G.R. No. 183871 February 18, 2010
The investigation would indicate that men belonging to the
LOURDES D. RUBRICO, JEAN RUBRICO APRUEBO, and
MARY JOY RUBRICO CARBONEL, Petitioners,
vs.
GLORIA MACAPAGAL-ARROYO, GEN. HERMOGENES
ESPERON, P/DIR. GEN. AVELINO RAZON, MAJ. DARWIN
SY a.k.a. DARWIN REYES, JIMMY SANTANA, RUBEN
ALFARO, CAPT. ANGELO CUARESMA, a certain
JONATHAN, P/SUPT. EDGAR B. ROQUERO, ARSENIO C.
GOMEZ, and OFFICE OF THE OMBUDSMAN, Respondents.
DECISION
VELASCO, JR., J.:
In this petition for review under Rule 45 of the Rules of Court in
relation to Section 191 of the Rule on the Writ of Amparo2 (Amparo
Rule), Lourdes D. Rubrico, Jean Rubrico Apruebo, and Mary Joy
Rubrico Carbonel assail and seek to set aside the Decision 3 of the
Court of Appeals (CA) dated July 31, 2008 in CA-G.R. SP No.
00003, a petition commenced under the Amparo Rule.
The petition for the writ of amparo dated October 25, 2007 was
originally filed before this Court. After issuing the desired writ and
directing the respondents to file a verified written return, the Court
referred the petition to the CA for summary hearing and appropriate
action. The petition and its attachments contained, in substance, the
following allegations:
1. On April 3, 2007, armed men belonging to the 301st Air
Intelligence and Security Squadron (AISS, for short) based
in Fernando Air Base in Lipa City abducted Lourdes D.
Rubrico (Lourdes), then attending a Lenten pabasa in
Bagong Bayan, Dasmarias, Cavite, and brought to, and
detained at, the air base without charges. Following a week
of relentless interrogation - conducted alternately by
hooded individuals - and what amounts to verbal abuse and
mental harassment, Lourdes, chair of the Ugnayan ng
Maralita para sa Gawa Adhikan, was released at
Dasmarias, Cavite, her hometown, but only after being
made to sign a statement that she would be a military asset.
After Lourdes release, the harassment, coming in the form
of being tailed on at least two occasions at different places,
i.e., Dasmarias, Cavite and Baclaran in Pasay City, by
motorcycle-riding men in bonnets, continued;
2. During the time Lourdes was missing, P/Sr. Insp.
Arsenio Gomez (P/Insp. Gomez), then sub-station
commander of Bagong Bayan, Dasmarias, Cavite, kept
sending text messages to Lourdes daughter, Mary Joy R.
Carbonel (Mary Joy), bringing her to beaches and asking
her questions about Karapatan, an alliance of human rights
organizations. He, however, failed to make an investigation
even after Lourdes disappearance had been made known to
him;
3. A week after Lourdes release, another daughter, Jean R.
Apruebo (Jean), was constrained to leave their house
because of the presence of men watching them;
4. Lourdes has filed with the Office of the Ombudsman a
criminal complaint for kidnapping and arbitrary detention
and administrative complaint for gross abuse of authority
and grave misconduct against Capt. Angelo Cuaresma
(Cuaresma), Ruben Alfaro (Alfaro), Jimmy Santana
(Santana) and a certain Jonathan, c/o Headquarters 301st
AISS, Fernando Air Base and Maj. Sy/Reyes with address
at No. 09 Amsterdam Ext., Merville Subd., Paraaque City,
but nothing has happened; and the threats and harassment
incidents have been reported to the Dasmarias municipal
and Cavite provincial police stations, but nothing eventful
resulted from their respective investigations.
Two of the four witnesses to Lourdes abduction went into
hiding after being visited by government agents in civilian
clothes; and
5. Karapatan conducted an investigation on the incidents.
Armed Forces of the Philippines (AFP), namely Capt.
Cuaresma of the Philippine Air Force (PAF), Alfaro,
Santana, Jonathan and Maj. Darwin Sy/Reyes, led the
abduction of Lourdes; that unknown to the abductors,
Lourdes was able to pilfer a "mission order" which was
addressed to CA Ruben Alfaro and signed by Capt.
Cuaresma of the PAF.
The petition prayed that a writ of amparo issue, ordering the
individual respondents to desist from performing any threatening act
against the security of the petitioners and for the Office of the
Ombudsman (OMB) to immediately file an information for
kidnapping qualified with the aggravating circumstance of gender of
the offended party. It also prayed for damages and for respondents to
produce documents submitted to any of them on the case of Lourdes.
Before the CA, respondents President Gloria Macapagal-Arroyo,
Gen. Hermogenes Esperon, then Armed Forces of the Philippines
(AFP) Chief of Staff, Police Director-General (P/Dir. Gen.) Avelino
Razon, then Philippine National Police (PNP) Chief, Police
Superintendent (P/Supt.) Roquero of the Cavite Police Provincial
Office, Police Inspector (P/Insp.) Gomez, now retired, and the OMB
(answering respondents, collectively) filed, through the Office of the
Solicitor General (OSG), a joint return on the writ specifically
denying the material inculpatory averments against them. The OSG
also denied the allegations against the following impleaded persons,
namely: Cuaresma, Alfaro, Santana, Jonathan, and Sy/Reyes, for lack
of knowledge or information sufficient to form a belief as to the
allegations truth. And by way of general affirmative defenses,
answering respondents interposed the following defenses: (1) the
President may not be sued during her incumbency; and (2) the
petition is incomplete, as it fails to indicate the matters required by
Sec. 5(d) and (e) of the Amparo Rule.4
Attached to the return were the affidavits of the following, among
other public officials, containing their respective affirmative defenses
and/or statements of what they had undertaken or committed to
undertake regarding the claimed disappearance of Lourdes and the
harassments made to bear on her and her daughters:
1. Gen. Esperon attested that, pursuant to a directive of
then Secretary of National Defense (SND) Gilberto C.
Teodoro, Jr., he ordered the Commanding General of the
PAF, with information to all concerned units, to conduct an
investigation to establish the circumstances behind the
disappearance and the reappearance of Lourdes insofar as
the involvement of alleged personnel/unit is concerned. The
Provost Marshall General and the Office of the Judge
Advocate General (JAGO), AFP, also undertook a parallel
action.
Gen. Esperon manifested his resolve to provide the CA
with material results of the investigation; to continue with
the probe on the alleged abduction of Lourdes and to bring
those responsible, including military personnel, to the bar
of justice when warranted by the findings and the
competent evidence that may be gathered in the
investigation process by those mandated to look into the
matter;5
2. P/Dir. Gen. Razon - stated that an investigation he
immediately ordered upon receiving a copy of the petition
is on-going vis--vis Lourdes abduction, and that a
background verification with the PNP Personnel
Accounting and Information System disclosed that the
names Santana, Alfaro, Cuaresma and one Jonathan do not
appear in the police personnel records, although the PNP
files carry the name of Darwin Reyes Y. Muga.
Per the initial investigation report of the Dasmarias
municipal police station, P/Dir. Gen. Razon disclosed,
Lourdes was abducted by six armed men in the afternoon of
April 3, 2007 and dragged aboard a Toyota Revo with plate
number XRR 428, which plate was issued for a Mitsubishi
van to AK Cottage Industry with address at 9 Amsterdam
St., Merville Subd., Paraaque City. The person residing in
the apartment on that given address is one Darius/Erwin
 See @ Darius Reyes allegedly working, per the latters
house helper, in Camp Aguinaldo.
P/Dir. Gen. Razon, however, bemoaned the fact that Mrs.
Rubrico never contacted nor coordinated with the local
police or other investigating units of the PNP after her
release, although she is in the best position to establish the
identity of her abductors and/or provide positive
description through composite sketching. Nonetheless, he
manifested that the PNP is ready to assist and protect the
petitioners and the key witnesses from threats, harassments
and intimidation from whatever source and, at the same
time, to assist the Court in the implementation of its
orders.61avvphi1
3. P/Supt. Roquero stated conducting, upon receipt of
Lourdes complaint, an investigation and submitting the
corresponding report to the PNP Calabarzon, observing that
neither Lourdes nor her relatives provided the police with
relevant information;
4. P/Insp. Gomez alleged that Lourdes, her kin and
witnesses refused to cooperate with the investigating Cavite
PNP; and
5. Overall Deputy Ombudsman Orlando Casimiro - alleged
that cases for violation of Articles 267 and 124, or
kidnapping and arbitrary detention, respectively, have been
filed with, and are under preliminary investigation by the
OMB against those believed to be involved in Lourdes
kidnapping; that upon receipt of the petition for a writ
of amparo, proper coordination was made with the Office
of the Deputy Ombudsman for the Military and other Law
Enforcement Offices (MOLEO) where the subject criminal
and administrative complaints were filed.
Commenting on the return, petitioners pointed out that the return was
no more than a general denial of averments in the petition. They, thus,
pleaded to be allowed to present evidence ex parte against the
President, Santana, Alfaro, Capt. Cuaresma, Darwin Sy, and
Jonathan. And with leave of court, they also asked to serve notice of
the petition through publication, owing to their failure to secure the
current address of the latter five and thus submit, as the CA required,
proof of service of the petition on them.
The hearing started on November 13, 2007.7 In that setting,
petitioners counsel prayed for the issuance of a temporary protection
order (TPO) against the answering respondents on the basis of the
allegations in the petition. At the hearing of November 20, 2007, the
CA granted petitioners motion that the petition and writ be served by
the courts process server on Darwin Sy/Reyes, Santana, Alfaro,
Capt. Cuaresma, and Jonathan.
The legal skirmishes that followed over the propriety of excluding
President Arroyo from the petition, petitioners motions for service by
publication, and the issuance of a TPO are not of decisive pertinence
in this recital. The bottom line is that, by separate resolutions, the CA
dropped the President as respondent in the case; denied the motion
for a TPO for the courts want of authority to issue it in the tenor
sought by petitioners; and effectively denied the motion for notice by
publication owing to petitioners failure to submit the affidavit
required under Sec. 17, Rule 14 of the Rules of Court.8
After due proceedings, the CA rendered, on July 31, 2008, its partial
judgment, subject of this review, disposing of the petition but only
insofar as the answering respondents were concerned. The fallo of the
CA decision reads as follows:
WHEREFORE, premises considered, partial judgment is hereby
rendered DISMISSING the instant petition with respect to
respondent Gen. Hermogenes Esperon, P/Dir. Gen. Avelino Razon,
Supt. Edgar B. Roquero, P/Sr. Insp. Arsenio C. Gomez (ret.) and the
Office of the Ombudsman.
Nevertheless, in order that petitioners complaint will not end up as
another unsolved case, the heads of the Armed Forces of the
Philippines and the Philippine National Police are directed to ensure
that the investigations already commenced are diligently pursued to
bring the perpetrators to justice. The Chief of Staff of the Armed
Forces of the Philippines and P/Dir. Gen. Avelino Razon are directed
to regularly update petitioners and this Court on the status of their
investigation.
SO ORDERED.
In this recourse, petitioners formulate the issue for resolution in the
following wise:
WHETHER OR NOT the [CA] committed reversible error in
dismissing [their] Petition and dropping President Gloria Macapagal
Arroyo as party respondent.
Petitioners first take issue on the Presidents purported lack of
immunity from suit during her term of office. The 1987 Constitution,
so they claim, has removed such immunity heretofore enjoyed by the
chief executive under the 1935 and 1973 Constitutions.
Petitioners are mistaken. The presidential immunity from suit
remains preserved under our system of government, albeit not
expressly reserved in the present constitution. Addressing a concern
of his co-members in the 1986 Constitutional Commission on the
absence of an express provision on the matter, Fr. Joaquin Bernas,
S.J. observed that it was already understood in jurisprudence that the
President may not be sued during his or her tenure.9 The Court
subsequently made it abundantly clear in David v. Macapagal-
Arroyo, a case likewise resolved under the umbrella of the 1987
Constitution, that indeed the President enjoys immunity during her
incumbency, and why this must be so:
Settled is the doctrine that the President, during his tenure of office or
actual incumbency, may not be sued in any civil or criminal case, and
there is no need to provide for it in the Constitution or law. It will
degrade the dignity of the high office of the President, the Head of
State, if he can be dragged into court litigations while serving as
such. Furthermore, it is important that he be freed from any form of
harassment, hindrance or distraction to enable him to fully attend to
the performance of his official duties and functions. Unlike the
legislative and judicial branch, only one constitutes the executive
branch and anything which impairs his usefulness in the discharge of
the many great and important duties imposed upon him by the
Constitution necessarily impairs the operation of the Government. 10 x
xx
And lest it be overlooked, the petition is simply bereft of any
allegation as to what specific presidential act or omission violated or
threatened to violate petitioners protected rights.
This brings us to the correctness of the assailed dismissal of the
petition with respect to Gen. Esperon, P/Dir. Gen. Razon, P/Supt.
Roquero, P/Insp. Gomez, and the OMB.
None of the four individual respondents immediately referred to
above has been implicated as being connected to, let alone as being
behind, the alleged abduction and harassment of petitioner Lourdes.
Their names were not even mentioned in Lourdes Sinumpaang
Salaysay11 of April 2007. The same goes for the
respective Sinumpaang Salaysay and/or Karagdagang Sinumpaang
Salaysay of Jean12 and Mary Joy.13
As explained by the CA, Gen. Esperon and P/Dir. Gen. Razon were
included in the case on the theory that they, as commanders, were
responsible for the unlawful acts allegedly committed by their
subordinates against petitioners. To the appellate court, "the privilege
of the writ of amparo must be denied as against Gen. Esperon and
P/Dir. Gen. Razon for the simple reason that petitioners have not
presented evidence showing that those who allegedly abducted and
illegally detained Lourdes and later threatened her and her family
were, in fact, members of the military or the police force." The two
generals, the CAs holding broadly hinted, would have been
accountable for the abduction and threats if the actual malefactors
were members of the AFP or PNP.
As regards the three other answering respondents, they were
impleaded because they allegedly had not exerted the required
extraordinary diligence in investigating and satisfactorily resolving
Lourdes disappearance or bringing to justice the actual perpetrators
of what amounted to a criminal act, albeit there were allegations
against P/Insp. Gomez of acts constituting threats against Mary Joy.
While in a qualified sense tenable, the dismissal by the CA of the
case as against Gen. Esperon and P/Dir. Gen. Razon is incorrect if
viewed against the backdrop of the stated rationale underpinning the
assailed decision vis--vis the two generals, i.e., command
responsibility. The Court assumes the latter stance owing to the fact
that command responsibility, as a concept defined, developed, and
applied under international law, has little, if at all, bearing in amparo
proceedings.
The evolution of the command responsibility doctrine finds its
context in the development of laws of war and armed combats.
According to Fr. Bernas, "command responsibility," in its simplest
terms, means the "responsibility of commanders for crimes
committed by subordinate members of the armed forces or other
persons subject to their control in international wars or domestic
conflict."14 In this sense, command responsibility is properly a form
of criminal complicity. The Hague Conventions of 1907 adopted the
doctrine of command responsibility,15 foreshadowing the present-day
precept of holding a superior accountable for the atrocities committed
by his subordinates should he be remiss in his duty of control over
them. As then formulated, command responsibility is "an omission
mode of individual criminal liability," whereby the superior is
made responsible for crimes committed by his subordinates for
failing to prevent or punish the perpetrators16 (as opposed to crimes
he ordered).
The doctrine has recently been codified in the Rome Statute 17 of the
International Criminal Court (ICC) to which the Philippines is
signatory. Sec. 28 of the Statute imposes individual responsibility on
military commanders for crimes committed by forces under their
control. The country is, however, not yet formally bound by the terms
and provisions embodied in this treaty-statute, since the Senate has
yet to extend concurrence in its ratification. 18
While there are several pending bills on command
responsibility,19 there is still no Philippine law that provides for
criminal liability under that doctrine.20
It may plausibly be contended that command responsibility, as legal
basis to hold military/police commanders liable for extra-legal
killings, enforced disappearances, or threats, may be made applicable
to this jurisdiction on the theory that the command responsibility
doctrine now constitutes a principle of international law or customary
international law in accordance with the incorporation clause of the
Constitution.21 Still, it would be inappropriate to apply to these
proceedings the doctrine of command responsibility, as the CA
seemed to have done, as a form of criminal complicity through
omission, for individual respondents criminal liability, if there be
any, is beyond the reach of amparo. In other words, the Court does
not rule in such proceedings on any issue of criminal culpability, even
if incidentally a crime or an infraction of an administrative rule may
have been committed. As the Court stressed in Secretary of National
Defense v. Manalo (Manalo),22 the writ of amparo was conceived to
provide expeditious and effective procedural relief against violations
or threats of violation of the basic rights to life, liberty, and security
of persons; the corresponding amparo suit, however, "is not an action
to determine criminal guilt requiring proof beyond reasonable doubt
x x x or administrative liability requiring substantial evidence that
will require full and exhaustive proceedings."23 Of the same tenor,
and by way of expounding on the nature and role of amparo, is what
the Court said in Razon v. Tagitis:
It does not determine guilt nor pinpoint criminal culpability for the
disappearance [threats thereof or extra-judicial killings]; it determines
responsibility, or at least accountability, for the enforced
disappearance [threats thereof or extra-judicial killings] for purposes
of imposing the appropriate remedies to address the disappearance
[or extra-judicial killings].
xxxx
As the law now stands, extra-judicial killings and enforced
disappearances in this jurisdiction are not crimes penalized separately
from the component criminal acts undertaken to carry out these
killings and enforced disappearances and are now penalized under the
Revised Penal Code and special laws. The simple reason is that the
Legislature has not spoken on the matter; the determination of what
acts are criminal x x x are matters of substantive law that only the
Legislature has the power to enact.24 x x x
If command responsibility were to be invoked and applied to these
proceedings, it should, at most, be only to determine the author who,
at the first instance, is accountable for, and has the duty to address,
the disappearance and harassments complained of, so as to enable the
Court to devise remedial measures that may be appropriate under the
premises to protect rights covered by the writ of amparo. As
intimated earlier, however, the determination should not be pursued
to fix criminal liability on respondents preparatory to criminal
prosecution, or as a prelude to administrative disciplinary
proceedings under existing administrative issuances, if there be any.
Petitioners, as the CA has declared, have not adduced substantial
evidence pointing to government involvement in the disappearance of
Lourdes. To a concrete point, petitioners have not shown that the
actual perpetrators of the abduction and the harassments that
followed formally or informally formed part of either the military or
the police chain of command. A preliminary police investigation
report, however, would tend to show a link, however hazy, between
the license plate (XRR 428) of the vehicle allegedly used in the
abduction of Lourdes and the address of Darwin Reyes/Sy, who was
alleged to be working in Camp Aguinaldo.25 Then, too, there were
affidavits and testimonies on events that transpired which, if taken
together, logically point to military involvement in the alleged
disappearance of Lourdes, such as, but not limited to, her abduction
in broad daylight, her being forcibly dragged to a vehicle blindfolded
and then being brought to a place where the sounds of planes taking
off and landing could be heard. Mention may also be made of the fact
that Lourdes was asked about her membership in the Communist
Party and of being released when she agreed to become an "asset."
Still and all, the identities and links to the AFP or the PNP of the
alleged abductors, namely Cuaresma, Alfaro, Santana, Jonathan, and
Sy/Reyes, have yet to be established.
Based on the separate sworn statements of Maj. Paul Ciano 26 and
Technical Sergeant John N. Romano,27officer-in-charge and a staff of
the 301st AISS, respectively, none of the alleged abductors of
Lourdes belonged to the 301st AISS based in San Fernando Air Base.
Neither were they members of any unit of the Philippine Air Force,
per the certification28 of Col. Raul Dimatactac, Air Force Adjutant.
And as stated in the challenged CA decision, a verification with the
Personnel Accounting and Information System of the PNP yielded the
information that, except for a certain Darwin Reyes y Muga, the other
alleged abductors, i.e., Cuaresma, Alfaro, Santana and Jonathan, were
not members of the PNP. Petitioners, when given the opportunity to
identify Police Officer 1 Darwin Reyes y Muga, made no effort to
confirm if he was the same Maj. Darwin Reyes a.k.a. Darwin Sy they
were implicating in Lourdes abduction.
Petitioners, to be sure, have not successfully controverted answering
respondents documentary evidence, adduced to debunk the formers
allegations directly linking Lourdes abductors and tormentors to the
military or the police establishment. We note, in fact, that Lourdes,
when queried on cross-examination, expressed the belief that
Sy/Reyes was an NBI agent.29 The Court is, of course, aware of what
was referred to in Razon30 as the "evidentiary difficulties" presented
by the nature of, and encountered by petitioners in, enforced
disappearance cases. But it is precisely for this reason that the Court
should take care too that no wrong message is sent, lest one conclude
that any kind or degree of evidence, even the outlandish, would
suffice to secure amparo remedies and protection.
Sec. 17, as complemented by Sec. 18 of the Amparo Rule, expressly
prescribes the minimum evidentiary substantiation requirement and
norm to support a cause of action under the Rule, thus:
Sec. 17. Burden of Proof and Standard of Diligence Required.The
parties shall establish their claims by substantial evidence.
xxxx
Sec. 18. Judgment.x x x 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. (Emphasis added.)
Substantial evidence is more than a mere imputation of wrongdoing
or violation that would warrant a finding of liability against the
person charged;31 it is more than a scintilla of evidence. It means such
amount of relevant evidence which a reasonable mind might accept
as adequate to support a conclusion, even if other equally reasonable
minds might opine otherwise.32 Per the CAs evaluation of their
evidence, consisting of the testimonies and affidavits of the three
Rubrico women and five other individuals, petitioners have not
satisfactorily hurdled the evidentiary bar required of and assigned to
them under the Amparo Rule. In a very real sense, the burden of
evidence never even shifted to answering respondents. The Court
finds no compelling reason to disturb the appellate courts
determination of the answering respondents role in the alleged
enforced disappearance of petitioner Lourdes and the threats to her
familys security.
Notwithstanding the foregoing findings, the Court notes that both
Gen. Esperon and P/Dir. Gen. Razon, per their separate affidavits,
lost no time, upon their receipt of the order to make a return on the
writ, in issuing directives to the concerned units in their respective
commands for a thorough probe of the case and in providing the
investigators the necessary support. As of this date, however, the
investigations have yet to be concluded with some definite findings
and recommendation.
As regards P/Supt. Romero and P/Insp. Gomez, the Court is more
than satisfied that they have no direct or indirect hand in the alleged
enforced disappearance of Lourdes and the threats against her
daughters. As police officers, though, theirs was the duty to
thoroughly investigate the abduction of Lourdes, a duty that would
include looking into the cause, manner, and like details of the
disappearance; identifying witnesses and obtaining statements from
them; and following evidentiary leads, such as the Toyota Revo
vehicle with plate number XRR 428, and securing and preserving
evidence related to the abduction and the threats that may aid in the
prosecution of the person/s responsible. As we said in Manalo,33 the
right to security, as a guarantee of protection by the government, is
breached by the superficial and one-sidedhence, ineffective
investigation by the military or the police of reported cases under
their jurisdiction. As found by the CA, the local police stations
concerned, including P/Supt. Roquero and P/Insp. Gomez, did
conduct a preliminary fact-finding on petitioners complaint. They
could not, however, make any headway, owing to what was perceived
to be the refusal of Lourdes, her family, and her witnesses to
cooperate. Petitioners counsel, Atty. Rex J.M.A. Fernandez, provided
a plausible explanation for his clients and their witnesses attitude,
"[They] do not trust the government agencies to protect them."34 The
difficulty arising from a situation where the party whose complicity
in extra-judicial killing or enforced disappearance, as the case may
be, is alleged to be the same party who investigates it is
understandable, though.
The seeming reluctance on the part of the Rubricos or their witnesses
to cooperate ought not to pose a hindrance to the police in pursuing,
on its own initiative, the investigation in question to its natural end.
To repeat what the Court said in Manalo, the right to security of
persons is a guarantee of the protection of ones right by the
government. And this protection includes conducting effective
investigations of extra-legal killings, enforced disappearances, or
threats of the same kind. The nature and importance of an
investigation are captured in the Velasquez Rodriguez case,35 in which
the Inter-American Court of Human Rights pronounced:
[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 a step taken by private interests that
depends upon the initiative of the victim or his family or upon offer
of proof, without an effective search for the truth by the government.
(Emphasis added.)
This brings us to Mary Joys charge of having been harassed by
respondent P/Insp. Gomez. With the view we take of this incident,
there is nothing concrete to support the charge, save for Mary Joys
bare allegations of harassment. We cite with approval the following
self-explanatory excerpt from the appealed CA decision:
In fact, during her cross-examination, when asked what specific act
or threat P/Sr. Gomez (ret) committed against her or her mother and
sister, Mary Joy replied "None "36
Similarly, there appears to be no basis for petitioners allegations
about the OMB failing to act on their complaint against those who
allegedly abducted and illegally detained Lourdes. Contrary to
petitioners contention, the OMB has taken the necessary appropriate
action on said complaint. As culled from the affidavit 37 of the Deputy
Overall Ombudsman and the joint affidavits 38 of the designated
investigators, all dated November 7, 2007, the OMB had, on the basis
of said complaint, commenced criminal39 and
administrative40 proceedings, docketed as OMB-P-C-07-0602-E and
OMB-P-A 07-567-E, respectively, against Cuaresma, Alfaro,
Santana, Jonathan, and Sy/Reyes. The requisite orders for the
submission of counter-affidavits and verified position papers had
been sent out.
The privilege of the writ of amparo, to reiterate, is a remedy available
to victims of extra-judicial killings and enforced disappearances or
threats of similar nature, regardless of whether the perpetrator of the
unlawful act or omission is a public official or employee or a private
individual.
At this juncture, it bears to state that petitioners have not provided the
CA with the correct addresses of respondents Cuaresma, Alfaro,
Santana, Jonathan, and Sy/Reyes. The mailed envelopes containing
the petition for a writ of amparo individually addressed to each of
them have all been returned unopened. And petitioners motion
interposed before the appellate court for notice or service via
publication has not been accompanied by supporting affidavits as
required by the Rules of Court. Accordingly, the appealed CA partial
judgmentdisposing of the underlying petition for a writ of amparo
without (1) pronouncement as to the accountability, or lack of it, of
the four non-answering respondents or (2) outright dismissal of the
same petition as to themhews to the prescription of Sec. 20 of the
Amparo Rule on archiving and reviving cases.41 Parenthetically,
petitioners have also not furnished this Court with sufficient data as
to where the afore-named respondents may be served a copy of their
petition for review.
Apart from the foregoing considerations, the petition did not allege
ultimate facts as would link the OMB in any manner to the violation
or threat of violation of the petitioners rights to life, liberty, or
personal security.
The privilege of the writ of amparo is envisioned basically to protect
and guarantee the rights to life, liberty, and security of persons, free
from fears and threats that vitiate the quality of this life. 42 It is an
extraordinary writ conceptualized and adopted in light of and in
response to the prevalence of extra-legal killings and enforced
disappearances.43 Accordingly, the remedy ought to be resorted to and
granted judiciously, lest the ideal sought by the Amparo Rule be
diluted and undermined by the indiscriminate filing of amparo
petitions for purposes less than the desire to secure amparo reliefs
and protection and/or on the basis of unsubstantiated allegations.
In their petition for a writ of amparo, petitioners asked, as their main
prayer, that the Court order the impleaded respondents "to
immediately desist from doing any acts that would threaten or seem
to threaten the security of the Petitioners and to desist from
approaching Petitioners, x x x their residences and offices where they
are working under pain of contempt of [this] Court." Petitioners,
however, failed to adduce the threshold substantive evidence to
establish the predicate facts to support their cause of action, i.e., the
adverted harassments and threats to their life, liberty, or security,
against responding respondents, as responsible for the disappearance
and harassments complained of. This is not to say, however, that
petitioners allegation on the fact of the abduction incident or
harassment is necessarily contrived. The reality on the ground,
however, is that the military or police connection has not been
adequately proved either by identifying the malefactors as
components of the AFP or PNP; or in case identification is not
possible, by showing that they acted with the direct or indirect
acquiescence of the government. For this reason, the Court is unable
to ascribe the authorship of and responsibility for the alleged
enforced disappearance of Lourdes and the harassment and threats on
her daughters to individual respondents. To this extent, the dismissal
of the case against them is correct and must, accordingly, be
sustained.
Prescinding from the above considerations, the Court distinctly notes
that the appealed decision veritably extended the privilege of the writ
of amparo to petitioners when it granted what to us are amparo
reliefs. Consider: the appellate court decreed, and rightly so, that the
police and the military take specific measures for the protection of
petitioners right or threatened right to liberty or security. The
protection came in the form of directives specifically to Gen. Esperon
and P/Dir. Gen. Razon, requiring each of them (1) to ensure that the
investigations already commenced by the AFP and PNP units,
respectively, under them on the complaints of Lourdes and her
daughters are being pursued with urgency to bring to justice the
perpetrators of the acts complained of; and (2) to submit to the CA,
copy furnished the petitioners, a regular report on the progress and
status of the investigations. The directives obviously go to Gen.
Esperon in his capacity as head of the AFP and, in a sense, chief
guarantor of order and security in the country. On the other hand,
P/Dir. Gen. Razon is called upon to perform a duty pertaining to the
PNP, a crime-preventing, investigatory, and arresting institution.
As the CA, however, formulated its directives, no definitive time
frame was set in its decision for the completion of the investigation
and the reportorial requirements. It also failed to consider Gen.
Esperon and P/Dir. Gen. Razons imminent compulsory retirement
from the military and police services, respectively. Accordingly, the
CA directives, as hereinafter redefined and amplified to fully enforce
the amparo remedies, are hereby given to, and shall be directly
enforceable against, whoever sits as the commanding general of the
AFP and the PNP.
At this stage, two postulates and their implications need highlighting
for a proper disposition of this case.
First, a criminal complaint for kidnapping and, alternatively, for
arbitrary detention rooted in the same acts and incidents leading to
the filing of the subject amparo petition has been instituted with the
OMB, docketed as OMB-P-C-O7-0602-E. The usual initial steps to
determine the existence of a prima facie case against the five (5)
impleaded individuals suspected to be actually involved in the
detention of Lourdes have been set in motion. It must be pointed out,
though, that the filing44 of the OMB complaint came before the
effectivity of the Amparo Rule on October 24, 2007.
Second, Sec. 2245 of the Amparo Rule proscribes the filing of an
amparo petition should a criminal action have, in the meanwhile,
been commenced. The succeeding Sec. 23,46 on the other hand,
provides that when the criminal suit is filed subsequent to a petition
for amparo, the petition shall be consolidated with the criminal action
where the Amparo Rule shall nonetheless govern the disposition of
the relief under the Rule. Under the terms of said Sec. 22, the present
petition ought to have been dismissed at the outset. But as things
stand, the outright dismissal of the petition by force of that section is
no longer technically feasible in light of the interplay of the following
factual mix: (1) the Court has, pursuant to Sec. 647 of the Rule,
already issued ex parte the writ of amparo; (2) the CA, after a
summary hearing, has dismissed the petition, but not on the basis of
Sec. 22; and (3) the complaint in OMB-P-C-O7-0602-E named as
respondents only those believed to be the actual abductors of
Lourdes, while the instant petition impleaded, in addition, those
tasked to investigate the kidnapping and detention incidents and their
superiors at the top. Yet, the acts and/or omissions subject of the
criminal complaint and the amparo petition are so linked as to call for
the consolidation of both proceedings to obviate the mischief inherent
in a multiplicity-of-suits situation.
Given the above perspective and to fully apply the beneficial nature
of the writ of amparo as an inexpensive and effective tool to protect
certain rights violated or threatened to be violated, the Court hereby
adjusts to a degree the literal application of Secs. 22 and 23 of the
Amparo Rule to fittingly address the situation obtaining under the
premises. 48 Towards this end, two things are at once indicated: (1)
the consolidation of the probe and fact-finding aspects of the instant
petition with the investigation of the criminal complaint before the
OMB; and (2) the incorporation in the same criminal complaint of the
allegations in this petition bearing on the threats to the right to
security. Withal, the OMB should be furnished copies of the
investigation reports to aid that body in its own investigation and
eventual resolution of OMB-P-C-O7-0602-E. Then, too, the OMB
shall be given easy access to all pertinent documents and evidence, if
any, adduced before the CA. Necessarily, Lourdes, as complainant in
OMB-P-C-O7-0602-E, should be allowed, if so minded, to amend her
basic criminal complaint if the consolidation of cases is to be fully
effective.
WHEREFORE, the Court PARTIALLY GRANTS this petition for
review and makes a decision:
(1) Affirming the dropping of President Gloria Macapagal-
Arroyo from the petition for a writ of amparo;
(2) Affirming the dismissal of the amparo case as against
Gen. Hermogenes Esperon, and P/Dir. Gen. Avelino Razon,
insofar as it tended, under the command responsibility
principle, to attach accountability and responsibility to
them, as then AFP Chief of Staff and then PNP Chief, for
the alleged enforced disappearance of Lourdes and the
ensuing harassments allegedly committed against
petitioners. The dismissal of the petition with respect to the
OMB is also affirmed for failure of the petition to allege
ultimate facts as to make out a case against that body for
the enforced disappearance of Lourdes and the threats and
harassment that followed; and
(3) Directing the incumbent Chief of Staff, AFP, or his
successor, and the incumbent Director-General of the PNP,
or his successor, to ensure that the investigations already
commenced by their respective units on the alleged
abduction of Lourdes Rubrico and the alleged harassments
and threats she and her daughters were made to endure are
pursued with extraordinary diligence as required by Sec.
1749 of the Amparo Rule. They shall order their subordinate
officials, in particular, to do the following:
(a) Determine based on records, past and present,
the identities and locations of respondents Maj.
Darwin Sy, a.k.a. Darwin Reyes, Jimmy Santana,
Ruben Alfaro, Capt. Angelo Cuaresma, and one
Jonathan; and submit certifications of this
determination to the OMB with copy furnished to
petitioners, the CA, and this Court;
(b) Pursue with extraordinary diligence the
evidentiary leads relating to Maj. Darwin Sy and
the Toyota Revo vehicle with Plate No. XRR
428; and
(c) Prepare, with the assistance of petitioners
and/or witnesses, cartographic sketches of
respondents Maj. Sy/Reyes, Jimmy Santana,
Ruben Alfaro, Capt. Angelo Cuaresma, and a
certain Jonathan to aid in positively identifying
and locating them.
The investigations shall be completed not later than six (6) months
from receipt of this Decision; and within thirty (30) days after
completion of the investigations, the Chief of Staff of the AFP and
the Director-General of the PNP shall submit a full report of the
results of the investigations to the Court, the CA, the OMB, and
petitioners.
This case is accordingly referred back to the CA for the purpose of
monitoring the investigations and the actions of the AFP and the PNP.
Subject to the foregoing modifications, the Court AFFIRMS the
partial judgment dated July 31, 2008 of the CA.
SO ORDERED.
 Clerk of Court Atty. Herlie Luis-Requerme narrated the
circumstances surrounding the filing of the petition and how it came
to be referred to the respondent judges sala, as follows:

1. In the late afternoon of January 23,

2008, a query was received by the Office
Republic of the Philippines regarding the procedure in filing a petition for a
Supreme Court Writ of Amparo. We gave the information that the
Manila established procedure is to assign cases to the
different branches by raffling or in urgent cases,
by a special raffle upon proper motions. But since
THIRD DIVISION the office has not received any case of that nature
yet, and as the schedule of raffling will still be in
the afternoon of the next day, it will be referred to
RUBEN N. SALCEDO, A.M. NO. RTJ-10-2236 the Executive Judge for instruction and or
Complainant, (Formerly OCA I.P.I. appropriate action;
2. That since the Executive Judge was
Present: on leave, I went to consult the 1st Vice Executive
Judge Evelyn Gamotin Nery. Since Judge Nery
CARPIO MORALES was busy at that time, I went to see 2nd Vice
BRION, Executive Judge Ma. Anita Esguerra-Lucagbo;
BERSAMIN, 3. That I clarified from Judge Lucagbo
- versus - ABAD,* and the procedure to be adopted under the Rule on the
VILLARAMA, JR., Writ of Amparo (A.M. No. 07-9-12-SC);
Promulgated: 4. That the issue if any judge can
immediately act on the petition was not clearly
July 5, 2010 stated in the Rule but if the case will be referred
JUDGE GIL G. BOLLOZOS, to her as the 2nd Vice Executive Judge, she will be
Respondent. willing to look at the petition;
5. That when I went back at the Office
x------------------------------------------------------------------------------------ x at a little past 5:00 P.M. already, direct from the
chamber of Judge Lucagbo, I found out that a
RESOLUTION Petition for Writ of Amparo was filed at around
4:45 P.M. as stamped in the petition;
BRION, J.: 6. That since I was out of the office,
the Docket Clerk in charge, Mr. Rudy
Exclamador, referred the case to the
We pass upon the verified Letter-Complaint, dated August 29, 2008, Administrative Officer Mary Lyn Charisse
filed by Ruben N. Salcedo (complainant), charging Judge Gil G. Lagamon;
Bollozos (respondent judge), Presiding Judge, Regional Trial Court, 7. That thinking I was no longer
Branch 21, Cagayan de Oro City, with Grave Misconduct and around as the personnel to whom I left the
Ignorance of the Law in the handling of SPEC. PROC. No. 2008-009, information that I was going to the sala of 1st Vice
entitled Jose Tanmalack, Jr., represented by Jocelyn Tanmalack Tan Executive Judge Nery was not able to inform the
v. Police Officers of Police Precinct No. 3, Agora, Lapasan, Cagayan Admin. Officer of my whereabouts, Mr.
De Oro City, and Insp. Wylen Rojo. Exclamador was instructed by her to refer the
case to you [referring to the respondent judge];
THE FACTUAL BACKGROUND 8. That upon learning of the fact, I
immediately called Mr. Exclamador and Ms.
The complaint arose from a verified handwritten petition for the Writ Lagamon to explain why they referred the case to
of Habeas Corpus and the Writ of Amparo (the petition) filed by Jose your sala without any instruction from me;
Tanmalack, Jr. against the Police Officers of Police Precinct No. 3, 9. That they said that they are of the
Agora, Lapasan, Cagayan de Oro City, and Inspector Wylen honest belief that I was no longer around; that the
Rojo. The complainant alleged that he is a co-owner of a parcel of lawyer was insisting to refer the case
land (disputed property) covered by Original Certificate of Title No. immediately to a judge since it is already 5:00
O-740 and registered in the name of Patricio Salcedo. The disputed P.M. and considering the novelty, urgency and
property is about 126,112 square meters wide and is situated in importance of the case, and fearing that no judge
Lapasan, Cagayan de Oro City. will be left to act on the petition if they still
discuss what to do, Mr. Exclamador, with the
concurrence of Admin. Officer Lagamon,
On January 23, 2008 at around 2:30 p.m., while the complainant referred the case to you since your sala was the
(together with his niece Rebecca R. Lumbay and his nephew Alan nearest to our office, it being adjacent to your
Jose P. Roa) was supervising an on-going construction over the court;
disputed property, Tanmalack and heavily armed men arrived and 10. That there is nobody from this Office
forced themselves inside the fenced premises of the disputed who brought the handwritten petition to Judge
property. The complainant averred that Tanmalack and his Lucagbo nor was there any instruction from her
companions harassed and threatened to kill and to harm him and his to any of the personnel to have the petition
workers; that Tanmalack uttered defamatory statements and accused conform to a form acceptable to the court, such
him of land-grabbing; and that Tanmalack and his companions fact was confirmed by Judge Lucagbo;
occupied the property and destroyed building materials such as G.I. 11. That the office only acted what it
sheets, lumber and other construction materials. deemed best under the circumstances and was not
motivated by any ill motive or malice. [2]

The complainant forthwith reported the incident to the nearby police

station. The police promptly responded and arrested Tanmalack and
brought him in for questioning. That same afternoon at around 4:45
p.m., Tanmalack, represented by his sister, Jocelyn Tanmalack Tan,
filed the petition[1] on his behalf while Tanmalack was detained by the
police for employing self-help in preventing squatters from putting
up improvements in their titled property.
Based on the petition and answers to the clarificatory
questions propounded to Tanmalacks representative and counsel, the
respondent judge immediately issued a Writ of Amparo dated January
23, 2008, directing the police officers of Agora Police Station 3 or
Insp. Wylen Rojo x x x to release immediately upon receipt of [the]
writ but not later than 6:00 P.M. today, petitioner Jose Tanmalack, Jr.,
to the custody of Atty. Francis V. Ku. The respondent judge also
directed the police officers to file their verified return to the petition
within five (5) working days, together with supporting affidavits, in
conformity with Section 9 of the Rule on the Writ of Amparo.

Around 5:30 p.m., the Writ of Amparo was served upon
SPO3 Aener O. Adajar, PNP Chief Investigator. At six oclock in the
evening of that same day, the police released Tanmalack to the
custody of Atty. Francis Ku.
In his complaint, the complainant questions the issuance of the Writ
of Amparo which he claims had been unusually issued with
haste. The complainant claims that the handwritten petition did not
give any ground to warrant the issuance of the Writ of Amparo; that
the respondent judge acted with grave abuse of discretion, bias, and
obvious partiality, and in grave disregard of the Rules and the rule of
law when he acted upon and granted the letter-petition for the
issuance of the Writ of Amparo. The complainant also alleges that the
respondent judge accommodated the issuance of the Writ
of Amparo because he and Atty. Francis Ku (Tanmalacks counsel) are
members of the Masonic fraternity.
The respondent judge filed his Comment dated March 30,
2009, in compliance with the directive of the Office of the Court
Administrator (OCA). In his defense, he alleged:
(a) [W]hen he received the petition from the
Office of the Clerk of Court, he had no
option but to exercise his judicial duty
without any bias or partiality, nor did he
consider that the petitioners counsel is a
fraternal brother (Mason);
(b) [A]lthough the petition is for the issuance of
both writ of amparo and writ of habeas
corpus, he deemed it more in consonance
with the [Rule on the Writ of Amparo];
(c) [I]t was not improper even if the x x x
petition was not raffled, and was
immediately assigned to his sala by the
Office of the Clerk of Court, since Par. 2,
Sec. 3 of A.M. No. 07-9-12-SC states that
any judge of a Regional Trial Court (RTC)
can issue a writ and the said Sec. 3 further
states that it can be filed on any day and at
any time;
(d) [T]he person who filed the petition is the
sister of Mr. Tanmalack who was detained at
the Agora Police Station, Cagayan de Oro
City; that the issuance of the writ was a
matter of great urgency because the alleged
illegal deprivation of liberty was made in the
late afternoon of January 23, 2008, which
was a Friday, and that if the Court would not
act on the petition, the detainee would
certainly spend the night in jail;
(e) [T]he petition, although in handwritten
form, is not improper because Section 5 of
the SC Circular (on the Writ of Amparo)
only requires that the same be signed and
verified; that he found the petition sufficient
in form and in substance;
(f) [A]lthough the Amparo rules mandate that a
judge shall immediately order the issuance
of the writ if on its face it ought to issue, he
propounded clarificatory questions on the
petitioners representative and their counsel,
thus, the following information were
elicited:
1) That the property of petitioners family,
which is under their possession and
Tanmalack registered under TCT No. T-
1627491, was intruded by some
persons who wanted to fence the area
and put up improvements by
constructing shanties thereon;
2) That when petitioner Mr. Tanmalack
prevented the intrusion it resulted to
heated arguments and altercations
which prompted him to go to the police
station to report the incident and be
blottered;
3) That when Mr. Tanmalack arrived at
the police station in the late afternoon
of January 23, 2008 in order to air his
complaint, the intruders came and
introduced themselves as the owners of
the property;
4) That when Police Officer Rojo (Rojo)
heard the version of these intruders and
despite the protestations of petitioner
and his relatives, the police did not
anymore allow Mr. Tanmalack to leave
the police station; and,
5) That petitioners counsel called up
Rojo to secure the immediate release of
his client from police custody but to no
avail;
(g) [A]fter he assiduously evaluated the aforestated facts,
as well as the allegations in the petition, respondent
Judge, in the exercise of his judicial function, found
that the same warranted the issuance of the writ; the
arrest of Mr. Tanmalack was unlawful because Rojo
was not present in the area where the alleged incident
happened, so that the statements of the complainants
(Salcedo, Lumbay and Roa) would be hearsay;
(h) [I]n the Writ of Amparo the respondents were directed
to file a verified return pursuant to the rules; during
the summary hearing of the petition on 25 January
2008, it was only Rojo who appeared, the alleged
complainants (Salcedo, Lumbay and Roa) who caused
the detention of the petitioner were absent; P/Insp.
Rojo, when asked by the Court, gave the following
answers:
1) That he would no longer file his Answer
(which should be a verified return) on the
complaint considering that the petitioner
was already released;
2) That he confirmed that it was the petitioner
who came first to the police station to
complain, followed by the person who
wanted to fence the property; the conflict
between the petitioner and the other persons
is on a property dispute, of which it was
petitioner who is in possession; and
3) That he denied that he had arrested the
petitioner and neither did he detain him but
only he could not release the petitioner
because of the complaint and for further
evaluation.
(i) [H]e noted that the police blotter did not state that
petitioner brought heavily armed men with him when
he allegedly harassed the complainant.
[(j) That in the summary hearing on January 25, 2008, the
petitioner as well as the respondent Rojo have arrived
into an agreement that the writ be considered
permanent.]
THE REPORT OF THE OCA
The OCA informed the Court that the case was already ripe
for resolution in a Report dated April 8, 2010, signed by Court
Administrator Jose Midas P. Marquez and Deputy Court
Administrator Raul Bautista Villanueva. The Report likewise
presented a brief factual background of the case.
The OCA recommended that the administrative complaint against the
respondent judge be dismissed for lack of merit. The
recommendation was based on an evaluation which reads:

EVALUATION: The complaint is
bereft of merit.
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, as in the instant case,
or of a private individual or entity.Whereas in
other jurisdictions the writ covers only actual
violations, the Philippine version is more
protective of the right to life, liberty and security
because it covers both actual
and threatened violations of such rights.
Nowhere in the records of the instant
complaint that the issuance of the writ of amparo
was attended by irregularities. The detainees
sister who filed the petition is allowed under
Section 2(b) of the Rule on the Writ of Amparo
(SC A.M. No. 07-9-12-SC). Also, the petition
was properly filed with the Regional Trial Court
where the act or omission was committed or
where any of its elements occurred.
Respondent Judge, in whose sala the
said petition was assigned is deemed to have
complied with his oath and judicial duty when he
ordered the issuance of the writ of amparo upon
determination that the right to liberty of Mr.
Tanmalack was being violated or threatened to be
violated. These is no showing that respondent
Judge, in granting the petition for a writ of
amparo was motivated by bad faith, ignominy or
ill will, thus, herein complainants allegation that
respondent Judges act was tainted with grave
abuse of discretion and authority, bias and
partiality, and grave disregard of the rules,
deserves scant consideration.
This Office agrees with respondent
Judges observation that Rojos declaration not
anymore to contest the petition and that he (Rojo)
did not arrest nor detain petitioner, but admitted
that he could not release the latter for further
evaluation because of the complaint is an
admission that he deprived [or threatened to
deprive] Jose [Dy Tanmalack] of his liberty.
OUR RULING
We concur with the OCAs recommendation that the
administrative complaint against the respondent judge be
dismissed for lack of merit.
At the outset, we agree with the complainant that the
respondent judge erred in issuing the Writ of Amparo in Tanmalacks
favor. Had he read Section 1 of the Rule on the Writ of Amparo more
closely, the respondent judge would have realized that the writ, in its
present form, only applies to extralegal killings and enforced
disappearances or threats thereof. [3] The present case involves
concerns that are purely property and commercial in nature concerns
that we have previously ruled are not covered by the Writ of Amparo.
[4]
In Tapuz v. Del Rosario,[5] we held:
To start off with the basics, the writ of
amparo was originally conceived as a response to
the extraordinary rise in the number of killings
and enforced disappearances, and to the
perceived lack of available and effective
remedies to address these extraordinary
concerns. It is intended to address violations of or
threats to the rights to life, liberty or security, as
an extraordinary and independent remedy beyond
those available under the prevailing Rules, or as a
remedy supplemental to these Rules. What it is
not, is a writ to protect concerns that are
purely property or commercial. Neither is it a
writ that we shall issue on amorphous and
uncertain grounds. Consequently, the Rule on
the Writ of Amparo in line with the extraordinary
character of the writ and the reasonable certainty
that its issuance demands requires that every
petition for the issuance of the writ must be
supported by justifying allegations of fact, to wit:
(a) The personal circumstances of the petitioner;
(b) The name and personal
circumstances of the respondent responsible for
the threat, act or omission, or, if the name is
unknown or uncertain, the respondent may be
described by an assumed appellation;
(c) The right to life, liberty and
security of the aggrieved party violated or
threatened with violation by an unlawful act or
omission of the respondent, and how such
threat or violation is committed with the
attendant circumstances detailed in supporting
affidavits;
(d) The investigation conducted, if
any, specifying the names, personal
circumstances, and addresses of the
investigating authority or individuals, as well as
the manner and conduct of the investigation,
together with any report;
(e) The actions and recourses taken by
the petitioner to determine the fate or
whereabouts of the aggrieved party and the
identity of the person responsible for the threat,
act or omission; and
(f) The relief prayed for.
The petition may include a general
prayer for other just and equitable reliefs.
The writ shall issue if the Court is preliminarily
satisfied with the prima facie existence of the
ultimate facts determinable from the supporting
affidavits that detail the circumstances of how
and to what extent a threat to or violation of the
rights to life, liberty and security of the aggrieved
party was or is being committed.
In the present case, the Writ of Amparo ought not to have
been issued by the respondent judge since Tanmalacks petition is
fatally defective in substance and content, as it does not allege that he
is a victim of extralegal killings and enforced disappearances or the
threats thereof. The petition merely states that he is under threat of
deprivation of liberty with the police stating that he is not arrested but
merely in custody.[6]
Whether the respondent judge could be held administratively liable
for the error he committed in the present case, is, however, a question
we must answer in the negative.
Plainly, the errors attributed to respondent judge pertain to
the exercise of his adjudicative functions. As a matter of policy, in the
absence of fraud, dishonesty, and corruption, the acts of a judge in his
official capacity are not subject to disciplinary action. He cannot be
subjected to liability civil, criminal, or administrative for any of his
official acts, no matter how erroneous, as long as he acts in good
faith. Only judicial errors tainted with fraud, dishonesty, gross
ignorance, bad faith, or deliberate intent to do an injustice will be
administratively sanctioned. Settled is the rule that errors committed
by a judge in the exercise of his adjudicative functions cannot be
corrected through administrative proceedings, but should instead be
assailed through judicial remedies.[7]
In the present case, the propriety of the issuance of the Writ
of Amparo cannot be raised as an issue in the present administrative
case. The proper recourse for the complainant should have been to
file an appeal, from the final judgment or order of the respondent
judge, to this Court under Rule 45 of the Rules of Court, pursuant to
Section 19 of the Rule on the Writ of Amparo. In Bello III v. Diaz,
[8]
we reiterated that disciplinary proceedings against judges do not
complement, supplement, or substitute judicial remedies, whether
ordinary or extraordinary; an inquiry into their administrative liability
arising from judicial acts may be made only after other available
remedies have been settled. We laid down the rationale for the rule
in Flores v. Abesamis,[9] viz:
As everyone knows, the law provides
ample judicial remedies against errors or
irregularities being committed by a Trial Court in
the exercise of its jurisdiction. The ordinary
remedies against errors or irregularities which
may be regarded as normal in nature (i.e., error in
appreciation or admission of evidence, or in
construction or application of procedural or
substantive law or legal principle) include a
motion for reconsideration (or after rendition of a
judgment or final order, a motion for new trial),
and appeal. The extraordinary remedies against
error or irregularities which may be deemed
extraordinary in character (i.e., whimsical,
capricious, despotic exercise of power or neglect
of duty, etc.) are, inter alia the special civil
actions of certiorari, prohibition or mandamus, or
a motion for inhibition, a petition for change of
venue, as the case may be.
Now, the established doctrine and
policy is that disciplinary proceedings and
criminal actions against Judges are not
complementary or suppletory of, nor a substitute
for, these judicial remedies, whether ordinary or
extraordinary. Resort to and exhaustion of these
judicial remedies, as well as the entry of
judgment in the corresponding action or
proceeding, are pre-requisites for the taking of
other measures against the persons of the judges
concerned, whether of civil, administrative, or
criminal nature. It is only after the available
judicial remedies have been exhausted and the
appellate tribunals have spoken with finality, that
the door to an inquiry into his criminal, civil, or
administrative liability may be said to have
opened, or closed.
Flores resorted to administrative
prosecution (or institution of criminal actions) as
a substitute for or supplement to the specific
modes of appeal or review provided by law from
court judgments or orders, on the theory that the
Judges orders had caused him undue injury.This
is impermissible, as this Court has already more
than once ruled. Law and logic decree that
administrative or criminal remedies are
neither alternative nor cumulative to judicial
review where such review is available, and
must wait on the result thereof. Indeed, since
judges must be free to judge, without pressure or
influence from external forces or factors, they
should not be subject to intimidation, the fear of
civil, criminal or administrative sanctions for acts
they may do and dispositions they may make in
the performance of their duties and functions; and
it is sound rule, which must be recognized
independently of statute, that judges are not
generally liable for acts done within the scope of
their jurisdiction and in good faith; and that
exceptionally, prosecution of the judge can be
had only if there be a final declaration by a
competent court in some appropriate
proceeding of the manifestly unjust character
of the challenged judgment or order, and **
also evidence of malice or bad faith, ignorance
or inexcusable negligence, on the part of the
judge in rendering said judgment or order or
under the stringent circumstances set out in
Article 32 of the Civil Code.[10]
We note, too, that although the respondent judge erred in
issuing the Writ of Amparo, we find, as the OCA did, that there is no
evidence on record that supports the complainants allegation that the
issuance was tainted with manifest bias and partiality, bad faith, or
gross ignorance of the law. The fact that the respondent judge and
Atty. Francis Ku are members of the Masonic fraternity does not
justify or prove that the former acted with bias and partiality. Bias
and partiality can never be presumed and must be proved with clear
and convincing evidence. While palpable error may be inferred from
respondent judges issuance of the Writ of Amparo, there is no
evidence on record that would justify a finding of partiality or
bias. The complainants allegation of partiality will not suffice in the
absence of a clear and convincing proof that will overcome the
presumption that the respondent judge dispensed justice according to
law and evidence, without fear or favor.[11]
Likewise, bad faith or malice cannot be inferred simply
because the judgment is adverse to a party. To hold a judge
administratively accountable simply because he erred in his judgment
has never been the intent of the law; reasonable competence and good
faith judgments, not complete infallibility, are what the law requires.
The more significant issue in this case is the complainants
charge of gross ignorance of the law against the respondent judge.
A patent disregard of simple, elementary and well-known
rules constitutes gross ignorance of the law. Judges are expected to
exhibit more than just cursory acquaintance with laws and procedural
rules. They must know the law and apply it properly in good
faith. They are likewise expected to keep abreast of prevailing
jurisprudence. For, a judge who is plainly ignorant of the law taints
the noble office and great privilege vested in him. [12]
We find that the respondent judges error does not rise to the
level of gross ignorance of the law that is defined by
jurisprudence. We take judicial notice of the fact that at the time he
issued the Writ of Amparo on January 23, 2008, the Rule on the Writ
of Amparo has been effective for barely three months (The Rule on
the Writ of Amparo became effective on October 24, 2007). At that
time, the respondent judge cannot be said to have been fully educated
and informed on the novel aspects of the Writ of Amparo. Simply
stated, the Rule on the Writ of Amparo at that time cannot be said to
be a simple, elementary, and well-known rule that its patent disregard
would constitute gross ignorance of the law.
More importantly, for full liability to attach for ignorance
of the law, the assailed order, decision or actuation of the judge in the
performance of official duties must not only be found to be
erroneous; it must be established that he was motivated by bad faith,
dishonesty, hatred or some other similar motive.[13] In the present
case, the complainant failed to prove by substantial evidence that the
respondent judge was motivated by bad faith and bias or partiality in
the issuance of the Writ of Amparo.
We take this occasion, however, to remind the respondent
judge that under Canon 1.01 of the Code of Judicial Conduct, a judge
must be "the embodiment of competence, integrity and
independence." A judge is called upon to exhibit more than just a
cursory acquaintance with statutes and procedural rules; it is
imperative that he be conversant with basic legal principles and be
aware of well-settled authoritative doctrines. He owes to the public
and to this Court the duty to be proficient in the law. He is expected
to keep abreast of laws and prevailing jurisprudence. Judges must not
only render just, correct, and impartial decisions, resolutions, and
orders, but must do so in a manner free of any suspicion as to their
fairness, impartiality, and integrity, for good judges are men who
have mastery of the principles of law and who discharge their duties
in accordance with law.[14] We mentioned all these to emphasize to the
respondent judge the need to be more judicious and circumspect in
the issuance of extraordinary writs such as the Writ of Amparo.
We also reiterate that in an administrative proceeding, the
complainant has the burden of proving the allegations in the
complaint by substantial evidence.[15] We cannot give credence to
charges based on mere suspicion or speculation. Hence, when the
complainant relies on mere conjectures and suppositions, and fails to
substantiate his claim, as in this case, the administrative complaint
must be dismissed for lack of merit.[16]
 WHEREFORE, in view of the foregoing, the
Court RESOLVES to DISMISS the administrative complaint against
Judge Gil G. Bollozos, Presiding Judge, Regional Trial Court, Branch
21, Cagayan de Oro City, for lack of merit.
SO ORDERED.
EN BANC
GEN. ALEXANDER B. YANO, Chief of Staff,
Armed Forces of the Philippines, LT. GEN. VICTOR
S. IBRADO, Commanding General, Philippine
Army, and MAJ. GEN. RALPH A. VILLANUEVA,
Commander, 7th Infantry Division, Philippine Army,
Petitioners,
- versus -
CLEOFAS SANCHEZ and MARCIANA MEDINA,
Respondents.
Promulgated:
February 11, 2010
x-----------------------------------------------
- - - -x
DECISION
CARPIO MORALES, J.:
On December 28, 2007, respondent Cleofas Sanchez
(Cleofas) filed before this Court a petition docketed as G.R. No.
180839 for issuance of a Writ of Amparo with Motion for Production
and Inspection directed against Gen. Hermogenes Esperon (Gen.
Esperon), the then Chief of Staff of the Armed Forces of the
Philippines (AFP).
On January 2, 2008, the Court[1] resolved to issue a Writ
of Amparo and ordered Gen. Esperon to make a verified return of the
writ before Court of Appeals Justice Edgardo Sundiam, who was
ordered to hear and decide the case which was eventually redocketed
as CA-G.R. SP No. 00010 WR/A.
Cleofas amended her petition[2] on January 14, 2008 to
include herein co-respondent Marciana Medina (Marciana) as therein
additional petitioner, and to implead other military
officers[3] including Lt. Ali Sumangil (Lt. Sumangil) and Sgt. Gil
Villalobos[4] (Sgt. Villalobos) as therein additional respondents.
In the Amended Petition, Cleofas and Marciana (respondents) alleged
that on September 17, 2006 at around 8:00 p.m., their respective sons
Nicolas Sanchez and Heherson Medina were catching frogs outside
their home in Sitio Dalin, Barangay Bueno, Capas, Tarlac; that at
around 1:00 a.m. of the next day, September 18, 2006, Nicolas wives
Lourdez and Rosalie Sanchez, who were then at home, heard
gunshots and saw armed men in soldiers uniforms passing by; that at
around 4:00 a.m. of the same day, Lourdez and Rosalie went out to
check on Nicolas and Heherson but only saw their caps,
slippers, pana and airgun for catching frogs, as well as bloodstains;
and that they immediately reported the matter to
the barangay officials.
Respondents narrated that they, together with other family members,
proceeded on September 19, 2006 to the Capas Station of the
Philippine National Police (PNP). Accompanied by officials of the
National Commission on Indigenous Peoples (NCIP),[5] they also
tried to search for Nicolas and Heherson at the Camp Detachment of
the 71st Infantry Batallion of the Philippine Army (Army) in
Barangay Burgos, San Jose, Tarlac, and at the Camp of the Bravo
Company of the Armys 71st Infantry Batallion inside Hacienda
Luisita, Tarlac City, but to no avail.
Furthermore, respondents alleged that Josephine Galang
Victoria, also known as Antonina Galang (Josephine), niece of a
neighbor, later informed them that she had seen two men inside
Camp Servillano Aquino of the Northern Luzon Command (Nolcom)
in San Miguel, Tarlac City on September 21, 2006, whom Josephine
later identified as Nicolas and Heherson (the victims) after
respondents had shown her their photographs; and that Josephine
informed them that she saw the victims again on September 24, 2006
and November 1, 2006,[6] this time at the Camp of the Bravo
Company of the Armys 71st Infantry Batallion inside Hacienda
Luisita, where she had occasion to talk to Lt. Sumangil and Sgt.
G.R. No. 186640
Villalobos. Respondents filed a case on December 21, 2006 before
the Commission on Human Rights (CHR), which endorsed[7] the
Present: same to the Ombudsman for appropriate action.
PUNO, C.J., Contending that the victims life, liberty and security had
CARPIO, been and continued to be violated on account of their forced
CORONA, disappearance, respondents prayed for the issuance of a writ
CARPIO MORALES,
of Amparo, the production of the victims bodies during the hearing
VELASCO, JR.,
on the Writ, the inspection of certain military camps, [8] the issuance of
NACHURA, temporary and permanent protection orders, and the rendition of
LEONARDO-DE CASTRO,
judgment under Section 18 of the Rule on the Writ of Amparo.[9]
BRION,
PERALTA, Meanwhile, a consolidated Return of the Writ, [10] verified
BERSAMIN,by Gen. Esperon, Lt. Sumangil, Sgt. Villalobos, Maj. Gen. Juanito
DEL CASTILLO,
Gomez (Maj. Gen. Gomez) as Commander of the Armys 7th Infantry
ABAD, Division, and Lt. Col. Victor Bayani (Lt. Col. Bayani) as Camp
VILLARAMA, JR.,
Commander of Camp Servillano Aquino of the Nolcom in Tarlac
PEREZ, and City, was filed with the appellate court on January 24, 2008. Lt. Gen.
MENDOZA, Alexander Yano (Lt. Gen. Yano), Commanding General of the Army,
filed a Return of the Writ upon his return from an official trip abroad.
In their Return, the military officers denied having custody
of the victims. They posited that the proper remedy of respondents
was to file a petition for the issuance of a Writ of Habeas
Corpus, since the petitions ultimate objective was the production of
the bodies of the victims, as they were allegedly abducted and
illegally detained by military personnel;[11] that the petition failed to
indicate the matters required by paragraphs (c), (d) and (e), Section 5
of the Rule on the Writ of Amparo, such that the allegations were
incomplete to constitute a cause of action, aside from being based on
mere hearsay evidence, and are, at best, speculative; that respondents
failed to present the affidavits of some other competent persons
which would clearly validate their claim that the military violated the
victims right to life, liberty or security by abducting or detaining
them; and that the petition did not allege any specific action or
inaction attributable to the military officers with respect to their
duties; or allege that respondents took any action by filing a formal
complaint or visiting the military camps adverted to in order to verify
Josephines claim that she saw the victims on two different occasions
inside the camps, or that they took efforts to follow up on the PNP
Capas Stations further action on their complaint. [12]
Denying he violated the victims right to life, liberty and
security, Gen. Esperon specifically asserted that, in compliance with
the Defense Secretarys directive in relation to cases of Writ
of Amparo against the AFP, he issued directives to the Nolcom
Commander and the Armys Commanding General to investigate and
establish the circumstances surrounding reported disappearances of
victims insofar as the claim on the possible involvement of the
military units was concerned; and undertook to bring any military
personnel involved, when warranted by the evidence, to the bar of
justice.[13]
Maj. Gen. Gomez likewise denied having custody or
knowledge of the whereabouts of the victims, stating that it was not
army policy to abduct civilians in his area of responsibility,[14] and
that he was away on official business at the time of the alleged
disappearance of the victims.[15]
Lt. Col. Bayani attested that he was designated Camp
Commander only on September 1, 2007 and thus had no personal
knowledge about the victims alleged disappearance or abduction on
September 18, 2006; that he was informed by his immediate
predecessor that no individuals were detained in the camp as it did
not even have detention facilities; and that in compliance with Gen.
Esperons directive, their command was conducting further
investigation to verify the allegations in the petition. [16]
 Lt. Sumangil denied having spoken to Josephine inside the
camp on September 24, 2006, on which date civilians were not
allowed to enter except on official missions or when duly authorized
to conduct transactions inside the camp. He thus concluded that
Josephine lied in claiming to have seen the two victims inside the
Camp of the Bravo Company of the 71st Infantry Batallion inside
Hacienda Luisita on September 24, 2006 or at any time thereafter. He
instead recounted that on September 24, 2006, he spoke for the first
and only time, but only at the gate of the camp, with a person who
identified herself as Antonina Galang, who informed him about the
disappearance of the victims since September 18, 2006. Warning him
that these men were members of the New Peoples Army (NPA), she
advised him not to entertain any queries or complaints relative to
their alleged disappearance.[17]
Sgt. Villalobos echoed Sumangils disclaimer about having
any of the victims in his custody or meeting anyone named Josephine
Victoria, or about the latter having entered the camps kitchen to drink
water.
Lt. Gen. Yano stated that upon his return from his official
functions overseas, he immediately inquired on the actions taken on
the case. He averred that he had never participated directly or
indirectly; or consented, permitted or sanctioned any illegal or
illegitimate military operations. He declared that it had always been
his policy to respect human rights and uphold the rule of law, and to
bring those who violated the law before the court of justice.
1. Inspections of the following camps:
Camp Servillano Aquino, San Miguel, Tarlac
City, any military camp of the 7th Infantry
Division located in Aqua Farm, Hacienda Luisita,
Tarlac City, within reasonable working hours of
any day except when the military camp is on red
alert status.
2. Thorough and Impartial
Investigation for the appropriate Investigating
Unit of the Philippine Army at Camp Servillano
Aquino and the Philippine Army, 7th Infantry
Division in Fort Magsaysay to conduct their
respective investigation of all angles pertaining to
the disappearances of Nicolas and Heherson and
to immediately file charges against those found
guilty and submit their written report to this
Court within three (3) months from notice.
SO ORDERED.[20] (underscoring
supplied)
The military officers filed a Motion for Partial
Reconsideration (Motion), arguing in the main that since respondents
failed to prove the allegations in their petition by substantial
evidence, the appellate court should not have granted those reliefs. [21]

In opposing the request for issuance of inspection and The appellate court denied the Motion by the
production orders, the military officers posited that apart from assailed Resolution of March 3, 2009.[22]
compromising national security should entry into these military
camps/bases be allowed, these orders partook of the nature of a Taking up the cudgels for the military, Gen. Alexander
search warrant, such that the requisites for the issuance thereof must Yano,[23] Lt. Gen. Victor Ibrado,[24] and Maj. Gen. Ralph
be complied with prior to their issuance. They went on to argue that Villanueva[25] (petitioners) filed the present petition for review of the
such request relied solely on bare, self-serving and vague allegations appellate courts assailed issuances, faulting it for
contained in Josephines affidavit, for aside from merely mentioning . . . NOT CATEGORICALLY DENYING THE
that she saw Nicolas and Heherson on board an army truck near the PRIVILEGE OF THE WRIT OF
Nolcom gate and, days later, inside the kitchen of the 71 st Infantry AMPARO PURSUANT TO SECTION 18 OF
Battalion Camp inside Hacienda Luisita and while logging outside THE RULE ON THE WRIT OF
said camp, Josephine had stated nothing more to ascertain the AMPARO DESPITE ITS FINDING THAT
veracity of the places where she allegedly saw Nicolas and Heherson. RESPONDENTS FAILED TO PROVE
[18] THEIR ALLEGATIONS IN THEIR
PETITION FOR AMPARO BY
On whether the impleaded military officers were either SUBSTANTIAL EVIDENCE. . . .
directly or indirectly connected with the disappearance of the victims, [AND] . . . DIRECTING PETITIONERS TO:
the appellate court, after hearing, absolved, by the assailed Decision
of September 17, 2008,[19] Gen. Esperon, Lt. Gen. Yano, Maj. Gen. (A) ALLOW
Gomez, and Lt. Col. Bayani for lack of evidence linking them to the RESPONDENTS TO
disappearances, and further ruled as follows: INSPECT CAMP
SERVILLANO AQUINO,
All said, this Court is convinced NORTH LUZON
that petitioners have not adequately and COMMAND, PHILIPPINE
convincingly established any direct or indirect ARMY, SAN MIGUEL,
link between respondents individual military TARLAC CITY AND ANY
officers and the disappearances of Nicolas and MILITARY CAMP OF THE
Heherson. Neither did the concerned Philippine 7TH INFANTRY DIVISION
Army Units have exerted fully their efforts to LOCATED IN AQUA
investigate and unearth the truth and bring the FARM, HACIENDA
culprits before the bar of justice. LUISITA, TARLAC CITY;
AND.
The concerned Philippine Army units
(such as the Northern Command and the (B) CONDUCT
7th Infantry Division, which had jurisdiction over THOROUGH AND
the place of disappearance of Nicolas and IMPARTIAL
Heherson, should exert extraordinary diligence to INVESTIGATION OF THE
follow all possible leads to solve the DISAPPEARANCE OF THE
disappearances of Nicolas and Heherson. The AGGRIEVED PARTIES,
Philippine Army should be reminded of its FILE CHARGES AGAINST
constitutional mandate as the protector of the THOSE FOUND GUILTY
people and the State. AND SUBMIT WRITTEN
REPORT WITHIN THREE
RELIEFS MONTHS FROM NOTICE.
[26]
(emphasis and
While as We stated hereinbefore that underscoring supplied)
We could not find any link between respondents
individual military officers to the disappearance
of Nicolas and Heherson, nonetheless, the fact The Court finds merit in the petition.
remains that the two men are still missing. Hence,
We find it equitable to grant petitioners some In ruling in favor of Lt. Sumangil and Sgt. Villalobos, the
reliefs in the interest of human rights and justice appellate court resolved the case on the basis of the credibility of
as follows: Josephine as a witness. It arrived at the following findings:
To prove that these two military
officers took or have custody of Nicolas and
Heherson, petitioners presented Josephine Galang
Victoria, also known as Antonina Galang, a niece
of petitioner Cleofas Sanchez neighbor, who
allegedly saw Nicolas and Heherson inside Camp
Servillano Aquino on September 21, 2006 when
she visited her uncle, a certain Major Henry
Galang, who is allegedly living inside the camp;
that a few days later, she again saw Nicolas and
Heherson at Aqua Farm at Hacienda Luisita,
where the camp of Bravo Company of the
71st Infantry Battalion is located and where
Heherson was seen sweeping the floor and
Nicolas was seen cooking, having wounds in
their legs near the feet as if sustained from a
gunshot wound; that on November 1, 2006, she
went back upon advice of Lt. Sumangil to give
her a cellfone which Tech. Sgt. Villalobos handed
to her for her to know where Nicolas and
Heherson will be brought; that they [sic] saw the
two outside getting some woods under the
watchful eye of a soldier when Sumangil kicked
Nicolas for being slow and thereafter, she did not
see the two anymore.
While Josephine Galang Victorias story
of how she saw the subject two missing persons
(Nicolas and Heherson) appeared initially as
plausible, however, her credibility as a witness
had been successfully destroyed by the following
witnesses presented by the respondents.
1) Barangay Captain Rodolfo P. Supan
of Cut-Cut II, Tarlac City, attested that she knows
a certain woman named Josephine Galang
Victoria who introduces herself as Antonina
Galang, niece through the cousin of his wife and
a long-time resident of Cut-Cut II since birth until
she lived with her partner Philip Victoria and they
still visit and goes to her auntie or siblings house;
that he knows the reputation of Josephine
Victoria as bad regarding her telling the truth, her
truthfulness and integrity, known to fool others
and invents stories for money reasons, that she
cannot be trusted even if she is under oath before
God and the State.
2) As if that is not yet enough, Gloria
Galang Mansalay testified that she is a resident of
Cut-Cut II since birth in 1964 and she knows
Josephine Galang Victoria because she is her
niece being the daughter of her older brother; that
she even took care of Antonina as a child but her
general reputation in telling the truth, her fidelity
and integrity is bad, known to fool others, a liar
and invent [sic] stories for reason of money.
3) Clarita Galang Ricafrente saying that
she is a resident of Cut-cut II and Antonina
Galang is a niece and attested the same negative
reputations against Antonina.
It appears that said negative testimonies
of Josephine Galang Victorias relatives were
never successfully rebutted by her and the Court
gives credence to them. No ill motive [sic] were
established against the said witnesses to testify
against Antonina Galang.
Furthermore, Antonina Galang stated
that she was in Camp Servillano Aquino when
she first saw Nicolas and Heherson riding in an
army truck because she was visiting her uncle,
Major Henry Galang, allegedly living in the
camp. Parenthetically, this story of Antonina
Galang was put to doubt. TSG Edgard Reyes who
attested that as a meter reader in the camp, Major
Galang was no longer residing there in
September 2006. This testimony and revelation
of TSG Reyes only bolstered the testimonies of
the other witnesses on Antonina Galangs
penchant to invent stories or tell a lie.
In sum, We are not inclined to give
credence to the claims of Antonina Galang that
the two missing person [sic] she saw first in
Camp Servillano Aquino and later, in Aqua Farm,
were Nicolas and Heherson. Notably, Antonina
Galang never did see the faces of the two but
were known to her through photographs.
Certainly, there may be a difference between
photographs and the faces in person.
To be noted also is that even the two
wives of Nicolas did not make an express
attestation that they saw Nicolas and Heherson in
the company of those armed men who passed
their place in the early morning of September 18,
2006.[27] (underscoring supplied)
NOTABLY, respondents neither moved for reconsideration
nor appealed the appellate courts September 17, 2008 Decision.
The entrenched procedural rule in this jurisdiction is that a
party who did not appeal cannot assign such errors as are designed to
have the judgment modified. All that said appellee can do is to make
a counter-assignment of errors or to argue on issues raised at the trial
only for the purpose of sustaining the judgment in his favor, even on
grounds not included in the decision of the court a quo or raised in
the appellants assignment of errors or arguments.[28]
This tenet is enshrined as one of the basic principles in our
rules of procedure, specifically to avoid ambiguity in the presentation
of issues, facilitate the setting forth of arguments by the parties, and
aid the court in making its determinations. A party who fails to
acquire complete relief from a decision of the court has various
remedies to correct an omission by the court. He may move for a
correction or clarification of judgment, or even seek its modification
through ordinary appeal. There is thus no basis for the Court to skip
the rule and excuse herein respondents for failure to properly avail
themselves of the remedies in the face of the parties contentions that
have remained disputed.[29]
What is thus left for the Court to resolve is the issue of
whether the grant of the RELIEFS[30] by the appellate court after
finding want of substantial evidence are valid and proper.
Sections 17 and 18 of the Amparo Rule lay down the
requisite standard of proof necessary to prove either partys claim, viz:
SEC. 17. Burden of Proof and Standard
of Diligence Required. - The parties shall
establish their claim by substantial evidence.
The respondent who is a private
individual or entity must prove that ordinary
diligence as required by applicable laws, rules
and regulations was observed in the performance
of duty.
The respondent who is a public official
or employee must prove that extraordinary
diligence as required by applicable laws, rules
and regulations was observed in the performance
of duty.
The respondent public official or
employee cannot invoke the presumption that
official duty has been regularly performed to
evade responsibility or liability.
SEC. 18. Judgment. - The Court shall
render judgment within ten (10) days from the
time the petition is submitted for decision. 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. (emphasis and underscoring
supplied)
The requisite standard of proof substantial
evidence - speaks of the clear intent of the Rule to have the
equivalent of an administrative proceeding, albeit judicially
conducted, in resolving amparo petitions.
To the appellate court, the evidence adduced in the present
case failed to measure up to that standard substantial evidence which
a reasonable mind might accept as adequate to support a
conclusion. Since respondents did not avail of any remedy against the
adverse judgment, the appellate courts decision is, insofar as it
concerns them, now beyond the ambit of review.
Meanwhile, the requirement for a government official or
employee to observe extraordinary diligence in the performance of
duty stresses the extraordinary measures expected to be taken in
safeguarding every citizens constitutional rights as well as in the
investigation of cases of extra-judicial killings and enforced
disappearances.[31]
The failure to establish that the public official
observed extraordinary diligence in the performance of duty does not
result in the automatic grant of the privilege of the amparo writ. It
does not relieve the petitioner from establishing his or her claim by
substantial evidence. The omission or inaction on the part of the
public official provides, however, some basis for the petitioner to
move and for the court to grant certain interim reliefs.
In line with this, Section 14 of the Amparo Rule provides
for interim or provisional reliefs that the courts may grant in order
to, inter alia, protect the witnesses and the rights of the parties, and
preserve all relevant evidence, viz:
SEC. 14. Interim Reliefs. Upon
filing of the petition or at anytime before final
judgment, the court, justice or judge may grant
any of the following reliefs:
(a) Temporary Protection Order. The
court, justice or judge, upon motion or motu
proprio, may order that the petitioner or the
aggrieved party and any member of the
immediate family be protected in a government
agency or by an accredited person or private
institution capable of keeping and securing their
safety. If the petitioner is an organization,
association or institution referred to in Section 3
(c) of this Rule, the protection may be extended
to the officers involved.
The Supreme Court shall accredit the
persons and private institutions that shall extend
temporary protection to the petitioner or the
aggrieved party and any member of the
immediate family, in accordance with guidelines
which it shall issue.
The accredited persons and private
institutions shall comply with the rules and
conditions that may be imposed by the court,
justice or judge.
(b) Inspection Order. The court, justice
or judge, upon verified motion and after due
hearing, may order any person in possession or
control of a designated land or other property, to
permit entry for the purpose of inspecting,
measuring, surveying, or photographing the
property or any relevant object or operation
thereon.
The motion shall state in detail the
place or places to be inspected. It shall be
supported by affidavits or testimonies of
witnesses having personal knowledge of the
enforced disappearance or whereabouts of the
aggrieved party.
If the motion is opposed on the ground
of national security or of the privileged nature of
the information, the court, justice or judge may
conduct a hearing in chambers to determine the
merit of the opposition.
The movant must show that the
inspection order is necessary to establish the right
of the aggrieved party alleged to be threatened or
violated.
The inspection order shall specify the
person or persons authorized to make the
inspection and the date, time, place and manner
of making the inspection and may prescribe other
conditions to protect the constitutional rights of
all parties. The order shall expire five (5) days
after the date of its issuance, unless extended for
justifiable reasons.
(c) Production Order. The court,
justice, or judge, upon verified motion and after
due hearing, may order any person in possession,
custody or control of any designated documents,
papers, books, accounts, letters, photographs,
objects or tangible things, or objects in digitized
or electronic form, which constitute or contain
evidence relevant to the petition or the return, to
produce and permit their inspection, copying or
photographing by or on behalf of the movant.
The motion may be opposed on the
ground of national security or of the privileged
nature of the information, in which case the court,
justice or judge may conduct a hearing in
chambers to determine the merit of the
opposition.
The court, justice or judge shall
prescribe other conditions to protect the
constitutional rights of all the parties. (emphasis
and underscoring supplied)
These provisional reliefs are intended to assist the
court before it arrives at a judicious determination of
the amparo petition. For the appellate court to, in the present case,
still order the inspection of the military camps and order the army
units to conduct an investigation into the disappearance of Nicolas
and Heherson after it absolved petitioners is thus not in order. The
reliefs granted by the appellate court to respondents are not in sync
with a finding that petitioners could not be held accountable for the
disappearance of the victims.
Respondents posit that there appears to be some shared
confusion as to whether the reliefs granted by the appellate court are
final or interlocutory. They thus implore this Court to modify the
appellate courts judgment by considering the reliefs as temporary or
interlocutory and by adding thereto an order for the production of
logbooks and reports.[32]
At this late stage, respondents can no longer avail
themselves of their stale remedies in the guise of praying for
affirmative reliefs in their Comment. No modification of judgment
could be granted to a party who did not appeal.[33]
If respondents believed that the September 17, 2008
Decision of the appellate court was merely interlocutory, they had
every opportunity to question the conclusion of said court, but they
did not. They could have opposed petitioners motion for
reconsideration filed with the appellate court, it being a prohibited
pleading[34] under the Amparo Rule, but they did not.
WHEREFORE, the petition is GRANTED. The
assailed September 17, 2008 Decision and March 3, 2009 Resolution
of the Court of Appeals, insofar as it grants the assailed earlier-quoted
reliefs are SET ASIDE.
SO ORDERED.

EN BANC
P/SUPT. FELIXBERTO CASTILLO, POLICE
OFFICERS ROMEO BAGTAS, RUPERTO
BORLONGAN, EDMUNDO DIONISIO, RONNIE
MORALES, ARNOLD TRIA, and GILBERTO
PUNZALAN, ENGR. RICASOL P. MILLAN, ENGR.
REDENTOR S. DELA CRUZ, MR. ANASTACIO L.
BORLONGAN, MR. ARTEMIO ESGUERRA, TISOY,
and JOHN DOES,
Petitioners,
- versus -
DR. AMANDA T. CRUZ, NIXON T. CRUZ, and
FERDINAND T. CRUZ,
Respondents.
X----------------------------------------------
----x
DECISION
CARPIO MORALES, J.
Petitioners[1], employees and members of the local police force of the
City Government of Malolos, challenge the March 28, 2008 Decision
of the Regional Trial Court (RTC) of Malolos, Branch 10 in a petition
for issuance of writs of amparo and habeas data instituted by
respondents.
The factual antecedents.
Respondent Amanda Cruz (Amanda) who, along with her husband
Francisco G. Cruz (Spouses Cruz), leased a parcel of land situated at
Barrio Guinhawa, Malolos (the property), refused to vacate the
property, despite demands by the lessor Provincial Government of
Bulacan (the Province) which intended to utilize it for local projects.
The Province thus filed a complaint for unlawful detainer
against the Spouses Cruz before the then Municipal Trial Court
(MTC) of Bulacan, Bulacan.
By Decision of September 5, 1997, the MTC rendered judgment
against the Spouses Cruz, which judgment, following its affirmance
by the RTC, became final and executory.
The finality of the decision in the ejectment case notwithstanding, the
spouses Cruz refused to vacate the property. They thereupon filed
cases against the Province[2] and the judges who presided over the
case.[3] Those cases were dismissed except their petition for
annulment of judgment lodged before Branch 18 of the RTC of
Malolos, and a civil case for injunction 833-M-2004 lodged before
Branch 10 of the same RTC Malolos.
The Spouses Cruz sought in the case for injunction the issuance of a
permanent writ of injunction to prevent the execution of the final and
executory judgment against them.
By Order of July 19, 2005, the RTC, finding merit in the Spouses
Cruzes allegation that subsequent events changed the situation of the
parties to justify a suspension of the execution of the final and
executory judgment, issued a permanent writ of injunction, the
dispositive portion of which reads:
WHEREFORE, the foregoing petitioners
Motion for Reconsideration of the Order dated
August 10, 2004 is hereby GRANTED. Order
dated August 10, 2004 is
hereby RECONSIDERED and SET ASIDE.
Further, the verified petition dated November 05,
2002 are hereby REINSTATED and MADE
PERMANENT until the MTC-Bulacan, Bulacan
finally resolves the pending motions of
petitioners with the same determines the metes
and bounds of 400 sq. meters leased premises
subject matter of this case with immediate
G.R. No. 182165 dispatch. Accordingly, REMAND the
determination of the issues raised by the
Present: petitioners on the issued writ of demolition to the
MTC of Bulacan, Bulacan.
PUNO, SO ORDERED.[4] (Emphasis in the
CARPIO, original; underscoring supplied)
CORONA
CARPIO MORALES,
CHICO-NAZARIO,
Finding that the fallo of the RTC July 19, 2005 Order treats, as a
VELASCO,suspensive
JR., condition for the lifting of the permanent injunction, the
NACHURA,determination of the boundaries of the property, the Province returned
LEONARDO-DE CASTRO,
the issue for the consideration of the MTC. In a Geodetic Engineers
BRION, Report submitted to the MTC on August 31, 2007, the metes and
PERALTA, bounds of the property were indicated.
BERSAMIN,
DEL CASTILLO,
The MTC, by Order of January 2, 2008, approved the Report and
ABAD, ruled that the permanent injunction which the RTC issued is
VILLARAMA, JR.,
ineffective. On motion of the Province, the MTC, by Order of
January 21, 2008, thus issued a Second Alias Writ of Demolition.
On receiving notice of the January 2, 2008 MTC Order, the
Promulgated:
Spouses Cruz filed a motion before Branch 10 of the RTC for the
November 25, 2009 of a temporary restraining order (TRO) which it set for
issuance
hearing on January 25, 2008 on which date, however, the demolition
had, earlier in the day, been implemented. Such notwithstanding, the
RTC issued a TRO.[5] The Spouses Cruz, along with their sons-
respondents Nixon and Ferdinand, thereupon entered the property,
placed several container vans and purportedly represented themselves
as owners of the property which was for lease.
On February 21, 2008, petitioners Police Superintendent Felixberto
Castillo et al., who were deployed by the City Mayor in compliance
with a memorandum issued by Governor Joselito R. Mendoza
instructing him to protect, secure and maintain the possession of the
property, entered the property.
Amanda and her co-respondents refused to turn over the property,
however. Insisting that the RTC July 19, 2005 Order of Permanent
Injunction enjoined the Province from repossessing it, they shoved
petitioners, forcing the latter to arrest them and cause their indictment
for direct assault, trespassing and other forms of light threats.
Respondents later filed on March 3, 2008 a Respectful Motion-
Petition for Writ of Amparo and Habeas Data, docketed as Special
Civil Action No. 53-M-2008, which was coincidentally raffled to
Branch 10 of the RTC Malolos.
Respondents averred that despite the Permanent Injunction,
petitioners unlawfully entered the property with the use of heavy
equipment, tore down the barbed wire fences and tents, [6] and arrested
them when they resisted petitioners entry; and that as early as in the
evening of February 20, 2008, members of the Philippine National
Police had already camped in front of the property.
On the basis of respondents allegations in their petition and
the supporting affidavits, the RTC, by Order of March 4, 2008, issued
writs of amparo and habeas data.[7]
The RTC, crediting respondents version in this wise:
Petitioners have shown by preponderant evidence
that the facts and circumstances of the alleged
offenses examined into on Writs of Amparo and
Habeas Data that there have been an on-going
hearings on the verified Petition for Contempt,
 docketed as Special Proceedings No. 306-M-
2006, before this Court for alleged violation by
the respondents of the Preliminary Injunction
Order dated July 16, 2005 [sic] in Sp. Civil
Action No. 833-M-2002, hearings were held on
January 25, 2008, February 12 and 19, 2008,
where the respondents prayed for an April 22,
2008 continuance, however, in the pitch darkness
of February 20, 2008, police officers, some
personnel from the Engineering department, and
some civilians proceeded purposely to the Pinoy
Compound, converged therein and with
continuing threats of bodily harm and danger and
stone-throwing of the roofs of the homes thereat
from voices around its premises, on a pretext of
an ordinary police operation when enterviewed
[sic] by the media then present, but at 8:00 a.m.
to late in the afternoon of February 21, 2008,
zoomed in on the petitioners, subjecting them to
bodily harm, mental torture, degradation, and the
debasement of a human being, reminiscent of the
martial law police brutality, sending chill in any
ordinary citizen,[8]
rendered judgment, by Decision of March 28, 2008, in favor of
respondents, disposing as follows:
WHEREFORE, premises considered, the
Commitment Orders and waivers in Crim. Cases
Nos. 08-77 for Direct assault; Crim. Case No. 08-
77 for Other Forms of Trespass; and Crim. Case
No. 08-78 for Light Threats are
hereby DECLARED illegal, null and void, as
petitioners were deprived of their substantial
rights, induced by duress or a well-founded fear
of personal violence. Accordingly, the
commitment orders and waivers are hereby SET
ASIDE. The temporary release of the petitioners
is declared ABSOLUTE.
Without any pronouncement as to costs.
SO ORDERED.[9] (Emphasis in the
original; underscoring supplied)
Hence, the present petition for review on certiorari, pursuant to
Section 19[10] of The Rule on the Writ of Amparo (A.M. No. 07-9-12-
SC),[11] which is essentially reproduced in the Rule on the Writ
of Habeas Data (A.M. No. 08-1-16-SC).[12]
In the main, petitioners fault the RTC for
giving due course and issuing writs of amparo
and habeas data when from the allegations of the
petition, the same ought not to have been issued
as (1) the petition in [sic] insufficient in
substance as the same involves property rights;
and (2) criminal cases had already been filed and
pending with the Municipal Trial Court in Cities,
Branch 1, City of Malolos. (Underscoring
supplied)
The petition is impressed with merit.
The Court is, under the Constitution, empowered to promulgate rules
for the protection and enforcement of constitutional rights. [13] In view
of the heightening prevalence of extrajudicial killings and enforced
disappearances, the Rule on the Writ of Amparo was issued and took
effect on October 24, 2007 which coincided with the celebration of
United Nations Day and affirmed the Courts commitment towards
internationalization of human rights. More than three months later or
on February 2, 2008, the Rule on the Writ of Habeas Data was
promulgated.
Section 1 of 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 and
underscoring supplied)
Section 1 of the Rule on the Writ of Habeas Data provides:
Section 1. 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 or
information regarding the person, family, home
and correspondence of the aggrieved party.
(Emphasis and underscoring supplied)
From the above-quoted provisions, the coverage of the writs is
limited to the protection of rights to life, liberty and security. And
the writs cover not only actual but also threats of unlawful acts or
omissions.
Secretary of National Defense v. Manalo[14] teaches:
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. 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.[15] (Underscoring supplied,
citations omitted)
To thus be covered by the privilege of the writs, respondents must
meet the threshold requirement that their right
to life, liberty and security is violated or threatened with an unlawful
act or omission. Evidently, the present controversy arose out of a
property dispute between the Provincial Government and
respondents. Absent any considerable nexus between the acts
complained of and its effect on respondents right to life, liberty and
security, the Court will not delve on the propriety of petitioners entry
into the property.
Apropos is the Courts ruling in Tapuz v. Del Rosario:[16]
To start off with the basics, the writ of amparo
was originally conceived as a response to the
extraordinary rise in the number of killings and
enforced disappearances, and to the perceived
lack of available and effective remedies to
address these extraordinary concerns. It is
intended to address violations of or threats to the
rights to life, liberty or security, as an
extraordinary and independent remedy beyond
those available under the prevailing Rules, or as a
remedy supplemental to these Rules. What it is
not, is a writ to protect concerns that are
purely property or commercial. Neither is it a
writ that we shall issue on amorphous and
uncertain grounds. Consequently, the Rule on
the Writ of Amparo in line with the extraordinary
character of the writ and the reasonable certainty
that its issuance demands requires that every
petition for the issuance of the writ must be
supported by justifying allegations of fact, to wit:
 xxxx
The writ shall issue if the Court is preliminarily
satisfied with the prima facie existence of the
ultimate facts determinable from the supporting
affidavits that detail the circumstances of how
and to what extent a threat to or violation of the
rights to life, liberty and security of the aggrieved
party was or is being committed.[17] (Emphasis
and italics in the original, citation omitted)
Tapuz also arose out of a property dispute, albeit between private
individuals, with the petitioners therein branding as acts of terrorism
the therein respondents alleged entry into the disputed land with
armed men in tow. The Court therein held:
On the whole, what is clear from these
statements both sworn and unsworn is the
overriding involvement of property issues as the
petition traces its roots to questions of physical
possession of the property disputed by the private
parties. If at all, issues relating to the right to life
or to liberty can hardly be discerned except to the
extent that the occurrence of past violence has
been alleged. The right to security, on the other
hand, is alleged only to the extent of the treats
and harassments implied from the presence of
armed men bare to the waist and the alleged
pointing and firing of weapons. Notably, none of
the supporting affidavits compellingly show
that the threat to the rights to life, liberty and
security of the petitioners is imminent or
continuing.[18] (Emphasis in the
original; underscoring supplied)
which respondents filed a case for criminal contempt against
petitioners.[22]
Before the filing of the petition for writs of amparo and habeas
data, or on February 22, 2008, petitioners even instituted a petition
for habeas corpus which was considered moot and academic by
Branch 14 of the Malolos RTC and was accordingly denied by Order
of April 8, 2008.
More. Respondent Amanda and one of her sons, Francisco Jr.,
likewise filed a petition for writs of amparo and habeas data before
the Sandiganbayan, they alleging the commission of continuing
threats by petitioners after the issuance of the writs by the RTC,
which petition was dismissed for insufficiency and forum shopping.
It thus appears that respondents are not without recourse and have in
fact taken full advantage of the legal system with the filing of civil,
criminal and administrative charges.[23]
It need not be underlined that respondents petitions for
writs of amparo and habeas data are extraordinary remedies which
cannot be used as tools to stall the execution of a final and executory
decision in a property dispute.
AT ALL EVENTS, respondents filing of the petitions for writs
of amparo and habeas data should have been barred, for criminal
proceedings against them had commenced after they were arrested
in flagrante delicto and proceeded against in accordance with Section
6, Rule 112[24] of the Rules of Court. Validity of the arrest or the
proceedings conducted thereafter is a defense that may be set up by
respondents during trial and not before a petition for writs
of amparo and habeas data. The reliefs afforded by the writs may,
however, be made available to the aggrieved party by motion in the
criminal proceedings.[25]

WHEREFORE, the petition is GRANTED. The challenged March

It bears emphasis that respondents petition did not show any actual 4, 2008 Order of Branch 10 of the Regional Trial Court of Malolos is
violation, imminent or continuing threat to their life, liberty and DECLARED NULL AND VOID, and its March 28, 2008 Decision
security. Bare allegations that petitioners in unison, conspiracy and in is REVERSED and SET ASIDE. Special Civil Action No. 53-M-
contempt of court, there and then willfully, forcibly and feloniously 2008 is DISMISSED.
with the use of force and intimidation entered and forcibly, physically
manhandled the petitioners (respondents) and arrested the herein
petitioners (respondents)[19] will not suffice to prove entitlement to the
remedy of the writ of amparo. No undue confinement or detention
was present. In fact, respondents were even able to post bail for the
offenses a day after their arrest.[20]

Although respondents release from confinement does not necessarily

hinder supplication for the writ of amparo, absent any evidence or
even an allegation in the petition that there is undue and continuing
restraint on their liberty, and/or that there exists threat or intimidation
that destroys the efficacy of their right to be secure in their persons,
the issuance of the writ cannot be justified.

That respondents are merely seeking the protection of their property

rights is gathered from their Joint Affidavit, viz:

xxxx

11. Kami ay humarang at humiga sa harap ng

mga heavy equipment na hawak hawak ang
nasabing kautusan ng RTC Branch 10
(PERMANENT INJUNCTION at RTC ORDERS
DATED February 12, 17 at 19 2008) upang
ipaglaban ang dignidad ng kautusan ng korte,
ipaglaban ang prinsipyo ng SELF-HELP at batas
ukol sa PROPERTY RIGHTS, Wala kaming
nagawa ipagtanggol ang aming karapatan sa lupa
na 45 years naming IN
POSSESSION. (Underscoring supplied)

Oddly, respondents also seek the issuance of a writ of habeas

data when it is not even alleged that petitioners are gathering,
collecting or storing data or information regarding their person,
family, home and correspondence.

As for respondents assertion of past incidents[21] wherein the Province

allegedly violated the Permanent Injunction order, these incidents
were already raised in the injunction proceedings on account of

Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 184769 October 5, 2010
MANILA ELECTRIC COMPANY, ALEXANDER S.
DEYTO and RUBEN A. SAPITULA, Petitioners,
vs.
ROSARIO GOPEZ LIM, Respondent.
DECISION
CARPIO MORALES, J.:
The Court is once again confronted with an opportunity to define the
evolving metes and bounds of the writ of habeas data. May an
employee invoke the remedies available under such writ where an
employer decides to transfer her workplace on the basis of copies of
an anonymous letter posted therein imputing to her disloyalty to
the company and calling for her to leave, which imputation it
investigated but fails to inform her of the details thereof?
Rosario G. Lim (respondent), also known as Cherry Lim, is an
administrative clerk at the Manila Electric Company (MERALCO).
On June 4, 2008, an anonymous letter was posted at the door of the
Metering Office of the Administration building of MERALCO
Plaridel, Bulacan Sector, at which respondent is assigned, denouncing
respondent. The letter reads:
Cherry Lim:
MATAPOS MONG LAMUNIN LAHAT NG BIYAYA NG
MERALCO, NGAYON NAMAN AY GUSTO MONG PALAMON
ANG BUONG KUMPANYA SA MGA BUWAYA NG GOBYERNO.
KAPAL NG MUKHA MO, LUMAYAS KA RITO, WALANG
UTANG NA LOOB.1
Copies of the letter were also inserted in the lockers of MERALCO
linesmen. Informed about it, respondent reported the matter on June
5, 2008 to the Plaridel Station of the Philippine National Police. 2
By Memorandum3 dated July 4, 2008, petitioner Alexander Deyto,
Head of MERALCOs Human Resource Staffing, directed the
transfer of respondent to MERALCOs Alabang Sector in Muntinlupa
as "A/F OTMS Clerk," effective July 18, 2008 in light of the receipt
of " reports that there were accusations and threats directed against
[her] from unknown individuals and which could possibly
compromise [her] safety and security."
Respondent, by letter of July 10, 2008 addressed to petitioner Ruben
A. Sapitula, Vice-President and Head of MERALCOs Human
Resource Administration, appealed her transfer and requested for a
dialogue so she could voice her concerns and misgivings on the
matter, claiming that the "punitive" nature of the transfer amounted to
a denial of due process. Citing the grueling travel from her residence
in Pampanga to Alabang and back entails, and violation of the
provisions on job security of their Collective Bargaining Agreement
(CBA), respondent expressed her thoughts on the alleged threats to
her security in this wise:
xxxx
I feel that it would have been better . . . if you could have intimated to
me the nature of the alleged accusations and threats so that at least I
could have found out if these are credible or even serious. But as you
stated, these came from unknown individuals and the way they were
handled, it appears that the veracity of these accusations and threats
to be [sic] highly suspicious, doubtful or are just mere jokes if they
existed at all.
Assuming for the sake of argument only, that the alleged threats exist
as the management apparently believe, then my transfer to an
unfamiliar place and environment which will make me a "sitting
duck" so to speak, seems to betray the real intent of management
which is contrary to its expressed concern on my security and safety .
. . Thus, it made me think twice on the rationale for managements
initiated transfer. Reflecting further, it appears to me that instead of
the management supposedly extending favor to me, the net result and
effect of management action would be a punitive one.4 (emphasis and
underscoring supplied)
Respondent thus requested for the deferment of the implementation
of her transfer pending resolution of the issues she raised.
No response to her request having been received, respondent filed a
petition5 for the issuance of a writ of habeas data against petitioners
before the Regional Trial Court (RTC) of Bulacan, docketed as SP.
Proc. No. 213-M-2008.
By respondents allegation, petitioners unlawful act and
omission consisting of their continued failure and refusal to provide
her with details or information about the alleged report which
MERALCO purportedly received concerning threats to her safety and
security amount to a violation of her right to privacy in life, liberty
and security, correctible by habeas data. Respondent thus prayed for
the issuance of a writ commanding petitioners to file a written return
containing the following:
a) a full disclosure of the data or information about
respondent in relation to the report purportedly received by
petitioners on the alleged threat to her safety and security;
the nature of such data and the purpose for its collection;
b) the measures taken by petitioners to ensure the
confidentiality of such data or information; and
c) the currency and accuracy of such data or information
obtained.
Additionally, respondent prayed for the issuance of a Temporary
Restraining Order (TRO) enjoining petitioners from effecting her
transfer to the MERALCO Alabang Sector.
By Order6 of August 29, 2008, Branch 7 of the Bulacan RTC directed
petitioners to file their verified written return. And by Order of
September 5, 2008, the trial court granted respondents application
for a TRO.
Petitioners moved for the dismissal of the petition and recall of the
TRO on the grounds that, inter alia, resort to a petition for writ of
habeas data was not in order; and the RTC lacked jurisdiction over
the case which properly belongs to the National Labor Relations
Commission (NLRC).7
By Decision8 of September 22, 2008, the trial court granted the
prayers of respondent including the issuance of a writ of preliminary
injunction directing petitioners to desist from implementing
respondents transfer until such time that petitioners comply with the
disclosures required.
The trial court justified its ruling by declaring that, inter alia, recourse
to a writ of habeas data should extend not only to victims of extra-
legal killings and political activists but also to ordinary citizens, like
respondent whose rights to life and security are jeopardized by
petitioners refusal to provide her with information or data on the
reported threats to her person.
Hence, the present petition for review under Rule 45 of 1997 Rules of
Civil Procedure and the Rule on the Writ of Habeas Data 9 contending
that 1) the RTC lacked jurisdiction over the case and cannot restrain
MERALCOs prerogative as employer to transfer the place of work
of its employees, and 2) the issuance of the writ is outside the
parameters expressly set forth in the Rule on the Writ of Habeas
Data.101avvphi1
Maintaining that the RTC has no jurisdiction over what they contend
is clearly a labor dispute, petitioners argue that "although ingeniously
crafted as a petition for habeas data, respondent is essentially
questioning the transfer of her place of work by her
employer"11 and the terms and conditions of her employment which
arise from an employer-employee relationship over which the NLRC
and the Labor Arbiters under Article 217 of the Labor Code have
jurisdiction.
Petitioners thus maintain that the RTC had no authority to restrain the
implementation of the Memorandum transferring respondents place
of work which is purely a management prerogative, and that OCA-
Circular No. 79-200312 expressly prohibits the issuance of TROs or
injunctive writs in labor-related cases.
In another vein, there is no showing from the facts presented that
petitioners committed any unjustifiable or unlawful violation of
respondents right to privacy vis-a-vis the right to life, liberty or
security. To argue that petitioners refusal to disclose the contents of
reports allegedly received on the threats to respondents safety
amounts to a violation of her right to privacy is at best speculative.
Respondent in fact trivializes these threats and accusations from
unknown individuals in her earlier-quoted portion of her July 10,
2008 letter as "highly suspicious, doubtful or are just mere jokes if
they existed at all."18 And she even suspects that her transfer to
another place of work "betray[s] the real intent of management]" and
could be a "punitive move." Her posture unwittingly concedes that
the issue is labor-related.
WHEREFORE, the petition is GRANTED. The assailed September
22, 2008 Decision of the Bulacan RTC, Branch 7 in SP. Proc. No.
213-M-2008 is hereby REVERSED and SET ASIDE. SP. Proc. No.
213-M-2008 is, accordingly, DISMISSED.
No costs.
SO ORDERED.

Petitioners go on to point out that the Rule on the Writ of Habeas

Data directs the issuance of the writ only against public officials or
employees, or private individuals or entities engaged in the gathering,
collecting or storing of data or information regarding an aggrieved
partys person, family or home; and that MERALCO (or its officers)
is clearly not engaged in such activities.

The petition is impressed with merit.

Respondents plea that she be spared from complying with

MERALCOs Memorandum directing her reassignment to the
Alabang Sector, under the guise of a quest for information or data
allegedly in possession of petitioners, does not fall within the
province of a writ of habeas data.

Section 1 of the Rule on the Writ of Habeas Data provides:

Section 1. 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 or
information regarding the person, family, home and correspondence
of the aggrieved party. (emphasis and underscoring supplied)

The habeas data rule, in general, is designed to protect by means of

judicial complaint the image, privacy, honor, information, and
freedom of information of an individual. It is meant to provide a
forum to enforce ones right to the truth and to informational privacy,
thus safeguarding the constitutional guarantees of a persons right to
life, liberty and security against abuse in this age of information
technology.

It bears reiteration that like the writ of amparo, habeas data was
conceived as a response, given the lack of effective and available
remedies, to address the extraordinary rise in the number of killings
and enforced disappearances. Its intent is to address violations of or
threats to the rights to life, liberty or security as a remedy
independently from those provided under prevailing Rules. 13

Castillo v. Cruz14 underscores the emphasis laid down in Tapuz v. del

Rosario15 that the writs of amparo and habeas data will NOT issue to
protect purely property or commercial concerns nor when the
grounds invoked in support of the petitions therefor are vague or
doubtful.16 Employment constitutes a property right under the context
of the due process clause of the Constitution. 17 It is evident that
respondents reservations on the real reasons for her transfer - a
legitimate concern respecting the terms and conditions of ones
employment - are what prompted her to adopt the extraordinary
remedy of habeas data. Jurisdiction over such concerns is inarguably
lodged by law with the NLRC and the Labor Arbiters.

Republic of the Philippines
SUPREME COURT
Manila
THIRD DIVISION
G.R. No. 202666 September 29, 2014
RHONDA AVE S. VIVARES and SPS. MARGARITA and
DAVID SUZARA, Petitioners,
vs.
ST. THERESA'S COLLEGE, MYLENE RHEZA T.
ESCUDERO, and JOHN DOES, Respondents.
DECISION
VELASCO, JR., J.:
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.
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;
4. Apparel that exposes the underwear;
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 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 ICM6Directress. 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.
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.
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-CEB 8 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;
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
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.
Ruling of the Regional Trial Court
On July 27, 2012, the RTC rendered a Decision dismissing the
petition for habeas data. The dispositive portion of the Decision
pertinently states:
WHEREFORE, in view of the foregoing premises, the Petition is
hereby DISMISSED.
The parties and media must observe the aforestated confidentiality.
xxxx
SO ORDERED.9
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.
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
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 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.
Section 2 of the Rule on the Writ of Habeas Data provides:
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:
(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.
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.
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 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
a. The Right to Informational Privacy
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
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,26promulgated 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.
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
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 videosaccess 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
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 profile 31 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
(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.
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.
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
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.38Otherwise, 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.
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 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 affidavit 41 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
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:
[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."
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:
(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
(2) A good number of Facebook users "befriend" other
users who are total strangers;48
(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 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.
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.
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.
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.54As 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
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. 19251-CEB is hereby AFFIRMED.
No pronouncement as to costs.
SO ORDERED.