that Gamboa failed to prove through substantial
evidence that the subject information originated from respondents, and that
they forwarded this database to the Zearosa Commission without the
benefit of prior verification.35 The trial court also ruled that even before
respondents assumed their official positions, information on her may have
already been acquired.36 Finally, it held that the Zearosa Commission, as
the body tasked to gather information on PAGs and authorized to disclose
information on her, should have been impleaded as a necessary if not a
compulsory party to the Petition.37
Gamboa then filed the instant Appeal by Certiorari dated 24

2. The trial court erred in declaring that [Gamboa] failed to present


sufficient proof to link respondents as the informant to [sic] the
Zearosa Commission;
3. The trial court failed to satisfy the spirit of Habeas Data;
4. The trial court erred in pronouncing that the reliance of the
Zearosa Commission to [sic] the PNP as alleged by [Gamboa] is
an assumption;
5. The trial court erred in making a point that respondents are distinct
to PNP as an agency.39
On the other hand, respondents maintain the following arguments: (a)
Gamboa failed to present substantial evidence to show that her right to
privacy in life, liberty or security was violated, and (b) the trial court
correctly dismissed the Petition on the ground that she had failed to present
sufficient proof showing that respondents were the source of the report
naming her as one who maintains a PAG.40
Meanwhile, Gamboa argues that although A.O. 275 was a lawful
order, fulfilling the mandate to dismantle PAGs in the country should be
done in accordance with due process, such that the gathering and forwarding
of unverified information on her must be considered unlawful.41 She also
reiterates that she was able to present sufficient evidence showing that the
subject information originated from respondents.42
In determining whether Gamboa should be granted the privilege of the
writ of habeas data, this Court is called upon to, first, unpack the concept of
the right to privacy; second, explain the writ of habeas data as an
extraordinary remedy that seeks to protect the right to informational privacy;
and finally, contextualize the right to privacy vis--vis the state interest
involved in the case at bar.
39 Id. at 7-8, Appeal by Certiorari.
40 Id. at 589-622, Comment dated 3 January 2011.
41 Id. at 647-656, Reply dated 29 January 2012.
42 Id.
The Right to Privacy
The right to privacy, as an inherent concept of liberty, has long been
recognized as a constitutional right. This Court, in Morfe v. Mutuc,43 thus
enunciated:
The due process question touching on an alleged deprivation of
liberty as thus resolved goes a long way in disposing of the objections
raised by plaintiff that the provision on the periodical submission of a
sworn statement of assets and liabilities is violative of the constitutional
right to privacy. There is much to be said for this view of Justice Douglas:
Liberty in the constitutional sense must mean more than freedom
from unlawful governmental restraint; it must include privacy as well,
if it is to be a repository of freedom. The right to be let alone is indeed
the beginning of all freedom. As a matter of fact, this right to be let alone
is, to quote from Mr. Justice Brandeis the most comprehensive of rights
and the right most valued by civilized men.
The concept of liberty would be emasculated if it does not likewise
compel respect for his personality as a unique individual whose claim to
privacy and interference demands respect. x x x.
xxxxxxxxx
x x x [I]n the leading case of Griswold v. Connecticut, Justice
Douglas, speaking for five members of the Court, stated: Various
guarantees create zones of privacy. The right of association contained in
the penumbra of the First Amendment is one, as we have seen. The Third
Amendment in its prohibition against the quartering of soldiers in any
house in time of peace without the consent of the owner is another facet
of that privacy. The Fourth Amendment explicitly affirms the right of the
people to be secure in their persons, houses, papers, and effects, against
unreasonable searches and seizures. The Fifth Amendment in its SelfIncrimination Clause enables the citizen to create a zone of privacy which
government may not force him to surrender to his detriment. The Ninth

52

Amendment provides: The enumeration in the Constitution, of certain


rights, shall not be construed to deny or disparage others retained by the
people. After referring to various American Supreme Court
decisions, Justice Douglas continued: These cases bear witness that the
right of privacy which presses for recognition is a legitimate one.
xxxxxxxxx
So it is likewise in our jurisdiction. The right to privacy as such is
accorded recognition independently of its identification with liberty; in
itself, it is fully deserving of constitutional protection. The language of
Prof. Emerson is particularly apt: The concept of limited government
has always included the idea that governmental powers stop short of
certain intrusions into the personal life of the citizen. This is indeed
43 130 Phil. 415 (1968).
one of the basic distinctions between absolute and limited government.
Ultimate and pervasive control of the individual, in all aspects of his life,
is the hallmark of the absolute state. In contrast, a system of limited
government, safeguards a private sector, which belongs to the individual,
firmly distinguishing it from the public sector, which the state can control.
Protection of this private sector protection, in other words, of the
dignity and integrity of the individual has become increasingly
important as modern society has developed. All the forces of a
technological age industrialization, urbanization, and organization
operate to narrow the area of privacy and facilitate intrusion into it. In
modern terms, the capacity to maintain and support this enclave of private
life marks the difference between a democratic and a totalitarian
society.44 (Emphases supplied)
In Ople v. Torres,45 this Court traced the constitutional and statutory
bases of the right to privacy in Philippine jurisdiction, to wit:
Indeed, if we extend our judicial gaze we will find that the
right of privacy is recognized and enshrined in several provisions of
our Constitution. It is expressly recognized in section 3 (1) of the Bill of
Rights:
Sec. 3. (1) The privacy of communication and
correspondence shall be inviolable except upon lawful
order of the court, or when public safety or order requires
otherwise as prescribed by law.
Other facets of the right to privacy are protected in various
provisions of the Bill of Rights, viz:
Sec. 1. No person shall be deprived of life, liberty,
or property without due process of law, nor shall any
person be denied the equal protection of the laws.
Sec. 2. The right of the people to be secure in their
persons, houses, papers, and effects against unreasonable
searches and seizures of whatever nature and for any
purpose shall be inviolable, and no search warrant or
warrant of arrest shall issue except upon probable cause to
be determined personally by the judge after examination
under oath or affirmation of the complainant and the
witnesses he may produce, and particularly describing the
place to be searched and the persons or things to be seized.
xxxxxxxxx
Sec. 6. The liberty of abode and of changing the
same within the limits prescribed by law shall not be
impaired except upon lawful order of the court. Neither
shall the right to travel be impaired except in the interest of
44 Id. at 433-436.
45 354 Phil. 948 (1998).
national security, public safety, or public health as may be
provided by law.
xxxxxxxxx
Sec. 8. The right of the people, including those
employed in the public and private sectors, to form unions,
associations, or societies for purposes not contrary to law
shall not be abridged.
Sec. 17. No person shall be compelled to be a
witness against himself.
Zones of privacy are likewise recognized and protected in our
laws. The Civil Code provides that [e]very person shall respect the
dignity, personality, privacy and peace of mind of his neighbors and other
persons and punishes as actionable torts several acts by a person of
meddling and prying into the privacy of another. It also holds a public
officer or employee or any private individual liable for damages for any

violation of the rights and liberties of another person, and recognizes the
privacy of letters and other private communications. The Revised Penal
Code makes a crime the violation of secrets by an officer, the revelation of
trade and industrial secrets, and trespass to dwelling. Invasion of privacy
is an offense in special laws like the Anti-Wiretapping Law, the Secrecy
of Bank Deposits Act and the Intellectual Property Code. The Rules of
Court on privileged communication likewise recognize the privacy of
certain information.
Unlike the dissenters, we prescind from the premise that the right
to privacy is a fundamental right guaranteed by the Constitution,
hence, it is the burden of government to show that A.O. No. 308 is
justified by some compelling state interest and that it is narrowly drawn.
x x x.46 (Emphases supplied)
Clearly, the right to privacy is considered a fundamental right that
must be protected from intrusion or constraint. However, in Standard
Chartered Bank v. Senate Committee on Banks,47 this Court underscored that
the right to privacy is not absolute, viz:
With respect to the right of privacy which petitioners claim
respondent has violated, suffice it to state that privacy is not an absolute
right. While it is true that Section 21, Article VI of the Constitution,
guarantees respect for the rights of persons affected by the legislative
investigation, not every invocation of the right to privacy should be
allowed to thwart a legitimate congressional inquiry. In Sabio v. Gordon,
we have held that the right of the people to access information on matters
of public concern generally prevails over the right to privacy of ordinary
financial transactions. In that case, we declared that the right to privacy is
46 Id. at 972-975.
47 G.R. No. 167173, 27 December 2007, 541 SCRA 456.
not absolute where there is an overriding compelling state interest.
Employing the rational basis relationship test, as laid down in Morfe v.
Mutuc, there is no infringement of the individuals right to privacy as the
requirement to disclosure information is for a valid purpose, in this case, to
ensure that the government agencies involved in regulating banking
transactions adequately protect the public who invest in foreign securities.
Suffice it to state that this purpose constitutes a reason compelling enough
to proceed with the assailed legislative investigation.48
Therefore, when the right to privacy finds tension with a competing
state objective, the courts are required to weigh both notions. In these cases,
although considered a fundamental right, the right to privacy may
nevertheless succumb to an opposing or overriding state interest deemed
legitimate and compelling.
The Writ of Habeas Data
The writ of habeas data is an independent and summary remedy
designed to protect the image, privacy, honor, information, and freedom of
information of an individual, and to provide a forum to enforce ones right to
the truth and to informational privacy.49 It seeks to protect a persons right to
control information regarding oneself, particularly in instances in which
such information is being collected through unlawful means in order to
achieve unlawful ends.50 It must be emphasized that in order for the
privilege of the writ to be granted, there must exist a nexus between the right
to privacy on the one hand, and the right to life, liberty or security on the
other. Section 1 of the Rule on the Writ of Habeas Data reads:
Habeas data. The writ of habeas data is a remedy available to
any person whose right to privacy in life, liberty or security is violated or
threatened by an unlawful act or omission of a public official or employee,
or of a private individual or entity engaged in the gathering, collecting or
storing of data information regarding the person, family, home and
correspondence of the aggrieved party.
48 Id. at 475-476 [citing Morfe v. Mutuc, supra note 43; Gordon v. Sabio, 535Phil. 687
(2006)].
49 Manila Electric Co. v. Lim, G.R. No. 184769, 5 October 2010, 632 SCRA 195, 202.
50 Roxas v. Arroyo, G.R. No. 189155, 7 September 2010, 630 SCRA 211, 239.
The notion of informational privacy is still developing in Philippine
law and jurisprudence. Considering that even the Latin American habeas
data, on which our own Rule on the Writ of Habeas Data is rooted, finds its
origins from the European tradition of data protection,51 this Court can be
guided by cases on the protection of personal data decided by the European
Court of Human Rights (ECHR). Of particular note is Leander v. Sweden,52
in which the ECHR balanced the right of citizens to be free from

53

interference in their private affairs with the right of the state to protect its
national security. In this case, Torsten Leander (Leander), a Swedish citizen,
worked as a temporary replacement museum technician at the Naval
Museum, which was adjacent to a restricted military security zone.53 He was
refused employment when the requisite personnel control resulted in an
unfavorable outcome on the basis of information in the secret police register,
which was kept in accordance with the Personnel Control Ordinance and to
which he was prevented access.54 He claimed, among others, that this
procedure of security control violated Article 8 of the European Convention
of Human Rights55 on the right to privacy, as nothing in his personal or
political background would warrant his classification in the register as a
security risk.56
The ECHR ruled that the storage in the secret police register of
information relating to the private life of Leander, coupled with the refusal
to allow him the opportunity to refute the same, amounted to an interference
in his right to respect for private life.57 However, the ECHR held that the
interference was justified on the following grounds: (a) the personnel
control system had a legitimate aim, which was the protection of national
51 Guadamuz, A. Habeas Data vs the European Data Protection Directive, 2001 (3) The
Journal of
Information,
Law
and
Technology
(JILT).
<http://www2.warwick.ac.uk/fac/soc/law/elj/jilt/2001_3/guadamuz/>
52 26 March 1987, 9 EHRR 433.
53 Para. 10.
54 Paras. 12-13, 15-17, 19.
55 Article 8. 1. Everyone has the right to respect for his private and family life, his home
and his
correspondence.
2. There shall be no interference by a public authority with the exercise of this right except
such as in
accordance with the law and is necessary in a democratic society in the interests of
national security, public
safety or the economic well-being of the country, for the prevention of disorder of crime, for
the protection
of health or morals, or for the protection of the rights and freedoms of others.
56 Para. 47.
57 Para. 48.
security,58 and (b) the Personnel Control Ordinance gave the citizens
adequate indication as to the scope and the manner of exercising discretion
in the collection, recording and release of information by the authorities.59
The following statements of the ECHR must be emphasized:
58. The notion of necessity implies that the interference
corresponds to a pressing social need and, in particular, that it is
proportionate to the legitimate aim pursued (see, inter alia, the Gillow
judgment of 24 November 1986, Series A no. 109, p. 22, 55).
59. However, the Court recognises that the national authorities
enjoy a margin of appreciation, the scope of which will depend not only
on the nature of the legitimate aim pursued but also on the particular
nature of the interference involved. In the instant case, the interest of the
respondent State in protecting its national security must be balanced
against the seriousness of the interference with the applicants right to
respect for his private life.
There can be no doubt as to the necessity, for the purpose of
protecting national security, for the Contracting States to have laws
granting the competent domestic authorities power, firstly, to collect and
store in registers not accessible to the public information on persons and,
secondly, to use this information when assessing the suitability of
candidates for employment in posts of importance for national security.
Admittedly, the contested interference adversely affected Mr.
Leanders legitimate interests through the consequences it had on his
possibilities of access to certain sensitive posts within the public
service. On the other hand, the right of access to public service is not as
such enshrined in the Convention (see, inter alia, the Kosiek judgment of
28 August 1986, Series A no. 105, p. 20, 34-35), and, apart from those
consequences, the interference did not constitute an obstacle to his leading
a private life of his own choosing.
In these circumstances, the Court accepts that the margin of
appreciation available to the respondent State in assessing the pressing
social need in the present case, and in particular in choosing the means for
achieving the legitimate aim of protecting national security, was a wide
one.
xxxxxxxxx

66. The fact that the information released to the military


authorities was not communicated to Mr. Leander cannot by itself
warrant the conclusion that the interference was not necessary in a
democratic society in the interests of national security, as it is the
very absence of such communication which, at least partly, ensures
the efficacy of the personnel control procedure (see, mutatis mutandis,
the above-mentioned Klass and Others judgment, Series A no. 28, p. 27,
The Court notes, however, that various authorities consulted before
the issue of the Ordinance of 1969, including the Chancellor of Justice and
the Parliamentary Ombudsman, considered it desirable that the rule of
communication to the person concerned, as contained in section 13 of the
Ordinance, should be effectively applied in so far as it did not jeopardise
the purpose of the control (see paragraph 31 above).
67. The Court, like the Commission, thus reaches the conclusion
that the safeguards contained in the Swedish personnel control system
meet the requirements of paragraph 2 of Article 8 (art. 8-2). Having
regard to the wide margin of appreciation available to it, the respondent
State was entitled to consider that in the present case the interests of
national security prevailed over the individual interests of the
applicant (see paragraph 59 above). The interference to which Mr.
Leander was subjected cannot therefore be said to have been
disproportionate to the legitimate aim pursued. (Emphases supplied)
Leander illustrates how the right to informational privacy, as a
specific component of the right to privacy, may yield to an overriding
legitimate state interest. In similar fashion, the determination of whether the
privilege of the writ of habeas data, being an extraordinary remedy, may be
granted in this case entails a delicate balancing of the alleged intrusion upon
the private life of Gamboa and the relevant state interest involved.
The collection and forwarding of
information by the PNP vis--vis the
interest of the state to dismantle
private armies
The Constitution explicitly mandates the dismantling of private armies
and other armed groups not recognized by the duly constituted authority.60 It
also provides for the establishment of one police force that is national in
scope and civilian in character, and is controlled and administered by a
national police commission.61
Taking into account these constitutional fiats, it is clear that the
issuance of A.O. 275 articulates a legitimate state aim, which is to
60 Constitution, Art. XVIII, Sec. 24.
61 Constitution, Art. XVI, Sec. 6.
investigate the existence of PAGs with the ultimate objective of dismantling
them permanently.
To enable the Zearosa Commission to achieve its goals, A.O. 275
clothed it with the powers of an investigative body, including the power to
summon witnesses, administer oaths, take testimony or evidence relevant to
the investigation and use compulsory processes to produce documents,
books, and records.62 A.O. 275 likewise authorized the Zearosa
Commission to deputize the Armed Forces of the Philippines, the National
Bureau of Investigation, the Department of Justice, the PNP, and any other
law enforcement agency to assist the commission in the performance of its
functions.63
Meanwhile, the PNP, as the national police force, is empowered by
law to (a) enforce all laws and ordinances relative to the protection of lives
and properties; (b) maintain peace and order and take all necessary steps to
ensure public safety; and (c) investigate and prevent crimes.64
Pursuant to the state interest of dismantling PAGs, as well as the
foregoing powers and functions accorded to the Zearosa Commission and
the PNP, the latter collected information on individuals suspected of
maintaining PAGs, monitored them and counteracted their activities.65 One
of those individuals is herein petitioner Gamboa.
This Court holds that Gamboa was able to sufficiently establish that
the data contained in the Report listing her as a PAG coddler came from the
PNP. Contrary to the ruling of the trial court, however, the forwarding of
information by the PNP to the Zearosa Commission was not an unlawful
act that violated or threatened her right to privacy in life, liberty or security.
62 A.O. 275, Sec. 5(a).
63 A.O. 275, Sec. 5(f).
64 Republic Act No. 6975, otherwise known as the Department of Interior and Local
Government Act of

54

1990, Sec. 24(a), (b), (c).


65 Rollo, p. 338; Report.
The PNP was rationally expected to forward and share intelligence regarding
PAGs with the body specifically created for the purpose of investigating the
existence of these notorious groups. Moreover, the Zearosa Commission
was explicitly authorized to deputize the police force in the fulfillment of the
formers mandate, and thus had the power to request assistance from the
latter.
Following the pronouncements of the ECHR in Leander, the fact that
the PNP released information to the Zearosa Commission without prior
communication to Gamboa and without affording her the opportunity to
refute the same cannot be interpreted as a violation or threat to her right to
privacy since that act is an inherent and crucial component of intelligencegathering
and investigation. Additionally, Gamboa herself admitted that the
PNP had a validation system, which was used to update information on
individuals associated with PAGs and to ensure that the data mirrored the
situation on the field.66 Thus, safeguards were put in place to make sure that
the information collected maintained its integrity and accuracy.
Pending the enactment of legislation on data protection, this Court
declines to make any further determination as to the propriety of sharing
information during specific stages of intelligence gathering. To do otherwise
would supplant the discretion of investigative bodies in the accomplishment
of their functions, resulting in an undue encroachment on their competence.
However, to accord the right to privacy with the kind of protection
established in existing law and jurisprudence, this Court nonetheless deems
it necessary to caution these investigating entities that information-sharing
must observe strict confidentiality. Intelligence gathered must be released
exclusively to the authorities empowered to receive the relevant information.
After all, inherent to the right to privacy is the freedom from unwarranted
66 Id. at 21-22, Appeal by Certiorari; id. at 364, Report.
Decision 18 G.R. No. 193636
exploitation of ones person or from intrusion into ones private activities in
such a way as to cause humiliation to a persons ordinary sensibilities.67
In this case, respondents admitted the existence of the Report, but
emphasized its confidential nature. That it was leaked to third parties and the
media was regrettable, even warranting reproach. But it must be stressed that
Gamboa failed to establish that respondents were responsible for this
unintended disclosure. In any event, there are other reliefs available to her to
address the purported damage to her reputation, making a resort to the
extraordinary remedy of the writ of habeas data unnecessary and improper.
Finally, this Court rules that Gamboa was unable to prove through
substantial evidence that her inclusion in the list of individuals maintaining
PAGs made her and her supporters susceptible to harassment and to
increased police surveillance. In this regard, respondents sufficiently
explained that the investigations conducted against her were in relation to
the criminal cases in which she was implicated. As public officials, they
enjoy the presumption of regularity, which she failed to overcome.
It is clear from the foregoing discussion that the state interest of
dismantling PAGs far outweighs the alleged intrusion on the private life of
Gamboa, especially when the collection and forwarding by the PNP of
information against her was pursuant to a lawful mandate. Therefore, the
privilege of the writ of habeas data must be denied.
WHEREFORE, the instant petition for review is DENIED. The
assailed Decision in Special Proc. No. 14979 dated 9 September 2010 of the
Regional Trial Court, Laoag City, Br. 13, insofar as it denies Gamboa the
privilege of the writ of habeas data, is AFFIRMED.
PRISCILLA C. MIJARES, LORETTA ANN P. ROSALES, HILDA B. NARCISO, SR.
MARIANI DIMARANAN, SFIC, and JOEL C. LAMANGAN in their behalf and on behalf of
the Class Plaintiffs in Class Action No. MDL 840, United States District Court of Hawaii,
petitioners, vs. HON. SANTIAGO JAVIER RANADA, in his capacity as Presiding Judge of
Branch 137, Regional Trial Court, Makati City, and the ESTATE OF FERDINAND E.
MARCOS, through its court appointed legal representatives in Class Action MDL 840,
United States District Court of Hawaii, namely: Imelda R. Marcos and Ferdinand Marcos,
Jr., respondents.
DECISION
TINGA, J.:
Our martial law experience bore strange unwanted fruits, and we have yet to finish
weeding out its bitter crop. While the restoration of freedom and the fundamental structures
and processes of democracy have been much lauded, according to a significant number,
the changes, however, have not sufficiently healed the colossal damage wrought under the

oppressive conditions of the martial law period. The cries of justice for the tortured, the
murdered, and the desaparecidos arouse outrage and sympathy in the hearts of the fairminded, yet the dispensation of the appropriate relief due them cannot be extended
through the same caprice or whim that characterized the ill-wind of martial rule. The
damage done was not merely personal but institutional, and the proper rebuke to the
iniquitous past has to involve the award of reparations due within the confines of the
restored rule of law.
The petitioners in this case are prominent victims of human rights violations[1] who,
deprived of the opportunity to directly confront the man who once held absolute rule over
this country, have chosen to do battle instead with the earthly representative, his estate.
The clash has been for now interrupted by a trial court ruling, seemingly comported to legal
logic, that required the petitioners to pay a whopping filing fee of over Four Hundred
Seventy-Two Million Pesos (P472,000,000.00) in order that they be able to enforce a
judgment awarded them by a foreign court. There is an understandable temptation to cast
the struggle within the simplistic confines of a morality tale, and to employ short-cuts to
arrive at what might seem the desirable solution. But easy, reflexive resort to the equity
principle all too often leads to a result that may be morally correct, but legally wrong.
Nonetheless, the application of the legal principles involved in this case will comfort those
who maintain that our substantive and procedural laws, for all their perceived ambiguity
and susceptibility to myriad interpretations, are inherently fair and just. The relief sought by
the petitioners is expressly mandated by our laws and conforms to established legal
principles. The granting of this petition for certiorari is warranted in order to correct the
legally infirm and unabashedly unjust ruling of the respondent judge.
The essential facts bear little elaboration. On 9 May 1991, a complaint was filed with the
United States District Court (US District Court), District of Hawaii, against the Estate of
former Philippine President Ferdinand E. Marcos (Marcos Estate). The action was brought
forth by ten Filipino citizens[2] who each alleged having suffered human rights abuses
such as arbitrary detention, torture and rape in the hands of police or military forces during
the Marcos regime.[3] The Alien Tort Act was invoked as basis for the US District Courts
jurisdiction over the complaint, as it involved a suit by aliens for tortious violations of
international law.[4] These plaintiffs brought the action on their own behalf and on behalf of
a class of similarly situated individuals, particularly consisting of all current civilian citizens
of the Philippines, their heirs and beneficiaries, who between 1972 and 1987 were tortured,
summarily executed or had disappeared while in the custody of military or paramilitary
groups. Plaintiffs alleged that the class consisted of approximately ten thousand (10,000)
members; hence, joinder of all these persons was impracticable.
The institution of a class action suit was warranted under Rule 23(a) and (b)(1)(B) of the
US Federal Rules of Civil Procedure, the provisions of which were invoked by the plaintiffs.
Subsequently, the US District Court certified the case as a class action and created three
(3) sub-classes of torture, summary execution and disappearance victims.[5] Trial ensued,
and subsequently a jury rendered a verdict and an award of compensatory and exemplary
damages in favor of the plaintiff class. Then, on 3 February 1995, the US District Court,
presided by Judge Manuel L. Real, rendered a Final Judgment (Final Judgment) awarding
the plaintiff class a total of One Billion Nine Hundred Sixty Four Million Five Thousand
Eight Hundred Fifty Nine Dollars and Ninety Cents ($1,964,005,859.90). The Final
Judgment was eventually affirmed by the US Court of Appeals for the Ninth Circuit, in a
decision rendered on 17 December 1996.[6]
On 20 May 1997, the present petitioners filed Complaint with the Regional Trial Court, City
of Makati (Makati RTC) for the enforcement of the Final Judgment. They alleged that they
are members of the plaintiff class in whose favor the US District Court awarded damages.
[7] They argued that since the Marcos Estate failed to file a petition for certiorari with the
US Supreme Court after the Ninth Circuit Court of Appeals had affirmed the Final
Judgment, the decision of the US District Court had become final and executory, and
hence should be recognized and enforced in the Philippines, pursuant to Section 50, Rule
39 of the Rules of Court then in force.[8]
On 5 February 1998, the Marcos Estate filed a motion to dismiss, raising, among others,
the non-payment of the correct filing fees. It alleged that petitioners had only paid Four
Hundred Ten Pesos (P410.00) as docket and filing fees, notwithstanding the fact that they
sought to enforce a monetary amount of damages in the amount of over Two and a
Quarter Billion US Dollars (US$2.25 Billion). The Marcos Estate cited Supreme Court
Circular No. 7, pertaining to the proper computation and payment of docket fees. In
response, the petitioners claimed that an action for the enforcement of a foreign judgment
is not capable of pecuniary estimation; hence, a filing fee of only Four Hundred Ten Pesos
(P410.00) was proper, pursuant to Section 7(c) of Rule 141.[9]
On 9 September 1998, respondent Judge Santiago Javier Ranada[10] of the Makati RTC
issued the subject Order dismissing the complaint without prejudice. Respondent judge
opined that contrary to the petitioners submission, the subject matter of the complaint was
indeed capable of pecuniary estimation, as it involved a judgment rendered by a foreign

55

court ordering the payment of definite sums of money, allowing for easy determination of
the value of the foreign judgment. On that score, Section 7(a) of Rule 141 of the Rules of
Civil Procedure would find application, and the RTC estimated the proper amount of filing
fees was approximately Four Hundred Seventy Two Million Pesos, which obviously had not
been paid.

Obviously, the above-quoted provision covers, on one hand, ordinary actions, permissive
counterclaims, third-party, etc. complaints and complaints-in-interventions, and on the
other, money claims against estates which are not based on judgment. Thus, the relevant
question for purposes of the present petition is whether the action filed with the lower court
is a money claim against an estate not based on judgment.

Not surprisingly, petitioners filed a Motion for Reconsideration, which Judge Ranada
denied in an Order dated 28 July 1999. From this denial, petitioners filed a Petition for
Certiorari under Rule 65 assailing the twin orders of respondent judge.[11] They prayed for
the annulment of the questioned orders, and an order directing the reinstatement of Civil
Case No. 97-1052 and the conduct of appropriate proceedings thereon.

Petitioners complaint may have been lodged against an estate, but it is clearly based on a
judgment, the Final Judgment of the US District Court. The provision does not make any
distinction between a local judgment and a foreign judgment, and where the law does not
distinguish, we shall not distinguish.

Petitioners submit that their action is incapable of pecuniary estimation as the subject
matter of the suit is the enforcement of a foreign judgment, and not an action for the
collection of a sum of money or recovery of damages. They also point out that to require
the class plaintiffs to pay Four Hundred Seventy Two Million Pesos (P472,000,000.00) in
filing fees would negate and render inutile the liberal construction ordained by the Rules of
Court, as required by Section 6, Rule 1 of the Rules of Civil Procedure, particularly the
inexpensive disposition of every action.

A reading of Section 7 in its entirety reveals several instances wherein the filing fee is
computed on the basis of the amount of the relief sought, or on the value of the property in
litigation. The filing fee for requests for extrajudicial foreclosure of mortgage is based on
the amount of indebtedness or the mortgagees claim.[14] In special proceedings involving
properties such as for the allowance of wills, the filing fee is again based on the value of
the property.[15] The aforecited rules evidently have no application to petitioners
complaint.

Petitioners invoke Section 11, Article III of the Bill of Rights of the Constitution, which
provides that Free access to the courts and quasi-judicial bodies and adequate legal
assistance shall not be denied to any person by reason of poverty, a mandate which is
essentially defeated by the required exorbitant filing fee. The adjudicated amount of the
filing fee, as arrived at by the RTC, was characterized as indisputably unfair, inequitable,
and unjust.

Petitioners rely on Section 7(b), particularly the proviso on actions where the value of the
subject matter cannot be estimated. The provision reads in full:

The Commission on Human Rights (CHR) was permitted to intervene in this case.[12] It
urged that the petition be granted and a judgment rendered, ordering the enforcement and
execution of the District Court judgment in accordance with Section 48, Rule 39 of the
1997 Rules of Civil Procedure. For the CHR, the Makati RTC erred in interpreting the
action for the execution of a foreign judgment as a new case, in violation of the principle
that once a case has been decided between the same parties in one country on the same
issue with finality, it can no longer be relitigated again in another country.[13] The CHR
likewise invokes the principle of comity, and of vested rights.

1. Actions where the value


of the subject matter
cannot be estimated --- P 600.00

The Courts disposition on the issue of filing fees will prove a useful jurisprudential
guidepost for courts confronted with actions enforcing foreign judgments, particularly those
lodged against an estate. There is no basis for the issuance a limited pro hac vice ruling
based on the special circumstances of the petitioners as victims of martial law, or on the
emotionally-charged allegation of human rights abuses.

3. All other actions not


involving property --- P 600.00

An examination of Rule 141 of the Rules of Court readily evinces that the respondent judge
ignored the clear letter of the law when he concluded that the filing fee be computed based
on the total sum claimed or the stated value of the property in litigation.

It is worth noting that the provision also provides that in real actions, the assessed value or
estimated value of the property shall be alleged by the claimant and shall be the basis in
computing the fees. Yet again, this provision does not apply in the case at bar. A real action
is one where the plaintiff seeks the recovery of real property or an action affecting title to or
recovery of possession of real property.[16] Neither the complaint nor the award of
damages adjudicated by the US District Court involves any real property of the Marcos
Estate.

In dismissing the complaint, the respondent judge relied on Section 7(a), Rule 141 as basis
for the computation of the filing fee of over P472 Million. The provision states:

SEC. 7. Clerk of Regional Trial Court.(b) For filing

2. Special civil actions except


judicial foreclosure which
shall be governed by
paragraph (a) above --- P 600.00

In a real action, the assessed value of the property, or if there is none, the estimated value,
thereof shall be alleged by the claimant and shall be the basis in computing the fees.

SEC. 7. Clerk of Regional Trial Court.(a) For filing an action or a permissive counterclaim or money claim against an estate not
based on judgment, or for filing with leave of court a third-party, fourth-party, etc.,
complaint, or a complaint in intervention, and for all clerical services in the same time, if the
total sum claimed, exclusive of interest, or the started value of the property in litigation, is:
1. Less than P 100,00.00 P 500.00
2. P 100,000.00 or more - P 800.00
but less than P 150,000.00
3. P 150,000.00 or more but - P 1,000.00
less than P 200,000.00
4. P 200,000.00 or more but
less than P 250,000.00 - P 1,500.00
5. P 250,000.00 or more but
less than P 300,00.00 - P 1,750.00
6. P 300,000.00 or more but
not more than P 400,000.00 - P 2,000.00
7. P 350,000.00 or more but not
more than P400,000.00 - P 2,250.00
8. For each P 1,000.00 in excess of
P 400,000.00 - P 10.00
...

Thus, respondent judge was in clear and serious error when he concluded that the filing
fees should be computed on the basis of the schematic table of Section 7(a), as the action
involved pertains to a claim against an estate based on judgment. What provision, if any,
then should apply in determining the filing fees for an action to enforce a foreign judgment?
To resolve this question, a proper understanding is required on the nature and effects of a
foreign judgment in this jurisdiction.
The rules of comity, utility and convenience of nations have established a usage among
civilized states by which final judgments of foreign courts of competent jurisdiction are
reciprocally respected and rendered efficacious under certain conditions that may vary in
different countries.[17] This principle was prominently affirmed in the leading American
case of Hilton v. Guyot[18] and expressly recognized in our jurisprudence beginning with
Ingenholl v. Walter E. Olsen & Co.[19] The conditions required by the Philippines for
recognition and enforcement of a foreign judgment were originally contained in Section 311
of the Code of Civil Procedure, which was taken from the California Code of Civil
Procedure which, in turn, was derived from the California Act of March 11, 1872.[20]
Remarkably, the procedural rule now outlined in Section 48, Rule 39 of the Rules of Civil
Procedure has remained unchanged down to the last word in nearly a century. Section 48
states:
SEC. 48. Effect of foreign judgments. The effect of a judgment of a tribunal of a foreign
country, having jurisdiction to pronounce the judgment is as follows:

(Emphasis supplied)

56

(a) In case of a judgment upon a specific thing, the judgment is conclusive upon the title to
the thing;
(b) In case of a judgment against a person, the judgment is presumptive evidence of a right
as between the parties and their successors in interest by a subsequent title;
In either case, the judgment or final order may be repelled by evidence of a want of
jurisdiction, want of notice to the party, collusion, fraud, or clear mistake of law or fact.
There is an evident distinction between a foreign judgment in an action in rem and one in
personam. For an action in rem, the foreign judgment is deemed conclusive upon the title
to the thing, while in an action in personam, the foreign judgment is presumptive, and not
conclusive, of a right as between the parties and their successors in interest by a
subsequent title.[21] However, in both cases, the foreign judgment is susceptible to
impeachment in our local courts on the grounds of want of jurisdiction or notice to the
party,[22] collusion, fraud,[23] or clear mistake of law or fact.[24] Thus, the party aggrieved
by the foreign judgment is entitled to defend against the enforcement of such decision in
the local forum. It is essential that there should be an opportunity to challenge the foreign
judgment, in order for the court in this jurisdiction to properly determine its efficacy.[25]
It is clear then that it is usually necessary for an action to be filed in order to enforce a
foreign judgment[26], even if such judgment has conclusive effect as in the case of in rem
actions, if only for the purpose of allowing the losing party an opportunity to challenge the
foreign judgment, and in order for the court to properly determine its efficacy.[27]
Consequently, the party attacking a foreign judgment has the burden of overcoming the
presumption of its validity.[28]
The rules are silent as to what initiatory procedure must be undertaken in order to enforce
a foreign judgment in the Philippines. But there is no question that the filing of a civil
complaint is an appropriate measure for such purpose. A civil action is one by which a
party sues another for the enforcement or protection of a right,[29] and clearly an action to
enforce a foreign judgment is in essence a vindication of a right prescinding either from a
conclusive judgment upon title or the presumptive evidence of a right.[30] Absent perhaps
a statutory grant of jurisdiction to a quasi-judicial body, the claim for enforcement of
judgment must be brought before the regular courts.[31]
There are distinctions, nuanced but discernible, between the cause of action arising from
the enforcement of a foreign judgment, and that arising from the facts or allegations that
occasioned the foreign judgment. They may pertain to the same set of facts, but there is an
essential difference in the right-duty correlatives that are sought to be vindicated. For
example, in a complaint for damages against a tortfeasor, the cause of action emanates
from the violation of the right of the complainant through the act or omission of the
respondent. On the other hand, in a complaint for the enforcement of a foreign judgment
awarding damages from the same tortfeasor, for the violation of the same right through the
same manner of action, the cause of action derives not from the tortious act but from the
foreign judgment itself.
More importantly, the matters for proof are different. Using the above example, the
complainant will have to establish before the court the tortious act or omission committed
by the tortfeasor, who in turn is allowed to rebut these factual allegations or prove
extenuating circumstances. Extensive litigation is thus conducted on the facts, and from
there the right to and amount of damages are assessed. On the other hand, in an action to
enforce a foreign judgment, the matter left for proof is the foreign judgment itself, and not
the facts from which it prescinds.
As stated in Section 48, Rule 39, the actionable issues are generally restricted to a review
of jurisdiction of the foreign court, the service of personal notice, collusion, fraud, or
mistake of fact or law. The limitations on review is in consonance with a strong and
pervasive policy in all legal systems to limit repetitive litigation on claims and issues.[32]
Otherwise known as the policy of preclusion, it seeks to protect party expectations
resulting from previous litigation, to safeguard against the harassment of defendants, to
insure that the task of courts not be increased by never-ending litigation of the same
disputes, and in a larger sense to promote what Lord Coke in the Ferrers Case of 1599
stated to be the goal of all law: rest and quietness.[33] If every judgment of a foreign court
were reviewable on the merits, the plaintiff would be forced back on his/her original cause
of action, rendering immaterial the previously concluded litigation.[34]
Petitioners appreciate this distinction, and rely upon it to support the proposition that the
subject matter of the complaintthe enforcement of a foreign judgmentis incapable of
pecuniary estimation. Admittedly the proposition, as it applies in this case, is counterintuitive, and thus deserves strict scrutiny. For in all practical intents and purposes, the
matter at hand is capable of pecuniary estimation, down to the last cent. In the assailed
Order, the respondent judge pounced upon this point without equivocation:

The Rules use the term where the value of the subject matter cannot be estimated. The
subject matter of the present case is the judgment rendered by the foreign court ordering
defendant to pay plaintiffs definite sums of money, as and for compensatory damages. The
Court finds that the value of the foreign judgment can be estimated; indeed, it can even be
easily determined. The Court is not minded to distinguish between the enforcement of a
judgment and the amount of said judgment, and separate the two, for purposes of
determining the correct filing fees. Similarly, a plaintiff suing on promissory note for P1
million cannot be allowed to pay only P400 filing fees (sic), on the reasoning that the
subject matter of his suit is not the P1 million, but the enforcement of the promissory note,
and that the value of such enforcement cannot be estimated.[35]
The jurisprudential standard in gauging whether the subject matter of an action is capable
of pecuniary estimation is well-entrenched. The Marcos Estate cites Singsong v. Isabela
Sawmill and Raymundo v. Court of Appeals, which ruled:
[I]n determining whether an action is one the subject matter of which is not capable of
pecuniary estimation this Court has adopted the criterion of first ascertaining the nature of
the principal action or remedy sought. If it is primarily for the recovery of a sum of money,
the claim is considered capable of pecuniary estimation, and whether jurisdiction is in the
municipal courts or in the courts of first instance would depend on the amount of the claim.
However, where the basic issue is something other than the right to recover a sum of
money, where the money claim is purely incidental to, or a consequence of, the principal
relief sought, this Court has considered such actions as cases where the subject of the
litigation may not be estimated in terms of money, and are cognizable exclusively by courts
of first instance (now Regional Trial Courts).
On the other hand, petitioners cite the ponencia of Justice JBL Reyes in Lapitan v.
Scandia,[36] from which the rule in Singsong and Raymundo actually derives, but which
incorporates this additional nuance omitted in the latter cases:
xxx However, where the basic issue is something other than the right to recover a sum of
money, where the money claim is purely incidental to, or a consequence of, the principal
relief sought, like in suits to have the defendant perform his part of the contract (specific
performance) and in actions for support, or for annulment of judgment or to foreclose a
mortgage, this Court has considered such actions as cases where the subject of the
litigation may not be estimated in terms of money, and are cognizable exclusively by courts
of first instance.[37]
Petitioners go on to add that among the actions the Court has recognized as being
incapable of pecuniary estimation include legality of conveyances and money deposits,[38]
validity of a mortgage,[39] the right to support,[40] validity of documents,[41] rescission of
contracts,[42] specific performance,[43] and validity or annulment of judgments.[44] It is
urged that an action for enforcement of a foreign judgment belongs to the same class.
This is an intriguing argument, but ultimately it is self-evident that while the subject matter
of the action is undoubtedly the enforcement of a foreign judgment, the effect of a
providential award would be the adjudication of a sum of money. Perhaps in theory, such
an action is primarily for the enforcement of the foreign judgment, but there is a certain
obtuseness to that sort of argument since there is no denying that the enforcement of the
foreign judgment will necessarily result in the award of a definite sum of money.
But before we insist upon this conclusion past beyond the point of reckoning, we must
examine its possible ramifications. Petitioners raise the point that a declaration that an
action for enforcement of foreign judgment may be capable of pecuniary estimation might
lead to an instance wherein a first level court such as the Municipal Trial Court would have
jurisdiction to enforce a foreign judgment. But under the statute defining the jurisdiction of
first level courts, B.P. 129, such courts are not vested with jurisdiction over actions for the
enforcement of foreign judgments.
Sec. 33. Jurisdiction of Metropolitan Trial Courts, Municipal Trial Courts and Municipal
Circuit Trial Courts in civil cases. Metropolitan Trial Courts, Municipal Trial Courts, and
Municipal Circuit Trial Courts shall exercise:
(1) Exclusive original jurisdiction over civil actions and probate proceedings, testate and
intestate, including the grant of provisional remedies in proper cases, where the value of
the personal property, estate, or amount of the demand does not exceed One hundred
thousand pesos (P100,000.00) or, in Metro Manila where such personal property, estate,
or amount of the demand does not exceed Two hundred thousand pesos (P200,000.00)
exclusive of interest damages of whatever kind, attorney's fees, litigation expenses, and
costs, the amount of which must be specifically alleged: Provided, That where there are
several claims or causes of action between the same or different parties, embodied in the
same complaint, the amount of the demand shall be the totality of the claims in all the
causes of action, irrespective of whether the causes of action arose out of the same or
different transactions;

57

(2) Exclusive original jurisdiction over cases of forcible entry and unlawful detainer:
Provided, That when, in such cases, the defendant raises the question of ownership in his
pleadings and the question of possession cannot be resolved without deciding the issue of
ownership, the issue of ownership shall be resolved only to determine the issue of
possession.
(3) Exclusive original jurisdiction in all civil actions which involve title to, or possession of,
real property, or any interest therein where the assessed value of the property or interest
therein does not exceed Twenty thousand pesos (P20,000.00) or, in civil actions in Metro
Manila, where such assessed value does not exceed Fifty thousand pesos (P50,000.00)
exclusive of interest, damages of whatever kind, attorney's fees, litigation expenses and
costs: Provided, That value of such property shall be determined by the assessed value of
the adjacent lots.[45]
Section 33 of B.P. 129 refers to instances wherein the cause of action or subject matter
pertains to an assertion of rights and interests over property or a sum of money. But as
earlier pointed out, the subject matter of an action to enforce a foreign judgment is the
foreign judgment itself, and the cause of action arising from the adjudication of such
judgment.
An examination of Section 19(6), B.P. 129 reveals that the instant complaint for
enforcement of a foreign judgment, even if capable of pecuniary estimation, would fall
under the jurisdiction of the Regional Trial Courts, thus negating the fears of the
petitioners. Indeed, an examination of the provision indicates that it can be relied upon as
jurisdictional basis with respect to actions for enforcement of foreign judgments, provided
that no other court or office is vested jurisdiction over such complaint:
Sec. 19. Jurisdiction in civil cases. Regional Trial Courts shall exercise exclusive original
jurisdiction:
xxx
(6) In all cases not within the exclusive jurisdiction of any court, tribunal, person or body
exercising jurisdiction or any court, tribunal, person or body exercising judicial or quasijudicial functions.
Thus, we are comfortable in asserting the obvious, that the complaint to enforce the US
District Court judgment is one capable of pecuniary estimation. But at the same time, it is
also an action based on judgment against an estate, thus placing it beyond the ambit of
Section 7(a) of Rule 141. What provision then governs the proper computation of the filing
fees over the instant complaint? For this case and other similarly situated instances, we
find that it is covered by Section 7(b)(3), involving as it does, other actions not involving
property.
Notably, the amount paid as docket fees by the petitioners on the premise that it was an
action incapable of pecuniary estimation corresponds to the same amount required for
other actions not involving property. The petitioners thus paid the correct amount of filing
fees, and it was a grave abuse of discretion for respondent judge to have applied instead a
clearly inapplicable rule and dismissed the complaint.
There is another consideration of supreme relevance in this case, one which should
disabuse the notion that the doctrine affirmed in this decision is grounded solely on the
letter of the procedural rule. We earlier adverted to the the internationally recognized policy
of preclusion,[46] as well as the principles of comity, utility and convenience of nations[47]
as the basis for the evolution of the rule calling for the recognition and enforcement of
foreign judgments. The US Supreme Court in Hilton v. Guyot[48] relied heavily on the
concept of comity, as especially derived from the landmark treatise of Justice Story in his
Commentaries on the Conflict of Laws of 1834.[49] Yet the notion of comity has since been
criticized as one of dim contours[50] or suffering from a number of fallacies.[51] Other
conceptual bases for the recognition of foreign judgments have evolved such as the vested
rights theory or the modern doctrine of obligation.[52]
There have been attempts to codify through treaties or multilateral agreements the
standards for the recognition and enforcement of foreign judgments, but these have not
borne fruition. The members of the European Common Market accede to the Judgments
Convention, signed in 1978, which eliminates as to participating countries all of such
obstacles to recognition such as reciprocity and rvision au fond.[53] The most ambitious of
these attempts is the Convention on the Recognition and Enforcement of Foreign
Judgments in Civil and Commercial Matters, prepared in 1966 by the Hague Conference of
International Law.[54] While it has not received the ratifications needed to have it take
effect,[55] it is recognized as representing current scholarly thought on the topic.[56]
Neither the Philippines nor the United States are signatories to the Convention.
Yet even if there is no unanimity as to the applicable theory behind the recognition and
enforcement of foreign judgments or a universal treaty rendering it obligatory force, there is

consensus that the viability of such recognition and enforcement is essential. Steiner and
Vagts note:
. . . The notion of unconnected bodies of national law on private international law, each
following a quite separate path, is not one conducive to the growth of a transnational
community encouraging travel and commerce among its members. There is a
contemporary resurgence of writing stressing the identity or similarity of the values that
systems of public and private international law seek to further a community interest in
common, or at least reasonable, rules on these matters in national legal systems. And
such generic principles as reciprocity play an important role in both fields.[57]
Salonga, whose treatise on private international law is of worldwide renown, points out:
Whatever be the theory as to the basis for recognizing foreign judgments, there can be
little dispute that the end is to protect the reasonable expectations and demands of the
parties. Where the parties have submitted a matter for adjudication in the court of one
state, and proceedings there are not tainted with irregularity, they may fairly be expected to
submit, within the state or elsewhere, to the enforcement of the judgment issued by the
court.[58]
There is also consensus as to the requisites for recognition of a foreign judgment and the
defenses against the enforcement thereof. As earlier discussed, the exceptions
enumerated in Section 48, Rule 39 have remain unchanged since the time they were
adapted in this jurisdiction from long standing American rules. The requisites and
exceptions as delineated under Section 48 are but a restatement of generally accepted
principles of international law. Section 98 of The Restatement, Second, Conflict of Laws,
states that a valid judgment rendered in a foreign nation after a fair trial in a contested
proceeding will be recognized in the United States, and on its face, the term valid brings
into play requirements such notions as valid jurisdiction over the subject matter and
parties.[59] Similarly, the notion that fraud or collusion may preclude the enforcement of a
foreign judgment finds affirmation with foreign jurisprudence and commentators,[60] as
well as the doctrine that the foreign judgment must not constitute a clear mistake of law or
fact.[61] And finally, it has been recognized that public policy as a defense to the
recognition of judgments serves as an umbrella for a variety of concerns in international
practice which may lead to a denial of recognition.[62]
The viability of the public policy defense against the enforcement of a foreign judgment has
been recognized in this jurisdiction.[63] This defense allows for the application of local
standards in reviewing the foreign judgment, especially when such judgment creates only a
presumptive right, as it does in cases wherein the judgment is against a person.[64] The
defense is also recognized within the international sphere, as many civil law nations
adhere to a broad public policy exception which may result in a denial of recognition when
the foreign court, in the light of the choice-of-law rules of the recognizing court, applied the
wrong law to the case.[65] The public policy defense can safeguard against possible
abuses to the easy resort to offshore litigation if it can be demonstrated that the original
claim is noxious to our constitutional values.
There is no obligatory rule derived from treaties or conventions that requires the
Philippines to recognize foreign judgments, or allow a procedure for the enforcement
thereof. However, generally accepted principles of international law, by virtue of the
incorporation clause of the Constitution, form part of the laws of the land even if they do
not derive from treaty obligations.[66] The classical formulation in international law sees
those customary rules accepted as binding result from the combination two elements: the
established, widespread, and consistent practice on the part of States; and a psychological
element known as the opinion juris sive necessitates (opinion as to law or necessity).
Implicit in the latter element is a belief that the practice in question is rendered obligatory
by the existence of a rule of law requiring it.[67]
While the definite conceptual parameters of the recognition and enforcement of foreign
judgments have not been authoritatively established, the Court can assert with certainty
that such an undertaking is among those generally accepted principles of international law.
[68] As earlier demonstrated, there is a widespread practice among states accepting in
principle the need for such recognition and enforcement, albeit subject to limitations of
varying degrees. The fact that there is no binding universal treaty governing the practice is
not indicative of a widespread rejection of the principle, but only a disagreement as to the
imposable specific rules governing the procedure for recognition and enforcement.
Aside from the widespread practice, it is indubitable that the procedure for recognition and
enforcement is embodied in the rules of law, whether statutory or jurisprudential, adopted
in various foreign jurisdictions. In the Philippines, this is evidenced primarily by Section 48,
Rule 39 of the Rules of Court which has existed in its current form since the early 1900s.
Certainly, the Philippine legal system has long ago accepted into its jurisprudence and
procedural rules the viability of an action for enforcement of foreign judgment, as well as
the requisites for such valid enforcement, as derived from internationally accepted
doctrines. Again, there may be distinctions as to the rules adopted by each particular state,

58

[69] but they all prescind from the premise that there is a rule of law obliging states to allow
for, however generally, the recognition and enforcement of a foreign judgment. The bare
principle, to our mind, has attained the status of opinio juris in international practice.
This is a significant proposition, as it acknowledges that the procedure and requisites
outlined in Section 48, Rule 39 derive their efficacy not merely from the procedural rule, but
by virtue of the incorporation clause of the Constitution. Rules of procedure are
promulgated by the Supreme Court,[70] and could very well be abrogated or revised by the
high court itself. Yet the Supreme Court is obliged, as are all State components, to obey
the laws of the land, including generally accepted principles of international law which form
part thereof, such as those ensuring the qualified recognition and enforcement of foreign
judgments.[71]
Thus, relative to the enforcement of foreign judgments in the Philippines, it emerges that
there is a general right recognized within our body of laws, and affirmed by the
Constitution, to seek recognition and enforcement of foreign judgments, as well as a right
to defend against such enforcement on the grounds of want of jurisdiction, want of notice
to the party, collusion, fraud, or clear mistake of law or fact.
The preclusion of an action for enforcement of a foreign judgment in this country merely
due to an exhorbitant assessment of docket fees is alien to generally accepted practices
and principles in international law. Indeed, there are grave concerns in conditioning the
amount of the filing fee on the pecuniary award or the value of the property subject of the
foreign decision. Such pecuniary award will almost certainly be in foreign denomination,
computed in accordance with the applicable laws and standards of the forum.[72] The
vagaries of inflation, as well as the relative low-income capacity of the Filipino, to date may
very well translate into an award virtually unenforceable in this country, despite its integral
validity, if the docket fees for the enforcement thereof were predicated on the amount of
the award sought to be enforced. The theory adopted by respondent judge and the Marcos
Estate may even lead to absurdities, such as if applied to an award involving real property
situated in places such as the United States or Scandinavia where real property values are
inexorably high. We cannot very well require that the filing fee be computed based on the
value of the foreign property as determined by the standards of the country where it is
located.
As crafted, Rule 141 of the Rules of Civil Procedure avoids unreasonableness, as it
recognizes that the subject matter of an action for enforcement of a foreign judgment is the
foreign judgment itself, and not the right-duty correlatives that resulted in the foreign
judgment. In this particular circumstance, given that the complaint is lodged against an
estate and is based on the US District Courts Final Judgment, this foreign judgment may,
for purposes of classification under the governing procedural rule, be deemed as
subsumed under Section 7(b)(3) of Rule 141, i.e., within the class of all other actions not
involving property. Thus, only the blanket filing fee of minimal amount is required.
Finally, petitioners also invoke Section 11, Article III of the Constitution, which states that
[F]ree access to the courts and quasi-judicial bodies and adequate legal assistance shall
not be denied to any person by reason of poverty. Since the provision is among the
guarantees ensured by the Bill of Rights, it certainly gives rise to a demandable right.
However, now is not the occasion to elaborate on the parameters of this constitutional
right. Given our preceding discussion, it is not necessary to utilize this provision in order to
grant the relief sought by the petitioners. It is axiomatic that the constitutionality of an act
will not be resolved by the courts if the controversy can be settled on other grounds[73] or
unless the resolution thereof is indispensable for the determination of the case.[74]
One more word. It bears noting that Section 48, Rule 39 acknowledges that the Final
Judgment is not conclusive yet, but presumptive evidence of a right of the petitioners
against the Marcos Estate. Moreover, the Marcos Estate is not precluded to present
evidence, if any, of want of jurisdiction, want of notice to the party, collusion, fraud, or clear
mistake of law or fact. This ruling, decisive as it is on the question of filing fees and no
other, does not render verdict on the enforceability of the Final Judgment before the courts
under the jurisdiction of the Philippines, or for that matter any other issue which may
legitimately be presented before the trial court. Such issues are to be litigated before the
trial court, but within the confines of the matters for proof as laid down in Section 48, Rule
39. On the other hand, the speedy resolution of this claim by the trial court is encouraged,
and contumacious delay of the decision on the merits will not be brooked by this Court.
WHEREFORE, the petition is GRANTED. The assailed orders are NULLIFIED and SET
ASIDE, and a new order REINSTATING Civil Case No. 97-1052 is hereby issued. No
costs.
SO ORDERED.
QUISUMBING, J.,
Chairperson,- versus - CARPIO,
CARPIO MORALES,TINGA, and

VELASCO, JR., JJ.


JUAN C. TUVERA, VICTOR P.
TUVERA and TWIN PEAKS
DEVELOPMENT CORPORATION, Promulgated:
The long-term campaign for the recovery of ill-gotten wealth of former President Ferdinand
E. Marcos, his wife Imelda, and their associates, has been met with many impediments,
some of which are featured in this case, that have led to doubts whether there is still
promise in that enterprise. Yet even as the prosecution of those cases have drudged on
and on, the era of their final reckoning is just beginning before this Court. The heavy
hammer of the law is just starting to fall.

The instant action originated from a civil complaint for restitution and damages filed by the
Republic of the Philippines against Marcos and his longtime aide Juan Tuvera, as well as
Tuvera's son Victor and a corporation the younger Tuvera had controlled. Trial on the case
against the Tuveras proceeded separately before the Sandiganbayan. After the Republic
had presented its evidence, the Tuveras successfully moved for the dismissal of the case
on demurrer to evidence. The demurrer was sustained, and it falls upon this Court to
ascertain the absence or existence of sufficient proof to support the relief sought by the
Republic against the Tuveras.
I.
We begin with the facts.
Twin Peaks Development Corporation (Twin Peaks) was organized on 5 March 1984 as a
corporation with a principal purpose of engaging in the real estate business. There were
five incorporating stockholders, including respondent Victor Tuvera (Victor)[1] who owned
48% of the shares of the fledgling corporation. Victor was the son of respondent Juan
Tuvera, who was then Presidential Executive Assistant of President Marcos.

Acting on a letter dated 31 May 1984 of Twin Peaks Vice-President and Treasurer Evelyn
Fontanilla in behalf of the corporation, President Marcos granted the award of a Timber
License Agreement (TLA), more specifically TLA No. 356, in favor of Twin Peaks to operate
on 26,000 hectares of forest land with an annual allowable cut of 60,000 cubic meters of
timber and to export 10,000 cubic meters of mahogany of the narra species.[2] As a result,
Twin Peaks was able to engage in logging operations.
On 25 February 1986, President Marcos was ousted, and Corazon C. Aquino assumed the
presidency. Among her first acts as President was to establish the Philippine Commission
on Good Government (PCGG), tasked with tracking down the ill-gotten wealth procured by
Marcos, his family, and associates during his 20-year rule. Among the powers granted to
the PCGG was the power to issue writs of sequestration.[3] On 13 June 1988, the PCGG
issued a Writ of Sequestration on all assets, properties, records, documents, and shares of
stock of Twin Peaks on the ground that all the assets of the corporation are ill-gotten
wealth for having been acquired directly or indirectly through fraudulent and illegal means.
[4] This was followed

two days later by Mission Order No. MER-88 (Mission Order), also issued by the PCGG,
implementing the aforementioned Writ of Sequestration.[5]
On 9 December 1988, the PCGG, in behalf of the Republic, filed the Complaint now
subject of this Petition.[6] Impleaded as defendants in the Complaint[7] were Juan and
Victor Tuvera, as well as the then-exiled President Marcos. Through the Complaint, the
Republic sought to recover funds allegedly acquired by said parties in flagrant breach of
trust and fiduciary obligations with grave abuse of right and power in violation of the
Constitution and the laws of the Republic of the Philippines.[8]
In particular, the Complaint alleged that Juan Tuvera, as Presidential Executive Assistant of
President Marcos, took advantage of his relationship to influence upon and connection with
the President by engaging in a scheme to unjustly enrich himself at the expense of the
Republic and of the Filipino people. This was allegedly accomplished on his part by
securing TLA No. 356 on behalf of Twin Peaks despite existing laws expressly prohibiting
the exportation of mahogany of the narra species[9] and Twin Peaks lack of qualification to
be a grantee thereof for lack of sufficient logging equipment to engage in the logging
business.[10] The Complaint further alleged that Twin Peaks exploited the countrys natural
resources by engaging in large-scale logging and the export of its produce through its
Chinese operators whereby respondents obtained a revenue of approximately P45 million.

59

The Complaint prayed that (1) TLA No. 356 be reverted to the State or cancelled; (2)
respondents be jointly and severally ordered to pay P48 million[11] as actual damages;
and (3) respondents pay moral, temperate and exemplary damages, litigation expenses,
and treble judicial costs.[12] It cited as grounds for relief, gross abuse of official position
and authority, breach of public trust and fiduciary obligations, brazen abuse of right and
power, unjust enrichment, and violation of the Constitution.[13]
In their Answer,[14] respondents Victor Tuvera and Twin Peaks claimed that Twin Peaks
was awarded TLA No. 356 only after its articles of incorporation had been amended
enabling it to engage in logging operations,[15] that the Republics reference to Chinese
operations and revenue of approximately P45 million were merely

imagined,[16] and that the PCGG has no statutory authority to institute the action.[17] By
way of counterclaim, respondents asked that the Republic be ordered to pay Victor Tuvera
moral damages and to pay both Victor Tuvera and Twin Peaks exemplary damages, and to
reimburse their attorneys fees.[18]
Anent the allegation that Twin Peaks sold about P3 million worth of lumber despite the Writ
of Sequestration issued by the PCGG, respondents stressed that the Director of Forest
Development acted within the scope of his authority and the courts have no supervising
power over the actions of the Director of Forest Development and the Secretary of the
Department of Environment and Natural Resources (DENR) in the performance of their
official duties.[19]
As an affirmative and special defense, respondents Victor Tuvera and Twin Peaks alleged
that after Twin Peaks was granted TLA No. 356 in 24 August 1984, Felipe Ysmael, Jr. and
Co., Inc. had filed a motion for the cancellation of the same with the DENR

Secretary. When respondents submitted their Answer, the denial by the DENR of the
Ysmael motion was under review before the Court.[20]
Juan Tuvera, who was abroad when the case was filed on 9 December 1988, later
submitted his own Answer on 6 December 1989.[21] He also denied the allegations of the
Republic and alleged that as Presidential Executive Assistant of then President Marcos, he
acted within the confines of his duties and had perpetrated no unlawful acts. He merely
transmitted communications of approval in the course of his duties and had nothing to do
with the decisions of then President Marcos.[22] He denied having anything to do with Twin
Peaks.
Juan Tuvera filed a compulsory counterclaim on the ground that the instant action had
besmirched his reputation and caused serious anxiety and mental anguish thus entitling
him to moral and exemplary damages and litigation expenses.[23]
On 3 May 1989, respondents filed an Omnibus Motion to Nullify Writ of Sequestration
and/or the Mission Order.[24] The Sandiganbayan issued a Temporary Restraining Order
against the PCGG requiring it to cease, refrain and desist from further implementing the
Writ of Sequestration and the Mission Order.[25] Subsequently, on motion of respondents,
the Sandiganbayan granted a Writ of Preliminary Injunction covering the Mission Order.
The Sandiganbayan deferred its resolution on the Motion to Lift the Writ of Sequestration.
[26]
From 1988 to 1993, the proceedings before the Sandiganbayan were delayed owing to the
difficulty of acquiring jurisdiction over the person of President Marcos, who was by then
already in exile. Thus, upon motion by respondents, the Sandiganbayan granted them a
separate pre-trial/trial from President Marcos.[27]
Respondents submitted their documentary evidence in the Pre-Trial Conference while the
Republic reserved to present the same during trial. After the pre-trial conference, the
Sandiganbayan issued a Pre-Trial Order[28] dated 3 November 1993, which presented the
issues for litigation as follows:

Whether or not defendant Juan C. Tuvera who was a Presidential Executive Assistant at
the time material to this case, by himself and in concert with his co-defendants Ferdinand
E. Marcos and Victor Tuvera, took advantage of his relation and connection with the late
Marcos, secure (sic) a timber concession for Twin Peaks Development Corporation and,

engage (sic) in a scheme to unjustly enrich himself at the expense of the Republic and the
Filipino People.[29]

The Pre-Trial Order also indicated that the Republic admitted the exhibits by respondents,
subject to the presentation of certified true copies thereof. Respondents exhibits were as
follows:[30]
Exhibit Nos.
Description
1
Amended Articles of Incorporation dated 31 July 1984
2
TLA No. 356
3
Order, Minister Ernesto M. Maceda, 22 July 1986
3-A
Order, Minister Ernesto M. Maceda, 10 October 1986
3-B
Order, Minister Ernesto M. Maceda, 26 November 1986, O.P. Case No. 3521
3-C
Resolution, Office of the President, 6 July 1987, O.P. Case No. 3521
3-D
Order, Office of the President, 14 August 1987, I.S. No. 66
3-E
Complaint, PCGG, dated 20 July 1988
3-E-1, 3-E-2,
3-E-3
I.S. No. 66 Affidavit, PCGG, Almario F. Mendoza, Ltv. Ramon F. Mendoza and Affidavit,
Isidro Santiago
3-F
Counter-Affidavit, Juan C. Tuvera, 17 August 1989
3-F-1
PCGG, Motion to Withdraw, Jose Restituto F. Mendoza, 10 May 1989
3-F-2
Decision, Supreme Court, 18 October 1990
3-G
Resolution, Supreme Court, 5 June 1991
4
Complaint, DENR, Almario F, Mendoza, 9 March 1990
4-A
Answer/Comment, DENR, Almario F. Mendoza, dated 20 April 1990
4-B
Decision, DENR, dated 28 August 1990
5
Complaint, Ombudsman, etc., Case No. 0-90-0708, 9 March 1990
6, 6-A
Answer/Counter-Affidavit, etc.
6-B
Decision, Ombudsman Case No. 0-90-0708, dated 8 August 1990

The Republic presented three (3) witnesses during the trial. The first witness was
Joveniana M. Galicia, Chief of the National Forest Management Division of the Forest
Management Bureau. She identified TLA No. 356 of Twin Peaks dated 20 August 1984 and
a Memorandum dated 18 July 1984. She testified that TLA No. 356 covers 26,000 hectares
of forest land located in the Municipality of Isabela, Province of Quirino.[31] The
Memorandum dated 18 July 1984 addressed to Director Edmundo Cortez recited then
President Marcos grant of the timber concession to Twin Peaks. Identified and marked in
the same memorandum were the name and signature of Juan Tuvera.[32] Upon crossexamination, Galicia stated that she was not yet the chief of the Division when the
documents she identified were submitted to the Bureau. She further stated it was her first
time to see the aforementioned documents when she was asked to bring the same before
the trial court.[33]
The next witness was Fortunato S. Arcangel, Regional Technical Director III of the DENR.
He testified that he is a Technical Director under the Forest Management Services of the
DENR.[34] He identified Forestry Administration Order (FAO) No. 11 dated 1 September
1970. He said he was aware of TLA No. 356 of Twin Peaks[35] because at the time it was
issued, he was the chief of the Forestry Second Division and his duties included the
evaluation and processing of applications for licenses and permits for the disposition and
distribution of timber and other forest products.[36] Consequently,

60

he was aware of the process by which TLA No. 356 was issued to Twin Peaks.[37]
According to him, they processed the application insofar as they evaluated the location of
the area concerned and its present vegetative state, examined the records, and
determined the annual allowable land. After the examination, the license agreement was
prepared and submitted for approval.[38] He continued that under FAO No. 11, a public
bidding is required before any license agreement or permit for the utilization of timber
within the forestry land is issued[39] but no public bidding was conducted for TLA No. 356.
[40] He explained that no such bidding was conducted because of a Presidential
Instruction not to accept any application for timber licensing as a consequence of which
bidding procedures were stopped.[41] Upon cross-examination, Arcangel said that at the
time TLA No. 356 was issued, the Revised Forestry Code of the Philippines[42] was
already in effect but there were still provisions in FAO No. 11 that remained applicable
such as the terms and conditions of granting a license. He also stated that the issuance of
the license to Twin Peaks emanated from the President of the Philippines.[43]

The Republics third and last witness was Teresita M. Zuiga, employee of the Bureau of
Internal Revenue. She identified the 1986 Income Tax Returns of Victor P. Tuvera, Evelyn
Fontanilla and Feliciano O. Salvana, stockholders of Twin Peaks.[44]
On 24 June 1994, the Republic rested its case after its formal offer of evidence, as follows:
[45]
Exhibits
Documents
Purpose
A
Timber License Agreement No. 356 of Twin Peaks Realty Development Corp. dated 20
August 1984
To prove that the Timber License Agreement was executed prior to the amendment of the
Articles of Incorporation of Twin Peaks Realty Development Corp.
B
Memorandum dated 18 July 1984 of Juan C. Tuvera, Presidential Executive Secretary
To prove the participation of Juan C. Tuvera in the grant of the timber concession of Twin
Peaks Realty Development Corp.
C
Forestry Administrative Order No. 11 (Revised)
To prove that Twin Peaks Realty Development Corp. was granted a timber license
agreement without following the procedure outlined in the forestry rules and regulation and
in violation of law.
D
Income Tax Return of Victor Tuvera
To prove that Victor Tuvera was not a legitimate stockholder of Twin Peaks Realty
Development Corp.
E
Income Tax Return of Evelyn Fontanilla
To prove that Evelyn Fontanilla was not a legitimate stockholder of Twin Peaks Realty
Development Corp.
F
Income Tax Return of Feliciano Salvana
To prove that Feliciano Salvana was not a legitimate stockholder of Twin Peaks Realty
Development Corp.
G
Articles of Incorporation of Twin Peaks Realty Development Corp. (original)
To prove that Twin Peaks Realty Development Corp. was organized to engage in the real
estate business and not in the logging industry.
H
Timber Manifestation Report of [Twin Peaks Realty Development Corp.] consigned to
Scala Sawmill[46]
To show that Twin Peaks Realty Development Corp. lacks equipment to process logs.
I
Timber Manifestation Report of Twin Peaks consigned to La Pea Sawmill[47]
To show that Twin Peaks Realty Development Corp. lacks equipment to process logs.
Respondents subsequently submitted certified true copies of the exhibits they had
presented during the pre-trial conference.[48]
With leave of court, respondents filed a Demurrer to Evidence. Respondents argued that
the Republic failed to present sufficient legal affirmative evidence to prove its claim. In
particular, respondents demurrer contends that the memorandum (Exh. B) and TLA No.
356 are not legal evidence because legal evidence is not meant to raise a mere suspicion

or doubt. Respondents also claim that income tax returns are not sufficient to show ones
holding in a corporation. Respondents also cited the factual antecedents culminating with
the Courts decision in Felipe Ysmael, Jr. & Corp., Inc. v. Sec. of Environment and Natural
Resources.[49]
The Republic filed a Manifestation, contending that the demurrer is not based on the
insufficiency of its evidence but on the strength of the evidence of respondents as shown
by their own exhibits. The Republic claimed that the Revised Forestry Code of the
Philippines does not dispense with the requirement of public bidding. The Republic added
that Sec. 5 of said law clearly provides that all applications for a timber license agreement
must be filed before the Bureau of Forest Development and that respondents still have to
prove compliance with the requirements for service contracts.[50]
Respondents opposed the Manifestation, maintaining that since the Republic admitted the
exhibits of respondents during the pre-trial, it is bound by its own admission. Further, these
same exhibits contain uncontroverted facts and laws that only magnify the conclusion that
the Republic has no right to relief.[51]
In its Resolution dated 23 May 2001,[52] the Sandiganbayan sustained the demurrer to
evidence and referred to the decision of this Court in Ysmael in holding that res judicata
applies. The Anti-Graft Court also did not give credence to the Republics allegations
concerning respondents abuse of power and/or public trust and consequent liability for
damages in view of its failure to establish any violation of Arts. 19, 20 and 21 of the Civil
Code.
In essence, the Sandiganbayan held that the validity of TLA No. 356 was already fully
adjudicated in a Resolution/Order issued by the Office of the President on 14 August 1987,
which had become final and executory with the failure of the aggrieved party to seek a
review thereof. The Sandiganbayan continued that the above pronouncement is supported
by this Court in Ysmael. Consequently, the Sandiganbayan concluded, the Republic is
barred from questioning the validity of TLA No. 356 in consonance with the principle of res
judicata.
The Republic now questions the correctness of the Sandiganbayans decision to grant the
demurrer to evidence because it was not based solely on the insufficiency of its evidence
but also on the evidence of respondent mentioned during the pre-trial conference. The
Republic also challenges the applicability of res judicata.
II.
Preliminarily, we observe that respondents had filed before the Sandiganbayan a pleading
captioned Motion to Dismiss or Demurrer to Evidence, thus evincing that they were
seeking the alternative reliefs of either a motion to dismiss or a demurrer to evidence.
However, the Sandiganbayan, in resolving this motion, referred to it as Motion to Dismiss
on Demurrer to Evidence, a pleading of markedly different character from a Motion to
Dismiss or Demurrer to Evidence. Still, a close reading of the Sandiganbayan Resolution
reveals clearly that the Sandiganbayan was treating the motion as a demurrer, following
Rule 33, Section 1 of the Rules of Court, rather than a motion to dismiss under Rule 16,
Section 1.
This notwithstanding, the Sandiganbayan justified the grant of demurrer with res judicata
as rationale. Res judicata is an inappropriate ground for sustaining a demurrer to evidence,
even as it stands as a proper ground for a motion to dismiss. A demurrer may be granted if,
after the presentation of plaintiffs evidence, it appears upon the facts and the law that the
plaintiff has shown no right to relief. In contrast, the grounds for res judicata present
themselves even before the presentation of evidence, and it should be at that stage that
the defense of res judicata should be invoked as a ground for dismissal. Properly
speaking, the movants for demurral who wish to rely on a controlling value of a settled
case as a ground for demurrer should invoke the ground of stare decisis in lieu of res
judicata.
In Domondon v. Lopez,[53] we distinguished a motion to dismiss for failure of the
complainant to state a cause of action from a motion to dismiss based on lack of cause of
action. The first is governed by Rule 16, Section 1(g),[54] while the second by Rule 33[55]
of the Rules of Court, to wit:
x x x The first [situation where the complaint does not alleged cause of action] is raised in a
motion to dismiss under Rule 16 before a responsive pleading is filed and can be
determined only from the allegations in the initiatory pleading and not from evidentiary or
other matter aliunde. The second [situation where the evidence does not sustain the cause
of

61

action alleged] is raised in a demurrer to evidence under Rule 33 after the plaintiff has
rested his case and can be resolved only on the basis of the evidence he has presented in
support of his claim. The first does not concern itself with the truth and falsity of the
allegations while the second arises precisely because the judge has determined the truth
and falsity of the allegations and has found the evidence wanting.
Hence, a motion to dismiss based on lack of cause of action is filed by the defendant after
the plaintiff has presented his evidence on the ground that the latter has shown no right to
the relief sought. While a motion to dismiss under Rule 16 is based on preliminary
objections which can be ventilated before the beginning of the trial, a motion to dismiss
under Rule 33 is in the nature of a demurrer to evidence on the ground of insufficiency of
evidence and is presented only after the plaintiff has rested his case.[56] [Emphasis
supplied]
III.
We shall first discuss the question of whether or not a demurrer to evidence may be
granted based on the evidence presented by the opposing parties.
An examination of the Sandiganbayans Resolution shows that dismissal of the case on
demurrer to evidence was principally anchored on the Republics failure to show its right to
relief because of the existence of a prior judgment which consequently barred the
relitigation of the same issue. In other words, the Sandiganbayan did

not dismiss the case on the insufficiency of the Republics evidence nor on the strength of
respondents evidence. Rather, it based its dismissal on the existence of the Ysmael case
which, according to it, would render the case barred by res judicata.
Prescinding from this procedural miscue, was the Sandiganbayan correct in applying res
judicata to the case at bar? To determine whether or not res judicata indeed applies in the
instant case, a review of Ysmael is proper.
In brief, Felipe Ysmael, Jr. & Co., Inc. was a grantee of a timber license agreement, TLA
No. 87. Sometime in August 1983, the Bureau of Forest Development cancelled TLA No.
87 despite the companys letter for the reconsideration of the revocation. Barely one year
thereafter, one-half (or 26,000 hectares) of the area formerly covered by TLA No. 87 was
re-awarded to Twin Peaks under TLA No. 356.
In 1986, Felipe Ysmael, Jr. & Co., Inc. sent separate letters to the Office of the President
and the Ministry of Natural Resources primarily seeking the reinstatement of TLA No. 87
and the revocation of TLA No. 356. Both offices denied the relief prayed for. Consequently,
Felipe Ysmael, Jr. & Co., Inc. filed a petition for review before this Court.
The Court, through the late Justice Irene Cortes, held that Ysmaels letters to the Office of
the President and to the Ministry of Natural Resources in 1986 sought the reconsideration
of a memorandum order by the Bureau of Forest Development canceling their timber
license agreement in 1983 and the revocation of TLA No. 356 subsequently issued by the
Bureau in 1984. Ysmael did not attack the administrative actions until after 1986. Since the
decision of the Bureau has become final, it has the force and effect of a final judgment
within the purview of the doctrine of res judicata. These decisions and orders, therefore,
are conclusive upon the rights of the affected parties as though the same had been
rendered by a court of general jurisdiction. The Court also denied the petition of Ysmael
because it failed to file the special civil action for certiorari under Rule 65 within a
reasonable time, as well as in due regard for public policy considerations and the principle
of non-interference by the courts in matters which are addressed to the sound discretion of
government agencies entrusted with the regulation of activities coming under the special
technical knowledge and training of such agencies.
In Sarabia and Leido v. Secretary of Agriculture and Natural Resources, et al.,[57] the
Court discussed the underlying principle for res judicata, to wit:

The fundamental principle upon which the doctrine of res judicata rests is that parties
ought not to be permitted to litigate the same issue more than once; that, when a right or
fact has been judicially tried and determined by a court of competent jurisdiction, or an
opportunity for such trial has been given, the judgment of the court, so long as it remains
unreversed, should be conclusive upon the parties and those in privity with them in law or
estate.

For res judicata to serve as an absolute bar to a subsequent action, the following requisites
must concur: (1) the former judgment or order must be final; (2) the judgment or order must
be on the merits; (3) it must have been rendered by a court having jurisdiction over the
subject matter and parties; and (4) there must be between the first and second actions,
identity of parties, of subject matter, and of causes of action.[58] When there is only identity
of issues with no identity of causes of action, there exists res judicata in the concept of
conclusiveness of judgment.[59]
In Ysmael, the case was between Felipe Ysmael Jr. & Co., Inc. and the Deputy Executive
Secretary, the Secretary of Environment and Natural Resources, the Director of the Bureau
of Forest Development and Twin Peaks Development and Realty Corporation. The present
case, on the other hand, was initiated by the Republic of the Philippines represented by the
Office of the Solicitor General. No amount of imagination could let us believe that there
was an identity of parties between this case and the one formerly filed by Felipe Ysmael Jr.
& Co., Inc.
The Sandiganbayan held that despite the difference of parties, res judicata nevertheless
applies on the basis of the supposed sufficiency of the substantial identity between the
Republic of the Philippines and Felipe Ysmael, Jr. Co., Inc. We disagree. The Court in a
number of cases considered the substantial identity of parties in the application of res
judicata in instances where there is privity between the two parties, as between their
successors in interest by title[60] or where an additional party was simply included in the
subsequent case[61] or where one of the parties to a previous case was not impleaded in
the succeeding case.[62]
The Court finds no basis to declare the Republic as having substantial interest as that of
Felipe Ysmael, Jr. & Co., Inc. In the first place, the Republics cause of action lies in the
alleged abuse of
power on respondents part in violation of R.A. No. 3019[63] and breach of public trust,
which in turn warrants its claim for restitution and damages. Ysmael, on the other hand,
sought the revocation of TLA No. 356 and the reinstatement of its own timber license
agreement. Indeed, there is no identity of parties and no identity of causes of action
between the two cases.
IV.
What now is the course of action to take since we cannot affirm the Sandiganbayans grant
of the demurrer to evidence? Rule 33, Sec. 1 reads:
Sec. 1. Effect of judgment on demurrer to evidence. After the plaintiff has completed the
presentation of his evidence, the defendant may move for dismissal on the ground that
upon the facts and the law the plaintiff has shown no right to relief. If his motion is denied,
he shall have the right to present evidence. If the motion is granted but on appeal the order
of dismissal is reversed he shall have be deemed to have waived the right to present
evidence.

The general rule is that upon the dismissal of the demurrer in the appellate court, the
defendant loses the right to present his evidence and the appellate court shall then
proceed to render judgment on the

merits on the basis of plaintiffs evidence. As the Court explained in Generoso Villanueva
Transit Co., Inc. v. Javellana:[64]
The rationale behind the rule and doctrine is simple and logical. The defendant is
permitted, without waiving his right to offer evidence in the event that his motion is not
granted, to move for a dismissal (i.e., demur to the plaintiffs evidence) on the ground that
upon the facts as thus established and the applicable law, the plaintiff has shown no right
to relief. If the trial court denies the dismissal motion, i.e., finds that plaintiffs evidence is
sufficient for an award of judgment in the absence of contrary evidence, the case still
remains before the trial court which should then proceed to hear and receive the
defendants evidence so that all the facts and evidence of the contending parties may be
properly placed before it for adjudication as well as before the appellate courts, in case of
appeal. Nothing is lost. The doctrine is but in line with the established procedural precepts
in the conduct of trials that the trial court liberally receive all proffered evidence at the trial
to enable it to render its decision with all possibly relevant proofs in the record, thus

62

assuring that the appellate courts upon appeal have all the material before them necessary
to make a correct judgment, and avoiding the need of remanding the case for retrial or
reception of improperly excluded evidence, with the possibility thereafter of still another
appeal, with all the concomitant delays. The rule, however, imposes the condition by the
same token that if his demurrer is granted by the trial court, and the order of dismissal is
reversed on appeal, the movant loses his right to present evidence in his behalf and he
shall have been deemed to have elected to stand on the insufficiency of plaintiffs case and
evidence. In such event, the appellate court which reverses the order of dismissal shall
proceed to render judgment on the merits on the basis of plaintiffs evidence.[65]

It thus becomes the Court's duty to rule on the merits of the complaint, duly taking into
account the evidence presented by the Republic, and without need to consider whatever
evidence the Tuveras have, they having waived their right to present evidence in their
behalf.
V.
Executive Order No. 14-A[66] establishes that the degree of proof required in cases such
as this instant case is preponderance of evidence. Section 3 thereof reads:
SEC. 3. The civil suits to recover unlawfully acquired property under Republic Act No. 1379
or for restitution, reparation of damages, or indemnification for consequential and other
damages or any other civil actions under the Civil Code or other existing laws filed with the
Sandiganbayan against Ferdinand E. Marcos, Imelda R. Marcos, members of their
immediate family, close relatives, subordinates, close and/or business associates,
dummies, agents and nominees, may proceed independently of any criminal proceedings
and may be proved by a preponderance of evidence. [Emphasis supplied.]

FAO No. 11 establishes that it is the Director of Forestry who has the power to grant timber
licenses and permits.[71] It also provides as a general policy that timber license
agreements shall be

granted through no other mode than public bidding.[72] However, Section 24 of FAO No.
11 does admit that a timber license agreement may be granted through negotiation, as well
as through public bidding.
26. When license may be issued.A license under this Regulations may be issued or
granted only after an application and an award either through bidding or by negotiation has
been made and the Director of Forestry is satisfied that the issuance of such license shall
not be inconsistent with existing laws and regulations or prejudicial to public interest, and
that the necessary license fee, bond deposit and other requirements of the Bureau of
Forestry have been paid and complied with.[73] [Emphasis supplied.]
However, even a person who is granted a TLA through negotiation is still required to
submit the same requirements and supporting papers as required for public bidding. The
pertinent provisions of FAO No. 11 state:
18.
Requirements and supporting papers to be submitted.The following requirements
with accompanying supporting papers or documents shall be submitted in addition to the
requirements of Section 12:
a.

With bid application:

The applicant shall support his bid application with the required application fee duly paid
and proofs of the following:

Thus, the Court recently held in Yuchengco v. Sandiganbayan,[67] that in establishing the
quantum of evidence required for civil cases involving the Marcos wealth held by their
immediate family, close relatives, subordinates, close and/or business associates,
dummies,
agents and nominees filed before the Sandiganbayan, that the Sandiganbayan, x x x was
not to look for proof beyond reasonable doubt, but to determine, based on the evidence
presented, in light of common human experience, which of the theories proffered by the
parties is more worthy of credence.

(1)
Capitalization.Cash deposits and established credit line by applicant in domestic
bank certified to by the bank President or any of its authorized officials, duly attested by
depositor as his own to be used exclusively in logging and wood processing operations if
awarded the area. The bank certificate shall be accompanied by a written consent by the
applicant-depositor for the Director of Forestry or his authorized representative to verify
such cash deposit with bank authorities.

In order that restitution may be proper in this case, it must be first established that the
grant of the TLA to Twin Peaks was illegal. With the illegality of the grant established as
fact, finding Victor Tuvera, the major stockholder of Twin Peaks, liable in this case should
be the ineluctable course. In order that Juan Tuvera may be held answerable as well, his
own participation in the illegal grant should also be substantiated.

Capitalization and financial statements. A minimum capitalization of P20.00 per cubit meter
in cash and an established credit line of P150.00 per cubic meter based on the allowable
annual cut are required. Financial statements certified by the independent and reputable
certified public accountants must accompany the application as proof of the necessary
capitalization.

Regarding the first line of inquiry, the Complaint adverted to several provisions of law
which ostensibly were violated by the grant of the TLA in favor of Twin Peaks. These
include R.A. No. 3019, otherwise known as the Anti-Graft and Corrupt Practices Act, and
Articles 19, 20 and 21 of the Civil Code.

Additional capitalization, Real Estate. In the event that the capitalization of the applicant is
less than the minimum or less than that set by the Director of Forestry for the area, the
applicant bidder may be asked to submit an affidavit signifying his readiness, should the
area be awarded to him, to convert within a specified time any specified unencumbered
and titled real estate into cash for use in operating and developing the area. Presentation
of real estate should show location by municipality and province, hectarage, title number,
latest land tax declaration, assessed value of land and improvements (stating kind of
improvements), and encumbrances if any.

Still, the most organic laws that determine the validity or invalidity of the TLA are those that
governed the issuance of timber license agreements in 1984. In that regard, the Republic
argues that the absence of a bidding process is patent proof of the irregularity of the
issuance of the TLA in favor of Twin Peaks.

A timber license agreement authorizes a person to utilize forest resources within any forest
land with the right of possession and exclusion of others.[68] The Forestry Reform Code
prohibits any person from utilizing, exploiting, occupying, possessing or conducting any
activity within any forest land unless he had been authorized to do so under a license
agreement, lease, license or permit.[69] The Code also mandates that no timber license
agreement shall be issued unless the applicant satisfactorily proves that he has the
financial resources and technical capability not only to minimize utilization, but also to
practice forest protection, conservation and development measures to insure the
perpetuation of said forest in productive condition.[70] However, the Code is silent as to the
procedure in the acquisition of such timber license agreement. Such procedure is more
particularly defined under FAO No. 11, dated 1 September 1970, which provides for the
revised forestry license regulations.

(2) Logging machinery and equipment.Evidence of ownership or capacity to acquire the


requisite machinery or equipment shall accompany the bid application. The capacity or
ability to acquire machineries and equipments shall be determined by the committee on
award. Leased equipment or machineries may be considered in the determination by the
Committee if expressly authorized in writing by the Director of Forestry.
(3)
Technical know-how.To assure efficient operation of the area or concession, the
applicant shall submit proof of technical competence and know-how and/or his ability to
provide hired services of competent personnel.
(4) Operation or development plan. An appropriate plan of operation and development of
the forest area applied for shall be submitted, including phasing plans and the fund
requirements therefor, consistent with selective logging methods and the sustained yield
policy of the Bureau of Forestry. This plan must be in general agreement with the working
unit plan for the area as contained in Chapter III, Section 6(a) hereinabove.
(5)
Processing plant.The bidder or applicant shall show evidence of ownership of, or
negotiation to acquire, a wood processing plant. The kind and type of plant, such as
plywood, veneer, bandmill, etc. shall be specified. The plant should be capable of
processing at least 60% of the allowable annual cut.
(6) Forestry Department.The applicant shall submit assurance under oath that he shall
put a forestry department composed of trained or experienced foresters to carry out forest

63

management activities such as selective logging, planting of denuded or logged-over areas


within the concessions as specified by the Director of Forestry and establish a forest
nursery for the purpose.
(7)
Statement on sustained yield operations, reforestation, and protection under
management plans. The bidder or applicant shall submit a sworn statement of his
agreement and willingness to operate the area under sustained yield to reforest cleared
areas and protect the concession or licensed area and under the approved management
plan, and to abide with all existing forestry laws, rules and regulations and those that may
hereafter be promulgated; and of his agreement that any violation of these conditions shall
be sufficient cause for the cancellation of the licenses.
(8)
Organization plan.Other important statement connected with sound management
and operation of the area, such as the submission among others, of the organizational plan
and employment of concession guards, shall be submitted. In this connection, the
applicant shall submit a sworn statement to the effect no alien shall be employed without
prior approval of proper authorities.
(9) Unauthorized use of heave equipment.The applicant shall give his assurance that he
shall not introduce into his area additional heave equipment and machinery without
approval of the Director of Forestry.
(10) Such other inducements or considerations to the award as will serve public interest
may also be required from time to time.
xxxx
d) With applications for areas to be negotiated.All the foregoing requirements and
supporting papers required for bidding under Section 18(a) hereinabove and of Section
20(b) hereinbelow shall also apply to all areas that may be granted through negotiation. In
no case shall an area exceeding 100,000 hectares be granted thru negotiation.[74]
The rationale underlying the very elaborate procedure that entails prior to the grant of a
timber license agreement is to avert the haphazard exploitation of the State's forest
resources as it provides that only the most qualified applicants will be allowed to engage in
timber activities within the strict limitations of the grant and that cleared forest areas will
have to be renewed through reforestation. Since timber is not a readily renewable natural
resource, it is essential and appropriate that the State serve and act as a jealous and
zealous guardian of our forest lands, with the layers of bureaucracy that encumber the
grant of timber license agreements effectively serving as a defensive wall against the
thoughtless ravage of our forest resources.
There is no doubt that no public bidding occurred in this case. Certainly, respondents did
not raise the defense in their respective answers. The absence of such bidding was
testified on by prosecution witness Arcangel. Yet even if we consider that Twin Peaks could
have acquired the TLA through negotiation, the prescribed requirements for negotiation
under the law were still not complied with.
It is evident that Twin Peaks was of the frame of mind that it could simply walk up to
President Marcos and ask for a timber license agreement without having to comply with
the elaborate application procedure under the law. This is indicated by the letter dated 31
May 1984[75] signed by Twin Peaks Vice President and Treasurer Evelyn Fontanilla,
addressed directly to then President Marcos, wherein Twin Peaks expressed that we would
like to request a permit to export 20,000 cubic meters of logs and to cut and process
10,000 cubic meters of the narra species in the same area.[76] A marginal note therein
signed by Marcos indicates an approval thereof. Neither the Forestry Reform Code nor
FAO No. 11 provide for the submission of

an application directly to the Office of the President as a proper mode for the issuance of a
TLA. Without discounting the breadth and scope of the Presidents powers as Chief
Executive, the authority of the President with respect to timber licenses is, by the express
terms of the Revised Forestry Code, limited to the amendment, modification, replacement
or rescission of any contract, concession, permit, license or any other form of privilege
granted by said Code.[77]
There are several factors that taint this backdoor application for a timber license
agreement by Twin Peaks. The forest area covered by the TLA was already the subject of
a pre-existing TLA in favor of Ysmael. The Articles of Incorporation of Twin Peaks does not
even stipulate that logging was either a principal or secondary purpose of the corporation.
Respondents do allege that the Articles was amended prior to the grant in order to
accommodate logging as a corporate purpose, yet since respondents have waived their
right to present evidence by reason of their resort to demurrer, we cannot consider such
allegation as proven.
Sec. 18(a)(1) of FAO No. 11 requires that an applicant must have a minimum capitalization
of P20.00 per cubic meter in cash and an established credit line of P150.00 per cubic

meter based on the allowable annual cut. TLA No. 356 allowed Twin Peaks to operate on
26,000 hectares of forest land with an annual allowable cut of 60,000 cubic meters of
timber. With such annual allowable cut, Twin

Peaks, therefore, must have at least P1,200,000.00 in cash as its minimum capitalization,
following FAO No. 11. An examination of Twin Peaks Articles of Incorporation shows that its
paid-up capital was only P312,500.00.[78] Clearly, Twin Peaks paid-up capital is way
below the minimum capitalization requirement.
Moreover, Sec. 18(5) provides that the bidder or applicant shall show evidence of
ownership of, or negotiation to acquire, a wood processing plant. However, although TLA
No. 356 was issued to Twin Peaks in 1984, it continued to engage the services of at least
two sawmills[79] as late as 1988. Four (4) years from the issuance of the license, Twin
Peaks remained incapable of processing logs.
What could have made Twin Peaks feel emboldened to directly request President Marcos
for the grant of Timber License Agreement despite the obvious problems relating to its
capacity to engage in timber activities? The reasonable assumption is that the official and
personal proximity of Juan Tuvera to President Marcos was a key factor, considering that
he was the father of Twin Peaks' most substantial stockholder.
The causes of action against respondents allegedly arose from Juan Tuveras abuse of his
relationship, influence and connection as Presidential Executive Assistant of then
President Marcos. Through Juan Tuveras position, the Republic claims that Twin Peaks
was able to secure a Timber License Agreement despite its lack of qualification and the
absence of a public bidding. On account of the unlawful issuance of a timber license
agreement, the natural resources of the country were unlawfully exploited at the expense
of the Filipino people. Victor Tuvera, as son of Juan Tuvera and a major stockholder of
Twin Peaks, was included as respondent for having substantially benefited from this
breach of trust. The circumstance of kinship alone may not be enough to disqualify Victor
Tuvera from seeking a timber license agreement. Yet the basic ethical principle of
delicadeza should have dissuaded Juan Tuvera from any official or unofficial participation
or intervention in behalf of the request of Twin Peaks for a timber license.
Did Juan Tuvera do the honorable thing and keep his distance from Twin Peaks' request?
Apparently not. Instead, he penned a Memorandum dated 18 July 1984 in his capacity as
Presidential Executive Assistant, directed at the Director of Forestry, the official who, under
the law, possessed the legal authority to decide whether to grant the timber license
agreements after deliberating on the application and its supporting documents. The
Memorandum reads in full:
18 July 1984
74-84
MEMORANDUM to
Director Edmundo Cortes
Bureau of Forest Development
I wish to inform you that the President has granted the award to the Twin Peaks Realty
Development Corporation, of the concession to manage, operate and develop in
accordance with existing policies and regulations half of the timber area in the Province of
Quirino covered by TLA No. 87, formerly belonging to the Felipe Ysmael, Jr. & Company
and comprising 54,920 hectares, and to export half of the requested 20,000 cubic meters
of logs to be gathered from the area.
Herewith is a copy of the letter concering (sic) this matter of Ms. Evelyn F. Fontanilla, VicePresident and Treasurer of the Twin Peaks Realty Development Corporation, on which the
President indicated such approval in his own hand, which I am furnishing you for your
information and appropriate action.
(signed)
JUAN C. TUVERA
Presidential Executive Assistant[80]
The Memorandum establishes at the very least that Tuvera knew about the Twin Peaks
request, and of President Marcos's favorable action on such request. The Memorandum
also indicates that Tuvera was willing to convey those facts to the Director of Forestry, the
ostensible authority in deciding whether the Twin Peaks request should have been
granted. If Juan Tuvera were truly interested in preventing any misconception that his own
position had nothing to do with the favorable action on the request lodged by the company

64

controlled by his son, he would not have prepared or signed the Memorandum at all.
Certainly, there were other officials in Malacaang who could have performed that role had
the intent of the Memorandum been merely to inform the Director of Forestry of such
Presidential action.
Delicadeza is not merely a stentorian term evincing a bygone ethic. It is a legal principle as
embodied by certain provisions of the Anti-Graft and Corrupt Practices Act. Section 3 of
R.A. No. 3019 states in part:
Sec. 3. Corrupt practices of public officers.In addition to acts or omissions of public officers
already penalized by existing law, the following shall constitute corrupt practices of any
public officer and are hereby declared to be unlawful:
(a) Persuading, inducing or influencing another public officer to perform an act constituting
a violation of rules and regulations duly promulgated by competent authority or an offense
in connection with the official duties of the latter, or allowing himself to be persuaded,
induced or influenced to commit such violation or offense.
(h) Directly or indirectly having financial or pecuniary interest in any business, contract or
transaction in connection with which he intervenes or takes part in his official capacity, or in
which he is prohibited by the Constitution or by any law from having any interest.
The Memorandum signed by Juan Tuvera can be taken as proof that he persuaded,
induced or influenced the Director of Forestry to accommodate a timber license agreement
in favor of Twin Peaks, despite the failure to undergo public bidding, or to comply with the
requisites for the grant of such agreement by negotiation, and in favor of a corporation that
did not appear legally capacitated to be granted such agreement. The fact that the
principal stockholder of Twin Peaks was his own son establishes his indirect pecuniary
interest in the transaction he appears to have intervened in. It may have been possible on
the part of Juan Tuvera to prove that he did not persuade, induce or influence the Director
of Forestry or any other official in behalf of the timber license agreement of Twin Peaks,
but then again, he waived his right to present evidence to acquit himself of such suspicion.
Certainly, the circumstances presented by the evidence of the prosecution are sufficient to
shift the burden of evidence to Tuvera in establishing that he did not violate the provisions
of the Anti-Graft and Corrupt Practices Act in relation to the Twin Peaks request.
Unfortunately, having waived his right to present evidence, Juan Tuvera failed to disprove
that he failed to act in consonance with his obligations under the Anti-Graft and Corrupt
Practices Act.
In sum, the backdoor recourse for a hugely priced favor from the government by itself, and
more in tandem with other brazen relevant damning circumstances, indicates the impudent
abuse of power and the detestable misuse of influence that homologously made the
acquisition of ill-gotten wealth a reality. Upon the facts borne out by the evidence for the
Republic and guideposts supplied by the governing laws, the Republic has a clear right to
the reliefs it seeks.
VI.
If only the Court's outrage were quantifiable in sums of money, respondents are due for
significant pecuniary hurt. Instead, the Court is forced to explain in the next few paragraphs
why respondents could not be forced to recompensate the Filipino people in appropriate
financial terms. The fault lies with those engaged by the government to litigate this case in
behalf of the State.

Filipino people. If the litigation of this case is indicative of the mindset in the prosecution of
ill-gotten wealth cases, it is guaranteed to ensure that those who stole from the people will
be laughing on their way to the bank.
The claim for moral damages deserves short shrift. The claimant in this case is the
Republic of the Philippines, a juridical person. We explained in Filipinas Broadcasting v.
Ago Medical & Educational Center-Bicol Christian College of Medicine (AMEC-BCCM):[82]
A juridical person is generally not entitled to moral damages because, unlike a natural
person, it cannot experience physical suffering or such sentiments as wounded feelings,
serious anxiety, mental anguish or moral shock. The Court of Appeals cites Mambulao
Lumber Co. v. PNB, et al. to justify the award of moral damages. However, the Court's
statement in Mambulao that "a corporation may have a good reputation which, if
besmirched, may also be a ground for the award of moral damages" is an obiter dictum.
Nevertheless, AMEC's claim for moral damages falls under item 7 of Article 2219 of the
Civil Code. This provision expressly authorizes the recovery of moral damages in cases of
libel, slander or any other form of defamation. Article 2219(7) does not qualify whether the
plaintiff is a natural or juridical person. Therefore, a juridical person such as a corporation
can validly complain for libel or any other form of defamation and claim for moral damages.
[83]
As explained, a juridical person is not entitled to moral damages under Article 2217 of the
Civil Code. It may avail of moral damages under the analogous cases listed in Article 2219,
such as for libel, slander or any other form of defamation. Suffice it to say that the action at
bar does not involve any of the analogous cases under Article 2219, and indeed upon an
intelligent reading of Article 2219, it is difficult to see how the Republic could sustain any of
the injuries contemplated therein. Any lawyer for the Republic who poses a claim for moral
damages in behalf of the State stands in risk of serious ridicule.
However, there is sufficient basis for an award of temperate damages, also sought by the
Republic notwithstanding the fact that a claim for both actual and temperate damages is
internally inconsistent. Temperate or moderate damages avail when the court finds that
some pecuniary loss has been suffered but its amount can not from the nature of the case,
be proved with certainty.[84] The textual language might betray an intent that temperate
damages do not avail when the case, by its nature, is susceptible to proof of pecuniary
loss; and certainly the Republic could have proved pecuniary loss herein.[85] Still,
jurisprudence applying Article 2224 is clear that temperate damages may be awarded even
in instances where pecuniary loss could theoretically have been proved with certainty.
In a host of criminal cases, the Court has awarded temperate damages to the heirs of the
victim in cases where the amount of actual damages was not proven due to the
inadequacy of the evidence presented by the prosecution. These cases include People v.
Oliano,[86] People v. Suplito,[87] People v. De la Tongga,[88] People v. Briones,[89] and
People v. Plazo.[90] In Viron Transportation Co., Inc. v. Delos Santos,[91] a civil action for
damages involving a vehicular collision, temperate damages were awarded for the
resulting damage sustained by a cargo truck, after the plaintiff had failed to submit
competent proof of actual damages.

It bears to the most primitive of reasons that an action for recovery of sum of money must
prove the amount sought to be recovered. In the case at bar, the Republic rested its case
without presenting any evidence, documentary or testimonial, to establish the amount that
should be restituted to the State by reason of the illegal acts committed by the
respondents. There is the bare allegation in the complaint that the State is entitled to P48
million by way of actual damages, but no single proof presented as to why the State is
entitled to such amount.

We cannot discount the heavy influence of common law, and its reliance on judicial
precedents, in our law on tort and damages. Notwithstanding the language of Article 2224,
a line of jurisprudence has emerged authorizing the award of temperate damages even in
cases where the amount of pecuniary loss could have been proven with certainty, if no
such adequate proof was presented. The allowance of temperate damages when actual
damages were not adequately proven is ultimately a rule drawn from equity, the principle
affording relief to those definitely injured who are unable to prove how definite the injury.
There is no impediment to apply this doctrine to the case at bar, which involves one of the
most daunting and noble undertakings of our young democracythe recovery of ill-gotten
wealth salted away during the Marcos years. If the doctrine can be justified to answer for
the unlawful damage to a cargo truck, it is a

Actual damages must be proven, not presumed.[81] The Republic failed to prove
damages. It is not enough for the Republic to have established, as it did, the legal travesty
that led to the wrongful obtention by Twin Peaks of the TLA. It should have established the
degree of injury sustained by the State by reason of such wrongful act.

compounded wrath if it cannot answer for the unlawful exploitation of our forests, to the
injury of the Filipino people. The amount of P1,000,000.00 as temperate damages is
proper.

We fail to comprehend why the Republic failed to present any proof of actual damages.
Was it the inability to obtain the necessary financial documents that would establish the
income earned by Twin Peaks during the period it utilized the TLA, despite the presence of
the discovery processes? Was it mere indolence or sheer incompetence? Whatever the
reason, the lapse is inexcusable, and the injury ultimately conduces to the pain of the

The allowance of temperate damages also paves the way for the award of exemplary
damages. Under Article 2234 of the Civil Code, a showing that the plaintiff is entitled to
temperate damages allows for the award of exemplary damages. Even as exemplary
damages cannot be recovered as a matter of right, the courts are empowered to decide
whether or not they should be adjudicated. Ill-gotten wealth cases are hornbook

65

demonstrations where damages by way of example or correction for the public good
should be awarded. Fewer causes of action deserve the stigma left by exemplary
damages, which serve as a deterrent against or as a negative incentive to curb socially
deleterious actions.[92] The obtention of the timber license agreement by Twin Peaks
through fraudulent and illegal means was highlighted by Juan Tuveras abuse of his
position as Presidential Executive Assistant. The consequent exploitation of 26 hectares of
forest land benefiting all respondents is a grave case of unjust enrichment at the expense
of the Filipino people and of the environment which should never be countenanced.
Considering the expanse of forest land exploited by respondents, the volume of timber that
was necessarily cut by virtue of their abuse and the estimated wealth acquired by
respondents through grave abuse of trust and public office, it is only reasonable that
petitioner be granted the amount of P1,000,000.00 as exemplary damages.
The imposition of exemplary damages is a means by which the State, through its judicial
arm, can send the clear and unequivocal signal best expressed in the pithy but immutable
phrase, never again. It is severely unfortunate that the Republic did not exert its best
efforts in the full recovery of the actual damages caused by the illegal grant of the Twin
Peaks TLA. To the best of our ability, through the appropriate vehicle of exemplary
damages, the Court will try to fill in that deficiency. For if there is a lesson that should be
learned from the national trauma of the rule of Marcos, it is that kleptocracy cannot pay. As
those dark years fade into the backburner of the collective memory, and a new generation
emerges without proximate knowledge of how bad it was then, it is useful that the Court
serves a reminder here and now.
WHEREFORE, the petition is GRANTED. The Resolution of the Sandiganbayan dated 23
May 2001 is REVERSED. Respondents Juan C. Tuvera, Victor P. Tuvera and Twin Peaks
Development Corporation are hereby ordered to jointly and severally pay to the Republic of
the Philippines One Million (P1,000,000.00) Pesos, as and for temperate damages, and
One Million (P1,000,000.00) Pesos, as and for exemplary damages, plus costs of suit.

Human Rights
SEC. 17.
(1) There is hereby created an independent office called Commission on Human Rights.
(2) The Commission shall be composed of a Chairman and four Members who must be
natural-born citizens of the Philippines and a majority of whom shall be members of the
Bar. The term of office and other qualifications and disabilities of the Members of the
Commission shall be provided by law. (3) Until this Commission is constituted, the existing
Presidential Committee on Human Rights shall continue to exercise its present functions
and powers. (4) The approved annual appropriations of the Commission shall be
automatically and regularly released.
SEC. 18.
The Commission on Human Rights shall have the following powers and functions: (1)
Investigate, on its own or on complaint by any party, all forms of human rights violations
involving civil and political rights; (2) Adopt its operational guidelines and rules of
procedure, and cite for contempt for violations thereof in accordance with the Rules of
Court; (3) Provide appropriate legal measures for the protection of human rights of all
persons within the Philippines, as well as Filipinos residing abroad, and provide for
preventive measures and legal aid services to the underprivileged whose human rights
have been violated or need protection; (4) Exercise visitorial powers over jails, prisons, or
detention facilities; (5) Establish a continuing program of research, education, ad
information to enhance respect for the primacy of human rights; (6) Recommend to the
Congress effective measures to promote human rights and to provide for compensation to
victims of violations of human rights, or their families; (7) Monitor the Philippine
Government's compliance with international treaty obligations on human rights; (8) Grant
immunity from prosecution to any person whose testimony or whose possession of
documents or other evidence is necessary or convenient to determine the truth in any
investigation conducted by it or under its authority; (9) Request the assistance of any
department, bureau, office, or agency in the performance of its functions; (10) Appoint its
officers and employees in accordance with law; and (11) Perform such other duties and
functions as may be provided by law.
SEC. 19.
The Congress may provide for other cases of violations of human rights that should fall
within the authority of the Commission, taking into account its recommendations.
REPUBLIC ACT NO. 10368]
AN ACT PROVIDING FOR REPARATION AND RECOGNITION OF VICTIMS OF HUMAN
RIGHTS VIOLATIONS DURING THE MARCOS REGIME, DOCUMENTATION OF SAID
VIOLATIONS, APPROPRIATING FUNDS THEREFOR AND FOR OTHER PURPOSES

Be it enacted by the Senate and House of Representatives of the Philippines in Congress


assembled:
CHAPTER I
PRELIMINARY PROVISIONS
SECTION 1. Short Title. This Act shall be known as the Human Rights Victims
Reparation and Recognition Act of 2013.
SEC. 2. Declaration of Policy. Section 11 of Article II of the 1987 Constitution of the
Republic of the Philippines declares that the State values the dignity of every human,
person and guarantees full respect for human rights. Pursuant to this declared policy,
Section 12 of Article III of the Constitution prohibits the use of torture, force, violence,
threat, intimidation, or any other means which vitiate the free will and mandates the
compensation and rehabilitation of victims of torture or similar practices and their families.
By virtue of Section 2 of Article II of the Constitution adopting generally accepted principles
of international law as part of the law of the land, the Philippines adheres to international
human rights laws and conventions, the Universal Declaration of Human Rights, including
the International Covenant on Civil and Political Rights (ICCPR) and the Convention
Against Torture (CAT) and Other Cruel, Inhuman or Degrading Treatment or Punishment
which imposes on each State party the obligation to enact domestic legislation to give
effect to the rights recognized therein and to ensure that any person whose rights or
freedoms have been violated shall have an effective remedy, even if the violation is
committed by persons acting in an official capacity. In fact, the right to a remedy is itself
guaranteed under existing human rights treaties and/or customary international law, being
peremptory in character (jus cogens) and as such has been recognized as non-derogable.
Consistent with the foregoing, it is hereby declared the policy of the State to recognize the
heroism and sacrifices of all Filipinos who were victims of summary execution, torture,
enforced or involuntary disappearance and other gross human rights violations committed
during the regime of former President Ferdinand E. Marcos covering the period from
September 21, 1972 to February 25, 1986 and restore the victims honor and dignity. The
State hereby acknowledges its moral and legal obligation to recognize and/or provide
reparation to said victims and/or their families for the deaths, injuries, sufferings,
deprivations and damages they suffered under the Marcos regime.
Similarly, it is the obligation of the State to acknowledge the sufferings and damages
inflicted upon persons whose properties or businesses were forcibly taken over,
sequestered or used, or those whose professions were damaged and/or impaired, or those
whose freedom of movement was restricted, and/or such other victims of the violations of
the Bill of Rights.
SEC. 3. Definition of Terms. The following terms as used in this Act shall mean:
(a) Detention refers to the act of taking a person into custody against his will by persons
acting in an official capacity and/or agents of the State.
(b) Human rights violation refers to any act or omission committed during the period from
September 21, 1972 to February 25, 1986 by persons acting in an official capacity and/or
agents of the State, but shall not be limited to the following:
(1) Any search, arrest and/or detention without a valid search warrant or warrant of arrest
issued by a civilian court of law, including any warrantless arrest or detention carried out
pursuant to the declaration of Martial Law by former President Ferdinand E. Marcos as well
as any arrest., detention or deprivation of liberty carried out during the covered period on
the basis of an Arrest, Search and Seizure Order (ASSO), a Presidential Commitment
Order {PCO) or a Preventive Detention Action (PDA) and such other similar executive
issuances as defined by decrees of former President Ferdinand E. Marcos, or in any
manner that the arrest, detention or deprivation, of liberty was effected;
(2) The infliction by a person acting in an official capacity and/or an agent of the State of
physical injury, torture, killing, or violation of other human rights, of any person exercising
civil or political rights, including but not limited to the freedom of speech, assembly or
organization; and/or the right to petition the government for redress of grievances, even if
such violation took place during or in the course of what the authorities at the time deemed
an illegal assembly or demonstration: Provided, That torture in any form or under any
circumstance shall be considered a human rights violation;
(3) Any enforced or involuntary disappearance caused upon a person who was arrested,
detained or abducted against ones will or otherwise deprived of ones liberty, as defined in
Republic Act No. 10350 {{1}}, otherwise known as the Anti-Enforced or Involuntary
Disappearance Act of 2012;

66

(4) Any force or intimidation causing the involuntary exile of a person from the Philippines;
(5) Any act of force, intimidation or deceit causing unjust or illegal takeover of a business,
confiscation of property, detention of owner/s and or their families, deprivation of livelihood
of a person by agents of the State, including those caused by Ferdinand E. Marcos, his
spouse Imelda R. Marcos, their immediate relatives by consanguinity or affinity, as well as
those persons considered as among their close relatives, associates, cronies and
subordinates under Executive Order No. 1, issued on February 28, 1986 by then President
Corazon C. Aquino in the exercise of her legislative powers under the Freedom
Constitution;
(6) Any act or series of acts causing, committing and/or conducting the following:
(i) Kidnapping or otherwise exploiting children of persons suspected of committing acts
against the Marcos regime;
(ii) Committing sexual offenses against human rights victims who are detained and/or in
the course of conducting military and/or police operations; and
(iii) Other violations and/or abuses similar or analogous to the above, including those
recognized by international law.
(c) Human Rights Violations Victim (HRVV) refers to a person whose human rights were
violated by persons acting in an official capacity and/or agents of the State as defined
herein. In order to qualify for reparation under this Act, the human rights violation must
have been committed during the period from September 21, 1972 to February 25, 1986:
Provided, however, That victims of human rights violations that were committed one (1)
month before September 21, 1972 and one (1) month after February 25, 1986 shall be
entitled to reparation, under this Act if they can establish that the violation was committed:

successor(s)-in-interest shall be entitled to personally receive said reparation form the


Board, unless the victim involved is shown to be incapacitated to the satisfaction of the
Board: Provided, furthermore, That the reparation received under this Act shall be without
prejudice to the receipt of any other sum by the HRVV from any other person or entity in
any case involving violations of human rights as defined in this Act.
SEC. 5. Nonmonetary Reparation. The Department of Health (DOH), the Department of
Social Welfare and Development (DSWD), the Department of Education (DepED), the
Commission on Higher Education (CHED), the Technical Education and Skills
Development Authority (TESDA), and such other government agencies shall render the
necessary services as nonmonetary reparation for HRVVs and/or their families, as may be
determined by the Board pursuant to the provisions of this Act. The amount necessary for
this purpose shall be sourced from the budget of the agency concerned in the annual
General Appropriations Act (GAA).
SEC. 6. Amount of Reparation. The amount of reparation under this Act shall be in
proportion to the gravity of the human rights violation committed on the HRVV and in
accordance with the number of points assigned to the individual under Section 19 hereof.
SEC. 7. Source of Reparation. The amount of Ten billion pesos (P10,000,000,000.00)
plus accrued interest which form part of the funds transferred to the government of the
Republic of the Philippines by virtue of the December 10, 1997 Order of the Swiss Federal
Supreme Court, adjudged by the Supreme Court of the Philippines as final and executory
in Republic vs. Sandiganbayan on July 15, 2003 (G.R. No. 152154) as Marcos ill-gotten
wealth and forfeited in favor of the Republic of the Philippines, shall be the principal source
funds for the implementation of this Act.
CHAPTER II
THE HUMAN RIGHTS VICTIMS CLAIMS BOARD

(1) By agents of the State and/or persons acting in an official capacity as defined
hereunder;
(2) For the purpose of preserving, maintaining, supporting or promoting the said regime; or

SEC. 8. Creation and Composition of the Human Rights Victims Claims Board. There is
hereby created an independent and quasi-judicial body to be known as the Human Rights
Victims Claims Board, hereinafter referred to as the Board. It shall be composed of nine
(9) members, who shall possess the following qualifications:

(3) To conceal abuses during the Marcos regime and/or the effects of Martial Law.
(a) Must be of known probity, competence and integrity;
(d) Persons Acting in an Official Capacity and/or Agents of the State.The following
persons shall be deemed persons acting in an official capacity and/or agents of the State
under this Act:
(1) Any member of the former Philippine Constabulary (PC), the former Integrated National
Police (INP), the Armed Forces of the Philippines (AFP) and the Civilian Home Defense
Force (CHDF) from September 21, 1972 to February 25, 1986 as well as any civilian agent
attached thereto; and any member of a paramilitary group even if one is not organically
part of the PC, the INP, the AFP or the CHDF so long as it is shown that the group was
organized, funded, supplied with equipment, facilities and/or resources, and/or
indoctrinated, controlled and/or supervised by any person acting in an official capacity
and/or agent of the State as herein defined;
(2) Any member of the civil service, including persons who held elective or appointive
public office at any time from September 21, 1972 to February 25, 1986;
(3) Persons referred to in Section 2(a) of Executive Order No. 1, creating the Presidential
Commission on Good Government (PCGG), issued on February 28, 1986 and related laws
by then President Corazon C. Aquino in the exercise of her legislative powers under the
Freedom Constitution, including former President Ferdinand E. Marcos, spouse Imelda R.
Marcos, their immediate relatives by consanguinity or affinity, as well as their close
relatives, associates, cronies and subordinates; and
(4) Any person or group/s of persons acting with the authorization, support or
acquiescence of the State during the Marcos regime.
(e) Torture refers to any act by which severe pain or suffering, whether physical or mental,
is intentionally inflicted on any person under the custody of persons acting in an official
capacity and/or agents of the State, as defined by law, jurisprudence, international
conventions and Republic Act No. 9745, otherwise known as the Anti-Torture Act of 2009.

(b) Must have a deep and thorough understanding and knowledge of human rights and
involvement in efforts against human rights violations committed during the regime of
former President Ferdinand E. Marcos;
(c) At least three (3) of them must be members of the Philippine Bar who have been
engaged in the practice of law for at least ten (10) years; and
(d) Must have a clear and adequate understanding and commitment to human rights
protection, promotion and advocacy.
The Human Rights Victims Claims Board shall be attached to but shall not be under the
Commission on Human Rights (CHR).
The Board shall organize itself within thirty (30) days from the completion of appointment of
all nine (9) members and shall thereafter organize its Secretariat.
SEC. 9. Appointment to the Board. The President shall appoint the Chairperson and the
other eight (8) members of the Board: Provided, That human rights organizations such as,
but not limited to, the Task Force Detainees of the Philippines (TFDP), the Free Legal
Assistance Group (FLAG), the Movement of Attorneys for Brotherhood, Integrity and
Nationalism (MABINI), the Families of Victims of Involuntary Disappearance (FIND) and
the Samahan ng mga Ex-Detainees Laban sa Detensyon at Aresto (SELDA) may submit
nominations to the President.
SEC. 10. Powers and Functions of the Board. The Board shall have the following
powers and functions:
(a) Receive, evaluate, process and investigate applications for claims under this Act;
(b) Issue subpoena/s ad testificandum and subpoena/s duces tecum;

SEC 4. Entitlement to Monetary Reparation. Any HRVV qualified under this Act shall
receive reparation from the State, free of tax, as herein prescribed: Provided, That for a
deceased or involuntary disappeared HRVV, the legal heirs as provided for in the Civil
Code of the Philippines, or such other person named by the executor or administrator of
the deceased or involuntary disappeared HRVVs estate in that order, shall be entitled to
receive such reparation: Provided, further, That no special power of attorney shall be
recognized in the actual disbursement of the award, and only the victim or the aforestated

(c) Conduct independent administrative proceedings and resolve disputes over claims;
(d) Approve with finality all eligible claims under this Act;
(e) Deputize appropriate government agencies to assist it in order to effectively perform its
functions;

67

(f) Promulgate such rules as may be necessary to carry out the purposes of this Act,
including rules of procedure in the conduct of its proceedings, with the Revised Rules of
Court of the Philippines having suppletory application;
(g) Exercise administrative control and supervision over its Secretariat;
(h) The Board, at its discretion, may consult the human rights organizations mentioned in
Section 9 herein; and
(i) Perform such other duties, functions and responsibilities as may be necessary to
effectively attain the objectives of this Act.
SEC. 11. Resolution, of Claims. The Board shall be composed of three (3) divisions
which shall function simultaneously and independently of each other in the resolution of
claims for reparation. Each division shall be composed of one (1) Chairperson, who shall
be a member of the Philippine Bar and two (2) members to be appointed by the Board en
banc.
SEC. 12. Emoluments. The Chairperson and members of the Board shall have the rank,
salary, emoluments and allowances equivalent to s Presiding Justice and Associate Justice
of the Court of Appeals, respectively.
SEC. 13. Secretariat of the Board. The Board shall be assisted by a Secretariat which
may come from the existing personnel of the CHR, without prejudice to the hiring of
additional personnel as determined by the Board to accommodate the volume of required
work. The following shall be the functions of the Secretariat:
(a) Receive, evaluate, process and investigate applications for claims under this Act;

SEC. 18. Motu Proprio Recognition. The Board may take judicial notice motu proprio of
individual persons who suffered human rights violations as defined herein and grant such
persons recognition as HRVVs and included in the Roll of Victims as provided for in
Section 26 hereof.
SEC. 19. Determination of Award. (a) The Board shall follow the point system in the
determination of the award. The range shall be one (1) to ten (10) points, as follows:
(1) Victims who died or who disappeared and are still missing shall be given ten (10)
points;
(2) Victims who were tortured and/or raped or sexually abused shall he given six (6) to nine
(9) points:
(3) Victims who were detained shall be given three (3) to five (5) points; and
(4) Victims whose rights were violated under Section 3, paragraph (b), nos. (4), (5) and (6)
under this Act shall be given one (1) to two (2) points.
The Board shall exercise its powers with due discretion in the determination of points for
each victim, which shall be based on the type of violation committed against the HRVV,
frequently and duration of the violation. In each category, HRVVs who had suffered more
would receive more points. In instances where a victim is classified in more than one
category, one shall be awarded the points in the higher category: Provided, That in cases
where there are several eligible claims filed for reparation by or on behalf of a particular
HRVV, the Board shall award only one (1) valid claim which corresponds to the category
obtaining the highest number of points for each eligible claimant.
(b) The Board shall proceed to determine the award for each claimant classified under
Sections 16, 17 and 18 of this Act.

(b) Recommend to the Board the approval of applications for claims;


(c) Assist the Board in technical functions; and

(c) The Board shall then compute the final monetary value of ones award that is equivalent
to the numerical value of one point multiplied by the number of points that a claimant is
entitled to, as previously determined by the Board.

(d) Perform other duties that may be assigned by the Board.


The Chairperson of the Board shall appoint a Board Secretary who shall head the
Secretariat for the duration of the existence of the Board. There shall be a Technical Staff
Head assisted by five (5) Legal Officers and three (3) Paralegal Officers; and an
Administrative Staff Head assisted by three (3) Administrative Support Staff.
When necessary, the Board may hire additional contractual employees or contract a
service provider to provide services of counselors, psychologists, social workers and public
education specialists, among others, to augment the services of the Secretariat: Provided,
That the maximum contract amount per year shall not exceed more than fifteen percent
(15%) of the total annual operating budget of the Board.
SEC. 14. Operating Budget of the Board. The operating budget of the Board shall be
funded from the Ten billion peso {P10,000,000,000.00) fund, with Ten million pesos
(P10,000,000.00) as its initial operating budget: Provided, That it shall not exceed Fifty
million pesos (P50,000,000.00) a year
SEC. 15. Proper Disposition of Funds. The Board shall ensure that funds appropriated
or those which may become available as reparation for HRVVs are properly disbursed in
accordance with the policies stated by Congress and relevant government rules,
regulations and accounting procedures.
CHAPTER III
CLAIMANTS, REPARATION AND RECOGNITION
SEC. 16. Claimants. Any person who is an HRVV may file a claim with the Board for
reparation and/or recognition in accordance with the provisions of this Act.
Sec. 17. Conclusive Presumption That One is an HRVV Under This Act. The claimants
in the class suit and direct action plaintiffs in the Human Rights Litigation Against the
Estate of Ferdinand E. Marcos (MDL No. 840, CA No. 88-0390) in the US Federal District
Court of Honolulu, Hawaii wherein a favorable judgment has been rendered, shall be
extended the conclusive presumption that they are HRVVs: Provided, That the HRVVs
recognized by the Bantayog Ng Mga Bayani Foundation shall also be accorded the same
conclusive presumption: Provided, further, That nothing herein shall be construed to
deprive the Board of its original jurisdiction and its inherent power to determine the extent
of the human rights violations and the corresponding reparation and/or recognition that
may be granted.

(d) Within thirty (30) days after the Board has approved with finality each eligible claim
pending before it and after due publication of such legitimate claim, the award of monetary
compensation shall take effect: Provided., That any pending appeal filed by an aggrieved
claimant or opposite before the Board en banc must resolved by it sixty (60) days before
the Board becomes functus officio.
CHAPTER IV
GENERAL- PROVISIONS
SEC. 20. Transfer of Funds. Pursuant to the judgment mentioned in Section 7 hereof,
the amount of Ten billion pesos (P10,000,000,000.00) plus the accrued interest are hereby
set aside and appropriated to fund the purposes of this Act.
SEC. 21. Documentation of Human Rights Violations Committed by the Marcos
Regime. In the implementation of this Act and without prejudice to any other
documentary or other evidence that may be required for the award of any reparation, any
HRVV seeking reparation shall execute a detailed sworn statement narrating the
circumstances of the pertinent human rights violation/s committed.
SEC. 22. Publication. Consistent with Section 23 herein, the Board, after having been
duly convened, shall set the period for the commencement and termination of applications
by HRVVs and cause the publication of the same: Provided, That such period shall only
become operative fifteen (15) days after its last publication, which shall be once a week for
three (3) consecutive weeks in at least two (2) national newspapers of general circulation.
SEC. 23. Period for Filing of Claims; Waiver. An HRVV shall file an application for
reparation with the Board within six (6) months from the effectivity of the implementing
rules and regulations (IRR) of this Act: Provided, That failure to file an application within
said period is deemed a waiver of the right to file the same: Provided, further, That for
HRVVs who are deceased, incapacitated, or missing due to enforced disappearance, their
legal heir/s or representatives, shall be entitled to file an application for reparation on their
behalf.
Any opposition to the new application/s pursuant to Section 16 hereof shall only be
entertained if such is filed within fifteen (15) days from the date of the last publication of the
official list of eligible claimants as may be determined by the Board. The Board shall cause
the publication of the official list of eligible claimants once a week for three (3) consecutive
weeks in at least two (2) national newspapers of general circulation.

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SEC. 24 Appeal. Any aggrieved claimant or oppositor may file an appeal within ten (10)
calendar days from the receipt of the Resolution of the Division, to the Board en banc,
whose decision shall then become final and executory.

The Board of Trustees shall have the authority to hire and appoint its officials and
employees, receive donations and grants for and on its behalf, and generate revenues for
the benefit of the Commission.

SEC 25. Penalties; Applicability of the Revised Penal Code. Any claimant who is found
by the Board, after due hearing, to have filed a fraudulent claim, shall be referred to the
appropriate office for prosecution. If convicted, he shall suffer the imprisonment of eight (8)
to ten (10) years, shall be disqualified from public office and employment and shall be
deprived of the right to vote and be voted for in any national or local election, even after the
service of sentence unless granted absolute pardon.

The Commission shall be attached to the CHR solely for budgetary and administrative
purposes. The operating budget of the Commission shall be appropriated from the General
Appropriations Act.

Any member of the Board and its Secretariat, public officer, employee of an agency or any
private individual mandated to implement this Act, who shall misuse, embezzle or
misappropriate the funds for the reparation of HRVVs or who shall commit fraud in the
processing of documents and claims of HRVVs, or shall conspire with any individual to
commit the same, shall also be prosecuted,
Any member of the Board and its Secretariat, public officer, employee of an agency or any
private individual mandated to implement this Act, who may have been found guilty of
committing any or all of the prohibited acts stated in the preceding paragraph, or those acts
punishable under the Revised Penal Code, shall be penalized under the pertinent
provisions in the Code and relevant special penal laws.

The Commission shall also coordinate and collaborate with the DepED and the CHED to
ensure that the teaching of Martial Law atrocities, the lives and sacrifices of HRVVs in our
history are included in the basic, secondary and tertiary education curricula.
CHAPTER V
FINAL PROVISIONS
SEC 28. Guidelines for the Implementing Rules and Regulations (1RR). In
implementing this Act and in formulating the corresponding rules and regulations, and to
ensure that all applications are properly screened for fraudulent claims, the Board must
provide for:
(a) Transparency in the processing of the claims;

SEC. 26. Roll of Victims. Persons who are HRVVs, regardless of whether they opt to
seek reparation or not, shall be given recognition by enshrining their names in a Roll of
Human Rights Victims to be prepared by the Board.

(b) A procedure that allows any concerned party to oppose an application or claim on the
ground that it is fraudulent, fictitious or spurious and gives that party the opportunity to
question the same and to present evidence in support thereof; and

A Memorial/Museum/Library shall be established in honor and in memory of the victims of


human rights violations whose names shall be inscribed in the Roll. A compendium of their
sacrifices shall be prepared and may be readily viewed and accessed in the internet. The
Memorial/Museum/Library/Compendium shall have an appropriation of at least Five
hundred million pesos (P500,000,000.00) from the accrued interest of the Ten billion peso
(P10,000,000,000.00) fund.

(c) A procedure that is speedy and expeditious without sacrificing any of the parties
fundamental rights.

The Roll may also be displayed in government agencies as maybe designated by the
HRVV Memorial Commission as created hereunder.
SEC. 27. Human, Rights Violations Victims Memorial Commission.. There is hereby
created a Commission to be known as the Human Rights Violations Victims Memorial
Commission, hereinafter referred to as the Commission, primarily for the establishment,
restoration, preservation and conservation of the Memorial/Museum/Library/Compendium
in honor of the HRVVs during the Marcos regime.
The powers and functions of the Commission shall be assumed by the Board of Trustees
which shall be composed of the following; Chairperson of the CHR as Chairperson;
Chairperson of the National Historical Commission as Co-Chairperson; and Chairpersons
of the CHED, the National Commission on Culture and the Arts (NCCA), the Secretary of
the Department of Education and the Head of the University of the Philippines Diliman
Main Library, as members.

Within fifteen (15) days from the date of its organization, the Board shall promulgate the
necessary IRR and procedures for the effective implementation of this Act. The IRR shall
be effective fifteen (15) days after its publication in two (2) national newspapers of general
circulation.
SEC. 29. Work Period; Sunset Clause. The Board shall complete its work within two (2)
years from the effectivity of the IRR promulgated by it. After such period, it shall become
functus officio.
SEC. 30. Separability Clause. If, for any reason, any section or provision of this Act is
declared unconstitutional or invalid, such other sections or provisions not affected thereby
shall remain in full force and effect.
SEC. 31. Repealing Clause. All laws, decrees, executive orders, rules and regulations
or parts thereof inconsistent with any of the provisions of this Act, including Section 63(b)
of Republic Act No. 6657, as amended, otherwise known as the Comprehensive Agrarian
Reform Law of 1988 and Section 40(a) of Republic Act No. 7160, otherwise known as the
Local Government Code of 1991, are hereby repealed, amended or modified accordingly.
SEC. 32. Effectivity Clause. This Act shall take effect fifteen (15) days after its complete
publication in the Official Gazette or in at least two (2) national newspapers of general
circulation.

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