HABEAS CORPUS other effect than to hold the prisoner awaiting the approval of the commanding

general; that the commanding general having seen fit to commute the
sentence of twenty years' imprisonment the conviction or sentence under
Republic of the Philippines which the petitioner is serving must be regarded as of date November 20,
SUPREME COURT 1901, and that the case does not come under the provisions of Act No. 272 of
Manila the Philippine Commission.

EN BANC
G.R. No. 1251 March 27, 1903
FRANK MEKIN, petitioner-appellee,
vs.
GEORGE N. WOLFE, Wardent of Bilibid Prison, respondent-appellant.
COOPER, J.:
On the 11th day of February, 1903, application was made by Frank Mekin to
the Hon. B. S. Ambler, judge of the Court of First Instance, for a writ of habeas
corpus against George N. Wolfe, Warden of Bilibid Prison, for the illegal
imprisonment, detention, and confinement of petitioner by the respondent as
warden of said prison, and setting forth in substance the following facts:
That petitioner was a member of the Thirty-seventh Infantry, United States
Volunteers, up to the date of his discharge, which occurred on the ____ day of
February, 1901; that after his discharge, to wit, the 13th day of July, 1901, the
petitioner was tried by a military commission composed of officers of the
United States Regular Army on the charge of entering the service of the
enemy in violation of the laws and was found guilty and sentenced by said
military commission to twenty years of hard labor in the Presidio of Manila,
where he is at present confined. That the military commission acted without
jurisdiction in so trying and sentencing the petitioner for the reason that it had
neither jurisdiction of the person of the petitioner nor jurisdiction of the crime
for which he was tried and sentenced; that at the time of the trial the petitioner
was a civilian, and is therefore entitled to the benefit of the amnesty
proclamation issued by the President of the United States on the 4th day of
July, 1902.
After reviewing the questions as to the jurisdiction of the military commission,
and apparently reaching the conclusion that the military commission had no
jurisdiction to try the petitioner, the judge found that the petitioner came within
the general amnesty proclamation and was entitled to its benefits, and directed
that he be discharged from custody upon his taking and subscribing the oath
of allegiance provided for in the amnesty proclamation.
An appeal was taken by the Government from this decision.
Subsequent to the date of the filing of the application for habeas corpus, but
prior to the date of the trial and of the judgment in the case, the Philippine
Commission promulgated Act No. 654, dated March 4, 1903, by the provisions
of which an appeal in habeas corpus proceedings may be taken from the
judgment of the Court of First Instance to this court, the decision of this court
having previously been that no appeal would lie in such a case in the absence
of a statute authorizing it.
It is contended by counsel for this petitioner that Act No. 654 is in the nature of
an ex post facto law, and having been enacted subsequent to petitioner's right
to the writ of habeas corpus this appeal should not be entertained. This
contention is unsupported by either precedent or principle. It is difficult to
conceive any reason for such a conclusion.
An ex post facto law has been defined as one —
(a) Which makes an action done before the passing of the law and which was
innocent when done criminal, and punishes such action; or
(b) Which aggravates a crime or makes it greater than it was when committed;
or

The writ of habeas corpus was issued and was served upon the respondent, (c) Which damages the punishment and inflicts a greater punishment than the
George N. Wolfe, who made return: That he, as Warden of Bilibid, held said law annexed to the crime when it was committed; or
Frank Mekin imprisoned under authority of the United States of America
(d) Which alters the legal rules of evidence and receives less or different
through the lawful orders of the commanding general, Division of the
testimony than the law required at the time of the commission of the offense in
Philippines, issued by virtue of a lawful sentence of a duly convened military
order to convict the defendant. (Black, Constitutional Law, 595.)
commission, for an offense in violation of the laws of war and against the
United States of America, which conviction and sentence was duly approved
by the convening authority on September 23, 1901, and which sentence was The case nearly does not come within this definition, nor can it be seen in
lawfully commuted to imprisonment at hard labor for the term of twenty years what way the act in question alters the situation of petitioner to his
by the said commanding general of the Division of the Philippines, the record disadvantage. It gives him, as well as the Government, the benefit of the
of which conviction and sentence and the approval thereof of the said appeal, and is intended as furnishing the means for the correction of errors.
The possibility that the judge of the Court of First Instance may commit error in
commuted sentence and order of confinement — in the Presidio of Manila —
his favor and wrongfully discharge him appears to be the only foundation for
was set forth in General Orders, No. 362, dated headquarters Division of the
the claim.
Philippines, Manila, P. I., November 30, 1901, copies of which said record and
said order were attached to the return, and the respondent also attached to his
A person can have no vested right in such a possibility.
return the certificate of George W. Davis, major-general, United States Army,
commanding the Division of the Philippines, and made it a part of his return.
It would be a sufficient answer to the contention of the petitioner that Act No.
654, allowing an appeal, relates to a habeas corpus proceeding. This
The respondent prayed for the dismissal of the writ of habeas corpus,
assigning as a cause that the court was without jurisdiction to issue the writ of character of proceeding is entirely distinct from the criminal proceedings under
habeas corpus for the reason that the said Frank Mekin was held as a prisoner which the prisoner has been tried and convicted. It is a new suit brought by
by virtue of the sentence of the said military commission, awarded prior to petitioner to enforce a civil right which he claims as against those who are
October 1, 1901, and that the issuance of said writ was in contravention of the holding him in custody under the criminal process. The proceeding is one
statute of the Philippine Commission, Act No. 272, entitled "An act amending instituted by himself for his liberty and not by the Government to punish him for
his crime. (Ex parte Tom Tong, 108 U. S., 556.)
chapter 26, relating to proceedings in habeas corpus."
It is distinctly a civil proceeding, and as such is provided for and regulated in
The certificate of George W. Davis, major-general, United States Army,
the Code of Civil Procedure.
commanding in the Philippines, referred to in the return, is as follows:
The doctrine of ex post facto laws refers only to the criminal law.
Headquarters Division of the Philippines, Manila, P. I., February 18, 1903. To
the Hon. B. S. Ambler, judge of the Court of First Instance, Manila, P. I. Sir: I
This case must be determined under the provisions of Act No. 272, "An act
hereby certify that Frank Mekin is held by me as commanding general,
Division of the Philippines, in the Presidio of Manila, and at the expense of the amending chapter 26, relating to proceedings of habeas corpus," enacted by
United States, by virtue of a sentence of a military commission, published in the Philippine Commission on the 21st day of October, 1901. The history of
General Orders, No. 362, dated headquarters Division of the Philippines, the legislation embodied in this act is too recent to require a review of the
Manila, P. I., November 20, 1901, (a copy of which order is herewith circumstances and conditions under which it was enacted. Its purpose was to
submitted), as a prisoner duly sentenced prior to October 1, 1901, by said prevent a conflict of jurisdiction between the civil and military branches of the
Government. By the provisions of this act, when the commanding general or
commission and duly approved by the reviewing authority prior to said date,
any general officer in command of the department or district certifies in answer
and which sentence was duly commuted by the commanding general, Division
of the Philippines, which commutation was duly published in said order, and to a writ of habeas corpus directed a military officer or soldier that the prisoner
is held by him either —
that the said Frank Mekin is a prisoner who was arrested and held for trial
before October 15, 1901, for a violation of the laws of war committed before
(1) As a prisoner of war; or
that date, and is now held by George N. Wolfe, as Warden of Bilibid Prison, as
my agent. Very respectfully, (signed) Geo. W. Davis, General, United States
(2) As a member of the Army, a civil employee thereof, or a camp follower
Army, commanding.
subject to its discipline; or
On February 18, 1903, a hearing of the habeas corpus proceedings was had,
the Government being represented by the Prosecuting Attorney and by the (3) As a prisoner committed by a military court or commision prior to October
Judge-Advocate-General, Divsion of the Philippines, and on the 9th day of 1, 1901; or
March, 1903, the judge of the Court of First Instance rendered his decision, in
(4) As a prisoner arrested and held for trial before a military court or
which it was determined that the approval and commutation of the sentence
commission, before October 15, 1901, for a violation of the laws of war
under which the prisoner is now serving was promulgated on the 20th day of
committed before the same date; or
November, 1901; that the trial before the military commission not being
disclosed by the evidence, the sentence of the military commission had no
Page 1 of 101
(5) As a person guilty of the violation of the laws of was committed in certain
unpacified provinces and territories named —
such certificate shall be a conclusive answer to a writ of habeas corpus
against a military officer or soldier, and a sufficient excuse for not producing
the prisoner.
It is not disputed that the respondent holds the petitioner by and through the
orders of the commanding general Division of the Philippines, and that he is in
the custody of the Unites States Government through the respondent, the
Warden of Bilibid, as the agent and representative of the military, such agency
appears in the certificate of the commanding general and also in the return of
the respondent.
It is equally clear that the certificate of General Davis of date the 18th day of
February, 1903, is in compliance with Act No. 272, from which it appears
distinctly that the petitioner is a prisoner committed by a military commission
prior to October 1, 1901; and further that he is a prisoner arrested and held for
trial before October 15, 1901, for a violation of the laws of war committed
before the same date.
We think the certificate of the commanding general is in strict compliance with
the provisions of the law, and was a conclusive return to the writ of habeas
corpus.
The power of the court to either issue the writ or discharge the prisoner is
ended when such return has been made and the proceedings must there end.
While the power conceded to the commanding general is of vital imprortance
and an abuse of it would be attended with great evil, still, the high position of
those to whom it has been confided was doubtless believed to be a sufficient
guaranty that it would not be exercised except after careful investigation and
with a due appreaciation of the delicate nature of the power reposed in the
commanding general by the legislative authority.
In view of the disposition which the law requires us to make of the case it is
unnecessary to discuss other interesting questions raised by counsel for the
petitioner.
The order and decision of the judge of the Court of First Instance of Manila
ordering that the prisoner be discharged from custody of the respondent must
be reversed, the proceedings dismissed, and the prisoner remanded to the
custody of the respondent. It is so ordered and directed. Costs of proceedings
will be adjudged against the petitioner.
Torres, Willard, Mapa and Ladd, JJ., concur.
Arellano, C. J., Torres, did not sit in this case.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-14639 March 25, 1919
ZACARIAS VILLAVICENCIO, ET AL., petitioners,
vs.
JUSTO LUKBAN, ET AL., respondents.
MALCOLM, J.:
The annals of juridical history fail to reveal a case quite as remarkable as the
one which this application for habeas corpus submits for decision. While
hardly to be expected to be met with in this modern epoch of triumphant
democracy, yet, after all, the cause presents no great difficulty if there is kept
in the forefront of our minds the basic principles of popular government, and if
we give expression to the paramount purpose for which the courts, as an
independent power of such a government, were constituted. The primary
question is — Shall the judiciary permit a government of the men instead of a
government of laws to be set up in the Philippine Islands?
Omitting much extraneous matter, of no moment to these proceedings, but
which might prove profitable reading for other departments of the government,
the facts are these: The Mayor of the city of Manila, Justo Lukban, for the best
of all reasons, to exterminate vice, ordered the segregated district for women
of ill repute, which had been permitted for a number of years in the city of
Manila, closed. Between October 16 and October 25, 1918, the women were
kept confined to their houses in the district by the police. Presumably, during
this period, the city authorities quietly perfected arrangements with the Bureau
of Labor for sending the women to Davao, Mindanao, as laborers; with some
government office for the use of the coastguard cutters Corregidor and
Negros, and with the Constabulary for a guard of soldiers. At any rate, about
midnight of October 25, the police, acting pursuant to orders from the chief of
police, Anton Hohmann and the Mayor of the city of Manila, Justo Lukban,
descended upon the houses, hustled some 170 inmates into patrol wagons,
and placed them aboard the steamers that awaited their arrival. The women
were given no opportunity to collect their belongings, and apparently were
under the impression that they were being taken to a police station for an
investigation. They had no knowledge that they were destined for a life in
Mindanao. They had not been asked if they wished to depart from that region
Page 2 of 101
and had neither directly nor indirectly given their consent to the deportation.
The involuntary guests were received on board the steamers by a
representative of the Bureau of Labor and a detachment of Constabulary
soldiers. The two steamers with their unwilling passengers sailed for Davao
during the night of October 25.
The vessels reached their destination at Davao on October 29. The women
were landed and receipted for as laborers by Francisco Sales, provincial
governor of Davao, and by Feliciano Yñigo and Rafael Castillo. The governor
and the hacendero Yñigo, who appear as parties in the case, had no previous
notification that the women were prostitutes who had been expelled from the
city of Manila. The further happenings to these women and the serious
charges growing out of alleged ill-treatment are of public interest, but are not
essential to the disposition of this case. Suffice it to say, generally, that some
of the women married, others assumed more or less clandestine relations with
men, others went to work in different capacities, others assumed a life
unknown and disappeared, and a goodly portion found means to return to
Manila.
To turn back in our narrative, just about the time the Corregidor and the
Negros were putting in to Davao, the attorney for the relatives and friends of a
considerable number of the deportees presented an application for habeas
corpus to a member of the Supreme Court. Subsequently, the application,
through stipulation of the parties, was made to include all of the women who
were sent away from Manila to Davao and, as the same questions concerned
them all, the application will be considered as including them. The application
set forth the salient facts, which need not be repeated, and alleged that the
women were illegally restrained of their liberty by Justo Lukban, Mayor of the
city of Manila, Anton Hohmann, chief of police of the city of Manila, and by
certain unknown parties. The writ was made returnable before the full court.
The city fiscal appeared for the respondents, Lukban and Hohmann, admitted
certain facts relative to sequestration and deportation, and prayed that the writ
should not be granted because the petitioners were not proper parties,
because the action should have been begun in the Court of First Instance for
Davao, Department of Mindanao and Sulu, because the respondents did not
have any of the women under their custody or control, and because their
jurisdiction did not extend beyond the boundaries of the city of Manila.
According to an exhibit attached to the answer of the fiscal, the 170 women
were destined to be laborers, at good salaries, on the haciendas of Yñigo and
Governor Sales. In open court, the fiscal admitted, in answer to question of a
member of the court, that these women had been sent out of Manila without
their consent. The court awarded the writ, in an order of November 4, that
directed Justo Lukban, Mayor of the city of Manila, Anton Hohmann, chief of
police of the city of Manila, Francisco Sales, governor of the province of
Davao, and Feliciano Yñigo, an hacendero of Davao, to bring before the court
the persons therein named, alleged to be deprived of their liberty, on
December 2, 1918.
Before the date mentioned, seven of the women had returned to Manila at
their own expense. On motion of counsel for petitioners, their testimony was
taken before the clerk of the Supreme Court sitting as commissioners. On the
day named in the order, December 2nd, 1918, none of the persons in whose
behalf the writ was issued were produced in court by the respondents. It has
been shown that three of those who had been able to come back to Manila
through their own efforts, were notified by the police and the secret service to
appear before the court. The fiscal appeared, repeated the facts more
comprehensively, reiterated the stand taken by him when pleading to the
original petition copied a telegram from the Mayor of the city of Manila to the
provincial governor of Davao and the answer thereto, and telegrams that had
passed between the Director of Labor and the attorney for that Bureau then in
Davao, and offered certain affidavits showing that the women were contained
with their life in Mindanao and did not wish to return to Manila. Respondents
Sales answered alleging that it was not possible to fulfill the order of the
Supreme Court because the women had never been under his control,
because they were at liberty in the Province of Davao, and because they had
married or signed contracts as laborers. Respondent Yñigo answered alleging
that he did not have any of the women under his control and that therefore it
was impossible for him to obey the mandate. The court, after due deliberation,
on December 10, 1918, promulgated a second order, which related that the
respondents had not complied with the original order to the satisfaction of the
court nor explained their failure to do so, and therefore directed that those of
the women not in Manila be brought before the court by respondents Lukban,
Hohmann, Sales, and Yñigo on January 13, 1919, unless the women should,
in written statements voluntarily made before the judge of first instance of
Davao or the clerk of that court, renounce the right, or unless the respondents
should demonstrate some other legal motives that made compliance
impossible. It was further stated that the question of whether the respondents
were in contempt of court would later be decided and the reasons for the order
announced in the final decision.
Before January 13, 1919, further testimony including that of a number of the
women, of certain detectives and policemen, and of the provincial governor of
Davao, was taken before the clerk of the Supreme Court sitting as
commissioner and the clerk of the Court of First Instance of Davao acting in
the same capacity. On January 13, 1919, the respondents technically
presented before the Court the women who had returned to the city through
their own efforts and eight others who had been brought to Manila by the
respondents. Attorneys for the respondents, by their returns, once again
recounted the facts and further endeavored to account for all of the persons
involved in the habeas corpus. In substance, it was stated that the
respondents, through their representatives and agents, had succeeded in
bringing from Davao with their consent eight women; that eighty-one women
were found in Davao who, on notice that if they desired they could return to
Manila, transportation fee, renounced the right through sworn statements; that
fifty-nine had already returned to Manila by other means, and that despite all
efforts to find them twenty-six could not be located. Both counsel for
petitioners and the city fiscal were permitted to submit memoranda. The first
formally asked the court to find Justo Lukban, Mayor of the city of Manila,
Anton Hohmann, chief of police of the city of Manila, Jose Rodriguez and
Fernando Ordax, members of the police force of the city of Manila, Feliciano
Yñigo, an hacendero of Davao, Modesto Joaquin, the attorney for the Bureau
of Labor, and Anacleto Diaz, fiscal of the city of Manila, in contempt of court.
The city fiscal requested that the replica al memorandum de los recurridos,
(reply to respondents' memorandum) dated January 25, 1919, be struck from
the record.
In the second order, the court promised to give the reasons for granting the
writ of habeas corpus in the final decision. We will now proceed to do so.
One fact, and one fact only, need be recalled — these one hundred and
seventy women were isolated from society, and then at night, without their
consent and without any opportunity to consult with friends or to defend their
rights, were forcibly hustled on board steamers for transportation to regions
unknown. Despite the feeble attempt to prove that the women left voluntarily
and gladly, that such was not the case is shown by the mere fact that the
presence of the police and the constabulary was deemed necessary and that
these officers of the law chose the shades of night to cloak their secret and
stealthy acts. Indeed, this is a fact impossible to refute and practically admitted
by the respondents.
With this situation, a court would next expect to resolve the question — By
authority of what law did the Mayor and the Chief of Police presume to act in
deporting by duress these persons from Manila to another distant locality
within the Philippine Islands? We turn to the statutes and we find —
Alien prostitutes can be expelled from the Philippine Islands in conformity with
an Act of congress. The Governor-General can order the eviction of
undesirable aliens after a hearing from the Islands. Act No. 519 of the
Philippine Commission and section 733 of the Revised Ordinances of the city
of Manila provide for the conviction and punishment by a court of justice of any
person who is a common prostitute. Act No. 899 authorizes the return of any
citizen of the United States, who may have been convicted of vagrancy, to the
homeland. New York and other States have statutes providing for the
commitment to the House of Refuge of women convicted of being common
prostitutes. Always a law! Even when the health authorities compel
vaccination, or establish a quarantine, or place a leprous person in the Culion
leper colony, it is done pursuant to some law or order. But one can search in
vain for any law, order, or regulation, which even hints at the right of the Mayor
of the city of Manila or the chief of police of that city to force citizens of the
Philippine Islands — and these women despite their being in a sense lepers of
society are nevertheless not chattels but Philippine citizens protected by the
same constitutional guaranties as are other citizens — to change their
domicile from Manila to another locality. On the contrary, Philippine penal law
specifically punishes any public officer who, not being expressly authorized by
law or regulation, compels any person to change his residence.
In other countries, as in Spain and Japan, the privilege of domicile is deemed
so important as to be found in the Bill of Rights of the Constitution. Under the
American constitutional system, liberty of abode is a principle so deeply
imbedded in jurisprudence and considered so elementary in nature as not
even to require a constitutional sanction. Even the Governor-General of the
Philippine Islands, even the President of the United States, who has often
been said to exercise more power than any king or potentate, has no such
arbitrary prerogative, either inherent or express. Much less, therefore, has the
executive of a municipality, who acts within a sphere of delegated powers. If
the mayor and the chief of police could, at their mere behest or even for the
most praiseworthy of motives, render the liberty of the citizen so insecure, then
the presidents and chiefs of police of one thousand other municipalities of the
Philippines have the same privilege. If these officials can take to themselves
such power, then any other official can do the same. And if any official can
exercise the power, then all persons would have just as much right to do so.
And if a prostitute could be sent against her wishes and under no law from one
locality to another within the country, then officialdom can hold the same club
over the head of any citizen.
Law defines power. Centuries ago Magna Charta decreed that — "No freeman
shall be taken, or imprisoned, or be disseized of his freehold, or liberties, or
free customs, or be outlawed, or exiled, or any other wise destroyed; nor will
we pass upon him nor condemn him, but by lawful judgment of his peers or by
the law of the land. We will sell to no man, we will not deny or defer to any
man either justice or right." (Magna Charta, 9 Hen., 111, 1225, Cap. 29; 1 eng.
stat. at Large, 7.) No official, no matter how high, is above the law. The courts
are the forum which functionate to safeguard individual liberty and to punish
official transgressors. "The law," said Justice Miller, delivering the opinion of
the Supreme Court of the United States, "is the only supreme power in our
system of government, and every man who by accepting office participates in
its functions is only the more strongly bound to submit to that supremacy, and
to observe the limitations which it imposes upon the exercise of the authority
which it gives." (U.S. vs. Lee [1882], 106 U.S., 196, 220.) "The very idea," said
Justice Matthews of the same high tribunal in another case, "that one man
may be compelled to hold his life, or the means of living, or any material right
essential to the enjoyment of life, at the mere will of another, seems to be
intolerable in any country where freedom prevails, as being the essence of
slavery itself." (Yick Wo vs. Hopkins [1886], 118 U.S., 356, 370.) All this
explains the motive in issuing the writ of habeas corpus, and makes clear why
we said in the very beginning that the primary question was whether the courts
Page 3 of 101
should permit a government of men or a government of laws to be established
in the Philippine Islands.
What are the remedies of the unhappy victims of official oppression? The
remedies of the citizen are three: (1) Civil action; (2) criminal action, and (3)
habeas corpus.
The first is an optional but rather slow process by which the aggrieved party
may recoup money damages. It may still rest with the parties in interest to
pursue such an action, but it was never intended effectively and promptly to
meet any such situation as that now before us.
As to criminal responsibility, it is true that the Penal Code in force in these
Islands provides:
Any public officer not thereunto authorized by law or by regulations of a
general character in force in the Philippines who shall banish any person to a
place more than two hundred kilometers distant from his domicile, except it be
by virtue of the judgment of a court, shall be punished by a fine of not less
than three hundred and twenty-five and not more than three thousand two
hundred and fifty pesetas.
Any public officer not thereunto expressly authorized by law or by regulation of
a general character in force in the Philippines who shall compel any person to
change his domicile or residence shall suffer the penalty of destierro and a fine
of not less than six hundred and twenty-five and not more than six thousand
two hundred and fifty pesetas. (Art. 211.)
We entertain no doubt but that, if, after due investigation, the proper
prosecuting officers find that any public officer has violated this provision of
law, these prosecutors will institute and press a criminal prosecution just as
vigorously as they have defended the same official in this action.
Nevertheless, that the act may be a crime and that the persons guilty thereof
can be proceeded against, is no bar to the instant proceedings. To quote the
words of Judge Cooley in a case which will later be referred to — "It would be
a monstrous anomaly in the law if to an application by one unlawfully confined,
ta be restored to his liberty, it could be a sufficient answer that the confinement
was a crime, and therefore might be continued indefinitely until the guilty party
was tried and punished therefor by the slow process of criminal procedure." (In
the matter of Jackson [1867], 15 Mich., 416, 434.) The writ of habeas corpus
was devised and exists as a speedy and effectual remedy to relieve persons
from unlawful restraint, and as the best and only sufficient defense of personal
freedom. Any further rights of the parties are left untouched by decision on the
writ, whose principal purpose is to set the individual at liberty.
Granted that habeas corpus is the proper remedy, respondents have raised
three specific objections to its issuance in this instance. The fiscal has argued
(l) that there is a defect in parties petitioners, (2) that the Supreme Court
should not a assume jurisdiction, and (3) that the person in question are not
restrained of their liberty by respondents. It was finally suggested that the
jurisdiction of the Mayor and the chief of police of the city of Manila only
extends to the city limits and that perforce they could not bring the women
from Davao.
The first defense was not presented with any vigor by counsel. The petitioners
were relatives and friends of the deportees. The way the expulsion was
conducted by the city officials made it impossible for the women to sign a
petition for habeas corpus. It was consequently proper for the writ to be
submitted by persons in their behalf. (Code of Criminal Procedure, sec. 78;
Code of Civil Procedure, sec. 527.) The law, in its zealous regard for personal
liberty, even makes it the duty of a court or judge to grant a writ of habeas
corpus if there is evidence that within the court's jurisdiction a person is
unjustly imprisoned or restrained of his liberty, though no application be made
therefor. (Code of Criminal Procedure, sec. 93.) Petitioners had standing in
court.
The fiscal next contended that the writ should have been asked for in the
Court of First Instance of Davao or should have been made returnable before
that court. It is a general rule of good practice that, to avoid unnecessary
expense and inconvenience, petitions for habeas corpus should be presented
to the nearest judge of the court of first instance. But this is not a hard and fast
rule. The writ of habeas corpus may be granted by the Supreme Court or any
judge thereof enforcible anywhere in the Philippine Islands. (Code of Criminal
Procedure, sec. 79; Code of Civil Procedure, sec. 526.) Whether the writ shall
be made returnable before the Supreme Court or before an inferior court rests
in the discretion of the Supreme Court and is dependent on the particular
circumstances. In this instance it was not shown that the Court of First
Instance of Davao was in session, or that the women had any means by which
to advance their plea before that court. On the other hand, it was shown that
the petitioners with their attorneys, and the two original respondents with their
attorney, were in Manila; it was shown that the case involved parties situated
in different parts of the Islands; it was shown that the women might still be
imprisoned or restrained of their liberty; and it was shown that if the writ was to
accomplish its purpose, it must be taken cognizance of and decided
immediately by the appellate court. The failure of the superior court to consider
the application and then to grant the writ would have amounted to a denial of
the benefits of the writ.
The last argument of the fiscal is more plausible and more difficult to meet.
When the writ was prayed for, says counsel, the parties in whose behalf it was
asked were under no restraint; the women, it is claimed, were free in Davao,
and the jurisdiction of the mayor and the chief of police did not extend beyond
the city limits. At first blush, this is a tenable position. On closer examination,
acceptance of such dictum is found to be perversive of the first principles of
the writ of habeas corpus.
A prime specification of an application for a writ of habeas corpus is restraint
of liberty. The essential object and purpose of the writ of habeas corpus is to
inquire into all manner of involuntary restraint as distinguished from voluntary,
and to relieve a person therefrom if such restraint is illegal. Any restraint which
will preclude freedom of action is sufficient. The forcible taking of these women
from Manila by officials of that city, who handed them over to other parties,
who deposited them in a distant region, deprived these women of freedom of
locomotion just as effectively as if they had been imprisoned. Placed in Davao
without either money or personal belongings, they were prevented from
exercising the liberty of going when and where they pleased. The restraint of
liberty which began in Manila continued until the aggrieved parties were
returned to Manila and released or until they freely and truly waived his right.
Consider for a moment what an agreement with such a defense would mean.
The chief executive of any municipality in the Philippines could forcibly and
illegally take a private citizen and place him beyond the boundaries of the
municipality, and then, when called upon to defend his official action, could
calmly fold his hands and claim that the person was under no restraint and
that he, the official, had no jurisdiction over this other municipality. We believe
the true principle should be that, if the respondent is within the jurisdiction of
the court and has it in his power to obey the order of the court and thus to
undo the wrong that he has inflicted, he should be compelled to do so. Even if
the party to whom the writ is addressed has illegally parted with the custody of
a person before the application for the writ is no reason why the writ should
not issue. If the mayor and the chief of police, acting under no authority of law,
could deport these women from the city of Manila to Davao, the same officials
must necessarily have the same means to return them from Davao to Manila.
The respondents, within the reach of process, may not be permitted to restrain
a fellow citizen of her liberty by forcing her to change her domicile and to avow
the act with impunity in the courts, while the person who has lost her birthright
of liberty has no effective recourse. The great writ of liberty may not thus be
easily evaded.
It must be that some such question has heretofore been presented to the
courts for decision. Nevertheless, strange as it may seem, a close examination
of the authorities fails to reveal any analogous case. Certain decisions of
respectable courts are however very persuasive in nature.
A question came before the Supreme Court of the State of Michigan at an
early date as to whether or not a writ of habeas corpus would issue from the
Supreme Court to a person within the jurisdiction of the State to bring into the
State a minor child under guardianship in the State, who has been and
continues to be detained in another State. The membership of the Michigan
Supreme Court at this time was notable. It was composed of Martin, chief
justice, and Cooley, Campbell, and Christiancy, justices. On the question
presented the court was equally divided. Campbell, J., with whom concurred
Martin, C. J., held that the writ should be quashed. Cooley, J., one of the most
distinguished American judges and law-writers, with whom concurred
Christiancy, J., held that the writ should issue. Since the opinion of Justice
Campbell was predicated to a large extent on his conception of the English
decisions, and since, as will hereafter appear, the English courts have taken a
contrary view, only the following eloquent passages from the opinion of Justice
Cooley are quoted:
I have not yet seen sufficient reason to doubt the power of this court to issue
the present writ on the petition which was laid before us. . . .
It would be strange indeed if, at this late day, after the eulogiums of six
centuries and a half have been expended upon the Magna Charta, and rivers
of blood shed for its establishment; after its many confirmations, until Coke
could declare in his speech on the petition of right that "Magna Charta was
such a fellow that he will have no sovereign," and after the extension of its
benefits and securities by the petition of right, bill of rights and habeas corpus
acts, it should now be discovered that evasion of that great clause for the
protection of personal liberty, which is the life and soul of the whole
instrument, is so easy as is claimed here. If it is so, it is important that it be
determined without delay, that the legislature may apply the proper remedy, as
I can not doubt they would, on the subject being brought to their notice. . . .
The second proposition — that the statutory provisions are confined to the
case of imprisonment within the state — seems to me to be based upon a
misconception as to the source of our jurisdiction. It was never the case in
England that the court of king's bench derived its jurisdiction to issue and
enforce this writ from the statute. Statutes were not passed to give the right,
but to compel the observance of rights which existed. . . .
The important fact to be observed in regard to the mode of procedure upon
this writ is, that it is directed to and served upon, not the person confined, but
his jailor. It does not reach the former except through the latter. The officer or
person who serves it does not unbar the prison doors, and set the prisoner
free, but the court relieves him by compelling the oppressor to release his
constraint. The whole force of the writ is spent upon the respondent, and if he
fails to obey it, the means to be resorted to for the purposes of compulsion are
fine and imprisonment. This is the ordinary mode of affording relief, and if any
other means are resorted to, they are only auxiliary to those which are usual.
The place of confinement is, therefore, not important to the relief, if the guilty
party is within reach of process, so that by the power of the court he can be
compelled to release his grasp. The difficulty of affording redress is not
increased by the confinement being beyond the limits of the state, except as
greater distance may affect it. The important question is, where the power of
Page 4 of 101
control exercised? And I am aware of no other remedy. (In the matter of
Jackson [1867], 15 Mich., 416.)
The opinion of Judge Cooley has since been accepted as authoritative by
other courts. (Rivers vs. Mitchell [1881], 57 Iowa, 193; Breene vs. People
[1911], Colo., 117 Pac. Rep., 1000; Ex parte Young [1892], 50 Fed., 526.)
The English courts have given careful consideration to the subject. Thus, a
child had been taken out of English by the respondent. A writ of habeas
corpus was issued by the Queen's Bench Division upon the application of the
mother and her husband directing the defendant to produce the child. The
judge at chambers gave defendant until a certain date to produce the child, but
he did not do so. His return stated that the child before the issuance of the writ
had been handed over by him to another; that it was no longer in his custody
or control, and that it was impossible for him to obey the writ. He was found in
contempt of court. On appeal, the court, through Lord Esher, M. R., said:
A writ of habeas corpus was ordered to issue, and was issued on January 22.
That writ commanded the defendant to have the body of the child before a
judge in chambers at the Royal Courts of Justice immediately after the receipt
of the writ, together with the cause of her being taken and detained. That is a
command to bring the child before the judge and must be obeyed, unless
some lawful reason can be shown to excuse the nonproduction of the child. If
it could be shown that by reason of his having lawfully parted with the
possession of the child before the issuing of the writ, the defendant had no
longer power to produce the child, that might be an answer; but in the absence
of any lawful reason he is bound to produce the child, and, if he does not, he is
in contempt of the Court for not obeying the writ without lawful excuse. Many
efforts have been made in argument to shift the question of contempt to some
anterior period for the purpose of showing that what was done at some time
prior to the writ cannot be a contempt. But the question is not as to what was
done before the issue of the writ. The question is whether there has been a
contempt in disobeying the writ it was issued by not producing the child in
obedience to its commands. (The Queen vs. Bernardo [1889], 23 Q. B. D.,
305. See also to the same effect the Irish case of In re Matthews, 12 Ir. Com.
Law Rep. [N. S.], 233; The Queen vs. Barnardo, Gossage's Case [1890], 24
Q. B. D., 283.)
A decision coming from the Federal Courts is also of interest. A habeas corpus
was directed to the defendant to have before the circuit court of the District of
Columbia three colored persons, with the cause of their detention. Davis, in his
return to the writ, stated on oath that he had purchased the negroes as slaves
in the city of Washington; that, as he believed, they were removed beyond the
District of Columbia before the service of the writ of habeas corpus, and that
they were then beyond his control and out of his custody. The evidence
tended to show that Davis had removed the negroes because he suspected
they would apply for a writ of habeas corpus. The court held the return to be
evasive and insufficient, and that Davis was bound to produce the negroes,
and Davis being present in court, and refusing to produce them, ordered that
he be committed to the custody of the marshall until he should produce the
negroes, or be otherwise discharged in due course of law. The court
afterwards ordered that Davis be released upon the production of two of the
negroes, for one of the negroes had run away and been lodged in jail in
Maryland. Davis produced the two negroes on the last day of the term. (United
States vs. Davis [1839], 5 Cranch C.C., 622, Fed. Cas. No. 14926. See also
Robb vs. Connolly [1883], 111 U.S., 624; Church on Habeas, 2nd ed., p. 170.)
We find, therefore, both on reason and authority, that no one of the defense
offered by the respondents constituted a legitimate bar to the granting of the
writ of habeas corpus.
There remains to be considered whether the respondent complied with the two
orders of the Supreme Court awarding the writ of habeas corpus, and if it be
found that they did not, whether the contempt should be punished or be taken
as purged.
The first order, it will be recalled, directed Justo Lukban, Anton Hohmann,
Francisco Sales, and Feliciano Yñigo to present the persons named in the writ
before the court on December 2, 1918. The order was dated November 4,
1918. The respondents were thus given ample time, practically one month, to
comply with the writ. As far as the record discloses, the Mayor of the city of
Manila waited until the 21st of November before sending a telegram to the
provincial governor of Davao. According to the response of the attorney for the
Bureau of Labor to the telegram of his chief, there were then in Davao women
who desired to return to Manila, but who should not be permitted to do so
because of having contracted debts. The half-hearted effort naturally resulted
in none of the parties in question being brought before the court on the day
named.
For the respondents to have fulfilled the court's order, three optional courses
were open: (1) They could have produced the bodies of the persons according
to the command of the writ; or (2) they could have shown by affidavit that on
account of sickness or infirmity those persons could not safely be brought
before the court; or (3) they could have presented affidavits to show that the
parties in question or their attorney waived the right to be present. (Code of
Criminal Procedure, sec. 87.) They did not produce the bodies of the persons
in whose behalf the writ was granted; they did not show impossibility of
performance; and they did not present writings that waived the right to be
present by those interested. Instead a few stereotyped affidavits purporting to
show that the women were contended with their life in Davao, some of which
have since been repudiated by the signers, were appended to the return. That
through ordinary diligence a considerable number of the women, at least sixty,
could have been brought back to Manila is demonstrated to be found in the
municipality of Davao, and that about this number either returned at their own
expense or were produced at the second hearing by the respondents.
The court, at the time the return to its first order was made, would have been
warranted summarily in finding the respondents guilty of contempt of court,
and in sending them to jail until they obeyed the order. Their excuses for the
non-production of the persons were far from sufficient. The, authorities cited
herein pertaining to somewhat similar facts all tend to indicate with what
exactitude a habeas corpus writ must be fulfilled. For example, in Gossage's
case, supra, the Magistrate in referring to an earlier decision of the Court, said:
"We thought that, having brought about that state of things by his own illegal
act, he must take the consequences; and we said that he was bound to use
every effort to get the child back; that he must do much more than write letters
for the purpose; that he must advertise in America, and even if necessary
himself go after the child, and do everything that mortal man could do in the
matter; and that the court would only accept clear proof of an absolute
impossibility by way of excuse." In other words, the return did not show that
every possible effort to produce the women was made by the respondents.
That the court forebore at this time to take drastic action was because it did
not wish to see presented to the public gaze the spectacle of a clash between
executive officials and the judiciary, and because it desired to give the
respondents another chance to demonstrate their good faith and to mitigate
their wrong.
In response to the second order of the court, the respondents appear to have
become more zealous and to have shown a better spirit. Agents were
dispatched to Mindanao, placards were posted, the constabulary and the
municipal police joined in rounding up the women, and a steamer with free
transportation to Manila was provided. While charges and counter-charges in
such a bitterly contested case are to be expected, and while a critical reading
of the record might reveal a failure of literal fulfillment with our mandate, we
come to conclude that there is a substantial compliance with it. Our finding to
this effect may be influenced somewhat by our sincere desire to see this
unhappy incident finally closed. If any wrong is now being perpetrated in
Davao, it should receive an executive investigation. If any particular individual
is still restrained of her liberty, it can be made the object of separate habeas
corpus proceedings.
Since the writ has already been granted, and since we find a substantial
compliance with it, nothing further in this connection remains to be done.
The attorney for the petitioners asks that we find in contempt of court Justo
Lukban, Mayor of the city of Manila, Anton Hohmann, chief of police of the city
of Manila, Jose Rodriguez, and Fernando Ordax, members of the police force
of the city of Manila, Modesto Joaquin, the attorney for the Bureau of Labor,
Feliciano Yñigo, an hacendero of Davao, and Anacleto Diaz, Fiscal of the city
of Manila.
The power to punish for contempt of court should be exercised on the
preservative and not on the vindictive principle. Only occasionally should the
court invoke its inherent power in order to retain that respect without which the
administration of justice must falter or fail. Nevertheless when one is
commanded to produce a certain person and does not do so, and does not
offer a valid excuse, a court must, to vindicate its authority, adjudge the
respondent to be guilty of contempt, and must order him either imprisoned or
fined. An officer's failure to produce the body of a person in obedience to a writ
of habeas corpus when he has power to do so, is a contempt committed in the
face of the court. (Ex parte Sterns [1888], 77 Cal., 156; In re Patterson [1888],
99 N. C., 407.)
With all the facts and circumstances in mind, and with judicial regard for
human imperfections, we cannot say that any of the respondents, with the
possible exception of the first named, has flatly disobeyed the court by acting
in opposition to its authority. Respondents Hohmann, Rodriguez, Ordax, and
Joaquin only followed the orders of their chiefs, and while, under the law of
public officers, this does not exonerate them entirely, it is nevertheless a
powerful mitigating circumstance. The hacendero Yñigo appears to have been
drawn into the case through a misconstruction by counsel of telegraphic
communications. The city fiscal, Anacleto Diaz, would seem to have done no
more than to fulfill his duty as the legal representative of the city government.
Finding him innocent of any disrespect to the court, his counter-motion to
strike from the record the memorandum of attorney for the petitioners, which
brings him into this undesirable position, must be granted. When all is said and
done, as far as this record discloses, the official who was primarily responsible
for the unlawful deportation, who ordered the police to accomplish the same,
who made arrangements for the steamers and the constabulary, who
conducted the negotiations with the Bureau of Labor, and who later, as the
head of the city government, had it within his power to facilitate the return of
the unfortunate women to Manila, was Justo Lukban, the Mayor of the city of
Manila. His intention to suppress the social evil was commendable. His
methods were unlawful. His regard for the writ of habeas corpus issued by the
court was only tardily and reluctantly acknowledged.
It would be possible to turn to the provisions of section 546 of the Code of Civil
Procedure, which relates to the penalty for disobeying the writ, and in
pursuance thereof to require respondent Lukban to forfeit to the parties
aggrieved as much as P400 each, which would reach to many thousands of
pesos, and in addition to deal with him as for a contempt. Some members of
the court are inclined to this stern view. It would also be possible to find that
since respondent Lukban did comply substantially with the second order of the
court, he has purged his contempt of the first order. Some members of the
court are inclined to this merciful view. Between the two extremes appears to
lie the correct finding. The failure of respondent Lukban to obey the first
Page 5 of 101
mandate of the court tended to belittle and embarrass the administration of
justice to such an extent that his later activity may be considered only as
extenuating his conduct. A nominal fine will at once command such respect
without being unduly oppressive — such an amount is P100.
In resume — as before stated, no further action on the writ of habeas corpus is
necessary. The respondents Hohmann, Rodriguez, Ordax, Joaquin, Yñigo,
and Diaz are found not to be in contempt of court. Respondent Lukban is
found in contempt of court and shall pay into the office of the clerk of the
Supreme Court within five days the sum of one hundred pesos (P100). The
motion of the fiscal of the city of Manila to strike from the record the Replica al
Memorandum de los Recurridos of January 25, 1919, is granted. Costs shall
be taxed against respondents. So ordered.
In concluding this tedious and disagreeable task, may we not be permitted to
express the hope that this decision may serve to bulwark the fortifications of
an orderly government of laws and to protect individual liberty from illegal
encroachment.
Arellano, C.J., Avanceña and Moir, JJ., concur.
Johnson, and Street, JJ., concur in the result.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-4855 October 11, 1951
JOSE M. NAVA ET AL., petitioners,
vs.
HON. MAGNO GATMAITAN, ETC., respondent.
x---------------------------------------------------------x
G.R. No. L-4964 October 11, 1951
AMADO V. HERNANDEZ, petitioner, vs. HON, AGUSTIN P. MONTESA,
ETC., respondent.
x---------------------------------------------------------x
G.R. No. L-5102 October 11, 1951
EUGENIO ANGELES, ETC., petitioner, vs. HON. GAVINO S. ABAYA, ETC.,
respondent.
PARAS, C.J.:
By express mandate of the Constitution (Article III, Section 1, Paragraph 14),
the privilege of the writ of habeas corpus shall not be suspended except in
cases of invasion, insurrection, or rebellion, when the public safety requires it,
in any of which events the same may be suspended whenever during such
period the necessity for such suspension shall exist. The power to suspend
the privileges of the writ of habeas corpus in case of invasion, insurrection, or
rebellion, or imminent danger thereof, when the public safety requires it, has
been lodged by the Constitution (Article VII, Section 10, Paragraph 2) in the
President.
On January 31, 1905, for the first time in Philippine history, the writ of habeas
corpus was suspended in the provinces of Batangas and Cavite under the
following Executive Order issued by governor General Luke E. Wright:
WHEREAS, certain organized bands of ladrones exist in the Provinces of
Cavite and Batangas who are levying forced contributions upon the people,
who frequently require them, under compulsion, to join their bands, and who
kill or maim the most barbarous manner those who fail to respond to their
unlawful demands, and are therefore terrifying the law-abiding and inoffensive
people of those provinces; and
WHEREAS, these bands have in several instances attacked police and
constabulary detachments, and are in open insurrection against the
constituted authorities, and it is believed that the said bands have numerous
agents and confederates living within the municipalities of said provinces; and
WHEREAS, because of the foregoing conditions there exists a state of
insecurity and terrorism among the people which makes it impossible in the
ordinary way to conduct preliminary investigations before the justices of the
peace and other judicial officers:
In the interest of public safety, it is hereby ordered that the writ of habeas
corpus is from this date suspended in the Provinces of Cavite and Batangas.
On October 22, 1950, for the second time in the Philippine history, the
suspension of the privilege of the writ of habeas corpus was decreed by virtue
of the following Proclamation No. 210 issued by the President:
WHEREAS, lawless elements of the country have committed overt acts of
sedition, insurrection and rebellion for the purpose of overthrowing the duly
constituted authorities and, in pursuance thereof, have created a state of
lawlessness and disorder affecting public safety and the security of the state;
WHEREAS, these acts of sedition, insurrection and rebellion consisiting of
armed raids, sorties and ambushes and the wanton acts of murder, rape,
spoilage, looting, arson, planned destruction of public and private buildings,
and attacks against civilian lives and properties, as reported by the
Commanding General of the Armed Forces, have seriously endangered and
still continue to endanger the public safety;
WHEREAS, these acts of sedition, insurrection and rebellion have been
perpetrated by various groups of persons well organized for concerted action
and well armed with machine guns, rifles, pistols and other automatic
weapons, by reason whereof there is actual danger of rebellion which may
extend throughout the country;
WHEREAS, 100 leading members of these lawless elements have been
apprehended and are presently under detention, and strong and convincing
evidence has been found in their possession to show that they are engaged in
rebellious, seditiuos and otherwise subersive acts as above set forth; and
WHEREAS, public safety requires that immediate and effective action be
taken to insure the peace and security of the population and to maintain the
authority of the government;
NOW, THEREFORE, I, ELPIDIO QUIRINO, President of the Philippines, by
virtue of the powers vested upon me by Article VII, section 10, Paragraph (2)
of the Constitution, do hereby suspend the privilege of the writ of habeas
corpus for the persons presently detained, as well as all others who may be
hereafter similarly detained for the crimes of sedition, insurrection or rebellion,
and all other crimes and offenses committed by them in furtherance or on the
occassion thereof, or incident thereto, or in connection therewith.
The writ of habeas corpus was devised and exists as a speedy and effectual
remedy to relive persons from unlawful restraint, and as the best and only
sufficient defense of personal freedom. (Villavicencio vs, Lukban, 39 Phil.,
778,788.) It secures to a prisoner the right to have the cause of his detention
examined and determined by a court of justice, and to have ascertained if he
is held under lawful authority. (Quintos vs. Director of Prisons, 55 Phil., 304,
306.)
The necessity for suspending the writ of habeas corpus in 1905 arose
obviously from the fact that it was "impossible in the ordinary way to conduct
preliminary investigations before the justice of the peace and other judicial
officers," so that undoubtedly it was never aimed at the indefinite detention of
suspects, but at an investigation (other than judicial) to determine whether
there is evidence sufficient for the filing in court of the necessary information.
The immediate cause for the issuance of Proclamation No. 210 on October 22,
1950, was the apprehension and detention of 100 alleged leading members of
lawless elements in whose possession strong and convincing evidence was
allegedly found showing that they are engaged in rebellious, seditious and
otherwise subversive acts. The privilege of the writ of habeas corpus had to be
suspended not only because it was desirable for the prosecuting officials to
have sufficient time to investigate and file the necessary charges in court, but
also because a public officer or employee who shall detain any person for
some legal ground and shall fail to deliver such person to the proper judicial
authorities within the period of six hours, shall suffer the penalties provided in
article 125 of the Revised Penal Code. In other words, the only effect of
Proclamation No. 210 is that any person detained thereunder has no right to
have the cause of his detention examined and determined by a court of justice
through a writ of habeas corpus.
The important question is whether or not, after a person covered by the
Proclamation has been formally indicted in court by the filing against him of an
information charging rebellion with multiple murder, arson and robberies, he
may be entitled to bail.
Under paragraph 16, Section 1, Areticle II of the Constitution, all persons shall
before conviction be bailable by sufficientsureties, except those charged with
capital offenses when evidence of guilt is strong. The crime of rebellion or
insurrection is certainly not a capital offense, because it is penalized only by
prision mayor and a fine not to exceed 20,000pesos. The privilege of the writ
of habeas corpus and the right to bail guaranteed under the Bill of Rights are
separate and co-equal. If the intention of the framers of the Constitution was
that the suspension of the privilege of the writ of habeas corpus carries or
implies the suspension of the right to bail, they would have very easily
provided that all persons shall before conviction be bailable by sufficient
sureties, except those charged with capital offenses when evidence of guilt is
strong and except when the privilege of the writ of habeas corpus is
suspended. As stated in the case of Ex parte Miligan, 4 Wall. 2, 18 Law Ed.
297, the Constitution limited the suspension to only one great right, leaving the
rest to remain forever inviolable.
It is essential to the safety of every government that, in a great crisis, like the
one we have just passed through, there should be a power somewhere of
suspending the writ of habeas corpus. In every war, there are men of
previously good character, wicked enough to counsel their fellow citizens to
resist the measures deemed necessary by a good government to sustain its
just authority and overthrow its enemies; and their influence may lead to
dangerous combinations. In the emergency of the times, an immediate public
investigation according to law may not be possible; and yet, the peril to the
country may be too imminent to suffer such persons to go at large.
Unquestionably, there is then an exigency which demands that the
government, if it should see fit, in the exercise of a proper discretion, to make
Page 6 of 101
arrests, should not be required to produce the person arrested in answer to a
writ of habeas corpus. The constitution goes no further. It does not say after a
writ of habeas corpus is denied a citizen, that he shall be tried otherwise than
by the course of common law. If it had intended this result, it was easy by the
use of direct words to have accomplished it. The illustrious men who framed
that instrument were guarding the foundations of civil liberty against the
abuses of unlimited power; they were full of wisdom, and the lessons of history
informed them that a trial by an established court, asisted by an impartial jury,
was the only sure way of protecting the citizen against oppression and wrong.
Knowing this, they limited the suspension of one great right, and left the rest to
remain forever inviolable.
The purpose of the proclamation has already been accomplished inrespect of
those who are now facing charges in court, to be dealtwith necessarily in
accordance with the constitution and the law.The court, in passing upon
petitions to bail and granting thesame in proper cases, does not inquire into
the cause of their detention which is plainly under and by virtue of
commitmentsissued by the court upon the filing of the information forrebellion
with multiple murder, arson and robberies. The court, therefore, cannot be said
to be interfering in an act of theExecutive, for it cannot be seriously contended
that, after thefiling of the information, the accused continues to be
underdetention as a result of an executive commitment and stillcovered by the
suspension of the privilege of the writ of habeas corpus. otherwise, the
suspension will operate as a judgment of conviction, in violation of the
constitutional mandate that no person shall be held to answer for criminal
offense without due process of law (Article III, section 1, Paragraph 15). "The
laws which protect the liberties of the whole people must not be violated or set
aside in order to inflict, even upon the guilty, unauthorized though merited
justice." Ex parte Milligan, supra.
The right to bail, along with the right of an accused to be heard by himself and
counsel, to be informed of the nature and cause of the accusation against him,
to have a speedy and public trial, to meet the witnesses face to face, and to
have compulsory process to secure the attendance of witnesses in his behalf
(Article III, Section 1, Paragraph 17, of the Constitution), tends to aid the
accused to prove his innocence and obtain acquittal. If it be contended that the
suspension of the privilege of the writ of habeas corpus includes the
suspension of the distinct right to bail or to be provisionally at liberty, it would a
fortiori imply the suspension of all his other rights (even the rights to be tried
by a court) that may win for him ultimate acquittal and, hence, absolute
freedom. The latter result is not insisted upon for being patently untenable. it is
not correct to say that, if a person covered by Proclamation No. 210 is not
entitled to be released before he is indicted in court, there is more reason to
hold that he should not be released after an information is filed against him,
because it is then logical to assume that the Government holds sufficient
evidence. If he cannot secure his release before the filing of the information, it
is because, in view of the suspension of the privilege of the writ of habeas
corpus, the court cannot look into the legality of his detention under an
executive act, and not because he is assumed to be guilty. As already stated,
after the filing of the information, in granting to bail in proper cases, the court
does not determine the legality of his prior detention which has already been
superseded by a detention underjudicial process, but merely proceeds with
and carries into effect its jurisdiction over the criminal case and grants a right
guaranteed by the Constitution. Besides, it is significant that in all criminal
prosecutions the accused shall be presumed to be innocent (Article III, Section
1, Paragraph 17).
We are not insensitive to the proposition that the very nature of the crime of
rebellion suggests the likehood that a person accused thereof will jump his
bail. The remedy, however, is unfortunately not in the hands of the court. The
lawmakers or the framers of the Constitution should have made the offense
capital or even unbailable.
In the cases now before us, the accused have been charged with rebellion so
complexed with other offenses as to make them capital. Their right to bail is
accordingly not absolute and may be denied when evidence of guilt is strong.
The filing of the information implies that the prosecution holds sufficient
evidence for conviction, and it is fair to suppose that the court will duly
exercise its judgment when called upon to pass on the question of whether or
not the evidence of guilt is strong. At any rate, on admission to bail, the
accused is delivered to the custody of his sureties as a continuance of the
original detention. (U.S. vs. Sunico and Ng Chiong, 40 Phil. 826).
And it should be borne in mind that if the worse comes to the worst — to the
extent that the security of the State is in factimperiled and the regular
constitutional processes can no longerbe observed with general safety to the
people, — the President isauthorized by the Constitution (Article VIII, Section
10, Paragraph 2) to "place the Philippines or any part thereof undermartial
law." Even then, the primordial objective should be a"regime of justice" as
contemplated in the Preamble of the Constitution. The stubborn fact, however,
is that the meresuspension of the privilege of the writ of habeas corpus is
anadmission that the courts can function and are functioningnormal;
otherwise, there is no need for the suspension as therewill be no court to grant
the writ.
Reyes and Jugo, JJ., concur.
Republic of the Philippines
SUPREME COURT
Manila
 EN BANC
G.R. No. L-14819 March 19, 1959
ALFREDO B. SAULO, petitioner,
vs.
BRIG. GEN. PELAGIO CRUZ, ETC., respondent.
CONCEPCION, J.:
Upon the filing of the petition herein, praying for the reasons therein stated,
that a writ a habeas corpus be issued, and that, after appropriate proceedings,
the petitioner be discharged, upon the ground that he is illegally detained and
deprived of his liberty, this Court issued a resolution, dated December 24,
1958, ordering respondent Brig. Gen. Pelagio Cruz, Commanding General of
the Philippine Constabulary, to file, within five (5) days from notice, an answer
returnable to the Court of First Instance of Manila. In due course, thereafter, or
on January 14, 1959, said court issued an order stating that the facts set forth
in the petition — with the exception of the conclusion therein made, relative to
the alleged illegality of petitioner's detention — had been substantially
admitted in the answer of said respondent, who, however, assailed the
jurisdiction of said Court of First Instance, under section 2, Rule 102 of the
Rules of Court, to pass upon the issues in this case, namely:
May a person be arrested without warrant for an alleged violation of an Act
which expressly provides that no prosecution thereunder shall be made unless
a preliminary investigation has been conducted by the proper Court of First
Instance?
When such person has been so arrested, is he entitled to be released during
the time the preliminary investigation is being conducted?
and directing, without passing upon the said question of jurisdiction, that the
record of the case — including the transcript of the proceedings had, during
the hearing, and the memoranda of the parties — be forwarded to this
Supreme Court for further proceedings.
Section 2 of Rule 102 of the Rules of Court provides:
The writ of habeas corpus may be granted by the Supreme Court, or any
member thereof, on any day and at any time, or by the Court of Appeals or
any member thereof in the instances authorized by law, and if so granted it
shall be enforceable anywhere in the Philippines, and many be made
returnable before the court or any member thereof, or before a Court of First
Instance, or any judge thereof. It may also be granted by a Court of First
Instance, or a judge thereof, on any day and at any time, and returnable
before himself, enforceable only within his judicial district. (Emphasis ours.)
Pursuant to this provision, the writ of habeas corpus may be granted, either by
an appellate court, or any member thereof, or by a court of first instance. If
granted by the Supreme Court, or any member thereof, or by the Court of
Appeals, or any member thereof, in the instances authorized law, "it shall be
enforceable anywhere in the Philippines, and may be made returnable before
the court or any member thereof, or before a Court of First Instance or any
judge thereof." If granted by a court of first instance or a judge thereof, it shall
be "returnable before himself, enforceable only within his judicial district."
The case at bar falls under the first alternative, the writ of habeas corpus
herein having been issued by this Court. Conformably with the first sentence
of said section 2 the writ was made returnable before the Court of First
Instance of Manila. Respondent, however, maintains that the court of first
instance alluded to in said section 2, is "the court of first instance within whose
jurisdiction the petitioner is confined", under the theory, presumably, that the
decision of such court would be "enforceable only within his judicial district."
This view is devoid of merit. It is borne out, neither by said section 2 of the
rules, nor by the language of the law pertinent thereto or the established
practice thereon.
Although the last sentence of section 2 declares that the writ of habeas corpus
granted by a court of first instance shall be enforceable only within his judicial
district, this limitation is not in point, the writ in this case having been granted
by the Supreme Court and, as provided in said section, "it shall be enforceable
anywhere in the Philippines,"
Moreover, it is apparent from sections 12 to 151 of said Rule 102 (which are
quoted hereunder), that the court or judge to whom the writ is returned shall
have the authority and the duty to inquire into the facts and the law pertinent to
the legality or illegality of petitioner's detention and o order his discharge from
confinement, should it appear satisfactorily "that he is unlawfully imprisoned or
restrained." It should be noted, also, that the procedure set forth in the Rules
of Court is in line with the provisions of Act No. 654 of the Philippine
Commission, section 7 of which reads:
In cases where an original petition for habeas corpus is filed in the Supreme
Court, the Supreme Court shall have the power either to decide on the face of
the petition filed that no case has been made for the issuing of a writ, or
should such a case appear by the allegations of the petition, to issue the writ
and make the same returnable and direct the hearing, either before the
Supreme Court as a whole, or any judge thereof, or any judge of a Court of
First Instance.
This section is, in turn, substantially identical to section 81 of General Orders
No. 59, quoted on the margin.
Page 7 of 101
Respondent's pretense is, seemingly, based upon the belief that the "writ of
habeas corpus" mentioned in section 2 of Rule 102 — which, if issued by a
court of first instance or a judge thereof shall be "enforceable only within his
judicial district" — is the same order of "discharge", referred to in section 15 of
said rule. However, the writ alluded to in said section 2 is nothing but the one
specifically described in section 6 of Rule 102, reading:
In case of imprisonment or restraint by an officer, the writ shall be directed to
him, and shall command him to have the body of the person restrained of his
liberty before the court or judge designated in the writ at the time and place
therein specified. In case of imprisonment or restraint by a person not an
officer, the writ shall be directed to an officer, and shall command him to take
and have the body of the person restrained of his liberty before the court or
judge designated in the writ at the time and place therein specified, and to
summon the person by whom he is restrained then and there to appear before
said court or judge to show the cause of the imprisonment or restraint.
In other words, said writ of habeas corpus plays a role somewhat comparable
to a summons, in ordinary civil actions, in that, by service of said writ, the court
acquires jurisdiction over the person of the respondent. Once authority over
the latter has thus been established, the appellate court issuing the writ, or the
court of first instance to which the writ has been made returnable — acting in
place of the appellate court — may render a decision, which — like other
decisions of the Supreme Court and of courts of first instance — may be
enforced anywhere in the Philippines.
In point of practice, when a writ of habeas corpus is, comformably to law,
made returnable to a court other than that issuing the writ, the court to which
the writ is returned or the judge thereof possesses full authority to examine all
issues raised in the case and to settle the same. In the language of the
American Jurisprudence:
After a return to a writ, the court or judge to whom the return is made pass
upon all questions of both law and fact and determine the ultimate question
whether the prisoner is wrongfully restrained of his liberty. It is necessary for
the court to determine the weight and credibility of the evidence where the
testimony is conflicting.
. . . With further reference to habeas corpus proceedings in Federal courts, it is
expressly provided by statute that the court or judge before whom the prisoner
may be brought shall proceed in a summary way to determine the facts of the
case, by hearing the testimony and arguments, and thereupon to dispose of
the prisoner as law and justice may require. (25 Am. Jur., p. 245; Emphasis
ours.)
Accordingly, the Court of First Instance of Manila may validly inquire in to
legality of petitioner's restraints and issue such orders, in connection therewith,
as may be proper, in the light of the facts proven and the law applicable
thereto.
Would it not be advisable that the merits of the case be adjudicated here and
now? It is the considered opinion of this Court that it would be best that this
task be under taken by the Court of First Instance of Manila, inasmuch as: (1)
said court has already acquired jurisdiction thereon, owing to the writ made
returnable, and returned, thereto, and (2) said court has been conducting, and
is still conducting, the preliminary investigation in Criminal Case No. 46410
thereof, against petitioner herein, which respondent invokes in justification for
his (petitioner's) detention, so that the lower court is better situated, than we
are, to ascertain the pertinent facts and to make a reasonable appraisal
thereof.
This should not be construed, in any manner whatsoever, as indicating that we
sanction the indefinite detention of an individual, without either a warrant of
arrest or an order of commitment, or that one charged with a violation of the
Anti-Subversion Act (Republic Act No. 1700), penalized therein "by prison
mayor to death", may be kept under custody, without said warrant of arrest or
order of commitments, regardless of the duration of the preliminary
investigation conducted pursuant to the provisions of said Act. The importance
of a warrant of arrest and/or said order of commitment; the effect, upon the
legality or illegality of a detention without warrant, of the filing of a complaint or
information after the expiration of the period fixed by law for the delivery of the
of the period fixed by law for the delivery of the detainee to the corresponding
judicial authority (Art. 125, Revised Penal Code, as amended by Act No.
3940); the steps to be taken after said delivery; the purpose of a preliminary
investigation; the period of time within which the same should be completed;
and the alternatives that may be availed of when no warrant of arrest or order
of commitment has been issued and the preliminary investigation is not
seasonably undertaken or can not be finished promptly, have been thoroughly
elucidated in the decisions of this Court in Lino vs. Fuguso (77 Phil., 933) and
Sayo vs. Chief of Police of Manila (80 Phil., 859), and in the resolution on the
motion for reconsideration filed in the latter case, and it is not our intention in
the present resolution to alter the view thus expressed in said cases.
Wherefore, let the record of the case at bar be remanded to the lower court for
appropriate action. It is so ordered.
Paras, C.J., Bengzon, Padilla, Montemayor, Reyes, A., Bautista Angelo,
Labrador, Reyes, J.B.L. and Endencia, JJ., concur.
Republic of the Philippines
SUPREME COURT
Manila

EN BANC
G.R. No. L-15474 August 31, 1960
ALFREDO B. SAULO, petitioner-appellant,
vs.
BRIG. GENERAL PELAGIO CRUZ, ETC., respondent-appellee.
REYES, J.B.L., J.:
In G.R. No. L-14819, a petition for habeas corpus was filed before this Court
by and in behalf of petitioner Alfredo B. Saulo. We issued, on December 24,
1958, a writ ordering respondent Pelagio Cruz, as the Commanding General
of the Philippine Constabulary, to submit, within five (5) days from notice, an
answer returnable to the Court of First Instance of Manila.
At the hearing in the court below, respondent questioned the jurisdiction of the
lower court on the ground that, inasmuch as petitioner was confined in the
Philippine Constabulary stockade at Camp Crame, Quezon City, the Manila
court was without jurisdiction to entertain the case consonant with Section 2,
Rule 102 of the Rules of Court. Upon the remanding of the particular issue to
us by the trial judge, we overruled this contention in our resolution of March
19, 1959, and accordingly, we ordered the return of the records to the lower
court for its appropriate action on the merits of the petition.
The case was submitted to the lower court for decision solely on the facts
appearing in petitioner's pleadings and admitted by the respondent. According
to the lower court:
After successfully evading arrest since September, 1950, in connection with
three criminal cases (Nos. 13681, 19166 and 39253, CFI, Manila) one for
inciting to rebellion with murders, arsons, robberies and kidnappings, Alfredo
B. Saulo, in whose behalf the present petition for a writ of habeas corpus has
been presented, finally showed up at the Indonesian Embassy, Manila, on
November 12, 1958, to seek refuge therein. As a result of negotiations had,
the Indonesian Embassy surrendered him to the Philippine Government on
November 18, 1958, since which date he has remained in the custody of the
Philippine Constabulary at Camp Crame, Quezon City. One of the two criminal
cases for rebellion having been dismissed with respect to him on motion of the
prosecution, Saulo put up bail in the two remaining cases (Nos. 13681 and
39253). When the corresponding order for his temporary release was served,
the herein respondent Commanding General of the Philippine Constabulary
commanded one of his subordinates to with hold the release of Saulo on
account of Criminal Case No. 46410 the Court of First Instance of Manila. Said
criminal case is a complaint against Saulo, filed on November 19, 1958, by the
Fiscal of Manila, for alleged violation of Republic Act No. 1700, otherwise
known as the Anti-Subversion Act, punishable by prision mayor to death, so
that the said Court of First Instance might conduct the corresponding
preliminary investigation, as provided in the Act. While said preliminary
investigation was still going on, that is, on December 23, 1958, petitioner
applied for a writ of habeas corpus with the Supreme Court, as already stated,
on the ground that his detention, without warrant of arrest, by reason of the
pendency of the aforesaid Criminal Case No. 46410, is illegal and void. Said
court gave due course to the application and directed the respondent
Commanding General of the Philippine Constabulary to file answer, returnable
to the Court of First Instance of Manila.
Respondent filed answer, as directed, admitting practically all the facts above
related and alleged in the application, with the plea that "the pendency of
Criminal Case No. 46410 for violation of Republic Act No. 1700 filed before the
Court of First Instance of Manila is sufficient reason for continuing the
detention of the petitioner, in the absence of an order of the Court for his
discharge under the case aforesaid."
Upon such findings, the lower rendered decision, concluding that the filing of
Criminal Case No. 46410 amounted to the delivery of accused-petitioner, who
was arrested without warrant, to the proper court as provided under Section
17, Rule 109 of the Rules of Court (citing Sayo, et al. vs. Chief of Police, 80
Phil., 859). The Court consequently denied the petition for habeas corpus.
Hence, this appeal.
However, petitioner's appeal to have been filed out of time, as pointed out by
the Solicitor General. The records disclose that the notice of appeal was filed
eleven (11) days after a copy of the lower court's decision, denying the
petition, was served upon petitioner's counsel (on May 12, 1959 as per
sheriff's return). As provided by Section 18, Rule 41 of the Rules of Court,
petitioner should have perfected his appeal within twenty-four (24) hours from
notice of judgment:
Sec. 18. Appeal in habeas corpus cases, how taken. — An appeal in habeas
corpus case shall be perfected by filing with the clerk of the court or the judge
who rendered the judgment, within twenty-four (24) hours of notice of such
judgment, a statement that the person making it appeals from the judgment
rendered.
It has been consistently held that the reglementary period for appeal is not
mandatory but jurisdictional on the courts and that an appeal filed out of the
time may be sought to be dismissed at any stage of the proceedings in the
appellate court.1
In petitioner's "manifestation" dated October 12, 1959 it is contented that since
the case for habeas corpus was heard by the Manila Court of First Instance,
Page 8 of 101
"not by virtue of its original jurisdiction but merely by delegation", this Court
should have the final say regarding the issues raised in the petition, and only
its decision, not that of the Court of First Instance, should be regarded as
operative. The logic is more than real. While the petition for habeas corpus
was originally filed with this Court, the only question that was immediately
involved was the propriety of the issuance of a writ that would order the
respondent to show cause why the detention of the person in whose behalf the
writ was asked for should not be considered illegal, and that, therefore, the
petitioner be ordered discharged from custody. The Rules authorize that once
the writ is issued, the same may be made returnable before a Court of First
Instance (Sec. 2, Rule 102, Rules of Court), and not necessarily to us. The
court designated does not thereby become merely a recommendatory body,
whose findings and conclusion are devoid of effect, unless and until we decide
to act on the "recommendation". By filing a notice of appeal with the Court
below, the appellant impliedly admitted that the decision appealed was not
merely recommendatory or fact-finding.
In our resolution dated March 19, 1959, resolving the question of jurisdiction of
the lower court, we stated the following:
Moreover, it is apparent from sections 12 to 15 of said Rule 102 that the court
or judge to whom the writ is returned shall have the authority and the duty to
inquire into the facts and the law pertinent to the legality or illegality of
petitioner's detention and to order his discharge from confinement, should it
appear satisfactorily "that he is unlawfully imprisoned or restrained.
xxx xxx xxx
In point of practice, when a writ of habeas corpus is, conformably to law, made
returnable to a court other than that issuing the writ, the court to which the writ
is returned, or the judge thereof, possesses full authority to examine all issues
raised in the case and to settle the same. In the language of the American
jurisprudence:
"After a return to a writ, the court or judge to whom the return is made must
pass upon all questions of both law and fact and determine the ultimate
question whether the prisoner is wrongfully restrained of his liberty. It is
necessary for the court to determine the eight and credibility of the evidence
where the testimony is conflicting.
". . . With further reference to habeas corpus proceedings in Federal courts, it
is expressly provided by statute that the court or judge before whom the
prisoner may be brought shall proceed in a summary way to determine the
facts of the case, by hearing the testimony and arguments, and thereupon to
dispose of the prisoner as law and justice may require." (25 Am. Jur., p. 245,
Emphasis ours)
In other words, the court or the judge to whom the writ is made returnable
takes the case for determination on the merits (See 39 C.J.S. p. 603, sec. 58
and case cited therein), and its findings, either for the release of the detainee
or for sustaining his continued custody, if not appealed on time, can become
final just as it may in an ordinary case.
We, accordingly, have no alternative than to dismiss the appeal.
WHEREFORE, the appeal is hereby dismissed, with costs against petitioner-
appellant.
Paras, C.J., Bengzon, Bautista Angelo, Labrador, Concepcion, Barrera and
Gutierrez David, JJ., concur.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-29169 August 19, 1968
ROGER CHAVEZ, petitioner,
vs.
THE HONORABLE COURT OF APPEALS, THE PEOPLE OF THE
PHILIPPINES and THE WARDEN OF THE CITY JAIL OF MANILA,
respondents.
SANCHEZ, J.:
The thrust of petitioner's case presented in his original and supplementary
petitions invoking jurisdiction of this Court is that he is entitled, on habeas
corpus, to be freed from imprisonment upon the ground that in the trial which
resulted in his conviction1 he was denied his constitutional right not to be
compelled to testify against himself. There is his prayer, too, that, should he
fail in this, he be granted the alternative remedies of certiorari to strike down
the two resolutions of the Court of Appeals dismissing his appeal for failure to
file brief, and of mandamus to direct the said court to forward his appeal to this
Court for the reason that he was raising purely questions of law.
The indictment in the court below — the third amended information — upon
which the judgment of conviction herein challenged was rendered, was for
qualified theft of a motor vehicle, one (1) Thunderbird car, Motor No. H9YH-
143003, with Plate No. H-16648 Pasay City '62 together with its accessories
worth P22,200.00. Accused were the following: Petitioner herein, Roger
Chavez, Ricardo Sumilang alias "Romeo Vasquez", Edgardo P. Pascual alias
"Ging" Pascual, Pedro Rebullo alias "Pita", Luis Asistio alias "Baby" Asistio,
Lorenzo Meneses alias "Lory" Meneses, Peter Doe, Charlie Doe and Paul
Doe.2
Averred in the aforesaid information was that on or about the 14th day of
November, 1962, in Quezon City, the accused conspired, with intent of gain,
abuse of confidence and without the consent of the owner thereof, Dy Sun
Hiok y Lim, in asporting the motor vehicle above-described.
Upon arraignment, all the accused, except the three Does who have not been
identified nor apprehended, pleaded not guilty.
On July 23, 1963, trial commenced before the judge presiding Branch IX of the
Court of First Instance of Rizal in Quezon City.
The trial opened with the following dialogue, which for the great bearing it has
on this case, is here reproduced:
COURT:
The parties may proceed.
FISCAL GRECIA:
Our first witness is Roger Chavez [one of the accused].
ATTY. CARBON [Counsel for petitioner Chavez]:
I am quite taken by surprise, as counsel for the accused Roger Chavez, with
this move of the Fiscal in presenting him as his witness. I object.
COURT:
On what ground, counsel?
ATTY. CARBON:
On the ground that I have to confer with my client. It is really surprising that at
this stage, without my being notified by the Fiscal, my client is being
presented as witness for the prosecution. I want to say in passing
that it is only at this very moment that I come to know about this strategy of the
prosecution.
COURT (To the Fiscal):
You are not withdrawing the information against the accused Roger Chavez by
making [him a] state witness?
FISCAL GRECIA:
I am not making him as state witness, Your Honor.
I am only presenting him as an ordinary witness.
ATTY. CARBON:
As a matter of right, because it will incriminate my client, I object.
COURT:
The Court will give counsel for Roger Chavez fifteen minutes within which to
confer and explain to his client about the giving of his testimony.
xxx xxx xxx
COURT: [after the recess]
Are the parties ready?
FISCAL:
We are ready to call on our first witness, Roger Chavez.
ATTY. CARBON:
As per understanding, the proceeding was suspended in order to enable me to
confer with my client.
I conferred with my client and he assured me that he will not testify for the
prosecution this morning after I have explained to him the consequences of
what will transpire.
COURT:
What he will testify to does not necessarily incriminate him, counsel.
And there is the right of the prosecution to ask anybody to act as witness on
the witness-stand including the accused.
If there should be any question that is incriminating, then that is the time for
counsel to interpose his objection and the court will sustain him if and when
the court feels that the answer of this witness to the question would incriminate
him.
Page 9 of 101
Counsel has all the assurance that the court will not require the witness to
answer questions which would incriminate him.
But surely, counsel could not object to have the accused called on the
witnessstand.
ATTY. CARBON:
I submit.
xxx xxx xxx
ATTY. CRUZ [Counsel for defendants Pascual and Meneses]: .
MAY IT PLEASE THE COURT:
This incident of the accused Roger Chavez being called to testify for the
prosecution is something so sudden that has come to the knowledge of this
counsel.
This representation has been apprised of the witnesses embraced in the
information.
For which reason I pray this court that I be given at least some days to meet
whatever testimony this witness will bring about. I therefore move for
postponement of today's hearing.
COURT:
The court will give counsel time within which to prepare his cross-examination
of this witness.
ATTY. CRUZ:
I labored under the impression that the witnesses for the prosecution in this
criminal case are those only listed in the information.
I did not know until this morning that one of the accused will testify as witness
for the prosecution.
COURT:
That's the reason why the court will go along with counsels for the accused
and will give them time within which to prepare for their cross-examination of
this witness.
The court will not defer the taking of the direct examination of the witness.
Call the witness to the witness stand.
EVIDENCE FOR THE PROSECUTION
ROGER CHAVEZ, 31 years old, single, buy and sell merchant, presently
detained at the Manila Police Department headquarters, after being duly
sworn according to law, declared as follows:
ATTY. IBASCO [Counsel for defendant Luis Asistio]:
WITH THE LEAVE OF THE COURT:
This witness, Roger Chavez is one of the accused in this case No. Q-5311.
The information alleges conspiracy. Under Rule 123, Section 12, it states:
'The act or declaration of a conspirator relating to the conspiracy and during its
existence, may be given in evidence against the co-conspirator after the
conspiracy is shown by evidence other than such act or declaration.'
COURT:
That is premature, counsel. Neither the court nor counsels for the accused
know what the prosecution events to establish by calling this witness to the
witness stand.
ATTY. IBASCO:
I submit.
COURT: The Fiscal may proceed.3
And so did the trial proceed. It began with the "direct examination" of Roger
Chavez by "Fiscal Grecia".
Came the judgment of February 1, 1965. The version of the prosecution as
found by the court below may be briefly narrated as follows:
A few days before November 12, 1962, Roger Chavez saw Johnson Lee, a
Chinese, driving a Thunderbird car. With Ricardo Sumilang (movie actor
Romeo Vasquez) in mind, whom he knew was in the market for such a car,
Chavez asked Lee whether his car was for sale. Lee answered affirmatively
and left his address with Chavez. Then, on November 12, Chavez met
Sumilang at a barbershop informed him about the Thunderbird. But Sumilang
said that he had changed his mind about buying a new car. Instead, he told
Chavez that he wanted to mortgage his Buick car for P10,000.00 to cover an
indebtedness in Pasay City. Upon the suggestion of Chavez, they went to see
Luis Asistio, who he knew was lending money on car mortgages and who, on
one occasion, already lent Romeo Vasquez P3,000.00 on the same Buick car.
Asistio however told the two that he had a better idea on how to raise the
money. His plan was to capitalize on Romeo Vasquez' reputation as a wealthy
movie star, introduce him as a buyer to someone who was selling a car and,
after the deed of sale is signed, by trickery to run away with the car. Asistio
would then register it, sell it to a third person for a profit. Chavez known to be a
car agent was included in the plan. He furnished the name of Johnson Lee
who was selling his Thunderbird. 1äwphï1.ñët
In the morning of November 14, Chavez telephoned Johnson Lee and
arranged for an appointment. Sometime in the afternoon. Chavez and
Sumilang met Lee in his Thunderbird on Highway 54. Sumilang was
introduced as the interested buyer. Sumilang's driver inspected the car, took
the wheel for a while. After Sumilang and Lee agreed on the purchase price
(P21.000.00), they went to Binondo to Johnson Lee's cousin, Dy Sun Hiok, in
whose name the car was registered. Thereafter, they went to see a lawyer
notary public in Quezon City, known to Chavez for the drafting of the deed of
sale. After the deed of sale was drawn up, it was signed by Sumilang as the
vendee, Dy Sun Hiok the vendor, and Sumilang's driver and Johnson Lee the
witnesses thereto.
As payment was to be made at Eugene's restaurant in Quezon City, all of
them then drove in the Thunderbird car to that place. The deed of sale and
other papers remained in the pockets of Johnson Lee.
At Eugene's, a man approached Sumilang with a note which stated that the
money was ready at the Dalisay Theater. Sumilang then wrote on the same
note that the money should be brought to the restaurant. At the same time he
requested Lee to exhibit the deed of sale of the car to the note bearer.4
Then, the two Chinese were left alone in the restaurant. For Sumilang, who
had left the table to pose for pictures with some fans and come back, again left
never to return. So did Chavez, who disappeared after he left on the pretext of
buying cigarettes. The two Chinese could not locate Sumilang and Chavez.
They went out to the place where the Thunderbird was parked, found that it
was gone. They then immediately reported its loss to the police. Much later,
the NBI recovered the already repainted car and impounded it.
Right after the meeting at Eugene's, Chavez, Sumilang and Asistio converged
that same day at Barrio Fiesta, a restaurant at Highway 54 near the
Balintawak monument in Caloocan. There, Asistio handed to Sumilang
P1,000.00 cash and a golf set worth P800.00 as the latter's share in the
transaction. On the 14th of November, the registration of the car was
transferred in the name of Sumilang in Cavite City, and three days later, in the
name of Asistio in Caloocan.
From the court's decision, Ricardo Sumilang's version, corroborated in part by
Asistio, may be condensed as follows:
In the last week of September, 1962, Sumilang saw Roger Chavez at a gas
station. The latter informed him that there was a Thunderbird from Clark Field
for sale for a price between P20,000.00 and P22,000.00. Chavez said that it
could be held for him with a down payment of P10,000.00.
To raise this sum, Sumilang and Chavez, on October 1, went to the house of a
certain Nena Hernaez de los Reyes who wrote out a check for P5,000.00 as a
loan to Sumilang. That check was exhibited in court. Sumilang and Chavez
then went to Pasay City to see a certain Mario Baltazar, an agent of the Pasay
City Mayor, and Narsing Cailles, Chief of the Fire Department. Sumilang asked
the two for a P10,000-loan backed up by the P5,000.00-check aforesaid on
condition that it should not be cashed immediately as there were not enough
funds therefor. Baltazar and Cailles agreed to give the money the nextday as
long as the check would be left with them and Sumilang would sign a
promissory note for P10,000.00. Baltazar later informed Sumilang that Chavez
picked up the money the next day. Four or five days afterwards, Chavez
returned P4,000.00 to Sumilang because P6,000.00 was enough for the
deposit. And so, Sumilang gave back the P4,000.00 to Baltazar.
About the end of October or at the beginning of November, Chavez asked
Sumilang for another P3,000.00. Sumilang sent Chavez to Baltazar and
Cailles, with a note requesting that they accommodate him once more. He
also sent a check, again without funds. Baltazar gave the money after verifying
the authenticity of the note.
On November 14, Chavez appeared at Sumilang's house with the news that
the car was ready if Sumilang was ready with the rest of the money. So
Sumilang got P9,000.00 from his mother and another P4,000.00 from his
aparador. He immediately gave P6,000.00 to Chavez, intending to pay out the
balance upon the car's delivery. It was then that Chavez told Sumilang that the
car was already bought by a Chinese who would be the vendor.
The purchase price finally agreed upon between Sumilang and Johnson Lee
was P21,000.00, plus P500.00 agents commission at the expense of the
buyer. Sumilang told Lee that he already paid part of the price to Chavez.
At Eugene's, Chavez asked Sumilang for the balance. Sumilang
accommodated. There, Sumilang, also saw a friend, "Ging" Pascual. In the
course of their conversation at the bar, Sumilang mentioned the proposed
transaction thru Chavez. Pascual warned that Chavez was a "smart" agent
and advised that Sumilang should have a receipt for his money. A certain
Bimbo, a friend of Pascual, offered to make out a receipt for Chavez to sign.
Page 10 of 101
After Sumilang returned from posing for some photographs with some of his
fans, Bimbo showed him the receipt already signed by Chavez. Sumilang
requested Pascual and Bimbo to sign the receipt as witnesses. And they did.
This receipt was offered as an exhibit by the prosecution and by Sumilang.
When Sumilang was ready to leave Eugene's, Johnson Lee turned over to him
the deed of sale, the registration papers and the keys to the car. After shaking
hands with Lee, Sumilang drove away in the car with his driver at the wheel.
Two or three days afterwards, Sumilang dropped by the Barrio Fiesta on his
way to a film shooting at Bulacan. He saw Asistio with many companions.
Asistio liked his Thunderbird parked outside. Asistio offered to buy it from him
for P22,500.00. As the offer was good, and knowing Asistio's and his friends'
reputation for always getting what they wanted, Sumilang consented to the
sale. Asistio tendered a down payment of P1,000.00; the balance he promised
to pay the next day after negotiating with some financing company. Before
said balance could be paid, the car was impounded.
The trial court gave evidence to Sumilang's averment, strengthened by
Baltazar's and Cailles' corroborations, that he paid good money for the car.
Sumilang was thus cleared. So was Asistio whom the trial court believed to be
a mere buyer of the car. And so, the prosecution's theory of conspiracy was
discounted.
As to the other accused, the court found no case against Pedro Rebullo alias
"Pita" and Lorenzo Meneses alias "Lory". The accused "Ging" Pascual was
also acquitted for in the first place he was not identified by Johnson Lee in
court.
As to Roger Chavez, however, the court had this to say: "Roger Chavez does
not offer any defense. As a matter of fact, his testimony as witness for the
prosecution establishes his guilt beyond reasonable doubt."5 The trial court
branded him "a self-confessed culprit".6 The court further continued:
It is not improbable that true to the saying that misery loves company Roger
Chavez tried to drag his co-accused down with him by coloring his story with
fabrications which he expected would easily stick together what with the
newspaper notoriety of one and the sensationalism caused by the other. But
Roger Chavez' accusations of Asistio's participation is utterly uncorroborated.
And coming, as it does, from a man who has had at least two convictions for
acts not very different from those charged in this information, the Court would
be too gullible if it were to give full credence to his words even if they
concerned a man no less notorious than himself.7
The trial court then came to the conclusion that if Johnson Lee was not paid
for his car, he had no one but Roger Chavez to blame.
The sum of all these is that the trial court freed all the accused except Roger
Chavez who was found guilty beyond reasonable doubt of the crime of
qualified theft. He was accordingly sentenced to suffer an indeterminate
penalty of not less than ten (10) years, one (1) day, as minimum and not more
than fourteen (14) years, eight (8) months and one (1) day as maximum, to
indemnify Dy Sun Hiok and/or Johnson Lee in the sum of P21,000.00 without
subsidiary imprisonment in case of insolvency, to undergo the accessory
penalties prescribed by law, and to pay the costs. The Thunderbird car then in
the custody of the NBI was ordered to be turned over to Ricardo Sumilang,
who was directed to return to Asistio the sum of P1,000.00 unless the latter
chose to pay P21,500.00, representing the balance of the contract price for the
car.
The foregoing sentence was promulgated on March 8, 1965. Roger Chavez
appealed to the Court of Appeals.
On April 18, 1968, the Court of Appeals required Atty. Natividad Marquez,
counsel for Roger Chavez, to show cause within ten days from notice why
Chavez' appeal should not be considered abandoned and dismissed. Reason
for this is that said lawyer received notice to file brief on December 28, 1967
and the period for the filing thereof lapsed on January 27, 1968 without any
brief having been filed.
On May 13, 1968, Atty. Marquez registered a detailed written explanation. She
also stated that if she were allowed to file appellant's brief she would go along
with the factual findings of the court below but will show however that its
conclusion is erroneous.8
On May 14, 1968, the Court of Appeals, despite the foregoing explanation,
resolved to dismiss the appeal. A move to reconsider was unavailing. For, on
June 21, 1968, the Court of Appeals, through a per curiam resolution,
disposed to maintain its May 14 resolution dismissing the appeal, directed the
City Warden of Manila where Chavez is confined by virtue of the warrant of
arrest issued by the Court of Appeals, to turn him over to Muntinlupa Bilibid
Prisons pending execution of the judgment below, and ordered remand of the
case to the Quezon City court for execution of judgment.
It was at this stage that the present proceedings were commenced in this
Court.
Upon the petitions, the return, and the reply, and after hearing on oral
arguments, we now come to grips with the main problem presented.
We concentrate attention on that phase of the issues which relates petitioner's
assertion that he was compelled to testify against himself. For indeed if this
one question is resolved in the affirmative, we need not reach the others; in
which case, these should not be pursued here.
1. Petitioner's plea on this score rests upon his averment, with proof, of
violation of his right — constitutionally entrenched — against self-incrimination.
He asks that the hand of this Court be made to bear down upon his conviction;
that he be relieved of the effects thereof. He asks us to consider the
constitutional injunction that "No person shall be compelled to be a witness
against himself,"9 fully echoed in Section 1, Rule 115, Rules of Court where, in
all criminal prosecutions, the defendant shall be entitled: "(e) To be exempt
from being a witness against himself." .
It has been said that forcing a man to be a witness against himself is at war
with "the fundamentals of a republican government"; 10 that [i]t may suit the
purposes of despotic power but it can not abide the pure atmosphere of
political liberty and personal freedom."11 Mr. Justice Abad Santos recounts
the historical background of this constitutional inhibition, thus: " "The maxim
Nemo tenetur seipsum accusare had its origin in a protest against the
inquisitorial and manifestly unjust methods of interrogating accused persons,
which has long obtained in the continental system, and, until the expulsion of
the Stuarts from the British throne in 1688, and the erection of additional
barriers for the protection of the people against the exercise of arbitrary power,
was not uncommon even in England. While the admissions of confessions of
the prisoner, when voluntarily and freely made, have always ranked high in the
scale of incriminating evidence, if an accused person be asked to explain his
apparent connection with a crime under investigation, the ease with which the
questions put to him may assume an inquisitorial character, the temptation to
press, the witness unduly, to browbeat him if he be timid or reluctant, to push
him into a corner, and to entrap him into fatal contradictions, which is so
painfully evident in many of the earlier state trials, notably in those of Sir
Nicholas Throckmorton, and Udal, the Puritan minister, made the system so
odious as to give rise to a demand for its total abolition. The change in the
English criminal procedure in that particular seems to be founded upon no
statute and no judicial opinion, but upon a general and silent acquiescence of
the courts in a popular demand. But, however adopted, it has become firmly
embedded in English, as well as in American jurisprudence. So deeply did the
iniquities of the ancient system impress themselves upon the minds of the
American colonists that the states, with one accord, made a denial of the right
to question an accused person a part of their fundamental law, so that a
maxim which in England was a mere rule of evidence, became clothed in this
country with the impregnability of a constitutional enactment." (Brown vs.
Walker, 161 U.S., 591, 597; 40 Law. ed., 819, 821)." 12 Mr. Justice Malcolm,
in expressive language, tells us that this maxim was recognized in England in
the early days "in a revolt against the thumbscrew and the rack." 13 An old
Philippine case [1904] 14 speaks of this constitutional injunction as "older than
the Government of the United States"; as having "its origin in a protest against
the inquisitorial methods of interrogating the accused person"; and as having
been adopted in the Philippines "to wipe out such practices as formerly
prevailed in these Islands of requiring accused persons to submit to judicial
examinations, and to give testimony regarding the offenses with which they
were charged."
So it is then that this right is "not merely a formal technical rule the
enforcement of which is left to the discretion of the court"; it is mandatory; it
secures to a defendant a valuable and substantive right; 15 it is fundamental
to our scheme of justice. Just a few months ago, the Supreme Court of the
United States (January 29, 1968), speaking thru Mr. Justice Harlan warned
that "[t]he constitutional privilege was intended to shield the guilty and
imprudent as well as the innocent and foresighted." 16
It is in this context that we say that the constitutional guarantee may not be
treated with unconcern. To repeat, it is mandatory; it secures to every
defendant a valuable and substantive right. Tañada and Fernando
(Constitution of the Philippines, 4th ed., vol. I, pp. 583-584) take note of U.S.
vs. Navarro, supra, which reaffirms the rule that the constitutional proscription
was established on broad grounds of public policy and humanity; of policy
because it would place the witness against the strongest temptation to commit
perjury, and of humanity because it would be to extort a confession of truth by
a kind of duress every species and degree of which the law abhors. 17
Therefore, the court may not extract from a defendant's own lips and against
his will an admission of his guilt. Nor may a court as much as resort to
compulsory disclosure, directly or indirectly, of facts usable against him as a
confession of the crime or the tendency of which is to prove the commission of
a crime. Because, it is his right to forego testimony, to remain silent, unless he
chooses to take the witness stand — with undiluted, unfettered exercise of his
own free, genuine will.
Compulsion as it is understood here does not necessarily connote the use of
violence; it may be the product of unintentional statements. Pressure which
operates to overbear his will, disable him from making a free and rational
choice, or impair his capacity for rational judgment would in our opinion be
sufficient. So is moral coercion "tending to force testimony from the unwilling
lips of the defendant." 18
2. With the foregoing as guideposts, we now turn to the facts. Petitioner is a
defendant in a criminal case. He was called by the prosecution as the first
witness in that case to testify for the People during the first day of trial thereof.
Petitioner objected and invoked the privilege of self-incrimination. This he
broadened by the clear cut statement that he will not testify. But petitioner's
protestations were met with the judge's emphatic statement that it "is the right
of the prosecution to ask anybody to act as witness on the witness stand
including the accused," and that defense counsel "could not object to have the
Page 11 of 101
accused called on the witness stand." The cumulative impact of all these is
that accused-petitioner had to take the stand. He was thus peremptorily asked
to create evidence against himself. The foregoing situation molds a solid case
for petitioner, backed by the Constitution, the law, and jurisprudence.
Petitioner, as accused, occupies a different tier of protection from an ordinary
witness. Whereas an ordinary witness may be compelled to take the witness
stand and claim the privilege as each question requiring an incriminating
answer is shot at him, 19 and accused may altogether refuse to take the
witness stand and refuse to answer any and all questions. 20 For, in reality,
the purpose of calling an accused as a witness for the People would be to
incriminate him. 21 The rule positively intends to avoid and prohibit the
certainly inhuman procedure of compelling a person "to furnish the missing
evidence necessary for his conviction." 22 This rule may apply even to a co-
defendant in a joint trial.23
And the guide in the interpretation of the constitutional precept that the
accused shall not be compelled to furnish evidence against himself "is not the
probability of the evidence but it is the capability of abuse." 24 Thus it is, that it
was undoubtedly erroneous for the trial judge to placate petitioner with these
words:.
What he will testify to does not necessarily incriminate him, counsel.
And there is the right of the prosecution to ask anybody to act as witness on
the witness-stand including the accused.
If there should be any question that is incriminating, then that is the time for
counsel to interpose his objection and the court will sustain him if and when
the court feels that the answer of this witness to the question would incriminate
him.
Counsel has all the assurance that the court will not require the witness to
answer questions which would incriminate him.
But surely, counsel could not object to have the accused called on the witness
stand.
Paraphrasing Chief Justice Marshall in Aaron Burr's Trial, Robertsons Rep. I,
208, 244, quoted in VIII Wigmore, p. 355, 25 While a defendant's knowledge of
the facts remains concealed within his bosom, he is safe; but draw it from
thence, and he is exposed" — to conviction.
The judge's words heretofore quoted — "But surely counsel could not object to
have the accused called on the witness stand" — wielded authority. By those
words, petitioner was enveloped by a coercive force; they deprived him of his
will to resist; they foreclosed choice; the realities of human nature tell us that
as he took his oath to tell the truth, the whole truth and nothing but the truth,
no genuine consent underlay submission to take the witness stand.
Constitutionally sound consent was absent.
3. Prejudice to the accused for having been compelled over his objections to
be a witness for the People is at once apparent. The record discloses that by
leading questions Chavez, the accused, was made to affirm his statement
given to the NBI agents on July 17, 1963 at 5:00 o'clock in the afternoon. 26
And this statement detailed the plan and execution thereof by Sumilang
(Vasquez), Asistio and himself to deprive the Chinese of his Thunderbird car.
And he himself proceeded to narrate the same anew in open court. He
identified the Thunderbird car involved in the case. 27
The decision convicting Roger Chavez was clearly of the view that the case for
the People was built primarily around the admissions of Chavez himself. The
trial court described Chavez as the "star witness for the prosecution". Indeed,
the damaging facts forged in the decision were drawn directly from the lips of
Chavez as a prosecution witness and of course Ricardo Sumilang for the
defense. There are the unequivocal statements in the decision that "even
accused Chavez" identified "the very same Thunderbird that Johnson Lee had
offered for sale"; that Chavez "testimony as witness for the prosecution
establishes his guilt beyond reasonable doubt and that Chavez is "a self-
confessed culprit". 1äwphï1.ñët
4. With all these, we have no hesitancy in saying that petitioner was forced to
testify to incriminate himself, in full breach of his constitutional right to remain
silent. It cannot be said now that he has waived his right. He did not volunteer
to take the stand and in his own defense; he did not offer himself as a witness;
on the contrary, he claimed the right upon being called to testify. If petitioner
nevertheless answered the questions inspite of his fear of being accused of
perjury or being put under contempt, this circumstance cannot be counted
against him. His testimony is not of his own choice. To him it was a case of
compelled submission. He was a cowed participant in proceedings before a
judge who possessed the power to put him under contempt had he chosen to
remain silent. Nor could he escape testifying. The court made it abundantly
clear that his testimony at least on direct examination would be taken right
then and thereon the first day of the trial.
It matters not that, after all efforts to stave off petitioner's taking the stand
became fruitless, no objections to questions propounded to him were made.
Here involve is not a mere question of self-incrimination. It is a defendant's
constitutional immunity from being called to testify against himself. And the
objection made at the beginning is a continuing one. 1äwphï1.ñët
There is therefore no waiver of the privilege. "To be effective, a waiver must be
certain and unequivocal, and intelligently, understandably, and willingly made;
such waiver following only where liberty of choice has been fully accorded.
After a claim a witness cannot properly be held to have waived his privilege on
vague and uncertain evidence." 28 The teaching in Johnson vs. Zerbst 29 is
this: "It has been pointed out that "courts indulge every reasonable
presumption against waiver" of fundamental constitutional rights and that we
"do not presume acquiescence in the loss of fundamental rights." A waiver is
ordinarily an intentional relinquishment or abandonment of a known right or
privilege." Renuntiatio non praesumitur.
The foregoing guidelines, juxtaposed with the circumstances of the case
heretofore adverted to, make waiver a shaky defense. It cannot stand. If, by
his own admission, defendant proved his guilt, still, his original claim remains
valid. For the privilege, we say again, is a rampart that gives protection - even
to the guilty. 30
5. The course which petitioner takes is correct. Habeas corpus is a high
prerogative writ. 31 It is traditionally considered as an exceptional remedy to
release a person whose liberty is illegally restrained such as when the
accused's constitutional rights are disregarded. 32 Such defect results in the
absence or loss of jurisdiction 33 and therefore invalidates the trial and the
consequent conviction of the accused whose fundamental right was violated.
34 That void judgment of conviction may be challenged by collateral attack,
which precisely is the function of habeas corpus. 35 This writ may issue even if
another remedy which is less effective may be availed of by the defendant. 36
Thus, failure by the accused to perfect his appeal before the Court of Appeals
does not preclude a recourse to the writ. 37 The writ may be granted upon a
judgment already final. 38 For, as explained in Johnson vs. Zerbst, 39 the writ
of habeas corpus as an extraordinary remedy must be liberally given effect 40
so as to protect well a person whose liberty is at stake. The propriety of the
writ was given the nod in that case, involving a violation of another
constitutional right, in this wise:
Since the Sixth Amendment constitutionally entitles one charged with crime to
the assistance of Counsel, compliance with this constitutional mandate is an
essential jurisdictional prerequisite to a Federal Court's authority. When this
right is properly waived, the assistance of Counsel is no longer a necessary
element of the Court's jurisdiction to proceed to conviction and sentence. If the
accused, however, is not represented by Counsel and has not competently
and intelligently waived his constitutional right, the Sixth Amendment stands
as a jurisdictional bar to a valid conviction and sentence depriving him of his
liberty. A court's jurisdiction at the beginning of trial may be lost "in the course
of the proceedings" due to failure to complete the court — as the Sixth
Amendment requires — by providing Counsel for an accused who is unable to
obtain Counsel, who has not intelligently waived this constitutional guaranty,
and whose life or liberty is at stake. If this requirement of the Sixth Amendment
is not complied with, the court no longer has jurisdiction to proceed. The
judgment of conviction pronounced by a court without jurisdiction is void, and
one imprisoned thereunder may obtain release of habeas corpus. 41
Under our own Rules of Court, to grant the remedy to the accused Roger
Chavez whose case presents a clear picture of disregard of a constitutional
right is absolutely proper. Section 1 of Rule 102 extends the writ, unless
otherwise expressly provided by law, "to all cases of illegal confinement or
detention by which any person is deprived of his liberty, or by which the rightful
custody of any person is withheld from the person entitled thereto.
Just as we are about to write finis to our task, we are prompted to restate that:
"A void judgment is in legal effect no judgment. By it no rights are divested.
From it no rights can be obtained. Being worthless in itself, all proceedings
founded upon it are equally worthless. It neither binds nor bars any one. All
acts performed under it and all claims flowing out of it are void. The parties
attempting to enforce it may be responsible as trespassers. ... " 42
6. Respondents' return 43 shows that petitioner is still serving under a final
and valid judgment of conviction for another offense. We should guard against
the improvident issuance of an order discharging a petitioner from
confinement. The position we take here is that petitioner herein is entitled to
liberty thru habeas corpus only with respect to Criminal Case Q-5311 of the
Court of First Instance of Rizal, Quezon City Branch, under which he was
prosecuted and convicted.
Upon the view we take of this case, judgment is hereby rendered directing the
respondent Warden of the City Jail of Manila or the Director of Prisons or any
other officer or person in custody of petitioner Roger Chavez by reason of the
judgment of the Court of First Instance of Rizal, Quezon City Branch, in
Criminal Case Q-5311, entitled "People of the Philippines, plaintiff, vs. Ricardo
Sumilang, et al., accused," to discharge said Roger Chavez from custody,
unless he is held, kept in custody or detained for any cause or reason other
than the said judgment in said Criminal Case Q-5311 of the Court of First
Instance of Rizal, Quezon City Branch, in which event the discharge herein
directed shall be effected when such other cause or reason ceases to exist.
No costs. So ordered.
Concepcion, C.J., Reyes, J.B.L., Dizon, Makalintal, Zaldivar, Angeles and
Fernando, JJ., concur. Castro, J., concurs in a separate opinion.
Republic of the Philippines
SUPREME COURT
Manila
Page 12 of 101
EN BANC
G.R. No. L-33964 December 11, 1971
IN THE MATTER OF THE PETITION FOR HABEAS CORPUS OF
TEODOSIO LANSANG RODOLFO DEL ROSARIO, and BAYANI ALCALA,
petitioners,
vs.
BRIGADIER-GENERAL EDUARDO M. GARCIA, Chief, Philippine
Constabulary, respondent.
G.R. No. L-33965 December 11, 1971
ROGELIO V. ARIENDA, petitioner, vs. SECRETARY OF NATIONAL
DEFENSE, and CHIEF, PHIL. CONSTABULARY, respondents.
G.R. No. L-33973 December 11, 1971
LUZVIMINDA DAVID, petitioner, vs. GEN. EDUARDO GARCIA, in his capacity
as Chief, Philippine Constabulary, COL. N. C. CAMELLO, in his capacity as
Chief of Staff, Philippine Constabulary and HON. JUAN PONCE ENRILE in his
capacity as Secretary, Department of National defense, respondents.
G.R. No. L-33982 December 11, 1971
IN THE MATTER OF THE PETITION FOR HABEAS CORPUS OF NEMESIO
E. PRUDENTE FELICIDAD G. PRUDENTE, petitioners, vs. GENERAL
MANUEL YAN, GEN. EDU GARCIA, respondents.
G.R. No. L-34004 December 11, 1971
IN THE MATTER OF THE APPLICATION FOR HABEAS CORPUSIN
BEHALF OF GERARDO TOMAS, ALSO KNOWN AS "GERRY TOMAS" AND
FOR RETURN OF DOCUMENTS ILLEGALLY SEIZED. DOMINGO E. DE
LARA, in his capacity as Chairman, Committee on Legal Assistance,
Philippine Bar Association, petitioner, vs. BRIG. GENERAL EDUARDO M.
GARCIA, CHIEF, PHILIPPINE CONSTABULARY, respondent.
G.R. No. L-34013 December 11, 1971
REYNALDO RIMANDO, petitioner, vs. BRIG. GEN. EDUARDO M. GARCIA,
Chief of the Philippine Constabulary, respondent.
G.R. No. L-34039 December 11, 1971
IN THE MATTER OF THE APPLICATION FOR HABEAS CORPUSIN
BEHALF OF SGT. FILOMENO M. DE CASTRO AND HIS WIFE, MRS.
BARCELISA C. DE CASTRO. CARLOS C. RABAGO, in his capacity as
President of the Conference Delegates Association of the Philippines
(CONDA) petitioner, vs. BRIG. GEN. EDUARDO M. GARCIA, Chief, Philippine
Constabulary, respondent.
G.R. No. L-34265 December 11, 1971
IN THE MATTER OF THE PETITION FOR HABEAS CORPUS OF ANTOLIN
ORETA, JR. ANTOLIN ORETA, JR., petitioner, vs. GEN. EDUARDO GARCIA
and COL. PROSPERO OLIVAS, respondents.
G.R. No. L-34339 December 11, 1971
GARY B. OLIVAR, assisted by his father, GEORGE OLIVAR, petitioner, vs.
GEN. EDUARDO GARCIA, in his capacity as Chief, Philippine Constabulary,
et al., respondents.
CONCEPCION, C.J.:
In the evening of August 21, 1971, at about 9 p.m., while the Liberal Party of
the Philippines was holding a public meeting at Plaza Miranda, Manila, for the
presentation of its candidates in the general elections scheduled for November
8, 1971, two (2) hand grenades were thrown, one after the other, at the
platform where said candidates and other persons were. As a consequence,
eight (8) persons were killed and many more injured, including practically all of
the aforementioned candidates, some of whom sustained extensive, as well as
serious, injuries which could have been fatal had it not been for the timely
medical assistance given to them.
On August 23, soon after noontime, the President of the Philippines
announced the issuance of Proclamation No. 889, dated August 21, 1971,
reading as follows:
WHEREAS, on the basis of carefully evaluated information, it is definitely
established that lawless elements in the country, which are moved by common
or similar ideological conviction, design and goal and enjoying the active moral
and material support of a foreign power and being guided and directed by a
well-trained, determined and ruthless group of men and taking advantage of
our constitutional liberties to promote and attain their ends, have entered into a
conspiracy and have in fact joined and banded their forces together for the
avowed purpose of actually staging, undertaking and waging an armed
insurrection and rebellion in order to forcibly seize political power in this
country, overthrow the duly constituted government, and supplant our existing
political social, economic and legal order with an entirely new one whose form
of government, whose system of laws, whose conception of God and religion,
whose notion of individual rights and family relations, and whose political,
social and economic precepts are based on the Marxist-Leninist-Maoist
teachings and beliefs;
WHEREAS, these lawless elements, acting in concert through front
organizations that are seemingly innocent and harmless, have continuously
and systematically strengthened and broadened their memberships through
sustained and careful recruiting and enlistment of new adherents from among
our peasantry, laborers, professionals, intellectuals, students, and mass media
personnel, and through such sustained and careful recruitment and enlistment
have succeeded in infiltrating almost every segment of our society in their
ceaseless determination to erode and weaken the political, social, economic
and moral foundations of our existing government and to influence many
peasant, labor, professional, intellectual, student and mass media
organizations to commit acts of violence and depredations against our duly
constituted authorities, against the members of our law enforcement agencies,
and worst of all, against the peaceful members of our society;
WHEREAS, these lawless elements have created a state of lawlessness and
disorder affecting public safety and the security of the State, the latest
manifestation of which has been the dastardly attack on the Liberal Party rally
in Manila on August 21, 1971, which has resulted in the death and serious
injury of scores of persons;
WHEREAS, public safety requires that immediate and effective action be
taken in order to maintain peace and order, secure the safety of the people
and preserve the authority of the State;
NOW, THEREFORE, I, FERDINAND E. MARCOS, President of the
Philippines, by virtue of the powers vested upon me by Article VII, Section 10,
Paragraph (2) of the Constitution, do hereby suspend the privilege of the writ
of habeas corpus, for the persons presently detained, as well as others who
may be hereafter similarly detained for the crimes of insurrection or rebellion,
and all other crimes and offenses committed by them in furtherance or on the
occasion thereof, or incident thereto, or in connection therewith.
Presently, petitions for writ of habeas corpus were filed, in the above-entitled
cases, by the following persons, who, having been arrested without a warrant
therefor and then detained, upon the authority of said proclamation, assail its
validity, as well as that of their detention, namely:
1. TEDORO LANSANG, RODOLFO DEL ROSARIO and BAYANI
ALCALA, the petitioners in Case No. L-33964 — filed on August 24, 1971 —
who, on August 22, 1971, between 8 a.m. and 6 p.m., were "invited" by agents
of the Philippine Constabulary — which is under the command of respondent
Brig. Gen. Eduardo M. Garcia — to go and did go to the headquarters of the
Philippine Constabulary, at Camp Crame, Quezon City, for interrogation, and
thereafter, detained;
2. ROGELIO V. ARIENDA, the petitioner in Case No. L-33965 —
filed, also, on August 24, 1971 — who was picked up in his residence, at No.
55 Road, 3, Urduja Village, Quezon City, by members of the Metrocom and
then detained;
3. Soon after the filing of the petition in Case No. L-33965 — or on
August 28, 1971 — the same was amended to include VICENTE ILAO and
JUAN CARANDANG, as petitioners therein, although, apart from stating that
these additional petitioners are temporarily residing with the original petitioner,
Rogelio V. Arienda, the amended petition alleged nothing whatsoever as
regards the circumstances under which said Vicente Ilao and Juan Carandang
are said to be illegally deprived of their liberty;
4. LUZVIMINDO DAVID, petitioner in Case No. L-33973 — filed on
August 25, 1971 — who was similarly arrested in his residence, at No. 131-B
Kamias Road, Quezon City, and detained by the Constabulary;
5. Felicidad G. Prudente, who filed the petition in Case No. L-33982
— on August 27, 1971 — upon the ground that her father, Dr. NEMESIO E.
PRUDENTE, had, on August 22, 1971, at about 8 p.m., been apprehended by
Constabulary agents in his house, at St. Ignatius Village, Quezon City, and
then detained at the Camp Crame stockade, Quezon City;
6. ANGELO DE LOS REYES, who was allowed — on August 30,
1971 — to intervene as one of the petitioners in Cases Nos. L-33964, L-33965
and L-33973, he having been arrested by members of the Constabulary on
August 22, 1971, between 6:30 and 7:30 p.m., in his residence, at 86 Don
Manuel Street, Sta. Mesa Heights, Quezon City, and brought to Camp Crame,
Quezon City, where he is detained and restrained of liberty;
7. VICTOR FELIPE, who was similarly allowed to intervene as one of
the petitioners in said three (3) cases, upon the ground that, on August 23,
1971, at about 8 a.m., he was, likewise, apprehended at Sta. Rosa, Laguna,
by members of the Philippine Constabulary and brought, first to the
Constabulary headquarters at Canlubang, Laguna, and, then, to Camp Crame,
Quezon City, where he is detained and restrained of liberty;
8. TERESITO SISON, who was, also, allowed to intervene as one of
the petitioners in the same three (3) cases, he having been arrested in his
residence, at 318 Lakandula St., Angeles City, on August 22, 1971, between 6
and 7 p.m., and taken to the PC offices at Sto. Domingo, Angeles City, then to
Camp Olivas, San Fernando, Pampanga, and eventually to Camp Crame,
Quezon City, where he is restrained and deprived of liberty;
Page 13 of 101
9. GERARDO TOMAS, alias Gerry Tomas, a 17-year old second
year college students of St. Louis University, Baguio City, on whose behalf,
Domingo E. de Lara — in his capacity as Chairman, Committee on Legal
Assistance, Philippine Bar Association — filed on September 3, 1971, the
petition in Case No. L-34004, upon the ground that said Gerardo Tomas had,
on August 23, 1971, at about 6 a.m., been arrested by Constabulary agents,
while on his way to school in the City of Baguio, then brought to the
Constabulary premises therein at Camp Holmes, and, thereafter, taken, on
August 24, 1971, to Camp Olivas, Pampanga, and thence, on August 25,
1971, to the Constabulary headquarters at Camp Crame, Quezon City, where
he is detained;
10. REYNALDO RIMANDO, petitioner in Case No. L-34013 — filed on
September 7, 1971 — a 19-year old student of the U.P. College in Baguio city
— who, while allegedly on his way home, at Lukban Road, Baguio, on August
23, 1971, at about 1 a.m., was joined by three (3) men who brought him to the
Burnham Park, thence, to Camp Olivas at San Fernando, Pampanga, and,
thereafter, to Camp Crame, Quezon City, where he is detained;
11. Sgt. FILOMENO M. DE CASTRO and his wife, Mrs. BARCELISA
C. DE CASTRO, on whose behalf Carlos C. Rabago — as President of the
Conference Delegates Association of the Philippines (CONDA) — filed the
petition in Case No. L-34039 — on September 14, 1971 — against Gen.
Eduardo M. Garcia, alleging that, on August 27, 1971, at about 3 p.m., Mrs.
De Castro was arrested, while at Liamzon Subdivision, Rosario, Pasig, Rizal,
by agents of the Constabulary, and taken to the PC headquarters at Camp
Crame, where, later, that same afternoon, her husband was brought, also, by
PC agents and both are detained;
12. ANTOLIN ORETA, JR., who filed the petition in Case No. L-34265
— on October 26, 1971 — against said Gen. Garcia, as Chief of the
Constabulary, and Col. Prospero Olivas, Chief of the Central Intelligence
Service (CIS), Philippine Constabulary, alleging that, upon invitation from said
CIS, he went, on October 20, 1971, to Camp Aguinaldo, Quezon City, to see
Gen. Manuel Yan, Chief of Staff of the Armed Forces of the Philippines, who
referred petitioner to Col. Laroya of the CIS; that the latter, in turn, referred him
to CIS Investigator Atty. Berlin Castillo and another CIS against, whose name
is unknown to the petitioner; and that, after being interrogated by the two (2),
petitioner was detained illegally; and
13. GARY OLIVAR, petitioner in Case No. L-34339 — filed on
November 10, 1971 — who was apprehended, by agents of the Constabulary,
in the evening of November 8, 1941, in Quezon City, and then detained at
Camp Crame, in the same City.
Upon the filing of the aforementioned cases, the respondents were forthwith
required to answer the petitions therein, which they did. The return and answer
in L-33964 — which was, mutatis mutandis, reproduced substantially or by
reference in the other cases, except L-34265 — alleges, inter alia, that the
petitioners had been apprehended and detained "on reasonable belief" that
they had "participated in the crime of insurrection or rebellion;" that "their
continued detention is justified due to the suspension of the privilege of the
writ of habeas corpus pursuant to Proclamation No. 889 of the President of the
Philippines;" that there is "a state of insurrection or rebellion" in this country,
and that "public safety and the security of the State required the suspension of
the privilege of the writ of habeas corpus," as "declared by the President of the
Philippines in Proclamation No. 889; that in making said declaration, the
"President of the Philippines acted on relevant facts gathered thru the
coordinated efforts of the various intelligence agents of our government but
(of) which the Chief Executive could not at the moment give a full account and
disclosure without risking revelation of highly classified state secrets vital to its
safely and security"; that the determination thus made by the President is "final
and conclusive upon the court and upon all other persons" and "partake(s) of
the nature of political question(s) which cannot be the subject of judicial
inquiry," pursuant to Barcelon v. Baker, 5 Phil. 87, and Montenegro v.
Castañeda, 91 Phil. 882; that petitioners "are under detention pending
investigation and evaluation of culpabilities on the reasonable belief" that they
"have committed, and are still committing, individually or in conspiracy with
others, engaged in armed struggle, insurgency and other subversive activities
for the overthrow of the Government; that petitioners cannot raise, in these
proceedings for habeas corpus, "the question of their guilt or innocence"; that
the "Chief of Constabulary had petitioners taken into custody on the basis of
the existence of evidence sufficient to afford a reasonable ground to believe
that petitioners come within the coverage of persons to whom the privilege of
the writ of habeas corpus has been suspended"; that the "continuing detention
of the petitioners as an urgent bona fide precautionary and preventive
measure demanded by the necessities of public safety, public welfare and
public interest"; that the President of the Philippines has "undertaken concrete
and abundant steps to insure that the constitutional rights and privileges of the
petitioners as well as of the other persons in current confinement pursuant to
Proclamation 889 remain unimpaired and unhampered"; and that
"opportunities or occasions for abuses by peace officers in the implementation
of the proclamation have been greatly minimized, if not completely curtailed,
by various safeguards contained in directives issued by proper authority."
These safeguards are set forth in:
1. A letter of the President to the Secretary of National Defense,
dated August 21, 1971, directing, inter alia, in connection with the arrest or
detention of suspects pursuant to Proclamation No. 889, that, except when
caught in flagrante delicto, no arrest shall be made without warrant authorized
in writing by the Secretary of National Defense; that such authority shall not be
granted unless, "on the basis of records and other evidences," it appears
satisfactorily, in accordance with Rule 113, section 6(b), of the Rules of Court,
that the person to be arrested is probably guilty of the acts mentioned in the
proclamation; that, if such person will be charged with a crime subject to an
afflictive penalty under the Anti-Subversion Act, the authorization for his arrest
shall not be issued unless supported by signed intelligence reports citing at
least one reliable witness to the same overt act; that no unnecessary or
unreasonable force shall be used in effecting arrests; and that arrested
persons shall not be subject to greater restraint than is necessary for their
detention;
of habeas corpus for the persons presently detained, as well as all others who
may be hereafter similarly detained for the crimes of insurrection or rebellion [,]
and [all] other [crimes and offenses] overt acts committed by them in
furtherance [or on the occasion] thereof[,]. [or incident thereto, or in connection
therewith.]1
On September 1, 1971, Cases Nos. L-33964, L-33965, L-33973 and L-33982
were jointly heard and then the parties therein were allowed to file
memoranda, which were submitted from September 3 to September 9, 1971.

2. Communications of the Chief of the Constabulary, dated August Soon thereafter, or on September 18, 1971, Proclamation No. 889 was further
23, 27, and 30, 1971, to all units of his command, stating that the privilege of amended by Proclamation No. 889-B, lifting the suspension of the privilege of
the writ is suspended for no other persons than those specified in the the writ of habeas corpus in the following provinces, sub-provinces and cities
proclamation; that the same does not involve material law; that precautionary of the Philippine, namely:
measures should be taken to forestall violence that may be precipitated by
improper behavior of military personnel; that authority to cause arrest under A. PROVINCES:
the proclamation will be exercised only by the Metrocom, CMA, CIS, and
"officers occupying position in the provinces down to provincial commanders"; 1. Batanes 15. Negros Occ.
that there shall be no indiscriminate or mass arrests; that arrested persons 2. Ilocos Norte 16. Negros Or.
shall not be harmed and shall be accorded fair and humane treatment; and 3. Ilocos Sur 17. Cebu
that members of the detainee's immediate family shall be allowed to visit him 4. Abra 18. Bohol
twice a week; 5. Abra 19. Capiz
6. Pangasinan 20. Aklan
3. A memorandum of the Department of National Defense, dated 7. Batangas 21. Antique
September 2, 1971, directing the Chief of the Constabulary to establish 8. Catanduanes 22. Iloilo
appropriate Complaints and Action Bodies/Groups to prevent and/or check 9. Masbate 23. Leyte
any abuses in connection with the suspension of the privilege of the writ; and 10. Romblon 24. Leyte del Sur
11. Marinduque 25. Northern Samar
4. Executive Order No. 333, dated August 26, 1971, creating a 12. Or. Mindoro 26. Eastern Samar
Presidential Administrative Assistance Committee to hear complaints 13. Occ. Mindoro 27. Western Samar
regarding abuses committed in connection with the implementation of 14. Palawan.
Proclamation No. 889.
B. SUB-PROVINCES:
Respondents in L-33965 further alleged that therein petitioners Vicente Ilao
and Juan Carandang had been released from custody on August 31, 1971, 1. Guimaras 3. Siquior
"after it had been found that the evidence against them was insufficient." 2. Biliran

In L-34265, the "Answer and Return" filed by respondents therein traversed C. CITIES:
some allegations of fact and conclusions of law made in the petition therein
and averred that Antolin Oreta, Jr., the petitioner therein, had been and is 1. Laog 14. Bais
detained "on the basis of a reasonable ground to believe that he has 2. Dagupan 15. Dumaguete
committed overt acts in furtherance of rebellion or insurrection against the 3. San Carlos 16. Iloilo
government" and, accordingly, "comes within the class of persons as to whom 4. Batangas 17. Roxas
the privilege of the writ of habeas corpus has been suspended by 5. Lipa 18. Tagbilaran
Proclamation No. 889, as amended," the validity of which is not contested by 6. Puerto Princesa 19. Lapu-lapu
him. 7. San Carlos (Negros Occ.) 20. Cebu
8. Cadiz 21. Mandaue
On August 30, 1971, the President issued Proclamation No. 889-A, amending 9. Silay 22. Danao
Proclamation No. 889, so as to read as follows: 10. Bacolod 23. Toledo
11. Bago 24. Tacloban
WHEREAS, on the basis of carefully evaluated information, it is definitely 12. Canlaon 25. Ormoc
established that lawless elements in the country, which are moved by common 13. La Carlota 26. Calbayog
or similar ideological conviction, design and goal and enjoying the active moral
and material support of a foreign power and being guided and directed by a On September 25, 1971, the President issued Proclamation No. 889-C,
well-trained, determined and ruthless group of men and taking advantage of restoring the privilege of the writ in the following provinces and cities:
our constitutional liberties to promote and attain their ends, have entered into a
conspiracy and have in fact joined and banded their forces together for the A. PROVINCES:
avowed purpose of [actually] staging, undertaking, [and] wagging and are
actually engaged in an armed insurrection and rebellion in order to forcibly 1. Surigao del Norte 8. Agusan del Sur
seize political power in this country, overthrow the duly constituted 2. Surigao del Sur 9. Misamis Or.
government, and supplant our existing political, social, economic and legal 3. Davao del Norte 10. Misamis Occ.
order with an entirely new one whose form of government, whose system of 4. Davao del Sur 11. Zamboanga del Norte
laws, whose conception of God and religion, whose notion of individual rights 5. Davao Oriental 12. Basilan
and family relations, and whose political, social and economic precepts are 6. Bukidnon 13. Pagadian
based on the Marxist-Leninist-Maoist teaching and beliefs; 7. Agusan del Norte

WHEREAS, these lawless elements, acting in concert through front B. CITIES:

organizations that are seemingly innocent and harmless, have continuously
and systematically strengthened and broadened their memberships through 1. Surigao 8. Tangub
sustained and careful recruiting and enlistment of new adherents from among 2. Davao 9. Dapitan
our peasantly, laborers, professionals, intellectuals, students, and mass media 3. Butuan 10. Dipolog
personnel, and through such sustained and careful recruitment and enlistment 4. Cagayan 11. Zamboanga
have succeeded in infiltrating almost every segment of our society in their 5. Gingoong 12. Basilan
ceaseless determination to erode and weaken the political, social, economic 6. Ozamiz 13. Pagadian.
and moral foundations of our existing government and influence many 7. Oroquieta
peasant, labor, professional, intellectual, student and mass media
organizations to commit acts of violence and depredations against our duly On October 4, 1971, the suspension of the privilege was further lifted by
constituted authorities, against the members of our law enforcement agencies, Proclamation No. 889-D, in the following places:
and worst of all, against the peaceful members of our society;
A. PROVINCES:
WHEREAS, these lawless elements, by their acts of rebellion and insurrection,
have created a state of lawlessness and disorder affecting public safety and 1. Cagayan 5. Camarines
security of the State, the latest manifestation of which has been the dastardly 2. Cavite 6. Albay
attack on the Liberal Party rally in Manila on August 21, 1971, which has 3. Mountain Province 7. Sorsogon
resulted in the death and serious injury of scores of persons; 4. Kalinga-Apayao

WHEREAS, public safety requires that immediate and effective action be B. CITIES:
taken in order to maintain peace and order, secure the safety of the people
and preserve the authority of the State; 1. Cavite City 3. Trece Martires
2. Tagaytay 4. Legaspi
NOW THEREFORE, I, FERDINAND E. MARCOS, President of the
Philippines, by virtue of the powers vested upon me by Article VII, Section 10,
Paragraph (2) of the Constitution, do hereby suspend the privilege of the writ
Page 14 of 101
As a consequence, the privilege of the writ of habeas corpus is still suspended
in the following eighteen (18) provinces, two (2) sub-provinces and eighteen
(18) cities, to wit:
A. PROVINCE:
1. Bataan 10. North Cotabato
2. Benguet 11. Nueva Ecija
3. Bulacan 13. Pampanga
4. Camarines Sur 14. Quezon
5. Ifugao 15. Rizal
6. Isabela 16. South Cotabato
7. Laguna 17. Tarlac
8. Lanao del Norte 18. Zambales
9. Lanao del Norte
B. SUB-PROVINCES:
1. Aurora 2. Quirino
C. CITIES:
1. Angeles 10. Manila
2. Baguio 11. Marawi
3. Cabanatuan 12. Naga
4. Caloocan 13. Olongapo
5. Cotabato 14. Palayan
6. General Santos 15. Pasay
7. Iligan 16. Quezon
8 Iriga 17. San Jose
9 Lucena 18. San Pablo
The first major question that the Court had to consider was whether it would
adhere to the view taken in Barcelon v. Baker,2 and reiterated in Montenegro
v. Castañeda,3 pursuant to which, "the authority to decide whether the
exigency has arisen requiring suspension (of the privilege of the writ of habeas
corpus) belongs to the President and his 'decision is final and conclusive' upon
the courts and upon all other persons." Indeed, had said question been
decided in the affirmative the main issue in all of these cases, except L-34339,
would have been settled, and, since the other issues were relatively of minor
importance, said cases could have been readily disposed of. Upon mature
deliberation, a majority of the Members of the Court had, however, reached,
although tentatively, a consensus to the contrary, and decided that the Court
had authority to and should inquire into the existence of the factual bases
required by the Constitution for the suspension of the privilege of the writ; but
before proceeding to do so, the Court deemed it necessary to hear the parties
on the nature and extent of the inquiry to be undertaken, none of them having
previously expressed their views thereof. Accordingly, on October 5, 1971, the
Court issued, in L-33964, L-33965, L-33973 and L-33982, a resolution stating
in part that —
... a majority of the Court having tentatively arrived at a consensus that it may
inquire in order to satisfy itself of the existence of the factual bases for the
issuance of Presidential Proclamations Nos. 889 and 889-A (suspending the
privilege of the writ of habeas corpus for all persons detained or to be detained
for the crimes of rebellion or insurrection throughout the Philippines, which
area has lately been reduced to some eighteen provinces, two subprovinces
and eighteen cities with the partial lifting of the suspension of the privilege
effected by Presidential Proclamations Nos. 889-B, 889-C and 889-D) and
thus determine the constitutional sufficiency of such bases in the light of the
requirements of Article III, sec. 1, par. 14, and Article VII, sec. 10, par. 2, of the
Philippine Constitution; and considering that the members of the Court are not
agreed on the precise scope and nature of the inquiry to be made in the
premises, even as all of them are agreed that the Presidential findings are
entitled to great respect, the Court RESOLVED that these cases be set for
rehearing on October 8, 1971 at 9:30 A.M.
xxx xxx xxx
On October 8, 1971, said four cases were, therefore, heard, once again, but,
this time jointly with cases Nos. L-34004, L-34013, and L-34039, and the
parties were then granted a period to file memoranda, in amplification of their
respective oral arguments, which memoranda were submitted from October 12
to October 21, 1971.
Respondents having expressed, during the oral arguments, on September 1
and October 8, 1971, their willingness to impart to the Court classified
information relevant to these cases, subject to appropriate security measures,
the Court met at closed doors, on October 28 and 29, 1971, and, in the
presence of three (3) attorneys for the petitioners, chosen by the latter,
namely, Senator Jose W. Diokno, Senator Salvador H. Laurel, and Atty.
Leopoldo Africa, as well as of the Solicitor General and two (2) members of his
staff, was briefed, by Gen. Manuel Yan, Chief of Staff of the Armed Forces of
the Philippines, Gen. Fidel Ramos, Deputy Chief of Staff, Gen. Felizardo
Tanabe, Col. Tagumpay Nanadiego, Judge Advocate General, JAGS (GSC),
and other ranking officers of said Armed Forces, on said classified information,
most of which was contained in reports and other documents already attached
to the records. During the proceedings, the members of the Court, and,
occassionally, counsel for the petitioners, propounded pertinent questions to
said officers of the Armed Forces. Both parties were then granted a period of
time within which to submit their respective observations, which were filed on
November 3, 1971, and complemented by some documents attached to the
Page 15 of 101
records on November 6, 1971, and a summary, submitted on November 15,
1971, of the aforesaid classified information.
In the meantime, cases Nos. L-34265 (Oreta) and L-34339 (Olivar) had been
filed and the parties therein were heard in oral argument on November 4, and
16, 1971, respectively.
On November 15, 1971, the Solicitor General filed manifestations — motions
stating that on November 13, 1971, the following petitioners were:
(a) released from custody:
(1) Teodosio Lansang -- G.R. No. L-33964
(2) Bayani Alcala -- " " L-33964
(3) Rogelio Arienda -- " " L-33965
(4) Nemesio Prudente -- " " L-33982
(5) Gerardo Tomas -- " " L-34004
(6) Reynaldo Rimando -- " " L-34013
(7) Filomeno M. de Castro -- " " L-34039
(8) Barcelisa de Castro -- " " L-34039
(9) Antolin Oreta, Jr. -- " " L-34264.
(b) charged, together with other persons named in the criminal
complaint filed therefor, with a violation of Republic Act No. 1700 (Anti-
Subversion Act), in the City Fiscal's Office of Quezon City:
(1) Angelo de los Reyes -- G.R. No. L-22982 *
(2) Teresito Sison -- " " L-33982 *
(c) accused, together with many others named in the criminal
complaint filed therefor, of a violation of section 4 of Republic Act No. 1700
(Anti-Subversion Act), in the Court of First Instance of Rizal:
(1) Rodolfo del Rosario -- G.R. No. L-33969 **
(2) Luzvimindo David -- " " L-33973
(3) Victor Felipe -- " " L-33982 *
and continue under detention pursuant to Proclamation No. 889, as amended,
and praying that the petitions in G.R. Nos. L-33964, L-33965, L-33982, L-
34004, L-34013 and L-34039 be dismissed, without prejudice to the resolution
of the remaining cases. Copy of the criminal complaint filed, as above stated,
with the Court of First Instance of Rizal and docketed therein as Criminal Case
No. Q-1623 of said court — which was appended to said manifestations-
motions of the respondent as Annex 2 thereof — shows that Gary Olivar, the
petitioner in L-34339, is one of the defendants in said case.
Required to comment on said manifestations-motions, Luzvimindo David,
petitioner in L-33973, in his comment dated November 23, 1971, urged the
Court to rule on the merits of the petitions in all of these cases, particularly on
the constitutionality of Presidential Proclamation No. 889, as amended, upon
the ground that he is still detained and that the main issue is one of public
interest involving as it does the civil liberties of the people. Angelo de los
Reyes, one of the petitioners in L-33964, L-33965 and L-33973, Nemesio E.
Prudente and Gerardo Tomas, for whose respective benefit the petitions in L-
33982 and L-34004 have been filed, maintained that the issue in these cases
is not moot, not even for the detainees who have been released, for, as long
as the privilege of the writ remains suspended, they are in danger of being
arrested and detained again without just cause or valid reason. In his reply,
dated and filed on November 29, 1971, the Solicitor General insisted that the
release of the above-named petitioners rendered their respective petitions
moot and academic.
I
Petitioners herein, except Antolin Oreta, Jr. in L-34265, question the formal
validity of the proclamation suspending the privilege of the writ of habeas
corpus. In this connection, it should be noted that, as originally formulated,
Proclamation No. 889 was contested upon the ground that it did not comply
with the pertinent constitutional provisions, namely, paragraph (14) of section
1, Article III of our Constitution, reading:
The privilege of the writ of habeas corpus shall not be suspended except in
cases of invasion, insurrection, or rebellion, when the public safety requires it,
in any way of which events the same may be suspended wherever during
such period the necessity for such suspension shall exist.
and paragraph (2), section 10, Article VII of the same instrument, which
provides that:
The President shall be commander-in-chief of all armed forces of the
Philippines, and whenever it becomes necessary, he may call out such armed
forces to prevent or suppress lawless violence, invasion, insurrection, or
rebellion. In case of invasion, insurrection, or rebellion, or imminent danger
thereof when the public safety requires it, he may suspend the privileges of the
writ of habeas corpus, or place the Philippines or any part thereof under
martial law.
Regardless of whether or not the President may suspend the privilege of the
writ of habeas corpus in case of "imminent danger" of invasion, insurrection or
rebellion — which is one of the grounds stated in said paragraph (2), section
10 of Art. VII of the Constitution, but not mentioned in paragraph (14), section
1 of its Bill of Rights — petitioners maintained that Proclamation No. 889 did
not declare the existence of actual "invasion insurrection or rebellion or
imminent danger thereof," and that, consequently, said Proclamation was
invalid. This contention was predicated upon the fact that, although the first
"whereas" in Proclamation No. 889 stated that "lawless elements" had
"entered into a conspiracy and have in fact joined and banded their forces
together for the avowed purpose of actually staging, undertaking and waging
an armed insurrection and rebellion," the actuality so alleged refers to the
existence, not of an uprising that constitutes the essence of a rebellion or
insurrection, but of the conspiracy and the intent to rise in arms.
Whatever may be the merit of this claim, the same has been rendered moot
and academic by Proclamation No. 889-A, issued nine (9) days after the
promulgation of the original proclamation, or on August 30, 1971. Indeed, said
Proclamation No. 889-A amended, inter alia, the first "whereas" of the original
proclamation by postulating the said lawless elements "have entered into a
conspiracy and have in fact joined and banded their forces together for the
avowed purpose of staging, undertaking, waging and are actually engaged in
an armed insurrection and rebellion in order to forcibly seize political power in
this country, overthrow the duly constituted government, and supplant our
existing political, social, economic and legal order with an entirely new one ...."
Moreover, the third "whereas" in the original proclamation was, likewise,
amended by alleging therein that said lawless elements, "by their acts of
rebellion and insurrection," have created a state of lawlessness and disorder
affecting public safety and the security of the State. In other words, apart from
adverting to the existence of actual conspiracy and of the intent to rise in arms
to overthrow the government, Proclamation No. 889-A asserts that the lawless
elements "are actually engaged in an armed insurrection and rebellion" to
accomplish their purpose.
It may not be amiss to note, at this juncture, that the very tenor of the original
proclamation and particularly, the circumstances under which it had been
issued, clearly suggest the intent to aver that there was and is, actually, a
state of rebellion in the Philippines, although the language of said
proclamation was hardly a felicitous one, it having in effect, stressed the
actuality of the intent to rise in arms, rather than of the factual existence of the
rebellion itself. The pleadings, the oral arguments and the memoranda of
respondents herein have consistently and abundantly emphasized — to justify
the suspension of the privilege of the writ of habeas corpus — the acts of
violence and subversion committed prior to August 21, 1971, by the lawless
elements above referred to, and the conditions obtaining at the time of the
issuance of the original proclamation. In short, We hold that Proclamation No.
889-A has superseded the original proclamation and that the flaws attributed
thereto are purely formal in nature.
II
Let us now consider the substantive validity of the proclamation, as amended.
Pursuant to the above-quoted provisions of the Constitution, two (2) conditions
must concur for the valid exercise of the authority to suspend the privilege to
the writ, to wit: (a) there must be "invasion, insurrection, or rebellion" or —
pursuant to paragraph (2), section 10 of Art. VII of the Constitution —
"imminent danger thereof," and (b) "public safety" must require the suspension
of the privilege. The Presidential Proclamation under consideration declares
that there has been and there is actually a state of rebellion and that4 "public
safety requires that immediate and effective action be taken in order to
maintain peace and order, secure the safety of the people and preserve the
authority of the State."
Are these findings conclusive upon the Court? Respondents maintain that they
are, upon the authority of Barcelon v. Baker5 and Montenegro v. Castañeda.6
Upon the other hand, petitioners press the negative view and urge a
reexamination of the position taken in said two (2) cases, as well as a reversal
thereof.
The weight of Barcelon v. Baker, as a precedent, is diluted by two (2) factors,
namely: (a) it relied heavily upon Martin v. Mott7 involving the U.S. President's
power to call out the militia, which — he being the commander-in-chief of all
the armed forces — may be exercised to suppress or prevent any lawless
violence, even without invasion, insurrection or rebellion, or imminent danger
thereof, and is, accordingly, much broader than his authority to suspend the
privilege of the writ of habeas corpus, jeopardizing as the latter does individual
liberty; and (b) the privilege had been suspended by the American Governor-
General, whose act, as representative of the Sovereign, affecting the freedom
of its subjects, can hardly be equated with that of the President of the
Philippines dealing with the freedom of the Filipino people, in whom
sovereignty resides, and from whom all government authority emanates. The
pertinent ruling in the Montenegro case was based mainly upon the Barcelon
case, and hence, cannot have more weight than the same. Moreover, in the
Barcelon case, the Court held that it could go into the question: "Did the
Governor-General" — acting under the authority vested in him by the
Congress of the United States, to suspend the privilege of the writ of habeas
corpus under certain conditions — "act in conformance with such authority?" In
other words, it did determine whether or not the Chief Executive had acted in
accordance with law. Similarly, in the Montenegro case, the Court held that
petitioner therein had "failed to overcome the presumption of correctness
which the judiciary accords to acts of the Executive ...." In short, the Court
considered the question whether or not there really was are rebellion, as
stated in the proclamation therein contested.
Incidentally, even the American jurisprudence is neither explicit nor clear on
the point under consideration. Although some cases8 purport to deny the
judicial power to "review" the findings made in the proclamations assailed in
said cases, the tenor of the opinions therein given, considered as a whole,
strongly suggests the court's conviction that the conditions essential for the
Page 16 of 101
validity of said proclamations or orders were, in fact, present therein, just as
the opposite view taken in other cases9 had a backdrop permeated or
characterized by the belief that said conditions were absent. Hence, the
dictum of Chief Justice Taney to the effect that "(e)very case must depend on
its own circumstances." 10 One of the important, if not dominant, factors, in
connection therewith, was intimated in Sterling v. Constantin, 11 in which the
Supreme Court of the United States, speaking through Chief Justice Hughes,
declared that:
.... When there is a substantial showing that the exertion of state power has
overridden private rights secured by that Constitution, the subject is
necessarily one for judicial inquiry in an appropriate proceeding directed
against the individuals charged with the transgression. To such a case the
Federal judicial power extends
(Art. 3, sec. 2) and, so extending, the court has all the authority appropriate to
its exercise. .... 12
In our resolution of October 5, 1971, We stated that "a majority of the Court"
had "tentatively arrived at a consensus that it may inquire in order to satisfy
itself of the existence of the factual bases for the issuance of Presidential
Proclamations Nos. 889 and 889-A ... and thus determine the constitutional
sufficiency of such bases in the light of the requirements of Article III, sec. 1,
par. 14, and Article VII, sec. 10, par 2, of the Philippine Constitution...." Upon
further deliberation, the members of the Court are now unanimous in the
conviction that it has the authority to inquire into the existence of said factual
bases in order to determine the constitutional sufficiency thereof.
Indeed, the grant of power to suspend the privilege is neither absolute nor
unqualified. The authority conferred by the Constitution, both under the Bill of
Rights and under the Executive Department, is limited and conditional. The
precept in the Bill of Rights establishes a general rule, as well as an exception
thereto. What is more, it postulates the former in the negative, evidently to
stress its importance, by providing that "(t)he privilege of the writ of habeas
corpus shall not be suspended ...." It is only by way of exception that it permits
the suspension of the privilege "in cases of invasion, insurrection, or rebellion"
— or, under Art VII of the Constitution, "imminent danger thereof" — "when the
public safety requires it, in any of which events the same may be suspended
wherever during such period the necessity for such suspension shall exist." 13
For from being full and plenary, the authority to suspend the privilege of the
writ is thus circumscribed, confined and restricted, not only by the prescribed
setting or the conditions essential to its existence, but, also, as regards the
time when and the place where it may be exercised. These factors and the
aforementioned setting or conditions mark, establish and define the extent, the
confines and the limits of said power, beyond which it does not exist. And, like
the limitations and restrictions imposed by the Fundamental Law upon the
legislative department, adherence thereto and compliance therewith may,
within proper bounds, be inquired into by courts of justice. Otherwise, the
explicit constitutional provisions thereon would be meaningless. Surely, the
framers of our Constitution could not have intended to engage in such a
wasteful exercise in futility.
Much less may the assumption be indulged in when we bear in mind that our
political system is essentially democratic and republican in character and that
the suspension of the privilege affects the most fundamental element of that
system, namely, individual freedom. Indeed, such freedom includes and
connotes, as well as demands, the right of every single member of our
citizenry to freely discuss and dissent from, as well as criticize and denounce,
the views, the policies and the practices of the government and the party in
power that he deems unwise, improper or inimical to the commonwealth,
regardless of whether his own opinion is objectively correct or not. The
untrammelled enjoyment and exercise of such right — which, under certain
conditions, may be a civic duty of the highest order — is vital to the democratic
system and essential to its successful operation and wholesome growth and
development.
Manifestly, however, the liberty guaranteed and protected by our Basic Law is
one enjoyed and exercised, not in derogation thereof, but consistently
therewith, and, hence, within the framework of the social order established by
the Constitution and the context of the Rule of Law. Accordingly, when
individual freedom is used to destroy that social order, by means of force and
violence, in defiance of the Rule of Law — such as by rising publicly and
taking arms against the government to overthrow the same, thereby
committing the crime of rebellion — there emerges a circumstance that may
warrant a limited withdrawal of the aforementioned guarantee or protection, by
suspending the privilege of the writ of habeas corpus, when public safety
requires it. Although we must be forewarned against mistaking mere dissent
— no matter how emphatic or intemperate it may be — for dissidence
amounting to rebellion or insurrection, the Court cannot hesitate, much less
refuse — when the existence of such rebellion or insurrection has been fairly
established or cannot reasonably be denied — to uphold the finding of the
Executive thereon, without, in effect, encroaching upon a power vested in him
by the Supreme Law of the land and depriving him, to this extent, of such
power, and, therefore, without violating the Constitution and jeopardizing the
very Rule of Law the Court is called upon to epitomize.
As heretofore adverted to, for the valid suspension of the privilege of the writ:
(a) there must be "invasion, insurrection or rebellion" or — pursuant to
paragraph (2), section 10 of Art. VII of the Constitution — "imminent danger
thereof"; and (b) public safety must require the aforementioned suspension.
The President declared in Proclamation No. 889, as amended, that both
conditions are present.
As regards the first condition, our jurisprudence 14 attests abundantly to the
Communist activities in the Philippines, especially in Manila, from the late
twenties to the early thirties, then aimed principally at incitement to sedition or
rebellion, as the immediate objective. Upon the establishment of the
Commonwealth of the Philippines, the movement seemed to have waned
notably; but, the outbreak of World War II in the Pacific and the miseries, the
devastation and havoc, and the proliferation of unlicensed firearms
concomitant with the military occupation of the Philippines and its subsequent
liberation, brought about, in the late forties, a resurgence of the Communist
threat, with such vigor as to be able to organize and operate in Central Luzon
an army — called HUKBALAHAP, during the occupation, and renamed
Hukbong Mapagpalaya ng Bayan (HMP) after liberation — which clashed
several times with the armed forces of the Republic. This prompted then
President Quirino to issue Proclamation No. 210, dated October 22, 1950,
suspending the privilege of the writ of habeas corpus, the validity of which was
upheld in Montenegro v. Castañeda. 15 Days before the promulgation of said
Proclamation, or on October 18, 1950, members of the Communist Politburo in
the Philippines were apprehended in Manila. Subsequently accused and
convicted of the crime of rebellion, they served their respective sentences. 16
The fifties saw a comparative lull in Communist activities, insofar as peace and
order were concerned. Still, on June 20, 1957, Rep. Act No. 1700, otherwise
known as the Anti-Subversion Act, was approved, upon the ground — stated
in the very preamble of said statute — that.
... the Communist Party of the Philippines, although purportedly a political
party, is in fact an organized conspiracy to overthrow the Government of the
Republic of the Philippines, not only by force and violence but also by deceit,
subversion and other illegal means, for the purpose of establishing in the
Philippines a totalitarian regime subject to alien domination and control;
... the continued existence and activities of the Communist Party of the
Philippines constitutes a clear, present and grave danger to the security of the
Philippines; 17 and
... in the face of the organized, systematic and persistent subversion, national
in scope but international in direction, posed by the Communist Party of the
Philippines and its activities, there is urgent need for special legislation to cope
with this continuing menace to the freedom and security of the country....
In the language of the Report on Central Luzon, submitted, on September 4,
1971, by the Senate Ad Hoc Committee of Seven — copy of which Report was
filed in these cases by the petitioners herein —
The years following 1963 saw the successive emergence in the country of
several mass organizations, notably the Lapiang Manggagawa (now the
Socialist Party of the Philippines) among the workers; the Malayang Samahan
ng mga Magsasaka (MASAKA) among the peasantry; the Kabataang
Makabayan (KM) among the youth/students; and the Movement for the
Advancement of Nationalism (MAN) among the intellectuals/professionals. The
PKP has exerted all-out effort to infiltrate, influence and utilize these
organizations in promoting its radical brand of nationalism.
Meanwhile, the Communist leaders in the Philippines had been split into two
(2) groups, one of which — composed mainly of young radicals, constituting
the Maoist faction — reorganized the Communist Party of the Philippines early
in 1969 and established a New People's Army. This faction adheres to the
Maoist concept of the "Protracted People's War" or "War of National
Liberation." Its "Programme for a People's Democratic Revolution" states, inter
alia:
The Communist Party of the Philippines is determined to implement its general
programme for a people's democratic revolution. All Filipino communists are
ready to sacrifice their lives for the worthy cause of achieving the new type of
democracy, of building a new Philippines that is genuinely and completely
independent, democratic, united, just and prosperous ...
xxx xxx xxx
The central task of any revolutionary movement is to seize political power. The
Communist Party of the Philippines assumes this task at a time that both the
international and national situations are favorable of asking the road of armed
revolution ... 19
In the year 1969, the NPA had — according to the records of the Department
of National Defense — conducted raids, resorted to kidnappings and taken
part in other violent incidents numbering over 230, in which it inflicted 404
casualties, and, in turn, suffered 243 losses. In 1970, its records of violent
incidents was about the same, but the NPA casualties more than doubled.
At any rate, two (2) facts are undeniable: (a) all Communists, whether they
belong to the traditional group or to the Maoist faction, believe that force and
violence are indispensable to the attainment of their main and ultimate
objective, and act in accordance with such belief, although they may disagree
on the means to be used at a given time and in a particular place; and (b)
there is a New People's Army, other, of course, that the arm forces of the
Republic and antagonistic thereto. Such New People's Army is per se proof of
the existence of a rebellion, especially considering that its establishment was
announced publicly by the reorganized CPP. Such announcement is in the
nature of a public challenge to the duly constituted authorities and may be
likened to a declaration of war, sufficient to establish a war status or a
condition of belligerency, even before the actual commencement of hostilities.
Page 17 of 101
We entertain, therefore, no doubts about the existence of a sizeable group of
men who have publicly risen in arms to overthrow the government and have
thus been and still are engaged in rebellion against the Government of the
Philippines.
In fact, the thrust of petitioners' argument is that the New People's Army
proper is too small, compared with the size of the armed forces of the
Government, that the Communist rebellion or insurrection cannot so endanger
public safety as to require the suspension of the privilege of the writ of habeas
corpus. This argument does not negate, however, the existence of a rebellion,
which, from the constitutional and statutory viewpoint, need not be widespread
or attain the magnitude of a civil war. This is apparent from the very provision
of the Revised Penal Code defining the crime of rebellion, 20 which may be
limited in its scope to "any part" of the Philippines, and, also, from paragraph
(14) of section 1, Article III of the Constitution, authorizing the suspension of
the privilege of the writ "wherever" — in case of rebellion — "the necessity for
such suspension shall exist." In fact, the case of Barcelon v. Baker referred to
a proclamation suspending the privilege in the provinces of Cavite and
Batangas only. The case of In re Boyle 21 involved a valid proclamation
suspending the privilege in a smaller area — a country of the state of Idaho.
The magnitude of the rebellion has a bearing on the second condition
essential to the validity of the suspension of the privilege — namely, that the
suspension be required by public safety. Before delving, however, into the
factual bases of the presidential findings thereon, let us consider the precise
nature of the Court's function in passing upon the validity of Proclamation No.
889, as amended.
Article VII of the Constitution vests in the Executive the power to suspend the
privilege of the writ of habeas corpus under specified conditions. Pursuant to
the principle of separation of powers underlying our system of government, the
Executive is supreme within his own sphere. However, the separation of
powers, under the Constitution, is not absolute. What is more, it goes hand in
hand with the system of checks and balances, under which the Executive is
supreme, as regards the suspension of the privilege, but only if and when he
acts within the sphere allotted to him by the Basic Law, and the authority to
determine whether or not he has so acted is vested in the Judicial Department,
which, in this respect, is, in turn, constitutionally supreme.
In the exercise of such authority, the function of the Court is merely to check
— not to supplant 22 — the Executive, or to ascertain merely whether he had
gone beyond the constitutional limits of his jurisdiction, not to exercise the
power vested in him or to determine the wisdom of his act. To be sure, the
power of the Court to determine the validity of the contested proclamation is
far from being identical to, or even comparable with, its power over ordinary
civil or criminal cases elevated thereto by ordinary appeal from inferior courts,
in which cases the appellate court has all of the powers of the court of origin.
Under the principle of separation of powers and the system of checks and
balances, the judicial authority to review decisions of administrative bodies or
agencies is much more limited, as regards findings of fact made in said
decisions. Under the English law, the reviewing court determines only whether
there is some evidentiary basis for the contested administrative findings; no
quantitative examination of the supporting evidence is undertaken. The
administrative findings can be interfered with only if there is no evidence
whatsoever in support thereof, and said finding is, accordingly, arbitrary,
capricious and obviously unauthorized. This view has been adopted by some
American courts. It has, likewise, been adhered to in a number of Philippine
cases. Other cases, in both jurisdictions, have applied the "substantial
evidence" rule, which has been construed to mean "more than a mere scintilla"
or "relevant evidence as a reasonable mind might accept as adequate to
support a conclusion," 23 even if other minds equally reasonable might
conceivably opine otherwise.
Manifestly, however, this approach refers to the review of administrative
determinations involving the exercise of quasi-judicial functions calling for or
entailing the reception of evidence. It does not and cannot be applied, in its
aforesaid form, in testing the validity of an act of Congress or of the Executive,
such as the suspension of the privilege of the writ of habeas corpus, for, as a
general rule, neither body takes evidence — in the sense in which the term is
used in judicial proceedings — before enacting a legislation or suspending the
writ. Referring to the test of the validity of a statute, the Supreme Court of the
United States, speaking through Mr. Justice Roberts, expressed, in the leading
case of Nebbia v. New York, 24 the view that:
... If the laws passed are seen to have a reasonable relation to a proper
legislative purpose, and are neither arbitrary nor discriminatory, the
requirements of due process are satisfied, and judicial determination to that
effect renders a court functus officio ... With the wisdom of the policy adopted,
with the adequacy or practically of the law enacted to forward it, the courts are
both incompetent and unauthorized to deal ...
Relying upon this view, it is urged by the Solicitor General —
... that judicial inquiry into the basis of the questioned proclamation can go no
further than to satisfy the Court not that the President's decision is correct and
that public safety was endanger by the rebellion and justified the suspension
of the writ, but that in suspending the writ, the President did not act arbitrarily.
No cogent reason has been submitted to warrant the rejection of such test.
Indeed, the co-equality of coordinate branches of the Government, under our
constitutional system, seems to demand that the test of the validity of acts of
Congress and of those of the Executive be, mutatis mutandis, fundamentally
the same. Hence, counsel for petitioner Rogelio Arienda admits that the proper
standard is not correctness, but arbitrariness.
Did public safety require the suspension of the privilege of the writ of habeas
corpus decreed in Proclamation No. 889, as amended? Petitioners submit a
negative answer upon the ground: (a) that there is no rebellion; (b) that, prior
to and at the time of the suspension of the privilege, the Government was
functioning normally, as were the courts; (c) that no untoward incident,
confirmatory of an alleged July-August Plan, has actually taken place after
August 21, 1971; (d) that the President's alleged apprehension, because of
said plan, is non-existent and unjustified; and (e) that the Communist forces in
the Philippines are too small and weak to jeopardize public safety to such
extent as to require the suspension of the privilege of the writ of habeas
corpus.
As above indicated, however, the existence of a rebellion is obvious, so much
so that counsel for several petitioners herein have admitted it.
With respect to the normal operation of government, including courts, prior to
and at the time of the suspension of the privilege, suffice it to say that, if the
conditions were such that courts of justice no longer functioned, a suspension
of the privilege would have been unnecessary, there being no courts to issue
the writ of habeas corpus. Indeed, petitioners' reference to the normal
operation of courts as a factor indicative of the illegality of the contested act of
the Executive stems, perhaps, from the fact that this circumstance was
adverted to in some American cases to justify the invalidation therein decreed
of said act of the Executive. Said cases involved, however, the conviction by
military courts of members of the civilian population charged with common
crimes. It was manifestly, illegal for military courts to assume jurisdiction over
civilians so charged, when civil courts were functioning normally.
Then, too, the alleged absence of any untoward incident after August 21,
1971, does not necessarily bear out petitioners' view. What is more, it may
have been due precisely to the suspension of the privilege. To be sure, one of
its logical effects is to compel those connected with the insurrection or
rebellion to go into hiding. In fact, most of them could not be located by the
authorities, after August 21, 1971.
The alleged July-August Plan to terrorize Manila is branded as incredible,
upon the theory that, according to Professor Egbal Ahman of Cornell
University, "guerrilla use of terror ... is sociological and psychologically
selective," and that the indiscriminate resort to terrorism is bound to
boomerang, for it tends to alienate the people's symphaty and to deprive the
dissidents of much needed mass support. The fact, however, is that the
violence used is some demonstrations held in Manila in 1970 and 1971 tended
to terrorize the bulk of its inhabitants. It would have been highly imprudent,
therefore, for the Executive to discard the possibility of a resort to terrorism, on
a much bigger scale, under the July-August Plan.
We will now address our attention to petitioners' theory to the effect that the
New People's Army of the Communist Party of the Philippines is too small to
pose a danger to public safety of such magnitude as to require the suspension
of the privilege of the writ of habeas corpus. The flaw in petitioners' stand
becomes apparent when we consider that it assumes that the Armed Forces
of the Philippines have no other task than to fight the New People's Army, and
that the latter is the only threat — and a minor one — to our security. Such
assumption is manifestly erroneous.
The records before Us show that, on or before August 21, 1971, the Executive
had information and reports — subsequently confirmed, in many respects, by
the abovementioned Report of the Senate Ad-Hoc Committee of Seven 25 —
to the effect that the Communist Party of the Philippines does not merely
adhere to Lenin's idea of a swift armed uprising; that it has, also, adopted Ho
Chi Minh's terrorist tactics and resorted to the assassination of uncooperative
local official; that, in line with this policy, the insurgents have killed 5 mayors,
20 barrio captains and 3 chiefs of police; that there were fourteen (14)
meaningful bombing incidents in the Greater Manila Area in 1970; that the
Constitutional Convention Hall was bombed on June 12, 1971; that, soon after
the Plaza Miranda incident, the NAWASA main pipe, at the Quezon City-San
Juan boundary, was bombed; that this was followed closely by the bombing of
the Manila City Hall, the COMELEC building, the Congress Building and the
MERALCO substation at Cubao, Quezon City; and that the respective
residences of Senator Jose J. Roy and Congressman Eduardo Cojuangco
were, likewise, bombed, as were the MERALCO main office premises, along
Ortigas Avenue, and the Doctor's Pharmaceuticals, Inc. Building, in Caloocan
City.
Petitioners, similarly, fail to take into account that — as per said information
and reports — the reorganized Communist Party of the Philippines has,
moreover, adopted Mao's concept of protracted people's war, aimed at the
paralyzation of the will to resist of the government, of the political, economic
and intellectual leadership, and of the people themselves; that conformably to
such concept, the Party has placed special emphasis upon a most extensive
and intensive program of subversion by the establishment of front
organizations in urban centers, the organization of armed city partisans and
the infiltration in student groups, labor unions, and farmer and professional
groups; that the CPP has managed to infiltrate or establish and control nine (9)
major labor organizations; that it has exploited the youth movement and
succeeded in making Communist fronts of eleven (11) major student or youth
organizations; that there are, accordingly, about thirty (30) mass organizations
actively advancing the CPP interests, among which are the Malayang
Samahan ng Magsasaka (MASAKA), the Kabataang Makabayan (KM), the
Movement for the Advancement of Nationalism (MAN), the Samahang
Page 18 of 101
Demokratiko ng Kabataan (SDK), the Samahang Molave (SM) and the
Malayang Pagkakaisa ng Kabataang Pilipino(MPKP); that, as of August, 1971,
the KM had two hundred forty-five (245) operational chapters throughout the
Philippines, of which seventy-three (73) were in the Greater Manila Area, sixty
(60) in Northern Luzon, forty-nine (49) in Central Luzon, forty-two (42) in the
Visayas and twenty-one (21) in Mindanao and Sulu; that in 1970, the Party
had recorded two hundred fifty-eight (258) major demonstrations, of which
about thirty-three (33) ended in violence, resulting in fifteen (15) killed and
over five hundred (500) injured; that most of these actions were organized,
coordinated or led by the aforementioned front organizations; that the violent
demonstrations were generally instigated by a small, but well-trained group of
armed agitators; that the number of demonstrations heretofore staged in 1971
has already exceeded those of 1970; and that twenty-four (24) of these
demonstrations were violent, and resulted in the death of fifteen (15) persons
and the injury of many more.
Subsequent events — as reported — have also proven that petitioners'
counsel have underestimated the threat to public safety posed by the New
People's Army. Indeed, it appears that, since August 21, 1971, it had in
Northern Luzon six (6) encounters and staged one (1) raid, in consequence of
which seven (7) soldiers lost their lives and two (2)others were wounded,
whereas the insurgents suffered five (5) casualties; that on August 26, 1971, a
well-armed group of NPA, trained by defector Lt. Victor Corpus, attacked the
very command port of TF LAWIN in Isabela, destroying two (2) helicopters and
one (1) plane, and wounding one (1) soldier; that the NPA had in Central
Luzon a total of four (4) encounters, with two (2) killed and three (3) wounded
on the side of the Government, one (1) BSDU killed and three (3) NPA
casualties; that in an encounter at Botolan, Zambales, one (1) KM-SDK leader,
an unidentified dissident, and Commander Panchito, leader of the dissident
group were killed; that on August 26, 1971, there was an encounter in the
barrio of San Pedro. Iriga City, Camarines Sur, between the PC and the NPA,
in which a PC and two (2) KM members were killed; that the current
disturbances in Cotabato and the Lanao provinces have been rendered more
complex by the involvement of the CPP/NPA, for, in mid-1971, a KM group,
headed by Jovencio Esparagoza, contacted the Higa-onan tribes, in their
settlement in Magsaysay, Misamis Oriental, and offered them books,
pamphlets and brochures of Mao Tse Tung, as well as conducted teach-ins in
the reservation; that Esparagoza an operation of the PC in said reservation;
and that there are now two (2) NPA cadres in Mindanao.
It should, also, be noted that adherents of the CPP and its front organizations
are, according to intelligence findings, definitely capable of preparing powerful
explosives out of locally available materials; that the bomb used in the
Constitutional Convention Hall was a "clay-more" mine, a powerful explosive
device used by the U.S. Army, believed to have been one of many pilfered
from the Subic Naval Base a few days before; that the President had received
intelligence information to the effect that there was a July-August Plan
involving a wave of assassinations, kidnappings, terrorism and mass
destruction of property and that an extraordinary occurence would signal the
beginning of said event; that the rather serious condition of peace and order in
Mindanao, particularly in Cotabato and Lanao, demanded the presence
therein of forces sufficient to cope with the situation; that a sizeable part of our
armed forces discharge other functions; and that the expansion of the CPP
activities from Central Luzon to other parts of the country, particularly Manila
and its suburbs, the Cagayan Valley, Ifugao, Zambales, Laguna, Quezon and
Bicol Region, required that the rest of our armed forces be spread thin over a
wide area.
Considering that the President was in possession of the above data — except
those related to events that happened after August 21, 1971 — when the
Plaza Miranda bombing took place, the Court is not prepared to hold that the
Executive had acted arbitrarily or gravely abused his discretion when he then
concluded that public safety and national security required the suspension of
the privilege of the writ, particularly if the NPA were to strike simultaneously
with violent demonstrations staged by the two hundred forty-five (245) KM
chapters, all over the Philippines, with the assistance and cooperation of the
dozens of CPP front organizations, and the bombing or water mains and
conduits, as well as electric power plants and installations — a possibility
which, no matter how remote, he was bound to forestall, and a danger he was
under obligation to anticipate and arrest.
He had consulted his advisers and sought their views. He had reason to feel
that the situation was critical — as, indeed, it was — and demanded
immediate action. This he took believing in good faith that public safety
required it. And, in the light of the circumstances adverted to above, he had
substantial grounds to entertain such belief.
Petitioners insist that, nevertheless, the President had no authority to suspend
the privilege in the entire Philippines, even if he may have been justified in
doing so in some provinces or cities thereof. At the time of the issuance of
Proclamation No. 889, he could not be reasonably certain, however, about the
placed to be excluded from the operation of the proclamation. He needed
some time to find out how it worked, and as he did so, he caused the
suspension to be gradually lifted, first, on September 18, 1971, in twenty-
seven (27) provinces, three (3) sub-provinces and twenty six (26) cities; then,
on September 25, 1971, in order fourteen (14) provinces and thirteen (13)
cities; and, still later, on October 4, 1971, in seven (7) additional provinces and
four (4) cities, or a total of forty-eight (48) provinces, three (3) sub-provinces
and forth-three (43) cities, within a period of forty-five (45) days from August
21, 1971.
Neither should We overlook the significance of another fact. The President
could have declared a general suspension of the privilege. Instead,
Proclamation No. 889 limited the suspension to persons detained "for crimes
of insurrection or rebellion, and all other crimes and offenses committed by
them in furtherance or on the occasion thereof, or incident thereto, or in
connection therewith." Even this was further limited by Proclamation No. 889-
A, which withdrew from the coverage of the suspension persons detained for
other crimes and offenses committed "on the occasion" of the insurrection or
rebellion, or "incident thereto, in or connection therewith." In fact, the
petitioners in L-33964, L-33982 and L-34004 concede that the President had
acted in good faith.
In case of invasion, insurrection or rebellion or imminent danger thereof, the
President has, under the Constitution, three (3) courses of action open to him,
namely: (a) to call out the armed forces; (b) to suspend the privilege of the writ
of habeas corpus; and (c) to place the Philippines or any part thereof under
martial law. He had, already, called out the armed forces, which measure,
however, proved inadequate to attain the desired result. Of the two (2) other
alternatives, the suspension of the privilege is the least harsh.
In view of the foregoing, it does not appear that the President has acted
arbitrary in issuing Proclamation No. 889, as amended, nor that the same is
unconstitutional.
III
The next question for determination is whether petitioners herein are covered
by said Proclamation, as amended. In other words, do petitioners herein
belong to the class of persons as to whom privilege of the writ of habeas
corpus has been suspended?
In this connection, it appears that Bayani Alcala, one of the petitioners in L-
33964, Gerardo Tomas, petitioner in L-34004, and Reynaldo Rimando,
petitioner in L-34013, were, on November 13, 1971, released "permanently" —
meaning, perhaps, without any intention to prosecute them — upon the ground
that, although there was reasonable ground to believe that they had committed
an offense related to subversion, the evidence against them is insufficient to
warrant their prosecution; that Teodosio Lansang, one of the petitioners in L-
33964, Rogelio Arienda, petitioner in L-33965, Nemesio Prudente, petitioner in
L-33982, Filomeno de Castro and Barcelisa C. de Castro, for whose benefit
the petition in L-34039 was filed, and Antolin Oreta, Jr., petitioner in L-34265,
were, on said date, "temporarily released"; that Rodolfo del Rosario, one of the
petitioners in L-33964, Victor Felipe, an intervenor in L-33964, L-33965 and L-
33973, as well as Luzvimindo David, petitioner in L-33973, and Gary Olivar,
petitioner in L-34339, are still under detention and, hence, deprived of their
liberty, they — together with over forty (40) other persons, who are at large —
having been accused, in the Court of First Instance of Rizal, of a violation of
section 4 of Republic Act No. 1700 (Anti-Subversion Act); and that Angelo
delos Reyes and Teresito Sison, intervenors in said L-33964, L-33965 and L-
33973, are, likewise, still detained and have been charged — together with
over fifteen (15) other persons, who are, also, at large — with another violation
of said Act, in a criminal complaint filed with the City Fiscal's Office of Quezon
City.
With respect to Vicente Ilao and Juan Carandang — petitioners in L-33965 —
who were released as early as August 31, 1971, as well as to petitioners
Nemesio Prudente, Teodosio Lansang, Rogelio Arienda, Antolin Oreta, Jr.,
Filomeno de Castro, Barcelisa C. de Castro, Reynaldo Rimando, Gerardo
Tomas and Bayani Alcala, who were released on November 13, 1971, and are
no longer deprived of their liberty, their respective petitions have, thereby,
become moot and academic, as far as their prayer for release is concerned,
and should, accordingly, be dismissed, despite the opposition thereto of
counsel for Nemesio Prudente and Gerardo Tomas who maintain that, as long
as the privilege of the writ remains suspended, these petitioners might be
arrested and detained again, without just cause, and that, accordingly, the
issue raised in their respective petitions is not moot. In any event, the common
constitutional and legal issues raised in these cases have, in fact, been
decided in this joint decision.
Must we order the release of Rodolfo del Rosario, one of the petitioner‘s in L-
33964, Angelo de los Reyes, Victor Felipe and Teresito Sison, intervenors in
L-33964, L-33965 and L-33973, Luzvimindo David, petitioner in L-33973, and
Gary Olivar, petitioner in L-34339, who are still detained? The suspension of
the privilege of the writ was decreed by Proclamation No. 889, as amended,
for persons detained "for the crimes of insurrection or rebellion and other overt
acts committed by them in furtherance thereof."
The records shows that petitioners Luzvimindo David, Rodolfo del Rosario,
Victor Felipe, Angelo de los Reyes, Teresito Sison and Gary Olivar are
accused in Criminal Case No. Q-1623 of the Court of First Instance of Rizal
with a violation of the Anti-Subversion Act and that the similar charge against
petitioners Angelo de los Reyes and Teresito Sison in a criminal complaint,
originally filed with the City Fiscal of Quezon City, has, also, been filed with
said court. Do the offenses so charged constitute one of the crimes or overt
acts mentioned in Proclamation No. 889, as amended?
In the complaint in said Criminal Case No. 1623, it is alleged:
That in or about the year 1968 and for sometime prior thereto and thereafter
up to and including August 21, 1971, in the city of Quezon, Philippines, and
elsewhere in the Philippines, within the jurisdiction of this Honorable Court, the
above-named accused knowingly, wilfully and by overt acts became officers
and/or ranking leaders of the Communist Party of the Philippines, a subversive
association as defined by Republic Act No. 1700, which is an organized
conspiracy to overthrow the government of the Republic of the Philippines by
Page 19 of 101
force, violence, deceit, subversion and other illegal means, for the purpose of
establishing in the Philippines a communist totalitarian regime subject to alien
domination and control;
That all the above-named accused, as such officers and/or ranking leaders of
the Communist Party of the Philippines conspiring, confederating and mutual
helping one another, did then and there knowingly, wilfully, and feloniously and
by overt acts committed subversive acts all intended to overthrow the
government of the Republic of the Philippines, as follows:
1. By rising publicly and taking arms against the forces of the
government, engaging in war against the forces of the government, destroying
property or committing serious violence, exacting contributions or diverting
public lands or property from the law purposes for which they have been
appropriated;
2. By engaging by subversion thru expansion and requirement
activities not only of the Communist Party of the Philippines but also of the
united front organizations of the Communist Party of the Philippines as the
Kabataang Makabayan (KM), Movement for the Democratic Philippines
(MDP), Samahang Demokratikong Kabataan (SDK), Students' Alliance for
National Democracy (STAND), MASAKA Olalia-faction, Student Cultural
Association of the University of the Philippines (SCAUP), KASAMA,
Pagkakaisa ng Magbubukid ng Pilipinas (PMP) and many others; thru
agitation promoted by rallies, demonstration and strikes some of them violent
in nature, intended to create social discontent, discredit those in power and
weaken the people's confidence in the government; thru consistent
propaganda by publications, writing, posters, leaflets of similar means;
speeches, teach-ins, messages, lectures or other similar means; or thru the
media as the TV, radio or newspapers, all intended to promote the Communist
pattern of subversion;
3. Thru urban guerilla warfare characterized by assassinations,
bombings, sabotage, kidnapping and arson, intended to advertise the
movement, build up its morale and prestige, discredit and demoralize the
authorities to use harsh and repressive measures, demoralize the people and
weaken their confidence in the government and to weaken the will of the
government to resist.
That the following aggravating circumstances attended the commission of the
offense:
a. That the offense was committed in contempt of and with insult to
the public authorities;
b. That some of the overt acts were committed in the Palace of the
Chief Executive;
c. That craft, fraud, or disguise was employed;
d. That the offense was committed with the aid of armed men;
e. That the offense was committed with the aid of persons under
fifteen (15) years old.
Identical allegations are made in the complaint filed with the City Fiscal of
Quezon City, except that the second paragraph thereof is slightly more
elaborate than that of the complaint filed with the CFI, although substantially
the same. 26
In both complaints, the acts imputed to the defendants herein constitute
rebellion and subversion, of — in the language of the proclamation — "other
overt acts committed ... in furtherance" of said rebellion, both of which are
covered by the proclamation suspending the privilege of the writ. It is clear,
therefore, that the crime for which the detained petitioners are held and
deprived of their liberty are among those for which the privilege of the writ of
habeas corpus has been suspended.
Up to this point, the Members of the Court are unanimous on the legal
principles enunciated.
After finding that Proclamation No. 889, as amended, is not invalid and that
petitioners Luzvimindo David, Victor Felipe, Gary Olivar, Angelo de los Reyes,
Rodolfo del Rosario and Teresito Sison are detained for and actually accused
of an offense for which the privilege of the writ has been suspended by said
proclamation, our next step would have been the following: The Court, or a
commissioner designated by it, would have received evidence on whether —
as stated in respondents' "Answer and Return" — said petitioners had been
apprehended and detained "on reasonable belief" that they had "participated
in the crime of insurrection or rebellion."
It is so happened, however, that on November 13, 1971 — or two (2) days
before the proceedings relative to the briefing held on October 28 and 29,
1971, had been completed by the filing 27 of the summary of the matters then
taken up — the aforementioned criminal complaints were filed against said
petitioners. What is more, the preliminary examination and/or investigation of
the charges contained in said complaints has already begun. The next
question, therefore, is: Shall We now order, in the cases at hand, the release
of said petitioners herein, despite the formal and substantial validity of the
proclamation suspending the privilege, despite the fact that they are actually
charged with offenses covered by said proclamation and despite the
aforementioned criminal complaints against them and the preliminary
examination and/or investigations being conducted therein?

The Members of the Court, with the exception of Mr. Justice Fernando, are of
the opinion, and, so hold, that, instead of this Court or its Commissioner taking
the evidence adverted to above, it is best to let said preliminary examination
and/or investigation to be completed, so that petitioners' released could be
ordered by the court of first instance, should it find that there is no probable
cause against them, or a warrant for their arrest could be issued, should a
probable cause be established against them. Such course of action is more
favorable to the petitioners, inasmuch as the preliminary examination or
investigation requires a greater quantum of proof than that needed to establish
that the Executive had not acted arbitrary in causing the petitioners to be
apprehended and detained upon the ground that they had participated in the
commission of the crime of insurrection or rebellion. And, it is mainly for the
reason that the Court has opted to allow the Court of First Instance of Rizal to
proceed with the determination of the existence of probable cause, although
ordinarily the Court would have merely determined the existence of the
substantial evidence of petitioners' connection with the crime of rebellion.
Besides, the latter alternative would require the reception of evidence by this
Court and thus duplicate the proceedings now taking place in the court of first
instance. What is more, since the evidence involved in the same proceedings
would be substantially the same and the presentation of such evidence cannot
be made simultaneously, each proceeding would tend to delay the other.
Mr. Justice Fernando is of the opinion — in line with the view of Mr. Justice
Tuason, in Nava v. Gatmaitan, 28 to the effect that "... if and when formal
complaint is presented, the court steps in and the executive steps out. The
detention ceases to be an executive and becomes a judicial concern ..." —
that the filing of the above-mentioned complaint against the six (6) detained
petitioners herein, has the effect of the Executive giving up his authority to
continue holding them pursuant to Proclamation No. 889, as amended, even if
he did not so intend, and to place them fully under the authority of courts of
justice, just like any other person, who, as such, cannot be deprived of his
liberty without lawful warrant, which has not, as yet, been issued against
anyone of them, and that, accordingly, We should order their immediate
release. Despite the humanitarian and libertarian spirit with which this view
had been espoused, the other Members of the Court are unable to accept it
because:
(a) If the proclamation suspending the privilege of the writ of habeas
corpus is valid — and We so hold it to be — and the detainee is covered by
the proclamation, the filing of a complaint or information against him does not
affect the suspension of said privilege, and, consequently, his release may not
be ordered by Us;
(b) Inasmuch as the filing of a formal complaint or information does
not detract from the validity and efficacy of the suspension of the privilege, it
would be more reasonable to construe the filing of said formal charges with
the court of first instance as an expression of the President's belief that there
are sufficient evidence to convict the petitioners so charged and that hey
should not be released, therefore, unless and until said court — after
conducting the corresponding preliminary examination and/or investigation —
shall find that the prosecution has not established the existence of a probable
cause. Otherwise, the Executive would have released said accused, as were
the other petitioners herein;
(c) From a long-range viewpoint, this interpretation — of the act of the
President in having said formal charges filed — is, We believe, more beneficial
to the detainees than that favored by Mr. Justice Fernando. His view —
particularly the theory that the detainees should be released immediately,
without bail, even before the completion of said preliminary examination and/or
investigation — would tend to induce the Executive to refrain from filing formal
charges as long as it may be possible. Manifestly, We should encourage the
early filing of said charges, so that courts of justice could assume jurisdiction
over the detainees and extend to them effective protection.
Although some of the petitioners in these cases pray that the Court decide
whether the constitutional right to bail is affected by the suspension of the
privilege of the writ of habeas corpus, We do not deem it proper to pass upon
such question, the same not having been sufficiently discussed by the parties
herein. Besides, there is no point in settling said question with respect to
petitioners herein who have been released. Neither is necessary to express
our view thereon, as regards those still detained, inasmuch as their release
without bail might still be decreed by the court of first instance, should it hold
that there is no probable cause against them. At any rate, should an actual
issue on the right to bail arise later, the same may be brought up in
appropriate proceedings.
WHEREFORE, judgment is hereby rendered:
1. Declaring that the President did not act arbitrarily in issuing
Proclamation No. 889, as amended, and that, accordingly, the same is not
unconstitutional;
2. Dismissing the petitions in L-33964, L-33965, L-33982, L-34004, L-
34013, L-34039 and L-34265, insofar as petitioners Teodosio Lansang, Bayani
Alcala, Rogelio Arienda, Vicentellao, Juan Carandang, Nemesio E. Prudente,
Gerardo Tomas, Reynaldo Rimando, Filomeno M. de Castro, Barcelisa C. de
Castro and Antolin Oreta, Jr. are concerned;
3. The Court of First Instance of Rizal is hereby directed to act with
utmost dispatch in conducting the preliminary examination and/or investigation
of the charges for violation of the Anti-Subversion Act filed against herein
petitioners Luzvimindo David, Victor Felipe, Gary Olivar, Angelo de los Reyes,
Page 20 of 101
Rodolfo del Rosario and Teresito Sison, and to issue the corresponding
warrants of arrest, if probable cause is found to exist against them, or,
otherwise, to order their release; and
4. Should there be undue delay, for any reason whatsoever, either in
the completion of the aforementioned preliminary examination and/or
investigation, or in the issuance of the proper orders or resolution in
connection therewith, the parties may by motion seek in these proceedings the
proper relief.
5. Without special pronouncement as to costs. It is so ordered.
Reyes, J.B.L., Makalintal, Zaldivar, Teehankee, Barredo, Villamor and
Makasiar, JJ., concur.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-30026 January 30, 1971
MARIO GUMABON, BLAS BAGOLBAGOL, GAUDENCIO AGAPITO,
EPIFANIO PADUA and PATERNO PALMARES, petitioners,
vs.
THE DIRECTOR OF THE BUREAU OF PRISONS, respondent.
FERNANDO, J.:
Habeas corpus, the great writ of liberty, is relied upon by petitioners, five in
number, for their release from imprisonment. Meted out life terms for the
complex crime of rebellion with murder and other crimes, they would invoke
the People v. Hernandez1 doctrine, negating the existence of such an offense,
a ruling that unfortunately for them was not handed down until after their
convictions had become final. Nor is this the first instance, a proceeding of this
character was instituted, as in Pomeroy v. Director of Prisons,2 likewise a
petition for habeas corpus, a similar question was presented. The answer
given was in the negative. Petitioners plead for a new look on the matter. They
would premise their stand on the denial of equal protection if their plea would
not be granted. Moreover, they did invoke the codal provision that judicial
decisions shall form part of the legal system of the Philippines,3 necessarily
resulting in the conclusion that the Hernandez decision once promulgated calls
for a retroactive effect under the explicit mandate of the Revised Penal Code
as to penal laws having such character even if at the time of their application a
final sentence has been rendered "and the convict is serving the same."4
These arguments carry considerable persuasion. Accordingly, we find for
petitioners, without going so far as to overrule Pomeroy.
Petitioner Mario Gumabon, after pleading guilty, was sentenced on May 5,
1953 to suffer reclusion perpetua for the complex crime of rebellion with
multiple murder, robbery, arson and kidnapping. Petitioners Gaudencio
Agapito, Paterno Palmares and Epifanio Padua, likewise pleaded guilty to the
complex crime of rebellion with multiple murder and other offenses, and were
similarly made to suffer the same penalty in decisions rendered, as to the first
two, on March 8, 1954 and, as to the third, on December 15, 1955. The last
petitioner, Blas Bagolbagol, stood trial also for the complex crime of rebellion
with multiple murder and other offenses and on January 12, 1954 penalized
with reclusion perpetua. Each of the petitioners has been since then
imprisoned by virtue of the above convictions. Each of them has served more
than 13 years.5
Subsequently, in People v. Hernandez,6 as above noted, this Court ruled that
the information against the accused in that case for rebellion complexed with
murder, arson and robbery was not warranted under Article 134 of the Revised
Penal Code, there being no such complex offense.7 In the recently-decided
case of People vs. Lava,8 we expressly reaffirmed the ruling in the Hernandez
case rejecting the plea of the Solicitor General for the abandonment of such
doctrine. It is the contention of each of the petitioners that he has served, in
the light of the above, more than the maximum penalty that could have been
imposed upon him. He is thus entitled to freedom, his continued detention
being illegal.9
The fear that the Pomeroy ruling stands as an obstacle to their release on a
habeas corpus proceeding prompted petitioners, as had been mentioned, to
ask that it be appraised anew and, if necessary, discarded. We can resolve
the present petition without doing so. The plea there made was unconvincing,
there being a failure to invoke the contentions now pressed vigorously by their
counsel, Attorney Jose W. Diokno, as to the existence of a denial of a
constitutional right that would suffice to raise a serious jurisdictional question
and the retroactive effect to be given a judicial decision favorable to one
already sentenced to a final judgment under Art. 22 of the Revised Penal
Code. To repeat, these two grounds carry weight. We have to grant this
petition.
1. The fundamental issue, to repeat, is the availability of the writ of
habeas corpus under the circumstances disclosed. Its latitudinarian scope to
assure that illegality of restraint and detention be avoided is one of the truisms
of the law. It is not known as the writ of liberty for nothing. The writ imposes on
judges the grave responsibility of ascertaining whether there is any legal
justification for a deprivation of physical freedom. Unless there be such a
showing, the confinement must thereby cease. If there be a valid sentence it
cannot, even for a moment, be extended beyond the period provided for by
law. Any deviation from the legal norms call for the termination of the
imprisonment.
Rightly then could Chafee refer to the writ as "the most important human rights
provision" in the fundamental law. 10 Nor is such praise unique. Cooley spoke
of it as "one of the principal safeguards to personal liberty." 11 For Willoughby,
it is "the greatest of the safeguards erected by the civil law against arbitrary
and illegal imprisonment by whomsoever detention may be exercised or
ordered." 12 Burdick echoed a similar sentiment, referring to it as "one of the
most important bulwarks of liberty." 13 Fraenkel made it unanimous, for to him,
"without it much else would be of no avail." 14 Thereby the rule of law is
assured.
A full awareness of the potentialities of the writ of habeas corpus in the
defense of liberty coupled with its limitations may be detected in the opinions
of former Chief Justices Arellano, 15 Avanceña, 16 Abad Santos, 17 Paras, 18
Bengzon, 19 and the present Chief Justice. 20 It fell to Justice Malcolm's lot,
however to emphasize quite a few times the breadth of its amplitude and of its
reach. In Villavicencio v. Lukban, 21 the remedy came in handy to challenge
the validity of the order of the then respondent Mayor of Manila who, for the
best of reasons but without legal justification, ordered the transportation of
more than 150 inmates of houses of ill-repute to Davao. After referring to the
writ of habeas corpus as having been devised and existing "as a speedy and
effectual remedy to relieve persons from unlawful restraint" the opinion of
Justice Malcolm continued: "The essential object and purpose of the writ of
habeas corpus is to inquire into all manner of involuntary restraint as
distinguished from voluntary, and to relieve a person therefrom if such restraint
is illegal. Any restraint which will preclude freedom of action is sufficient." 22
The liberality with which the judiciary is to construe habeas corpus petitions
even if presented in pleadings on their face devoid of merit was demonstrated
in Ganaway v. Quilen, 23 where this Court, again through Justice Malcolm,
stated: "As standing alone the petition for habeas corpus was fatally defective
in its allegations, this court, on its motion, ordered before it the record of the
lower court in the case entitled Thomas Casey, et al. v. George Ganaway." 24
It is to Justice Malcolm likewise in Conde v. Rivera, 25 to whom is traceable
the doctrine, one that broadens the field of the operation of the writ, that a
disregard of the constitutional right to speedy trial ousts the court of jurisdiction
and entitles the accused if "restrained of his liberty, by habeas corpus to obtain
his
freedom." 26
So it is in the United States. An 1830 decision 27 of Chief Justice Marshall put
the matter thus: "The writ of habeas corpus is a high prerogative writ, known to
the common law, the great object of which is the liberation of those who may
be imprisoned without sufficient cause." Then there is this affirmation from an
1869 decision 28 of the then Chief Justice Chase: "The great writ of habeas
corpus has been for centuries esteemed the best and only sufficient defense
of personal freedom." The passing of the years has only served to confirm its
primacy as a weapon on in the cause of liberty. Only the other year, Justice
Fortas spoke for the United States Supreme Court thus: "The writ of habeas
corpus is the fundamental instrument for safeguarding individual freedom
against arbitrary and lawless state action. ... The scope and flexibility of the
writ — its capacity to reach all manner of illegal detention — its ability to cut
through barriers of form and procedural mazes — have always been
emphasized and jealously guarded by courts and lawmakers. The very nature
of the writ demands that it be administered with the initiative and flexibility
essential to insure that miscarriages of justice within its reach are surfaced
and corrected." 29 Justice Fortas explicitly made reference to Blackstone, who
spoke of it as "the great and efficacious writ, in all manner of illegal
confinement." Implicit in his just estimate of its pre-eminent role is his adoption
of Holmes' famous dissent in Frank v. Mangum: 30 "But habeas corpus cuts
through all forms and goes to the very tissue of the structure."
2. Where, however, the detention complained of finds its origin in
what has been judicially ordained, the range of inquiry in a habeas corpus
proceeding is considerably narrowed. For if "the person alleged to be
restrained of his liberty is in the custody of an officer under process issued by
a court or judge or by virtue of a judgment or order of a court of record, and
that the court or judge had jurisdiction to issue the process, render the
judgment, or make the order," the writ does not lie. 31 That principle dates
back to 1902, 32 when this Court announced that habeas corpus was
unavailing where the person detained was in the custody of an officer under
process issued by a court or magistrate. This is understandable, as during the
time the Philippines was under American rule, there was necessarily an
adherence to authoritative doctrines of constitutional law there followed.
One such principle is the requirement that there be a finding of jurisdictional
defect. As summarized by Justice Bradley in Ex parte Siebold, an 1880
decision: "The only ground on which this court, or any court, without some
special statute authorizing it, will give relief on habeas corpus to a prisoner
under conviction and sentence of another court is the want of jurisdiction in
such court over the person or the cause, or some other matter rendering its
proceedings void." 33
There is the fundamental exception though, that must ever be kept in mind.
Once a deprivation of a constitutional right is shown to exist, the court that
rendered the judgment is deemed ousted of jurisdiction and habeas corpus is
the appropriate remedy to assail the legality of the detention. 34
Page 21 of 101
3. Petitioners precisely assert a deprivation of a constitutional right,
namely, the denial of equal protection. According to their petition: "In the case
at bar, the petitioners were convicted by Courts of First Instance for the very
same rebellion for which Hernandez, Geronimo, and others were convicted.
The law under which they were convicted is the very same law under which
the latter were convicted. It had not and has not been changed. For the same
crime, committed under the same law, how can we, in conscience, allow
petitioners to suffer life imprisonment, while others can suffer only prision
mayor?" 35
They would thus stress that, contrary to the mandate of equal protection,
people similarly situated were not similarly dealt with. What is required under
this required constitutional guarantee is the uniform operation of legal norms
so that all persons under similar circumstances would be accorded the same
treatment both in the privileges conferred and the liabilities imposed. As was
noted in a recent decision: "Favoritism and undue preference cannot be
allowed. For the principle is that equal protection and security shall be given to
every person under circumstances, which if not identical are analogous. If law
be looked upon in terms of burden or charges, those that fall within a class
should be treated in the same fashion, whatever restrictions cast on some in
the group equally binding on the rest." 36
The argument of petitioners thus possesses a persuasive ring. The continued
incarceration after the twelve-year period when such is the maximum length of
imprisonment in accordance with our controlling doctrine, when others similarly
convicted have been freed, is fraught with implications at war with equal
protection. That is not to give it life. On the contrary, it would render it
nugatory. Otherwise, what would happen is that for an identical offense, the
only distinction lying in the finality of the conviction of one being before the
Hernandez ruling and the other after, a person duly sentenced for the same
crime would be made to suffer different penalties. Moreover, as noted in the
petition before us, after our ruling in People v. Lava, petitioners who were
mere followers would be made to languish in jail for perhaps the rest of their
natural lives when the leaders had been duly considered as having paid their
penalty to society, and freed. Such a deplorable result is to be avoided.
4. Petitioners likewise, as was made mention at the outset, would rely
on Article 22 of the Revised Penal Code which requires that penal judgment
be given a retroactive effect. In support of their contention, petitioners cite U.S.
v. Macasaet, 37 U.S. vs. Parrone, 38 U.S. v. Almencion, 39 People v. Moran,
40 and People v. Parel. 41 While reference in the above provision is made not
to judicial decisions but to legislative acts, petitioners entertain the view that it
would be merely an exaltation of the literal to deny its application to a case like
the present. Such a belief has a firmer foundation. As was previously noted,
the Civil Code provides that judicial decisions applying or interpreting the
Constitution, as well as legislation, form part of our legal system. Petitioners
would even find support in the well-known dictum of Bishop Hoadley:
"Whoever hath an absolute authority to interpret any written or spoken laws, it
is he who is truly the law-giver to all intents and purposes, and not the person
who first thought or spoke them." It is to be admitted that constitutional law
scholars, notably
Frankfurter, 42 Powell, 43 and Thayer, 44 in discussing judicial review as well
as the jurist John Chipman Gray, were much impressed with the truth and the
soundness of the above observations. We do not have to go that far though.
Enough for present purposes that both the Civil Code and the Revised Penal
Code allow, if they do not call for, a retroactive application.
It being undeniable that if the Hernandez ruling were to be given a retroactive
effect petitioners had served the full term for which they could have been
legally committed, is habeas corpus the appropriate remedy? The answer
cannot be in doubt. As far back as 1910 the prevailing doctrine was
announced in Cruz v. Director of Prisons. 45 Thus: "The courts uniformly hold
that where a sentence imposes punishment in excess of the power of the court
to impose, such sentence is void as to the excess, and some of the courts
hold that the sentence is void in toto; but the weight of authority sustains the
proposition that such a sentence is void only as to the excess imposed in case
the parts are separable, the rule being that the petitioner is not entitled to his
discharge on a writ of habeas corpus unless he has served out so much of the
sentence as was valid." 46 There is a reiteration of such a principle in Director
v. Director of Prisons 47 where it was explicitly announced by this Court "that
the only means of giving retroactive effect to a penal provision favorable to the
accused ... is the writ of habeas corpus." 48 While the above decision speaks
of a trial judge losing jurisdiction over the case, insofar as the remedy of
habeas corpus is concerned, the emphatic affirmation that it is the only means
of benefiting the accused by the retroactive character of a favorable decision
holds true. Petitioners clearly have thus successfully sustained the burden of
justifying their release.
WHEREFORE, the petition for habeas corpus is granted, and it is ordered that
petitioners be forthwith set at liberty.
Dizon and Zaldivar, JJ., concur. Concepcion, C.J., concurs in the result.
Castro and Makasiar, JJ., took no part.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-63345 January 30, 1986
EFREN C. MONCUPA, petitioner,
vs.
JUAN PONCE ENRILE, FABIAN C. VER, GALILEO KINTANAR,
FERNANDO GOROSPE, AND JOSE CASTRO, respondents.
GUTIERREZ, JR., J.:
As early as 1919, in the leading case of Villavicencio v. Lukban (39 Phil. 778,
790), this Court ruled:
A prime specification of al application for a writ of habeas corpus is restraint of
liberty. The essential object and purpose of the writ of habeas corpus is to
inquire into all manner of involuntary restraint as distinguished from voluntary,
and to relieve a person therefrom if such restraint is illegal. Any restraint which
will preclude freedom of action is sufficient. ...
This latitudinarian scope of the writ of habeas-corpus has, in law, remained
undiminished up to the present. The respondents' contention that the petition
has become moot and academic must necessarily be denied. Efren C.
Moncupa may have been released from his detention cell. The restraints
attached to his temporary release, however, preclude freedom of action and
under the Villavicencio v. Lukban rule warrant this Court's inquiry into the
nature of his involuntary restraint and our relieving him of such restraints as
may be illegal.
Petitioner Efren C. Moncupa, together with others, was arrested on April 22,
1982 at about 10:50 P.M., at the corner of D. Street and Quezon Avenue,
Quezon City. Moncupa D. Tuazon was brought to MIG-15 Camp Bago Bantay,
Quezon City where he was detained. On April 23, 1982, on the allegation that
he was a National Democratic Front (NDF) staff member, a Presidential
Commitment Order (PCO) was issued against him and eight (8) other persons.
After two separate investigations, conducted first, by Lieutenant Colonel
Gerardo Lantoria, Jr., Chief of Task Force Makabansa Investigation Group
and second, by Investigating Fiscal Amado Costales of Quezon City, it was
ascertained that the petitioner was not a member of any subversive
organization. Both investigators recommended the prosecution of the
petitioner only for illegal possession of firearms and illegal possession of
subversive documents under Presidential Decree No. 33.
Consequently, two separate informations were filed against the petitioner, one,
for illegal possession of firearms before the Court of First Instance of Rizal and
the other for violation of P.D. 33 before the City Court of Quezon City. Against
the other accused, however, the cases filed were for violation of P.D. 885 as
amended. Significantly, the petitioner was excluded from the charge under the
Revised Anti-Subversion Law. During the pendency of this petition, it is
significant that his arraignment and further proceedings have not been
pursued. And yet, the petitioner's motions for bail were denied by the lower
court.
Hence, the petitioner filed the instant petition.
The respondents, in their return of the writ justified the validity of petitioner's
detention on the ground that the privilege of the writ had been suspended as
to the petitioner. However, on August 30, 1983, the respondents filed a motion
to dismiss stating that on May 11, 1983, the petitioner was temporarily
released from detention on orders of the Minister temporary of National
Defense with the approval of the President. The respondents stated. "Since
the petitioner is free and no longer under the custody of the respondents, the
present petition for habeas corpus may be deemed moot and academic as in
similar cases.
The issue to be resolved is whether or not the instant petition has become
moot and academic in view of the petitioner's temporary release.
It is to be noted that attached to the petitioner's temporary release are
restrictions imposed on him. These are:
1) His freedom of movement is curtailed by the condition that
petitioner gets the approval of respondents for any travel outside Metro
Manila.
2) His liberty of abode is restricted because prior approval of
respondents is also required in case petitioner wants to change his place of
residence.
3) His freedom of speech is muffled by the prohibition that he should
not "participate in any interview conducted by any local or foreign mass media
representatives nor give any press release or information that is inimical to the
interest of national security."
4) He is required to report regularly to respondents or their
representatives.
The petitioner argues that although admittedly his temporary release is an
improvement upon his actual detention, the restrictions imposed by the
respondents constitute an involuntary and illegal restraint on his freedom.
The petitioner stresses that his temporary release did not render the instant
petitioner moot and academic but that "it merely shifted the inquiry from the
Page 22 of 101
legality of his actual detention to the legality of the conditions imposed by the
respondents."
We agree with the petitioner.
The reservation of the military in the form of restrictions attached to the
temporary release of the petitioner constitute restraints on the liberty of Mr.
Moncupa. Such restrictions limit the freedom of movement of the petitioner. It
is not physical restraint alone which is inquired into by the writ of habeas
corpus.
In Villavicencio v. Lukban, the women who had been illegally seized and
transported against their will to Davao were no longer under any official
restraint. Unlike petitioner Moncupa, they were free to change their domicile
without asking for official permission. Indeed, some of them managed to return
to Manila. Yet, the Court condemned the involuntary restraints caused by the
official action, fined the Mayor of Manila and expressed the hope that its
"decision may serve to bulwark the fortifications of an orderly government of
laws and to protect individual liberty from Megal encroachment."
In the light of the above ruling, the present petition for habeas corpus has not
become moot and academic. Other precedents for such a conclusion are not
wanting.
The decision in Caunca v. Salazar (82 Phil. 851) states:
An employment agency, regardless of the amount it may advance to a
prospective employee or maid, has absolutely no power to curtail her freedom
of movement. The fact that no physical force has been exerted to keep her in
the house of the respondent does not make less real the deprivation of her
personal freedom of movement, freedom to transfer from one place to another,
from to choose one's residence. Freedom may be lost due to external moral
compulsion, to founded or groundless fear, to erroneous belief in the existence
of the will. If the actual effect of such psychological spell is to place a person at
the mercy of another, the victim is entitled to the protection of courts of justice
as much as the individual who is illigally deprived of liberty by deprived or
physical coercion.
In Tibo v. The Provincial Commander (85 SCRA 564), this Court ruled:
Although the release in the custody of the Deputy Minister did not signify that
petitioners could once again enjoy their full freedom, the application could
have been dismissed, as it could be withdrawn by the parties themselves. That
is a purely voluntary act. When the hearing was held on September 7, 1978, it
turned out that counsel for petitioner Bonifacio V. Tupaz could have academic
in a hasty manner when he set forth the above allegations in his manifestation
of August 30, 1978, for Attorney Jose C. Espinas, who appeared for
petitioners, while conceding that there was such a release from confinement,
also alleged that it was conditioned on their restricting their activities as labor
union leaders to the premises of the Trade Unions of the Philippines and
ABSOLUTE Services, presumably in Macaraig as well as the Ministry of labor.
As the voting was to take place in the business firm in Bataan, the acts set
would nullify whatever efforts they could have exerted. To that extent, and with
the prohibition against their going to Bataan, the restraint on liberty was
undeniable. If so, the moot and academic character of the petition was far from
clear.
More recently, we had occasion to rule squarely on whether or not a
temporary release from detention renders the petition for writ of habeas corpus
moot and academic. As in this case of Moncupa, the petitioners in Toyoto, et
al v. Hon. Fidel Ramos, et al, G.R. No. 69270, October 15, 1985, were
temporarily released from detention. The respondents filed a motion to dismiss
the petition for habeas corpus on the ground that the petitioners had been
temporarily released and their case had, therefore, become moot and
academic. The petitioners insisted, however, that their case may be
considered moot and academic only "if their release would be permanent." In
ruling for the petitioners, we said:
Ordinarily, a petition for habeas corpus becomes moot and academic when
the restraint on the liberty of the petitioners is lifted either temporarily or
permanently. We have so held in a number of cases. But the instant case
presents a different situation. The question to be resolved is whether the State
can reserve the power to re-arrest a person for an offense after a court of
competent jurisdiction has absolved him of the offense. An affirmative answer
is the one suggested by the respondents because the release of the
petitioners being merely 'temporary' it follows that they can be re-arrested at
anytime despite their acquittal by a court of competent jurisdiction. We hold
that such a reservation is repugnant to the government of laws and not of men
principle. Under this principle the moment a person is acquitted on a criminal
charge he can no longer be detained or re-arrested for the same offense. This
concept is so basic and elementary that it needs no elaboration.
In effect the principle is clear. A release that renders a petition for a writ of
habeas corpus moot and academic must be one which is free from involuntary
restraints. Where a person continues to be unlawfully denied one or more of
his constitutional freedoms, where there is present a denial of due process,
where the restraints are not merely involuntary but appear to be unnecessary,
and where a deprivation of freedom originally valid has, in the light of
subsequent developments, become arbitrary, the person concerned or those
applying in his behalf may still avail themselves of the privilege of the writ.
The respondents have failed to show why the writ may not issue and why the
restraints on the petitioner's freedom of movement should not be lifted.
WHEREFORE, the PETITION is GRANTED. The conditions attached to the
temporary release of the petitioner are declared null and void. The temporary
release of the petitioner is declared ABSOLUTE. No costs,
SO ORDERED.
Teehankee, Concepcion, Jr., Abad Santos, Melencio-Herrera, Escolin De la
Fuente, Cuevas, Alampay and Patajo, JJ., concur. Aquino, C.J., took no part.
Plana, J., I reserve my vote.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 79173 December 1, 1987
IN THE MATTER OF THE PETITION FOR HABEAS CORPUS OF
ROLANDO N. ABADILLA, SUSAN S. ABADILLA, in her own behalf and in
behalf of the minors JUNE ELIZABETH, ROLANDO, JR., DAPHINE
JENNIFER, MA. THERESA, ANNA ROSANNA, VINCENT MARCUS and
BART JOSEPH, all surnamed ABADILLA, petitioners,
vs.
General FIDEL V. RAMOS, Chief of Staff, AFP; Major General RENATO
DE VILLA, Commanding General, Philippine Constabulary & Vice-Chief
of Staff, AFP; and Brigadier General ALEXANDER AGUIRRE,
Commanding General, CAPCOM, PC, respondents.
GANCAYCO, J.:
The validity of the detention of an individual is challenged in this Petition for
habeas corpus. The petitioners are the spouse and minor children of the
detainee while the respondents are ranking officers of the Armed Forces of the
Philippines (AFP).
The record of the case discloses that on January 27, 1987, a group of officers
and enlisted men of the AFP seized control of the radio-television
broadcasting facilities of the Republic Broadcasting System (GMA-Channel 7)
located in Quezon City ostensibly for the purpose of toppling the existing
constitutional government. While the takeover might have been a prelude to
similar operations throughout the national capital, it did not succeed. On
January 29, 1987, the mutineers surrendered to the military authorities and the
possession of the facility was restored to the owners and managers thereof.
Soon thereafter, the military authorities conducted an investigation of the
matter.
On April 18, 1987, a group of enlisted men staged a mutiny inside the Fort
Bonifacio military facility in Makati, Metropolitan Manila. The mutiny, dubbed
as "The Black Saturday Revolt," 1 did not succeed either. After the incident,
the military authorities also conducted an investigation.
The first investigation was concluded on March 12, 1987. The investigation
disclosed that Colonel Rolando N. Abadilla of the Philippine Constabulary (PC)
of the AFP was one of the leaders of the unsuccessful takeover of the GMA
radio-television facilities. 2 The Board of Officers investigating the matter
recommended that the case of Colonel Abadilla be endorsed for pre-trial
investigation and that the appropriate charges be filed against him for violation
of Article of War 67 (Mutiny or Sedition). Article of War 94 (Various Crimes) in
relation to Article 139 of the Revised Penal Code and Section 1 of Presidential
Decree No. 1866, and such other offenses that may be warranted by the
evidence. Accordingly, a charge sheet was prepared against the Colonel.
The investigation conducted on "The Black Saturday Revolt" ended on May
27, 1987. It was found at said investigation that Colonel Abadilla was also
involved in the mutiny. The Board of Officers conducting the investigation and
recommended that the case be endorsed for pre-trial investigation and that the
appropriate charges be filed against the Colonel. 3 The Colonel was likewise
charged, accordingly.
Colonel Abadilla was at large when both investigations were conducted.
On May 4, 1987 or some two weeks before the second investigation was
concluded, herein respondent Major General Renato De Villa, Commanding
General of the PC and Vice-Chief of Staff of the AFP issued an Order for the
arrest and confinement of Colonel Abadilla. 4
On May 21, 1987, respondent AFP Chief of Staff General Fidel V. Ramos
issued General Orders No. 342 dropping Colonel Abadilla from the rolls of
regular officers of the AFP. 5 The pertinent portions of the said General Orders
are as follows-
DROPPING FROM THE ROLLS OF REGULAR OFFICERS
The names of the following officers are dropped from the rolls of Regular
Officers, Armed Forces of the Philippines for cause effective as of 9 May 1987
pursuant to Article of War 117. (Authority: Letter from the President, dated 9
May 1987).
BRIGADIER GENERAL JOSE MARIA CARLOS ZUMEL ...
Page 23 of 101
COLONEL ROLANDO N ABADILLA 0-4937 PHILIPPINE CONSTABULARY
(GENERAL STAFF CORPS)
MAJOR REYNALDO C CABAUATAN ...
BY ORDER OF THE SECRETARY OF NATIONAL DEFENSE:
xxx xxx xxx
On July 7, 1987, the Assistant City Fiscal of Quezon City filed an Information
for Slight Physical Injuries with the Metropolitan Trial Court of Metropolitan
Manila in Quezon City against Colonel Abadilla. 6 The case was docketed as
Criminal Case No. 0237558.
On July 27, 1987, a combined element of the Philippine Army and Philippine
Constabulary arrested Colonel Abadilla. 7 He was detained first in Camp
Crame in Quezon City and later, up to the present, in Fort Bonifacio in Makati.
On July 30, 1987, another Information, this time for violation of Presidential
Decree No. 1866 (Illegal Possession of Firearms and Ammunition) was filed by
the Assistant City Fiscal of Quezon City against Colonel Abadilla. 8 The case
was assigned to Branch 104 of the Regional Trial Court in Quezon City and
was docketed as Criminal Case No. Q- 53382.
On the same date, July 30, 1987, Mrs. Susan S. Abadilla the spouse of
Colonel Abadilla together with their minor children June Elizabeth, Rolando, Jr.
Daphine Jennifer, Ma. Theresa, Anna Rosanna, Vincent Marcus and Bart
Joseph, went to this Court and filed the instant Petition for habeas corpus,
challenging the validity of the detention of Colonel Abadilla. 9
The main arguments in the Petition are as follows —
(1) When Colonel Abadilla was dropped from the rolls of officers
effective May 9, 1987, he became a civilian and as such, the order for his
arrest and confinement is null and void because he was no longer subject to
military law;
(2) His detention is illegal because he is not charged with any criminal
offense, either before a civil court or a court-martial;
(3) Even assuming that the order for the arrest and confine- ment of
Colonel Abadilla was valid at the initial stage, the said order became functus
officio and/or moot and academic when the Colonel was dropped from the rolls
of officers;
(4) Even assuming that Colonel Abadilla is subject to military law, his
detention remains illegal because under Article of War 70, a person subject to
military law can be detained only if he is charged with a crime or a serious
offense under the Articles of War.
In the meantime, the Regional Trial Court, with Judge Maximiano O. Asuncion
presiding therein, granted the Motion to Quash and the Supplement thereto
filed by the counsel of Colonel Abadilla. Accordingly, the Information in
Criminal Case No. Q-53382 was dismissed by the trial court. 10
In a resolution dated August 4, 1987, this Court resolved to issue the writ of
habeas corpus. The respondents were required to make a return of the writ on
August 10, 1987. 11
On August 10, 1987, the respondents, represented by the Office of the
Solicitor General (OSG), submitted the Return of the writ. 12 The main
arguments in the Return are as follows —
(1) In the event that proceedings with a view to military trial are
commenced against a Person subject to military law before the termination of
military service, military jurisdiction will fully attach on the said person.;
(2) The confinement of Colonel Abadilla as a person subject to military
jurisdiction is authorized by Article of War 70; and
(3) The continued confinement of Colonel Abadilla in Fort Bonifacio is
imperative and justified on account of the criminal case/s filed against him by
both the military and civil authorities.
As instructed by this Court, the petitioners submitted their Reply to the Return
of the writ on September 7, 1987. 13 The main arguments in the Reply are as
follows —
(1) The pendency of a case in the civil courts has no relevance to the
issue of military jurisdiction over Colonel Abadilla. This view notwithstanding,
Criminal Case No. Q-53382 filed against Colonel Abadilla has been dismissed
by the trial court. The pendency of Criminal Case No. 0237558 filed against
the Colonel does not warrant his continued confinement inasmuch as the
Colonel has posted bail for his provisional liberty;
(2) Colonel Abadilla is not in the active service of the AFP nor is he a
person under sentence adjudged by courts-martial. As such, he does not fall
under the category of a person subject to military law as defined by Article of
War 2;
(3) An officer dropped from the rolls by order of the President is fully
separated from the service and is no longer subject to military law (Citing
Gloria, Philippine Military Law Annotated).;
(4) Under Section 10 of the Manual for Courts-Martial, Philippine
Army, court-martial jurisdiction over officers in the military service of the
Philippines ceases on discharge or separation from the service. The case of
Colonel Abadilla does not fall under any of the exceptions to this rule. This
observation has been upheld in Martin v. Ver, 123 SCRA 745 (1983);
(5) The pronouncement of the United States Supreme Court in Toth v.
Quarles, 350 U.S. 11 (1955), cited in Olaguer v. Military Commission No. 34,
G.R. Nos. 54558 and 69882, May 22, 1987, supports the stand taken by the
herein petitioners and
(6) Under the provisions of Presidential Decree No. 1850, as amended
by Presidential Decree No. 1952, court-martial jurisdiction over the person of
accused military personnel Cannot be exercised if they are already separated
from the active service, provided that jurisdiction has not attached beforehand
unless otherwise provided by law.
On September 9, 1987, the petitioners submitted their Traverse to the Return
of the writ. 14 It is contended therein that, contrary to the view of the Solicitor
General, jurisdiction over a person is acquired not by the mere filing of a
charge or information, or by the commencement of an investigation, but by the
arrest of the defendant. The petitioners stress that inasmuch as Colonel
Abadilla was arrested after he had become a civilian, the charge sheets
prepared against him by the military authorities are nun and void for lack of
jurisdiction over the person of the Colonel.
On September 24, 1987, the petitioners submitted their Additional Traverse
together with a Motion to Decide the Petition. 15 On the issue of military
jurisdiction, and in support of their contentions, they cite the treatise of Colonel
William Winthrop entitled Military Law and Precedents. 16
Inasmuch as the parties herein had already presented their respective
arguments, the case was, therefore, deemed submitted for deliberation.
The sole issue in habeas corpus proceedings is the legality of the detention.
17 Therefore, the issue that must be resolved by this Court is this: Is the
detention of Colonel Abadilla illegal? The resolution of this issue will, of
course, relate to the jurisdiction of the military authorities over the person of
Colonel Abadilla.
I.
We shall first resolve the problem of jurisdiction.
In Olaguer v. Military Commission No. 34, 18 this Court held that a military
commission or tribunal cannot try and exercise jurisdiction over civilians for
offenses allegedly committed by them as long as the civil courts are open and
functioning, and that any judgment rendered by such body relating to a civilian
is null and void for lack of jurisdiction on the part of the military tribunal
concerned. For the same reasons, the doctrine announced in Aquino, Jr. v.
Military Commission No. 2 19 and all decided cases affirming the same, in so
far as they are inconsistent with the Olaguer pronouncement, were deemed
abandoned. There is no doubt, therefore, that military authorities cannot try
civilians.
The petitioners contend that the Olaguer doctrine applies to Colonel Abadilla
on the ground that he had become a civilian since May 9, 1987 when he was
dropped from the rolls of officers of the AFP. They argue that on account of his
civilian status, Colonel Abadilla is no longer subject to military law. In support
of their arguments, the petitioners cite the Articles of War, 20 the Manual for
Courts-Martial of the AFP, 21 Presidential Decree No. 1850, as amended, as
well as the dissertations on military law of Colonel William Winthrop 22 and
Colonel Claro Gloria. 23 They likewise invoke the pronouncement of this Court
in Martin v. Ver 24 and that of the Supreme Court of the United States in Toth
v. Quarles. 25
On the other hand, the Solicitor General contends that military jurisdiction had
fully attached on Colonel Abadilla inasmuch as proceedings were initiated
against him before the termination of his service in the military.
We agree.
As early as March, 1987, months before Colonel Abadilla was dropped from
the rolls of officers, the military authorities began the institution of proceedings
against him. As of that time, he was certainly subject to military law. He was
under investigation for his alleged participation in the unsuccessful mutinies
when he was an officer of the AFP. As a military officer, it was incumbent upon
him to appear before his superior officers conducting the investigation even for
the purpose of clearing his name. He did not do so. His superiors could not
confine him during the period of investigation because as stated earlier, he
was at large. This disregard for military duty and responsibility may have
prompted his superiors to cause him to be dropped from the rolls of officers.
It is clear that from the very start of this controversy, the military authorities
intended to try Colonel Abadilla as a person subject to military law. This can
be gleaned from the charge sheets prepared against him.
The fact that Colonel Abadilla was dropped from the rolls of officers cannot
and should not lead to the conclusion that he is now beyond the jurisdiction of
Page 24 of 101
the military authorities. If such a conclusion were to prevail, his very own
refusal to clear his name and protect his honor before his superior officers in
the manner prescribed for and expected from a ranking military officer would
be his shield against prosecution in the first place. His refusal to report for duty
or to surrender when ordered arrested, which led to his name being dropped
from the roll of regular officers of the military, cannot thereby render him
beyond the jurisdiction of the military courts for offenses he committed while
still in the military service. This Court cannot countenance such an absurd
situation. Established principles in remedial law call for application.
The military authorities had jurisdiction over the person of Colonel Abadilla at
the time of the alleged offenses. This jurisdiction having been vested in the
military authorities, it is retained up to the end of the proceedings against
Colonel Abadilla. Well-settled is the rule that jurisdiction once acquired is not
lost upon the instance of the parties but continues until the case is terminated.
26
The petitioners stress that jurisdiction over a person is acquired not by the
mere filing of a charge or an information, or by the commencement of an
investigation, but by the arrest of the defendant. They maintain that the
Colonel was arrested when he was already a civilian.
The argument is untenable.
The rule that jurisdiction over a person is acquired by his arrest applies only to
criminal proceedings instituted before the regular courts. It does not apply to
proceedings under military law. At the time the military investigations were
commenced, Colonel Abadilla was an officer of the AFP subject to military law.
As such, the military authorities had jurisdiction over his person pursuant to
Article of War 2 and Section 8 of the Manual for Courts-Martial, AFP, which
provide as follows-
Art. 2. Persons Subject to Military Law. — The following persons are subject to
these articles and shall be understood as included in the term 'any person
subject to military law or persons subject to military law whenever used in
these articles:
(a) All officers and soldiers in the active service of the Armed Forces of the
Philippines or of the Philippine Constabulary; ... ; and
8. COURTS-MARTIAL — Jurisdiction in general — Persons. — The
following persons are subject to military law:
(a) All officers and soldiers in the active service of the Armed Forces of the
Philippine Constabulary; ...
xxx xxx xxx
As mentioned earlier, his earlier arrest could not be effected because he was
at large. The initial stages of the investigations had against him before his
arrest were, therefore, not improper.
As a whole, the authorities cited and relied upon by the petitioners do not
satisfactorily support their contentions.
Article of War 2 enumerates who are subject to military law. In March, 1987,
Colonel Abadilla was a military officer. Under this Article, he was subject to
military law.
Section 10 of the Manual for Courts-Martial, AFP, which discusses court-
martial jurisdiction in general, states the general rule to be:
The general rule is that court-martial jurisdiction over officers, cadets, soldiers,
and others in the military service of the Philippines ceases on discharge or
other separation from such service, and that jurisdiction as to an offense
committed during a period of service thus terminated is not revived by a re-
entry into the military service.
Attention is called to the exception mentioned in the last sentence of the
Section, to wit —
So also, where a dishonorably discharged general prisoner is tried for an
offense committed while a soldier and prior to his dishonorable discharge,
such discharge does not terminate his amenability to trial for the offense.
This exception applies to the case of Colonel Abadilla inasmuch as he is at
present confined in Fort Bonifacio upon the orders of his superior officers, and
his having been dropped from the rolls of officers amounts to a dishonorable
discharge.
Section 1 of Presidential Decree No. 1850, as amended, even acknowledges
instances where military jurisdiction fully attaches on an individual even after
he shall have been separated from active service, to wit —
SECTION 1. Court martial jurisdiction over Integrated National Police and
Members of the Amed Forces ...
(b) all persons subject to military law under Article 2 of the aforecited Articles
of War who commit any crime or offense shall be exclusively tried by courts-
martial or their case disposed of under the said Articles of War; Provided, that
in either of the aforementioned situations, the case shall be disposed of or
tried by the proper civil or judicial authorities when court- martial jurisdiction
over the offense has prescribed under Article 38 of Commonwealth Act No.
408, as amended, or court-martial jurisdiction over the person of the accused
military or Integrated National Police can no longer be exercised by virtue of
their separation from the active service without jurisdiction having duly
attached beforehand unless otherwise provided by law; ... (Emphasis
supplied.)
The dissertations of Colonels Winthrop and Gloria are, at most, persuasive
authorities. Indeed, this Court has cited the treatise of Colonel Winthrop in at
least three cases 27 on account of the scholarly discussions contained therein.
Works of this nature provide insight and information which have been of
tremendous help to this Court in many judicial controversies. Regardless of
their great value, they cannot prevail over opposing but nonetheless settled
doctrines in Philippine jurisprudence.
These observations notwithstanding, We have gone through the treatise of
Colonel Winthrop and We find the following passage which goes against the
contention of the petitioners, viz —
3. Offenders in general — Attaching of jurisdiction. It has further been
held, and is now settled law, in regard to military offenders in general, that if
the military jurisdiction has once duly attached to them previous to the date of
the termination of their legal period of service, they may be brought to trial by
court-martial after that date, their discharge being meanwhile withheld. This
principle has mostly been applied to cases where the offense was committed
just prior to the end of the term. In such cases the interests of discipline clearly
forbid that the offender should go unpunished. It is held therefore that if before
the day on which his service legally terminates and his right to a discharge is
complete, proceedings with a view to trial are commenced against him — as
by arrest or the service of charges, — the military jurisdiction will fully attach,
and once attached may be continued by a trial by court-martial ordered and
held after the end of the term of the enlistment of the accused ... 28
The case of Martin v. Ver 29 cited by the petitioners is not in point. In Martin
this Court took the opportunity to discuss the general rule that "court-martial
jurisdiction over persons in the military service of the Philippines ceases upon
discharge or separation from such service" and an exception to the general
rule recited in Article of War 95 regarding frauds against the Government.
The case of Toth v. Quarles 30 decided by the Supreme Court of the United
States is also inapplicable.
Toth involves a former serviceman named Audrey M. Toth who, five months
after his honorable discharge from the U.S. Air Force, was arrested by military
authorities on a charge of murder allegedly committed in Korea when he was
still an airman. A divided Supreme Court 31 held that Congress has no power
to subject a discharged serviceman to trial by court-martial for offenses
committed by him while in the military service and so to deprive him of the
constitutional safeguards protecting persons accused of crime in a federal
court.
The Toth ruling is inapplicable to the instant case for two reasons.
First — Toth was honorably discharged from the military service. The
arrangement was voluntary on the part of the serviceman. There was an
ostensible intention on his part to live the life of a civilian again. Colonel
Abadilla was not honorably discharged. On the contrary, he was dropped from
the rolls of regular officers of the AFP. This arrangement did not have his
express consent. In fact, he was at large at that time.
Second — The proceedings against Toth began after his honorable discharge
from the service. The proceedings against Colonel Abadilla were commenced
when he was still a regular officer of the AFP.
Moreover, the doctrine in Toth is not a unanimous pronouncement as there
were some persuasive dissenting views.
Although Toth was cited in Olaguer v. Military Commission No. 34, 32 the
citation should not be construed as a sweeping endorsement of the entire
doctrine therein. Toth was cited in Olaguer only for the purpose of
emphasizing that military commissions or tribunals cannot try civilians. In
Olaguer, this Court relied on the doctrine announced in Ex-parte Milligan, 33
and not the one in Toth, in arriving at the Decision of the Court.
Another point should be mentioned regarding the matter of jurisdiction. We
agree with the respondents in their assertion that the pendency of a case in
the civil courts has no relevance to the problem of military jurisdiction over
Colonel Abadilla. The argument is well-taken.
II.
The matter of jurisdiction having been settled, We now proceed to discuss the
remaining contentions of the petitioners.
The petitioners argue that even if it were to be assumed that Colonel Abadilla
is subject to military law, his confinement remains illegal because under Article
of War 70, a person subject to military law can be detained only if he is
charged with a crime or a serious offense under the Articles of War.
The record of the case discloses that Colonel Abadilla has been charged by
the military authorities for violation of Article of War 67 (Mutiny or Sedition)
which is a serious offense, and the corresponding charge sheets have been
prepared against him.
Page 25 of 101
The important issue in this Petition has been resolved-the detention of Colonel
Abadilla under the circumstances obtaining in this case is not illegal. For this
reason, the instant Petition for habeas corpus should be dismissed for lack of
merit.
In the light of the foregoing discussion, the motion of petitioners to hold
respondent General Ramos in contempt of court for approving the filing of
court martial proceedings against Colonel Abadilla during the pendency of this
case should be and is hereby denied. The Court has not issued a restraining
order enjoining such proceedings. In fact We now find that the court martial
proceedings may proceed inasmuch as the military authorities have
jurisdiction over Colonel Abadilla in the above-stated cases.
One last word. The man in uniform belongs to the elite in public service. His
eminent credential is his absolute loyalty to the Constitution, the flag, his
country and his people. He is the guardian against external and internal
aggression.
He is a man of honor and courage. He is a gentleman. He is given arms to
insure his capability as an instrument of peace. When he is drafted in the
Philippine Constabulary he becomes a peace officer, a law enforcer, a law
man. Respect for the law is his article of faith.
However, when he wavers and fails to live up to the highest standard of fidelity
to his country and people, when he defies authority and discipline, when he
commits offenses or when he turns against the very people and government
he is sworn to protect, he becomes an outlaw and a disgrace to his uniform.
The state has a right to hold him to account for his transgressions and to see
to it that he can not use the awesome powers of his status to jeopardize the
security and peace of the citizenry.
WHEREFORE, in view of the foregoing, the instant Petition for habeas corpus
is hereby DISMISSED for lack of merit. We make no pronouncement as to
costs.
SO ORDERED.
Teehankee, C.J., Yap, Fernan, Narvasa, Melencio-Herrera, Gutierrez, Jr.,
Cruz, Paras, Feliciano, Padilla, Bidin, Sarmiento and Cortes, JJ., concur.
Republic of the Philippines
SUPREME COURT
Manila
FIRST DIVISION
G.R. No. 83251 January 23, 1991
RENATO B. SUAREZ, petitioner,
vs.
COURT OF APPEALS, HON. ZENAIDA BALTAZAR as Presiding Judge of
the Regional Trial Court, Branch 153, Pasig, Metro Manila, and
ROSEMARIE MANESE, respondents.
MEDIALDEA, J.:
This is a petition for review of the decision of the Court of Appeals dismissing
the special civil action for certiorari and prohibition filed by petitioner to annul
and set aside the orders of the trial court and to enjoin the latter from
proceeding with the petition for custody of and support of minor Rafael Carlos
Suarez docketed as Sp. Proc. No. 840-J filed by respondent Manese.
The antecedent facts are as follows:
On December 11, 1986, respondent Manese filed with the trial court a petition
for writ of habeas corpus against petitioner Renato Suarez, his mother Paz
Suarez and his sister Milagros Suarez docketed as Sp. Proc. No. 734-J.
On February 23, 1987, before she could finish the presentation of her
evidence, respondent Manese filed a motion to dismiss without prejudice to
her right to file another action for custody of minor under Rule 99 of the Rules
of Court, contending that the issue as to who between the parties has the
rightful and legal custody of the minor child could be fully adjudicated in
another action and not in the present action for writ of habeas corpus.
On February 24, 1987, the trial court issued a resolution granting the motion
with prejudice.1âwphi1
Thereafter, respondent Manese filed another action for custody of minor and
support on May 27, 1987 before the trial court, docketed as Sp. Proc. No. 840-
J against petitioner. The latter moved to dismiss the action on the ground of
bar by prior judgment rendered in Sp. Proc. No. 734-J dismissing the same
with prejudice. On October 1, 1987, the motion to dismiss by petitioner was
denied by the trial court. Petitioner, however, moved for the reconsideration of
the denial which was also denied.
Respondent Manese filed on December 1, 1987 a motion for visitorial rights
and on December 14, 1987, a motion for custody of the minor during the
Christmas season.
On December 15, 1987, the trial court issued an order denying petitioner's
motion for reconsideration and granting respondent Manese's two motions.
On January 22, 1988, the trial court issued another order setting aside its
order dated December 15, 1987, which granted the petitioner's motion for
visitorial rights over the minor, and setting the pre-trial of the case on a
scheduled date.
Not satisfied with the orders of the trial court, petitioner filed with respondent
appellate court a petition for certiorari and prohibition with application for
restraining order/preliminary injunction, seeking to set aside the orders of the
trial court of October 1, 1987 and December 15, 1987.
On February 12, 1988, the Court of Appeals rendered judgment dismissing the
special civil action.
Hence, this petition was filed with the petitioner assigning the following errors
of the respondent appellate court:
I determined in a second action to be filed under Rule 99 of the Revised Rules
THE ORDER OF THE HONORABLE JUDGE EUTROPIO MIGRINO IN SP.
PROC. NO. 734-J DISMISSING THE PETITION FOR HABEAS CORPUS IS A
VALID JUDGMENT.
II
UNDER SECTION 2, RULE 17 OF THE RULES OF COURT, THE HON.
JUDGE MIGRINO HAS THE RIGHT TO DISMISS THE HABEAS CORPUS
CASE FILED BY MANESE WITH PREJUDICE.
III
THE PROPRIETY OR VALIDITY OF JUDGE MIGRINO'S ORDER OF
DISMISSAL (ANNEX 'D') OF THE HABEAS CORPUS CASE CANNOT BE
PASSED UPON BY THE COURT OF APPEALS, BECAUSE IT WAS NOT
APPEALED.
IV
IN THE LIGHT OF THE FOREGOING, MANESE'S CAUSE OF ACTION
(PETITION FOR CUSTODY OF MINOR) IS BARRED BY A PRIOR
RESOLUTION (SEC. 1, PAR. (F), RULE 16 OF THE RULES OF COURT).
V the particular facts obtaining, would amount to denial of justice and/or bar to a
GRANTING IN GRATIA ARGUMENTI THAT THE ORDER OF DISMISSAL BY
JUDGE MIGRINO IS NULL AND VOID UNDER THE CONSTITUTION,
WHICH SUAREZ VEHEMENTLY DENIES, NEVERTHELESS, THE PETITION
FOR CUSTODY OF MINOR SHOULD STILL BE DISMISSED ON THE
GROUND OF LITIS PENDENTIA.
VI
GRANTING, FURTHER, THAT THE ORDER OF DISMISSAL IS NOT A
VALID JUDGMENT, WHICH SUAREZ VEHEMENTLY DENIES,
NEVERTHELESS, RESPONDENT JUDGE BALTAZAR COMMITTED NOT
ONLY GRAVE ABUSE OF DISCRETION BUT EXCEEDED HER
JURISDICTION WHEN SHE GRANTED MANESE'S MOTION FOR
CUSTODY OF THE MINOR (ANNEX "M") IN HER ORDER OF 15
DECEMBER 1987 (ANNEX "N").
The assigned errors boil down to the following issues: 1) Whether or not the
order of dismissal with prejudice in the action for the writ of habeas corpus,
docketed as Sp. No. 734-J is res judicata to the present action for custody of
minor and support docketed as Sp. No. 840-J; 2) whether or not the
respondent appellate court committed grave abuse of discretion in granting
custody to the private respondent during the Christmas season as stated in
the questioned order of December 15, 1987.
We find the petition devoid of merit.
Anent the first issue, petitioner contends that the petition for custody of minor
cannot prosper due to the prior judgment dismissing the petition for writ of
habeas corpus and the principle of res judicata applies even if the party
changed the form of its cause of action in filing the present action for custody
of minor.
There are four well known requisites to the principle of res judicata: (1) there
must be a final judgment or order; (2) the court rendering the same must have
jurisdiction over the subject matter of the parties; (3) the former judgment is a
judgment on the merits; and (4) there is between the first and the second
action identity of parties, of subject matter, and of causes of action (Filipinas
Investment Corporation v. Court of Appeals, G.R. 66059-60, December 4,
1989). However, the foregoing requisites should be subservient to the most
significant requirement that the former judgment must be a valid one. We
agree with the conclusion of the Court of Appeals that the former order issued
by the trial court in Sp. Proc. No. 734-J, dismissing the habeas corpus case is
null and void for having been rendered in violation of the constitutional
mandate that no decision shall be rendered by any court without expressing
therein clearly and distinctly the facts and the law on which it is based (Article
VIII, Section 14, 1987 Constitution). Further, the circumstances surrounding
the dismissal of the case show that the order of the trial court was issued
Page 26 of 101
whimsically and capriciously and with grave abuse of discretion tantamount to
nullity of the order.
Records show that the motion to dismiss of respondent Manese, who was the
plaintiff in the trial court was filed during the trial and hearing stage of the
petition for writ of habeas corpus. The general rule governing dismissal of
actions by the plaintiff after the answer has been served is laid down in Rule
17 of the Revised Rules of Court, which rule is summarized as follows — an
action shall not be dismissed at the request of the plaintiff after the service of
the answer except by order of the court and upon such terms and conditions
as the court deems proper. Hence, the trial court has the judicial discretion in
ruling on a motion to dismiss at the instance of the plaintiff, but this discretion
should be exercised within reasonable limits. In such case, the trial court has
to decide whether the dismissal of the case should be allowed, and if so on
what terms and conditions.
In the case at bar, the motion to dismiss filed by the plaintiff states that it was
without prejudice to the filing of an action for the custody of minor on the
ground that the issue as to the custody of the child would be properly
of Court. Clearly, the purpose of the plaintiff in dismissing the first action for a
writ of habeas corpus was not to end litigation concerning the right of the
former to the custody of her child but on the contrary, to pursue it in a second
action, this time for custody of minor. It is worthy to note that the ground upon
which respondent Manese filed her motion for dismissal is erroneous since the
question as to who shall have the custody of the child can be sufficiently
resolved in the petition for writ of habeas corpus pursuant to Rule 102,
Revised Rules of Court without the necessity of filing a separate action under
Rule 99 of the said rules for that purpose. Nevertheless, it is error for the trial
court to dismiss the first case with prejudice to the filing of the second action
without stating the reasons or basis thereof This should not prevent the filing
of the second action for custody of minor, since no opportunity was granted by
the trial court to the plaintiff to raise this issue for the determination of the court
in the habeas corpus case. Hence, We believe that the order of dismissal of
the petition for the writ of habeas corpus cannot be considered as a valid
adjudication on the merits which would serve as a bar to the second action for
custody of minor.
Assuming in gratia argumenti that the prior judgment of dismissal with
prejudice was validly rendered within the lawful discretion of the court and
could be considered as an adjudication on the merits, nonetheless, the
principle of res judicata should be disregarded if its application would involve
the sacrifice of justice to technicality (Republic v. De los Angeles, No. L-30240,
March 25, 1988, 159 SCRA 264). The application of the said principle, under
vindication of a legitimate grievance (Ronquillo v. Marasigan, No. L-11621,
May 31, 1962, 5 SCRA 304). It is worth stating here that the controversy in the
instant case is not just an ordinary suit between parties over a trivial matter but
a litigation initiated by the natural mother over the welfare and custody of her
child, in which the State has a paramount interest. The fundamental policy of
the State as embodied in the Constitution in promoting and protecting the
welfare of children shall not be disregarded by the courts by mere technicality
in resolving disputes which involve the family and the youth.
The other issue raised by petitioner concerning grave abuse of discretion of
the trial court in granting the custody of the child to respondent Manese during
the Christmas season from December 18, 1987 to January 2, 1988 is already
moot and academic.
ACCORDINGLY, the petition is hereby DENIED and the decision of the
respondent Court of Appeals dated February 12, 1988 is AFFIRMED.
SO ORDERED.
Narvasa, Cruz, Gancayco and Grino-Aquino, JJ., concur.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 115576 August 4, 1994
IN THE MATTER OF THE PETITION FOR HABEAS CORPUS OF
LEONARDO PAQUINTO AND JESUS CABANGUNAY.
CHAIRMAN SEDFREY A. ORDOÑEZ, COMM. SAMUEL M. SORIANO,
COMM. HESIQUIO R. MALLILLIN, COMM. NARCISO C. MONTEIRO,
COMM. PAULYNN PAREDES-SICAM, THE COMMISSION ON HUMAN
RIGHTS, petitioners,
vs.
DIRECTOR OF PRISONS, respondent.
CRUZ, J.:
Why are Leonardo Paquinto and Jesus Cabangunay still in prison?
These persons are among the civilians who were tried by the military
commissions during the period of martial law. Both were originally condemned
to die by musketry, but their sentence was commuted by the new Constitution
to reclusion perpetua.

Their convictions were subsequently nullified by this Court in the case of
Olaguer v. Military Commission No. 34, 1 where we held that the military
tribunals had no jurisdiction to try civilians when the courts of justice were
functioning.
Accordingly, in the case of Cruz v. Ponce Enrile, 2 this Court directed the
Department of Justice to file the corresponding informations in the civil courts
against the petitioners within 180 days from notice of the decision.
No information has so far been filed against Paquinto and Cabangunay, but
they have remained under detention.
On May 27, 1992, Ernesto Abaloc, together with Cabangunay and Paquinto,
wrote to the United Nations Human Rights Committee (UNHRC) complaining
that their continued detention violated their rights under Articles 6, 7, 9, 10, 14,
and 26 of the International Covenant on Civil and Political Rights. 3
In its decision dated October 14, 1993, the UNHRC declared their
communication as admissible and requested the Republic of the Philippines to
submit a written explanation of their complaint within six months from the date
of transmittal. 4
The Department of Foreign Affairs furnished the Commission on Human
Rights with a copy of the decision. Thereupon, the Commission, through its
Chairman Sedfrey A. Ordoñez wrote the Secretary of Justice of its intention to
sue for the release of the complaints unless criminal charges had already
been filed against them. 5
On June 7, 1994, the Department of Justice informed the Commission that
Abaloc had been released on September 29, 1992, and that Paquinto and
Cabangunay were still detained at the National Penitentiary. There was the
intimation that it would not object to a petition for habeas corpus that the
Commission might choose to file for Paquinto and Cabangunay.6 This
assurance was later confirmed in a letter from the Department dated May 31,
1994.7
The present petition for habeas corpus was filed with this Court on June 13,
1994. The writ was immediately issued, returnable on or before June 22, 1994,
on which date a hearing was also scheduled.
At the hearing, Chairman Ordoñez argued for the prisoners and pleaded for
their immediate release in view of the failure of the Department of Justice to
file charges against them within the period specified in the Cruz case. He
stressed that their continued detention despite the nullification of their
convictions was a clear violation of their human rights.
For its part, the Office of the Solicitor General, as counsel for the respondent
Director of Prisons, argued that under our ruling in Tan v. Barrios, 8 the
Olaguer decision could not be retroactively applied to decisions of the military
tribunals that have already become final or to persons who were already
serving their sentence. It suggested that, under the circumstances, the only
recourse of the prisoners was to reiterate and pursue their applications for
executive clemency.
It has been seven years since the Olaguer decision nullifying the convictions
of Paquinto and Cabangunay by the military commissions was promulgated. It
has been six years since our decision in the Cruz case directed the Secretary
of Justice to file the appropriate informations against the civilians still detained
under convictions rendered by the military tribunals. The prisoners have been
confined since 1974. We can only guess at the validity of their convictions as
the records of their cases have allegedly been burned.
The loss of these records is the main reason the Department gives for its
failure to file the corresponding charges against the two detainees before the
civil courts. It is unacceptable, of course. It is not the fault of the prisoners that
the records cannot now be found. If anyone is to be blamed, it surely cannot
be the prisoners, who were not the custodian of those records. It is illogical
and even absurd to suggest that because the government cannot prosecute
them, the prisoners' detention must continue.
The other excuse of the government must also be rejected. During the
hearing, the Office of the Solicitor General contended that the prisoners had
themselves opted to serve their sentences rather than undergo another trial.
Their ultimate objective, so it was maintained, was to secure their release by
applying for executive clemency. To prove this, counsel submitted a letter from
one
Atty. Anselmo B. Mabuti to the Secretary of Justice manifesting that Leonardo
B. Paquinto "chooses to complete the service of his sentence so that the
Board of Pardons and Parole has jurisdiction over his case." 9 No mention
was made of Jesus Cabangunay.
Upon direct questioning from the Court during the hearing, both Paquinto and
Cabangunay disowned Atty. Mabuti as their counsel and said they had never
seen nor talked to him before. Paquinto denied ever having authorized him to
write the letter. Instead, the two prisoners reiterated their plea to be released
on the strength of the Olaguer decision.
The petitioners further contend in their memorandum that a re-examination of
the ruling in Cruz v. Enrile 10 in relation to the case of Tan v. Barrios, 11 is
necessary in view of certain supervening events. These are the failure of the
Department of Justice to file the informations against the prisoners; the
decision of the UNHRC declaring admissible the communication
Page 27 of 101
No. 503/1992 of Abaloc, Paquinto and Cabangunay and thus suggesting the
violation of their liberty as guaranteed under the International Covenant on
Civil and Political Rights; and the assurance of the Department of Justice that
it would have no objection to the filing of a petition for habeas corpus by the
Commission on behalf of Paquinto and Cabangunay.
The Court stresses that in its en banc resolution dated February 26, 1991, it
declared, citing the Tan case, that "those civilians who were convicted by
military courts and who have been serving (but not yet completed) their
sentences of imprisonment for the past many years" . . . "may be given the
option either to complete the service of their sentence, or be tried anew by the
civil courts. Upon conviction, they should be credited in the service of their
sentence for the full period of their previous imprisonment. Upon acquittal,
they should be set free."
Accordingly, it directed "the Department of Justice to forthwith comply with the
directive in the "Cruz Cases" for the filing of the necessary informations
against them in the courts having jurisdiction over the offenses involved,
without prejudice to said petitioners' exercise of the option granted to them by
this Court's ruling in G.R. Nos. 85481-82, William Tan, et al. v. Hernani T.
Barrios, etc., et al., supra."
The Office of the Solicitor General submitted its memorandum after its second
motion for extension was denied, in view of the necessity to decide this
petition without further delay. 12 The memorandum was admitted just the
same, but we find it adds nothing to the respondent's original arguments.
There is absolutely no question that the prisoners' plea should be heeded. The
government has failed to show that their continued detention is supported by a
valid conviction or by the pendency of charges against them or by any
legitimate cause whatsoever. If no information can be filed against them
because the records have been lost, it is not the prisoners who should be
made to suffer. In the eyes of the law, Paquinto and Cabangunay are not guilty
or appear to be guilty of any crime for which they may be validly held. Hence,
they are entitled to be set free.
Liberty is not a gift of the government but the right of the governed. Every
person is free, save only for the fetters of the law that limit but do not bind him
unless he affronts the rights of others or offends the public welfare. Liberty is
not derived from the sufferance of the government or its magnanimity or even
from the Constitution itself, which merely affirms but does not grant it. Liberty
is a right that inheres in every one of us as a member of the human family.
When a person is deprived of this right, all of us are diminished and debased
for liberty is total and indivisible.
WHEREFORE, the petition is GRANTED. Jesus Cabangunay and Leonardo
Paquinto should not be detained in prison a minute longer. They are ordered
released IMMEDIATELY.
Narvasa, C.J., Feliciano, Padilla, Bidin, Regalado, Davide, Jr., Romero,
Bellosillo, Melo, Quiason, Puno, Vitug, Kapunan and Mendoza, JJ., concur.
Republic of the Philippines
SUPREME COURT
Manila
FIRST DIVISION
G.R. No. 118644 July 7, 1995
DIRECTOR EPIMACO A. VELASCO, as Director of the National Bureau of
Investigation (NBI), NATIONAL BUREAU OF INVESTIGATION SPECIAL
OPERATIONS GROUP (SOG), SPECIAL INVESTIGATORS III FLOR L.
RESURRECCION and ANTONIO M. ERUM, JR., and THE PEOPLE OF THE
PHILIPPINES, petitioners,
vs.
COURT OF APPEALS, FELICITAS S. CUYAG, for and in behalf of
LAWRENCE A. LARKINS, respondents.
DAVIDE, JR., J.:
The high prerogative writ of habeas corpus, whose origin is lost in antiquity,1
was devised and exists as a speedy and effectual remedy to relieve persons
from unlawful restraint and as the best and only sufficient defense of personal
freedom.2 More specifically, its vital purposes are to obtain immediate relief
from illegal confinement, to liberate those who may be imprisoned without
sufficient cause, and to deliver them from unlawful custody. It is then
essentially a writ of inquiry and is granted to test the right under which a
person is detained.3
Under our Constitution, the privilege of the writ of habeas corpus cannot be
suspended except in cases of invasion or rebellion when the public safety
requires it.4 Pursuant to Section 1, Rule 102 of the Rules of Court, it extends,
except as otherwise provided by law, to all cases of illegal confinement or
detention by which any person is deprived of his liberty, or by which the rightful
custody of any person is withheld from the person entitled thereto. It is not
available, however, under the instances enumerated in Section 4 of the said
Rule which reads:
Sec. 4. When writ not allowed or discharge authorized. — If it appears that
the person alleged to be restrained of his liberty is in the custody of an officer
under process issued by a court or judge or by virtue of a judgment or order of
a court of record, and that the court or judge had jurisdiction to issue the
process, render the judgment, or make the order, the writ shall not be allowed;
or if the jurisdiction appears after the writ is allowed, the person shall not be
discharged by reason of any informality or defect in the process, judgment, or
order. Nor shall anything in this rule be held to authorize the discharge of a
person charged with or convicted of an offense in the Philippines, or of a
person suffering imprisonment under lawful judgment.
In this petition for review, the petitioners want us to set aside and reverse the
decision of 1 February 1995 of the Court of Appeals in CA-G.R. SP No.
36273,5 a petition for habeas corpus and certiorari with a prayer for a
temporary restraining order, ordering the herein petitioners to immediately
release Lawrence A. Larkins from their custody and declaring moot the
alternative relief of certiorari.
The antecedent facts of the case as culled from the challenged decision and
the pleadings of the parties are neither complicated nor disputed.
On 16 September 1993, a warrant of arrest was issued by Judge Manuel
Padolina of Branch 162 of the Regional Trial Court (RTC) of Pasig, Metro
Manila, against accused Lawrence Larkins in Criminal Cases Nos. 101189-92
for violations of B.P. Blg. 22.
On 20 November 1994, a certain Desiree Alinea executed and filed before the
National Bureau of Investigation (NBI) a complaint-affidavit accusing Larkins of
the crime of rape allegedly committed against her on 19 November 1994 at
2:00 a.m. in Victoria Valley Subdivision, Valley Golf, Antipolo, Rizal.6
Acting on the basis of the complaint of Alinea, petitioners Special Investigators
Flor L. Resurreccion and Antonio M. Erum, Jr. proceeded to the office of
Larkins in Makati, Metro Manila, on 21 November 1994 and arrested the latter,
who was thereupon positively identified by Alinea as her rapist. 7 Larkins was
then detained at the Detention Cell of the NBI, Taft Avenue, Manila.
On 22 November 1994, Larkins posted his bail of P4,000.00 in Criminal Cases
Nos. 101189-92. Judge Padolina forthwith issued an order recalling and
setting aside the warrant of arrest issued on 16 September 1993 and directing
the Jail Warden of the NBI Detention Cell to release Larkins from confinement
"unless otherwise detained for some other cause."
Special Investigators Resurreccion and Erum refused to release Larkins
because he was still detained for another cause, specifically for the crime of
rape for which he would be held for inquest.
On 23 November 1994, a complaint against Larkins for rape was executed by
Alinea.8 It contains a certification by Assistant Provincial Prosecutor Ma. Paz
Reyes Yson that it is "filed pursuant to Section 7, Rule 112 of the 1985 Rules
on Criminal Procedure, as amended, the accused not having opted to avail of
his right to preliminary investigation and not having executed a waiver
pursuant to Article 125 of the RPC. . . ." The complaint was filed with the RTC
of Antipolo on 2 December 1994, docketed therein as Criminal Case No. 94-
11794, and assigned to Branch 71 of the court, presided by Judge Felix S.
Caballes.
On 2 December 1994, Larkins, through his counsel Mauricio C. Ulep, filed an
Urgent Motion for Bail9 wherein he alleged, inter alia, that the evidence of guilt
against him for rape is not strong, as he had no carnal knowledge of the
complainant and the medical report indicates that her hymen was neither
lacerated nor ruptured; that he is entitled as a matter of right to bail; and that
he has no intention of going out of the country or hiding away from the law.
On 6 December 1994, Larkins, through his new counsel, Atty. Theodore O.
Te, filed in Criminal Case No. 94-11794 an Urgent Omnibus Motion for the
Dismissal of the Complaint and for Immediate Release,10 principally based on
the alleged illegality of his warrantless arrest. This motion met vigorous
opposition from the private complainant.11
In the order of 5 January 1995,12 the trial court denied the aforesaid motions,
thus:
After a careful appreciation of the arguments of the prosecution and the
defense, the Court finds no legal or valid grounds to dismiss the complaint or
release the accused, or to grant him bail. The filing of this case against the
accused, which is [a] very serious offense, justifies the grant of the motion of
the prosecution for the issuance of a hold departure order.
WHEREFORE, the motions of the accused are hereby denied for lack of merit,
and as prayed for by the prosecution the Bureau of Immigration and
Deportation is hereby directed to include the name of the accused, Lawrence
A. Larkins, in its hold order departure list until further order from this Court.
Unable to accept the ruling, Larkins' common-law wife, Felicitas S. Cuyag,
filed before the Court of Appeals a petition for habeas corpus with certiorari.
Impleaded as respondents were the herein petitioners and Judge Felix S.
Caballes.
Subsequently, the Court of Appeals issued a resolution13 ordering the
respondents therein to appear and produce Lawrence A. Larkins before the
court on 31 January 1995 at 10:30 a.m. and to show cause why Larkins' liberty
is being restrained.
Page 28 of 101
On the said date, Special Investigators Resurreccion and Erum appeared and
produced Larkins at the hearing. Atty. Orlando Dizon of the NBI acted as their
counsel. 14 The Office of the Solicitor General representing the People of the
Philippines made no appearance.15 Neither did Judge Caballes, for he had
not received a copy of the resolution. On the other hand, the petitioner therein,
Felicitas S. Cuyag, appeared with her counsel, who manifested that should the
court order the release of Larkins the alternative prayer for certiorari would be
deemed abandoned. 16
After hearing the arguments of the parties, the Court of Appeals rendered the
challenged decision, holding that:
From the arguments presented by the parties, we resolve to order the
immediate release of Larkins from his present confinement on the ground that
the complaint presented to the NBI by complainant Desiree Alinea on the
basis of which Larkins was detained without a warrant of arrest for rape did not
meet the legal requirements provided for in Rule 113 of the Rules of Court.
Furthermore, on the day the detention of Larkins commenced, i.e.,
immediately after the NBI was served with the Order of the Pasig RTC for his
release on bail in connection with the BP 22 cases, no other criminal complaint
or information had been filed or pending in any court. It was only sometime
between November 25, 1994 (when filing of the complaint was approved by
the Rizal Provincial Prosecutor) and November 29, 1994 (the date appearing
on the Urgent Motion for Bail filed by Larkins's former counsel, said Atty. Ulep)
that the complaint for rape was filed with the Antipolo RTC.
The petitioners insist that the respondent court erred in granting the petition for
habeas corpus because Larkins had already been charged with the crime of
rape and the trial court had denied his application for bail. They further claim
that the warrantless arrest in this case is valid for it was made under Section
5(b), Rule 113 of the Rules of Court.
On the other hand, the private respondent contends that habeas corpus is
rendered unavailing not by the mere filing of an information, but by the
issuance of a warrant of arrest or warrant of commitment, which are the only
two processes recognized by law to justify deprivation of liberty, and the order
of Judge Caballes of 5 January 1995 denying the petition for bail does not
qualify as such. She asserts that the petitioners have miscomprehended
Paredes vs. Sandiganbayan17 because that case did not rule that the writ is
no longer available after an information (or criminal complaint for rape as in
this case) is filed against the person detained; what it stated is that the writ of
habeas corpus will not issue when the person alleged to be restrained of his
liberty is in the custody of an officer under a process issued by the court which
has jurisdiction to do so. She submits that the controlling doctrine is that
enunciated in Ilagan vs. Ponce Enrile,18 adverted to in Sanchez vs.
Demetriou,19 that "[t]he filing of charges, and the issuance of the
corresponding warrant of arrest, against a person invalidly detained will cure
the defect of that detention or at least deny him the right to be released
because of such defect."
We find for the petitioners.
But, before we take up the substantive merits of this petition, we shall first
delve into the propriety of the petition for habeas corpus and certiorari filed by
private respondent Cuyag with the Court of Appeals.
Concededly, the private respondent has the personality to institute on behalf of
her common-law spouse, Lawrence Larkins, the habeas corpus aspect of the
petition, as she falls within the purview of the term "some person" under
Section 3, Rule 102 of the Rules of Court, which means any person who has a
legally justified interest in the freedom of the person whose liberty is restrained
or who shows some authorization to make the application.20 She is not,
however, the real party in interest in the certiorari aspect of the petition. Only
Larkins could institute a petition for certiorari to set aside the order denying his
motions for bail and for the dismissal of the complaint against him.
It does not, however, follow that if certiorari is available to Larkins, an
application for a writ of habeas corpus will absolutely be barred. While
ordinarily, the writ of habeas corpus will not be granted when there is an
adequate remedy by writ of error or appeal or by writ of certiorari, it may,
nevertheless, be available in exceptional cases, for the writ should not be
considered subservient to procedural limitations which glorify form over
substance.21 It must be kept in mind that although the question most often
considered in both habeas corpus and certiorari proceedings is whether an
inferior court has exceeded its jurisdiction, the former involves a collateral
attack on the judgment and "reaches the body but not the record," while the
latter assails directly the judgment and "reaches the record but not the
body."22
And now on the merits of the petition.
The Court of Appeals granted the writ of habeas corpus because it found that
the warrantless arrest of Larkins for the crime of rape "did not meet the legal
requirements provided for in Rule 113 of the Rules of Court." It could have in
mind Section 5 thereof on lawful warrantless arrest.
Even if the arrest of a person is illegal, supervening events may bar his
release or discharge from custody. What is to be inquired into is the legality of
his detention as of, at the earliest, the filing of the application for a writ of
habeas corpus, for even if the detention is at its inception illegal, it may, by
reason of some supervening events, such as the instances mentioned in
Section 4 of Rule 102, be no longer illegal at the time of the filing of the
application. Among such supervening events is the issuance of a judicial
process preventing the discharge of the detained person. Thus, in Sayo vs.
Chief of Police of Manila,23 this Court held:
[W]e hold that petitioners are being illegally restrained of their liberty, and their
release is hereby ordered unless they are now detained by virtue of a process
issued by a competent court of justice. (emphasis supplied)
Another is the filing of a complaint or information for the offense for which the
accused is detained, as in the instant case. By then, the restraint of liberty is
already by virtue of the complaint or information and, therefore, the writ of
habeas corpus is no longer available. Section 4 of Rule 102 reads in part as
follows: "Nor shall anything in this rule be held to authorize the discharge of a
person charged with . . . an offense in the Philippines."
Thus, in Matsura vs. Director of Prisons,24 where petitioners Macario Herce
and Celso Almadovar claimed to have been illegally detained for more than
one year without any complaint or information filed against them, this Court
denied the petition for a writ of habeas corpus, for at the time they filed the
petition they had already been charged with the crime of treason and confined
by reason thereof. Harvey vs. Defensor-Santiago25 reiterates Matsura.
In Cruz vs. Montoya,26 this Court dismissed the petition for habeas corpus for
having become academic because the information for estafa against the party
whose liberty was allegedly illegally restrained had already been filed and a
warrant for his arrest had been issued, and whatever illegality might have
originally infected his detention had been cured.
In Umil vs. Ramos27 this Court, applying the last sentence of Section 4 of
Rule 102, held that the writ of habeas corpus should not be allowed after the
party sought to be released had been charged before any court. Thus:
It is to be noted that, in all the petitions here considered, criminal charges have
been filed in the proper courts against the petitioners. The rule is, that if a
person alleged to be restrained of his liberty is in the custody of an officer
under process issued by a court or judge, and that the court or judge had
jurisdiction to issue the process or make the order, or if such person is
charged before any court, the writ of habeas corpus will not be allowed.
Section 4, Rule 102, Rules of Court, as amended is quite explicit in providing
that:
Sec. 4. . . . Nor shall anything in this rule be held to authorize the
discharge of a person charged with or convicted of an offense in the
Philippines or of a person suffering from imprisonment under lawful
judgment.28 (emphasis supplied)
It may also be said that by filing his motion for bail, Larkins admitted that he
was under the custody of the court and voluntarily submitted his person to its
jurisdiction. In De Asis vs. Romero,29 this Court stated:
De Asis could have, right after his arrest, objected to the regularity of the
issuance of the warrant of arrest in question. Instead he not only filed a
petition for bail with the lower court, thereby accepting the court's jurisdiction
over his person, but he also pleaded, on arraignment, to the information filed
against him. (emphasis supplied)
The filing of a petition or motion for bail in cases where no bail is
recommended has the same legal import and effect as the posting of bail in
cases where bail is recommended. It is settled that the giving or posting of bail
by the accused is tantamount to submission of his person to the jurisdiction of
the court. In the case of Carrington vs. Peterson,30 this Court declared:
When a defendant in a criminal case is brought before a competent court by
virtue of a warrant of arrest or otherwise, in order to avoid the submission of
his body to the jurisdiction of the court he must raise the question of the court's
jurisdiction over his person at the very earliest opportunity. If he gives bail,
demurs to the complaint or files any dilatory plea or pleads to the merits, he
thereby gives the court jurisdiction over his person. (State ex rel. John Brown
vs. Fitzgerald, 51 Minn., 534)
In United States vs. Grant,31 this Court held:
Conceding again that the warrant issued in this case was void for the reason
that no probable cause was found by the court before issuing it, the defendant
waived all his rights to object to the same by appearing and giving bond.
While it may be true that on 6 December 1994, or four days after the filing of
the Urgent Motion for Bail, Larkins, thru a new counsel, filed an Urgent
Omnibus Motion for Dismissal of the Complaint and for Immediate Release
based on the alleged illegality of his warrantless arrest, the said motion was a
mere afterthought which came too late in the day. By then, the trial court had
firmly acquired jurisdiction over his person.
Moreover, the trial court's order of 5 January 1995 denying the urgent motion
for bail was an unequivocal assertion of its authority to keep in custody the
person of Larkins. This order comes under the purview of the word order
under the first sentence of Section 4 of Rule 102 reading: "If it appears that the
person alleged to be restrained of his liberty is in the custody of an officer . . .
by virtue of [an] order of a court of record, and that the court or judge had
jurisdiction to . . . make the order, the writ shall not be allowed. . . ."
The foregoing renders untenable the private respondent's claim that it is the
rule in Ilagan vs. Enrile32 which must govern, that the writ may not be allowed
Page 29 of 101
only where the person alleged to be restrained of his liberty is in the custody of
an officer under process issued by the court or judge, and that there are only
two recognized processes which justify deprivation of liberty, viz., (1)
commitment order and (2) warrant of arrest. The contention is not only a
deliberate misreading of Section 4 of Rule 102 limiting its application to the
first part of the first sentence and disregarding the rest, but is also an undue
and unwarranted restriction of the term process. A commitment order and a
warrant of arrest are but species of judicial process.
In Malaloan vs. Court of Appeals,33 this Court stated:
Invariably a judicial process is defined as a writ, warrant, subpoena, or other
formal writing issued by authority of law; also, the means of accomplishing an
end, including judicial proceedings, or all writs, warrants, summonses and
orders of courts of justice or judicial officers. It is likewise held to include a writ,
summons or order issued in a judicial proceeding to acquire jurisdiction of a
person or his property, to expedite the cause or enforce the judgment, or a
writ, warrant, mandate or other process issuing from a court of justice.
In Macondray & Co., Inc. vs. Bernabe,34 this Court quoted Corpus Juris'
definition of the term "process," to wit:
As a legal term, process is a generic word of very comprehensive signification
and many meanings. In its broadest sense, it is equivalent to, or synonymous
with "proceedings" or procedure and embraces all the steps and proceedings
in a cause from its commencement to its conclusion. Sometimes the term is
also broadly defined as the means whereby a court compels a compliance
with its demands. (50 C.J. 441)
We thus rule that the order of 5 January 1995 of the trial court also qualifies as
a process within the meaning of Section 4 of Rule 102.
Hence, even granting that Larkins was illegally arrested, still the petition for a
writ of habeas corpus will not prosper because his detention has become legal
by virtue of the filing before the trial court of the complaint against him and by
the issuance of the 5 January 1995 order.
Even as we thus decide in favor of the petitioners, we are, nevertheless,
disturbed by certain incidents relative to the warrantless arrest of Larkins.
Firstly, assuming that it was lawful, the facts before us disclose that the
arresting officers failed to strictly comply with (1) the last paragraph of Section
5, Rule 113 of the Rules of Court requiring that the person lawfully arrested
without a warrant shall forthwith be delivered to the nearest police station or
jail and shall be proceeded against in accordance with Section 7, Rule 112;
and (2) Article 125 of the Revised Penal Code, as amended, providing that he
be delivered to the proper judicial authorities within thirty-six hours, the crime
with which Larkins was charged being punishable by an afflictive penalty.
Although the arrest was made in Makati where there is a police station and a
municipal (now city) jail, Larkins was brought to the NBI Detention Cell at Taft
Avenue, Manila, and though the complaint of the offended party was executed
on 23 November 1994, it was not until 2 December 1994 that the said
complaint was actually filed in court.
Unless satisfactorily explained, the non-compliance by the arresting officers
with the said provisions merits nothing but disapproval from the Court. In the
performance of their duty and in their commendable pursuit to stamp out
crimes and bring criminals to the bar of justice, law enforcement authorities
should make no shortcuts, but must comply with all procedures to safeguard
the constitutional and statutory rights of accused persons. The rule of law must
always be upheld. What this Court said in Beltran vs. Garcia35 needs to be
repeated:
It certainly does not speak well of officialdom, whether civilian or military, if a
person deprived of his liberty had to go to court before his rights are
respected. The good name of the administration is jeopardized, without any
fault on its part, by such inefficiency or inattention to duty. Every precaution
should be taken against its repetition. Otherwise, the parties responsible for
this state of affairs would justly lay themselves open to the accusation that the
greatest danger to constitutional rights comes from public officials, men of
zeal, concededly well-meaning, but without sufficient understanding of the
implication of the rule of law.
We also note that the trial court did not conduct a hearing of the urgent motion
for bail, as required under Section 5, Rule 114 of the Rules of Court. The grant
or denial of bail must be based upon the court's determination as to whether or
not the evidence of guilt is strong. This discretion may only be exercised after
evidence is submitted at the hearing conducted for that
purpose.36 The court's order granting or refusing bail must contain a summary
of the evidence for the prosecution followed by its conclusion whether or not
the evidence of guilt is strong; otherwise, the order would be defective and
voidable. 37 In fact, even if the prosecutor refuses to adduce evidence in
opposition to the application to grant and fix bail, the court may ask the
prosecution such questions as would ascertain the strength of the State's
evidence or judge the adequacy of the amount of bail.38 It was thus
incumbent upon the trial court to receive the evidence for the prosecution on
the urgent motion for bail. For this procedural shortcoming, Larkins should also
be partly blamed. He did not press for a hearing after the scheduled hearing
on 5 December 1994 was cancelled because, as he claimed, the presiding
Judge was out of the country.39
WHEREFORE, the instant petition is GRANTED, and the decision of the Court
of Appeals of 1 February 1995 in CA-G.R. SP No. 36273 is hereby SET
ASIDE and ANNULLED.

No pronouncement as to costs.
SO ORDERED.
Padilla, Bellosillo, Quiason and Kapunan, JJ., concur.
Republic of the Philippines
SUPREME COURT
Manila
SECOND DIVISION
G.R. No. 122954 February 15, 2000
NORBERTO FERIA Y PACQUING, petitioner,
vs.
THE COURT OF APPEALS, DIRECTOR OF THE BUREAU OF
CORRECTIONS, MUNTINLUPA, METRO MANILA (IN PLACE OF THE JAIL
WARDEN OF THE MANILA CITY JAIL), THE PRESIDING JUDGE OF
BRANCH II, REGIONAL TRIAL COURT OF MANILA, and THE CITY
PROSECUTOR, CITY OF MANILA, respondents.
QUISUMBING, J.:
The mere loss or destruction of the records of a criminal case subsequent to
conviction of the accused will not render the judgment of conviction void, nor
will it warrant the release of the convict by virtue of a writ of habeas corpus.
The proper remedy is the reconstitution of judicial records which is as much a
duty of the prosecution as of the defense.
Subject of this petition for review on certiorari are (1) the Decision dated April
28, 1995, of the Eighth Division of the Court of Appeals, which affirmed the
dismissal of the petition for habeas corpus filed by petitioner, and (2) the
Resolution of the Court of Appeals dated December 1, 1995, which denied the
Motion for Reconsideration. As hereafter elucidated, we sustain the judgment
of respondent appellate court.
Based on the available records and the admissions of the parties, the
antecedents of the present petition are as follows:
Petitioner Norberto Feria y Pacquing has been under detention since May 21,
1981, up to present1 by reason of his conviction of the crime of Robbery with
Homicide, in Criminal Case No. 60677, by the Regional Trial Court of Manila,
Branch 2, for the jeepney hold-up and killing of United States Peace Corps
Volunteer Margaret Viviene Carmona.
Some twelve (12) years later, or on June 9, 1993, petitioner sought to be
transferred from the Manila City Jail to the Bureau of Corrections in Muntinlupa
City,2 but the Jail Warden of the Manila City Jail informed the Presiding Judge
of the RTC-Manila, Branch 2, that the transfer cannot be effected without the
submission of the requirements, namely, the Commitment Order or Mittimus,
Decision, and Information.3 It was then discovered that the entire records of
the case, including the copy of the judgment, were missing. In response to the
inquiries made by counsel of petitioner, both the Office of the City Prosecutor
of Manila and the Clerk of Court of Regional Trial Court of Manila, Branch 2
attested to the fact that the records of Criminal Case No. 60677 could not be
found in their respective offices. Upon further inquiries, the entire records
appear to have been lost or destroyed in the fire which occurred at the second
and third floor of the Manila City Hall on November 3, 1986.4
On October 3, 1994, petitioner filed a Petition for the Issuance of a Writ of
Habeas Corpus5 with the Supreme Court against the Jail Warden of the
Manila City Jail, the Presiding Judge of Branch 2, Regional Trial Court of
Manila, and the City Prosecutor of Manila, praying for his discharge from
confinement on the ground that his continued detention without any valid
judgment is illegal and violative of his constitutional right to due process.
In its Resolution dated October 10, 1994,6 the Second Division of this Court
resolved —
. . . (a) to ISSUE the Writ of Habeas Corpus; (b) to ORDER the Executive
Judge of the Regional Trial Court of Manila to conduct an immediate RAFFLE
of this case among the incumbent judges thereof; and (c) to REQUIRE [1] the
Judge to whom this case is raffled to SET the case for HEARING on Thursday,
October 13, 1994 at 8:30 A.M., try and decide the same on the merits and
thereafter FURNISH this Court with a copy of his decision thereon; [2] the
respondents to make a RETURN of the Writ on or before the close of office
hours on Wednesday, October 12, 1994 and APPEAR PERSONALLY and
PRODUCE the person of Norberto Feria y Pa[c]quing on the aforesaid date
and time of hearing to the Judge to whom this case is raffled, and [3] the
Director General, Philippine National Police, through his duly authorized
representative(s) to SERVE the Writ and Petition, and make a RETURN
thereof as provided by law and, specifically, his duly authorized
representative(s) to APPEAR PERSONALLY and ESCORT the person of
Norberto Feria y Pa[c]quing at the aforesaid date and time of hearing.
The case was then raffled to Branch 9 of the Regional Trial Court of Manila,
which on November 15, 1994, after hearing, issued an Order7 dismissing the
case on the ground that the mere loss of the records of the case does not
invalidate the judgment or commitment nor authorize the release of the
Page 30 of 101
petitioner, and that the proper remedy would be reconstitution of the records of
the case which should be filed with the court which rendered the decision.
Petitioner duly appealed said Order to the Court of Appeals, which on April 28,
1995, rendered the assailed Decisions8 affirming the decision of the trial court
with the modification that "in the interest of orderly administration of justice"
and "under the peculiar facts of the case" petitioner may be transferred to the
Bureau of Corrections in Muntinlupa City without submission of the
requirements (Mittimus, Decision and Information) but without prejudice to the
reconstitution of the original records.
The Motion for Reconsideration of the aforesaid Order having been denied for
lack of merit,9 petitioner is now before us on certiorari, assigning the following
errors of law:10
I. WHETHER OR NOT, UNDER THE PECULIAR CIRCUMSTANCES OF
THIS CASE, WHERE THE RECORDS OF CONVICTION WERE LOST, THE
PETITIONER'S CONTINUED INCARCERATION IS JUSTIFIED UNDER THE
LAW.
COROLLARY TO THIS, WHETHER OR NOT THE COURT OF APPEALS'
RESOLUTION, AFFIRMING THE DENIAL OF HEREIN APPELLANT'S
PETITION FOR HABEAS CORPUS IS, IN CONTEMPLATION OF LAW, A
JUDGMENT OR A SUBSTITUTE JUDGMENT, WHICH CAN BE UTILIZED
AS A SUFFICIENT BASIS FOR HIS INCARCERATION.
II. WHETHER OR NOT THE RECONSTITUTION OF OFFICIAL RECORDS
LOST/DESTROYED SHOULD BE INITIATED BY THE GOVERNMENT AND
ITS ORGANS, WHO ARE IN CUSTODY OF SUCH, OR BY THE PRISONER,
WHOSE LIBERTY IS RESTRAINED.
Petitioner argues that his detention is illegal because there exists no copy of a
valid judgment as required by Sections 1 and 2 of Rule 120 of the Rules of
Court,11 and that the evidence considered by the trial court and Court of
Appeals in the habeas corpus proceedings did not establish the contents of
such judgment. Petitioner further contends that our ruling in Gunabe v.
Director of Prisons, 77 Phil. 993, 995 (1947), that "reconstitution is as much
the duty of the prosecution as of the defense" has been modified or
abandoned in the subsequent case of Ordonez v. Director of Prisons, 235
SCRA 152, 155 (1994), wherein we held that "[i]t is not the fault of the
prisoners that the records cannot now be found. If anyone is to be blamed, it
surely cannot be the prisoners, who were not the custodians of those records."
In its Comment,12 the Office of the Solicitor General contends that the sole
inquiry in this habeas corpus proceeding is whether or not there is legal basis
to detain petitioner. The OSG maintains that public respondents have more
than sufficiently shown the existence of a legal ground for petitioner's
continued incarceration, viz., his conviction by final judgment, and under
Section 4 of Rule 102 of the Rules of Court, the discharge of a person
suffering imprisonment under lawful judgment is not authorized. Petitioner's
remedy, therefore, is not a petition for habeas corpus but a proceeding for the
reconstitution of judicial records.
The high prerogative writ of habeas corpus, whose origin is traced to antiquity,
was devised and exists as a speedy and effectual remedy to relieve persons
from unlawful restraint, and as the best and only sufficient defense of personal
freedom.13 It secures to a prisoner the right to have the cause of his detention
examined and determined by a court of justice, and to have the issue
ascertained as to whether he is held under lawful authority.14 Consequently,
the writ may also be availed of where, as a consequence of a judicial
proceeding, (a) there has been a deprivation of a constitutional right resulting
in the restraint of a person, (b) the court had no jurisdiction to impose the
sentence, or (c) an excessive penalty has been imposed, as such sentence is
void as to such excess.15 Petitioner's claim is anchored on the first ground
considering, as he claims, that his continued detention, notwithstanding the
lack of a copy of a valid judgment of conviction, is violative of his constitutional
right to due process.
Based on the records and the hearing conducted by the trial court, there is
sufficient evidence on record to establish the fact of conviction of petitioner
which serves as the legal basis for his detention. Petitioner made judicial
admissions, both verbal and written, that he was charged with and convicted
of the crime of Robbery with Homicide, and sentenced to suffer imprisonment
"habang buhay".
In its Order dated October 17, 1994, the RTC-Manila, Branch 9, made the
finding that —16
During the trial and on manifestation and arguments made by the accused, his
learned counsel and Solicitor Alexander G. Gesmundo who appeared for the
respondents, it appears clear and indubitable that:
(A) Petitioner had been charged with Robbery with Homicide in Criminal Case
No. 60677, Illegal Possession of Firearm in Criminal Case No. 60678 and
Robbery in Band in Criminal Case No. 60867. . . In Criminal Case No. 60677
(Robbery with Homicide) the accused admitted in open Court that a decision
was read to him in open Court by a personnel of the respondent Court (RTC
Branch II) sentencing him to Life Imprisonment (Habang buhay) . . . (emphasis
supplied).
Further, in the Urgent Motion for the Issuance of Commitment Order of the
Above Entitled Criminal Case dated June 8, 1993,17 petitioner himself stated
that —
COMES NOW, the undersigned accused in the above entitled criminal case
and unto this Honorable Court most respectfully move:
1. That in 1981 the accused was charge of (sic) Robbery with Homicide;
2. That after four years of trial, the court found the accused guilty and given a
Life Sentence in a promulgation handed down in 1985; (emphasis supplied).
3. That after the sentence was promulgated, the Presiding Judge told the
councel (sic) that accused has the right to appeal the decision;
4. That whether the de oficio counsel appealed the decision is beyond the
accused comprehension (sic) because the last time he saw the counsel was
when the decision was promulgated.
5. That everytime there is change of Warden at the Manila City Jail attempts
were made to get the Commitment Order so that transfer of the accused to the
Bureau of Corrections can be affected, but all in vain;
Petitioner's declarations as to a relevant fact may be given in evidence against
him under Section 23 of Rule 130 of the Rules of Court. This rule is based
upon the presumption that no man would declare anything against himself,
unless such declaration were true,18 particularly with respect to such grave
matter as his conviction for the crime of Robbery with Homicide. Further, under
Section 4 of Rule 129, "[a]n admission, verbal or written, made by a party in
the course of the proceedings in the same case, does not require proof. The
admission may be contradicted only by a showing that it was made through
palpable mistake or that no such admission was made." Petitioner does not
claim any mistake nor does he deny making such admissions.
The records also contain a certified true copy of the Monthly Report dated
January 198519 of then Judge Rosalio A. De Leon, attesting to the fact that
petitioner was convicted of the crime of Robbery with Homicide on January 11,
1985. Such Monthly Report constitutes an entry in official records under
Section 44 of Rule 130 of the Revised Rules on Evidence, which is prima facie
evidence of facts therein stated.
Public respondents likewise presented a certified hue copy of People's Journal
dated January 18, 1985, page 2,20 issued by the National Library, containing
a short news article that petitioner was convicted of the crime of Robbery with
Homicide and was sentenced to "life imprisonment." However, newspaper
articles amount to "hearsay evidence, twice removed"21 and are therefore not
only inadmissible but without any probative value at all whether objected to or
not,22 unless offered for a purpose other than proving the truth of the matter
asserted. In this case, the news article is admissible only as evidence that
such publication does exist with the tenor of the news therein stated.
As a general rule, the burden of proving illegal restraint by the respondent
rests on the petitioner who attacks such restraint. In other words, where the
return is not subject to exception, that is, where it sets forth process which on
its face shows good ground for the detention of the prisoner, it is incumbent on
petitioner to allege and prove new matter that tends to invalidate the apparent
effect of such process.23 If the detention of the prisoner is by reason of lawful
public authority, the return is considered prima facie evidence of the validity of
the restraint and the petitioner has the burden of proof to show that the
restraint is illegal. Thus, Section 13 of Rule 102 of the Rules of Court provides:
Sec. 13. When the return evidence, and when only a plea. — If it appears that
the prisoner is in custody under a warrant of commitment in pursuance of law,
the return shall be considered prima facie evidence of the cause of restraint,
but if he is restrained of his liberty by any alleged private authority, the return
shall be considered only as a plea of the facts therein set forth, and the party
claiming the custody must prove such facts.
Public respondents having sufficiently shown good ground for the detention,
petitioner's release from confinement is not warranted under Section 4 of Rule
102 of the Rules of Court which provides that —
Sec. 4. When writ not allowed or discharge authorized. — If it appears that the
person alleged to be restrained of his liberty is in the custody of an officer
under process issued by a court or judge or by virtue of a judgment or order of
a court of record, and that the court or judge had jurisdiction to issue the
process, render the judgment, or make the order, the writ shall not be allowed;
or if the jurisdiction appears after the writ is allowed, the person shall not be
discharged by reason of any informality or defect in the process, judgment, or
order. Nor shall anything in this rule be held to authorize the discharge of a
person charged with or convicted of an offense in the Philippines, or of a
person suffering imprisonment under lawful judgment.
In the case of Gomez v. Director of Prisons, 77 Phil. 458 (1946), accused was
convicted by the trial court of the crime of rape, and was committed to the New
Bilibid Prison. Pending appeal with the Court of Appeals, the records of the
case were, for reasons undisclosed, completely destroyed or lost. Accused
then filed a petition for the issuance of the writ of habeas corpus with the
Supreme Court. The Court denied the petition, ruling thus:
The petition does not make out a case. The Director of Prisons is holding the
prisoner under process issued by a competent court in pursuance of a lawful,
subsisting judgment. The prisoner himself admits the legality of his detention.
The mere loss or destruction of the record of the case does not invalidate the
judgment or the commitment, or authorize the prisoner's release.
Page 31 of 101
Note further that, in the present case, there is also no showing that petitioner
duly appealed his conviction of the crime of Robbery with Homicide, hence for
all intents and purposes, such judgment has already become final and
executory. When a court has jurisdiction of the offense charged and of the
party who is so charged, its judgment, order, or decree is not subject to
collateral attack by habeas corpus.24 Put another way, in order that a
judgment may be subject to collateral attack by habeas corpus, it must be void
for lack of jurisdiction.25 Thus, petitioner's invocation of our ruling in Reyes v.
Director of Prisons, supra, is misplaced. In the Reyes case, we granted the
writ and ordered the release of the prisoner on the ground that "[i]t does not
appear that the prisoner has been sentenced by any tribunal duly established
by a competent authority during the enemy occupation" and not because there
were no copies of the decision and information. Here, a copy of the mittimus is
available. And, indeed, petitioner does not raise any jurisdictional issue.
The proper remedy in this case is for either petitioner or public respondents to
initiate the reconstitution of the judgment of the case under either Act No.
3110,26 the general law governing reconstitution of judicial records, or under
the inherent power of courts to reconstitute at any time the records of their
finished cases in accordance with Section 5 (h) of Rule 135 of the Rules of
Court.27 Judicial records are subject to reconstitution without exception,
whether they refer to pending cases or finished cases.28 There is no sense in
limiting reconstitution to pending cases; finished cases are just as important as
pending ones, as evidence of rights and obligations finally adjudicated.29
Petitioner belabors the fact that no initiative was taken by the Government to
reconstitute the missing records of the trial court. We reiterate, however, that
"reconstitution is as much the duty of the prosecution as of the defense."30
Petitioner's invocation of Ordoñez v. Director of Prisons, 235 SCRA 152
(1994), is misplaced since the grant of the petition for habeas corpus therein
was premised on the loss of records prior to the filing of Informations against
the prisoners, and therefore "[t]he government has failed to show that their
continued detention is supported by a valid conviction or by the pendency of
charges against them or by any legitimate cause whatsoever." In this case, the
records were lost after petitioner, by his own admission, was already convicted
by the trial court of the offense charged. Further, the same incident which gave
rise to the filing of the Information for Robbery with Homicide also gave rise to
another case for Illegal Possession of Firearm,31 the records of which could
be of assistance in the reconstitution of the present case.
WHEREFORE, the petition is DENIED for lack of merit, and the decision of the
Court of Appeals is AFFIRMED.
SO ORDERED.
Bellosillo, Mendoza, Buena and De Leon, Jr., JJ., concur.
Republic of the Philippines
SUPREME COURT
Manila
FIRST DIVISION
G.R. No. 139789. May 12, 2000
ERLINDA K. ILUSORIO, petitioner, vs. ERLINDA I. BILDNER and SYLVIA
K. ILUSORIO, JOHN DOE and JANE DOE, respondents. Mesm
G.R. No. 139808. May 12, 2000
POTENCIANO ILUSORIO, MA. ERLINDA I. BILDNER, and SYLVIA
ILUSORIO, petitioners, vs. COURT OF APPEALS and ERLINDA K.
ILUSORIO, respondents.
DECISION
PARDO, J.:
May a wife secure a writ of habeas corpus to compel her husband to live with
her in conjugal bliss? The answer is no. Marital rights including coverture and
living in conjugal dwelling may not be enforced by the extra-ordinary writ of
habeas corpus.
A writ of habeas corpus extends to all cases of illegal confinement or
detention,1 or by which the rightful custody of a person is withheld from the
one entitled thereto.2
"Habeas corpus is a writ directed to the person detaining another,
commanding him to produce the body of the prisoner at a designated time and
place, with the day and cause of his capture and detention, to do, submit to,
and receive whatsoever the court or judge awarding the writ shall consider in
that behalf."3
It is a high prerogative, common-law writ, of ancient origin, the great object of
which is the liberation of those who may be imprisoned without sufficient
cause.4 It is issued when one is deprived of liberty or is wrongfully prevented
from exercising legal custody over another person.5
The petition of Erlinda K. Ilusorio6 is to reverse the decision7 of the Court of
Appeals and its resolution8 dismissing the application for habeas corpus to
have the custody of her husband, lawyer Potenciano Ilusorio and enforce
consortium as the wife.

On the other hand, the petition of Potenciano Ilusorio9 is to annul that portion
of the decision of the Court of Appeals giving Erlinda K. Ilusorio visitation
rights to her husband and to enjoin Erlinda and the Court of Appeals from
enforcing the visitation rights.
The undisputed facts are as follows:
Erlinda Kalaw Ilusorio is the wife of lawyer Potenciano Ilusorio.
Potenciano Ilusorio is about 86 years of age possessed of extensive property
valued at millions of pesos. For many years, lawyer Potenciano Ilusorio was
Chairman of the Board and President of Baguio Country Club.
On July 11, 1942, Erlinda Kalaw and Potenciano Ilusorio contracted
matrimony and lived together for a period of thirty (30) years. In 1972, they
separated from bed and board for undisclosed reasons. Potenciano lived at
Urdaneta Condominium, Ayala Ave., Makati City when he was in Manila and
at Ilusorio Penthouse, Baguio Country Club when he was in Baguio City. On
the other hand, Erlinda lived in Antipolo City.
Out of their marriage, the spouses had six (6) children, namely: Ramon
Ilusorio (age 55); Erlinda Ilusorio Bildner (age 52); Maximo (age 50); Sylvia
(age 49); Marietta (age 48); and Shereen (age 39).
On December 30, 1997, upon Potenciano‘s arrival from the United States, he
stayed with Erlinda for about five (5) months in Antipolo City. The children,
Sylvia and Erlinda (Lin), alleged that during this time, their mother gave
Potenciano an overdose of 200 mg instead of 100 mg Zoloft, an
antidepressant drug prescribed by his doctor in New York, U.S.A. As a
consequence, Potenciano‘s health deteriorated.
On February 25, 1998, Erlinda filed with the Regional Trial Court, Antipolo City
a petition10 for guardianship over the person and property of Potenciano
Ilusorio due to the latter‘s advanced age, frail health, poor eyesight and
impaired judgment.
On May 31, 1998, after attending a corporate meeting in Baguio City,
Potenciano Ilusorio did not return to Antipolo City and instead lived at
Cleveland Condominium, Makati.
On March 11, 1999, Erlinda filed with the Court of Appeals a petition for
habeas corpus to have the custody of lawyer Potenciano Ilusorio. She alleged
that respondents11 refused petitioner‘s demands to see and visit her husband
and prohibited Potenciano from returning to Antipolo City.
After due hearing, on April 5, 1999, the Court of Appeals rendered decision the
dispositive portion of which reads:
"WHEREFORE, in the light of the foregoing disquisitions, judgment is hereby
rendered:
"(1) Ordering, for humanitarian consideration and upon petitioner‘s
manifestation, respondents Erlinda K. Ilusorio Bildner and Sylvia Ilusorio-Yap,
the administrator of Cleveland Condominium or anywhere in its place, his
guards and Potenciano Ilusorio‘s staff especially Ms. Aurora Montemayor to
allow visitation rights to Potenciano Ilusorio‘s wife, Erlinda Ilusorio and all her
children, notwithstanding any list limiting visitors thereof, under penalty of
contempt in case of violation of refusal thereof; xxx
"(2) ORDERING that the writ of habeas corpus previously issued be recalled
and the herein petition for habeas corpus be DENIED DUE COURSE, as it is
hereby DISMISSED for lack of unlawful restraint or detention of the subject of
the petition.
"SO ORDERED."12
Hence, the two petitions, which were consolidated and are herein jointly
decided.
As heretofore stated, a writ of habeas corpus extends to all cases of illegal
confinement or detention,13 or by which the rightful custody of a person is
withheld from the one entitled thereto. It is available where a person continues
to be unlawfully denied of one or more of his constitutional freedoms, where
there is denial of due process, where the restraints are not merely involuntary
but are unnecessary, and where a deprivation of freedom originally valid has
later become arbitrary.14 It is devised as a speedy and effectual remedy to
relieve persons from unlawful restraint, as the best and only sufficient defense
of personal freedom.15
The essential object and purpose of the writ of habeas corpus is to inquire into
all manner of involuntary restraint, and to relieve a person therefrom if such
restraint is illegal.16
To justify the grant of the petition, the restraint of liberty must be an illegal and
involuntary deprivation of freedom of action.17 The illegal restraint of liberty
must be actual and effective, not merely nominal or moral.18
The evidence shows that there was no actual and effective detention or
deprivation of lawyer Potenciano Ilusorio‘s liberty that would justify the
issuance of the writ. The fact that lawyer Potenciano Ilusorio is about 86 years
of age, or under medication does not necessarily render him mentally
Page 32 of 101
incapacitated. Soundness of mind does not hinge on age or medical condition
but on the capacity of the individual to discern his actions.
After due hearing, the Court of Appeals concluded that there was no unlawful
restraint on his liberty.
The Court of Appeals also observed that lawyer Potenciano Ilusorio did not
request the administrator of the Cleveland Condominium not to allow his wife
and other children from seeing or visiting him. He made it clear that he did not
object to seeing them.
As to lawyer Potenciano Ilusorio‘s mental state, the Court of Appeals observed
that he was of sound and alert mind, having answered all the relevant
questions to the satisfaction of the court.
Being of sound mind, he is thus possessed with the capacity to make choices.
In this case, the crucial choices revolve on his residence and the people he
opts to see or live with. The choices he made may not appeal to some of his
family members but these are choices which exclusively belong to Potenciano.
He made it clear before the Court of Appeals that he was not prevented from
leaving his house or seeing people. With that declaration, and absent any true
restraint on his liberty, we have no reason to reverse the findings of the Court
of Appeals.
With his full mental capacity coupled with the right of choice, Potenciano
Ilusorio may not be the subject of visitation rights against his free choice.
Otherwise, we will deprive him of his right to privacy. Needless to say, this will
run against his fundamental constitutional right.
The Court of Appeals exceeded its authority when it awarded visitation rights
in a petition for habeas corpus where Erlinda never even prayed for such right.
The ruling is not consistent with the finding of subject‘s sanity.
When the court ordered the grant of visitation rights, it also emphasized that
the same shall be enforced under penalty of contempt in case of violation or
refusal to comply. Such assertion of raw, naked power is unnecessary.
The Court of Appeals missed the fact that the case did not involve the right of
a parent to visit a minor child but the right of a wife to visit a husband. In case
the husband refuses to see his wife for private reasons, he is at liberty to do so
without threat of any penalty attached to the exercise of his right.
No court is empowered as a judicial authority to compel a husband to live with
his wife. Coverture cannot be enforced by compulsion of a writ of habeas
corpus carried out by sheriffs or by any other mesne process. That is a matter
beyond judicial authority and is best left to the man and woman‘s free choice.
WHEREFORE, in G. R. No. 139789, the Court DISMISSES the petition for
lack of merit. No costs.
In G. R. No. 139808, the Court GRANTS the petition and nullifies the decision
of the Court of Appeals insofar as it gives visitation rights to respondent
Erlinda K. Ilusorio. No costs.
SO ORDERED.
Davide, Jr., C.J., (Chairman), Puno, Kapunan, and Ynares-Santiago, JJ.,
concur.
Republic of the Philippines
SUPREME COURT
Manila
FIRST DIVISION
G.R. No. 172813 July 20, 2006
IVY JOAN P. REYES-TABUJARA, petitioner,
vs.
HON. COURT OF APPEALS and ERNESTO A. TABUJARA III,
respondents.
DECISION
CHICO-NAZARIO, J.:
Before Us is a Petition for Certiorari seeking the reversal of the Resolutions
dated 2 June 2006 and 7 June 2006 rendered by the Court of Appeals in CA-
G.R. SP No. 94699.1 The 2 June 2006 Resolution restrained Judge Fatima
Gonzales-Asdala, Pairing Judge of Quezon City Regional Trial Court (RTC),
Branch 86, from enforcing her Order dated 31 May 2006 while the Resolution
of 7 June 2006 set aside and nullified the Order she issued on 1 June 2006.
In her Petition, petitioner alleges that she and private respondent were married
on 26 November 2000 at the Basilica of the Immaculate Conception,
Intramuros, Manila. Their union was blessed with a son, Carlos Iñigo, who was
born on 5 July 2002. Apparently, the couple's marital bliss was only short-lived
for immediately after their wedding, their relationship was already beset by
frequent squabbles which persisted even after the birth of their son. Despite
their problems, petitioner and private respondent, together with their son,
stayed at their conjugal home in Capitol Homes, Quezon City.

Since 11 March 2006, however, petitioner had been staying at her sister's
house in Brixton Hills, Quezon City, because they were awaiting the arrival of
their mother from abroad. On 14 March 2006, private respondent picked up
Carlos Iñigo, who was with petitioner at that time. The following day, petitioner
notified private respondent that she would fetch the child since she and her
sister decided to go to San Fernando, Pampanga. Private respondent
allegedly asked her to wait for him at their conjugal abode as he had
something to give her. Thinking that private respondent was going to hand
over to her the documents pertaining to their separation, petitioner acceded to
his request. While waiting for private respondent, petitioner decided to bring
her and Carlos Iñigo's clothes to the car so they could leave as soon as private
respondent arrived. Much to petitioner's surprise, however, private respondent
refused to allow her to take their child. When petitioner remonstrated, private
respondent purportedly berated, insulted, and told her that she could no longer
see their son without his permission. Petitioner also averred that when she
tried to wrest Carlos Iñigo away from private respondent, the latter hit her
several times and started choking her. Finally, private respondent boarded his
car and sped away with their son in tow.
Petitioner then proceeded to the East Avenue Medical Center to have her
injuries treated and also to Camp Karingal, Sikatuna Village, Quezon City, to
report the matter.2
Since the 15 March 2006 incident, petitioner has never seen her son and has
been barred by private respondent from going back to their conjugal home.
Left with no recourse and prompted by her longing to see her son Carlos Iñigo,
petitioner filed a Petition for Habeas Corpus with the RTC, Quezon City, to
compel private respondent to produce their son before the court.3 The
Petition, docketed as Spec. Proc. No. Q-06-57984, was initially raffled off to
Branch 102 of RTC, Quezon City, which issued an Order dated 23 May 20064
the pertinent portion of which provides:
ORDER
Filed before this Court is a verified Petition for Habeas Corpus filed by IVY
JOAN P. REYES-TABUJARA, through counsel, seeking for the production of
the minor CARLOS IÑIGO R. TABUJARA, who is reportedly in the custody of
the respondent Ernesto Tabujara III, residing at No. 72 Berlin Street, Capitol
Homes, Quezon City.
Finding the Petition to be sufficient in form and substance, the same is hereby
given due course.
ACCORDINGLY, the respondent Ernesto A. Tabujara III is hereby directed to
produce the living person of the minor CARLOS IÑIGO R. TABUJARA, before
the Court during the hearing of this Petition which for that purpose is hereby
set on 25 May 2006 at 10:00 A.M., and to show cause why, as alleged, the
subject minor has been allegedly restrained of his liberty and detained by him.
Observance of the Order is a way of effecting the return of this writ, as
required by law.5
On the scheduled hearing, private respondent appeared before the court
without Carlos Iñigo. According to him, Carlos Iñigo was then vacationing at
Tagaytay Highlands and that he did not have sufficient time to fetch the child
for the hearing since he was informed of the court's order only on the evening
of 24 March 2006.6
In the same hearing, petitioner's counsel moved for the consolidation of this
case with that pending before the RTC, Quezon City, Branch 86, docketed as
Civil Case No. Q-06-57760, for violation of Republic Act No. 9262 or the "Anti-
Violence Against Women and Their Children Act of 2004." This motion was
granted by the court.7
On 25 May 2006, petitioner filed with the RTC, Quezon City, Branch 86, an
Urgent Ex-Parte Motion to Hear Writ of Habeas Corpus on 26 May 2006 at
8:30 A.M.8
Subsequently, Presiding Judge Teodoro Bay of the RTC, Quezon City, Branch
86, issued, in chambers, an Order dated 31 May 2006 resolving, among other
things, the issuance of a writ of habeas corpus for the person of Carlos Iñigo –
After considering the records of the three (3) cases consolidated before this
Court,9 the Court resolves as follows:
1. the child Carlos Iñigo R. Tabujara shall continue to be under the custody of
the respondent Ernesto Tabujara III until the Court shall have resolved the
issue of custody of said child. This is necessary to protect the child from
emotional and psychological violence due to the misunderstanding now
existing between his parents.
2. the Motion to Admit Amended Petition with Prayer for Temporary Protection
Order is GRANTED. The Temporary Protection Order dated 19 April 2006 is
hereby extended until the prayer for Permanent Protection is resolved.
3. the respondent Ernesto Tabujara III is hereby ordered to bring the child
Carlos Iñigo Tabujara to this Court during the hearing of these cases on July
14, 2006 at 8:00 in the morning.
4. the motion for support pendente lite shall be resolved after sufficient details
are presented to support said motion.
5. the respondent, as previously ordered, is directed to turn over the
possession of one of the family's car to the petitioner.10
Page 33 of 101
On 31 May 2006, petitioner filed an Urgent Ex-Parte Motion to Order
Respondent to Comply with the Writ of Habeas Corpus with Urgent Motion for
Partial Reconsideration of the Order dated 31 May 2006.11 The Motion for
partial reconsideration pertained to that portion of Judge Bay's Order granting
private respondent continued custody over Carlos Iñigo in alleged violation of
Article 213 of the Family Code stating:
Art. 213. In case of separation of the parents, parental authority shall be
exercised by the parent designated by the court. The court shall take into
account all relevant considerations, especially the choice of the child over
seven years of age, unless the parent chosen is unfit.
No child under seven years of age shall be separated from the mother, unless
the court finds compelling reasons to order otherwise.
This motion was referred by the branch clerk of court to Judge Fatima
Gonzales-Asdala, Pairing Judge of Branch 86, because Judge Bay was to go
on official leave effective 1 June 2006.
Acting on said Motion, Judge Gonzales-Asdala issued an Order dated 31 May
2006, to wit:
WHEREFORE, Ernesto A. Tabujara III or any person or persons acting for and
in his behalf and under his direction is hereby directed to produce the person
of minor Carlos Iñigo R. Tabujara before the Session Hall, Branch 87, located
at 114, Hall of Justice, Quezon City on June 1, 2006 at 9:00 o'clock in the
morning. Failing which, the more coercive process of a Bench Warrant will be
issued against said respondent, without prejudice to a declaration of contempt
which may be due under the obtaining circumstances.12
As it turned out, private respondent failed to appear before Judge Gonzales-
Asdala on 1 June 2006. Consequently, through the Order dated 1 June 2006,
he was declared in contempt of court and a bench warrant for his arrest was
issued.13
Aggrieved by the Order, respondent filed a Petition for Certiorari before the
Court of Appeals praying for the issuance of a temporary restraining order
and/or writ of preliminary injunction to enjoin Judge Gonzales-Asdala from:
issuing a bench warrant against private respondent; implementing her Order of
31 May 2006; requiring private respondent to turn over custody of Carlos Iñigo
to petitioner; and taking further action on Civil Cases No. Q-06-57760, No. Q-
06-57857,14 and Spec. Proc. No. Q-06-57984.15
On 2 June 2006, the Court of Appeals issued a Resolution restraining the
implementation of Judge Gonzales-Asdala's Order of 31 May 2006.
Later, another Resolution was issued by the Court of Appeals setting aside
and nullifying the 1 June 2006 Order of Judge Gonzales-Asdala.
Hence, this Petition for Certiorari raising the following grounds:
JUDGE FATIMA GONZALES-GONZALES-ASDALA ACTED WITHIN
BOUNDS OF JURISDICTION IN ISSUING THE ORDER DATED 31 MAY
2006, AS WELL AS THE ORDER AND BENCH WARRANTS ISSUED ON
JUNE 1, 2006 IN HER CAPACITY AS PAIRING JUDGE OF BRANCH 86 IN
THE ABSENCE OF ITS PRESIDING JUDGE.
THE ORDER OF MAY 31, 2006 HAS ALREADY BEEN IMPLEMENTED
BEFORE THE ISSUANCE OF SUBJECT TRO ON JUNE 2, 2006, THUS, THE
TRO IS ALREADY MOOT AND ACADEMIC
SIMILARLY, THE ORDER OF JUNE 1, 2006 AND BENCH WARRANT HAVE
ALREADY BEEN ISSUED AND SERVED UPON PRIVATE RESPONDENT
ON 1 JUNE 2006 OR EVEN BEFORE THE TRO WAS ISSUED BY
RESPONDENT COURT.
THE MATTER OF THE HABEAS CORPUS HAS BEEN SQUARELY RAISED
BEFORE RESPONDENT COURT IN SUBJECT PETITION, AND
RESPONDENT COURT ACTED WITH GRAVE ABUSE OF DISCRETION
AND MANIFEST PARTIALITY IN DENYING HEREIN PETITIONER'S
MOTION TO PRODUCE THE 4-YEAR OLD MINOR BEFORE THE
RESPONDENT COURT.
THE WRIT OF HABEAS CORPUS MUST BE IMMEDIATELY EFFECTED
SINCE PETITIONER IS ENTITLED TO SOLE CUSTODY OF THE MINOR
WHO CANNOT BE SEPARATED FROM HER UNDER ART. 213 OF THE
FAMILY CODE.
Petitioner contends that the subject Petition filed before the Court of Appeals
shows that Judge Gonzales-Asdala was impleaded in her capacity as
Presiding Judge of Branch 87 when in fact, she issued the 31 May 2006 and 1
June 2006 Orders when she was acting as the Pairing Judge of Branch 86.
Private respondent's ploy, petitioner argues, has misled the Court of Appeals
into believing that Judge Gonzales-Asdala's Orders violated the rule
proscribing the interference by a court with the processes of another court of
co-equal jurisdiction.
Also, petitioner maintains that the temporary restraining order issued by the
Court of Appeals had already been rendered moot by the incidents which
occurred prior to their issuance. For one, the hearing on 1 June 2006 took
place as scheduled thereby rendering useless the 2 June 2006 Resolution of
the Court of Appeals. Similarly, the 7 June 2006 Resolution of the Court of
Appeals enjoining the issuance of the bench warrant became inutile as the
bench warrant for arrest was not only issued by Judge Gonzales-Asdala but
said warrant was actually served upon private respondent on 1 June 2006.16
Petitioner also claims that private respondent violated Article 213 of the Family
Code when he prevented petitioner from having access to their conjugal
abode and by forcibly separating her from Carlos Iñigo beginning 15 March
2006.
In addition, petitioner takes exception to the ruling of Judge Bay giving private
respondent continued custody over Carlos Iñigo. Petitioner argues that said
Order not only contravenes Article 213 of the Family Code but the same is
also utterly lacking in any legal and factual bases.
Lastly, in an attempt to bolster her claim that she should have custody over
Carlos Iñigo, petitioner cites the Court of Appeals' Resolution dated 4 July
200317 granting private respondent a mere visitorial right to their son. This
Resolution was issued by the Court of Appeals in connection with CA-G.R.
SP. No. 77707.18
In his Comment, private respondent argues that the Court of Appeals
committed no grave abuse of discretion in issuing the assailed Resolutions.
He contends that Judge Gonzales-Asdala, as the Pairing Judge of Quezon
City RTC, Branch 86, has the authority "to step into and take action in a case
only when the presiding judge is on leave, absent, incapacitated, or otherwise
unavailable."19 In this case, however, she exceeded such authority when she
issued her 31 May 2006 Order considering that Judge Bay, the Presiding
Judge was yet to go on leave on 1 June 2006. It was therefore improper for
her to take over the consolidated cases involving the parties herein since
Judge Bay was still performing his duty on 31 May 2006.
Private respondent also disputes petitioner's assertion that the acts sought to
be restrained by the Court of Appeals' Resolutions were already fait accompli.
According to him, the fact that Judge Gonzales-Asdala's Orders of 31 May and
1 June 2006 were served upon his counsel does not mean that these were
successfully implemented. He avers that, in fact, one of the grounds of his
Petition for Certiorari before the Court of Appeals was the undue haste with
which these Orders were successively issued thereby depriving him of
substantial and procedural due process.20 As the party aggrieved, private
respondent insists that he has the right to question Judge Gonzales-Asdala's
Orders before a higher court.
In addition, private respondent asserts that petitioner is guilty of forum
shopping. He points out that in petitioner's original complaint in Civil Case No.
Q-06-57760, she prayed that she be granted the "sole custody and charge" of
Carlos Iñigo21 but this was denied by Judge Bay in his Order dated 19 April
2006.22 Later, petitioner filed a Petition for Habeas Corpus before the Quezon
City RTC where she again raised the issue relating to the custody of Carlos
Iñigo. Private respondent insists that petitioner is clearly trying to circumvent
the rule against forum shopping by seeking to regain custody over Carlos Iñigo
in the habeas corpus case – a relief that was already denied her by Judge Bay
in Civil Case No. Q-06-57760.
Private respondent is also of the view that jurisdiction over the petition for
habeas corpus properly lies with the RTC of Quezon City, Branch 86, which
has acquired prior jurisdiction over the matter. He points out that Judge Bay
had even scheduled the hearing of the consolidated cases on 14 July 2006 at
which time he is supposed to bring Carlos Iñigo to the court.
Preliminarily, we shall address the procedural infirmity obtaining in this
Petition.
Petitioner herself admits that the present Petition was filed without her first
seeking the reconsideration of the two assailed Resolutions of the Court of
Appeals. She contends, however, that there were instances in the past when
this Court allowed the filing of a petition for certiorari sans prior recourse to a
motion for reconsideration citing the cases of Candido v. Camacho23 and
Metro Transit Organization, Inc. v. Court of Appeals.24
In the case of Candido, this Court held that:
We have ruled that "(a) prior motion for reconsideration is not indispensable
for commencement of certiorari proceedings if the errors sought to be
corrected in such proceedings had been duly heard and passed upon or were
similar to the issues already resolved by the tribunal or agency below.
Accordingly, the Court has excused the non-filing of a motion for
reconsideration when such motion would be basically pro-forma in nature and
content, and where x x x the questions raised are essentially legal in nature."
In the case at bar, the parties have argued their positions and have been duly
heard by the RTC before it issued the assailed injunction order. Moreover, as
the issues involved therein are essentially legal, the filing of motion for
reconsideration assailing the RTC's injunction order may be properly
dispensed with.25
In Metro Transit Organization, Inc., we declared the general rule to be "that a
motion for reconsideration is indispensable before resort to the special civil
action for certiorari to afford the court or tribunal the opportunity to correct its
error, if any."26 The rule however allows the following exceptions:
(a) where the order is a patent of nullity, as where the court a quo has no
jurisdiction;
(b) where the questions raised in the certiorari proceedings have been duly
raised and passed upon by the lower court, or are the same as those raised
and passed upon in the lower court;
Page 34 of 101
(c) where there is an urgent necessity for the resolution of the question and
any further delay would prejudice the interests of the Government or of the
petitioner or the subject matter of the action is perishable;
(d) where, under the circumstances, a motion for reconsideration would be
useless;
(e) where petitioner was deprived of due process and there is extreme
urgency for relief;
(f) where, in a criminal case, relief from an order of arrest is urgent and the
granting of such relief by the trial court is improbable;
(g) where the proceedings in the lower court are a nullity for lack of due
process;
(h) where the proceedings was ex parte or in which the petitioner had no
opportunity to object; and
(i) where the issue raised is one purely of law or where public interest is
involved.27
An examination of the records reveals the measures that the parties herein
have undertaken to have custody of their only child. Thus, while petitioner has
continuously pressed on to regain custody of Carlos Iñigo, private respondent
has been steadfast in ensuring that the minor child stays with him. If only to
protect Carlos Iñigo from the ill-effects of this virtual tug-of-war between his
parents, and to allow the Court of Appeals to proceed with the resolution of the
Petition for Certiorari filed by private respondent, this Court deems it proper to
give due course to this Petition. We believe that the urgent necessity for the
resolution of this Petition is for the benefit of the minor Carlos Iñigo and not so
much to protect the interest of any of the parties herein.
In this case, we do not agree with petitioner's argument that the questioned
Resolutions of the Court of Appeals have already become moot. To reiterate,
Judge Gonzales-Asdala was enjoined by said 2 June 2006 Resolution from
performing the following:
(1) implementation and/or issuance of a bench warrant of arrest of petitioner;
(2) implementation of the Order of respondent Judge dated 31 May 2006;
(3) requiring petitioner to turn over custody of his minor son Carlos Iñigo
Tabujara to private respondent (petitioner herein);
(4) taking further action and trying Civil Cases Nos. Q-06-57760, Q-06-57857,
and Spec. Proc. No. Q-06-57984.28
The general rule contemplates that injunction is only proper to restrain acts
being committed or about to be committed. Nevertheless, consummated acts
which are continuing in nature may still be enjoined by a temporary restraining
order.29
In this case, it appears from the sheriff's return dated 5 June 200630 that
Judge Gonzales-Asdala's Order of 1 June 2006 was indeed served upon
private respondent at his office in Makati City, as well as at his father's house
in UP Diliman, Quezon City, and yet it is not shown that his arrest had been
implemented. Clearly then, the Resolutions of the Court of Appeals had not
become useless as alleged by petitioner.
Even assuming that, as petitioner insists, the issuance of the bench warrant
for the arrest of private respondent and the conduct of the 1 June 2006
hearing may no longer be restrained still, the remainder of the acts sought to
be enjoined remain the proper subjects of the temporary restraining order
issued on 2 June 2006. Thus, said Resolution was still able to restrain Judge
Gonzales-Asdala from compelling private respondent to turn over custody of
Carlos Iñigo to petitioner and from taking any further action with respect to the
consolidated cases before the RTC, Quezon City, Branch 86. For these,
petitioner's contention regarding the mootness of the impugned Resolutions
does not deserve merit.
As regards the issue of whether the Court of Appeals committed grave abuse
of discretion in issuing the impugned Resolutions, we rule in the negative.
It is settled doctrine that grave abuse of discretion is present "when there is a
capricious and whimsical exercise of judgment as is equivalent to lack of
jurisdiction, such as where the power is exercised in an arbitrary or despotic
manner by reason of passion or personal hostility, and it must be so patent
and gross so as to amount to an evasion of positive duty or to a virtual refusal
to perform the duty enjoined or to act at all in contemplation of law."31
In this case, we perceive no grave abuse of discretion on the part of the Court
of Appeals. The assailed Resolutions were not issued whimsically nor
capriciously. As alleged in the Petition before the Court of Appeals, Judge
Gonzales-Asdala was poised to find private respondent in contempt of court
and to issue a bench warrant for his arrest should he fail to comply with her
Order dated 31 May 2006. Bearing in mind that the validity of said Order has
yet to be resolved by the Court of Appeals, it was only proper that the
temporary restraining order was issued; otherwise, private respondent would
have suffered irreparable injury should the Court of Appeals decide not to
sustain the validity of the 31 May 2006 Order.
Petitioner also prays that we direct the Court of Appeals to effect the writ of
habeas corpus issued by the RTC, Quezon City, Branch 102, by ordering
private respondent to immediately produce the minor child Carlos Iñigo either
before the Court of Appeals itself or the RTC, Quezon City, Branch 86.
This, we cannot do.
It is worthy to recall here the rule with regard to jurisdiction over habeas
corpus cases which this Court had the opportunity to clarify through In the
Matter of Application for the Issuance of a Writ of Habeas Corpus Richard
Brian Thornton for and in behalf of the minor child Sequeira Jennifer Delle
Francisco Thornton v. Adelfa Francisco Thornton.32 In said case, we declared
that both this Court and the Court of Appeals still retain their jurisdiction over
habeas corpus cases despite the passage of Republic Act No. 836933 – the
law conferring upon family courts the exclusive jurisdiction over habeas corpus
cases, thus:
The Court of Appeals opines that RA 8369 impliedly repealed RA 7902 and
BP 129 since, by giving family courts exclusive jurisdiction over habeas corpus
cases, the lawmakers intended it to be the sole court which can issue writs of
habeas corpus. To the court a quo, the word "exclusive" apparently cannot be
construed any other way.
We disagree with the CA's reasoning because it will result in an iniquitous
situation, leaving individuals like petitioner without legal recourse in obtaining
custody of their children. Individuals who do not know the whereabouts of
minors they are looking for would be helpless since they cannot seek redress
from family courts whose writs are enforceable only in their respective
territorial jurisdictions. Thus, if a minor is being transferred from one place to
another, which seems to be the case here, the petitioner in a habeas corpus
case will be left without legal remedy. This lack of recourse could not have
been the intention of the lawmakers when they passed the Family Courts Act
of 1997. x x x
xxxx
The primordial consideration is the welfare and best interests of the child. We
rule therefore that RA 8369 did not divest the Court of Appeals and the
Supreme Court of their jurisdiction over habeas corpus cases involving the
custody of minors. x x x34 (Emphasis supplied.)
It is clear from the foregoing that the trial court, the Court of Appeals, and this
Court have concurrent jurisdiction over habeas corpus cases. As the Petition
for Habeas Corpus was filed by petitioner before the trial court, the latter has
acquired jurisdiction over the petition to the exclusion of all others. To hold
otherwise would be to risk instances where courts of concurrent jurisdiction
might have conflicting orders.35 And, jurisdiction once acquired by a court is
not lost upon the instance of the parties but continues until the case is
terminated.36
In view of this, we hold that petitioner's motion for the production of the minor
Carlos Iñigo should be resolved by the trial court. We cannot act on said
motion without overstepping the boundary laid down by the law with respect to
jurisdiction over habeas corpus cases. Parenthetically, Judge Bay had already
acted on a similar motion filed by petitioner37 and had, in fact, set the hearing
of the consolidated cases on 14 July 2006 during which time private
respondent should present Carlos Iñigo before the trial court.38
Anent the alleged violation of Article 213 of the Family Code, suffice it to state
here that this issue is still the subject of a Motion for Reconsideration pending
before the trial court.
WHEREFORE, premises considered, the instant Petition for Certiorari is
hereby DIMISSED. The assailed Resolution of the Court of Appeals dated 2
June 2006, restraining the execution of Judge Fatima Gonzales-Asdala's
Order dated 31 May 2006, and the Court of Appeals' Resolution dated 7 June
2006 setting aside and nullifying Judge Gonzales-Asdala's 1 June 2006 Order,
are hereby AFFIRMED. No costs.
SO ORDERED.
Panganiban, C.J., Ynares-Santiago, Austria-Martinez, Callejo, Sr., J.J.,
concur.
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
Page 35 of 101
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
MERALCO‘s Human Resource Staffing, directed the transfer of respondent to
MERALCO‘s 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 MERALCO‘s 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
management‘s 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.
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 respondent‘s 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 respondent‘s 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 Decision 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 respondent‘s 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 Data9 contending that 1) the
RTC lacked jurisdiction over the case and cannot restrain MERALCO‘s
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 respondent‘s place of work
which is purely a management prerogative, and that OCA-Circular No. 79-
2003 expressly prohibits the issuance of TROs or injunctive writs in labor-
related cases.
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 party‘s person, family or home; and that
MERALCO (or its officers) is clearly not engaged in such activities.
The petition is impressed with merit.
Respondent‘s plea that she be spared from complying with MERALCO‘s
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 one‘s right to the
truth and to informational privacy, thus safeguarding the constitutional
guarantees of a person‘s 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. Cruz underscores the emphasis laid down in Tapuz v. del Rosario
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.
It is evident that respondent‘s reservations on the real reasons for her transfer
- a legitimate concern respecting the terms and conditions of one‘s
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.
In another vein, there is no showing from the facts presented that petitioners
committed any unjustifiable or unlawful violation of respondent‘s 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
respondent‘s 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.
Page 36 of 101
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.
CONCHITA CARPIO MORALES
Associate Justice
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 193636 July 24, 2012
MARYNETTE R. GAMBOA, Petitioner,
vs.
P/SSUPT. MARLOU C. CHAN, in his capacity as the PNP-Provincial
Director of Ilocos Norte, and P/SUPT. WILLIAM 0. FANG, in his capacity
as Chief, Intelligence Division, PNP Provincial Office, Ilocos Norte,
Respondents.
DECISION
SERENO, J.:
Before this Court is an Appeal by Certiorari (Under Rule 45 of the Rules of
Court) filed pursuant to Rule 191 of the Rule on the Writ of Habeas Data,2
seeking a review of the 9 September 2010 Decision in Special Proc. No.
14979 of the Regional Trial Court, First Judicial Region, Laoag City, Branch 13
(RTC Br. 13).3 The questioned Decision denied petitioner the privilege of the
writ of habeas data.4
At the time the present Petition was filed, petitioner Marynette R. Gamboa
(Gamboa) was the Mayor of Dingras, Ilocos Norte.5 Meanwhile, respondent
Police Senior Superintendent (P/SSUPT.) Marlou C. Chan was the Officer-in-
Charge, and respondent Police Superintendent (P/SUPT.) William O. Fang
was the Chief of the Provincial Investigation and Detective Management
Branch, both of the Ilocos Norte Police Provincial Office.6
On 8 December 2009, former President Gloria Macapagal-Arroyo issued
Administrative Order No. 275 (A.O. 275), "Creating an Independent
Commission to Address the Alleged Existence of Private Armies in the
Country."7 The body, which was later on referred to as the Zeñarosa
Commission,8 was formed to investigate the existence of private army groups
(PAGs) in the country with a view to eliminating them before the 10 May 2010
elections and dismantling them permanently in the future.9 Upon the
conclusion of its investigation, the Zeñarosa Commission released and
submitted to the Office of the President a confidential report entitled "A
Journey Towards H.O.P.E.: The Independent Commission Against Private
Armies‘ Report to the President" (the Report).10
Gamboa alleged that the Philippine National Police in Ilocos Norte (PNP–
Ilocos Norte) conducted a series of surveillance operations against her and
her aides,11 and classified her as someone who keeps a PAG.12 Purportedly
without the benefit of data verification, PNP–Ilocos Norte forwarded the
information gathered on her to the Zeñarosa Commission,13 thereby causing
her inclusion in the Report‘s enumeration of individuals maintaining PAGs.14
More specifically, she pointed out the following items reflected therein:
(a) The Report cited the PNP as its source for the portion regarding the status
of PAGs in the Philippines.
(b) The Report stated that "x x x the PNP organized one dedicated Special
Task Group (STG) for each private armed group (PAG) to monitor and
counteract their activities."
(c) Attached as Appendix "F" of the Report is a tabulation generated by the
PNP and captioned as "Status of PAGs Monitoring by STGs as of April 19,
2010," which classifies PAGs in the country according to region, indicates their
identity, and lists the prominent personalities with whom these groups are
associated.17 The first entry in the table names a PAG, known as the Gamboa
Group, linked to herein petitioner Gamboa.
(d) Statistics on the status of PAGs were based on data from the PNP, to wit:
The resolutions were the subject of a national press conference held in
Malacañang on March 24, 2010 at which time, the Commission was also
asked to comment on the PNP report that out of one hundred seventeen (117)
partisan armed groups validated, twenty-four (24) had been dismantled with
sixty-seven (67) members apprehended and more than eighty-six (86) firearms
confiscated.
Commissioner Herman Basbaño qualified that said statistics were based on
PNP data but that the more significant fact from his report is that the PNP has
been vigilant in monitoring the activities of these armed groups and this
vigilance is largely due to the existence of the Commission which has
continued communicating with the Armed Forces of the Philippines (AFP) and
PNP personnel in the field to constantly provide data on the activities of the
PAGs. Commissioner Basbaño stressed that the Commission‘s efforts have
preempted the formation of the PAGs because now everyone is aware that
there is a body monitoring the PAGs movement through the PNP.
Commissioner Lieutenant General Edilberto Pardo Adan also clarified that the
PAGs are being destabilized so that their ability to threaten and sow fear
during the election has been considerably weakened.
(e) The Report briefly touched upon the validation system of the PNP:
Also, in order to provide the Commission with accurate data which is truly
reflective of the situation in the field, the PNP complied with the Commission‘s
recommendation that they revise their validation system to include those
PAGs previously listed as dormant. In the most recent briefing provided by the
PNP on April 26, 2010, there are one hundred seven (107) existing PAGs. Of
these groups, the PNP reported that seven (7) PAGs have been reorganized.
On 6 and 7 July 2010, ABS-CBN broadcasted on its evening news program
the portion of the Report naming Gamboa as one of the politicians alleged to
be maintaining a PAG.21 Gamboa averred that her association with a PAG
also appeared on print media.22 Thus, she was publicly tagged as someone
who maintains a PAG on the basis of the unverified information that the PNP-
Ilocos Norte gathered and forwarded to the Zeñarosa Commission.23 As a
result, she claimed that her malicious or reckless inclusion in the enumeration
of personalities maintaining a PAG as published in the Report also made her,
as well as her supporters and other people identified with her, susceptible to
harassment and police surveillance operations.24
Contending that her right to privacy was violated and her reputation maligned
and destroyed, Gamboa filed a Petition dated 9 July 2010 for the issuance of a
writ of habeas data against respondents in their capacities as officials of the
PNP-Ilocos Norte.25 In her Petition, she prayed for the following reliefs: (a)
destruction of the unverified reports from the PNP-Ilocos Norte database; (b)
withdrawal of all information forwarded to higher PNP officials; (c) rectification
of the damage done to her honor; (d) ordering respondents to refrain from
forwarding unverified reports against her; and (e) restraining respondents from
making baseless reports.26
The case was docketed as Special Proc. No. 14979 and was raffled to RTC
Br. 13, which issued the corresponding writ on 14 July 2010 after finding the
Petition meritorious on its face.27 Thus, the trial court (a) instructed
respondents to submit all information and reports forwarded to and used by
the Zeñarosa Commission as basis to include her in the list of persons
maintaining PAGs; (b) directed respondents, and any person acting on their
behalf, to cease and desist from forwarding to the Zeñarosa Commission, or to
any other government entity, information that they may have gathered against
her without the approval of the court; (c) ordered respondents to make a
written return of the writ together with supporting affidavits; and (d) scheduled
the summary hearing of the case on 23 July 2010.28
In their Return of the Writ, respondents alleged that they had acted within the
bounds of their mandate in conducting the investigation and surveillance of
Gamboa.29 The information stored in their database supposedly pertained to
two criminal cases in which she was implicated, namely: (a) a Complaint for
murder and frustrated murder docketed as NPS DOC No. 1-04-INQ-091-
00077, and (b) a Complaint for murder, frustrated murder and direct assault
upon a person in authority, as well as indirect assault and multiple attempted
murder, docketed as NPS DOCKET No. 1-04-INV-10-A-00009.30
Respondents likewise asserted that the Petition was incomplete for failing to
comply with the following requisites under the Rule on the Writ of Habeas
Data: (a) the manner in which the right to privacy was violated or threatened
with violation and how it affected the right to life, liberty or security of Gamboa;
(b) the actions and recourses she took to secure the data or information; and
(c) the location of the files, registers or databases, the government office, and
the person in charge, in possession or in control of the data or information.
They also contended that the Petition for Writ of Habeas Data, being limited to
cases of extrajudicial killings and enforced disappearances, was not the
proper remedy to address the alleged besmirching of the reputation of
Gamboa.
RTC Br. 13, in its assailed Decision dated 9 September 2010, dismissed the
Petition. The trial court categorically ruled that the inclusion of Gamboa in the
list of persons maintaining PAGs, as published in the Report, constituted a
violation of her right to privacy, to wit:
In this light, it cannot also be disputed that by her inclusion in the list of
persons maintaining PAGs, Gamboa‘s right to privacy indubitably has been
violated. The violation understandably affects her life, liberty and security
enormously. The untold misery that comes with the tag of having a PAG could
even be insurmountable. As she essentially alleged in her petition, she fears
for her security that at any time of the day the unlimited powers of respondents
may likely be exercised to further malign and destroy her reputation and to
transgress her right to life.
By her inclusion in the list of persons maintaining PAGs, it is likewise
undisputed that there was certainly intrusion into Gamboa‘s activities. It cannot
be denied that information was gathered as basis therefor. After all, under
Administrative Order No. 275, the Zeñarosa Commission was tasked to
investigate the existence of private armies in the country, with all the powers of
Page 37 of 101
an investigative body under Section 37, Chapter 9, Book I of the
Administrative Code of 1987.
xxx xxx xxx
By her inclusion in the list of persons maintaining PAGs, Gamboa alleged as
she accused respondents, who are public officials, of having gathered and
provided information that made the Zeñarosa Commission to include her in the
list. Obviously, it was this gathering and forwarding of information supposedly
by respondents that petitioner barks at as unlawful. x x x.34
Despite the foregoing findings, RTC Br. 13 nevertheless dismissed the Petition
on the ground that Gamboa failed to prove through substantial evidence that
the subject information originated from respondents, and that they forwarded
this database to the Zeñarosa Commission without the benefit of prior
verification.35 The trial court also ruled that even before respondents assumed
their official positions, information on her may have already been acquired.36
Finally, it held that the Zeñarosa Commission, as the body tasked to gather
information on PAGs and authorized to disclose information on her, should
have been impleaded as a necessary if not a compulsory party to the
Petition.37
Gamboa then filed the instant Appeal by Certiorari dated 24 September
2010,38 raising the following assignment of errors:
1. The trial court erred in ruling that the Zeñarosa Commission be impleaded
as either a necessary or indispensable party;
2. The trial court erred in declaring that Gamboa failed to present sufficient
proof to link respondents as the informant to [sic] the Zeñarosa Commission;
3. The trial court failed to satisfy the spirit of Habeas Data;
4. The trial court erred in pronouncing that the reliance of the Zeñarosa
Commission to [sic] the PNP as alleged by Gamboa is an assumption;
5. The trial court erred in making a point that respondents are distinct to PNP
as an agency.39
On the other hand, respondents maintain the following arguments: (a)
Gamboa failed to present substantial evidence to show that her right to privacy
in life, liberty or security was violated, and (b) the trial court correctly dismissed
the Petition on the ground that she had failed to present sufficient proof
showing that respondents were the source of the report naming her as one
who maintains a PAG.
Meanwhile, Gamboa argues that although A.O. 275 was a lawful order,
fulfilling the mandate to dismantle PAGs in the country should be done in
accordance with due process, such that the gathering and forwarding of
unverified information on her must be considered unlawful.41 She also
reiterates that she was able to present sufficient evidence showing that the
subject information originated from respondents.
In determining whether Gamboa should be granted the privilege of the writ of
habeas data, this Court is called upon to, first, unpack the concept of the right
to privacy; second, explain the writ of habeas data as an extraordinary remedy
that seeks to protect the right to informational privacy; and finally,
contextualize the right to privacy vis-à-vis the state interest involved in the
case at bar.
The Right to Privacy
The right to privacy, as an inherent concept of liberty, has long been
recognized as a constitutional right. This Court, in Morfe v. Mutuc, thus
enunciated:
The due process question touching on an alleged deprivation of liberty as thus
resolved goes a long way in disposing of the objections raised by plaintiff that
the provision on the periodical submission of a sworn statement of assets and
liabilities is violative of the constitutional right to privacy. There is much to be
said for this view of Justice Douglas: "Liberty in the constitutional sense must
mean more than freedom from unlawful governmental restraint; it must include
privacy as well, if it is to be a repository of freedom. The right to be let alone is
indeed the beginning of all freedom." As a matter of fact, this right to be let
alone is, to quote from Mr. Justice Brandeis "the most comprehensive of rights
and the right most valued by civilized men."
The concept of liberty would be emasculated if it does not likewise compel
respect for his personality as a unique individual whose claim to privacy and
interference demands respect. xxx.
xxx xxx xxx
In the leading case of Griswold v. Connecticut, Justice Douglas, speaking for
five members of the Court, stated: "Various guarantees create zones of
privacy. The right of association contained in the penumbra of the First
Amendment is one, as we have seen. The Third Amendment in its prohibition
against the quartering of soldiers ‗in any house‘ in time of peace without the
consent of the owner is another facet of that privacy. The Fourth Amendment
explicitly affirms the ‗right of the people to be secure in their persons, houses,
papers, and effects, against unreasonable searches and seizures.‘ The Fifth
Amendment in its Self-Incrimination Clause enables the citizen to create a
zone of privacy which government may not force him to surrender to his
detriment. The Ninth Amendment provides: ‗The enumeration in the
Constitution, of certain rights, shall not be construed to deny or disparage
others retained by the people." After referring to various American Supreme
Court decisions, Justice Douglas continued: "These cases bear witness that
the right of privacy which presses for recognition is a legitimate one."
xxx xxx xxx
So it is likewise in our jurisdiction. The right to privacy as such is accorded
recognition independently of its identification with liberty; in itself, it is fully
deserving of constitutional protection. The language of Prof. Emerson is
particularly apt: "The concept of limited government has always included the
idea that governmental powers stop short of certain intrusions into the
personal life of the citizen. This is indeed one of the basic distinctions between
absolute and limited government. Ultimate and pervasive control of the
individual, in all aspects of his life, is the hallmark of the absolute state. In
contrast, a system of limited government, safeguards a private sector, which
belongs to the individual, firmly distinguishing it from the public sector, which
the state can control. Protection of this private sector — protection, in other
words, of the dignity and integrity of the individual — has become increasingly
important as modern society has developed. All the forces of a technological
age — industrialization, urbanization, and organization — operate to narrow
the area of privacy and facilitate intrusion into it. In modern terms, the capacity
to maintain and support this enclave of private life marks the difference
between a democratic and a totalitarian society."
In Ople v. Torres, this Court traced the constitutional and statutory bases of
the right to privacy in Philippine jurisdiction, to wit:
Indeed, if we extend our judicial gaze we will find that the right of privacy is
recognized and enshrined in several provisions of our Constitution. It is
expressly recognized in section 3 (1) of the Bill of Rights:
Sec. 3. (1) The privacy of communication and correspondence shall be
inviolable except upon lawful order of the court, or when public safety or order
requires otherwise as prescribed by law.
Other facets of the right to privacy are protected in various provisions of the
Bill of Rights, viz:
Sec. 1. No person shall be deprived of life, liberty, or property without due
process of law, nor shall any person be denied the equal protection of the
laws.
Sec. 2. The right of the people to be secure in their persons, houses, papers,
and effects against unreasonable searches and seizures of whatever nature
and for any purpose shall be inviolable, and no search warrant or warrant of
arrest shall issue except upon probable cause to be determined personally by
the judge after examination under oath or affirmation of the complainant and
the witnesses he may produce, and particularly describing the place to be
searched and the persons or things to be seized.
xxx xxx xxx
Sec. 6. The liberty of abode and of changing the same within the limits
prescribed by law shall not be impaired except upon lawful order of the court.
Neither shall the right to travel be impaired except in the interest of national
security, public safety, or public health as may be provided by law.
xxx xxx xxx
Sec. 8. The right of the people, including those employed in the public and
private sectors, to form unions, associations, or societies for purposes not
contrary to law shall not be abridged.
Sec. 17. No person shall be compelled to be a witness against himself.
Zones of privacy are likewise recognized and protected in our laws. The Civil
Code provides that "every person shall respect the dignity, personality, privacy
and peace of mind of his neighbors and other persons" and punishes as
actionable torts several acts by a person of meddling and prying into the
privacy of another. It also holds a public officer or employee or any private
individual liable for damages for any violation of the rights and liberties of
another person, and recognizes the privacy of letters and other private
communications. The Revised Penal Code makes a crime the violation of
secrets by an officer, the revelation of trade and industrial secrets, and
trespass to dwelling. Invasion of privacy is an offense in special laws like the
Anti-Wiretapping Law, the Secrecy of Bank Deposits Act and the Intellectual
Property Code. The Rules of Court on privileged communication likewise
recognize the privacy of certain information.
Unlike the dissenters, we prescind from the premise that the right to privacy is
a fundamental right guaranteed by the Constitution, hence, it is the burden of
government to show that A.O. No. 308 is justified by some compelling state
interest and that it is narrowly drawn. x x x.46 (Emphases supplied)
Clearly, the right to privacy is considered a fundamental right that must be
protected from intrusion or constraint. However, in Standard Chartered Bank v.
Senate Committee on Banks,47 this Court underscored that the right to
privacy is not absolute, viz:
With respect to the right of privacy which petitioners claim respondent has
violated, suffice it to state that privacy is not an absolute right. While it is true
Page 38 of 101
that Section 21, Article VI of the Constitution, guarantees respect for the rights
of persons affected by the legislative investigation, not every invocation of the
right to privacy should be allowed to thwart a legitimate congressional inquiry.
In Sabio v. Gordon, we have held that the right of the people to access
information on matters of public concern generally prevails over the right to
privacy of ordinary financial transactions. In that case, we declared that the
right to privacy is not absolute where there is an overriding compelling state
interest. Employing the rational basis relationship test, as laid down in Morfe v.
Mutuc, there is no infringement of the individual‘s right to privacy as the
requirement to disclosure information is for a valid purpose, in this case, to
ensure that the government agencies involved in regulating banking
transactions adequately protect the public who invest in foreign securities.
Suffice it to state that this purpose constitutes a reason compelling enough to
proceed with the assailed legislative investigation.48
Therefore, when the right to privacy finds tension with a competing state
objective, the courts are required to weigh both notions. In these cases,
although considered a fundamental right, the right to privacy may nevertheless
succumb to an opposing or overriding state interest deemed legitimate and
compelling.
The Writ of Habeas Data
The writ of habeas data is an independent and summary remedy designed to
protect the image, privacy, honor, information, and freedom of information of
an individual, and to provide a forum to enforce one‘s right to the truth and to
informational privacy.49 It seeks to protect a person‘s right to control
information regarding oneself, particularly in instances in which such
information is being collected through unlawful means in order to achieve
unlawful ends.50 It must be emphasized that in order for the privilege of the
writ to be granted, there must exist a nexus between the right to privacy on the
one hand, and the right to life, liberty or security on the other. Section 1 of the
Rule on the Writ of Habeas Data reads:
Habeas data. – The writ of habeas data is a remedy available to any person
whose right to privacy in life, liberty or security is violated or threatened by an
unlawful act or omission of a public official or employee, or of a private
individual or entity engaged in the gathering, collecting or storing of data
information regarding the person, family, home and correspondence of the
aggrieved party.
The notion of informational privacy is still developing in Philippine law and
jurisprudence. Considering that even the Latin American habeas data, on
which our own Rule on the Writ of Habeas Data is rooted, finds its origins from
the European tradition of data protection,51 this Court can be guided by cases
on the protection of personal data decided by the European Court of Human
Rights (ECHR). Of particular note is Leander v. Sweden,52 in which the ECHR
balanced the right of citizens to be free from interference in their private affairs
with the right of the state to protect its national security. In this case, Torsten
Leander (Leander), a Swedish citizen, worked as a temporary replacement
museum technician at the Naval Museum, which was adjacent to a restricted
military security zone.53 He was refused employment when the requisite
personnel control resulted in an unfavorable outcome on the basis of
information in the secret police register, which was kept in accordance with the
Personnel Control Ordinance and to which he was prevented access.54 He
claimed, among others, that this procedure of security control violated Article 8
of the European Convention of Human Rights55 on the right to privacy, as
nothing in his personal or political background would warrant his classification
in the register as a security risk.56
The ECHR ruled that the storage in the secret police register of information
relating to the private life of Leander, coupled with the refusal to allow him the
opportunity to refute the same, amounted to an interference in his right to
respect for private life.57 However, the ECHR held that the interference was
justified on the following grounds: (a) the personnel control system had a
legitimate aim, which was the protection of national security,58 and (b) the
Personnel Control Ordinance gave the citizens adequate indication as to the
scope and the manner of exercising discretion in the collection, recording and
release of information by the authorities.59 The following statements of the
ECHR must be emphasized:
58. The notion of necessity implies that the interference corresponds to a
pressing social need and, in particular, that it is proportionate to the legitimate
aim pursued (see, inter alia, the Gillow judgment of 24 November 1986, Series
A no. 109, p. 22, § 55).
59. However, the Court recognises that the national authorities enjoy a margin
of appreciation, the scope of which will depend not only on the nature of the
legitimate aim pursued but also on the particular nature of the interference
involved. In the instant case, the interest of the respondent State in protecting
its national security must be balanced against the seriousness of the
interference with the applicant‘s right to respect for his private life.
There can be no doubt as to the necessity, for the purpose of protecting
national security, for the Contracting States to have laws granting the
competent domestic authorities power, firstly, to collect and store in registers
not accessible to the public information on persons and, secondly, to use this
information when assessing the suitability of candidates for employment in
posts of importance for national security.
Admittedly, the contested interference adversely affected Mr. Leander‘s
legitimate interests through the consequences it had on his possibilities of
access to certain sensitive posts within the public service. On the other hand,
the right of access to public service is not as such enshrined in the Convention
(see, inter alia, the Kosiek judgment of 28 August 1986, Series A no. 105, p.
20, §§ 34-35), and, apart from those consequences, the interference did not
constitute an obstacle to his leading a private life of his own choosing.
In these circumstances, the Court accepts that the margin of appreciation
available to the respondent State in assessing the pressing social need in the
present case, and in particular in choosing the means for achieving the
legitimate aim of protecting national security, was a wide one.
xxx xxx xxx
66. The fact that the information released to the military authorities was not
communicated to Mr. Leander cannot by itself warrant the conclusion that the
interference was not "necessary in a democratic society in the interests of
national security", as it is the very absence of such communication which, at
least partly, ensures the efficacy of the personnel control procedure (see,
mutatis mutandis, the above-mentioned Klass and Others judgment, Series A
no. 28, p. 27, § 58).
The Court notes, however, that various authorities consulted before the issue
of the Ordinance of 1969, including the Chancellor of Justice and the
Parliamentary Ombudsman, considered it desirable that the rule of
communication to the person concerned, as contained in section 13 of the
Ordinance, should be effectively applied in so far as it did not jeopardise the
purpose of the control (see paragraph 31 above).
67. The Court, like the Commission, thus reaches the conclusion that the
safeguards contained in the Swedish personnel control system meet the
requirements of paragraph 2 of Article 8 (art. 8-2). Having regard to the wide
margin of appreciation available to it, the respondent State was entitled to
consider that in the present case the interests of national security prevailed
over the individual interests of the applicant (see paragraph 59 above). The
interference to which Mr. Leander was subjected cannot therefore be said to
have been disproportionate to the legitimate aim pursued. (Emphases
supplied)
Leander illustrates how the right to informational privacy, as a specific
component of the right to privacy, may yield to an overriding legitimate state
interest. In similar fashion, the determination of whether the privilege of the
writ of habeas data, being an extraordinary remedy, may be granted in this
case entails a delicate balancing of the alleged intrusion upon the private life
of Gamboa and the relevant state interest involved.
The collection and forwarding of information by the PNP vis-à-vis the interest
of the state to dismantle private armies.
The Constitution explicitly mandates the dismantling of private armies and
other armed groups not recognized by the duly constituted authority.60 It also
provides for the establishment of one police force that is national in scope and
civilian in character, and is controlled and administered by a national police
commission.61
Taking into account these constitutional fiats, it is clear that the issuance of
A.O. 275 articulates a legitimate state aim, which is to investigate the
existence of PAGs with the ultimate objective of dismantling them
permanently.
To enable the Zeñarosa Commission to achieve its goals, A.O. 275 clothed it
with the powers of an investigative body, including the power to summon
witnesses, administer oaths, take testimony or evidence relevant to the
investigation and use compulsory processes to produce documents, books,
and records.62 A.O. 275 likewise authorized the Zeñarosa Commission to
deputize the Armed Forces of the Philippines, the National Bureau of
Investigation, the Department of Justice, the PNP, and any other law
enforcement agency to assist the commission in the performance of its
functions.63
Meanwhile, the PNP, as the national police force, is empowered by law to (a)
enforce all laws and ordinances relative to the protection of lives and
properties; (b) maintain peace and order and take all necessary steps to
ensure public safety; and (c) investigate and prevent crimes.64
Pursuant to the state interest of dismantling PAGs, as well as the foregoing
powers and functions accorded to the Zeñarosa Commission and the PNP, the
latter collected information on individuals suspected of maintaining PAGs,
monitored them and counteracted their activities.65 One of those individuals is
herein petitioner Gamboa.
This Court holds that Gamboa was able to sufficiently establish that the data
contained in the Report listing her as a PAG coddler came from the PNP.
Contrary to the ruling of the trial court, however, the forwarding of information
by the PNP to the Zeñarosa Commission was not an unlawful act that violated
or threatened her right to privacy in life, liberty or security.
The PNP was rationally expected to forward and share intelligence regarding
PAGs with the body specifically created for the purpose of investigating the
existence of these notorious groups. Moreover, the Zeñarosa Commission
was explicitly authorized to deputize the police force in the fulfillment of the
former‘s mandate, and thus had the power to request assistance from the
latter.
Page 39 of 101
Following the pronouncements of the ECHR in Leander, the fact that the PNP
released information to the Zeñarosa Commission without prior communication
to Gamboa and without affording her the opportunity to refute the same cannot
be interpreted as a violation or threat to her right to privacy since that act is an
inherent and crucial component of intelligence-gathering and
investigation.1âwphi1 Additionally, Gamboa herself admitted that the PNP had
a validation system, which was used to update information on individuals
associated with PAGs and to ensure that the data mirrored the situation on the
field.66 Thus, safeguards were put in place to make sure that the information
collected maintained its integrity and accuracy.
Pending the enactment of legislation on data protection, this Court declines to
make any further determination as to the propriety of sharing information
during specific stages of intelligence gathering. To do otherwise would
supplant the discretion of investigative bodies in the accomplishment of their
functions, resulting in an undue encroachment on their competence.
However, to accord the right to privacy with the kind of protection established
in existing law and jurisprudence, this Court nonetheless deems it necessary
to caution these investigating entities that information-sharing must observe
strict confidentiality. Intelligence gathered must be released exclusively to the
authorities empowered to receive the relevant information. After all, inherent to
the right to privacy is the freedom from "unwarranted exploitation of one‘s
person or from intrusion into one‘s private activities in such a way as to cause
humiliation to a person‘s ordinary sensibilities."67
In this case, respondents admitted the existence of the Report, but
emphasized its confidential nature.1âwphi1 That it was leaked to third parties
and the media was regrettable, even warranting reproach. But it must be
stressed that Gamboa failed to establish that respondents were responsible
for this unintended disclosure. In any event, there are other reliefs available to
her to address the purported damage to her reputation, making a resort to the
extraordinary remedy of the writ of habeas data unnecessary and improper.
Finally, this Court rules that Gamboa was unable to prove through substantial
evidence that her inclusion in the list of individuals maintaining PAGs made
her and her supporters susceptible to harassment and to increased police
surveillance. In this regard, respondents sufficiently explained that the
investigations conducted against her were in relation to the criminal cases in
which she was implicated. As public officials, they enjoy the presumption of
regularity, which she failed to overcome.
It is clear from the foregoing discussion that the state interest of dismantling
PAGs far outweighs the alleged intrusion on the private life of Gamboa,
especially when the collection and forwarding by the PNP of information
against her was pursuant to a lawful mandate. Therefore, the privilege of the
writ of habeas data must be denied.
WHEREFORE, the instant petition for review is DENIED. The assailed
Decision in Special Proc. No. 14979 dated 9 September 2010 of the Regional
Trial Court, Laoag City, Br. 13, insofar as it denies Gamboa the privilege of the
writ of habeas data, is AFFIRMED.
SO ORDERED.
MARIA LOURDES P.A. SERENO
Associate justice
Republic of the Philippines
SUPREME COURT
Manila
THIRD DIVISION
UDK No. 14817 January 13, 2014
IN THE MATTER OF THE PETITION FOR HABEAS CORPUS OF MINOR
SHANG KO VINGSON YU SHIRLY VINGSON@ SHIRLY VINGSON
DEMAISIP, Petitioner,
vs.
JOVY CABCABAN, Respondent.
DECISION
ABAD, J.:
Petitioner Shirly Vingson (Shirly) alleged that Shang Ko Vingson Yu (Shang
Ko),1 her 14-year-old daughter, ran away from home on September 23, 2011.
On November 2, 2011 Shirly went to the police station in Bacolod City upon
receipt of information that Shang Ko was in the custody of respondent Jovy
Cabcaban Cabcaban), a police officer in that station. Since Cabcaban refused
to release Shang Ko to her, Shirly sought the help of the National Bureau of
Investigation NBI) to rescue her child. An NBI agent, Arnel Pura Pura),
informed Shirly that Shang Ko was no longer with Cabcaban but was staying
with a private organization called Calvary Kids. Pura told her, however, that
the child was fine and had been attending school.
This prompted petitioner Shirly to file a petition for habeas corpus against
respondent Cabcaban and the unnamed officers of Calvary Kids before the
Court of Appeals rather than the Regional Trial Court of Bacolod City citing as
reason several threats against her life in that city.

In a Resolution dated December 18, 2012, the CA resolved in CA-G.R. SP
07261 to deny the petition for its failure to clearly allege who has custody of
Shang Ko. According to the CA, habeas corpus may not be used as a means
of obtaining evidence on the whereabouts of a person or as a means of finding
out who has specifically abducted or caused the disappearance of such
person.3 The CA denied petitioner Shirly‘s motion for reconsideration on
January 8, 2013, hence, this petition for review.
In her Comment, respondent Cabcaban claimed that on September 28, 2011
police officers found Shang Ko crying outside a church. When queried, the
latter refused to give any information about herself. Thus, they indorsed her
case to the Bacolod City Police Women and Children Protection Desk that
Cabcaban headed. After the initial interview, Cabcaban referred Shang Ko to
Balay Pasilungan, a temporary shelter for abused women and children.
Respondent Cabcaban further claimed that on the next day, a social worker
sat with the minor who said that her mother Shirly had been abusive in treating
her. She narrated that on September 27, 2011 Shirly instructed another
daughter to give Shang Ko ₱280.00 and take her to the pier to board a boat
going to Iloilo City.5 Shang Ko was told to look for a job there and to never
come back to Bacolod City. Since she had nowhere to go when she arrived in
Iloilo City, Shang Ko decided to return to Bacolod City with the money given
her. She went to her best friend‘s house but was turned away for fear of Shirly.
She called her sister so that she and her boyfriend could get her but they, too,
turned her down.
Respondent Cabcaban also claimed that Shang Ko pleaded with the police
and the social worker not to return her to her mother. As a result, the Bacolod
City Police filed a complaint against petitioner Shirly for violation of Republic
Act 7610 or the Special Protection of Children Against Abuse, Exploitation,
and Discrimination Act. The police sent notice to Shirly inviting her to a
conference but she refused to receive such notice. Two days later, however,
she came and spoke to Cabcaban, pointing out that Shang Ko had been a
difficult child with a tendency to steal. From their conversation, Cabcaban
surmised that Shirly did not want to take her daughter back, having offered to
pay for her daily expenses at the shelter.
Respondent Cabcaban said that on October 29, 2011 she decided to turn over
Shang Ko to the Calvary Kids, a private organization that gave sanctuary and
schooling to abandoned and abused children. On November 2, 2011 petitioner
Shirly showed up at the police station asking for her daughter. Cabcaban told
her that Shang Ko was in a sanctuary for abandoned children and that the
police officer had to first coordinate with it before she can disclose where
Shang Ko was. But Shirly was adamant and threatened her with a lawsuit.
Cabcaban claimed that Shang Ko‘s father was a Taiwanese and that Shirly
wanted the child back to use her as leverage for getting financial support from
him.
Respondent Cabcaban further claimed that one year later, NBI agents led by
Pura went to the police station to verify Shirly‘s complaint that Cabcaban had
kidnapped Shang Ko. Cabcaban accompanied the NBI agents to Calvary Kids
to talk to the institution‘s social worker, school principal, and director. They
provided the NBI agents with the child‘s original case study report9 and told
them that it was not in Shang Ko‘s best interest to return her to her mother
who abused and maltreated her. Shang Ko herself told the NBI that she would
rather stay at Calvary Kids because she was afraid of what would happen to
her if she returned home. As proof, Shang Ko wrote a letter stating that,
contrary to her mother‘s malicious insinuations, Cabcaban actually helped her
when she had nowhere to go after her family refused to take her back.
Under Section 1, Rule 102 of the Rules of Court, the writ of habeas corpus is
available, not only in cases of illegal confinement or detention by which any
person is deprived of his liberty, but also in cases involving the rightful custody
over a minor. The general rule is that parents should have custody over their
minor children. But the State has the right to intervene where the parents,
rather than care for such children, treat them cruelly and abusively, impairing
their growth and well-being and leaving them emotional scars that they carry
throughout their lives unless they are liberated from such parents and properly
counseled.
Since this case presents factual issues and since the parties are all residents
of Bacolod City, it would be best that such issues be resolved by a Family
Court in that city. Meantime, considering the presumption that the police
authorities acted regularly in placing Shang Ko in the custody of Calvary Kids
the Court believes that she should remain there pending hearing and
adjudication of this custody case. Besides she herself has expressed
preference to stay in that place.
WHEREFORE, the Court SETS ASIDE the Court of Appeals Resolutions in
CA-G.R. SP 07261 dated December 18, 2012 and January 8, 2013 and
ORDERS this custody case forwarded to the Family Court of Bacolod City for
hearing and adjudication as the evidence warrants. Meantime until such court
orders otherwise let the minor Shang Ko Vingson remain in the custody of
Calvary Kids of Bacolod City.
Further the Court ORDERS petitioner Shirly Vingson Shirly Vingson Demaisip
to pay the balance of the docket and other legal fees within 10 days from
receipt of this Resolution.
SO ORDERED.
ROBERTO A. ABAD
Page 40 of 101
Associate Justice
Republic of the Philippines
SUPREME COURT
Manila
SECOND DIVISION
G.R. No. 197597, April 08, 2015
IN THE MATTER OF THE PETITION FOR HABEAS CORPUS OF
DATUKAN MALANG SALIBO, DATUKAN MALANG SALIBO, Petitioner, v.
WARDEN, QUEZON CITY JAIL ANNEX, BJMP BUILDING, CAMP BAGONG
DIWA, TAGUIG CITY AND ALL OTHER PERSONS ACTING ON HIS
BEHALF AND/OR HAVING CUSTODY OF DATUKAN MALANG SALIBO,
Respondents.
DECISION
LEONEN, J.:
Habeas corpus is the proper remedy for a person deprived of liberty due to
mistaken identity. In such cases, the person is not under any lawful process
and is continuously being illegally detained.
This is a Petition for Review1 on Certiorari of the Court of Appeals Decision2
reversing the Decision3 of the Regional Trial Court, Branch 153, Pasig City
(Taguig Hall of Justice) granting Datukan Malang Salibo's Petition for Habeas
Corpus.
From November 7, 2009 to December 19, 2009, Datukan Malang Salibo
(Salibo) and other Filipinos were allegedly in Saudi Arabia for the Hajj
Pilgrimage.4 "While in Saudi Arabia, . . . Salibo visited and prayed in the cities
of Medina, Mecca, Arpa, Mina and Jeddah."5 He returned to the Philippines on
December 20, 2009.6
On August 3, 2010, Salibo learned that police officers of Datu Hofer Police
Station in Maguindanao suspected him to be Butukan S. Malang.7
Butukan S. Malang was one of the 197 accused of 57 counts of murder for
allegedly participating in the November 23, 2009 Maguindanao Massacre. He
had a pending warrant of arrest issued by the trial court in People of the
Philippines v. Datu Andal Ampatuan, Jr., et al.8
Salibo presented himself before the police officers of Datu Hofer Police Station
to clear his name. There, he explained that he was not Butukan S. Malang and
that he could not have participated in the November 23, 2009 Maguindanao
Massacre because he was in Saudi Arabia at that time.9
To support his allegations, Salibo presented to the police "pertinent portions of
his passport, boarding passes and other documents"10 tending to prove that a
certain Datukan Malang Salibo was in Saudi Arabia from November 7 to
December 19, 2009.11
The police officers initially assured Salibo that they would not arrest him
because he was not Butukan S. Malang.12
Afterwards, however, the police officers apprehended Salibo and tore off page
two of his passport that evidenced his departure for Saudi Arabia on
November 7, 2009. They then detained Salibo at the Datu Hofer Police Station
for about three (3) days.13
The police officers transferred Salibo to the Criminal Investigation and
Detection Group in Cotabato City, where he was detained for another 10 days.
While in Cotabato City, the Criminal Investigation and Detention Group
allegedly made him sign and affix his thumbprint on documents.14
On August 20, 2010, Salibo was finally transferred to the Quezon City Jail
Annex, Bureau of Jail Management and Penology Building, Camp Bagong
Diwa, Taguig City, where he is currently detained.15
On September 17, 2010, Salibo filed before the Court of Appeals the Urgent
Petition for Habeas Corpus16 questioning the legality of his detention and
deprivation of his liberty.17 He maintained that he is not the accused Butukan
S. Malang.18
In the Resolution19 dated September 21, 2010, the Court of Appeals issued a
Writ of Habeas Corpus, making the Writ returnable to the Second Vice
Executive Judge of the Regional Trial Court, Pasig City (Taguig Hall of
Justice).20 The Court of Appeals ordered the Warden of the Quezon City Jail
Annex to file a Return of the Writ one day before the scheduled hearing and
produce the person of Salibo at the 10:00 a.m. hearing set on September 27,
2010.21
Proceedings before the trial court
On September 27, 2010, the jail guards of the Quezon City Jail Annex brought
Salibo before the trial court. The Warden, however, failed to file a Return one
day before the hearing. He also appeared without counsel during the
hearing.22
Thus, the trial court canceled the hearing and reset it to September 29, 2010
at 2:00 p.m.23
On September 28, 2010, the Warden filed the Return of the Writ. However,
during the September 29, 2010 hearing on the Return, the Warden appeared
with Atty. Romeo L. Villante, Jr., Legal Officer/Administering Officer of the
Bureau of Jail Management and Penology.24
Salibo questioned the appearance of Atty. Romeo L. Villante, Jr. on behalf of
the Warden and argued that only the Office of the Solicitor General has the
authority to appear on behalf of a respondent in a habeas corpus
proceeding.25
The September 29, 2010 hearing, therefore, was canceled. The trial court
reset the hearing on the Return to October 1, 2010 at 9:00 a.m.26
The Return was finally heard on October 1, 2010. Assistant Solicitors Noel
Salo and Isar Pepito appeared on behalf of the Warden of the Quezon City Jail
Annex and argued that Salibo's Petition for Habeas Corpus should be
dismissed. Since Salibo was charged under a valid Information and Warrant of
Arrest, a petition for habeas corpus was "no longer availing."27
Salibo countered that the Information, Amended Information, Warrant of
Arrest, and Alias Warrant of Arrest referred to by the Warden all point to
Butukan S. Malang, not Datukan Malang Salibo, as accused. Reiterating that
he was not Butukan S. Malang and that he was in Saudi Arabia on the day of
the Maguindanao Massacre, Salibo pleaded the trial court to order his release
from detention.28
The trial court found that Salibo was not "judicially charged"29 under any
resolution, information, or amended information. The Resolution, Information,
and Amended Information presented in court did not charge Datukan Malang
Salibo as an accused. He was also not validly arrested as there was no
Warrant of Arrest or Alias Warrant of Arrest against Datukan Malang Salibo.
Salibo, the trial court ruled, was not restrained of his liberty under process
issued by a court.30
The trial court was likewise convinced that Salibo was not the Butukan S.
Malang charged with murder in connection with the Maguindanao Massacre.
The National Bureau of Investigation Clearance dated August 27, 2009
showed that Salibo has not been charged of any crime as of the date of the
certificate.31 A Philippine passport bearing Salibo's picture showed the name
"Datukan Malang Salibo."32
Moreover, the trial court said that Salibo "established that [he] was out of the
country"33 from November 7, 2009 to December 19, 2009. This fact was
supported by a Certification34 from Saudi Arabian Airlines confirming Salibo's
departure from and arrival in Manila on board its flights.35 A Flight Manifest
issued by the Bureau of Immigration and Saudi Arabian Airlines Ticket No.
0652113 also showed this fact.36
Thus, in the Decision dated October 29, 2010, the trial court granted Salibo's
Petition for Habeas Corpus and ordered his immediate release from detention.
Proceedings before the Court of Appeals
On appeal37 by the Warden, however, the Court of Appeals reversed and set
aside the trial court's Decision.38 Through its Decision dated April 19, 2011,
the Court of Appeals dismissed Salibo's Petition for Habeas Corpus.
Contrary to the trial court's finding, the Court of Appeals found that Salibo's
arrest and subsequent detention were made under a valid Information and
Warrant of Arrest.39 Even assuming that Salibo was not the Butukan S.
Malang named in the Alias Warrant of Arrest, the Court of Appeals said that
"[t]he orderly course of trial must be pursued and the usual remedies
exhausted before the writ [of habeas corpus] may be invoked[.]"40 According
to the Court of Appeals, Salibo's proper remedy was a Motion to Quash
Information and/or Warrant of Arrest.41
Salibo filed a Motion for Reconsideration,42 which the Court of Appeals
denied in the Resolution43 dated July 6, 2011.
Proceedings before this court
On July 28, 2011,44 petitioner Salibo filed before this court the Petition for
Review (With Urgent Application for a Writ of Preliminary
Mandatory Injunction). Respondent Warden filed a Comment,45 after which
petitioner Salibo filed a Reply.46
Petitioner Salibo maintains that he is not the Butukan S. Malang charged with
57 counts of murder before the Regional Trial Court, Branch 221, Quezon
City. Thus, contrary to the Court of Appeals' finding, he, Datukan Malang
Salibo, was not duly charged in court. He is being illegally deprived of his
liberty and, therefore, his proper remedy is a Petition for Habeas Corpus.47
Petitioner Salibo adds that respondent Warden erred in appealing the Decision
of the Regional Trial Court, Branch 153, Pasig City before the Court of
Appeals. Although the Court of Appeals delegated to the trial court the
authority to hear respondent Warden on the Return, the trial court's Decision
Page 41 of 101
should be deemed a Decision of the Court of Appeals. Therefore, respondent
Warden should have directly filed his appeal before this court.48
As for respondent Warden, he maintains that petitioner Salibo was duly
charged in court. Even assuming that he is not the Butukan S. Malang named
in the Alias Warrant of Arrest, petitioner Salibo should have pursued the
ordinary remedy of a Motion to Quash Information, not a Petition for Habeas
Corpus.49
The issues for our resolution are:
First, whether the Decision of the Regional Trial Court, Branch 153, Pasig City
on petitioner Salibo's Petition for Habeas Corpus was appealable to the Court
of Appeals; and Second, whether petitioner Salibo's proper remedy is to file a
Petition for Habeas Corpus.
We grant the Petition.
I
Contrary to petitioner Salibo's claim, respondent Warden correctly appealed
before the Court of Appeals.
An application for a writ of habeas corpus may be made through a petition filed
before this court or any of its members,50 the Court of Appeals or any of its
members in instances authorized by law,51 or the Regional Trial Court or any
of its presiding judges.52 The court or judge grants the writ and requires the
officer or person having custody of the person allegedly restrained of liberty to
file a return of the writ.53 A hearing on the return of the writ is then
conducted.54
The return of the writ may be heard by a court apart from that which issued the
writ.55 Should the court issuing the writ designate a lower court to which the
writ is made returnable, the lower court shall proceed to decide the petition of
habeas corpus. By virtue of the designation, the lower court "acquire[s] the
power and authority to determine the merits of the [petition for habeas
corpus.]"56 Therefore, the decision on the petition is a decision appealable to
the court that has appellate jurisdiction over decisions of the lower court.57
In Saulo v. Brig. Gen. Cruz, etc,58 "a petition for habeas corpus was filed
before this Court . . . [o]n behalf of. . . Alfredo B. Saulo [(Saulo)]."59 This court
issued a Writ of Habeas Corpus and ordered respondent Commanding
General of the Philippine Constabulary to file a Return of the Writ. This court
made the Writ returnable to the Court of First Instance of Manila.60
After hearing the Commanding General on the Return, the Court of First
Instance denied Saulo's Petition for Habeas Corpus.61
Saulo appealed before this court, arguing that the Court of First Instance
heard the Petition for Habeas Corpus "not by virtue of its original jurisdiction
but merely delegation[.]"62 Consequently, "this Court should have the final say
regarding the issues raised in the petition, and only [this court's decision] . . .
should be regarded as operative."63
This court rejected Sciulo's argument and stated that his "logic is more
apparent than real."64 It ruled that when a superior court issues a writ of
habeas corpus, the superior court only resolves whether the respondent
should be ordered to show cause why the petitioner or the person in whose
behalf the petition was filed was being detained or deprived of his or her
liberty.65 However, once the superior court makes the writ returnable to a
lower court as allowed by the Rules of Court, the lower court designated "does
not thereby become merely a recommendatory body, whose findings and
conclusion[s] are devoid of effect[.]"66 The decision on the petition for habeas
corpus is a decision of the lower court, not of the superior court.
In Medina v. Gen. Yan,67 Fortunato Medina (Medina) filed before this court a
Petition for Habeas Corpus. This court issued a Writ of Habeas Corpus,
making it returnable to the Court of First Instance of Rizal, Quezon City. After
trial on the merits, the Court of First Instance granted Medina's Petition for
Habeas Corpus and ordered that Medina be released from detention.68
The Office of the Solicitor General filed a Notice of Appeal before the Court of
Appeals.69
Atty. Amelito Mutuc, counsel for Medina, filed before the Court of Appeals a
"Motion for Certification of Appeal to the Supreme Court." The Court of
Appeals, however, denied the Motion.70
This court ruled that the Court of Appeals correctly denied the "Motion for
Certification of Appeal to the Supreme Court," citing Saulo as legal basis.71
The Court of First Instance of Rizal, in deciding Medina's Petition for Habeas
Corpus, "acquired the power and authority to determine the merits of the
case[.]"72 Consequently, the decision of the Court of First Instance of Rizal on
Medina's Petition for Habeas Corpus was appealable to the Court of
Appeals.73
In this case, petitioner Salibo filed his Petition for Habeas Corpus before the
Court of Appeals. The Court of Appeals issued a Writ of Habeas Corpus,
making it returnable to the Regional Trial Court, Branch 153, Pasig City. The
trial court then heard respondent Warden on his Return and decided the
Petition on the merits.
Applying Saulo and Medina, we rule that the trial court "acquired the power
and authority to determine the merits"74 of petitioner Salibo's Petition. The
decision on the Petition for Habeas Corpus, therefore, was the decision of the
trial court, not of the Court of Appeals. Since the Court of Appeals is the court
with appellate jurisdiction over decisions of trial courts,75 respondent Warden
correctly filed the appeal before the Court of Appeals.
II
Called the "great writ of liberty[,]"76 the writ of habeas corpus "was devised
and exists as a speedy and effectual remedy to relieve persons from unlawful
restraint, and as the best and only sufficient defense of personal freedom."77
The remedy of habeas corpus is extraordinary78 and summary79 in nature,
consistent with the law's "zealous regard for personal liberty."80
Under Rule 102, Section 1 of the Rules of Court, the writ of habeas corpus
"shall extend to all cases of illegal confinement or detention by which any
person is deprived of his liberty, or by which the rightful custody of any person
is withheld from the person entitled thereto."81 The primary purpose of the writ
"is to inquire into all manner of involuntary restraint as distinguished from
voluntary, and to relieve a person therefrom if such restraint is illegal."82 "Any
restraint which will preclude freedom of action is sufficient."83
The nature of the restraint of liberty need not be related to any offense so as to
entitle a person to the efficient remedy of habeas corpus. It may be availed of
as a post-conviction remedy84 or when there is an alleged violation of the
liberty of abode.85 In other words, habeas corpus effectively substantiates the
implied autonomy of citizens constitutionally protected in the right to liberty in
Article III, Section 1 of the Constitution.86 Habeas corpus being a remedy for a
constitutional right, courts must apply a conscientious and deliberate level of
scrutiny so that the substantive right to liberty will not be further curtailed in the
labyrinth of other processes.87
In Gumabon, et al. v. Director of the Bureau of Prisons,88 Mario Gumabon
(Gumabon), Bias Bagolbagol (Bagolbagol), Gaudencio Agapito (Agapito),
Epifanio Padua (Padua), and Paterno Palmares (Palmares) were convicted of
the complex crime of rebellion with murder. They commenced serving their
respective sentences of reclusion perpetua.89
While Gumabon, Bagolbagol, Agapito, Padua, and Palmares were serving
their sentences, this court promulgated People v. Hernandez90 in 1956, ruling
that the complex crime of rebellion with murder does not exist.91
Based on the Hernandez ruling, Gumabon, Bagolbagol, Agapito, Padua, and
Palmares filed a Petition for Habeas Corpus. They prayed for their release
from incarceration and argued that the Hernandez doctrine must retroactively
apply to them.92
This court ruled that Gumabon, Bagolbagol, Agapito, Padua, and Palmares
properly availed of a petition for habeas corpus.93 Citing Harris v. Nelson,94
this court said:
[T]he writ of habeas corpus is the fundamental instrument for safeguarding
individual freedom against arbitrary and lawless state action. . .. The scope
and flexibility of the writ — its capacity to reach all manner of illegal detention
— its ability to cut through barriers of form and procedural mazes — have
always been emphasized and jealously guarded by courts and lawmakers.
The very nature of the writ demands that it be administered with the initiative
and flexibility essential to insure that miscarriages of justice within its reach are
surfaced and corrected.95
In Rubi v. Provincial Board of Mindoro,96 the Provincial Board of Mindoro
issued Resolution No. 25, Series of 1917. The Resolution ordered the
Mangyans removed from their native habitat and compelled them to
permanently settle in an 800-hectare reservation in Tigbao. Under the
Resolution, Mangyans who refused to establish themselves in the Tigbao
reservation were imprisoned.97
An application for habeas corpus was filed before this court on behalf of Rubi
and all the other Mangyans being held in the reservation.98 Since the
application questioned the legality of deprivation of liberty of Rubi and the
other Mangyans, this court issued a Writ of Habeas Corpus and ordered the
Provincial Board of Mindoro to make a Return of the Writ.99
A Writ of Habeas Corpus was likewise issued in Villavicencio v. Lukban.100
"[T]o exterminate vice,"101 Mayor Justo Lukban of Manila ordered the brothels
in Manila closed. The female sex workers previously employed by these
brothels were rounded up and placed in ships bound for Davao. The women
were expelled from Manila and deported to Davao without their consent.102
On application by relatives and friends of some of the deported women, this
court issued a Writ of Habeas Corpus and ordered Mayor Justo Lukban,
among others, to make a Return of the Writ. Mayor Justo Lukban, however,
failed to make a Return, arguing that he did not have custody of the
women.103
This court cited Mayor Justo Lukban in contempt of court for failure to make a
Return of the Writ.104 As to the legality of his acts, this court ruled that Mayor
Justo Lukban illegally deprived the women he had deported to Davao of their
liberty, specifically, of their privilege of domicile.105 It said that the women,
"despite their being in a sense lepers of society[,] are nevertheless not chattels
but Philippine citizens protected by the same constitutional guaranties as are
other citizens[.]"106 The women had the right "to change their domicile from
Manila to another locality."107
Page 42 of 101
The writ of habeas corpus is different from the final decision on the petition for
the issuance of the writ. It is the writ that commands the production of the body
of the person allegedly restrained of his or her liberty. On the other hand, it is
in the final decision where a court determines the legality of the restraint.
Between the issuance of the writ and the final decision on the petition for its
issuance, it is the issuance of the writ that is essential. The issuance of the writ
sets in motion the speedy judicial inquiry on the legality of any deprivation of
liberty. Courts shall liberally issue writs of habeas corpus even if the petition
for its issuance "on [its] face [is] devoid of merit[.]"108 Although the privilege of
the writ of habeas corpus may be suspended in cases of invasion, rebellion, or
when the public safety requires it,109 the writ itself may not be suspended.110
III
It is true that a writ of habeas corpus may no longer be issued if the person
allegedly deprived of liberty is restrained under a lawful process or order of the
court.111 The restraint then has become legal,112 and the remedy of habeas
corpus is rendered moot and academic.113 Rule 102, Section 4 of the Rules
of Court provides:
SEC. 4. When writ not allowed or discharge authorized.—If it appears that the
person alleged to be restrained of his liberty is in the custody of an officer
under process issued by a court or judge or by virtue of a judgment or order of
a court of record, and that the court or judge had jurisdiction to issue the
process, render the judgment, or make the order, the writ shall not be allowed;
or if the jurisdiction appears after the writ is allowed, the person shall not be
discharged by reason of any informality or defect in the process, judgment, or
order. Nor shall anything in this rule be held to authorize the discharge of a
person charged with or convicted of an offense in the Philippines, or of a
person suffering imprisonment under lawful judgment.
In Ilagan v. Hon. Ponce Enrile,114 elements of the Philippine Constabulary-
Integrated National Police arrested Atty. Laurente C. Ilagan (Atty. Ilagan) by
virtue of a Mission Order allegedly issued by then Minister of National
Defense, Juan Ponce Enrile (Minister Enrile). On the day of Atty. Ilagan's
arrest,115 from the Integrated Bar of the Philippines Davao Chapter visited
Atty. Ilagan in Camp Catitipan, where he was detained.115
Among Atty. Ilagan's visitors was Atty. Antonio Arellano (Atty. Arellano). Atty.
Arellano, however, no longer left Camp Catitipan as the military detained and
arrested him based on an unsigned Mission Order.116
Three (3) days after the arrest of Attys. Ilagan and Arellano, the military
informed the Integrated Bar of the Philippines Davao Chapter of the impending
arrest of Atty. Marcos Risonar (Atty. Risonar). To verify his arrest papers, Atty.
Risonar went to Camp Catitipan. Like Atty. Arellano, the military did not allow
Atty. Risonar to leave. He was arrested based on a Mission Order signed by
General Echavarria, Regional Unified Commander.117
The Integrated Bar of the Philippines, the Free Legal Assistance Group, and
the Movement of Attorneys for Brotherhood, Integrity and Nationalism filed
before this court a Petition for Habeas Corpus in behalf of Attys. Ilagan,
Arellano, and Risonar.118
This court issued a Writ of Habeas Corpus and required Minister Enrile, Armed
Forces of the Philippines Acting Chief of Staff Lieutenant General Fidel V.
Ramos (General Ramos), and Philippine Constabulary-Integrated National
Police Regional Commander Brigadier General Dionisio Tan-Gatue (General
Tan-Gatue) to make a Return of the Writ.119 This court set the hearing on the
Return on May 23, 1985.120
In their Return, Minister Enrile, General Ramos, and General Tan-Gatue
contended that the privilege of the Writ of Habeas Corpus was suspended as
to Attys. Ilagan, Arellano, and Risonar by virtue of Proclamation No. 2045-
A.121 The lawyers, according to respondents, allegedly "played active roles in
organizing mass actions of the Communist Party of the Philippines and the
National Democratic Front."122
After hearing respondents on their Return, this court ordered the temporary
release of Attys. Ilagan, Arellano, and Risonar on the recognizance of their
counsels, retired Chief Justice Roberto Concepcion and retired Associate
Justice Jose B.L. Reyes.123
Instead of releasing Attys. Ilagan, Arellano, and Risonar, however, Minister
Enrile, General Ramos, and General Tan-Gatue filed a Motion for
Reconsideration.124 They filed an Urgent Manifestation/Motion stating that
Informations for rebellion were filed against Attys. Ilagan, Arellano, and
Risonar. They prayed that this court dismiss the Petition for Habeas Corpus for
being moot and academic.125
The Integrated Bar of the Philippines, the Free Legal Assistance Group, and
the Movement of Attorneys for Brotherhood, Integrity and Nationalism
opposed the motion. According to them, no preliminary investigation was
conducted before the filing of the Information. Attys. Ilagan, Arellano, and
Risonar were deprived of their right to due process. Consequently, the
Information was void.126
This court dismissed the Petition for Habeas Corpus, ruling that it became
moot and academic with the filing of the Information against Attys. Ilagan,
Arellano, and Risonar in court:127
As contended by respondents, the petition herein has been rendered moot
and academic by virtue of the filing of an Information against them for
Rebellion, a capital offense, before the Regional Trial Court of Davao City and
the issuance of a Warrant of Arrest against them. The function of the special
proceeding of habeas corpus is to inquire into the legality of one's detention.
Now that the detained attorneys' incarceration is by virtue of a judicial order in
relation to criminal cases subsequently filed against them before the Regional
Trial Court of Davao City, the remedy of habeas corpus no longer lies. The
Writ had served its purpose.128 (Citations omitted)
This court likewise dismissed the Petitions for habeas corpus in Umil v.
Ramos.129 Roberto Umil, Rolando Dural, Renato Villanueva, Amelia Roque,
Wilfredo Buenaobra, Atty. Domingo Anonuevo, Ramon Casiple, Vicky A.
Ocaya, Deogracias Espiritu, and Narciso B. Nazareno were all arrested
without a warrant for their alleged membership in the Communist Party of the
Philippines/New People's Army.130
During the pendency of the habeas corpus proceedings, however,
Informations against them were filed before this court. The filing of the
Informations, according to this court, rendered the Petitions for habeas corpus
moot and academic, thus:131
It is to be noted that, in all the petitions here considered, criminal charges have
been filed in the proper courts against the petitioners. The rule is, that if a
person alleged to be restrained of his liberty is in the custody of an officer
under process issued by a court or judge, and that the court or judge had
jurisdiction to issue the process or make the order, or if such person is
charged before any court, the writ of habeas corpus will not be allowed.132
(Emphasis in the original)
In such cases, instead of availing themselves of the extraordinary remedy of a
petition for habeas corpus, persons restrained under a lawful process or order
of the court must pursue the orderly course of trial and exhaust the usual
remedies.133 This ordinary remedy is to file a motion to quash the information
or the warrant of arrest.134
At any time before a plea is entered,135 the accused may file a motion to
quash complaint or information based on any of the grounds enumerated in
Rule 117, Section 3 of the Rules of Court:
SEC. 3. Grounds — The accused may move to quash the complaint or
information on any of the following grounds:
(a) That the facts charged do not constitute an offense;
(b) That the court trying the case has no jurisdiction over the offense charged;
(c) That the court trying the case has no jurisdiction over the person of the
accused;
(d) That the officer who filed the information had no authority to do so;
(e) That it does not conform substantially to the prescribed form;
(f) That more than one offense is charged except when a single punishment
for various offenses is prescribed by law;
(g) That the criminal action or liability has been extinguished;
(h) That it contains averments which, if true, would constitute a legal excuse or
justification; and
(i) That the accused has been previously convicted or acquitted of the offense
charged, or the case against him was dismissed or otherwise terminated
without his express consent.
In filing a motion to quash, the accused "assails the validity of a criminal
complaint or information filed against him [or her] for insufficiency on its face in
point of law, or for defects which are apparent in the face of the
information."136 If the accused avails himself or herself of a motion to quash,
the accused "hypothetical[ly] admits the facts alleged in the information."137
"Evidence aliunde or matters extrinsic from the information are not to be
considered."138
"If the motion to quash is based on an alleged defect of the complaint or
information which can be cured by amendment, the court shall order [the]
amendment [of the complaint or information]."139 If the motion to quash is
based on the ground that the facts alleged in the complaint or information do
not constitute an offense, the trial court shall give the prosecution "an
opportunity to correct the defect by amendment."140 If after amendment, the
complaint or information still suffers from the same defect, the trial court shall
quash the complaint or information.141
IV
However, Ilagan142 and Umil do not apply to this case. Petitioner Salibo was
not arrested by virtue of any warrant charging him of an offense. He was not
restrained under a lawful process or an order of a court. He was illegally
deprived of his liberty, and, therefore, correctly availed himself of a Petition for
Habeas Corpus.
The Information and Alias Warrant of Arrest issued by the Regional Trial
Court, Branch 221, Quezon City in People of the Philippines v. Datu Andal
Ampatuan, Jr., et al. charged and accused Butukan S. Malang, not Datukan
Malang Salibo, of 57 counts of murder in connection with the Maguindanao
Massacre.
Furthermore, petitioner Salibo was not validly arrested without a warrant. Rule
113, Section 5 of the Rules of Court enumerates the instances when a
warrantless arrest may be made:
SEC. 5. Arrest without warrant; when lawful.—A peace officer or a private
person may, without a warrant, arrest a person:
Page 43 of 101
(a) When, in his presence, the person to be arrested has committed, is
actually committing, or is attempting to commit an offense;
(b) When an offense has just been committed and he has probable cause to
believe based on- personal knowledge of facts or circumstances that the
person to be arrested has committed it;
(c) When the person to be arrested is a prisoner who has escaped from a
penal establishment or place where he is serving final judgment or is
temporarily confined while his case is pending, or has escaped while being
transferred from one confinement to another.
In cases falling under paragraphs (a) and (b) above, the person arrested
without a warrant shall be forthwith delivered to the nearest police station or
jail and shall be proceeded against in accordance with section 7 of Rule 112.
It is undisputed that petitioner Salibo presented himself before the Datu Hofer
Police Station to clear his name and to prove that he is not the accused
Butukan S. Malang. When petitioner Salibo was in the presence of the police
officers of Datu Hofer Police Station, he was neither committing nor attempting
to commit an offense. The police officers had no personal knowledge of any
offense that he might have committed. Petitioner Salibo was also not an
escapee prisoner.
The police officers, therefore, had no probable cause to arrest petitioner Salibo
without a warrant. They deprived him of his right to liberty without due process
of law, for which a petition for habeas corpus may be issued.
The arrest of petitioner Salibo is similar to the arrest of Atty. Risonar in the
"disturbing"143 case of Ilagan.144 Like petitioner Salibo, Atty. Risonar went to
Camp Catitipan to verify and contest any arrest papers against him. Then and
there, Atty. Risonar was arrested without a warrant. In his dissenting opinion in
Ilagan,145 Justice Claudio Teehankee stated that the lack of preliminary
investigation deprived Atty. Risonar, together with Attys. Ilagan and Arellano,
of his right to due process of law — a ground for the grant of a petition for
habeas corpus:146
The majority decision holds that the filing of the information without preliminary
investigation falls within the exceptions of Rule 112, sec. 7 and Rule 113, sec.
5 of the 1985 Rules on Criminal Procedure. Again, this is erroneous premise.
The fiscal misinvoked and misapplied the cited rules. The petitioners are not
persons "lawfully arrested without a warrant." The fiscal could not rely on the
stale and inoperative PDA of January 25, 1985. Otherwise, the rules would be
rendered nugatory, if all that was needed was to get a PDA and then serve it
at one's whim and caprice when the very issuance of the PDA is premised on
its imperative urgency and necessity as declared by the President himself. The
majority decision then relies on Rule 113, Sec. 5 which authorizes arrests
without warrant by a citizen or by a police officer who witnessed the arrestee in
flagrante delicto, viz. in the act of committing the offense. Quite obviously, the
arrest was not a citizen's arrest nor were they caught in flagrante delicto
violating the law. In fact, this Court in promulgating the 1985 Rules on Criminal
Procedure have tightened and made the rules more strict. Thus, the Rule now
requires that an offense "has in fact just been committed." This connotes
immediacy in point of time and excludes cases under the old rule where an
offense "has in fact been committed" no matter how long ago. Similarly, the
arrestor must have "personal knowledge of facts indicating that the [arrestee]
has committed it" (instead of just "reasonable ground to believe that the
[arrestee] has committed it" under the old rule). Clearly, then, an information
could not just be filed against the petitioners without due process and
preliminary investigation.147 (Emphasis in the original, citation omitted)
Petitioner Salibo's proper remedy is not a Motion to Quash Information and/or
Warrant of Arrest. None of the grounds for filing a Motion to Quash Information
apply to him. Even if petitioner Salibo filed a Motion to Quash, the defect he
alleged could not have been cured by mere amendment of the Information
and/or Warrant of Arrest. Changing the name of the accused appearing in the
Information and/or Warrant of Arrest from "Butukan S. Malang" to "Datukan
Malang Salibo" will not cure the lack of preliminary investigation in this case.
A motion for reinvestigation will' not cure the defect of lack of preliminary
investigation. The Information and Alias Warrant of Arrest were issued on the
premise that Butukan S. Malang and Datukan Malang Salibo are the same
person. There is evidence, however, that the person detained by virtue of
these processes is not Butukan S. Malang but another person named Datukan
Malang Salibo.
Petitioner Salibo presented in evidence his Philippine passport,148 his
identification card from the Office on Muslim Affairs,149 his Tax Identification
Number card,150 and clearance from the National Bureau of Investigation151
all bearing his picture and indicating the name "Datukan Malang Salibo." None
of these government-issued documents showed that petitioner Salibo used the
alias "Butukan S. Malang."
Moreover, there is evidence that petitioner Salibo was not in the country on
November 23, 2009 when the Maguindanao Massacre occurred.
A Certification152 from the Bureau of Immigration states that petitioner Salibo
departed for Saudi Arabia on November 7, 2009 and arrived in the Philippines
only on December 20, 2009. A Certification153 from Saudi Arabian Airlines
attests that petitioner Salibo departed for Saudi Arabia on board Saudi Arabian
Airlines Flight SV869 on November 7, 2009 and that he arrived in the
Philippines on board Saudi Arabian Airlines SV870 on December 20,
2009.cralawlawlibrary
V
People of the Philippines v. Datu Andal Ampatuan, Jr., et al. is probably the
most complex case pending in our courts. The case involves 57 victims154
and 197 accused, two (2) of which have become state witnesses.155 As of
November 23, 2014, 111 of the accused have been arraigned, and 70 have
filed petitions for bail of which 42 have already been resolved.156 To require
petitioner Salibo to undergo trial would be to further illegally deprive him of his
liberty. Urgency dictates that we resolve his Petition in his favor given the
strong evidence that he is not Butukan S. Malang.
In ordering petitioner Salibo's release, we are prejudging neither his guilt nor
his innocence. However, between a citizen who has shown that he was
illegally deprived of his liberty without due process of law and the government
that has all the "manpower and the resources at [its] command"157 to properly
indict a citizen but failed to do so, we will rule in favor of the citizen.
Should the government choose to prosecute petitioner Salibo, it must pursue
the proper remedies against him as provided in our Rules. Until then, we rule
that petitioner Salibo is illegally deprived of his liberty. His Petition for Habeas
Corpus must be granted.
WHEREFORE, the Petition for Review on Certiorari is GRANTED. The Court
of Appeals Decision dated April 19, 2011 is REVERSED and SET ASIDE.
Respondent Warden, Quezon City Jail Annex, Bureau of Jail Management
and Penology Building, Camp Bagong Diwa, Taguig, is ORDERED to
immediately RELEASE petitioner Datukan Maiang Salibo from detention.
The Letter of the Court of Appeals elevating the records of the case to this
court is hereby NOTED.
SO ORDERED.
Carpio, (Chairperson), Brion, Del Castillo, and Mendoza, JJ., concur.
AMPARO
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 182484 June 17, 2008
DANIEL MASANGKAY TAPUZ, AURORA TAPUZ-MADRIAGA, LIBERTY M.
ASUNCION, LADYLYN BAMOS MADRIAGA, EVERLY TAPUZ MADRIAGA,
EXCEL TAPUZ, IVAN TAPUZ AND MARIAN TIMBAS, petitioners,
vs.
HONORABLE JUDGE ELMO DEL ROSARIO, in his capacity as Presiding
Judge of RTC Br. 5 Kalibo, SHERIFF NELSON DELA CRUZ, in his
capacity as Sheriff of the RTC, THE PHILIPPINE NATIONAL POLICE
stationed in Boracay Island, represented by the PNP STATION
COMMANDER, THE HONORABLE COURT OF APPEALS IN CEBU 18th
DIVISION, SPOUSES GREGORIO SANSON & MA. LOURDES T. SANSON,
respondents.
RESOLUTION
BRION, J.:
Before us for the determination of sufficiency of form and substance (pursuant
to Sections 1 and 4 of Rule 65 of the Revised Rules of Court; Sections 1 and 5
of the Rule on the Writ of Amparo;1 and Sections 1 and 6 of the Rule on the
Writ of Habeas Data2) is the petition for certiorari and for the issuance of the
writs of amparo and habeas data filed by the above-named petitioners against
the Honorable Judge Elmo del Rosario [in his capacity as presiding judge of
RTC Br. 5, Kalibo], Sheriff Nelson de la Cruz [in his capacity as Sheriff of the
RTC], the Philippine National Police stationed in Boracay Island, represented
by the PNP Station Commander, the Honorable Court of Appeals in Cebu,
18th Division, and the spouses Gregorio Sanson and Ma. Lourdes T. Sanson,
respondents.
The petition and its annexes disclose the following material antecedents:
The private respondents spouses Gregorio Sanson and Ma. Lourdes T.
Sanson (the "private respondents"), filed with the Fifth Municipal Circuit Trial
Court of Buruanga-Malay, Aklan (the "MCTC") a complaint3 dated 24 April
2006 for forcible entry and damages with a prayer for the issuance of a writ of
preliminary mandatory injunction against the petitioners Daniel Masangkay
Tapuz, Aurora Tapuz-Madriaga, Liberty M. Asuncion, Ladylyn Bamos
Madriaga, Everly Tapuz Madriaga, Excel Tapuz, Ivan Tapuz and Marian
Timbas (the "petitioners") and other John Does numbering about 120. The
private respondents alleged in their complaint that: (1) they are the registered
owners under TCT No. 35813 of a 1.0093-hectare parcel of land located at
Sitio Pinaungon, Balabag, Boracay, Malay, Aklan (the "disputed land"); (2)
they were the disputed land's prior possessors when the petitioners - armed
with bolos and carrying suspected firearms and together with unidentified
persons numbering 120 - entered the disputed land by force and intimidation,
without the private respondents' permission and against the objections of the
private respondents' security men, and built thereon a nipa and bamboo
structure.
Page 44 of 101
In their Answer4 dated 14 May 2006, the petitioners denied the material
allegations of the complaint. They essentially claimed that: (1) they are the
actual and prior possessors of the disputed land; (2) on the contrary, the
private respondents are the intruders; and (3) the private respondents'
certificate of title to the disputed property is spurious. They asked for the
dismissal of the complaint and interposed a counterclaim for damages.
The MCTC, after due proceedings, rendered on 2 January 2007 a decision5 in
the private respondents' favor. It found prior possession - the key issue in
forcible entry cases - in the private respondents' favor, thus:
"The key that could unravel the answer to this question lies in the Amended
Commissioner's Report and Sketch found on pages 245 to 248 of the records
and the evidence the parties have submitted. It is shown in the Amended
Commissioner's Report and Sketch that the land in question is enclosed by a
concrete and cyclone wire perimeter fence in pink and green highlighter as
shown in the Sketch Plan (p. 248). Said perimeter fence was constructed by
the plaintiffs 14 years ago. The foregoing findings of the Commissioner in his
report and sketch collaborated the claim of the plaintiffs that after they
acquired the land in question on May 27, 1993 through a Deed of Sale (Annex
'A', Affidavit of Gregorio Sanson, p. 276, rec.), they caused the construction of
the perimeter fence sometime in 1993 (Affidavit of Gregorio Sanson, pp. 271-
275, rec.).
From the foregoing established facts, it could be safely inferred that the
plaintiffs were in actual physical possession of the whole lot in question since
1993 when it was interrupted by the defendants (sic) when on January 4, 2005
claiming to (sic) the Heirs of Antonio Tapuz entered a portion of the land in
question with view of inhabiting the same and building structures therein
prompting plaintiff Gregorio Sanson to confront them before BSPU, Police
Chief Inspector Jack L. Wanky and Barangay Captain Glenn Sacapaño. As a
result of their confrontation, the parties signed an Agreement (Annex 'D',
Complaint p. 20) wherein they agreed to vacate the disputed portion of the
land in question and agreed not to build any structures thereon.
The foregoing is the prevailing situation of the parties after the incident of
January 4, 2005 when the plaintiff posted security guards, however, sometime
on or about 6:30 A.M. of April 19, 2006, the defendants some with bolos and
one carrying a sack suspected to contain firearms with other John Does
numbering about 120 persons by force and intimidation forcibly entered the
premises along the road and built a nipa and bamboo structure (Annex 'E',
Complaint, p. 11) inside the lot in question which incident was promptly
reported to the proper authorities as shown by plaintiffs' Certification (Annex
'F', Complaint, p. 12) of the entry in the police blotter and on same date April
19, 2006, the plaintiffs filed a complaint with the Office of the Lupong
Tagapamayapa of Barangay Balabag, Boracay Island, Malay, Aklan but no
settlement was reached as shown in their Certificate to File Action (Annex 'G',
Complaint, p. 13); hence the present action.
Defendants' (sic) contend in their answer that 'prior to January 4, 2005, they
were already occupants of the property, being indigenous settlers of the same,
under claim of ownership by open continuous, adverse possession to the
exclusion of other (sic)'. (Paragraph 4, Answer, p. 25).
The contention is untenable. As adverted earlier, the land in question is
enclosed by a perimeter fence constructed by the plaintiffs sometime in 1993
as noted by the Commissioner in his Report and reflected in his Sketch, thus,
it is safe to conclude that the plaintiffs where (sic) in actual physical
possession of the land in question from 1993 up to April 19, 2006 when they
were ousted therefrom by the defendants by means of force. Applying by
analogy the ruling of the Honorable Supreme Court in the case of Molina, et al.
vs. De Bacud, 19 SCRA 956, if the land were in the possession of plaintiffs
from 1993 to April 19, 2006, defendants' claims to an older possession must
be rejected as untenable because possession as a fact cannot be recognized
at the same time in two different personalities.
Defendants likewise contend that it was the plaintiffs who forcibly entered the
land in question on April 18, 2006 at about 3:00 o'clock in the afternoon as
shown in their Certification (Annex 'D', Defendants' Position Paper, p. 135,
rec.).
The contention is untenable for being inconsistent with their allegations made
to the commissioner who constituted (sic) the land in question that they built
structures on the land in question only on April 19, 2006 (Par. D.4,
Commissioner's Amended Report, pp. 246 to 247), after there (sic) entry
thereto on even date.
Likewise, said contention is contradicted by the categorical statements of
defendants' witnesses, Rowena Onag, Apolsida Umambong, Ariel Gac,
Darwin Alvarez and Edgardo Pinaranda, in their Joint Affidavit (pp. 143- '144,
rec.) [sic] categorically stated 'that on or about April 19, 2006, a group of
armed men entered the property of our said neighbors and built plastic roofed
tents. These armed men threatened to drive our said neighbors away from
their homes but they refused to leave and resisted the intruding armed men'.
From the foregoing, it could be safely inferred that no incident of forcible entry
happened on April 18, 2006 but it was only on April 19, 2006 when the
defendants overpowered by their numbers the security guards posted by the
plaintiffs prior to the controversy.
Likewise, defendants (sic) alleged burnt and other structures depicted in their
pictures attached as annexes to their position paper were not noted and
reflected in the amended report and sketch submitted by the Commissioner,
hence, it could be safely inferred that these structures are built and (sic)
situated outside the premises of the land in question, accordingly, they are
irrelevant to the instant case and cannot be considered as evidence of their
actual possession of the land in question prior to April 19, 20066."
The petitioners appealed the MCTC decision to the Regional Trial Court
("RTC," Branch 6 of Kalibo, Aklan) then presided over by Judge Niovady M.
Marin ("Judge Marin").
On appeal, Judge Marin granted the private respondents' motion for the
issuance of a writ of preliminary mandatory injunction through an Order dated
26 February 2007, with the issuance conditioned on the private respondents'
posting of a bond. The writ7 - authorizing the immediate implementation of the
MCTC decision - was actually issued by respondent Judge Elmo F. del
Rosario (the "respondent Judge") on 12 March 2007 after the private
respondents had complied with the imposed condition. The petitioners moved
to reconsider the issuance of the writ; the private respondents, on the other
hand, filed a motion for demolition.
The respondent Judge subsequently denied the petitioners' Motion for
Reconsideration and to Defer Enforcement of Preliminary Mandatory
Injunction in an Order dated 17 May 20078.
Meanwhile, the petitioners opposed the motion for demolition.9 The
respondent Judge nevertheless issued via a Special Order10 a writ of
demolition to be implemented fifteen (15) days after the Sheriff's written notice
to the petitioners to voluntarily demolish their house/s to allow the private
respondents to effectively take actual possession of the land.
The petitioners thereafter filed on 2 August 2007 with the Court of Appeals,
Cebu City, a Petition for Review11 (under Rule 42 of the 1997 Rules of Civil
Procedure) of the Permanent Mandatory Injunction and Order of Demolition of
the RTC of Kalibo, Br. 6 in Civil Case No. 7990.
Meanwhile, respondent Sheriff Nelson R. dela Cruz issued the Notice to
Vacate and for Demolition on 19 March 2008.12
It was against this factual backdrop that the petitioners filed the present
petition last 29 April 2008. The petition contains and prays for three remedies,
namely: a petition for certiorari under Rule 65 of the Revised Rules of Court;
the issuance of a writ of habeas data under the Rule on the Writ of Habeas
Data; and finally, the issuance of the writ of amparo under the Rule on the Writ
of Amparo.
To support the petition and the remedies prayed for, the petitioners present
factual positions diametrically opposed to the MCTC's findings and legal
reasons. Most importantly, the petitioners maintain their claims of prior
possession of the disputed land and of intrusion into this land by the private
respondents. The material factual allegations of the petition - bases as well of
the petition for the issuance of the writ of amparo - read:
"29. On April 29, 2006 at about 9:20 a.m. armed men sporting 12 gauge shot
guns intruded into the property of the defendants [the land in dispute]. They
were not in uniform. They fired their shotguns at the defendants. Later the
following day at 2:00 a.m. two houses of the defendants were burned to
ashes.
30. These armed men [without uniforms] removed the barbed wire fence put
up by defendants to protect their property from intruders. Two of the armed
men trained their shotguns at the defendants who resisted their intrusion. One
of them who was identified as SAMUEL LONGNO y GEGANSO, 19 years old,
single, and a resident of Binun-an, Batad, Iloilo, fired twice.
31. The armed men torched two houses of the defendants reducing them to
ashes. [...]
32. These acts of TERRORISM and (heinous crime) of ARSON were reported
by one of the HEIRS OF ANTONIO TAPUZ [...]. The terrorists trained their
shotguns and fired at minors namely IVAN GAJISAN and MICHAEL
MAGBANUA, who resisted their intrusion. Their act is a blatant violation of the
law penalizing Acts of Violence against women and children, which is
aggravated by the use of high-powered weapons.
[…]
34. That the threats to the life and security of the poor indigent and unlettered
petitioners continue because the private respondents Sansons have under
their employ armed men and they are influential with the police authorities
owing to their financial and political clout.
35. The actual prior occupancy, as well as the ownership of the lot in dispute
by defendants and the atrocities of the terrorists [introduced into the property
in dispute by the plaintiffs] are attested by witnesses who are persons not
related to the defendants are therefore disinterested witnesses in the case
namely: Rowena Onag, Apolsida Umambong, Ariel Gac, Darwin Alvarez and
Edgardo Penarada. Likewise, the affidavit of Nemia T. Carmen is submitted to
prove that the plaintiffs resorted to atrocious acts through hired men in their
bid to unjustly evict the defendants.13"
The petitioners posit as well that the MCTC has no jurisdiction over the
complaint for forcible entry that the private respondents filed below. Citing
Section 33 of The Judiciary Reorganization Act of 1980, as amended by
Page 45 of 101
Republic Act No. 7691,14 they maintain that the forcible entry case in fact
involves issues of title to or possession of real property or an interest therein,
with the assessed value of the property involved exceeding P20,000.00; thus,
the case should be originally cognizable by the RTC. Accordingly, the
petitioners reason out that the RTC - to where the MCTC decision was
appealed - equally has no jurisdiction to rule on the case on appeal and could
not have validly issued the assailed orders.
OUR RULING
We find the petitions for certiorari and issuance of a writ of habeas data fatally
defective, both in substance and in form. The petition for the issuance of the
writ of amparo, on the other hand, is fatally defective with respect to content
and substance.
The Petition for Certiorari
We conclude, based on the outlined material antecedents that led to the
petition, that the petition for certiorari to nullify the assailed RTC orders has
been filed out of time. It is not lost on us that the petitioners have a pending
petition with the Court of Appeals (the "CA petition") for the review of the same
RTC orders now assailed in the present petition, although the petitioners never
disclosed in the body of the present petition the exact status of their pending
CA petition. The CA petition, however, was filed with the Court of Appeals on 2
August 2007, which indicates to us that the assailed orders (or at the very
least, the latest of the interrelated assailed orders) were received on 1 August
2007 at the latest. The present petition, on the other hand, was filed on April
29, 2008 or more than eight months from the time the CA petition was filed.
Thus, the present petition is separated in point of time from the assumed
receipt of the assailed RTC orders by at least eight (8) months, i.e., beyond
the reglementary period of sixty (60) days15 from receipt of the assailed order
or orders or from notice of the denial of a seasonably filed motion for
reconsideration.
We note in this regard that the petitioners' counsel stated in his attached
"Certificate of Compliance with Circular #1-88 of the Supreme Court"16
("Certificate of Compliance") that "in the meantime the RTC and the Sheriff
issued a NOTICE TO VACATE AND FOR DEMOLITION not served to counsel
but to the petitioners who sent photo copy of the same NOTICE to their
counsel on April 18, 2008 by LBC." To guard against any insidious argument
that the present petition is timely filed because of this Notice to Vacate, we feel
it best to declare now that the counting of the 60-day reglementary period
under Rule 65 cannot start from the April 18, 2008 date cited by the
petitioners' counsel. The Notice to Vacate and for Demolition is not an order
that exists independently from the RTC orders assailed in this petition and in
the previously filed CA petition. It is merely a notice, made in compliance with
one of the assailed orders, and is thus an administrative enforcement medium
that has no life of its own separately from the assailed order on which it is
based. It cannot therefore be the appropriate subject of an independent
petition for certiorari under Rule 65 in the context of this case. The April 18,
2008 date cannot likewise be the material date for Rule 65 purposes as the
above-mentioned Notice to Vacate is not even directly assailed in this petition,
as the petition's Prayer patently shows.17
Based on the same material antecedents, we find too that the petitioners have
been guilty of willful and deliberate misrepresentation before this Court and, at
the very least, of forum shopping.
By the petitioners' own admissions, they filed a petition with the Court of
Appeals (docketed as CA - G.R. SP No. 02859) for the review of the orders
now also assailed in this petition, but brought the present recourse to us,
allegedly because "the CA did not act on the petition up to this date and for the
petitioner (sic) to seek relief in the CA would be a waste of time and would
render the case moot and academic since the CA refused to resolve pending
urgent motions and the Sheriff is determined to enforce a writ of demolition
despite the defect of LACK OF JURISDICTION."18
Interestingly, the petitioners' counsel - while making this claim in the body of
the petition - at the same time represented in his Certificate of Compliance19
that:
"x x x
(e) the petitioners went up to the Court of Appeals to question the WRIT OF
PRELIMINARY INJUNCTION copy of the petition is attached (sic);
(f) the CA initially issued a resolution denying the PETITION because it held
that the ORDER TO VACATE AND FOR DEMOLITION OF THE HOMES OF
PETITIONERS is not capable of being the subject of a PETITION FOR
RELIEF, copy of the resolution of the CA is attached hereto; (underscoring
supplied)
(g) Petitioners filed a motion for reconsideration on August 7, 2007 but up to
this date the same had not been resolved copy of the MR is attached (sic).
x x x"
The difference between the above representations on what transpired at the
appellate court level is replete with significance regarding the petitioners'
intentions. We discern -- from the petitioners' act of misrepresenting in the
body of their petition that "the CA did not act on the petition up to this date"
while stating the real Court of Appeals action in the Certification of Compliance
-- the intent to hide the real state of the remedies the petitioners sought below
in order to mislead us into action on the RTC orders without frontally
considering the action that the Court of Appeals had already undertaken.
At the very least, the petitioners are obviously seeking to obtain from us, via
the present petition, the same relief that it could not wait for from the Court of
Appeals in CA-G.R. SP No. 02859. The petitioners' act of seeking against the
same parties the nullification of the same RTC orders before the appellate
court and before us at the same time, although made through different
mediums that are both improperly used, constitutes willful and deliberate
forum shopping that can sufficiently serve as basis for the summary dismissal
of the petition under the combined application of the fourth and penultimate
paragraphs of Section 3, Rule 46; Section 5, Rule 7; Section 1, Rule 65; and
Rule 56, all of the Revised Rules of Court. That a wrong remedy may have
been used with the Court of Appeals and possibly with us will not save the
petitioner from a forum-shopping violation where there is identity of parties,
involving the same assailed interlocutory orders, with the recourses existing
side by side at the same time.
To restate the prevailing rules, "forum shopping is the institution of two or more
actions or proceedings involving the same parties for the same cause of
action, either simultaneously or successively, on the supposition that one or
the other court would make a favorable disposition. Forum shopping may be
resorted to by any party against whom an adverse judgment or order has been
issued in one forum, in an attempt to seek a favorable opinion in another,
other than by appeal or a special civil action for certiorari. Forum shopping
trifles with the courts, abuses their processes, degrades the administration of
justice and congest court dockets. Willful and deliberate violation of the rule
against it is a ground for summary dismissal of the case; it may also constitute
direct contempt."20
Additionally, the required verification and certification of non-forum shopping is
defective as one (1) of the seven (7) petitioners - Ivan Tapuz - did not sign, in
violation of Sections 4 and 5 of Rule 7; Section 3, Rule 46; Section 1, Rule 65;
all in relation with Rule 56 of the Revised Rules of Court. Of those who signed,
only five (5) exhibited their postal identification cards with the Notary Public.
In any event, we find the present petition for certiorari, on its face and on the
basis of the supporting attachments, to be devoid of merit. The MCTC
correctly assumed jurisdiction over the private respondents' complaint, which
specifically alleged a cause for forcible entry and not - as petitioners may have
misread or misappreciated - a case involving title to or possession of realty or
an interest therein. Under Section 33, par. 2 of The Judiciary Reorganization
Act, as amended by Republic Act (R.A.) No. 7691, exclusive jurisdiction over
forcible entry and unlawful detainer cases lies with the Metropolitan Trial
Courts, Municipal Trial Courts and Municipal Circuit Trial Courts. These first-
level courts have had jurisdiction over these cases - called accion interdictal -
even before the R.A. 7691 amendment, based on the issue of pure physical
possession (as opposed to the right of possession). This jurisdiction is
regardless of the assessed value of the property involved; the law established
no distinctions based on the assessed value of the property forced into or
unlawfully detained. Separately from accion interdictal are accion publiciana
for the recovery of the right of possession as a plenary action, and accion
reivindicacion for the recovery of ownership.21 Apparently, these latter actions
are the ones the petitioners refer to when they cite Section 33, par. 3, in
relation with Section 19, par. 2 of The Judiciary Reorganization Act of 1980, as
amended by Republic Act No. 7691, in which jurisdiction may either be with
the first-level courts or the regional trial courts, depending on the assessed
value of the realty subject of the litigation. As the complaint at the MCTC was
patently for forcible entry, that court committed no jurisdictional error
correctible by certiorari under the present petition.
In sum, the petition for certiorari should be dismissed for the cited formal
deficiencies, for violation of the non-forum shopping rule, for having been filed
out of time, and for substantive deficiencies.
The Writ of Amparo
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 Pwrit 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;
Page 46 of 101
(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."22
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.
The issuance of the writ of amparo in the present case is anchored on the
factual allegations heretofore quoted,23 that are essentially repeated in
paragraph 54 of the petition. These allegations are supported by the following
documents:
"(a) Joint Affidavit dated 23 May 2006 of Rowena B. Onag, Apolsida
Umambong, Ariel Gac, Darwin Alvarez and Edgardo Pinaranda, supporting
the factual positions of the petitioners, id., petitioners' prior possession, private
respondents' intrusion and the illegal acts committed by the private
respondents and their security guards on 19 April 2006;
(b) Unsubscribed Affidavit of Nemia Carmen y Tapuz, alleging the illegal acts
(firing of guns, etc.) committed by a security guard against minors -
descendants of Antonio Tapuz;
(c) Unsubscribed Affidavit of Melanie Tapuz y Samindao, essentially
corroborating Nemia's affidavit;
(d) Certification dated 23 April 2006 issued by Police Officer Jackson Jauod
regarding the incident of petitioners' intrusion into the disputed land;
(e) Certification dated 27 April 2006 issued by Police Officer Allan R. Otis,
narrating the altercation between the Tapuz family and the security guards of
the private respondents, including the gun-poking and shooting incident
involving one of the security guards;
(f) Certification issued by Police Officer Christopher R. Mendoza, narrating that
a house owned by Josiel Tapuz, Jr., rented by a certain Jorge Buenavente,
was accidentally burned by a fire."
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 threats 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 is continuing.
A closer look at the statements shows that at least two of them - the
statements of Nemia Carreon y Tapuz and Melanie Tapuz are practically
identical and unsworn. The Certification by Police Officer Jackson Jauod, on
the other hand, simply narrates what had been reported by one Danny Tapuz
y Masangkay, and even mentions that the burning of two residential houses
was "accidental."
As against these allegations are the cited MCTC factual findings in its decision
in the forcible entry case which rejected all the petitioners' factual claims.
These findings are significantly complete and detailed, as they were made
under a full-blown judicial process, i.e., after examination and evaluation of the
contending parties' positions, evidence and arguments and based on the
report of a court-appointed commissioner.
We preliminarily examine these conflicting factual positions under the
backdrop of a dispute (with incidents giving rise to allegations of violence or
threat thereof) that was brought to and ruled upon by the MCTC; subsequently
brought to the RTC on an appeal that is still pending; still much later brought to
the appellate court without conclusive results; and then brought to us on
interlocutory incidents involving a plea for the issuance of the writ of amparo
that, if decided as the petitioners advocate, may render the pending RTC
appeal moot.
Under these legal and factual situations, we are far from satisfied with the
prima facie existence of the ultimate facts that would justify the issuance of a
writ of amparo. Rather than acts of terrorism that pose a continuing threat to
the persons of the petitioners, the violent incidents alleged appear to us to be
purely property-related and focused on the disputed land. Thus, if the
petitioners wish to seek redress and hold the alleged perpetrators criminally
accountable, the remedy may lie more in the realm of ordinary criminal
prosecution rather than on the use of the extraordinary remedy of the writ of
amparo.
Nor do we believe it appropriate at this time to disturb the MCTC findings, as
our action may carry the unintended effect, not only of reversing the MCTC
ruling independently of the appeal to the RTC that is now in place, but also of
nullifying the ongoing appeal process. Such effect, though unintended, will
obviously wreak havoc on the orderly administration of justice, an overriding
goal that the Rule on the Writ of Amparo does not intend to weaken or negate.
Separately from these considerations, we cannot fail but consider too at this
point the indicators, clear and patent to us, that the petitioners' present
recourse via the remedy of the writ of amparo is a mere subterfuge to negate
the assailed orders that the petitioners sought and failed to nullify before the
appellate court because of the use of an improper remedial measure. We
discern this from the petitioners' misrepresentations pointed out above; from
their obvious act of forum shopping; and from the recourse itself to the
extraordinary remedies of the writs of certiorari and amparo based on grounds
that are far from forthright and sufficiently compelling. To be sure, when
recourses in the ordinary course of law fail because of deficient legal
representation or the use of improper remedial measures, neither the writ of
certiorari nor that of amparo - extraordinary though they may be - will suffice to
serve as a curative substitute. The writ of amparo, particularly, should not
issue when applied for as a substitute for the appeal or certiorari process, or
when it will inordinately interfere with these processes - the situation obtaining
in the present case.
While we say all these, we note too that the Rule on the Writ of Amparo
provides for rules on the institution of separate actions,24 for the effect of
earlier-filed criminal actions,25 and for the consolidation of petitions for the
issuance of a writ of amparo with a subsequently filed criminal and civil
action.26 These rules were adopted to promote an orderly procedure for
dealing with petitions for the issuance of the writ of amparo when the parties
resort to other parallel recourses.
Where, as in this case, there is an ongoing civil process dealing directly with
the possessory dispute and the reported acts of violence and harassment, we
see no point in separately and directly intervening through a writ of amparo in
the absence of any clear prima facie showing that the right to life, liberty or
security - the personal concern that the writ is intended to protect - is
immediately in danger or threatened, or that the danger or threat is continuing.
We see no legal bar, however, to an application for the issuance of the writ, in
a proper case, by motion in a pending case on appeal or on certiorari, applying
by analogy the provisions on the co-existence of the writ with a separately filed
criminal case.
The Writ of Habeas Data
Section 6 of the Rule on the Writ of Habeas Data requires the following
material allegations of ultimate facts in a petition for the issuance of a writ of
habeas data:
"(a) The personal circumstances of the petitioner and the respondent;
(b) The manner the right to privacy is violated or threatened and how it affects
the right to life, liberty or security of the aggrieved party;
(c) The actions and recourses taken by the petitioner to secure the data or
information;
(d) The location of the files, registers or databases, the government office, and
the person in charge, in possession or in control of the data or information, if
known;
(e) The reliefs prayed for, which may include the updating, rectification,
suppression or destruction of the database or information or files kept by the
respondent.
In case of threats, the relief may include a prayer for an order enjoining the act
complained of; and
(f) Such other relevant reliefs as are just and equitable."
Support for the habeas data aspect of the present petition only alleges that:
"1. [ … ] Similarly, a petition for a WRIT OF HABEAS DATA is prayed for so
that the PNP may release the report on the burning of the homes of the
petitioners and the acts of violence employed against them by the private
respondents, furnishing the Court and the petitioners with copy of the same;
[…]
66. Petitioners apply for a WRIT OF HABEAS DATA commanding the
Philippine National Police [PNP] to produce the police report pertaining to the
burning of the houses of the petitioners in the land in dispute and likewise the
investigation report if an investigation was conducted by the PNP."
These allegations obviously lack what the Rule on Writ of Habeas Data
requires as a minimum, thus rendering the petition fatally deficient.
Specifically, we see no concrete allegations of unjustified or unlawful violation
of the right to privacy related to the right to life, liberty or security. The petition
likewise has not alleged, much less demonstrated, any need for information
under the control of police authorities other than those it has already set forth
as integral annexes. The necessity or justification for the issuance of the writ,
based on the insufficiency of previous efforts made to secure information, has
not also been shown. In sum, the prayer for the issuance of a writ of habeas
Page 47 of 101
data is nothing more than the "fishing expedition" that this Court - in the course
of drafting the Rule on habeas data - had in mind in defining what the purpose
of a writ of habeas data is not. In these lights, the outright denial of the petition
for the issuance of the writ of habeas data is fully in order.
WHEREFORE, premises considered, we hereby DISMISS the present petition
OUTRIGHT for deficiencies of form and substance patent from its body and
attachments.
SO ORDERED.
ARTURO D. BRION
Associate Justice
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 180906 October 7, 2008
THE SECRETARY OF NATIONAL DEFENSE, THE CHIEF OF STAFF,
ARMED FORCES OF THE PHILIPPINES, petitioners,
vs.
RAYMOND MANALO and REYNALDO MANALO, respondents.
DECISION
PUNO, C.J.:
While victims of enforced disappearances are separated from the rest of the
world behind secret walls, they are not separated from the constitutional
protection of their basic rights. The constitution is an overarching sky that
covers all in its protection. The case at bar involves the rights to life, liberty
and security in the first petition for a writ of Amparo filed before this Court.
This is an appeal via Petition for Review under Rule 45 of the Rules of Court in
relation to Section 191 of the Rule on the Writ of Amparo, seeking to reverse
and set aside on both questions of fact and law, the Decision promulgated by
the Court of Appeals in C.A. G.R. AMPARO No. 00001, entitled "Raymond
Manalo and Reynaldo Manalo, petitioners, versus The Secretary of National
Defense, the Chief of Staff, Armed Forces of the Philippines, respondents."
This case was originally a Petition for Prohibition, Injunction, and Temporary
Restraining Order (TRO)2 filed before this Court by herein respondents
(therein petitioners) on August 23, 2007 to stop herein petitioners (therein
respondents) and/or their officers and agents from depriving them of their right
to liberty and other basic rights. Therein petitioners also sought ancillary
remedies, Protective Custody Orders, Appointment of Commissioner,
Inspection and Access Orders, and all other legal and equitable reliefs under
Article VIII, Section 5(5)3 of the 1987 Constitution and Rule 135, Section 6 of
the Rules of Court. In our Resolution dated August 24, 2007, we (1) ordered
the Secretary of the Department of National Defense and the Chief of Staff of
the AFP, their agents, representatives, or persons acting in their stead,
including but not limited to the Citizens Armed Forces Geographical Unit
(CAFGU) to submit their Comment; and (2) enjoined them from causing the
arrest of therein petitioners, or otherwise restricting, curtailing, abridging, or
depriving them of their right to life, liberty, and other basic rights as guaranteed
under Article III, Section 14 of the 1987 Constitution.5
While the August 23, 2007 Petition was pending, the Rule on the Writ of
Amparo took effect on October 24, 2007. Forthwith, therein petitioners filed a
Manifestation and Omnibus Motion to Treat Existing Petition as Amparo
Petition, to Admit Supporting Affidavits, and to Grant Interim and Final Amparo
Reliefs. They prayed that: (1) the petition be considered a Petition for the Writ
of Amparo under Sec. 266 of the Amparo Rule; (2) the Court issue the writ
commanding therein respondents to make a verified return within the period
provided by law and containing the specific matter required by law; (3) they be
granted the interim reliefs allowed by the Amparo Rule and all other reliefs
prayed for in the petition but not covered by the Amparo Rule; (4) the Court,
after hearing, render judgment as required in Sec. 187 of the Amparo Rule;
and (5) all other just and equitable reliefs.8
On October 25, 2007, the Court resolved to treat the August 23, 2007 Petition
as a petition under the Amparo Rule and further resolved, viz:
WHEREFORE, let a WRIT OF AMPARO be issued to respondents requiring
them to file with the CA (Court of Appeals) a verified written return within five
(5) working days from service of the writ. We REMAND the petition to the CA
and designate the Division of Associate Justice Lucas P. Bersamin to conduct
the summary hearing on the petition on November 8, 2007 at 2:00 p.m. and
decide the petition in accordance with the Rule on the Writ of Amparo.9
On December 26, 2007, the Court of Appeals rendered a decision in favor of
therein petitioners (herein respondents), the dispositive portion of which reads,
viz:
ACCORDINGLY, the PRIVILEGE OF THE WRIT OF AMPARO is GRANTED.
The respondents SECRETARY OF NATIONAL DEFENSE and AFP CHIEF
OF STAFF are hereby REQUIRED:
1. To furnish to the petitioners and to this Court within five days from notice of
this decision all official and unofficial reports of the investigation undertaken in
connection with their case, except those already on file herein;
2. To confirm in writing the present places of official assignment of M/Sgt
Hilario aka Rollie Castillo and Donald Caigas within five days from notice of
this decision.
3. To cause to be produced to this Court all medical reports, records and
charts, reports of any treatment given or recommended and medicines
prescribed, if any, to the petitioners, to include a list of medical and (sic)
personnel (military and civilian) who attended to them from February 14, 2006
until August 12, 2007 within five days from notice of this decision.
The compliance with this decision shall be made under the signature and oath
of respondent AFP Chief of Staff or his duly authorized deputy, the latter's
authority to be express and made apparent on the face of the sworn
compliance with this directive.
SO ORDERED.10
Hence, this appeal. In resolving this appeal, we first unfurl the facts as alleged
by herein respondents:
Respondent Raymond Manalo recounted that about one or two weeks before
February 14, 2006, several uniformed and armed soldiers and members of the
CAFGU summoned to a meeting all the residents of their barangay in San
Idelfonso, Bulacan. Respondents were not able to attend as they were not
informed of the gathering, but Raymond saw some of the soldiers when he
passed by the barangay hall.11
On February 14, 2006, Raymond was sleeping in their house in Buhol na
Mangga, San Ildefonso, Bulacan. At past noon, several armed soldiers
wearing white shirts, fatigue pants and army boots, entered their house and
roused him. They asked him if he was Bestre, but his mother, Ester Manalo,
replied that he was Raymond, not Bestre. The armed soldier slapped him on
both cheeks and nudged him in the stomach. He was then handcuffed,
brought to the rear of his house, and forced to the ground face down. He was
kicked on the hip, ordered to stand and face up to the light, then forcibly
brought near the road. He told his mother to follow him, but three soldiers
stopped her and told her to stay.12
Among the men who came to take him, Raymond recognized brothers Michael
de la Cruz, Madning de la Cruz, "Puti" de la Cruz, and "Pula" de la Cruz, who
all acted as lookout. They were all members of the CAFGU and residing in
Manuzon, San Ildefonso, Bulacan. He also recognized brothers Randy
Mendoza and Rudy Mendoza, also members of the CAFGU. While he was
being forcibly taken, he also saw outside of his house two barangay
councilors, Pablo Cunanan and Bernardo Lingasa, with some soldiers and
armed men.13
The men forced Raymond into a white L300 van. Once inside, he was
blindfolded. Before being blindfolded, he saw the faces of the soldiers who
took him. Later, in his 18 months of captivity, he learned their names. The one
who drove the van was Rizal Hilario alias Rollie Castillo, whom he estimated
was about 40 years of age or older. The leader of the team who entered his
house and abducted him was "Ganata." He was tall, thin, curly-haired and a bit
old. Another one of his abductors was "George" who was tall, thin, white-
skinned and about 30 years old.14
The van drove off, then came to a stop. A person was brought inside the van
and made to sit beside Raymond. Both of them were beaten up. On the road,
he recognized the voice of the person beside him as his brother Reynaldo's.
The van stopped several times until they finally arrived at a house. Raymond
and Reynaldo were each brought to a different room. With the doors of their
rooms left open, Raymond saw several soldiers continuously hitting his brother
Reynaldo on the head and other parts of his body with the butt of their guns for
about 15 minutes. After which, Reynaldo was brought to his (Raymond's) room
and it was his (Raymond's) turn to be beaten up in the other room. The
soldiers asked him if he was a member of the New People's Army. Each time
he said he was not, he was hit with the butt of their guns. He was questioned
where his comrades were, how many soldiers he had killed, and how many
NPA members he had helped. Each time he answered none, they hit him.15
In the next days, Raymond's interrogators appeared to be high officials as the
soldiers who beat him up would salute them, call them "sir," and treat them
with respect. He was in blindfolds when interrogated by the high officials, but
he saw their faces when they arrived and before the blindfold was put on. He
noticed that the uniform of the high officials was different from those of the
other soldiers. One of those officials was tall and thin, wore white pants, tie,
and leather shoes, instead of combat boots. He spoke in Tagalog and knew
much about his parents and family, and a habeas corpus case filed in
connection with the respondents' abduction.16 While these officials
interrogated him, Raymond was not manhandled. But once they had left, the
soldier guards beat him up. When the guards got drunk, they also manhandled
respondents. During this time, Raymond was fed only at night, usually with
left-over and rotten food.17
On the third week of respondents' detention, two men arrived while Raymond
was sleeping and beat him up. They doused him with urine and hot water, hit
Page 48 of 101
his stomach with a piece of wood, slapped his forehead twice with a .45 pistol,
punched him on the mouth, and burnt some parts of his body with a burning
wood. When he could no longer endure the torture and could hardly breathe,
they stopped. They then subjected Reynaldo to the same ordeal in another
room. Before their torturers left, they warned Raymond that they would come
back the next day and kill him.18
The following night, Raymond attempted to escape. He waited for the guards
to get drunk, then made noise with the chains put on him to see if they were
still awake. When none of them came to check on him, he managed to free his
hand from the chains and jumped through the window. He passed through a
helipad and firing range and stopped near a fishpond where he used stones to
break his chains. After walking through a forested area, he came near a river
and an Iglesia ni Kristo church. He talked to some women who were doing the
laundry, asked where he was and the road to Gapan. He was told that he was
in Fort Magsaysay.19 He reached the highway, but some soldiers spotted him,
forcing him to run away. The soldiers chased him and caught up with him.
They brought him to another place near the entrance of what he saw was Fort
Magsaysay. He was boxed repeatedly, kicked, and hit with chains until his
back bled. They poured gasoline on him. Then a so-called "Mam" or "Madam"
suddenly called, saying that she wanted to see Raymond before he was killed.
The soldiers ceased the torture and he was returned inside Fort Magsaysay
where Reynaldo was detained.20
For some weeks, the respondents had a respite from all the torture. Their
wounds were treated. When the wounds were almost healed, the torture
resumed, particularly when respondents' guards got drunk.21
Raymond recalled that sometime in April until May 2006, he was detained in a
room enclosed by steel bars. He stayed all the time in that small room
measuring 1 x 2 meters, and did everything there, including urinating,
removing his bowels, bathing, eating and sleeping. He counted that eighteen
people22 had been detained in that bartolina, including his brother Reynaldo
and himself.23
For about three and a half months, the respondents were detained in Fort
Magsaysay. They were kept in a small house with two rooms and a kitchen.
One room was made into the bartolina. The house was near the firing range,
helipad and mango trees. At dawn, soldiers marched by their house. They
were also sometimes detained in what he only knew as the "DTU."24
At the DTU, a male doctor came to examine respondents. He checked their
body and eyes, took their urine samples and marked them. When asked how
they were feeling, they replied that they had a hard time urinating, their
stomachs were aching, and they felt other pains in their body. The next day,
two ladies in white arrived. They also examined respondents and gave them
medicines, including orasol, amoxicillin and mefenamic acid. They brought
with them the results of respondents' urine test and advised them to drink
plenty of water and take their medicine. The two ladies returned a few more
times. Thereafter, medicines were sent through the "master" of the DTU,
"Master" Del Rosario alias Carinyoso at Puti. Respondents were kept in the
DTU for about two weeks. While there, he met a soldier named Efren who said
that Gen. Palparan ordered him to monitor and take care of them.25
One day, Rizal Hilario fetched respondents in a Revo vehicle. They, along with
Efren and several other armed men wearing fatigue suits, went to a
detachment in Pinaud, San Ildefonso, Bulacan. Respondents were detained
for one or two weeks in a big two-storey house. Hilario and Efren stayed with
them. While there, Raymond was beaten up by Hilario's men.26
From Pinaud, Hilario and Efren brought respondents to Sapang, San Miguel,
Bulacan on board the Revo. They were detained in a big unfinished house
inside the compound of "Kapitan" for about three months. When they arrived in
Sapang, Gen. Palparan talked to them. They were brought out of the house to
a basketball court in the center of the compound and made to sit. Gen.
Palparan was already waiting, seated. He was about two arms' length away
from respondents. He began by asking if respondents felt well already, to
which Raymond replied in the affirmative. He asked Raymond if he knew him.
Raymond lied that he did not. He then asked Raymond if he would be scared if
he were made to face Gen. Palparan. Raymond responded that he would not
be because he did not believe that Gen. Palparan was an evil man.27
Raymond narrated his conversation with Gen. Palparan in his affidavit, viz:
Tinanong ako ni Gen. Palparan, "Ngayon na kaharap mo na ako, di ka ba
natatakot sa akin?"
Sumagot akong, "Siyempre po, natatakot din..."
Sabi ni Gen. Palparan: "Sige, bibigyan ko kayo ng isang pagkakataon na
mabuhay, basta't sundin n'yo ang lahat ng sasabihin ko... sabihin mo sa
magulang mo - huwag pumunta sa mga rali, sa hearing, sa Karapatan at sa
Human Right dahil niloloko lang kayo. Sabihin sa magulang at lahat sa bahay
na huwag paloko doon. Tulungan kami na kausapin si Bestre na sumuko na
sa gobyerno."28
Respondents agreed to do as Gen. Palparan told them as they felt they could
not do otherwise. At about 3:00 in the morning, Hilario, Efren and the former's
men - the same group that abducted them - brought them to their parents'
house. Raymond was shown to his parents while Reynaldo stayed in the Revo
because he still could not walk. In the presence of Hilario and other soldiers,
Raymond relayed to his parents what Gen. Palparan told him. As they were
afraid, Raymond's parents acceded. Hilario threatened Raymond's parents
that if they continued to join human rights rallies, they would never see their
children again. The respondents were then brought back to Sapang.29
When respondents arrived back in Sapang, Gen. Palparan was about to leave.
He was talking with the four "masters" who were there: Arman, Ganata, Hilario
and Cabalse.30 When Gen. Palparan saw Raymond, he called for him. He
was in a big white vehicle. Raymond stood outside the vehicle as Gen.
Palparan told him to gain back his strength and be healthy and to take the
medicine he left for him and Reynaldo. He said the medicine was expensive at
Php35.00 each, and would make them strong. He also said that they should
prove that they are on the side of the military and warned that they would not
be given another chance.31 During his testimony, Raymond identified Gen.
Palparan by his picture.32
One of the soldiers named Arman made Raymond take the medicine left by
Gen. Palparan. The medicine, named "Alive," was green and yellow. Raymond
and Reynaldo were each given a box of this medicine and instructed to take
one capsule a day. Arman checked if they were getting their dose of the
medicine. The "Alive" made them sleep each time they took it, and they felt
heavy upon waking up.33
After a few days, Hilario arrived again. He took Reynaldo and left Raymond at
Sapang. Arman instructed Raymond that while in Sapang, he should introduce
himself as "Oscar," a military trainee from Sariaya, Quezon, assigned in
Bulacan. While there, he saw again Ganata, one of the men who abducted
him from his house, and got acquainted with other military men and
civilians.34
After about three months in Sapang, Raymond was brought to Camp Tecson
under the 24th Infantry Battalion. He was fetched by three unidentified men in
a big white vehicle. Efren went with them. Raymond was then blindfolded.
After a 30-minute ride, his blindfold was removed. Chains were put on him and
he was kept in the barracks.35
The next day, Raymond's chains were removed and he was ordered to clean
outside the barracks. It was then he learned that he was in a detachment of
the Rangers. There were many soldiers, hundreds of them were training. He
was also ordered to clean inside the barracks. In one of the rooms therein, he
met Sherlyn Cadapan from Laguna. She told him that she was a student of the
University of the Philippines and was abducted in Hagonoy, Bulacan. She
confided that she had been subjected to severe torture and raped. She was
crying and longing to go home and be with her parents. During the day, her
chains were removed and she was made to do the laundry.36
After a week, Reynaldo was also brought to Camp Tecson. Two days from his
arrival, two other captives, Karen Empeño and Manuel Merino, arrived. Karen
and Manuel were put in the room with "Allan" whose name they later came to
know as Donald Caigas, called "master" or "commander" by his men in the
24th Infantry Battalion. Raymond and Reynaldo were put in the adjoining
room. At times, Raymond and Reynaldo were threatened, and Reynaldo was
beaten up. In the daytime, their chains were removed, but were put back on at
night. They were threatened that if they escaped, their families would all be
killed.37
On or about October 6, 2006, Hilario arrived in Camp Tecson. He told the
detainees that they should be thankful they were still alive and should continue
along their "renewed life." Before the hearing of November 6 or 8, 2006,
respondents were brought to their parents to instruct them not to attend the
hearing. However, their parents had already left for Manila. Respondents were
brought back to Camp Tecson. They stayed in that camp from September
2006 to November 2006, and Raymond was instructed to continue using the
name "Oscar" and holding himself out as a military trainee. He got acquainted
with soldiers of the 24th Infantry Battalion whose names and descriptions he
stated in his affidavit.38
On November 22, 2006, respondents, along with Sherlyn, Karen, and Manuel,
were transferred to a camp of the 24th Infantry Battalion in Limay, Bataan.
There were many huts in the camp. They stayed in that camp until May 8,
2007. Some soldiers of the battalion stayed with them. While there, battalion
soldiers whom Raymond knew as "Mar" and "Billy" beat him up and hit him in
the stomach with their guns. Sherlyn and Karen also suffered enormous
torture in the camp. They were all made to clean, cook, and help in raising
livestock.39
Raymond recalled that when "Operation Lubog" was launched, Caigas and
some other soldiers brought him and Manuel with them to take and kill all
sympathizers of the NPA. They were brought to Barangay Bayan-bayanan,
Bataan where he witnessed the killing of an old man doing kaingin. The
soldiers said he was killed because he had a son who was a member of the
NPA and he coddled NPA members in his house.40 Another time, in another
"Operation Lubog," Raymond was brought to Barangay Orion in a house
where NPA men stayed. When they arrived, only the old man of the house
who was sick was there. They spared him and killed only his son right before
Raymond's eyes.41
From Limay, Raymond, Reynaldo, Sherlyn, Karen, and Manuel were
transferred to Zambales, in a safehouse near the sea. Caigas and some of his
men stayed with them. A retired army soldier was in charge of the house. Like
in Limay, the five detainees were made to do errands and chores. They stayed
in Zambales from May 8 or 9, 2007 until June 2007.42
In June 2007, Caigas brought the five back to the camp in Limay. Raymond,
Reynaldo, and Manuel were tasked to bring food to detainees brought to the
Page 49 of 101
camp. Raymond narrated what he witnessed and experienced in the camp,
viz:
Isang gabi, sinabihan kami ni Donald (Caigas) na matulog na kami. Nakita ko
si Donald na inaayos ang kanyang baril, at nilagyan ng silenser. Sabi ni
Donald na kung mayroon man kaming makita o marinig, walang nangyari.
Kinaumagahan, nakita naming ang bangkay ng isa sa mga bihag na dinala sa
kampo. Mayroong binuhos sa kanyang katawan at ito'y sinunog. Masansang
ang amoy.
Makaraan ang isang lingo, dalawang bangkay and ibinaba ng mga
unipormadong sundalo mula sa 6 x 6 na trak at dinala sa loob ng kampo. May
naiwang mga bakas ng dugo habang hinihila nila ang mga bangkay. Naamoy
ko iyon nang nililinis ang bakas.
Makalipas ang isa o dalawang lingo, may dinukot sila na dalawang Ita. Itinali
sila sa labas ng kubo, piniringan, ikinadena at labis na binugbog. Nakita kong
nakatakas ang isa sa kanila at binaril siya ng sundalo ngunit hindi siya
tinamaan. Iyong gabi nakita kong pinatay nila iyong isang Ita malapit sa Post
3; sinilaban ang bangkay at ibinaon ito.
Pagkalipas ng halos 1 buwan, 2 pang bangkay ang dinala sa kampo. Ibinaba
ang mga bangkay mula sa pick up trak, dinala ang mga bangkay sa labas ng
bakod. Kinaumagahan nakita kong mayroong sinilaban, at
napakamasangsang ang amoy.
May nakilala rin akong 1 retiradong koronel at 1 kasama niya. Pinakain ko sila.
Sabi nila sa akin na dinukot sila sa Bataan. Iyong gabi, inilabas sila at hindi ko
na sila nakita.
xxx xxx xxx
Ikinadena kami ng 3 araw. Sa ikatlong araw, nilabas ni Lat si Manuel dahil
kakausapin daw siya ni Gen. Palparan. Nakapiring si Manuel, wala siyang
suot pang-itaas, pinosasan. Nilakasan ng mga sundalo ang tunog na galing sa
istiryo ng sasakyan. Di nagtagal, narinig ko ang hiyaw o ungol ni Manuel.
Sumilip ako sa isang haligi ng kamalig at nakita kong sinisilaban si Manuel.
Kinaumagahan, naka-kadena pa kami. Tinanggal ang mga kadena mga 3 o 4
na araw pagkalipas. Sinabi sa amin na kaya kami nakakadena ay dahil
pinagdedesisyunan pa ng mga sundalo kung papatayin kami o hindi.
Tinanggal ang aming kadena. Kinausap kami ni Donald. Tinanong kami kung
ano ang sabi ni Manuel sa amin. Sabi ni Donald huwag na raw naming
hanapin ang dalawang babae at si Manuel, dahil magkakasama na yung tatlo.
Sabi pa ni Donald na kami ni Reynaldo ay magbagong buhay at ituloy namin
ni Reynaldo ang trabaho. Sa gabi, hindi na kami kinakadena.43
On or about June 13, 2007, Raymond and Reynaldo were brought to
Pangasinan, ostensibly to raise poultry for Donald (Caigas). Caigas told
respondents to also farm his land, in exchange for which, he would take care
of the food of their family. They were also told that they could farm a small plot
adjoining his land and sell their produce. They were no longer put in chains
and were instructed to use the names Rommel (for Raymond) and Rod (for
Reynaldo) and represent themselves as cousins from Rizal, Laguna.44
Respondents started to plan their escape. They could see the highway from
where they stayed. They helped farm adjoining lands for which they were paid
Php200.00 or Php400.00 and they saved their earnings. When they had saved
Php1,000.00 each, Raymond asked a neighbor how he could get a cellular
phone as he wanted to exchange text messages with a girl who lived nearby.
A phone was pawned to him, but he kept it first and did not use it. They earned
some more until they had saved Php1,400.00 between them.
There were four houses in the compound. Raymond and Reynaldo were
housed in one of them while their guards lived in the other three. Caigas
entrusted respondents to Nonong, the head of the guards. Respondents'
house did not have electricity. They used a lamp. There was no television, but
they had a radio. In the evening of August 13, 2007, Nonong and his cohorts
had a drinking session. At about 1:00 a.m., Raymond turned up the volume of
the radio. When none of the guards awoke and took notice, Raymond and
Reynaldo proceeded towards the highway, leaving behind their sleeping
guards and barking dogs. They boarded a bus bound for Manila and were thus
freed from captivity.45
Reynaldo also executed an affidavit affirming the contents of Raymond's
affidavit insofar as they related to matters they witnessed together. Reynaldo
added that when they were taken from their house on February 14, 2006, he
saw the faces of his abductors before he was blindfolded with his shirt. He
also named the soldiers he got acquainted with in the 18 months he was
detained. When Raymond attempted to escape from Fort Magsaysay,
Reynaldo was severely beaten up and told that they were indeed members of
the NPA because Raymond escaped. With a .45 caliber pistol, Reynaldo was
hit on the back and punched in the face until he could no longer bear the pain.
At one point during their detention, when Raymond and Reynaldo were in
Sapang, Reynaldo was separated from Raymond and brought to Pinaud by
Rizal Hilario. He was kept in the house of Kapitan, a friend of Hilario, in a
mountainous area. He was instructed to use the name "Rodel" and to
represent himself as a military trainee from Meycauayan, Bulacan. Sometimes,
Hilario brought along Reynaldo in his trips. One time, he was brought to a
market in San Jose, del Monte, Bulacan and made to wait in the vehicle while
Hilario was buying. He was also brought to Tondo, Manila where Hilario
delivered boxes of "Alive" in different houses. In these trips, Hilario drove a
black and red vehicle. Reynaldo was blindfolded while still in Bulacan, but
allowed to remove the blindfold once outside the province. In one of their trips,
they passed by Fort Magsaysay and Camp Tecson where Reynaldo saw the
sign board, "Welcome to Camp Tecson."46
Dr. Benito Molino, M.D., corroborated the accounts of respondents Raymond
and Reynaldo Manalo. Dr. Molino specialized in forensic medicine and was
connected with the Medical Action Group, an organization handling cases of
human rights violations, particularly cases where torture was involved. He was
requested by an NGO to conduct medical examinations on the respondents
after their escape. He first asked them about their ordeal, then proceeded with
the physical examination. His findings showed that the scars borne by
respondents were consistent with their account of physical injuries inflicted
upon them. The examination was conducted on August 15, 2007, two days
after respondents' escape, and the results thereof were reduced into writing.
Dr. Molino took photographs of the scars. He testified that he followed the
Istanbul Protocol in conducting the examination.47
Petitioners dispute respondents' account of their alleged abduction and torture.
In compliance with the October 25, 2007 Resolution of the Court, they filed a
Return of the Writ of Amparo admitting the abduction but denying any
involvement therein, viz:
13. Petitioners Raymond and Reynaldo Manalo were not at any time arrested,
forcibly abducted, detained, held incommunicado, disappeared or under the
custody by the military. This is a settled issue laid to rest in the habeas corpus
case filed in their behalf by petitioners' parents before the Court of Appeals in
C.A.-G.R. SP No. 94431 against M/Sgt. Rizal Hilario aka Rollie Castillo, as
head of the 24th Infantry Battalion; Maj. Gen. Jovito Palparan, as Commander
of the 7th Infantry Division in Luzon; Lt. Gen. Hermogenes Esperon, in his
capacity as the Commanding General of the Philippine Army, and members of
the Citizens Armed Forces Geographical Unit (CAFGU), namely: Michael dela
Cruz, Puti dela Cruz, Madning dela Cruz, Pula dela Cruz, Randy Mendoza and
Rudy Mendoza. The respondents therein submitted a return of the writ... On
July 4, 2006, the Court of Appeals dropped as party respondents Lt. Gen.
Hermogenes C. Esperon, Jr., then Commanding General of the Philippine
Army, and on September 19, 2006, Maj. (sic) Jovito S. Palparan, then
Commanding General, 7th Infantry Division, Philippine Army, stationed at Fort
Magsaysay, Palayan City, Nueva Ecija, upon a finding that no evidence was
introduced to establish their personal involvement in the taking of the Manalo
brothers. In a Decision dated June 27, 2007..., it exonerated M/Sgt. Rizal
Hilario aka Rollie Castillo for lack of evidence establishing his involvement in
any capacity in the disappearance of the Manalo brothers, although it held that
the remaining respondents were illegally detaining the Manalo brothers and
ordered them to release the latter.48
Attached to the Return of the Writ was the affidavit of therein respondent
(herein petitioner) Secretary of National Defense, which attested that he
assumed office only on August 8, 2007 and was thus unaware of the Manalo
brothers' alleged abduction. He also claimed that:
7. The Secretary of National Defense does not engage in actual military
directional operations, neither does he undertake command directions of the
AFP units in the field, nor in any way micromanage the AFP operations. The
principal responsibility of the Secretary of National Defense is focused in
providing strategic policy direction to the Department (bureaus and agencies)
including the Armed Forces of the Philippines;
8. In connection with the Writ of Amparo issued by the Honorable Supreme
Court in this case, I have directed the Chief of Staff, AFP to institute immediate
action in compliance with Section 9(d) of the Amparo Rule and to submit
report of such compliance... Likewise, in a Memorandum Directive also dated
October 31, 2007, I have issued a policy directive addressed to the Chief of
Staff, AFP that the AFP should adopt the following rules of action in the event
the Writ of Amparo is issued by a competent court against any members of the
AFP:
(1) to verify the identity of the aggrieved party;
(2) to recover and preserve evidence related to the death or disappearance of
the person identified in the petition which may aid in the prosecution of the
person or persons responsible;
(3) to identify witnesses and obtain statements from them concerning the
death or disappearance;
(4) to determine the cause, manner, location and time of death or
disappearance as well as any pattern or practice that may have brought about
the death or disappearance;
(5) to identify and apprehend the person or persons involved in the death or
disappearance; and
(6) to bring the suspected offenders before a competent court.49
Therein respondent AFP Chief of Staff also submitted his own affidavit,
attached to the Return of the Writ, attesting that he received the above
directive of therein respondent Secretary of National Defense and that acting
on this directive, he did the following:
3.1. As currently designated Chief of Staff, Armed Forces of the Philippines
(AFP), I have caused to be issued directive to the units of the AFP for the
Page 50 of 101
purpose of establishing the circumstances of the alleged disappearance and
the recent reappearance of the petitioners.
3.2. I have caused the immediate investigation and submission of the result
thereof to Higher headquarters and/or direct the immediate conduct of the
investigation on the matter by the concerned unit/s, dispatching Radio
Message on November 05, 2007, addressed to the Commanding General,
Philippine Army (Info: COMNOLCOM, CG, 71D PA and CO 24 IB PA). A Copy
of the Radio Message is attached as ANNEX "3" of this Affidavit.
3.3. We undertake to provide result of the investigations conducted or to be
conducted by the concerned unit relative to the circumstances of the alleged
disappearance of the persons in whose favor the Writ of Amparo has been
sought for as soon as the same has been furnished Higher headquarters.
3.4. A parallel investigation has been directed to the same units relative to
another Petition for the Writ of Amparo (G.R. No. 179994) filed at the instance
of relatives of a certain Cadapan and Empeño pending before the Supreme
Court.
3.5. On the part of the Armed Forces, this respondent will exert earnest efforts
to establish the surrounding circumstances of the disappearances of the
petitioners and to bring those responsible, including any military personnel if
shown to have participated or had complicity in the commission of the
complained acts, to the bar of justice, when warranted by the findings and the
competent evidence that may be gathered in the process.50
Also attached to the Return of the Writ was the affidavit of Lt. Col. Felipe
Anontado, INF (GSC) PA, earlier filed in G.R. No. 179994, another Amparo
case in this Court, involving Cadapan, Empeño and Merino, which averred
among others, viz:
10) Upon reading the allegations in the Petition implicating the 24th Infantry
Batallion detachment as detention area, I immediately went to the 24th IB
detachment in Limay, Bataan and found no untoward incidents in the area nor
any detainees by the name of Sherlyn Cadapan, Karen Empeño and Manuel
Merino being held captive;
11) There was neither any reports of any death of Manuel Merino in the 24th
IB in Limay, Bataan;
12) After going to the 24th IB in Limay, Bataan, we made further inquiries with
the Philippine National Police, Limay, Bataan regarding the alleged detentions
or deaths and were informed that none was reported to their good office;
13) I also directed Company Commander 1st Lt. Romeo Publico to inquire into
the alleged beachhouse in Iba, Zambales also alleged to be a detention place
where Sherlyn Cadapan, Karen Empeño and Manuel Merino were detained.
As per the inquiry, however, no such beachhouse was used as a detention
place found to have been used by armed men to detain Cadapan, Empeño
and Merino.51
It was explained in the Return of the Writ that for lack of sufficient time, the
affidavits of Maj. Gen Jovito S. Palparan (Ret.), M/Sgt. Rizal Hilario aka Rollie
Castillo, and other persons implicated by therein petitioners could not be
secured in time for the submission of the Return and would be subsequently
submitted.52
Herein petitioners presented a lone witness in the summary hearings, Lt. Col.
Ruben U. Jimenez, Provost Marshall, 7th Infantry Division, Philippine Army,
based in Fort Magsaysay, Palayan City, Nueva Ecija. The territorial jurisdiction
of this Division covers Nueva Ecija, Aurora, Bataan, Bulacan, Pampanga,
Tarlac and a portion of Pangasinan.53 The 24th Infantry Battalion is part of the
7th Infantry Division.54
On May 26, 2006, Lt. Col. Jimenez was directed by the Commanding General
of the 7th Infantry Division, Maj. Gen. Jovito Palaran,55 through his Assistant
Chief of Staff,56 to investigate the alleged abduction of the respondents by
CAFGU auxiliaries under his unit, namely: CAA Michael de la Cruz; CAA
Roman de la Cruz, aka Puti; CAA Maximo de la Cruz, aka Pula; CAA Randy
Mendoza; ex-CAA Marcelo de la Cruz aka Madning; and a civilian named
Rudy Mendoza. He was directed to determine: (1) the veracity of the
abduction of Raymond and Reynaldo Manalo by the alleged elements of the
CAFGU auxiliaries; and (2) the administrative liability of said auxiliaries, if
any.57 Jimenez testified that this particular investigation was initiated not by a
complaint as was the usual procedure, but because the Commanding General
saw news about the abduction of the Manalo brothers on the television, and
he was concerned about what was happening within his territorial
jurisdiction.58
Jimenez summoned all six implicated persons for the purpose of having them
execute sworn statements and conducting an investigation on May 29,
2006.59 The investigation started at 8:00 in the morning and finished at 10:00
in the evening.60 The investigating officer, Technical Sgt. Eduardo Lingad,
took the individual sworn statements of all six persons on that day. There were
no other sworn statements taken, not even of the Manalo family, nor were
there other witnesses summoned and investigated61 as according to Jimenez,
the directive to him was only to investigate the six persons.62
Jimenez was beside Lingad when the latter took the statements.63 The six
persons were not known to Jimenez as it was in fact his first time to meet
them.64 During the entire time that he was beside Lingad, a subordinate of his
in the Office of the Provost Marshall, Jimenez did not propound a single
question to the six persons.65

Jimenez testified that all six statements were taken on May 29, 2006, but
Marcelo Mendoza and Rudy Mendoza had to come back the next day to sign
their statements as the printing of their statements was interrupted by a power
failure. Jimenez testified that the two signed on May 30, 2006, but the jurats of
their statements indicated that they were signed on May 29, 2006.66 When
the Sworn Statements were turned over to Jimenez, he personally wrote his
investigation report. He began writing it in the afternoon of May 30, 2006 and
finished it on June 1, 2006.67 He then gave his report to the Office of the Chief
of Personnel.68
As petitioners largely rely on Jimenez's Investigation Report dated June 1,
2006 for their evidence, the report is herein substantially quoted:
III. BACKGROUND OF THE CASE
4. This pertains to the abduction of RAYMOND MANALO and REYNALDO
MANALO who were forcibly taken from their respective homes in Brgy. Buhol
na Mangga, San Ildefonso, Bulacan on 14 February 2006 by unidentified
armed men and thereafter were forcibly disappeared. After the said incident,
relatives of the victims filed a case for Abduction in the civil court against the
herein suspects: Michael dela Cruz, Madning dela Cruz, Puti Dela Cruz, Pula
Dela Cruz, Randy Mendoza and Rudy Mendoza as alleged members of the
Citizen Armed Forces Geographical Unit (CAFGU).
a) Sworn statement of CAA Maximo F. dela Cruz, aka Pula dated 29 May
2006 in (Exhibit "B") states that he was at Sitio Mozon, Brgy. Bohol na
Mangga, San Ildefonso, Bulacan doing the concrete building of a church
located nearby his residence, together with some neighbor thereat. He claims
that on 15 February 2006, he was being informed by Brgy. Kagawad Pablo
Umayan about the abduction of the brothers Raymond and Reynaldo Manalo.
As to the allegation that he was one of the suspects, he claims that they only
implicated him because he was a CAFGU and that they claimed that those
who abducted the Manalo brothers are members of the Military and CAFGU.
Subject vehemently denied any participation or involvement on the abduction
of said victims.
b) Sworn statement of CAA Roman dela Cruz y Faustino Aka Puti dtd 29 May
2006 in (Exhibit "C") states that he is a resident of Sitio Muzon, Brgy. Buhol na
Mangga, San Ildefonso, Bulacan and a CAA member based at Biak na Bato
Detachment, San Miguel, Bulacan. He claims that Raymond and Reynaldo
Manalo being his neighbors are active members/sympathizers of the
CPP/NPA and he also knows their elder Rolando Manalo @ KA BESTRE of
being an NPA Leader operating in their province. That at the time of the
alleged abduction of the two (2) brothers and for accusing him to be one of the
suspects, he claims that on February 14, 2006, he was one of those working
at the concrete chapel being constructed nearby his residence. He claims
further that he just came only to know about the incident on other day (15 Feb
06) when he was being informed by Kagawad Pablo Kunanan. That subject
CAA vehemently denied any participation about the incident and claimed that
they only implicated him because he is a member of the CAFGU.
c) Sworn Statement of CAA Randy Mendoza y Lingas dated 29 May 2006 in
(Exhibit "O") states that he is a resident of Brgy. Buhol na Mangga, San
Ildefonso, Bulacan and a member of CAFGU based at Biak na Bato
Detachment. That being a neighbor, he was very much aware about the
background of the two (2) brothers Raymond and Reynaldo as active
supporters of the CPP NPA in their Brgy. and he also knew their elder brother
"KUMANDER BESTRE" TN: Rolando Manalo. Being one of the accused, he
claims that on 14 February 2006, he was at Brgy. Magmarate, San Miguel,
Bulacan in the house of his aunt and he learned only about the incident when
he arrived home in their place. He claims further that the only reason why they
implicated him was due to the fact that his mother has filed a criminal charge
against their brother Rolando Manalo @ KA BESTRE who is an NPA
Commander who killed his father and for that reason they implicated him in
support of their brother. Subject CAA vehemently denied any involvement on
the abduction of said Manalo brothers.
d) Sworn Statement of Rudy Mendoza y Lingasa dated May 29, 2006 in
(Exhibit "E") states that he is a resident of Brgy. Marungko, Angat, Bulacan.
He claims that Raymond and Reynaldo Manalo are familiar to him being his
barriomate when he was still unmarried and he knew them since childhood.
Being one of the accused, he claims that on 14 February 2006, he was at his
residence in Brgy. Marungko, Angat, Bulacan. He claims that he was being
informed only about the incident lately and he was not aware of any reason
why the two (2) brothers were being abducted by alleged members of the
military and CAFGU. The only reason he knows why they implicated him was
because there are those people who are angry with their family particularly
victims of summary execution (killing) done by their brother @ KA Bestre
Rolando Manalo who is an NPA leader. He claims further that it was their
brother @ KA BESTRE who killed his father and he was living witness to that
incident. Subject civilian vehemently denied any involvement on the abduction
of the Manalo brothers.
e) Sworn statement of Ex-CAA Marcelo dala Cruz dated 29 May 2006 in
(Exhibit "F") states that he is a resident of Sitio Muzon, Brgy. Buhol na
Mangga, San Ildefonso, Bulacan, a farmer and a former CAA based at Biak na
Bato, San Miguel, Bulacan. He claims that Raymond and Reynaldo Manalo
are familiar to him being their barrio mate. He claims further that they are
active supporters of CPP/NPA and that their brother Rolando Manalo @ KA
BESTRE is an NPA leader. Being one of the accused, he claims that on 14
February 2006, he was in his residence at Sitio Muzon, Brgy. Buhol na
Mangga, San Ildefonso, Bulacan. That he vehemently denied any participation
Page 51 of 101
of the alleged abduction of the two (2) brothers and learned only about the
incident when rumors reached him by his barrio mates. He claims that his
implication is merely fabricated because of his relationship to Roman and
Maximo who are his brothers.
f) Sworn statement of Michael dela Cruz y Faustino dated 29 May 2006 in
(Exhibit "G") states that he is a resident of Sitio Muzon, Brgy. Buhol na
Mangga, San Ildefonso, Bulacan, the Chief of Brgy. Tanod and a CAFGU
member based at Biak na Bato Detachment, San Miguel, Bulacan. He claims
that he knew very well the brothers Raymond and Reynaldo Manalo in their
barangay for having been the Tanod Chief for twenty (20) years. He alleged
further that they are active supporters or sympathizers of the CPP/NPA and
whose elder brother Rolando Manalo @ KA BESTRE is an NPA leader
operating within the area. Being one of the accused, he claims that on 14 Feb
2006 he was helping in the construction of their concrete chapel in their place
and he learned only about the incident which is the abduction of Raymond and
Reynaldo Manalo when one of the Brgy. Kagawad in the person of Pablo
Cunanan informed him about the matter. He claims further that he is truly
innocent of the allegation against him as being one of the abductors and he
considers everything fabricated in order to destroy his name that remains loyal
to his service to the government as a CAA member.
IV. DISCUSSION
5. Based on the foregoing statements of respondents in this particular case,
the proof of linking them to the alleged abduction and disappearance of
Raymond and Reynaldo Manalo that transpired on 14 February 2006 at Sitio
Muzon, Brgy. Buhol na Mangga, San Ildefonso, Bulacan, is unsubstantiated.
Their alleged involvement theretofore to that incident is considered doubtful,
hence, no basis to indict them as charged in this investigation.
Though there are previous grudges between each families (sic) in the past to
quote: the killing of the father of Randy and Rudy Mendoza by @ KA BESTRE
TN: Rolando Manalo, this will not suffice to establish a fact that they were the
ones who did the abduction as a form of revenge. As it was also stated in the
testimony of other accused claiming that the Manalos are active
sympathizers/supporters of the CPP/NPA, this would not also mean, however,
that in the first place, they were in connivance with the abductors. Being their
neighbors and as members of CAFGU's, they ought to be vigilant in protecting
their village from any intervention by the leftist group, hence inside their
village, they were fully aware of the activities of Raymond and Reynaldo
Manalo in so far as their connection with the CPP/NPA is concerned.
V. CONCLUSION
6. Premises considered surrounding this case shows that the alleged charges
of abduction committed by the above named respondents has not been
established in this investigation. Hence, it lacks merit to indict them for any
administrative punishment and/or criminal liability. It is therefore concluded
that they are innocent of the charge.
VI. RECOMMENDATIONS
7. That CAAs Michael F. dela Cruz, Maximo F. Dela Cruz, Roman dela Cruz,
Randy Mendoza, and two (2) civilians Maximo F. Dela Cruz and Rudy L.
Mendoza be exonerated from the case.
8. Upon approval, this case can be dropped and closed.69
In this appeal under Rule 45, petitioners question the appellate court's
assessment of the foregoing evidence and assail the December 26, 2007
Decision on the following grounds, viz:
I.
THE COURT OF APPEALS SERIOUSLY AND GRIEVOUSLY ERRED IN
BELIEVING AND GIVING FULL FAITH AND CREDIT TO THE INCREDIBLE,
UNCORROBORATED, CONTRADICTED, AND OBVIOUSLY SCRIPTED,
REHEARSED AND SELF-SERVING AFFIDAVIT/TESTIMONY OF HEREIN
RESPONDENT RAYMOND MANALO.
II.
THE COURT OF APPEALS SERIOUSLY AND GRIEVOUSLY ERRED IN
REQUIRING RESPONDENTS (HEREIN PETITIONERS) TO: (A) FURNISH
TO THE MANALO BROTHER(S) AND TO THE COURT OF APPEALS ALL
OFFICIAL AND UNOFFICIAL REPORTS OF THE INVESTIGATION
UNDERTAKEN IN CONNECTION WITH THEIR CASE, EXCEPT THOSE
ALREADY IN FILE WITH THE COURT; (B) CONFIRM IN WRITING THE
PRESENT PLACES OF OFFICIAL ASSIGNMENT OF M/SGT. HILARIO aka
ROLLIE CASTILLO AND DONALD CAIGAS; AND (C) CAUSE TO BE
PRODUCED TO THE COURT OF APPEALS ALL MEDICAL REPORTS,
RECORDS AND CHARTS, AND REPORTS OF ANY TREATMENT GIVEN
OR RECOMMENDED AND MEDICINES PRESCRIBED, IF ANY, TO THE
MANALO BROTHERS, TO INCLUDE A LIST OF MEDICAL PERSONNEL
(MILITARY AND CIVILIAN) WHO ATTENDED TO THEM FROM FEBRUARY
14, 2006 UNTIL AUGUST 12, 2007.70
The case at bar is the first decision on the application of the Rule on the Writ
of Amparo (Amparo Rule). Let us hearken to its beginning.
The adoption of the Amparo Rule surfaced as a recurring proposition in the
recommendations that resulted from a two-day National Consultative Summit
on Extrajudicial Killings and Enforced Disappearances sponsored by the Court
on July 16-17, 2007. The Summit was "envisioned to provide a broad and fact-
based perspective on the issue of extrajudicial killings and enforced
disappearances,"71 hence "representatives from all sides of the political and
social spectrum, as well as all the stakeholders in the justice system"72
participated in mapping out ways to resolve the crisis.
On October 24, 2007, the Court promulgated the Amparo Rule "in light of the
prevalence of extralegal killing and enforced disappearances."73 It was an
exercise for the first time of the Court's expanded power to promulgate rules to
protect our people's constitutional rights, which made its maiden appearance
in the 1987 Constitution in response to the Filipino experience of the martial
law regime.74 As the Amparo Rule was intended to address the intractable
problem of "extralegal killings" and "enforced disappearances," its coverage, in
its present form, is confined to these two instances or to threats thereof.
"Extralegal killings" are "killings committed without due process of law, i.e.,
without legal safeguards or judicial proceedings."75 On the other hand,
"enforced disappearances" are "attended by the following characteristics: an
arrest, detention or abduction of a person by a government official or
organized groups or private individuals acting with the direct or indirect
acquiescence of the government; the refusal of the State to disclose the fate
or whereabouts of the person concerned or a refusal to acknowledge the
deprivation of liberty which places such persons outside the protection of
law."76
The writ of Amparo originated in Mexico. "Amparo" literally means "protection"
in Spanish.77 In 1837, de Tocqueville's Democracy in America became
available in Mexico and stirred great interest. Its description of the practice of
judicial review in the U.S. appealed to many Mexican jurists.78 One of them,
Manuel Crescencio Rejón, drafted a constitutional provision for his native
state, Yucatan,79 which granted judges the power to protect all persons in the
enjoyment of their constitutional and legal rights. This idea was incorporated
into the national constitution in 1847, viz:
The federal courts shall protect any inhabitant of the Republic in the exercise
and preservation of those rights granted to him by this Constitution and by
laws enacted pursuant hereto, against attacks by the Legislative and
Executive powers of the federal or state governments, limiting themselves to
granting protection in the specific case in litigation, making no general
declaration concerning the statute or regulation that motivated the violation.80
Since then, the protection has been an important part of Mexican
constitutionalism.81 If, after hearing, the judge determines that a constitutional
right of the petitioner is being violated, he orders the official, or the official's
superiors, to cease the violation and to take the necessary measures to
restore the petitioner to the full enjoyment of the right in question. Amparo thus
combines the principles of judicial review derived from the U.S. with the
limitations on judicial power characteristic of the civil law tradition which
prevails in Mexico. It enables courts to enforce the constitution by protecting
individual rights in particular cases, but prevents them from using this power to
make law for the entire nation.82
The writ of Amparo then spread throughout the Western Hemisphere,
gradually evolving into various forms, in response to the particular needs of
each country.83 It became, in the words of a justice of the Mexican Federal
Supreme Court, one piece of Mexico's self-attributed "task of conveying to the
world's legal heritage that institution which, as a shield of human dignity, her
own painful history conceived."84 What began as a protection against acts or
omissions of public authorities in violation of constitutional rights later evolved
for several purposes: (1) Amparo libertad for the protection of personal
freedom, equivalent to the habeas corpus writ; (2) Amparo contra leyes for the
judicial review of the constitutionality of statutes; (3) Amparo casacion for the
judicial review of the constitutionality and legality of a judicial decision; (4)
Amparo administrativo for the judicial review of administrative actions; and (5)
Amparo agrario for the protection of peasants' rights derived from the agrarian
reform process.85
In Latin American countries, except Cuba, the writ of Amparo has been
constitutionally adopted to protect against human rights abuses especially
committed in countries under military juntas. In general, these countries
adopted an all-encompassing writ to protect the whole gamut of constitutional
rights, including socio-economic rights.86 Other countries like Colombia, Chile,
Germany and Spain, however, have chosen to limit the protection of the writ of
Amparo only to some constitutional guarantees or fundamental rights.87
In the Philippines, while the 1987 Constitution does not explicitly provide for
the writ of Amparo, several of the above Amparo protections are guaranteed
by our charter. The second paragraph of Article VIII, Section 1 of the 1987
Constitution, the Grave Abuse Clause, provides for the judicial power "to
determine whether or not there has been a grave abuse of discretion
amounting to lack or excess of jurisdiction on the part of any branch or
instrumentality of the Government." The Clause accords a similar general
protection to human rights extended by the Amparo contra leyes, Amparo
casacion, and Amparo administrativo. Amparo libertad is comparable to the
remedy of habeas corpus found in several provisions of the 1987
Constitution.88 The Clause is an offspring of the U.S. common law tradition of
judicial review, which finds its roots in the 1803 case of Marbury v. Madison.89
While constitutional rights can be protected under the Grave Abuse Clause
through remedies of injunction or prohibition under Rule 65 of the Rules of
Court and a petition for habeas corpus under Rule 102,90 these remedies may
not be adequate to address the pestering problem of extralegal killings and
enforced disappearances. However, with the swiftness required to resolve a
Page 52 of 101
petition for a writ of Amparo through summary proceedings and the availability
of appropriate interim and permanent reliefs under the Amparo Rule, this
hybrid writ of the common law and civil law traditions - borne out of the Latin
American and Philippine experience of human rights abuses - offers a better
remedy to extralegal killings and enforced disappearances and threats thereof.
The remedy provides rapid judicial relief as it partakes of a summary
proceeding that requires only substantial evidence to make the appropriate
reliefs available to the petitioner; it is not an action to determine criminal guilt
requiring proof beyond reasonable doubt, or liability for damages requiring
preponderance of evidence, or administrative responsibility requiring
substantial evidence that will require full and exhaustive proceedings.91
The writ of Amparo serves both preventive and curative roles in addressing
the problem of extralegal killings and enforced disappearances. It is preventive
in that it breaks the expectation of impunity in the commission of these
offenses; it is curative in that it facilitates the subsequent punishment of
perpetrators as it will inevitably yield leads to subsequent investigation and
action. In the long run, the goal of both the preventive and curative roles is to
deter the further commission of extralegal killings and enforced
disappearances.
In the case at bar, respondents initially filed an action for "Prohibition,
Injunction, and Temporary Restraining Order"92 to stop petitioners and/or their
officers and agents from depriving the respondents of their right to liberty and
other basic rights on August 23, 2007,93 prior to the promulgation of the
Amparo Rule. They also sought ancillary remedies including Protective
Custody Orders, Appointment of Commissioner, Inspection and Access Orders
and other legal and equitable remedies under Article VIII, Section 5(5) of the
1987 Constitution and Rule 135, Section 6 of the Rules of Court. When the
Amparo Rule came into effect on October 24, 2007, they moved to have their
petition treated as an Amparo petition as it would be more effective and
suitable to the circumstances of the Manalo brothers' enforced disappearance.
The Court granted their motion.
With this backdrop, we now come to the arguments of the petitioner.
Petitioners' first argument in disputing the Decision of the Court of Appeals
states, viz:
The Court of Appeals seriously and grievously erred in believing and giving full
faith and credit to the incredible uncorroborated, contradicted, and obviously
scripted, rehearsed and self-serving affidavit/testimony of herein respondent
Raymond Manalo.94
In delving into the veracity of the evidence, we need to mine and refine the ore
of petitioners' cause of action, to determine whether the evidence presented is
metal-strong to satisfy the degree of proof required.
Section 1 of the Rule on the Writ of Amparo provides for the following causes
of action, viz:
Section 1. Petition. - The petition for a writ of Amparo is a remedy available to
any person whose right to life, liberty and security is violated or threatened
with violation by an unlawful act or omission of a public official or employee, or
of a private individual or entity.
The writ shall cover extralegal killings and enforced disappearances or threats
thereof. (emphasis supplied)
Sections 17 and 18, on the other hand, provide for the degree of proof
required, viz:
Sec. 17. Burden of Proof and Standard of Diligence Required. - The parties
shall establish their claims by substantial evidence.
xxx xxx xxx
Sec. 18. Judgment. - ... If the allegations in the petition are proven by
substantial evidence, the court shall grant the privilege of the writ and such
reliefs as may be proper and appropriate; otherwise, the privilege shall be
denied. (emphases supplied)
Substantial evidence has been defined as such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion.95
After careful perusal of the evidence presented, we affirm the findings of the
Court of Appeals that respondents were abducted from their houses in Sito
Muzon, Brgy. Buhol na Mangga, San Ildefonso, Bulacan on February 14, 2006
and were continuously detained until they escaped on August 13, 2007. The
abduction, detention, torture, and escape of the respondents were narrated by
respondent Raymond Manalo in a clear and convincing manner. His account
is dotted with countless candid details of respondents' harrowing experience
and tenacious will to escape, captured through his different senses and etched
in his memory. A few examples are the following: "Sumilip ako sa isang haligi
ng kamalig at nakita kong sinisilaban si Manuel."96 "(N)ilakasan ng mga
sundalo ang tunog na galing sa istiryo ng sasakyan. Di nagtagal, narinig ko
ang hiyaw o ungol ni Manuel."97 "May naiwang mga bakas ng dugo habang
hinihila nila ang mga bangkay. Naamoy ko iyon nang nililinis ang bakas."98
"Tumigil ako sa may palaisdaan kung saan ginamit ko ang bato para tanggalin
ang mga kadena."99 "Tinanong ko sa isang kapit-bahay kung paano ako
makakakuha ng cell phone; sabi ko gusto kong i-text ang isang babae na
nakatira sa malapit na lugar."100
We affirm the factual findings of the appellate court, largely based on
respondent Raymond Manalo's affidavit and testimony, viz:
...the abduction was perpetrated by armed men who were sufficiently identified
by the petitioners (herein respondents) to be military personnel and CAFGU
auxiliaries. Raymond recalled that the six armed men who barged into his
house through the rear door were military men based on their attire of fatigue
pants and army boots, and the CAFGU auxiliaries, namely: Michael de la
Cruz, Madning de la Cruz, Puti de la Cruz and Pula de la Cruz, all members of
the CAFGU and residents of Muzon, San Ildefonso, Bulacan, and the brothers
Randy Mendoza and Rudy Mendoza, also CAFGU members, served as
lookouts during the abduction. Raymond was sure that three of the six military
men were Ganata, who headed the abducting team, Hilario, who drove the
van, and George. Subsequent incidents of their long captivity, as narrated by
the petitioners, validated their assertion of the participation of the elements of
the 7th Infantry Division, Philippine Army, and their CAFGU auxiliaries.
We are convinced, too, that the reason for the abduction was the suspicion
that the petitioners were either members or sympathizers of the NPA,
considering that the abductors were looking for Ka Bestre, who turned out to
be Rolando, the brother of petitioners.
The efforts exerted by the Military Command to look into the abduction were,
at best, merely superficial. The investigation of the Provost Marshall of the 7th
Infantry Division focused on the one-sided version of the CAFGU auxiliaries
involved. This one-sidedness might be due to the fact that the Provost
Marshall could delve only into the participation of military personnel, but even
then the Provost Marshall should have refrained from outrightly exculpating
the CAFGU auxiliaries he perfunctorily investigated...
Gen. Palparan's participation in the abduction was also established. At the
very least, he was aware of the petitioners' captivity at the hands of men in
uniform assigned to his command. In fact, he or any other officer tendered no
controversion to the firm claim of Raymond that he (Gen. Palparan) met them
in person in a safehouse in Bulacan and told them what he wanted them and
their parents to do or not to be doing. Gen. Palparan's direct and personal role
in the abduction might not have been shown but his knowledge of the dire
situation of the petitioners during their long captivity at the hands of military
personnel under his command bespoke of his indubitable command policy that
unavoidably encouraged and not merely tolerated the abduction of civilians
without due process of law and without probable cause.
In the habeas proceedings, the Court, through the Former Special Sixth
Division (Justices Buzon, chairman; Santiago-Lagman, Sr., member; and
Romilla-Lontok, Jr., member/ponente.) found no clear and convincing
evidence to establish that M/Sgt. Rizal Hilario had anything to do with the
abduction or the detention. Hilario's involvement could not, indeed, be then
established after Evangeline Francisco, who allegedly saw Hilario drive the
van in which the petitioners were boarded and ferried following the abduction,
did not testify. (See the decision of the habeas proceedings at rollo, p. 52)
However, in this case, Raymond attested that Hilario drove the white L-300
van in which the petitioners were brought away from their houses on February
14, 2006. Raymond also attested that Hilario participated in subsequent
incidents during the captivity of the petitioners, one of which was when Hilario
fetched them from Fort Magsaysay on board a Revo and conveyed them to a
detachment in Pinaud, San Ildefonso, Bulacan where they were detained for at
least a week in a house of strong materials (Exhibit D, rollo, p. 205) and then
Hilario (along with Efren) brought them to Sapang, San Miguel, Bulacan on
board the Revo, to an unfinished house inside the compound of Kapitan where
they were kept for more or less three months. (Exhibit D, rollo, p. 205) It was
there where the petitioners came face to face with Gen. Palparan. Hilario and
Efren also brought the petitioners one early morning to the house of the
petitioners' parents, where only Raymond was presented to the parents to
relay the message from Gen. Palparan not to join anymore rallies. On that
occasion, Hilario warned the parents that they would not again see their sons
should they join any rallies to denounce human rights violations. (Exhibit D,
rollo, pp. 205-206) Hilario was also among four Master Sergeants (the others
being Arman, Ganata and Cabalse) with whom Gen. Palparan conversed on
the occasion when Gen. Palparan required Raymond to take the medicines for
his health. (Exhibit D, rollo, p. 206) There were other occasions when the
petitioners saw that Hilario had a direct hand in their torture.
It is clear, therefore, that the participation of Hilario in the abduction and forced
disappearance of the petitioners was established. The participation of other
military personnel like Arman, Ganata, Cabalse and Caigas, among others,
was similarly established.
xxx xxx xxx
As to the CAFGU auxiliaries, the habeas Court found them personally involved
in the abduction. We also do, for, indeed, the evidence of their participation is
overwhelming.101
We reject the claim of petitioners that respondent Raymond Manalo's
statements were not corroborated by other independent and credible pieces of
evidence.102 Raymond's affidavit and testimony were corroborated by the
affidavit of respondent Reynaldo Manalo. The testimony and medical reports
prepared by forensic specialist Dr. Molino, and the pictures of the scars left by
the physical injuries inflicted on respondents,103 also corroborate
respondents' accounts of the torture they endured while in detention.
Respondent Raymond Manalo's familiarity with the facilities in Fort Magsaysay
such as the "DTU," as shown in his testimony and confirmed by Lt. Col.
Page 53 of 101
Jimenez to be the "Division Training Unit,"104 firms up respondents' story that
they were detained for some time in said military facility.
In Ortiz v. Guatemala,105 a case decided by the Inter-American Commission
on Human Rights, the Commission considered similar evidence, among
others, in finding that complainant Sister Diana Ortiz was abducted and
tortured by agents of the Guatemalan government. In this case, Sister Ortiz
was kidnapped and tortured in early November 1989. The Commission's
findings of fact were mostly based on the consistent and credible statements,
written and oral, made by Sister Ortiz regarding her ordeal.106 These
statements were supported by her recognition of portions of the route they
took when she was being driven out of the military installation where she was
detained.107 She was also examined by a medical doctor whose findings
showed that the 111 circular second degree burns on her back and abrasions
on her cheek coincided with her account of cigarette burning and torture she
suffered while in detention.108
With the secret nature of an enforced disappearance and the torture
perpetrated on the victim during detention, it logically holds that much of the
information and evidence of the ordeal will come from the victims themselves,
and the veracity of their account will depend on their credibility and candidness
in their written and/or oral statements. Their statements can be corroborated
by other evidence such as physical evidence left by the torture they suffered or
landmarks they can identify in the places where they were detained. Where
powerful military officers are implicated, the hesitation of witnesses to surface
and testify against them comes as no surprise.
We now come to the right of the respondents to the privilege of the writ of
Amparo. There is no quarrel that the enforced disappearance of both
respondents Raymond and Reynaldo Manalo has now passed as they have
escaped from captivity and surfaced. But while respondents admit that they
are no longer in detention and are physically free, they assert that they are not
"free in every sense of the word"109 as their "movements continue to be
restricted for fear that people they have named in their Judicial Affidavits and
testified against (in the case of Raymond) are still at large and have not been
held accountable in any way. These people are directly connected to the
Armed Forces of the Philippines and are, thus, in a position to threaten
respondents' rights to life, liberty and security."110 (emphasis supplied)
Respondents claim that they are under threat of being once again abducted,
kept captive or even killed, which constitute a direct violation of their right to
security of person.111
Elaborating on the "right to security, in general," respondents point out that this
right is "often associated with liberty;" it is also seen as an "expansion of rights
based on the prohibition against torture and cruel and unusual punishment."
Conceding that there is no right to security expressly mentioned in Article III of
the 1987 Constitution, they submit that their rights "to be kept free from torture
and from incommunicado detention and solitary detention places112 fall under
the general coverage of the right to security of person under the writ of
Amparo." They submit that the Court ought to give an expansive recognition of
the right to security of person in view of the State Policy under Article II of the
1987 Constitution which enunciates that, "The State values the dignity of every
human person and guarantees full respect for human rights." Finally, to justify
a liberal interpretation of the right to security of person, respondents cite the
teaching in Moncupa v. Enrile113 that "the right to liberty may be made more
meaningful only if there is no undue restraint by the State on the exercise of
that liberty"114 such as a requirement to "report under unreasonable
restrictions that amounted to a deprivation of liberty"115 or being put under
"monitoring and surveillance."116
In sum, respondents assert that their cause of action consists in the threat to
their right to life and liberty, and a violation of their right to security.
Let us put this right to security under the lens to determine if it has indeed
been violated as respondents assert. The right to security or the right to
security of person finds a textual hook in Article III, Section 2 of the 1987
Constitution which provides, viz:
Sec. 2. The right of the people to be secure in their persons, houses, papers
and effects against unreasonable searches and seizures of whatever nature
and for any purpose shall be inviolable, and no search warrant or warrant of
arrest shall issue except upon probable cause to be determined personally by
the judge...
At the core of this guarantee is the immunity of one's person, including the
extensions of his/her person - houses, papers, and effects - against
government intrusion. Section 2 not only limits the state's power over a
person's home and possessions, but more importantly, protects the privacy
and sanctity of the person himself.117 The purpose of this provision was
enunciated by the Court in People v. CFI of Rizal, Branch IX, Quezon City, viz:
118
The purpose of the constitutional guarantee against unreasonable searches
and seizures is to prevent violations of private security in person and property
and unlawful invasion of the security of the home by officers of the law acting
under legislative or judicial sanction and to give remedy against such
usurpation when attempted. (Adams v. New York, 192 U.S. 858; Alvero v.
Dizon, 76 Phil. 637 [1946]). The right to privacy is an essential condition to the
dignity and happiness and to the peace and security of every individual,
whether it be of home or of persons and correspondence. (Tañada and
Carreon, Political Law of the Philippines, Vol. 2, 139 [1962]). The constitutional
inviolability of this great fundamental right against unreasonable searches and
seizures must be deemed absolute as nothing is closer to a man's soul than
the serenity of his privacy and the assurance of his personal security. Any
interference allowable can only be for the best causes and reasons.119
(emphases supplied)
While the right to life under Article III, Section 1120 guarantees essentially the
right to be alive121 - upon which the enjoyment of all other rights is
preconditioned - the right to security of person is a guarantee of the secure
quality of this life, viz: "The life to which each person has a right is not a life
lived in fear that his person and property may be unreasonably violated by a
powerful ruler. Rather, it is a life lived with the assurance that the government
he established and consented to, will protect the security of his person and
property. The ideal of security in life and property... pervades the whole history
of man. It touches every aspect of man's existence."122 In a broad sense, the
right to security of person "emanates in a person's legal and uninterrupted
enjoyment of his life, his limbs, his body, his health, and his reputation. It
includes the right to exist, and the right to enjoyment of life while existing, and
it is invaded not only by a deprivation of life but also of those things which are
necessary to the enjoyment of life according to the nature, temperament, and
lawful desires of the individual."123
A closer look at the right to security of person would yield various permutations
of the exercise of this right.
First, the right to security of person is "freedom from fear." In its "whereas"
clauses, the Universal Declaration of Human Rights (UDHR) enunciates that
"a world in which human beings shall enjoy freedom of speech and belief and
freedom from fear and want has been proclaimed as the highest aspiration of
the common people." (emphasis supplied) Some scholars postulate that
"freedom from fear" is not only an aspirational principle, but essentially an
individual international human right.124 It is the "right to security of person" as
the word "security" itself means "freedom from fear."125 Article 3 of the UDHR
provides, viz:
Everyone has the right to life, liberty and security of person.126 (emphasis
supplied)
In furtherance of this right declared in the UDHR, Article 9(1) of the
International Covenant on Civil and Political Rights (ICCPR) also provides for
the right to security of person, viz:
1. Everyone has the right to liberty and security of person. No one shall be
subjected to arbitrary arrest or detention. No one shall be deprived of his
liberty except on such grounds and in accordance with such procedure as are
established by law. (emphasis supplied)
The Philippines is a signatory to both the UDHR and the ICCPR.
In the context of Section 1 of the Amparo Rule, "freedom from fear" is the right
and any threat to the rights to life, liberty or security is the actionable wrong.
Fear is a state of mind, a reaction; threat is a stimulus, a cause of action. Fear
caused by the same stimulus can range from being baseless to well-founded
as people react differently. The degree of fear can vary from one person to
another with the variation of the prolificacy of their imagination, strength of
character or past experience with the stimulus. Thus, in the Amparo context, it
is more correct to say that the "right to security" is actually the "freedom from
threat." Viewed in this light, the "threatened with violation" Clause in the latter
part of Section 1 of the Amparo Rule is a form of violation of the right to
security mentioned in the earlier part of the provision.127
Second, the right to security of person is a guarantee of bodily and
psychological integrity or security. Article III, Section II of the 1987 Constitution
guarantees that, as a general rule, one's body cannot be searched or invaded
without a search warrant.128 Physical injuries inflicted in the context of
extralegal killings and enforced disappearances constitute more than a search
or invasion of the body. It may constitute dismemberment, physical disabilities,
and painful physical intrusion. As the degree of physical injury increases, the
danger to life itself escalates. Notably, in criminal law, physical injuries
constitute a crime against persons because they are an affront to the bodily
integrity or security of a person.129
Physical torture, force, and violence are a severe invasion of bodily integrity.
When employed to vitiate the free will such as to force the victim to admit,
reveal or fabricate incriminating information, it constitutes an invasion of both
bodily and psychological integrity as the dignity of the human person includes
the exercise of free will. Article III, Section 12 of the 1987 Constitution more
specifically proscribes bodily and psychological invasion, viz:
(2) No torture, force, violence, threat or intimidation, or any other means which
vitiate the free will shall be used against him (any person under investigation
for the commission of an offense). Secret detention places, solitary,
incommunicado or other similar forms of detention are prohibited.
Parenthetically, under this provision, threat and intimidation that vitiate the free
will - although not involving invasion of bodily integrity - nevertheless constitute
a violation of the right to security in the sense of "freedom from threat" as
afore-discussed.
Article III, Section 12 guarantees freedom from dehumanizing abuses of
persons under investigation for the commission of an offense. Victims of
enforced disappearances who are not even under such investigation should all
the more be protected from these degradations.
Page 54 of 101
An overture to an interpretation of the right to security of person as a right
against torture was made by the European Court of Human Rights (ECHR) in
the recent case of Popov v. Russia.130 In this case, the claimant, who was
lawfully detained, alleged that the state authorities had physically abused him
in prison, thereby violating his right to security of person. Article 5(1) of the
European Convention on Human Rights provides, viz: "Everyone has the right
to liberty and security of person. No one shall be deprived of his liberty save in
the following cases and in accordance with a procedure prescribed by law ..."
(emphases supplied) Article 3, on the other hand, provides that "(n)o one shall
be subjected to torture or to inhuman or degrading treatment or punishment."
Although the application failed on the facts as the alleged ill-treatment was
found baseless, the ECHR relied heavily on the concept of security in holding,
viz:
...the applicant did not bring his allegations to the attention of domestic
authorities at the time when they could reasonably have been expected to take
measures in order to ensure his security and to investigate the circumstances
in question.
xxx xxx xxx
... the authorities failed to ensure his security in custody or to comply with the
procedural obligation under Art.3 to conduct an effective investigation into his
allegations.131 (emphasis supplied)
The U.N. Committee on the Elimination of Discrimination against Women has
also made a statement that the protection of the bodily integrity of women may
also be related to the right to security and liberty, viz:
...gender-based violence which impairs or nullifies the enjoyment by women of
human rights and fundamental freedoms under general international law or
under specific human rights conventions is discrimination within the meaning
of article 1 of the Convention (on the Elimination of All Forms of Discrimination
Against Women). These rights and freedoms include . . . the right to liberty
and security of person.132
Third, the right to security of person is a guarantee of protection of one's rights
by the government. In the context of the writ of Amparo, this right is built into
the guarantees of the right to life and liberty under Article III, Section 1 of the
1987 Constitution and the right to security of person (as freedom from threat
and guarantee of bodily and psychological integrity) under Article III, Section 2.
The right to security of person in this third sense is a corollary of the policy that
the State "guarantees full respect for human rights" under Article II, Section 11
of the 1987 Constitution.133 As the government is the chief guarantor of order
and security, the Constitutional guarantee of the rights to life, liberty and
security of person is rendered ineffective if government does not afford
protection to these rights especially when they are under threat. Protection
includes conducting effective investigations, organization of the government
apparatus to extend protection to victims of extralegal killings or enforced
disappearances (or threats thereof) and/or their families, and bringing
offenders to the bar of justice. The Inter-American Court of Human Rights
stressed the importance of investigation in the Velasquez Rodriguez Case,134
viz:
(The duty to investigate) must be undertaken in a serious manner and not as a
mere formality preordained to be ineffective. An investigation must have an
objective and be assumed by the State as its own legal duty, not as a step
taken by private interests that depends upon the initiative of the victim or his
family or upon their offer of proof, without an effective search for the truth by
the government.135
This third sense of the right to security of person as a guarantee of
government protection has been interpreted by the United Nations' Human
Rights Committee136 in not a few cases involving Article 9137 of the ICCPR.
While the right to security of person appears in conjunction with the right to
liberty under Article 9, the Committee has ruled that the right to security of
person can exist independently of the right to liberty. In other words, there
need not necessarily be a deprivation of liberty for the right to security of
person to be invoked. In Delgado Paez v. Colombia,138 a case involving
death threats to a religion teacher at a secondary school in Leticia, Colombia,
whose social views differed from those of the Apostolic Prefect of Leticia, the
Committee held, viz:
The first sentence of article 9 does not stand as a separate paragraph. Its
location as a part of paragraph one could lead to the view that the right to
security arises only in the context of arrest and detention. The travaux
préparatoires indicate that the discussions of the first sentence did indeed
focus on matters dealt with in the other provisions of article 9. The Universal
Declaration of Human Rights, in article 3, refers to the right to life, the right to
liberty and the right to security of the person. These elements have been dealt
with in separate clauses in the Covenant. Although in the Covenant the only
reference to the right of security of person is to be found in article 9, there is
no evidence that it was intended to narrow the concept of the right to security
only to situations of formal deprivation of liberty. At the same time, States
parties have undertaken to guarantee the rights enshrined in the Covenant. It
cannot be the case that, as a matter of law, States can ignore known threats to
the life of persons under their jurisdiction, just because that he or she is not
arrested or otherwise detained. States parties are under an obligation to take
reasonable and appropriate measures to protect them. An interpretation of
article 9 which would allow a State party to ignore threats to the personal
security of non-detained persons within its jurisdiction would render totally
ineffective the guarantees of the Covenant.139 (emphasis supplied)
The Paez ruling was reiterated in Bwalya v. Zambia,140 which involved a
political activist and prisoner of conscience who continued to be intimidated,
harassed, and restricted in his movements following his release from
detention. In a catena of cases, the ruling of the Committee was of a similar
import: Bahamonde v. Equatorial Guinea,141 involving discrimination,
intimidation and persecution of opponents of the ruling party in that state;
Tshishimbi v. Zaire,142 involving the abduction of the complainant's husband
who was a supporter of democratic reform in Zaire; Dias v. Angola,143
involving the murder of the complainant's partner and the harassment he
(complainant) suffered because of his investigation of the murder; and
Chongwe v. Zambia,144 involving an assassination attempt on the chairman
of an opposition alliance.
Similarly, the European Court of Human Rights (ECHR) has interpreted the
"right to security" not only as prohibiting the State from arbitrarily depriving
liberty, but imposing a positive duty on the State to afford protection of the
right to liberty.145 The ECHR interpreted the "right to security of person" under
Article 5(1) of the European Convention of Human Rights in the leading case
on disappearance of persons, Kurt v. Turkey.146 In this case, the claimant's
son had been arrested by state authorities and had not been seen since. The
family's requests for information and investigation regarding his whereabouts
proved futile. The claimant suggested that this was a violation of her son's
right to security of person. The ECHR ruled, viz:
... any deprivation of liberty must not only have been effected in conformity
with the substantive and procedural rules of national law but must equally be
in keeping with the very purpose of Article 5, namely to protect the individual
from arbitrariness... Having assumed control over that individual it is
incumbent on the authorities to account for his or her whereabouts. For this
reason, Article 5 must be seen as requiring the authorities to take effective
measures to safeguard against the risk of disappearance and to conduct a
prompt effective investigation into an arguable claim that a person has been
taken into custody and has not been seen since.147 (emphasis supplied)
Applying the foregoing concept of the right to security of person to the case at
bar, we now determine whether there is a continuing violation of respondents'
right to security.
First, the violation of the right to security as freedom from threat to
respondents' life, liberty and security.
While respondents were detained, they were threatened that if they escaped,
their families, including them, would be killed. In Raymond's narration, he was
tortured and poured with gasoline after he was caught the first time he
attempted to escape from Fort Magsaysay. A call from a certain "Mam," who
wanted to see him before he was killed, spared him.
This time, respondents have finally escaped. The condition of the threat to be
killed has come to pass. It should be stressed that they are now free from
captivity not because they were released by virtue of a lawful order or
voluntarily freed by their abductors. It ought to be recalled that towards the end
of their ordeal, sometime in June 2007 when respondents were detained in a
camp in Limay, Bataan, respondents' captors even told them that they were
still deciding whether they should be executed. Respondent Raymond Manalo
attested in his affidavit, viz:
Kinaumagahan, naka-kadena pa kami. Tinanggal ang mga kadena mga 3 o 4
na araw pagkalipas. Sinabi sa amin na kaya kami nakakadena ay dahil
pinagdedesisyunan pa ng mga sundalo kung papatayin kami o hindi.148
The possibility of respondents being executed stared them in the eye while
they were in detention. With their escape, this continuing threat to their life is
apparent, moreso now that they have surfaced and implicated specific officers
in the military not only in their own abduction and torture, but also in those of
other persons known to have disappeared such as Sherlyn Cadapan, Karen
Empeño, and Manuel Merino, among others.
Understandably, since their escape, respondents have been under
concealment and protection by private citizens because of the threat to their
life, liberty and security. The threat vitiates their free will as they are forced to
limit their movements or activities.149 Precisely because respondents are
being shielded from the perpetrators of their abduction, they cannot be
expected to show evidence of overt acts of threat such as face-to-face
intimidation or written threats to their life, liberty and security. Nonetheless, the
circumstances of respondents' abduction, detention, torture and escape
reasonably support a conclusion that there is an apparent threat that they will
again be abducted, tortured, and this time, even executed. These constitute
threats to their liberty, security, and life, actionable through a petition for a writ
of Amparo.
Next, the violation of the right to security as protection by the government.
Apart from the failure of military elements to provide protection to respondents
by themselves perpetrating the abduction, detention, and torture, they also
miserably failed in conducting an effective investigation of respondents'
abduction as revealed by the testimony and investigation report of petitioners'
own witness, Lt. Col. Ruben Jimenez, Provost Marshall of the 7th Infantry
Division.
The one-day investigation conducted by Jimenez was very limited, superficial,
and one-sided. He merely relied on the Sworn Statements of the six implicated
members of the CAFGU and civilians whom he met in the investigation for the
first time. He was present at the investigation when his subordinate Lingad
was taking the sworn statements, but he did not propound a single question to
Page 55 of 101
ascertain the veracity of their statements or their credibility. He did not call for
other witnesses to test the alibis given by the six implicated persons nor for the
family or neighbors of the respondents.
In his affidavit, petitioner Secretary of National Defense attested that in a
Memorandum Directive dated October 31, 2007, he issued a policy directive
addressed to the AFP Chief of Staff, that the AFP should adopt rules of action
in the event the writ of Amparo is issued by a competent court against any
members of the AFP, which should essentially include verification of the
identity of the aggrieved party; recovery and preservation of relevant evidence;
identification of witnesses and securing statements from them; determination
of the cause, manner, location and time of death or disappearance;
identification and apprehension of the person or persons involved in the death
or disappearance; and bringing of the suspected offenders before a competent
court.150 Petitioner AFP Chief of Staff also submitted his own affidavit
attesting that he received the above directive of respondent Secretary of
National Defense and that acting on this directive, he immediately caused to
be issued a directive to the units of the AFP for the purpose of establishing the
circumstances of the alleged disappearance and the recent reappearance of
the respondents, and undertook to provide results of the investigations to
respondents.151 To this day, however, almost a year after the policy directive
was issued by petitioner Secretary of National Defense on October 31, 2007,
respondents have not been furnished the results of the investigation which
they now seek through the instant petition for a writ of Amparo.
Under these circumstances, there is substantial evidence to warrant the
conclusion that there is a violation of respondents' right to security as a
guarantee of protection by the government.
In sum, we conclude that respondents' right to security as "freedom from
threat" is violated by the apparent threat to their life, liberty and security of
person. Their right to security as a guarantee of protection by the government
is likewise violated by the ineffective investigation and protection on the part of
the military.
Finally, we come to the reliefs granted by the Court of Appeals, which
petitioners question.
First, that petitioners furnish respondents all official and unofficial reports of
the investigation undertaken in connection with their case, except those
already in file with the court.
Second, that petitioners confirm in writing the present places of official
assignment of M/Sgt. Hilario aka Rollie Castillo and Donald Caigas.
Third, that petitioners cause to be produced to the Court of Appeals all medical
reports, records and charts, and reports of any treatment given or
recommended and medicines prescribed, if any, to the Manalo brothers, to
include a list of medical personnel (military and civilian) who attended to them
from February 14, 2006 until August 12, 2007.
With respect to the first and second reliefs, petitioners argue that the
production order sought by respondents partakes of the characteristics of a
search warrant. Thus, they claim that the requisites for the issuance of a
search warrant must be complied with prior to the grant of the production
order, namely: (1) the application must be under oath or affirmation; (2) the
search warrant must particularly describe the place to be searched and the
things to be seized; (3) there exists probable cause with one specific offense;
and (4) the probable cause must be personally determined by the judge after
examination under oath or affirmation of the complainant and the witnesses he
may produce.152 In the case at bar, however, petitioners point out that other
than the bare, self-serving and vague allegations made by respondent
Raymond Manalo in his unverified declaration and affidavit, the documents
respondents seek to be produced are only mentioned generally by name, with
no other supporting details. They also argue that the relevancy of the
documents to be produced must be apparent, but this is not true in the present
case as the involvement of petitioners in the abduction has not been shown.
Petitioners' arguments do not hold water. The production order under the
Amparo Rule should not be confused with a search warrant for law
enforcement under Article III, Section 2 of the 1987 Constitution. This
Constitutional provision is a protection of the people from the unreasonable
intrusion of the government, not a protection of the government from the
demand of the people such as respondents.
Instead, the Amparo production order may be likened to the production of
documents or things under Section 1, Rule 27 of the Rules of Civil Procedure
which provides in relevant part, viz:
Section 1. Motion for production or inspection order.
Upon motion of any party showing good cause therefor, the court in which an
action is pending may (a) order any party to produce and permit the inspection
and copying or photographing, by or on behalf of the moving party, of any
designated documents, papers, books of accounts, letters, photographs,
objects or tangible things, not privileged, which constitute or contain evidence
material to any matter involved in the action and which are in his possession,
custody or control...
In Material Distributors (Phil.) Inc. v. Judge Natividad,153 the respondent
judge, under authority of Rule 27, issued a subpoena duces tecum for the
production and inspection of among others, the books and papers of Material
Distributors (Phil.) Inc. The company questioned the issuance of the subpoena
on the ground that it violated the search and seizure clause. The Court struck
down the argument and held that the subpoena pertained to a civil procedure
that "cannot be identified or confused with unreasonable searches prohibited
by the Constitution..."
Moreover, in his affidavit, petitioner AFP Chief of Staff himself undertook "to
provide results of the investigations conducted or to be conducted by the
concerned unit relative to the circumstances of the alleged disappearance of
the persons in whose favor the Writ of Amparo has been sought for as soon as
the same has been furnished Higher headquarters."
With respect to the second and third reliefs, petitioners assert that the
disclosure of the present places of assignment of M/Sgt. Hilario aka Rollie
Castillo and Donald Caigas, as well as the submission of a list of medical
personnel, is irrelevant, improper, immaterial, and unnecessary in the
resolution of the petition for a writ of Amparo. They add that it will
unnecessarily compromise and jeopardize the exercise of official functions and
duties of military officers and even unwittingly and unnecessarily expose them
to threat of personal injury or even death.
On the contrary, the disclosure of the present places of assignment of M/Sgt.
Hilario aka Rollie Castillo and Donald Caigas, whom respondents both directly
implicated as perpetrators behind their abduction and detention, is relevant in
ensuring the safety of respondents by avoiding their areas of territorial
jurisdiction. Such disclosure would also help ensure that these military officers
can be served with notices and court processes in relation to any investigation
and action for violation of the respondents' rights. The list of medical personnel
is also relevant in securing information to create the medical history of
respondents and make appropriate medical interventions, when applicable
and necessary.
In blatant violation of our hard-won guarantees to life, liberty and security,
these rights are snuffed out from victims of extralegal killings and enforced
disappearances. The writ of Amparo is a tool that gives voice to preys of silent
guns and prisoners behind secret walls.
WHEREFORE, premises considered, the petition is DISMISSED. The
Decision of the Court of Appeals dated December 26, 2007 is affirmed.
SO ORDERED.
REYNATO S. PUNO
Chief Justice
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 182165 November 25, 2009
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,
vs.
DR. AMANDA T. CRUZ, NIXON T. CRUZ, and FERDINAND T. CRUZ,
Respondents.
DECISION
CARPIO MORALES, J.:
Petitioners, 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
Province2 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.
Page 56 of 101
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
dispatch. Accordingly, REMAND the determination of the issues raised by the
petitioners on the issued writ of demolition to the MTC of Bulacan, Bulacan.
SO ORDERED.4 (Emphasis in the original; underscoring supplied)
Finding that the fallo of the RTC July 19, 2005 Order treats, as a suspensive
condition for the lifting of the permanent injunction, the determination of the
boundaries of the property, the Province returned the issue for the
consideration of the MTC. In a Geodetic Engineer‘s Report submitted to the
MTC on August 31, 2007, the metes and bounds of the property were
indicated.
The MTC, by Order of January 2, 2008, approved the Report and ruled that
the permanent injunction which the RTC issued is 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 Spouses Cruz filed
a motion before Branch 10 of the RTC for the issuance of a temporary
restraining order (TRO) which it set for 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, 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."
Hence, the present petition for review on certiorari, pursuant to Section 1910
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. 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 Court‘s
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.
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.
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 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.
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 Court‘s ruling in Tapuz v. Del Rosario:
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:
Page 57 of 101
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.
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.
It bears emphasis that respondents‘ petition did not show any actual violation,
imminent or continuing threat to their life, liberty and security. Bare allegations
that petitioners "in unison, conspiracy and in contempt of court, there and then
willfully, forcibly and feloniously 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.
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."
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 wherein the Province allegedly
violated the Permanent Injunction order, these incidents were already raised in
the injunction proceedings on account of which respondents filed a case for
criminal contempt against petitioners.
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.
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 11224 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 4, 2008
Order of Branch 10 of the Regional Trial Court of Malolos is DECLARED NULL
AND VOID, and its March 28, 2008 Decision is REVERSED and SET ASIDE.
Special Civil Action No. 53-M-2008 is DISMISSED.
SO ORDERED.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 182498 December 3, 2009
GEN. AVELINO I. RAZON, JR., Chief, Philippine National Police (PNP);
Police Chief Superintendent RAUL CASTAÑEDA, Chief, Criminal
Investigation and Detection Group (CIDG); Police Senior Superintendent
LEONARDO A. ESPINA, Chief, Police Anti-Crime and Emergency
Response (PACER); and GEN. JOEL R. GOLTIAO, Regional Director of
ARMM, PNP, Petitioners,
vs.
MARY JEAN B. TAGITIS, herein represented by ATTY. FELIPE P.
ARCILLA, JR., Attorney-in-Fact, Respondent.
DECISION
BRION, J.:
We review in this petition for review on certiorari1 the decision dated March 7,
2008 of the Court of Appeals (CA) in C.A-G.R. AMPARO No. 00009.2 This CA
decision confirmed the enforced disappearance of Engineer Morced N. Tagitis
(Tagitis) and granted the Writ of Amparo at the petition of his wife, Mary Jean
B. Tagitis (respondent). The dispositive portion of the CA decision reads:
WHEREFORE, premises considered, petition is hereby GRANTED. The Court
hereby FINDS that this is an "enforced disappearance" within the meaning of
the United Nations instruments, as used in the Amparo Rules. The privileges
of the writ of amparo are hereby extended to Engr. Morced Tagitis.
Consequently: (1) respondent GEN. EDGARDO M. DOROMAL, Chief,
Criminal Investigation and Detention Group (CIDG) who should order COL.
JOSE VOLPANE PANTE, CIDG-9 Chief, Zamboanga City, to aid him; (2)
respondent GEN. AVELINO I. RAZON, Chief, PNP, who should order his men,
namely: (a) respondent GEN. JOEL GOLTIAO, Regional Director of ARMM
PNP, (b) COL. AHIRON AJIRIM, both head of TASK FORCE TAGITIS, and (c)
respondent SR. SUPERINTENDENT LEONARDO A. ESPINA, Chief, Police
Anti-Crime and Emergency Response, to aid him as their superior- are hereby
DIRECTED to exert extraordinary diligence and efforts, not only to protect the
life, liberty and security of Engr. Morced Tagitis, but also to extend the
privileges of the writ of amparo to Engr. Morced Tagitis and his family, and to
submit a monthly report of their actions to this Court, as a way of PERIODIC
REVIEW to enable this Court to monitor the action of respondents.
This amparo case is hereby DISMISSED as to respondent LT. GEN.
ALEXANDER YANO, Commanding General, Philippine Army, and as to
respondent GEN. RUBEN RAFAEL, Chief Anti-Terror Task Force Comet,
Zamboanga City, both being with the military, which is a separate and distinct
organization from the police and the CIDG, in terms of operations, chain of
command and budget.
This Decision reflects the nature of the Writ of Amparo – a protective remedy
against violations or threats of violation against the rights to life, liberty and
security.3 It embodies, as a remedy, the court‘s directive to police agencies to
undertake specified courses of action to address the disappearance of an
individual, in this case, Engr. Morced N. Tagitis. It does not determine guilt nor
pinpoint criminal culpability for the disappearance; rather, it determines
responsibility, or at least accountability, for the enforced disappearance for
purposes of imposing the appropriate remedies to address the disappearance.
Responsibility refers to the extent the actors have been established by
substantial evidence to have participated in whatever way, by action or
omission, in an enforced disappearance, as a measure of the remedies this
Court shall craft, among them, the directive to file the appropriate criminal and
civil cases against the responsible parties in the proper courts. Accountability,
on the other hand, refers to the measure of remedies that should be
addressed to those who exhibited involvement in the enforced disappearance
without bringing the level of their complicity to the level of responsibility
defined above; or who are imputed with knowledge relating to the enforced
disappearance and who carry the burden of disclosure; or those who carry, but
have failed to discharge, the burden of extraordinary diligence in the
investigation of the enforced disappearance. In all these cases, the issuance
of the Writ of Amparo is justified by our primary goal of addressing the
disappearance, so that the life of the victim is preserved and his liberty and
security are restored.
We highlight this nature of a Writ of Amparo case at the outset to stress that
the unique situations that call for the issuance of the writ, as well as the
considerations and measures necessary to address these situations, may not
at all be the same as the standard measures and procedures in ordinary court
actions and proceedings. In this sense, the Rule on the Writ of Amparo4
(Amparo Rule) issued by this Court is unique. The Amparo Rule should be
read, too, as a work in progress, as its directions and finer points remain to
evolve through time and jurisprudence and through the substantive laws that
Congress may promulgate.
THE FACTUAL ANTECEDENTS
Page 58 of 101
The background facts, based on the petition and the records of the case, are
summarized below.
The established facts show that Tagitis, a consultant for the World Bank and
the Senior Honorary Counselor for the Islamic Development Bank (IDB)
Scholarship Programme, was last seen in Jolo, Sulu. Together with Arsimin
Kunnong (Kunnong), an IDB scholar, Tagitis arrived in Jolo by boat in the early
morning of October 31, 2007 from a seminar in Zamboanga City. They
immediately checked-in at ASY Pension House. Tagitis asked Kunnong to buy
him a boat ticket for his return trip the following day to Zamboanga. When
Kunnong returned from this errand, Tagitis was no longer around.5 The
receptionist related that Tagitis went out to buy food at around 12:30 in the
afternoon and even left his room key with the desk.6 Kunnong looked for
Tagitis and even sent a text message to the latter‘s Manila-based secretary
who did not know of Tagitis‘ whereabouts and activities either; she advised
Kunnong to simply wait.7
On November 4, 2007, Kunnong and Muhammad Abdulnazeir N. Matli, a UP
professor of Muslim studies and Tagitis‘ fellow student counselor at the IDB,
reported Tagitis‘ disappearance to the Jolo Police Station.8 On November 7,
2007, Kunnong executed a sworn affidavit attesting to what he knew of the
circumstances surrounding Tagitis‘ disappearance.9
More than a month later (on December 28, 2007), the respondent filed a
Petition for the Writ of Amparo (petition) with the CA through her Attorney-in-
Fact, Atty. Felipe P. Arcilla.10 The petition was directed against Lt. Gen.
Alexander Yano, Commanding General, Philippine Army; Gen. Avelino I.
Razon, Chief, Philippine National Police (PNP); Gen. Edgardo M. Doromal,
Chief, Criminal Investigation and Detention Group (CIDG); Sr. Supt. Leonardo
A. Espina, Chief, Police Anti-Crime and Emergency Response; Gen. Joel
Goltiao, Regional Director, ARMM-PNP; and Gen. Ruben Rafael, Chief, Anti-
Terror Task Force Comet [collectively referred to as petitioners]. After reciting
Tagitis‘ personal circumstances and the facts outlined above, the petition went
on to state:
xxxx
7. Soon after the student left the room, Engr. Tagitis went out of the pension
house to take his early lunch but while out on the street, a couple of burly men
believed to be police intelligence operatives, forcibly took him and boarded the
latter on a motor vehicle then sped away without the knowledge of his student,
Arsimin Kunnong;
8. As instructed, in the late afternoon of the same day, Kunnong returned to
the pension house, and was surprised to find out that subject Engr. Tagitis
cannot [sic] be contacted by phone and was not also around and his room was
closed and locked;
9. Kunnong requested for the key from the desk of the pension house who
[sic] assisted him to open the room of Engr. Tagitis, where they discovered
that the personal belongings of Engr. Tagitis, including cell phones,
documents and other personal belongings were all intact inside the room;
10. When Kunnong could not locate Engr. Tagitis, the former sought the help
of another IDB scholar and reported the matter to the local police agency;
11. Arsimin Kunnong including his friends and companions in Jolo, exerted
efforts in trying to locate the whereabouts of Engr. Tagitis and when he
reported the matter to the police authorities in Jolo, he was immediately given
a ready answer that Engr. Tagitis could have been abducted by the Abu
Sayyaf group and other groups known to be fighting against the government;
12. Being scared with [sic] these suggestions and insinuations of the police
officers, Kunnong reported the matter to the [respondent, wife of Engr. Tagitis]
by phone and other responsible officers and coordinators of the IDB
Scholarship Programme in the Philippines, who alerted the office of the
Governor of ARMM who was then preparing to attend the OIC meeting in
Jeddah, Saudi Arabia;
13. [Respondent], on the other hand, approached some of her co-employees
with the Land Bank in Digos branch, Digos City, Davao del Sur who likewise
sought help from some of their friends in the military who could help them
find/locate the whereabouts of her husband;
14. All of these efforts of the [respondent] did not produce any positive results
except the information from persons in the military who do not want to be
identified that Engr. Tagitis is in the hands of the uniformed men;
15. According to reliable information received by the [respondent], subject
Engr. Tagitis is in the custody of police intelligence operatives, specifically with
the CIDG, PNP Zamboanga City, being held against his will in an earnest
attempt of the police to involve and connect Engr. Tagitis with the different
terrorist groups;
xxxx
17. [Respondent] filed her complaint with the PNP Police Station in the ARMM
in Cotobato and in Jolo, as suggested by her friends, seeking their help to find
her husband, but [respondent‘s] request and pleadings failed to produce any
positive results;
18. Instead of helping the [respondent], she [sic] was told of an intriguing tale
by the police that her husband, subject of the petition, was not missing but was
with another woman having good time somewhere, which is a clear indication
of the [petitioners‘] refusal to help and provide police assistance in locating her
missing husband;
19. The continued failure and refusal of the [petitioners] to release and/or turn-
over subject Engr. Tagitis to his family or even to provide truthful information to
[the respondent] of the subject‘s whereabouts, and/or allow [the respondent] to
visit her husband Engr. Morced Tagitis, caused so much sleepless nights and
serious anxieties;
20. Lately, [the respondent] was again advised by one of the [petitioners] to go
to the ARMM Police Headquarters again in Cotobato City and also to the
different Police Headquarters including [those] in Davao City, in Zamboanga
City, in Jolo, and in Camp Crame, Quezon City, and all these places have
been visited by the [respondent] in search for her husband, which entailed
expenses for her trips to these places thereby resorting her to borrowings and
beggings [sic] for financial help from friends and relatives only to try complying
[sic] to the different suggestions of these police officers, despite of which, her
efforts produced no positive results up to the present time;
21. In fact at times, some police officers, who [sympathized with] the sufferings
undergone by the [respondent], informed her that they are not the proper
persons that she should approach, but assured her not to worry because her
husband is [sic] in good hands;
22. The unexplained uncooperative behavior of the [petitioners] to the
[respondent‘s] request for help and failure and refusal of the [petitioners] to
extend the needed help, support and assistance in locating the whereabouts
of Engr. Tagitis who had been declared missing since October 30, 2007 which
is almost two (2) months now, clearly indicates that the [petitioners] are
actually in physical possession and custody of [respondent‘s] husband, Engr.
Tagitis;
xxxx
25. [The respondent] has exhausted all administrative avenues and remedies
but to no avail, and under the circumstances, [the respondent] has no other
plain, speedy and adequate remedy to protect and get the release of subject
Engr. Morced Tagitis from the illegal clutches of the [petitioners], their
intelligence operatives and the like which are in total violation of the subject‘s
human and constitutional rights, except the issuance of a WRIT OF AMPARO.
[Emphasis supplied]
On the same day the petition was filed, the CA immediately issued the Writ of
Amparo, set the case for hearing on January 7, 2008, and directed the
petitioners to file their verified return within seventy-two (72) hours from
service of the writ.11
In their verified Return filed during the hearing of January 27, 2008, the
petitioners denied any involvement in or knowledge of Tagitis‘ alleged
abduction. They argued that the allegations of the petition were incomplete
and did not constitute a cause of action against them; were baseless, or at
best speculative; and were merely based on hearsay evidence. 12
The affidavit of PNP Chief Gen. Avelino I. Razon, attached to the Return,
stated that: he did not have any personal knowledge of, or any participation in,
the alleged disappearance; that he had been designated by President Gloria
Macapagal Arroyo as the head of a special body called TASK FORCE USIG,
to address concerns about extralegal killings and enforced disappearances;
the Task Force, inter alia, coordinated with the investigators and local police,
held case conferences, rendered legal advice in connection to these cases;
and gave the following summary:13
xxxx
4.
a) On November 5, 2007, the Regional Director, Police Regional Office ARMM
submitted a report on the alleged disappearance of one Engr. Morced Tagitis.
According to the said report, the victim checked-in at ASY Pension House on
October 30, 2007 at about 6:00 in the morning and then roamed around Jolo,
Sulu with an unidentified companion. It was only after a few days when the
said victim did not return that the matter was reported to Jolo MPS.
Afterwards, elements of Sulu PPO conducted a thorough investigation to trace
and locate the whereabouts of the said missing person, but to no avail. The
said PPO is still conducting investigation that will lead to the immediate
findings of the whereabouts of the person.
b) Likewise, the Regional Chief, 9RCIDU submitted a Progress Report to the
Director, CIDG. The said report stated among others that: subject person
attended an Education Development Seminar set on October 28, 2007
conducted at Ateneo de Zamboanga, Zamboanga City together with a Prof.
Matli. On October 30, 2007, at around 5:00 o‘clock in the morning, Engr.
Tagitis reportedly arrived at Jolo Sulu wharf aboard M/V Bounty Cruise, he
was then billeted at ASY Pension House. At about 6:15 o‘clock in the morning
of the same date, he instructed his student to purchase a fast craft ticket
bound for Zamboanga City and will depart from Jolo, Sulu on October 31,
2007. That on or about 10:00 o‘clock in the morning, Engr. Tagitis left the
premises of ASY Pension House as stated by the cashier of the said pension
house. Later in the afternoon, the student instructed to purchase the ticket
arrived at the pension house and waited for Engr. Tagitis, but the latter did not
return. On its part, the elements of 9RCIDU is now conducting a continuous
Page 59 of 101
case build up and information gathering to locate the whereabouts of Engr.
Tagitis.
c) That the Director, CIDG directed the conduct of the search in all divisions of
the CIDG to find Engr. Tagitis who was allegedly abducted or illegally detained
by covert CIDG-PNP Intelligence Operatives since October 30, 2007, but after
diligent and thorough search, records show that no such person is being
detained in CIDG or any of its department or divisions.
5. On this particular case, the Philippine National Police exhausted all possible
efforts, steps and actions available under the circumstances and continuously
search and investigate [sic] the instant case. This immense mandate,
however, necessitates the indispensable role of the citizenry, as the PNP
cannot stand alone without the cooperation of the victims and witnesses to
identify the perpetrators to bring them before the bar of justice and secure their
conviction in court.
The petitioner PNP-CIDG Chief, Gen. Edgardo M. Doromal, submitted as well
his affidavit, also attached to the Return of the Writ, attesting that upon receipt
of the Writ of Amparo, he caused the following:14
xxxx
That immediately upon receipt on December 29, 2007 of the Resolution of the
Honorable Special Fourth Division of the Court of Appeals, I immediately
directed the Investigation Division of this Group [CIDG] to conduct urgent
investigation on the alleged enforced disappearance of Engineer Morced
Tagitis.
That based on record, Engr. Morced N. Tagitis attended an Education
Development Seminar on October 28, 2007 at Ateneo de Zamboanga at
Zamboanga City together with Prof. Abdulnasser Matli. On October 30, 2007,
at around six o‘clock in the morning he arrived at Jolo, Sulu. He was assisted
by his student identified as Arsimin Kunnong of the Islamic Development Bank
who was also one of the participants of the said seminar. He checked in at
ASY pension house located [sic] Kakuyagan, Patikul, Sulu on October 30,
2007 with [sic] unidentified companion. At around six o‘clock in the morning of
even date, Engr. Tagitis instructed his student to purchase a fast craft ticket for
Zamboanga City. In the afternoon of the same date, Kunnong arrived at the
pension house carrying the ticket he purchased for Engr. Tagitis, but the latter
was nowhere to be found anymore. Kunnong immediately informed Prof.
Abdulnasser Matli who reported the incident to the police. The CIDG is not
involved in the disappearance of Engr. Morced Tagitis to make out a case of
an enforced disappearance which presupposes a direct or indirect involvement
of the government.
That herein [petitioner] searched all divisions and departments for a person
named Engr. Morced N. Tagitis, who was allegedly abducted or illegally
detained by covert CIDG-PNP Intelligence Operatives since October 30, 2007
and after a diligent and thorough research records show that no such person
is being detained in CIDG or any of its department or divisions.
That nevertheless, in order to determine the circumstances surrounding Engr.
Morced Tagitis [sic] alleged enforced disappearance, the undersigned had
undertaken immediate investigation and will pursue investigations up to its full
completion in order to aid in the prosecution of the person or persons
responsible therefore.
Likewise attached to the Return of the Writ was PNP-PACER15 Chief PS
Supt. Leonardo A. Espina‘s affidavit which alleged that:16
xxxx
That, I and our men and women in PACER vehemently deny any participation
in the alleged abduction or illegally [sic] detention of ENGR. MORCED N.
TAGITS on October 30, 2007. As a matter of fact, nowhere in the writ was
mentioned that the alleged abduction was perpetrated by elements of PACER
nor was there any indication that the alleged abduction or illegal detention of
ENGR. TAGITIS was undertaken jointly by our men and by the alleged covert
CIDG-PNP intelligence operatives alleged to have abducted or illegally
detained ENGR. TAGITIS.
That I was shocked when I learned that I was implicated in the alleged
disappearance of ENGR. MORCED in my capacity as the chief PACER [sic]
considering that our office, the Police Anti-Crime and Emergency Response
(PACER), a special task force created for the purpose of neutralizing or
eradicating kidnap-for-ransom groups which until now continue to be one of
the menace of our society is a respondent in kidnapping or illegal detention
case. Simply put, our task is to go after kidnappers and charge them in court
and to abduct or illegally detain or kidnap anyone is anathema to our mission.
That right after I learned of the receipt of the WRIT OF AMPARO, I directed
the Chief of PACER Mindanao Oriental (PACER-MOR) to conduct pro-active
measures to investigate, locate/search the subject, identify and apprehend the
persons responsible, to recover and preserve evidence related to the
disappearance of ENGR. MORCED TAGITIS, which may aid in the
prosecution of the person or persons responsible, to identify witnesses and
obtain statements from them concerning the disappearance and to determine
the cause, manner, location and time of disappearance as well as any pattern
or practice that may have brought about the disappearance.
That I further directed the chief of PACER-MOR, Police Superintendent JOSE
ARNALDO BRIONES JR., to submit a written report regarding the
disappearance of ENGR. MORCED.
That in compliance with my directive, the chief of PACER-MOR sent through
fax his written report.
That the investigation and measures being undertaken to locate/search the
subject in coordination with Police Regional Office, Autonomous Region of
Muslim Mindanao (PRO-ARMM) and Jolo Police Provincial Office (PPO) and
other AFP and PNP units/agencies in the area are ongoing with the instruction
not to leave any stone unturned so to speak in the investigation until the
perpetrators in the instant case are brought to the bar of justice.
That I have exercised EXTRAORDINARY DILIGENCE in dealing with the
WRIT OF AMPARO just issued.
Finally, the PNP PRO ARMM Regional Director PC Supt. Joel R. Goltiao (Gen.
Goltiao), also submitted his affidavit detailing the actions that he had taken
upon receipt of the report on Tagitis‘ disappearance, viz:17
xxxx
3) For the record:
1. I am the Regional Director of Police Regional Office ARMM now and during
the time of the incident;
xxxx
4. It is my duty to look into and take appropriate measures on any cases of
reported enforced disappearances and when they are being alluded to my
office;
5. On November 5, 2007, the Provincial Director of Sulu Police Provincial
Office reported to me through Radio Message Cite No. SPNP3-1105-07-2007
that on November 4, 2007 at around 3:30 p.m., a certain Abdulnasser Matli, an
employee of Islamic Development Bank, appeared before the Office of the
Chief of Police, Jolo Police Station, and reported the disappearance of Engr.
Morced Tagitis, scholarship coordinator of Islamic Development Bank, Manila;
6. There was no report that Engr. Tagibis was last seen in the company of or
taken by any member of the Philippine National Police but rather he just
disappeared from ASY Pension House situated at Kakuyagan Village, Village,
Patikul, Sulu, on October 30, 2007, without any trace of forcible abduction or
arrest;
7. The last known instance of communication with him was when Arsimin
Kunnong, a student scholar, was requested by him to purchase a vessel ticket
at the Office of Weezam Express, however, when the student returned back to
ASY Pension House, he no longer found Engr. Tagitis there and when he
immediately inquired at the information counter regarding his whereabouts
[sic], the person in charge in the counter informed him that Engr. Tagitis had
left the premises on October 30, 2007 around 1 o‘clock p.m. and never
returned back to his room;
8. Immediately after learning the incident, I called and directed the Provincial
Director of Sulu Police Provincial Office and other units through phone call and
text messages to conduct investigation [sic] to determine the whereabouts of
the aggrieved party and the person or persons responsible for the threat, act
or omission, to recover and preserve evidence related to the disappearance of
Engr. Tagitis, to identify witnesses and obtain statements from them
concerning his disappearance, to determine the cause and manner of his
disappearance, to identify and apprehend the person or persons involved in
the disappearance so that they shall be brought before a competent court;
9. Thereafter, through my Chief of the Regional Investigation and Detection
Management Division, I have caused the following directives:
a) Radio Message Cite No. RIDMD-1122-07-358 dated November 22, 2007
directing PD Sulu PPO to conduct joint investigation with CIDG and CIDU
ARMM on the matter;
b) Radio Message Cite No. RIDMD-1128-07-361 dated November 28, 2007
directing PD Sulu PPO to expedite compliance to my previous directive;
c) Memorandum dated December 14, 2007 addressed to PD Sulu PPO
reiterating our series of directives for investigation and directing him to
undertake exhaustive coordination efforts with the owner of ASY Pension
House and student scholars of IDB in order to secure corroborative statements
regarding the disappearance and whereabouts of said personality;
d) Memorandum dated December 24, 2007 addressed to PD Sulu PPO
directing him to maximize efforts to establish clues on the whereabouts of
Engr. Tagitis by seeking the cooperation of Prof. Abdulnasser Matli and
Arsimin Kunnong and/or whenever necessary, for them to voluntarily submit
for polygraph examination with the NBI so as to expunge all clouds of doubt
that they may somehow have knowledge or idea to his disappearance;
e) Memorandum dated December 27, 2007 addressed to the Regional Chief,
Criminal Investigation and Detection Group, Police Regional Office 9,
Zamboanga City, requesting assistance to investigate the cause and unknown
Page 60 of 101
disappearance of Engr. Tagitis considering that it is within their area of
operational jurisdiction;
f) Memorandum from Chief, Intelligence Division, PRO ARMM dated
December 30, 2007 addressed to PD Sulu PPO requiring them to submit
complete investigation report regarding the case of Engr. Tagitis;
10. In compliance to our directives, PD Sulu PPO has exerted his [sic] efforts
to conduct investigation [sic] on the matter to determine the whereabouts of
Engr. Tagitis and the circumstances related to his disappearance and
submitted the following:
a) Progress Report dated November 6, 2007 through Radio Message Cite No.
SPNP3-1106-10-2007;
b) Radio Message Cite No. SPIDMS-1205-47-07 informing this office that they
are still monitoring the whereabouts of Engr. Tagitis;
c) Investigation Report dated December 31, 2007 from the Chief of Police,
Jolo Police Station, Sulu PPO;
11. This incident was properly reported to the PNP Higher Headquarters as
shown in the following:
a) Memorandum dated November 6, 2007 addressed to the Chief, PNP
informing him of the facts of the disappearance and the action being taken by
our office;
b) Memorandum dated November 6, 2007 addressed to the Director,
Directorate for Investigation and Detection Management, NHQ PNP;
c) Memorandum dated December 30, 2007 addressed to the Director, DIDM;
4) In spite of our exhaustive efforts, the whereabouts of Engr. Tagitis cannot
be determined but our office is continuously intensifying the conduct of
information gathering, monitoring and coordination for the immediate solution
of the case.
Since the disappearance of Tagistis was practically admitted and taking note
of favorable actions so far taken on the disappearance, the CA directed Gen.
Goltiao – as the officer in command of the area of disappearance – to form
TASK FORCE TAGITIS.18
Task Force Tagitis
On January 11, 2008, Gen. Goltiao designated PS Supt. Ahiron Ajirim (PS
Supt. Ajirim) to head TASK FORCE TAGITIS.19 The CA subsequently set
three hearings to monitor whether TASK FORCE TAGITIS was exerting
"extraordinary efforts" in handling the disappearance of Tagitis.20 As planned,
(1) the first hearing would be to mobilize the CIDG, Zamboanga City; (2) the
second hearing would be to mobilize intelligence with Abu Sayyaf and ARMM;
and (3) the third hearing would be to mobilize the Chief of Police of Jolo, Sulu
and the Chief of Police of Zamboanga City and other police operatives.21
In the hearing on January 17, 2008, TASK FORCE TAGITIS submitted to the
CA an intelligence report from PSL Usman S. Pingay, the Chief of Police of
the Jolo Police Station, stating a possible motive for Tagitis‘ disappearance.22
The intelligence report was apparently based on the sworn affidavit dated
January 4, 2008 of Muhammad Abdulnazeir N. Matli (Prof. Matli), Professor of
Islamic Studies at the University of the Philippines and an Honorary Student
Counselor of the IDB Scholarship Program in the Philippines, who told the
Provincial Governor of Sulu that:23
[Based] on reliable information from the Office of Muslim Affairs in Manila,
Tagitis has reportedly taken and carried away… more or less Five Million
Pesos (P5,000,000.00) deposited and entrusted to his … [personal] bank
accounts by the Central Office of IDB, Jeddah, Kingdom of Saudi Arabia,
which [was] intended for the … IDB Scholarship Fund.
In the same hearing, PS Supt. Ajirim testified that since the CIDG was alleged
to be responsible, he personally went to the CIDG office in Zamboanga City to
conduct an ocular inspection/investigation, particularly of their detention
cells.24 PS Supt. Ajirim stated that the CIDG, while helping TASK FORCE
TAGITIS investigate the disappearance of Tagitis, persistently denied any
knowledge or complicity in any abduction.25 He further testified that prior to
the hearing, he had already mobilized and given specific instructions to their
supporting units to perform their respective tasks; that they even talked to, but
failed to get any lead from the respondent in Jolo.26 In his submitted
investigation report dated January 16, 2008, PS Supt. Ajirim concluded:27
9. Gleaned from the undersigned inspection and observation at the
Headquarters 9 RCIDU and the documents at hand, it is my own initial
conclusion that the 9RCIDU and other PNP units in the area had no
participation neither [sic] something to do with [sic] mysterious disappearance
of Engr. Morced Tagitis last October 30, 2007. Since doubt has been raised
regarding the emolument on the Islamic Development Bank Scholar program
of IDB that was reportedly deposited in the personal account of Engr. Tagitis
by the IDB central office in Jeddah, Kingdom of Saudi Arabia. Secondly, it
could might [sic] be done by resentment or sour grape among students who
are applying for the scholar [sic] and were denied which was allegedly
conducted/screened by the subject being the coordinator of said program.
20. It is also premature to conclude but it does or it may and [sic] presumed
that the motive behind the disappearance of the subject might be due to the
funds he maliciously spent for his personal interest and wanted to elude
responsibilities from the institution where he belong as well as to the Islamic
student scholars should the statement of Prof. Matli be true or there might be a
professional jealousy among them.
xxxx
It is recommended that the Writ of Amparo filed against the respondents be
dropped and dismissed considering on [sic] the police and military actions in
the area particularly the CIDG are exerting their efforts and religiously doing
their tasked [sic] in the conduct of its intelligence monitoring and investigation
for the early resolution of this instant case. But rest assured, our office, in
coordination with other law-enforcement agencies in the area, are
continuously and religiously conducting our investigation for the resolution of
this case.
On February 4, 2008, the CA issued an ALARM WARNING that Task Force
Tagitis did not appear to be exerting extraordinary efforts in resolving Tagitis‘
disappearance on the following grounds:28
(1) This Court FOUND that it was only as late as January 28, 2008, after the
hearing, that GEN. JOEL GOLTIAO and COL. AHIRON AJIRIM had requested
for clear photographs when it should have been standard operating procedure
in kidnappings or disappearances that the first agenda was for the police to
secure clear pictures of the missing person, Engr. Morced Tagitis, for
dissemination to all parts of the country and to neighboring countries. It had
been three (3) months since GEN. JOEL GOLTIAO admitted having been
informed on November 5, 2007 of the alleged abduction of Engr. Morced
Tagitis by alleged bad elements of the CIDG. It had been more than one (1)
month since the Writ of Amparo had been issued on December 28, 2007. It
had been three (3) weeks when battle formation was ordered through Task
Force Tagitis, on January 17, 2008. It was only on January 28, 2008 when the
Task Force Tagitis requested for clear and recent photographs of the missing
person, Engr. Morced Tagitis, despite the Task Force Tagitis‘ claim that they
already had an "all points bulletin", since November 5, 2007, on the missing
person, Engr. Morced Tagitis. How could the police look for someone who
disappeared if no clear photograph had been disseminated?
(2) Furthermore, Task Force Tagitis‘ COL. AHIROM AJIRIM informed this
Court that P/Supt KASIM was designated as Col. Ahirom Ajirim‘s replacement
in the latter‘s official designated post. Yet, P/Supt KASIM‘s subpoena was
returned to this Court unserved. Since this Court was made to understand that
it was P/Supt KASIM who was the petitioner‘s unofficial source of the military
intelligence information that Engr. Morced Tagitis was abducted by bad
elements of the CIDG (par. 15 of the Petition), the close contact between
P/Supt KASIM and Col. Ahirom Ajirim of TASK FORCE TAGITIS should have
ensured the appearance of Col. KASIM in response to this court‘s subpoena
and COL. KASIM could have confirmed the military intelligence information
that bad elements of the CIDG had abducted Engr. Morced Tagitis.
Testimonies for the Respondent
On January 7, 2008, the respondent, Mary Jean B. Tagitis, testified on direct
examination that she went to Jolo and Zamboanga in her efforts to locate her
husband. She said that a friend from Zamboanga holding a high position in the
military (whom she did not then identify) gave her information that allowed her
to "specify" her allegations, "particularly paragraph 15 of the petition."29 This
friend also told her that her husband "[was] in good hands."30 The respondent
also testified that she sought the assistance of her former boss in Davao City,
Land Bank Bajada Branch Manager Rudy Salvador, who told her that "PNP
CIDG is holding [her husband], Engineer Morced Tagitis."31 The respondent
recounted that she went to Camp Katitipan in Davao City where she met Col.
Julasirim Ahadin Kasim (Col. Kasim/Sr. Supt Kasim) who read to her and her
friends (who were then with her) a "highly confidential report" that contained
the "alleged activities of Engineer Tagitis" and informed her that her husband
was abducted because "he is under custodial investigation" for being a liaison
for "J.I. or Jema‘ah Islamiah."32
On January 17, 2008, the respondent on cross-examination testified that she
is Tagitis‘ second wife, and they have been married for thirteen years; Tagitis
was divorced from his first wife.33 She last communicated with her husband
on October 29, 2007 at around 7:31 p.m. through text messaging; Tagitis was
then on his way to Jolo, Sulu, from Zamboanga City.34
The respondent narrated that she learned of her husband‘s disappearance on
October 30, 2007 when her stepdaughter, Zaynah Tagitis (Zaynah), informed
her that she had not heard from her father since the time they arranged to
meet in Manila on October 31, 2007.35 The respondent explained that it took
her a few days (or on November 5, 2007) to personally ask Kunnong to report
her husband‘s disappearance to the Jolo Police Station, since she had the
impression that her husband could not communicate with her because his
cellular phone‘s battery did not have enough power, and that he would call her
when he had fully-charged his cellular phone‘s battery.36
The respondent also identified the high-ranking military friend, who gave her
the information found in paragraph 15 of her petition, as Lt. Col. Pedro L.
Ancanan, Jr (Col. Ancanan). She met him in Camp Karingal, Zamboanga
through her boss.37 She also testified that she was with three other people,
namely, Mrs. Marydel Martin Talbin and her two friends from Mati City, Davao
Oriental, when Col. Kasim read to them the contents of the "highly confidential
report" at Camp Katitipan, Davao City. The respondent further narrated that
Page 61 of 101
the report indicated that her husband met with people belonging to a terrorist
group and that he was under custodial investigation. She then told Col. Kasim
that her husband was a diabetic taking maintenance medication, and asked
that the Colonel relay to the persons holding him the need to give him his
medication.38
On February 11, 2008, TASK FORCE TAGITIS submitted two narrative
reports,39 signed by the respondent, detailing her efforts to locate her
husband which led to her meetings with Col. Ancanan of the Philippine Army
and Col. Kasim of the PNP. In her narrative report concerning her meeting
with Col. Ancanan, the respondent recounted, viz:40
On November 11, 2007, we went to Zamboanga City with my friend Mrs.
Marydel Talbin. Our flight from Davao City is 9:00 o‘clock in the morning; we
arrived at Zamboanga Airport at around 10:00 o‘clock. We [were] fetched by
the two staffs of Col. Ancanan. We immediately proceed [sic] to West
Mindanao Command (WESTMINCOM).
On that same day, we had private conversation with Col. Ancanan. He
interviewed me and got information about the personal background of Engr.
Morced N. Tagitis. After he gathered all information, he revealed to us the
contents of text messages they got from the cellular phone of the subject Engr.
Tagitis. One of the very important text messages of Engr. Tagitis sent to his
daughter Zaynah Tagitis was that she was not allowed to answer any
telephone calls in his condominium unit.
While we were there he did not tell us any information of the whereabouts of
Engr. Tagitis. After the said meeting with Col. Ancanan, he treated us as
guests to the city. His two staffs accompanied us to the mall to purchase our
plane ticket going back to Davao City on November 12, 2007.
When we arrived in Davao City on November 12, 2007 at 9:00 in the morning,
Col. Ancanan and I were discussing some points through phone calls. He
assured me that my husband is alive and he‘s last looked [sic] in Talipapao,
Jolo, Sulu. Yet I did not believe his given statements of the whereabouts of my
husband, because I contacted some of my friends who have access to the
groups of MILF, MNLF and ASG. I called up Col. Ancanan several times
begging to tell me the exact location of my husband and who held him but he
refused.
While I was in Jolo, Sulu on November 30, 2007, I called him up again
because the PNP, Jolo did not give me any information of the whereabouts of
my husband. Col. Ancanan told me that "Sana ngayon alam mo na kung saan
ang kinalalagyan ng asawa mo." When I was in Zamboanga, I was thinking of
dropping by the office of Col. Ancanan, but I was hesitant to pay him a visit for
the reason that the Chief of Police of Jolo told me not to contact any AFP
officials and he promised me that he can solve the case of my husband (Engr.
Tagitis) within nine days.
I appreciate the effort of Col. Ancanan on trying to solve the case of my
husband Engr. Morced Tagitis, yet failed to do so.
The respondent also narrated her encounter with Col. Kasim, as follows:41
On November 7, 2007, I went to Land Bank of the Philippines, Bajada Branch,
Davao City to meet Mr. Rudy Salvador. I told him that my husband, Engineer
Morced Tagitis was presumed to be abducted in Jolo, Sulu on October 30,
2007. I asked him a favor to contact his connections in the military in Jolo,
Sulu where the abduction of Engr. Tagitis took place. Mr. Salvador
immediately called up Camp Katitipan located in Davao City looking for high-
ranking official who can help me gather reliable information behind the
abduction of subject Engineer Tagitis.
On that same day, Mr. Salvador and my friend, Anna Mendoza, Executive
Secretary, accompanied me to Camp Katitipan to meet Col. Kasim. Mr.
Salvador introduced me to Col. Kasim and we had a short conversation. And
he assured me that he‘ll do the best he can to help me find my husband.
After a few weeks, Mr. Salvador called me up informing me up informing me
that I am to go to Camp Katitipan to meet Col. Kasim for he has an urgent,
confidential information to reveal.
On November 24, 2007, we went back to Camp Katitipan with my three
friends. That was the time that Col. Kasim read to us the confidential report
that Engr. Tagitis was allegedly connected [with] different terrorist [groups],
one of which he mentioned in the report was OMAR PATIK and a certain
SANTOS - a Balik Islam.
It is also said that Engr. Tagitis is carrying boxes of medicines for the injured
terrorists as a supplier. These are the two information that I can still remember.
It was written in a long bond paper with PNP Letterhead. It was not shown to
us, yet Col. Kasim was the one who read it for us.
He asked a favor to me that "Please don‘t quote my Name! Because this is a
raw report." He assured me that my husband is alive and he is in the custody
of the military for custodial investigation. I told him to please take care of my
husband because he has aliments and he recently took insulin for he is a
diabetic patient.
In my petition for writ of amparo, I emphasized the information that I got from
Kasim.
On February 11, 2008, the respondent presented Mrs. Marydel Martin Talbin
(Mrs. Talbin) to corroborate her testimony regarding her efforts to locate her
husband, in relation particularly with the information she received from Col.
Kasim. Mrs. Talbin testified that she was with the respondent when she went
to Zamboanga to see Col. Ancanan, and to Davao City at Camp Katitipan to
meet Col. Kasim.42
In Zamboanga, Mrs. Talbin recounted that they met with Col. Ancanan, who
told them that there was a report and that he showed them a series of text
messages from Tagitis‘ cellular phone, which showed that Tagitis and his
daughter would meet in Manila on October 30, 2007.43
She further narrated that sometime on November 24, 2007, she went with the
respondent together with two other companions, namely, Salvacion Serrano
and Mini Leong, to Camp Katitipan to talk to Col. Kasim.44 The respondent
asked Col. Kasim if he knew the exact location of Engr. Tagitis. Col. Kasim
told them that Tagitis was in good hands, although he was not certain whether
he was with the PNP or with the Armed Forces of the Philippines (AFP). She
further recounted that based on the report Col. Kasim read in their presence,
Tagitis was under custodial investigation because he was being charged with
terrorism; Tagitis in fact had been under surveillance since January 2007 up to
the time he was abducted when he was seen talking to Omar Patik and a
certain Santos of Bulacan, a "Balik Islam" charged with terrorism. Col. Kasim
also told them that he could not give a copy of the report because it was a
"raw report."45 She also related that the Col. Kasim did not tell them exactly
where Tagitis was being kept, although he mentioned Talipapao, Sulu.Prof.,
lalabas din yan."50 Prof. Matli also emphasized that despite what his January
4, 2008 affidavit indicated,51 he never told PS Supt. Pingay, or made any
accusation, that Tagitis took away money entrusted to him.52 Prof. Matli
confirmed, however, that that he had received an e-mail report53 from Nuraya
Lackian of the Office of Muslim Affairs in Manila that the IDB was seeking
assistance of the office in locating the funds of IDB scholars deposited in
Tagitis‘ personal account.54
On cross-examination by the respondent‘s counsel, Prof. Matli testified that his
January 4, 2008 affidavit was already prepared when PS Supt. Pingay asked
him to sign it.55 Prof Matli clarified that although he read the affidavit before
signing it, he "was not so much aware of… [its] contents."56
On February 11, 2008, the petitioners presented Col. Kasim to rebut material
portions of the respondent‘s testimony, particularly the allegation that he had
stated that Tagitis was in the custody of either the military or the PNP.57 Col.
Kasim categorically denied the statements made by the respondent in her
narrative report, specifically: (1) that Tagitis was seen carrying boxes of
medicines as supplier for the injured terrorists; (2) that Tagitis was under the
custody of the military, since he merely said to the respondent that "your
husband is in good hands" and is "probably taken cared of by his armed
abductors;" and (3) that Tagitis was under custodial investigation by the
military, the PNP or the CIDG Zamboanga City.58 Col. Kasim emphasized that
the "informal letter" he received from his informant in Sulu did not indicate that
Tagitis was in the custody of the CIDG.59 He also stressed that the
information he provided to the respondent was merely a "raw report" sourced
from "barangay intelligence" that still needed confirmation and "follow-up" as to
its veracity.60
On cross-examination, Col. Kasim testified that the information he gave the
respondent was given to him by his informant, who was a "civilian asset,"
through a letter which he considered as "unofficial."61 Col. Kasim stressed
that the letter was only meant for his "consumption" and not for reading by
others.62 He testified further that he destroyed the letter right after he read it
to the respondent and her companions because "it was not important to him"
and also because the information it contained had no importance in relation
with the abduction of Tagitis.63 He explained that he did not keep the letter
because it did not contain any information regarding the whereabouts of
Tagitis and the person(s) responsible for his abduction.64
In the same hearing on February 11, 2008, the petitioners also presented
Police Senior Superintendent Jose Volpane Pante (Col. Pante), Chief of the
CIDG-9, to disprove the respondent‘s allegation that Tagitis was in the custody
of CIDG-Zamboanga City.65 Col. Pante clarified that the CIDG was the
"investigative arm" of the PNP, and that the CIDG "investigates and
prosecutes all cases involving violations in the Revised Penal Code
particularly those considered as heinous crimes."66 Col. Pante further testified
that the allegation that 9 RCIDU personnel were involved in the disappearance
of Tagitis was baseless, since they did not conduct any operation in Jolo, Sulu
before or after Tagitis‘ reported disappearance.67 Col. Pante added that the
four (4) personnel assigned to the Sulu CIDT had no capability to conduct any
"operation," since they were only assigned to investigate matters and to
monitor the terrorism situation.68 He denied that his office conducted any
surveillance on Tagitis prior to the latter‘s disappearance.69 Col. Pante further
testified that his investigation of Tagitis‘ disappearance was unsuccessful; the
investigation was "still facing a blank wall" on the whereabouts of Tagitis.70
THE CA RULING
On March 7, 2008, the CA issued its decision71 confirming that the
disappearance of Tagitis was an "enforced disappearance" under the United
Nations (UN) Declaration on the Protection of All Persons from Enforced
Disappearances.72 The CA ruled that when military intelligence pinpointed the
investigative arm of the PNP (CIDG) to be involved in the abduction, the
missing-person case qualified as an enforced disappearance. The conclusion
that the CIDG was involved was based on the respondent‘s testimony,
corroborated by her companion, Mrs. Talbin. The CA noted that the
Page 62 of 101
information that the CIDG, as the police intelligence arm, was involved in
Tagitis‘ abduction came from no less than the military – an independent
agency of government. The CA thus greatly relied on the "raw report" from
Col. Kasim‘s asset, pointing to the CIDG‘s involvement in Tagitis‘ abduction.
The CA held that "raw reports" from an "asset" carried "great weight" in the
intelligence world. It also labeled as "suspect" Col. Kasim‘s subsequent and
belated retraction of his statement that the military, the police, or the CIDG
was involved in the abduction of Tagitis.
The CA characterized as "too farfetched and unbelievable" and "a bedlam of
speculation" police theories painting the disappearance as "intentional" on the
part of Tagitis. He had no previous brushes with the law or any record of
overstepping the bounds of any trust regarding money entrusted to him; no
student of the IDB scholarship program ever came forward to complain that he
or she did not get his or her stipend. The CA also found no basis for the police
theory that Tagitis was "trying to escape from the clutches of his second wife,"
on the basis of the respondent‘s testimony that Tagitis was a Muslim who
could have many wives under the Muslim faith, and that there was "no issue"
at all when the latter divorced his first wife in order to marry the second.
Finally, the CA also ruled out kidnapping for ransom by the Abu Sayyaf or by
the ARMM paramilitary as the cause for Tagitis‘ disappearance, since the
respondent, the police and the military noted that there was no
acknowledgement of Tagitis‘ abduction or demand for payment of ransom –
the usual modus operandi of these terrorist groups.
Based on these considerations, the CA thus extended the privilege of the writ
to Tagitis and his family, and directed the CIDG Chief, Col. Jose Volpane
Pante, PNP Chief Avelino I. Razon, Task Force Tagitis heads Gen. Joel
Goltiao and Col. Ahiron Ajirim, and PACER Chief Sr. Supt. Leonardo A.
Espina to exert extraordinary diligence and efforts to protect the life, liberty
and security of Tagitis, with the obligation to provide monthly reports of their
actions to the CA. At the same time, the CA dismissed the petition against the
then respondents from the military, Lt. Gen Alexander Yano and Gen. Ruben
Rafael, based on the finding that it was PNP-CIDG, not the military, that was
involved.
On March 31, 2008, the petitioners moved to reconsider the CA decision, but
the CA denied the motion in its Resolution of April 9, 2008.73
THE PETITION
In this Rule 45 appeal questioning the CA‘s March 7, 2008 decision, the
petitioners mainly dispute the sufficiency in form and substance of the Amparo
petition filed before the CA; the sufficiency of the legal remedies the
respondent took before petitioning for the writ; the finding that the rights to life,
liberty and security of Tagitis had been violated; the sufficiency of evidence
supporting the conclusion that Tagitis was abducted; the conclusion that the
CIDG Zamboanga was responsible for the abduction; and, generally, the ruling
that the respondent discharged the burden of proving the allegations of the
petition by substantial evidence.74
THE COURT‘S RULING
We do not find the petition meritorious.
Sufficiency in Form and Substance
In questioning the sufficiency in form and substance of the respondent‘s
Amparo petition, the petitioners contend that the petition violated Section 5(c),
(d), and (e) of the Amparo Rule. Specifically, the petitioners allege that the
respondent failed to:
1) allege any act or omission the petitioners committed in violation of Tagitis‘
rights to life, liberty and security;
2) allege in a complete manner how Tagitis was abducted, the persons
responsible for his disappearance, and the respondent‘s source of information;
3) allege that the abduction was committed at the petitioners‘ instructions or
with their consent;
4) implead the members of CIDG regional office in Zamboanga alleged to
have custody over her husband;
5) attach the affidavits of witnesses to support her accusations;
6) allege any action or inaction attributable to the petitioners in the
performance of their duties in the investigation of Tagitis‘ disappearance; and
7) specify what legally available efforts she took to determine the fate or
whereabouts of her husband.
A petition for the Writ of Amparo shall be signed and verified and shall allege,
among others (in terms of the portions the petitioners cite):75
(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
The framers of the Amparo Rule never intended Section 5(c) to be complete in
every detail in stating the threatened or actual violation of a victim‘s rights. As
in any other initiatory pleading, the pleader must of course state the ultimate
facts constituting the cause of action, omitting the evidentiary details.76 In an
Amparo petition, however, this requirement must be read in light of the nature
and purpose of the proceeding, which addresses a situation of uncertainty; the
petitioner may not be able to describe with certainty how the victim exactly
disappeared, or who actually acted to kidnap, abduct or arrest him or her, or
where the victim is detained, because these information may purposely be
hidden or covered up by those who caused the disappearance. In this type of
situation, to require the level of specificity, detail and precision that the
petitioners apparently want to read into the Amparo Rule is to make this Rule
a token gesture of judicial concern for violations of the constitutional rights to
life, liberty and security.
To read the Rules of Court requirement on pleadings while addressing the
unique Amparo situation, the test in reading the petition should be to
determine whether it contains the details available to the petitioner under the
circumstances, while presenting a cause of action showing a violation of the
victim‘s rights to life, liberty and security through State or private party action.
The petition should likewise be read in its totality, rather than in terms of its
isolated component parts, to determine if the required elements – namely, of
the disappearance, the State or private action, and the actual or threatened
violations of the rights to life, liberty or security – are present.
In the present case, the petition amply recites in its paragraphs 4 to 11 the
circumstances under which Tagitis suddenly dropped out of sight after
engaging in normal activities, and thereafter was nowhere to be found despite
efforts to locate him. The petition alleged, too, under its paragraph 7, in
relation to paragraphs 15 and 16, that according to reliable information, police
operatives were the perpetrators of the abduction. It also clearly alleged how
Tagitis‘ rights to life, liberty and security were violated when he was "forcibly
taken and boarded on a motor vehicle by a couple of burly men believed to be
police intelligence operatives," and then taken "into custody by the
respondents‘ police intelligence operatives since October 30, 2007, specifically
by the CIDG, PNP Zamboanga City, x x x held against his will in an earnest
attempt of the police to involve and connect [him] with different terrorist
groups."77
These allegations, in our view, properly pleaded ultimate facts within the
pleader‘s knowledge about Tagitis‘ disappearance, the participation by agents
of the State in this disappearance, the failure of the State to release Tagitis or
to provide sufficient information about his whereabouts, as well as the actual
violation of his right to liberty. Thus, the petition cannot be faulted for any
failure in its statement of a cause of action.
If a defect can at all be attributed to the petition, this defect is its lack of
supporting affidavit, as required by Section 5(c) of the Amparo Rule. Owing to
the summary nature of the proceedings for the writ and to facilitate the
resolution of the petition, the Amparo Rule incorporated the requirement for
supporting affidavits, with the annotation that these can be used as the
affiant‘s direct testimony.78 This requirement, however, should not be read as
an absolute one that necessarily leads to the dismissal of the petition if not
strictly followed. Where, as in this case, the petitioner has substantially
complied with the requirement by submitting a verified petition sufficiently
detailing the facts relied upon, the strict need for the sworn statement that an
affidavit represents is essentially fulfilled. We note that the failure to attach the
required affidavits was fully cured when the respondent and her witness (Mrs.
Talbin) personally testified in the CA hearings held on January 7 and 17 and
February 18, 2008 to swear to and flesh out the allegations of the petition.
Thus, even on this point, the petition cannot be faulted.
Section 5(d) of the Amparo Rule requires that prior investigation of an alleged
disappearance must have been made, specifying the manner and results of
the investigation. Effectively, this requirement seeks to establish at the earliest
opportunity the level of diligence the public authorities undertook in relation
with the reported disappearance.79
We reject the petitioners‘ argument that the respondent‘s petition did not
comply with the Section 5(d) requirements of the Amparo Rule, as the petition
specifies in its paragraph 11 that Kunnong and his companions immediately
reported Tagitis‘ disappearance to the police authorities in Jolo, Sulu as soon
as they were relatively certain that he indeed had disappeared. The police,
however, gave them the "ready answer" that Tagitis could have been abducted
by the Abu Sayyaf group or other anti-government groups. The respondent
also alleged in paragraphs 17 and 18 of her petition that she filed a "complaint"
with the PNP Police Station in Cotobato and in Jolo, but she was told of "an
intriguing tale" by the police that her husband was having "a good time with
another woman." The disappearance was alleged to have been reported, too,
to no less than the Governor of the ARMM, followed by the respondent‘s
personal inquiries that yielded the factual bases for her petition.80
These allegations, to our mind, sufficiently specify that reports have been
made to the police authorities, and that investigations should have followed.
That the petition did not state the manner and results of the investigation that
the Amparo Rule requires, but rather generally stated the inaction of the
police, their failure to perform their duty to investigate, or at the very least, their
reported failed efforts, should not be a reflection on the completeness of the
Page 63 of 101
petition. To require the respondent to elaborately specify the names, personal
circumstances, and addresses of the investigating authority, as well the
manner and conduct of the investigation is an overly strict interpretation of
Section 5(d), given the respondent‘s frustrations in securing an investigation
with meaningful results. Under these circumstances, we are more than
satisfied that the allegations of the petition on the investigations undertaken
are sufficiently complete for purposes of bringing the petition forward.
Section 5(e) is in the Amparo Rule to prevent the use of a petition – that
otherwise is not supported by sufficient allegations to constitute a proper
cause of action – as a means to "fish" for evidence.81 The petitioners contend
that the respondent‘s petition did not specify what "legally available efforts
were taken by the respondent," and that there was an "undue haste" in the
filing of the petition when, instead of cooperating with authorities, the
respondent immediately invoked the Court‘s intervention.
We do not see the respondent‘s petition as the petitioners view it.
Section 5(e) merely requires that the Amparo petitioner (the respondent in the
present case) allege "the actions and recourses taken to determine the fate or
whereabouts of the aggrieved party and the identity of the person responsible
for the threat, act or omission." The following allegations of the respondent‘s
petition duly outlined the actions she had taken and the frustrations she
encountered, thus compelling her to file her petition.
xxxx
7. Soon after the student left the room, Engr. Tagitis went out of the pension
house to take his early lunch but while out on the street, a couple of burly men
believed to be police intelligence operatives, forcibly took him and boarded the
latter on a motor vehicle then sped away without the knowledge of his student,
Arsimin Kunnong;
xxxx
10. When Kunnong could not locate Engr. Tagitis, the former sought the help
of another IDB scholar and reported the matter to the local police agency;
11. Arsimin Kunnong, including his friends and companions in Jolo, exerted
efforts in trying to locate the whereabouts of Engr. Tagitis and when he
reported the matter to the police authorities in Jolo, he was immediately given
a ready answer that Engr. Tagitis could [have been] abducted by the Abu
Sayyaf group and other groups known to be fighting against the government;
12. Being scared with these suggestions and insinuations of the police
officers, Kunnong reported the matter to the [respondent](wife of Engr. Tagitis)
by phone and other responsible officers and coordinators of the IDB
Scholarship Programme in the Philippines who alerted the office of the
Governor of ARMM who was then preparing to attend the OIC meeting in
Jeddah, Saudi Arabia;
13. [The respondent], on the other hand, approached some of her co-
employees with the Land Bank in Digos branch, Digos City, Davao del Sur,
who likewise sought help from some of their friends in the military who could
help them find/locate the whereabouts of her husband;
xxxx
15. According to reliable information received by the [respondent], subject
Engr. Tagitis is in the custody of police intelligence operatives, specifically with
the CIDG, PNP Zamboanga City, being held against his will in an earnest
attempt of the police to involve and connect Engr. Tagitis with the different
terrorist groups;
xxxx
17. [The respondent] filed her complaint with the PNP Police Station at the
ARMM in Cotobato and in Jolo, as suggested by her friends, seeking their help
to find her husband, but [the respondent‘s] request and pleadings failed to
produce any positive results
xxxx
20. Lately, [respondent] was again advised by one of the [petitioners] to go to
the ARMM Police Headquarters again in Cotobato City and also to the
different Police Headquarters including the police headquarters in Davao City,
in Zamboanga City, in Jolo, and in Camp Crame, Quezon City, and all these
places have been visited by the [respondent] in search for her husband, which
entailed expenses for her trips to these places thereby resorting her to
borrowings and beggings [sic] for financial help from friends and relatives only
to try complying to the different suggestions of these police officers, despite of
which, her efforts produced no positive results up to the present time;
xxxx
25. [The respondent] has exhausted all administrative avenues and remedies
but to no avail, and under the circumstances, [respondent] has no other plain,
speedy and adequate remedy to protect and get the release of subject Engr.
Morced Tagitis from the illegal clutches of [the petitioners], their intelligence
operatives and the like which are in total violation of the subject‘s human and
constitutional rights, except the issuance of a WRIT OF AMPARO.
Based on these considerations, we rule that the respondent‘s petition for the
Writ of Amparo is sufficient in form and substance and that the Court of
Appeals had every reason to proceed with its consideration of the case.
The Desaparecidos
The present case is one of first impression in the use and application of the
Rule on the Writ of Amparo in an enforced disappearance situation. For a
deeper appreciation of the application of this Rule to an enforced
disappearance situation, a brief look at the historical context of the writ and
enforced disappearances would be very helpful.
The phenomenon of enforced disappearance arising from State action first
attracted notice in Adolf Hitler‘s Nact und Nebel Erlass or Night and Fog
Decree of December 7, 1941.82 The Third Reich‘s Night and Fog Program, a
State policy, was directed at persons in occupied territories "endangering
German security"; they were transported secretly to Germany where they
disappeared without a trace. In order to maximize the desired intimidating
effect, the policy prohibited government officials from providing information
about the fate of these targeted persons.83
In the mid-1970s, the phenomenon of enforced disappearances resurfaced,
shocking and outraging the world when individuals, numbering anywhere from
6,000 to 24,000, were reported to have "disappeared" during the military
regime in Argentina. Enforced disappearances spread in Latin America, and
the issue became an international concern when the world noted its
widespread and systematic use by State security forces in that continent under
Operation Condor84 and during the Dirty War85 in the 1970s and 1980s. The
escalation of the practice saw political activists secretly arrested, tortured, and
killed as part of governments‘ counter-insurgency campaigns. As this form of
political brutality became routine elsewhere in the continent, the Latin
American media standardized the term "disappearance" to describe the
phenomenon. The victims of enforced disappearances were called the
"desaparecidos,"86 which literally means the "disappeared ones."87 In
general, there are three different kinds of "disappearance" cases:
1) those of people arrested without witnesses or without positive identification
of the arresting agents and are never found again;
2) those of prisoners who are usually arrested without an appropriate warrant
and held in complete isolation for weeks or months while their families are
unable to discover their whereabouts and the military authorities deny having
them in custody until they eventually reappear in one detention center or
another; and
3) those of victims of "salvaging" who have disappeared until their lifeless
bodies are later discovered.88
In the Philippines, enforced disappearances generally fall within the first two
categories,89 and 855 cases were recorded during the period of martial law
from 1972 until 1986. Of this number, 595 remained missing, 132 surfaced
alive and 127 were found dead. During former President Corazon C. Aquino‘s
term, 820 people were reported to have disappeared and of these, 612 cases
were documented. Of this number, 407 remain missing, 108 surfaced alive
and 97 were found dead. The number of enforced disappearances dropped
during former President Fidel V. Ramos‘ term when only 87 cases were
reported, while the three-year term of former President Joseph E. Estrada
yielded 58 reported cases. KARAPATAN, a local non-governmental
organization, reports that as of March 31, 2008, the records show that there
were a total of 193 victims of enforced disappearance under incumbent
President Gloria M. Arroyo‘s administration. The Commission on Human
Rights‘ records show a total of 636 verified cases of enforced disappearances
from 1985 to 1993. Of this number, 406 remained missing, 92 surfaced alive,
62 were found dead, and 76 still have undetermined status.90 Currently, the
United Nations Working Group on Enforced or Involuntary Disappearance91
reports 619 outstanding cases of enforced or involuntary disappearances
covering the period December 1, 2007 to November 30, 2008.92
Enforced Disappearances
Under Philippine Law
The Amparo Rule expressly provides that the "writ shall cover extralegal
killings and enforced disappearances or threats thereof."93 We note that
although the writ specifically covers "enforced disappearances," this concept is
neither defined nor penalized in this jurisdiction. The records of the Supreme
Court Committee on the Revision of Rules (Committee) reveal that the drafters
of the Amparo Rule initially considered providing an elemental definition of the
concept of enforced disappearance:94
JUSTICE MARTINEZ: I believe that first and foremost we should come up or
formulate a specific definition [for] extrajudicial killings and enforced
disappearances. From that definition, then we can proceed to formulate the
rules, definite rules concerning the same.
CHIEF JUSTICE PUNO: … As things stand, there is no law penalizing
extrajudicial killings and enforced disappearances… so initially also we have
to [come up with] the nature of these extrajudicial killings and enforced
disappearances [to be covered by the Rule] because our concept of killings
and disappearances will define the jurisdiction of the courts. So we‘ll have to
agree among ourselves about the nature of killings and disappearances for
instance, in other jurisdictions, the rules only cover state actors. That is an
element incorporated in their concept of extrajudicial killings and enforced
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disappearances. In other jurisdictions, the concept includes acts and
omissions not only of state actors but also of non state actors. Well, more
specifically in the case of the Philippines for instance, should these rules
include the killings, the disappearances which may be authored by let us say,
the NPAs or the leftist organizations and others. So, again we need to define
the nature of the extrajudicial killings and enforced disappearances that will be
covered by these rules. [Emphasis supplied] 95
In the end, the Committee took cognizance of several bills filed in the House of
Representatives96 and in the Senate97 on extrajudicial killings and enforced
disappearances, and resolved to do away with a clear textual definition of
these terms in the Rule. The Committee instead focused on the nature and
scope of the concerns within its power to address and provided the
appropriate remedy therefor, mindful that an elemental definition may intrude
into the ongoing legislative efforts.98
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.99 The simple reason is that the Legislature has not spoken on
the matter; the determination of what acts are criminal and what the
corresponding penalty these criminal acts should carry are matters of
substantive law that only the Legislature has the power to enact under the
country‘s constitutional scheme and power structure.
Even without the benefit of directly applicable substantive laws on extra-
judicial killings and enforced disappearances, however, the Supreme Court is
not powerless to act under its own constitutional mandate to promulgate "rules
concerning the protection and enforcement of constitutional rights, pleading,
practice and procedure in all courts,"100 since extrajudicial killings and
enforced disappearances, by their nature and purpose, constitute State or
private party violation of the constitutional rights of individuals to life, liberty
and security. Although the Court‘s power is strictly procedural and as such
does not diminish, increase or modify substantive rights, the legal protection
that the Court can provide can be very meaningful through the procedures it
sets in addressing extrajudicial killings and enforced disappearances. The
Court, through its procedural rules, can set the procedural standards and
thereby directly compel the public authorities to act on actual or threatened
violations of constitutional rights. To state the obvious, judicial intervention can
make a difference – even if only procedurally – in a situation when the very
same investigating public authorities may have had a hand in the threatened
or actual violations of constitutional rights.
Lest this Court intervention be misunderstood, we clarify once again that we
do not rule on any issue of criminal culpability for the extrajudicial killing or
enforced disappearance. This is an issue that requires criminal action before
our criminal courts based on our existing penal laws. Our intervention is in
determining whether an enforced disappearance has taken place and who is
responsible or accountable for this disappearance, and to define and impose
the appropriate remedies to address it. The burden for the public authorities to
discharge in these situations, under the Rule on the Writ of Amparo, is twofold.
The first is to ensure that all efforts at disclosure and investigation are
undertaken under pain of indirect contempt from this Court when
governmental efforts are less than what the individual situations require. The
second is to address the disappearance, so that the life of the victim is
preserved and his or her liberty and security restored. In these senses, our
orders and directives relative to the writ are continuing efforts that are not truly
terminated until the extrajudicial killing or enforced disappearance is fully
addressed by the complete determination of the fate and the whereabouts of
the victim, by the production of the disappeared person and the restoration of
his or her liberty and security, and, in the proper case, by the commencement
of criminal action against the guilty parties.
Enforced Disappearance
Under International Law
From the International Law perspective, involuntary or enforced
disappearance is considered a flagrant violation of human rights.101 It does
not only violate the right to life, liberty and security of the desaparecido; it
affects their families as well through the denial of their right to information
regarding the circumstances of the disappeared family member. Thus,
enforced disappearances have been said to be "a double form of torture," with
"doubly paralyzing impact for the victims," as they "are kept ignorant of their
own fates, while family members are deprived of knowing the whereabouts of
their detained loved ones" and suffer as well the serious economic hardship
and poverty that in most cases follow the disappearance of the household
breadwinner.102
The UN General Assembly first considered the issue of "Disappeared
Persons" in December 1978 under Resolution 33/173. The Resolution
expressed the General Assembly‘s deep concern arising from "reports from
various parts of the world relating to enforced or involuntary disappearances,"
and requested the "UN Commission on Human Rights to consider the issue of
enforced disappearances with a view to making appropriate
recommendations."103
In 1992, in response to the reality that the insidious practice of enforced
disappearance had become a global phenomenon, the UN General Assembly
adopted the Declaration on the Protection of All Persons from Enforced
Disappearance (Declaration).104 This Declaration, for the first time, provided
in its third preambular clause a working description of enforced
disappearance, as follows:

Deeply concerned that in many countries, often in a persistent manner,
enforced disappearances occur, in the sense that persons are arrested,
detained or abducted against their will or otherwise deprived of their liberty by
officials of different branches or levels of Government, or by organized groups
or private individuals acting on behalf of, or with the support, direct or indirect,
consent or acquiescence of the Government, followed by a refusal to disclose
the fate or whereabouts of the persons concerned or a refusal to acknowledge
the deprivation of their liberty, which places such persons outside the
protection of the law. [Emphasis supplied]
Fourteen years after (or on December 20, 2006), the UN General Assembly
adopted the International Convention for the Protection of All Persons from
Enforced Disappearance (Convention).105 The Convention was opened for
signature in Paris, France on February 6, 2007.106 Article 2 of the Convention
defined enforced disappearance as follows:
For the purposes of this Convention, "enforced disappearance" is considered
to be the arrest, detention, abduction or any other form of deprivation of liberty
by agents of the State or by persons or groups of persons acting with the
authorization, support or acquiescence of the State, followed by a refusal to
acknowledge the deprivation of liberty or by concealment of the fate or
whereabouts of the disappeared person, which place such a person outside
the protection of the law. [Emphasis supplied]
The Convention is the first universal human rights instrument to assert that
there is a right not to be subject to enforced disappearance107 and that this
right is non-derogable.108 It provides that no one shall be subjected to
enforced disappearance under any circumstances, be it a state of war, internal
political instability, or any other public emergency. It obliges State Parties to
codify enforced disappearance as an offense punishable with appropriate
penalties under their criminal law.109 It also recognizes the right of relatives of
the disappeared persons and of the society as a whole to know the truth on
the fate and whereabouts of the disappeared and on the progress and results
of the investigation.110 Lastly, it classifies enforced disappearance as a
continuing offense, such that statutes of limitations shall not apply until the fate
and whereabouts of the victim are established.111
Binding Effect of UN Action on the Philippines
To date, the Philippines has neither signed nor ratified the Convention, so that
the country is not yet committed to enact any law penalizing enforced
disappearance as a crime. The absence of a specific penal law, however, is
not a stumbling block for action from this Court, as heretofore mentioned;
underlying every enforced disappearance is a violation of the constitutional
rights to life, liberty and security that the Supreme Court is mandated by the
Constitution to protect through its rule-making powers.
Separately from the Constitution (but still pursuant to its terms), the Court is
guided, in acting on Amparo cases, by the reality that the Philippines is a
member of the UN, bound by its Charter and by the various conventions we
signed and ratified, particularly the conventions touching on humans rights.
Under the UN Charter, the Philippines pledged to "promote universal respect
for, and observance of, human rights and fundamental freedoms for all without
distinctions as to race, sex, language or religion."112 Although no universal
agreement has been reached on the precise extent of the "human rights and
fundamental freedoms" guaranteed to all by the Charter,113 it was the UN
itself that issued the Declaration on enforced disappearance, and this
Declaration states:114
Any act of enforced disappearance is an offence to dignity. It is condemned as
a denial of the purposes of the Charter of the United Nations and as a grave
and flagrant violation of human rights and fundamental freedoms proclaimed in
the Universal Declaration of Human Rights and reaffirmed and developed in
international instruments in this field. [Emphasis supplied]
As a matter of human right and fundamental freedom and as a policy matter
made in a UN Declaration, the ban on enforced disappearance cannot but
have its effects on the country, given our own adherence to "generally
accepted principles of international law as part of the law of the land."
In the recent case of Pharmaceutical and Health Care Association of the
Philippines v. Duque III, we held that:
Under the 1987 Constitution, international law can become part of the sphere
of domestic law either by transformation or incorporation. The transformation
method requires that an international law be transformed into a domestic law
through a constitutional mechanism such as local legislation. The
incorporation method applies when, by mere constitutional declaration,
international law is deemed to have the force of domestic law. [Emphasis
supplied]
We characterized "generally accepted principles of international law" as norms
of general or customary international law that are binding on all states. We
held further:
[G]enerally accepted principles of international law, by virtue of the
incorporation clause of the Constitution, form part of the laws of the land even
if they do not derive from treaty obligations. The classical formulation in
international law sees those customary rules accepted as binding result from
the combination [of] two elements: the established, widespread, and
consistent practice on the part of States; and a psychological element known
as the opinion juris sive necessitates (opinion as to law or necessity). Implicit
Page 65 of 101
in the latter element is a belief that the practice in question is rendered
obligatory by the existence of a rule of law requiring it. [Emphasis in the
original]
The most widely accepted statement of sources of international law today is
Article 38(1) of the Statute of the International Court of Justice, which provides
that the Court shall apply "international custom, as evidence of a general
practice accepted as law."118 The material sources of custom include State
practice, State legislation, international and national judicial decisions, recitals
in treaties and other international instruments, a pattern of treaties in the same
form, the practice of international organs, and resolutions relating to legal
questions in the UN General Assembly.119 Sometimes referred to as
"evidence" of international law,120 these sources identify the substance and
content of the obligations of States and are indicative of the "State practice"
and "opinio juris" requirements of international law.121 We note the following
in these respects:
First, barely two years from the adoption of the Declaration, the Organization
of American States (OAS) General Assembly adopted the Inter-American
Convention on Enforced Disappearance of Persons in June 1994.122 State
parties undertook under this Convention "not to practice, permit, or tolerate the
forced disappearance of persons, even in states of emergency or suspension
of individual guarantees."123 One of the key provisions includes the States‘
obligation to enact the crime of forced disappearance in their respective
national criminal laws and to establish jurisdiction over such cases when the
crime was committed within their jurisdiction, when the victim is a national of
that State, and "when the alleged criminal is within its territory and it does not
proceed to extradite him," which can be interpreted as establishing universal
jurisdiction among the parties to the Inter-American Convention.124 At
present, Colombia, Guatemala, Paraguay, Peru and Venezuela have enacted
separate laws in accordance with the Inter-American Convention and have
defined activities involving enforced disappearance to be criminal.1251avvphi1
Second, in Europe, the European Convention on Human Rights has no explicit
provision dealing with the protection against enforced disappearance. The
European Court of Human Rights (ECHR), however, has applied the
Convention in a way that provides ample protection for the underlying rights
affected by enforced disappearance through the Convention‘s Article 2 on the
right to life; Article 3 on the prohibition of torture; Article 5 on the right to liberty
and security; Article 6, paragraph 1 on the right to a fair trial; and Article 13 on
the right to an effective remedy. A leading example demonstrating the
protection afforded by the European Convention is Kurt v. Turkey,126 where
the ECHR found a violation of the right to liberty and security of the
disappeared person when the applicant‘s son disappeared after being taken
into custody by Turkish forces in the Kurdish village of Agilli in November
1993. It further found the applicant (the disappeared person‘s mother) to be a
victim of a violation of Article 3, as a result of the silence of the authorities and
the inadequate character of the investigations undertaken. The ECHR also
saw the lack of any meaningful investigation by the State as a violation of
Article 13.127
Third, in the United States, the status of the prohibition on enforced
disappearance as part of customary international law is recognized in the most
recent edition of Restatement of the Law: The Third,128 which provides that
"[a] State violates international law if, as a matter of State policy, it practices,
encourages, or condones… (3) the murder or causing the disappearance of
individuals."129 We significantly note that in a related matter that finds close
identification with enforced disappearance – the matter of torture – the United
States Court of Appeals for the Second Circuit Court held in Filartiga v. Pena-
Irala130 that the prohibition on torture had attained the status of customary
international law. The court further elaborated on the significance of UN
declarations, as follows:
These U.N. declarations are significant because they specify with great
precision the obligations of member nations under the Charter. Since their
adoption, "(m)embers can no longer contend that they do not know what
human rights they promised in the Charter to promote." Moreover, a U.N.
Declaration is, according to one authoritative definition, "a formal and solemn
instrument, suitable for rare occasions when principles of great and lasting
importance are being enunciated." Accordingly, it has been observed that the
Universal Declaration of Human Rights "no longer fits into the dichotomy of
‗binding treaty‘ against ‗non-binding pronouncement,' but is rather an
authoritative statement of the international community." Thus, a Declaration
creates an expectation of adherence, and "insofar as the expectation is
gradually justified by State practice, a declaration may by custom become
recognized as laying down rules binding upon the States." Indeed, several
commentators have concluded that the Universal Declaration has become, in
toto, a part of binding, customary international law. [Citations omitted]
Fourth, in interpreting Article 2 (right to an effective domestic remedy) of the
International Convention on Civil and Political Rights (ICCPR), to which the
Philippines is both a signatory and a State Party, the UN Human Rights
Committee, under the Office of the High Commissioner for Human Rights, has
stated that the act of enforced disappearance violates Articles 6 (right to life), 7
(prohibition on torture, cruel, inhuman or degrading treatment or punishment)
and 9 (right to liberty and security of the person) of the ICCPR, and the act
may also amount to a crime against humanity.131
Fifth, Article 7, paragraph 1 of the 1998 Rome Statute establishing the
International Criminal Court (ICC) also covers enforced disappearances
insofar as they are defined as crimes against humanity,132 i.e., crimes
"committed as part of a widespread or systematic attack against any civilian
population, with knowledge of the attack." While more than 100 countries have
ratified the Rome Statute,133 the Philippines is still merely a signatory and has
not yet ratified it. We note that Article 7(1) of the Rome Statute has been
incorporated in the statutes of other international and hybrid tribunals,
including Sierra Leone Special Court, the Special Panels for Serious Crimes in
Timor-Leste, and the Extraordinary Chambers in the Courts of Cambodia.134
In addition, the implementing legislation of State Parties to the Rome Statute
of the ICC has given rise to a number of national criminal provisions also
covering enforced disappearance.135
While the Philippines is not yet formally bound by the terms of the Convention
on enforced disappearance (or by the specific terms of the Rome Statute) and
has not formally declared enforced disappearance as a specific crime, the
above recital shows that enforced disappearance as a State practice has been
repudiated by the international community, so that the ban on it is now a
generally accepted principle of international law, which we should consider a
part of the law of the land, and which we should act upon to the extent already
allowed under our laws and the international conventions that bind us.
The following civil or political rights under the Universal Declaration of Human
Rights, the ICCPR and the International Convention on Economic, Social and
Cultural Rights (ICESR) may be infringed in the course of a
disappearance:136
1) the right to recognition as a person before the law;
2) the right to liberty and security of the person;
3) the right not to be subjected to torture and other cruel, inhuman or
degrading treatment or punishment;
4) the right to life, when the disappeared person is killed;
5) the right to an identity;
6) the right to a fair trial and to judicial guarantees;
7) the right to an effective remedy, including reparation and compensation;
8) the right to know the truth regarding the circumstances of a disappearance.
9) the right to protection and assistance to the family;
10) the right to an adequate standard of living;
11) the right to health; and
12) the right to education [Emphasis supplied]
Article 2 of the ICCPR, which binds the Philippines as a state party, provides:
Article 2
3. Each State Party to the present Covenant undertakes:
(a) To ensure that any person whose rights or freedoms as herein recognized
are violated shall have an effective remedy, notwithstanding that the violation
has been committed by persons acting in an official capacity;
(b) To ensure that any person claiming such a remedy shall have his right
thereto determined by competent judicial, administrative or legislative
authorities, or by any other competent authority provided for by the legal
system of the State, and to develop the possibilities of judicial remedy;
(c) To ensure that the competent authorities shall enforce such remedies when
granted. [Emphasis supplied]
In General Comment No. 31, the UN Human Rights Committee opined that the
right to an effective remedy under Article 2 of the ICCPR includes the
obligation of the State to investigate ICCPR violations promptly, thoroughly,
and effectively, viz:137
15. Article 2, paragraph 3, requires that in addition to effective protection of
Covenant rights, States Parties must ensure that individuals also have
accessible and effective remedies to vindicate those rights… The Committee
attaches importance to States Parties' establishing appropriate judicial and
administrative mechanisms for addressing claims of rights violations under
domestic law… Administrative mechanisms are particularly required to give
effect to the general obligation to investigate allegations of violations promptly,
thoroughly and effectively through independent and impartial bodies. A failure
by a State Party to investigate allegations of violations could in and of itself
give rise to a separate breach of the Covenant. Cessation of an ongoing
violation is an essential element of the right to an effective remedy. [Emphasis
supplied]
The UN Human Rights Committee further stated in the same General
Comment No. 31 that failure to investigate as well as failure to bring to justice
the perpetrators of ICCPR violations could in and of itself give rise to a
separate breach of the Covenant, thus:138
18. Where the investigations referred to in paragraph 15 reveal violations of
certain Covenant rights, States Parties must ensure that those responsible are
brought to justice. As with failure to investigate, failure to bring to justice
perpetrators of such violations could in and of itself give rise to a separate
Page 66 of 101
breach of the Covenant. These obligations arise notably in respect of those
violations recognized as criminal under either domestic or international law,
such as torture and similar cruel, inhuman and degrading treatment (article 7),
summary and arbitrary killing (article 6) and enforced disappearance (articles 7
and 9 and, frequently, 6). Indeed, the problem of impunity for these violations,
a matter of sustained concern by the Committee, may well be an important
contributing element in the recurrence of the violations. When committed as
part of a widespread or systematic attack on a civilian population, these
violations of the Covenant are crimes against humanity (see Rome Statute of
the International Criminal Court, article 7). [Emphasis supplied]
In Secretary of National Defense v. Manalo,139 this Court, in ruling that the
right to security of persons is a guarantee of the protection of one‘s right by the
government, held that:
The right to security of person in this third sense is a corollary of the policy that
the State "guarantees full respect for human rights" under Article II, Section 11
of the 1987 Constitution. As the government is the chief guarantor of order and
security, the Constitutional guarantee of the rights to life, liberty and security of
person is rendered ineffective if government does not afford protection to
these rights especially when they are under threat. Protection includes
conducting effective investigations, organization of the government apparatus
to extend protection to victims of extralegal killings or enforced
disappearances (or threats thereof) and/or their families, and bringing
offenders to the bar of justice. The Inter-American Court of Human Rights
stressed the importance of investigation in the Velasquez Rodriguez Case, viz:
(The duty to investigate) must be undertaken in a serious manner and not as a
mere formality preordained to be ineffective. An investigation must have an
objective and be assumed by the State as its own legal duty, not as a step
taken by private interests that depends upon the initiative of the victim or his
family or upon their offer of proof, without an effective search for the truth by
the government. [Emphasis supplied]
Manalo significantly cited Kurt v. Turkey,140 where the ECHR interpreted the
"right to security" not only as a prohibition on the State against arbitrary
deprivation of liberty, but also as the imposition of a positive duty to afford
protection to the right to liberty. The Court notably quoted the following ECHR
ruling:
[A]ny deprivation of liberty must not only have been effected in conformity with
the substantive and procedural rules of national law but must equally be in
keeping with the very purpose of Article 5, namely to protect the individual
from arbitrariness... Having assumed control over that individual, it is
incumbent on the authorities to account for his or her whereabouts. For this
reason, Article 5 must be seen as requiring the authorities to take effective
measures to safeguard against the risk of disappearance and to conduct a
prompt effective investigation into an arguable claim that a person has been
taken into custody and has not been seen since. [Emphasis supplied]
These rulings effectively serve as the backdrop for the Rule on the Writ of
Amparo, which the Court made effective on October 24, 2007. Although the
Amparo Rule still has gaps waiting to be filled through substantive law, as
evidenced primarily by the lack of a concrete definition of "enforced
disappearance," the materials cited above, among others, provide ample
guidance and standards on how, through the medium of the Amparo Rule, the
Court can provide remedies and protect the constitutional rights to life, liberty
and security that underlie every enforced disappearance.
Evidentiary Difficulties Posed by the Unique Nature of an Enforced
Disappearance
Before going into the issue of whether the respondent has discharged the
burden of proving the allegations of the petition for the Writ of Amparo by the
degree of proof required by the Amparo Rule, we shall discuss briefly the
unique evidentiary difficulties presented by enforced disappearance cases;
these difficulties form part of the setting that the implementation of the Amparo
Rule shall encounter.
These difficulties largely arise because the State itself – the party whose
involvement is alleged – investigates enforced disappearances. Past
experiences in other jurisdictions show that the evidentiary difficulties are
generally threefold.
First, there may be a deliberate concealment of the identities of the direct
perpetrators.141 Experts note that abductors are well organized, armed and
usually members of the military or police forces, thus:
The victim is generally arrested by the security forces or by persons acting
under some form of governmental authority. In many countries the units that
plan, implement and execute the program are generally specialized, highly-
secret bodies within the armed or security forces. They are generally directed
through a separate, clandestine chain of command, but they have the
necessary credentials to avoid or prevent any interference by the "legal" police
forces. These authorities take their victims to secret detention centers where
they subject them to interrogation and torture without fear of judicial or other
controls.142
In addition, there are usually no witnesses to the crime; if there are, these
witnesses are usually afraid to speak out publicly or to testify on the
disappearance out of fear for their own lives.143 We have had occasion to
note this difficulty in Secretary of Defense v. Manalo144 when we
acknowledged that "where powerful military officers are implicated, the
hesitation of witnesses to surface and testify against them comes as no
surprise."
Second, deliberate concealment of pertinent evidence of the disappearance is
a distinct possibility; the central piece of evidence in an enforced
disappearance – i.e., the corpus delicti or the victim‘s body – is usually
concealed to effectively thwart the start of any investigation or the progress of
one that may have begun.145 The problem for the victim‘s family is the State‘s
virtual monopoly of access to pertinent evidence. The Inter-American Court of
Human Rights (IACHR) observed in the landmark case of Velasquez
Rodriguez146 that inherent to the practice of enforced disappearance is the
deliberate use of the State‘s power to destroy the pertinent evidence. The
IACHR described the concealment as a clear attempt by the State to commit
the perfect crime.147
Third is the element of denial; in many cases, the State authorities deliberately
deny that the enforced disappearance ever occurred.148 "Deniability" is
central to the policy of enforced disappearances, as the absence of any
proven disappearance makes it easier to escape the application of legal
standards ensuring the victim‘s human rights.149 Experience shows that
government officials typically respond to requests for information about
desaparecidos by saying that they are not aware of any disappearance, that
the missing people may have fled the country, or that their names have merely
been invented.150
These considerations are alive in our minds, as these are the difficulties we
confront, in one form or another, in our consideration of this case.
Evidence and Burden of Proof in Enforced Disappearances Cases
Sections 13, 17 and 18 of the Amparo Rule define the nature of an Amparo
proceeding and the degree and burden of proof the parties to the case carry,
as follows:
Section 13. Summary Hearing. The hearing on the petition shall be summary.
However, the court, justice or judge may call for a preliminary conference to
simplify the issues and determine the possibility of obtaining stipulations and
admissions from the parties.
xxxx
Section 17. Burden of Proof and Standard of Diligence Required. – The parties
shall establish their claims by substantial evidence.
The respondent who is a private individual 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 or evade responsibility or liability.
Section 18. Judgment. – … If the allegations in the petition are proven by
substantial evidence, the court shall grant the privilege of the writ and such
reliefs as may be proper and appropriate; otherwise, the privilege shall be
denied. [Emphasis supplied]
These characteristics – namely, of being summary and the use of substantial
evidence as the required level of proof (in contrast to the usual preponderance
of evidence or proof beyond reasonable doubt in court proceedings) – reveal
the clear intent of the framers of the Amparo Rule to have the equivalent of an
administrative proceeding, albeit judicially conducted, in addressing Amparo
situations. The standard of diligence required – the duty of public officials and
employees to observe extraordinary diligence – point, too, to the extraordinary
measures expected in the protection of constitutional rights and in the
consequent handling and investigation of extra-judicial killings and enforced
disappearance cases.
Thus, in these proceedings, the Amparo petitioner needs only to properly
comply with the substance and form requirements of a Writ of Amparo petition,
as discussed above, and prove the allegations by substantial evidence. Once
a rebuttable case has been proven, the respondents must then respond and
prove their defenses based on the standard of diligence required. The
rebuttable case, of course, must show that an enforced disappearance took
place under circumstances showing a violation of the victim‘s constitutional
rights to life, liberty or security, and the failure on the part of the investigating
authorities to appropriately respond.
The landmark case of Ang Tibay v. Court of Industrial Relations151 provided
the Court its first opportunity to define the substantial evidence required to
arrive at a valid decision in administrative proceedings. To directly quote Ang
Tibay:
Substantial evidence is more than a mere scintilla. It means such relevant
evidence as a reasonable mind might accept as adequate to support a
conclusion. [citations omitted] The statute provides that ‗the rules of evidence
prevailing in courts of law and equity shall not be controlling.‘ The obvious
purpose of this and similar provisions is to free administrative boards from the
compulsion of technical rules so that the mere admission of matter which
would be deemed incompetent in judicial proceedings would not invalidate the
administrative order. [citations omitted] But this assurance of a desirable
Page 67 of 101
flexibility in administrative procedure does not go so far as to justify orders
without a basis in evidence having rational probative force. [Emphasis
supplied]
In Secretary of Defense v. Manalo,152 which was the Court‘s first petition for a
Writ of Amparo, we recognized that the full and exhaustive proceedings that
the substantial evidence standard regularly requires do not need to apply due
to the summary nature of Amparo proceedings. We said:
The remedy [of the writ of amparo] provides rapid judicial relief as it partakes
of a summary proceeding that requires only substantial evidence to make the
appropriate reliefs available to the petitioner; it is not an action to determine
criminal guilt requiring proof beyond reasonable doubt, or liability for damages
requiring preponderance of evidence, or administrative responsibility requiring
substantial evidence that will require full and exhaustive proceedings.
[Emphasis supplied]
Not to be forgotten in considering the evidentiary aspects of Amparo petitions
are the unique difficulties presented by the nature of enforced disappearances,
heretofore discussed, which difficulties this Court must frontally meet if the
Amparo Rule is to be given a chance to achieve its objectives. These
evidentiary difficulties compel the Court to adopt standards appropriate and
responsive to the circumstances, without transgressing the due process
requirements that underlie every proceeding.
In the seminal case of Velasquez Rodriguez,153 the IACHR – faced with a
lack of direct evidence that the government of Honduras was involved in
Velasquez Rodriguez‘ disappearance – adopted a relaxed and informal
evidentiary standard, and established the rule that presumes governmental
responsibility for a disappearance if it can be proven that the government
carries out a general practice of enforced disappearances and the specific
case can be linked to that practice.154 The IACHR took note of the realistic
fact that enforced disappearances could be proven only through circumstantial
or indirect evidence or by logical inference; otherwise, it was impossible to
prove that an individual had been made to disappear. It held:
130. The practice of international and domestic courts shows that direct
evidence, whether testimonial or documentary, is not the only type of evidence
that may be legitimately considered in reaching a decision. Circumstantial
evidence, indicia, and presumptions may be considered, so long as they lead
to conclusions consistent with the facts.
131. Circumstantial or presumptive evidence is especially important in
allegations of disappearances, because this type of repression is
characterized by an attempt to suppress all information about the kidnapping
or the whereabouts and fate of the victim. [Emphasis supplied]
In concluding that the disappearance of Manfredo Velásquez (Manfredo) was
carried out by agents who acted under cover of public authority, the IACHR
relied on circumstantial evidence including the hearsay testimony of Zenaida
Velásquez, the victim‘s sister, who described Manfredo‘s kidnapping on the
basis of conversations she had with witnesses who saw Manfredo kidnapped
by men in civilian clothes in broad daylight. She also told the Court that a
former Honduran military official had announced that Manfredo was kidnapped
by a special military squadron acting under orders of the Chief of the Armed
Forces.155 The IACHR likewise considered the hearsay testimony of a
second witness who asserted that he had been told by a Honduran military
officer about the disappearance, and a third witness who testified that he had
spoken in prison to a man who identified himself as Manfredo.156
Velasquez stresses the lesson that flexibility is necessary under the unique
circumstances that enforced disappearance cases pose to the courts; to have
an effective remedy, the standard of evidence must be responsive to the
evidentiary difficulties faced. On the one hand, we cannot be arbitrary in the
admission and appreciation of evidence, as arbitrariness entails violation of
rights and cannot be used as an effective counter-measure; we only
compound the problem if a wrong is addressed by the commission of another
wrong. On the other hand, we cannot be very strict in our evidentiary rules and
cannot consider evidence the way we do in the usual criminal and civil cases;
precisely, the proceedings before us are administrative in nature where, as a
rule, technical rules of evidence are not strictly observed. Thus, while we must
follow the substantial evidence rule, we must observe flexibility in considering
the evidence we shall take into account.
The fair and proper rule, to our mind, is to consider all the pieces of evidence
adduced in their totality, and to consider any evidence otherwise inadmissible
under our usual rules to be admissible if it is consistent with the admissible
evidence adduced. In other words, we reduce our rules to the most basic test
of reason – i.e., to the relevance of the evidence to the issue at hand and its
consistency with all other pieces of adduced evidence. Thus, even hearsay
evidence can be admitted if it satisfies this basic minimum test.
We note in this regard that the use of flexibility in the consideration of evidence
is not at all novel in the Philippine legal system. In child abuse cases, Section
28 of the Rule on Examination of a Child Witness157 is expressly recognized
as an exception to the hearsay rule. This Rule allows the admission of the
hearsay testimony of a child describing any act or attempted act of sexual
abuse in any criminal or non-criminal proceeding, subject to certain
prerequisites and the right of cross-examination by the adverse party. The
admission of the statement is determined by the court in light of specified
subjective and objective considerations that provide sufficient indicia of
reliability of the child witness.158 These requisites for admission find their
counterpart in the present case under the above-described conditions for the
exercise of flexibility in the consideration of evidence, including hearsay
evidence, in extrajudicial killings and enforced disappearance cases.
Assessment of the Evidence
The threshold question for our resolution is: was there an enforced
disappearance within the meaning of this term under the UN Declaration we
have cited?
The Convention defines enforced disappearance as "the arrest, detention,
abduction or any other form of deprivation of liberty by agents of the State or
by persons or groups of persons acting with the authorization, support or
acquiescence of the State, followed by a refusal to acknowledge the
deprivation of liberty or by concealment of the fate or whereabouts of the
disappeared person, which place such a person outside the protection of the
law."159 Under this definition, the elements that constitute enforced
disappearance are essentially fourfold:160
(a) arrest, detention, abduction or any form of deprivation of liberty;
(b) carried out by agents of the State or persons or groups of persons acting
with the authorization, support or acquiescence of the State;
(c) followed by a refusal to acknowledge the detention, or a concealment of
the fate of the disappeared person; and
(d) placement of the disappeared person outside the protection of the law.
[Emphasis supplied]
We find no direct evidence indicating how the victim actually disappeared. The
direct evidence at hand only shows that Tagitis went out of the ASY Pension
House after depositing his room key with the hotel desk and was never seen
nor heard of again. The undisputed conclusion, however, from all concerned –
the petitioner, Tagitis‘ colleagues and even the police authorities – is that
Tagistis disappeared under mysterious circumstances and was never seen
again. The respondent injected the causal element in her petition and
testimony, as we shall discuss below.
We likewise find no direct evidence showing that operatives of PNP CIDG
Zamboanga abducted or arrested Tagitis. If at all, only the respondent‘s
allegation that Tagistis was under CIDG Zamboanga custody stands on
record, but it is not supported by any other evidence, direct or circumstantial.
In her direct testimony, the respondent pointed to two sources of information
as her bases for her allegation that Tagistis had been placed under
government custody (in contrast with CIDG Zamboanga custody). The first
was an unnamed friend in Zamboanga (later identified as Col. Ancanan), who
occupied a high position in the military and who allegedly mentioned that
Tagitis was in good hands. Nothing came out of this claim, as both the
respondent herself and her witness, Mrs. Talbin, failed to establish that Col.
Ancanan gave them any information that Tagitis was in government custody.
Col. Ancanan, for his part, admitted the meeting with the respondent but
denied giving her any information about the disappearance.
The more specific and productive source of information was Col. Kasim, whom
the respondent, together with her witness Mrs. Talbin, met in Camp Katitipan
in Davao City. To quote the relevant portions of the respondent‘s testimony:
Q: Were you able to speak to other military officials regarding the whereabouts
of your husband particularly those in charge of any records or investigation?
A: I went to Camp Katitipan in Davao City. Then one military officer, Col.
Casim, told me that my husband is being abducted [sic] because he is under
custodial investigation because he is allegedly "parang liason ng J.I.", sir.
Q: What is J.I.?
A: Jema‘ah Islamiah, sir.
Q: Was there any information that was read to you during one of those visits of
yours in that Camp?
A: Col. Casim did not furnish me a copy of his report because he said those
reports are highly confidential, sir.
Q: Was it read to you then even though you were not furnished a copy?
A: Yes, sir. In front of us, my friends.
Q: And what was the content of that highly confidential report?
A: Those alleged activities of Engineer Tagitis, sir.161 [Emphasis supplied]
She confirmed this testimony in her cross-examination:
Q: You also mentioned that you went to Camp Katitipan in Davao City?
A: Yes, ma‘am.
Q: And a certain Col. Kasim told you that your husband was abducted and
under custodial investigation?
A: Yes, ma‘am.
Page 68 of 101
Q: And you mentioned that he showed you a report?
A: Yes, ma‘am.
Q: Were you able to read the contents of that report?
A: He did not furnish me a copy of those [sic] report because those [sic] were
highly confidential. That is a military report, ma‘am.
Q: But you were able to read the contents?
A: No. But he read it in front of us, my friends, ma‘am.
Q: How many were you when you went to see Col. Kasim?
A: There were three of us, ma‘am.
Q: Who were your companions?
A: Mrs. Talbin, tapos yung dalawang friends nya from Mati City, Davao
Oriental, ma‘am.162
xxxx
Q: When you were told that your husband is in good hands, what was your
reaction and what did you do?
A: May binasa kasi sya that my husband has a parang meeting with other
people na parang mga terorista na mga tao. Tapos at the end of the report is
[sic] under custodial investigation. So I told him "Colonel, my husband is sick.
He is diabetic at nagmemaintain yun ng gamot. Pakisabi lang sa naghohold sa
asawa ko na bigyan siya ng gamot, ma‘am."163
xxxx
Q: You mentioned that you received information that Engineer Tagitis is being
held by the CIDG in Zamboanga, did you go to CIDG Zamboanga to verify that
information?
A: I did not go to CIDG Zamboanga. I went to Camp Karingal instead. Enough
na yun na effort ko because I know that they would deny it, ma‘am.164
On February 11, 2008, the respondent presented Mrs. Talbin to corroborate
her testimony that her husband was abducted and held under custodial
investigation by the PNP-CIDG Zamboanga City, viz:
Q: You said that you went to Camp Katitipan in Davao City sometime
November 24, 2007, who was with you when you went there?
A: Mary Jean Tagitis, sir.
Q: Only the two of you?
A: No. We have some other companions. We were four at that time, sir.
Q: Who were they?
A: Salvacion Serrano, Mini Leong, Mrs. Tagitis and me, sir.
Q: Were you able to talk, see some other officials at Camp Katitipan during
that time?
A: Col. Kasim (PS Supt. Julasirim Ahadin Kasim) only, sir.
Q: Were you able to talk to him?
A: Yes, sir.
Q: The four of you?
A: Yes, sir.
Q: What information did you get from Col. Kasim during that time?
A: The first time we met with [him] I asked him if he knew of the exact location,
if he can furnish us the location of Engr. Tagitis. And he was reading this
report. He told us that Engr. Tagitis is in good hands. He is with the military,
but he is not certain whether he is with the AFP or PNP. He has this serious
case. He was charged of terrorism because he was under surveillance from
January 2007 up to the time that he was abducted. He told us that he was
under custodial investigation. As I‘ve said earlier, he was seen under
surveillance from January. He was seen talking to Omar Patik, a certain
Santos of Bulacan who is also a Balik Islam and charged with terrorism. He
was seen carrying boxes of medicines. Then we asked him how long will he
be in custodial investigation. He said until we can get some information. But he
also told us that he cannot give us that report because it was a raw report. It
was not official, sir.
Q: You said that he was reading a report, was that report in document form, in
a piece of paper or was it in the computer or what?
A: As far as I can see it, sir, it is written in white bond paper. I don‘t know if it
was computerized but I‘m certain that it was typewritten. I‘m not sure if it used
computer, fax or what, sir.
Q: When he was reading it to you, was he reading it line by line or he was
reading in a summary form?
A: Sometimes he was glancing to the report and talking to us, sir.165
xxxx
Q: Were you informed as to the place where he was being kept during that
time?
A: He did not tell us where he [Tagitis] was being kept. But he mentioned this
Talipapao, Sulu, sir.
Q: After that incident, what did you do if any?
A: We just left and as I‘ve mentioned, we just waited because that raw
information that he was reading to us [sic] after the custodial investigation,
Engineer Tagitis will be released. [Emphasis supplied]166
Col. Kasim never denied that he met with the respondent and her friends, and
that he provided them information based on the input of an unnamed asset.
He simply claimed in his testimony that the "informal letter" he received from
his informant in Sulu did not indicate that Tagitis was in the custody of the
CIDG. He also stressed that the information he provided the respondent was
merely a "raw report" from "barangay intelligence" that still needed
confirmation and "follow up" as to its veracity.167
To be sure, the respondent‘s and Mrs. Talbin‘s testimonies were far from
perfect, as the petitioners pointed out. The respondent mistakenly
characterized Col. Kasim as a "military officer" who told her that "her husband
is being abducted because he is under custodial investigation because he is
allegedly ‗parang liason ng J.I.‘" The petitioners also noted that "Mrs. Talbin‘s
testimony imputing certain statements to Sr. Supt. Kasim that Engr. Tagitis is
with the military, but he is not certain whether it is the PNP or AFP is not
worthy of belief, since Sr. Supt. Kasim is a high ranking police officer who
would certainly know that the PNP is not part of the military."
Upon deeper consideration of these inconsistencies, however, what appears
clear to us is that the petitioners never really steadfastly disputed or presented
evidence to refute the credibility of the respondent and her witness, Mrs.
Talbin. The inconsistencies the petitioners point out relate, more than anything
else, to details that should not affect the credibility of the respondent and Mrs.
Talbin; the inconsistencies are not on material points.168 We note, for
example, that these witnesses are lay people in so far as military and police
matters are concerned, and confusion between the police and the military is
not unusual. As a rule, minor inconsistencies such as these indicate
truthfulness rather than prevarication169and only tend to strengthen their
probative value, in contrast to testimonies from various witnesses dovetailing
on every detail; the latter cannot but generate suspicion that the material
circumstances they testified to were integral parts of a well thought of and
prefabricated story.170
Based on these considerations and the unique evidentiary situation in
enforced disappearance cases, we hold it duly established that Col. Kasim
informed the respondent and her friends, based on the informant‘s letter, that
Tagitis, reputedly a liaison for the JI and who had been under surveillance
since January 2007, was "in good hands" and under custodial investigation for
complicity with the JI after he was seen talking to one Omar Patik and a
certain "Santos" of Bulacan, a "Balik Islam" charged with terrorism. The
respondent‘s and Mrs. Talbin‘s testimonies cannot simply be defeated by Col.
Kasim‘s plain denial and his claim that he had destroyed his informant‘s letter,
the critical piece of evidence that supports or negates the parties‘ conflicting
claims. Col. Kasim‘s admitted destruction of this letter – effectively, a
suppression of this evidence – raises the presumption that the letter, if
produced, would be proof of what the respondent claimed.171 For brevity, we
shall call the evidence of what Col. Kasim reported to the respondent to be the
"Kasim evidence."
Given this evidence, our next step is to decide whether we can accept this
evidence, in lieu of direct evidence, as proof that the disappearance of Tagitis
was due to action with government participation, knowledge or consent and
that he was held for custodial investigation. We note in this regard that Col.
Kasim was never quoted to have said that the custodial investigation was by
the CIDG Zamboanga. The Kasim evidence only implies government
intervention through the use of the term "custodial investigation," and does not
at all point to CIDG Zamboanga as Tagitis‘ custodian.
Strictly speaking, we are faced here with a classic case of hearsay evidence –
i.e., evidence whose probative value is not based on the personal knowledge
of the witnesses (the respondent, Mrs. Talbin and Col. Kasim himself) but on
the knowledge of some other person not on the witness stand (the
informant).172
To say that this piece of evidence is incompetent and inadmissible evidence of
what it substantively states is to acknowledge – as the petitioners effectively
suggest – that in the absence of any direct evidence, we should simply
dismiss the petition. To our mind, an immediate dismissal for this reason is no
different from a statement that the Amparo Rule – despite its terms – is
ineffective, as it cannot allow for the special evidentiary difficulties that are
Page 69 of 101
unavoidably present in Amparo situations, particularly in extrajudicial killings
and enforced disappearances. The Amparo Rule was not promulgated with
this intent or with the intent to make it a token gesture of concern for
constitutional rights. It was promulgated to provide effective and timely
remedies, using and profiting from local and international experiences in
extrajudicial killings and enforced disappearances, as the situation may
require. Consequently, we have no choice but to meet the evidentiary
difficulties inherent in enforced disappearances with the flexibility that these
difficulties demand.1avvphi1
To give full meaning to our Constitution and the rights it protects, we hold that,
as in Velasquez, we should at least take a close look at the available evidence
to determine the correct import of every piece of evidence – even of those
usually considered inadmissible under the general rules of evidence – taking
into account the surrounding circumstances and the test of reason that we can
use as basic minimum admissibility requirement. In the present case, we
should at least determine whether the Kasim evidence before us is relevant
and meaningful to the disappearance of Tagistis and reasonably consistent
with other evidence in the case.
The evidence about Tagitis‘ personal circumstances surrounded him with an
air of mystery. He was reputedly a consultant of the World Bank and a Senior
Honorary Counselor for the IDB who attended a seminar in Zamboanga and
thereafter proceded to Jolo for an overnight stay, indicated by his request to
Kunnong for the purchase of a return ticket to Zamboanga the day after he
arrived in Jolo. Nothing in the records indicates the purpose of his overnight
sojourn in Jolo. A colleague in the IDB, Prof. Matli, early on informed the Jolo
police that Tagitis may have taken funds given to him in trust for IDB scholars.
Prof Matli later on stated that he never accused Tagitis of taking away money
held in trust, although he confirmed that the IDB was seeking assistance in
locating funds of IDB scholars deposited in Tagitis‘ personal account. Other
than these pieces of evidence, no other information exists in the records
relating to the personal circumstances of Tagitis.
The actual disappearance of Tagitis is as murky as his personal
circumstances. While the Amparo petition recited that he was taken away by
"burly men believed to be police intelligence operatives," no evidence
whatsoever was introduced to support this allegation. Thus, the available
direct evidence is that Tagitis was last seen at 12.30 p.m. of October 30, 2007
– the day he arrived in Jolo – and was never seen again.
The Kasim evidence assumes critical materiality given the dearth of direct
evidence on the above aspects of the case, as it supplies the gaps that were
never looked into and clarified by police investigation. It is the evidence, too,
that colors a simple missing person report into an enforced disappearance
case, as it injects the element of participation by agents of the State and thus
brings into question how the State reacted to the disappearance.
Denials on the part of the police authorities, and frustration on the part of the
respondent, characterize the attempts to locate Tagitis. Initially in Jolo, the
police informed Kunnong that Tagitis could have been taken by the Abu
Sayyaf or other groups fighting the government. No evidence was ever offered
on whether there was active Jolo police investigation and how and why the
Jolo police arrived at this conclusion. The respondent‘s own inquiry in Jolo
yielded the answer that he was not missing but was with another woman
somewhere. Again, no evidence exists that this explanation was arrived at
based on an investigation. As already related above, the inquiry with Col.
Ancanan in Zamboanga yielded ambivalent results not useful for evidentiary
purposes. Thus, it was only the inquiry from Col. Kasim that yielded positive
results. Col. Kasim‘s story, however, confirmed only the fact of his custodial
investigation (and, impliedly, his arrest or abduction), without identifying his
abductor/s or the party holding him in custody. The more significant part of
Col. Kasim‘s story is that the abduction came after Tagitis was seen talking
with Omar Patik and a certain Santos of Bulacan, a "Balik Islam" charged with
terrorism. Mrs. Talbin mentioned, too, that Tagitis was being held at Talipapao,
Sulu. None of the police agencies participating in the investigation ever
pursued these leads. Notably, Task Force Tagitis to which this information was
relayed did not appear to have lifted a finger to pursue these aspects of the
case.
More denials were manifested in the Returns on the writ to the CA made by
the petitioners. Then PNP Chief Gen. Avelino I. Razon merely reported the
directives he sent to the ARMM Regional Director and the Regional Chief of
the CIDG on Tagitis, and these reports merely reiterated the open-ended initial
report of the disappearance. The CIDG directed a search in all of its divisions
with negative results. These, to the PNP Chief, constituted the exhaustion "of
all possible efforts." PNP-CIDG Chief General Edgardo M. Doromal, for his
part, also reported negative results after searching "all divisions and
departments [of the CIDG] for a person named Engr. Morced N. Tagitis . . .
and after a diligent and thorough research, records show that no such person
is being detained in the CIDG or any of its department or divisions." PNP-
PACER Chief PS Supt. Leonardo A. Espina and PNP PRO ARMM Regional
Director PC Superintendent Joel R. Goltiao did no better in their affidavits-
returns, as they essentially reported the results of their directives to their units
to search for Tagitis.
The extent to which the police authorities acted was fully tested when the CA
constituted Task Force Tagitis, with specific directives on what to do. The
negative results reflected in the Returns on the writ were again replicated
during the three hearings the CA scheduled. Aside from the previously
mentioned "retraction" that Prof. Matli made to correct his accusation that
Tagitis took money held in trust for students, PS Supt. Ajirim reiterated in his
testimony that the CIDG consistently denied any knowledge or complicity in
any abduction and said that there was no basis to conclude that the CIDG or
any police unit had anything to do with the disappearance of Tagitis; he
likewise considered it premature to conclude that Tagitis simply ran away with
the money in his custody. As already noted above, the Task Force notably did
not pursue any investigation about the personal circumstances of Tagitis, his
background in relation to the IDB and the background and activities of this
Bank itself, and the reported sighting of Tagistis with terrorists and his alleged
custody in Talipapao, Sulu. No attempt appears to have ever been made to
look into the alleged IDB funds that Tagitis held in trust, or to tap any of the
"assets" who are indispensable in investigations of this nature. These
omissions and negative results were aggravated by the CA findings that it was
only as late as January 28, 2008 or three months after the disappearance that
the police authorities requested for clear pictures of Tagitis. Col. Kasim could
not attend the trial because his subpoena was not served, despite the fact that
he was designated as Ajirim‘s replacement in the latter‘s last post. Thus, Col.
Kasim was not then questioned. No investigation – even an internal one –
appeared to have been made to inquire into the identity of Col. Kasim‘s "asset"
and what he indeed wrote.
We glean from all these pieces of evidence and developments a consistency
in the government‘s denial of any complicity in the disappearance of Tagitis,
disrupted only by the report made by Col. Kasim to the respondent at Camp
Katitipan. Even Col. Kasim, however, eventually denied that he ever made the
disclosure that Tagitis was under custodial investigation for complicity in
terrorism. Another distinctive trait that runs through these developments is the
government‘s dismissive approach to the disappearance, starting from the
initial response by the Jolo police to Kunnong‘s initial reports of the
disappearance, to the responses made to the respondent when she herself
reported and inquired about her husband‘s disappearance, and even at Task
Force Tagitis itself.
As the CA found through Task Force Tagitis, the investigation was at best
haphazard since the authorities were looking for a man whose picture they
initially did not even secure. The returns and reports made to the CA fared no
better, as the CIDG efforts themselves were confined to searching for
custodial records of Tagitis in their various departments and divisions. To point
out the obvious, if the abduction of Tagitis was a "black" operation because it
was unrecorded or officially unauthorized, no record of custody would ever
appear in the CIDG records; Tagitis, too, would not be detained in the usual
police or CIDG detention places. In sum, none of the reports on record
contains any meaningful results or details on the depth and extent of the
investigation made. To be sure, reports of top police officials indicating the
personnel and units they directed to investigate can never constitute
exhaustive and meaningful investigation, or equal detailed investigative
reports of the activities undertaken to search for Tagitis. Indisputably, the
police authorities from the very beginning failed to come up to the
extraordinary diligence that the Amparo Rule requires.
CONCLUSIONS AND THE AMPARO REMEDY
Based on these considerations, we conclude that Col. Kasim‘s disclosure,
made in an unguarded moment, unequivocally point to some government
complicity in the disappearance. The consistent but unfounded denials and the
haphazard investigations cannot but point to this conclusion. For why would
the government and its officials engage in their chorus of concealment if the
intent had not been to deny what they already knew of the disappearance?
Would not an in-depth and thorough investigation that at least credibly
determined the fate of Tagitis be a feather in the government‘s cap under the
circumstances of the disappearance? From this perspective, the evidence and
developments, particularly the Kasim evidence, already establish a concrete
case of enforced disappearance that the Amparo Rule covers. From the prism
of the UN Declaration, heretofore cited and quoted,173 the evidence at hand
and the developments in this case confirm the fact of the enforced
disappearance and government complicity, under a background of consistent
and unfounded government denials and haphazard handling. The
disappearance as well effectively placed Tagitis outside the protection of the
law – a situation that will subsist unless this Court acts.
This kind of fact situation and the conclusion reached are not without
precedent in international enforced disappearance rulings. While the facts are
not exactly the same, the facts of this case run very close to those of Timurtas
v. Turkey,174 a case decided by ECHR. The European tribunal in that case
acted on the basis of the photocopy of a "post-operation report" in finding that
Abdulvahap Timurtas (Abdulvahap) was abducted and later detained by
agents (gendarmes) of the government of Turkey. The victim's father in this
case brought a claim against Turkey for numerous violations of the European
Convention, including the right to life (Article 2) and the rights to liberty and
security of a person (Article 5). The applicant contended that on August 14,
1993, gendarmes apprehended his son, Abdulvahap for being a leader of the
Kurdish Workers‘ Party (PKK) in the Silopi region. The petition was filed in
southeast Turkey nearly six and one half years after the apprehension.
According to the father, gendarmes first detained Abdulvahap and then
transferred him to another detainment facility. Although there was no
eyewitness evidence of the apprehension or subsequent detainment, the
applicant presented evidence corroborating his version of events, including a
photocopy of a post-operation report signed by the commander of gendarme
operations in Silopi, Turkey. The report included a description of Abdulvahap's
arrest and the result of a subsequent interrogation during detention where he
was accused of being a leader of the PKK in the Silopi region. On this basis,
Turkey was held responsible for Abdulvahap‘s enforced disappearance.
Following the lead of this Turkish experience - adjusted to the Philippine legal
setting and the Amparo remedy this Court has established, as applied to the
Page 70 of 101
unique facts and developments of this case – we believe and so hold that the
government in general, through the PNP and the PNP-CIDG, and in particular,
the Chiefs of these organizations together with Col. Kasim, should be held fully
accountable for the enforced disappearance of Tagitis.
The PNP and CIDG are accountable because Section 24 of Republic Act No.
6975, otherwise known as the "PNP Law,"175 specifies the PNP as the
governmental office with the mandate "to investigate and prevent crimes,
effect the arrest of criminal offenders, bring offenders to justice and assist in
their prosecution." The PNP-CIDG, as Col. Jose Volpane Pante (then Chief of
CIDG Region 9) testified, is the "investigative arm" of the PNP and is
mandated to "investigate and prosecute all cases involving violations of the
Revised Penal Code, particularly those considered as heinous crimes."176
Under the PNP organizational structure, the PNP-CIDG is tasked to
investigate all major crimes involving violations of the Revised Penal Code and
operates against organized crime groups, unless the President assigns the
case exclusively to the National Bureau of Investigation (NBI).177 No
indication exists in this case showing that the President ever directly
intervened by assigning the investigation of Tagitis‘ disappearance exclusively
to the NBI.
Given their mandates, the PNP and PNP-CIDG officials and members were
the ones who were remiss in their duties when the government completely
failed to exercise the extral'>To fully enforce the Amparo remedy, we refer this
case back to the CA for appropriate proceedings directed at the monitoring of
the PNP and the PNP-CIDG investigations and actions, and the validation of
their results through hearings the CA may deem appropriate to conduct. For
purposes of these investigations, the PNP/PNP-CIDG shall initially present to
the CA a plan of action for further investigation, periodically reporting the
detailed results of its investigation to the CA for its consideration and action.
On behalf of this Court, the CA shall pass upon: the need for the PNP and the
PNP-CIDG to make disclosures of matters known to them as indicated in this
Decision and as further CA hearings may indicate; the petitioners‘
submissions; the sufficiency of their investigative efforts; and submit to this
Court a quarterly report containing its actions and recommendations, copy
furnished the petitioners and the respondent, with the first report due at the
end of the first quarter counted from the finality of this Decision. The PNP and
the PNP-CIDG shall have one (1) full year to undertake their investigation. The
CA shall submit its full report for the consideration of this Court at the end of
the 4th quarter counted from the finality of this Decision.
WHEREFORE, premises considered, we DENY the petitioners‘ petition for
review on certiorari for lack of merit, and AFFIRM the decision of the Court of
Appeals dated March 7, 2008 under the following terms:
a. Recognition that the disappearance of Engineer Morced N. Tagitis is an
enforced disappearance covered by the Rule on the Writ of Amparo;
b. Without any specific pronouncement on exact authorship and responsibility,
declaring the government (through the PNP and the PNP-CIDG) and Colonel
Julasirim Ahadin Kasim accountable for the enforced disappearance of
Engineer Morced N. Tagitis;
c. Confirmation of the validity of the Writ of Amparo the Court of Appeals
issued;
d. Holding the PNP, through the PNP Chief, and the PNP-CIDG, through its
Chief, directly responsible for the disclosure of material facts known to the
government and to their offices regarding the disappearance of Engineer
Morced N. Tagitis, and for the conduct of proper investigations using
extraordinary diligence, with the obligation to show investigation results
acceptable to this Court;
e. Ordering Colonel Julasirim Ahadin Kasim impleaded in this case and
holding him accountable with the obligation to disclose information known to
him and to his "assets" in relation with the enforced disappearance of Engineer
Morced N. Tagitis;
f. Referring this case back to the Court of Appeals for appropriate proceedings
directed at the monitoring of the PNP and PNP-CIDG investigations, actions
and the validation of their results; the PNP and the PNP-CIDG shall initially
present to the Court of Appeals a plan of action for further investigation,
periodically reporting their results to the Court of Appeals for consideration and
action;
g. Requiring the Court of Appeals to submit to this Court a quarterly report with
its recommendations, copy furnished the incumbent PNP and PNP-CIDG
Chiefs as petitioners and the respondent, with the first report due at the end of
the first quarter counted from the finality of this Decision;
h. The PNP and the PNP-CIDG shall have one (1) full year to undertake their
investigations; the Court of Appeals shall submit its full report for the
consideration of this Court at the end of the 4th quarter counted from the
finality of this Decision;
These directives and those of the Court of Appeals‘ made pursuant to this
Decision shall be given to, and shall be directly enforceable against, whoever
may be the incumbent Chiefs of the Philippine National Police and its Criminal
Investigation and Detection Group, under pain of contempt from this Court
when the initiatives and efforts at disclosure and investigation constitute less
than the extraordinary diligence that the Rule on the Writ of Amparo and the
circumstances of this case demand. Given the unique nature of Amparo cases
and their varying attendant circumstances, these directives – particularly, the
referral back to and monitoring by the CA – are specific to this case and are
not standard remedies that can be applied to every Amparo situation.
The dismissal of the Amparo petition with respect to General Alexander Yano,
Commanding General, Philippine Army, and General Ruben Rafael, Chief,
Anti-Terrorism Task Force Comet, Zamboanga City, is hereby AFFIRMED.
SO ORDERED.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 186640 February 11, 2010
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,
vs.
CLEOFAS SANCHEZ and MARCIANA MEDINA, Respondents.
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 Court1 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 petition2 on January 14, 2008 to include herein co-
respondent Marciana Medina (Marciana) as therein additional petitioner, and
to implead other military officers3 including Lt. Ali Sumangil (Lt. Sumangil) and
Sgt. Gil Villalobos4 (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 Army‘s 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 Army‘s 71st
Infantry Batallion inside Hacienda Luisita, where she had occasion to talk to Lt.
Sumangil and Sgt. Villalobos. Respondents filed a case on December 21,
2006 before the Commission on Human Rights (CHR), which endorsed7 the
same to the Ombudsman for appropriate action.
Contending that the victims‘ life, liberty and security had been and continued
to be violated on account of their forced disappearance, respondents prayed
for the issuance of a writ of Amparo, the production of the victims‘ bodies
during the hearing on the Writ, the inspection of certain military camps,8 the
issuance of temporary and permanent protection orders, and the rendition of
judgment under Section 18 of the Rule on the Writ of Amparo.9
Meanwhile, a consolidated Return of the Writ,10 verified by Gen. Esperon, Lt.
Sumangil, Sgt. Villalobos, Maj. Gen. Juanito Gomez (Maj. Gen. Gomez) as
Commander of the Army‘s 7th Infantry Division, and Lt. Col. Victor Bayani (Lt.
Col. Bayani) as Camp Commander of Camp Servillano Aquino of the Nolcom
in Tarlac City, was filed with the appellate court on January 24, 2008. Lt. Gen.
Alexander Yano (Lt. Gen. Yano), Commanding General of the Army, filed a
Return of the Writ upon his return from an official trip abroad.
Page 71 of 101
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 petition‘s 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 Josephine‘s 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 Station‘s 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 Secretary‘s directive
in relation to cases of Writ of Amparo against the AFP, he issued directives to
the Nolcom Commander and the Army‘s 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. Esperon‘s 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 People‘s Army (NPA), she advised him not to entertain any queries or
complaints relative to their alleged disappearance.17
Sgt. Villalobos echoed Sumangil‘s disclaimer about having any of the victims
in his custody or meeting anyone named Josephine Victoria, or about the latter
having entered the camp‘s 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.
In opposing the request for issuance of inspection and production orders, the
military officers posited that apart from compromising national security should
entry into these military camps/bases be allowed, these orders partook of the
nature of a search warrant, such that the requisites for the issuance thereof
must be complied with prior to their issuance. They went on to argue that such
request relied solely on bare, self-serving and vague allegations contained in
Josephine‘s affidavit, for aside from merely mentioning that she saw Nicolas
and Heherson on board an army truck near the Nolcom gate and, days later,
inside the kitchen of the 71st Infantry Battalion Camp inside Hacienda Luisita
and while logging outside said camp, Josephine had stated nothing more to
ascertain the veracity of the places where she allegedly saw Nicolas and
Heherson.18
On whether the impleaded military officers were either directly or indirectly
connected with the disappearance of the victims, the appellate court, after
hearing, absolved, by the assailed Decision of September 17, 2008,19 Gen.
Esperon, Lt. Gen. Yano, Maj. Gen. Gomez, and Lt. Col. Bayani for lack of
evidence linking them to the disappearances, and further ruled as follows:
All said, this Court is convinced that petitioners have not adequately and
convincingly established any direct or indirect link between respondents
individual military officers and the disappearances of Nicolas and Heherson.
Neither did the concerned Philippine Army Units have exerted fully their efforts
to investigate and unearth the truth and bring the culprits before the bar of
justice.
The concerned Philippine Army units (such as the Northern Command and the
7th Infantry Division, which had jurisdiction over the place of disappearance of
Nicolas and Heherson, should exert extraordinary diligence to follow all
possible leads to solve the disappearances of Nicolas and Heherson. The
Philippine Army should be reminded of its constitutional mandate as the
protector of the people and the State.
RELIEFS
While as We stated hereinbefore that We could not find any link between
respondents individual military officers to the disappearance of Nicolas and
Heherson, nonetheless, the fact remains that the two men are still missing.
Hence, We find it equitable to grant petitioners some reliefs in the interest of
human rights and justice as follows:
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
The appellate court denied the Motion by the assailed Resolution of March 3,
2009.22
Taking up the cudgels for the military, Gen. Alexander Yano,23 Lt. Gen. Victor
Ibrado,24 and Maj. Gen. Ralph Villanueva25 (petitioners) filed the present
petition for review of the appellate court‘s assailed issuances, faulting it for
. . . NOT CATEGORICALLY DENYING THE PRIVILEGE OF THE WRIT OF
AMPARO PURSUANT TO SECTION 18 OF THE RULE ON THE WRIT OF
AMPARO DESPITE ITS FINDING THAT RESPONDENTS FAILED TO
PROVE THEIR ALLEGATIONS IN THEIR PETITION FOR AMPARO BY
SUBSTANTIAL EVIDENCE. . . . [AND] . . . DIRECTING PETITIONERS TO:
(A) ALLOW RESPONDENTS TO INSPECT CAMP SERVILLANO AQUINO,
NORTH LUZON COMMAND, PHILIPPINE ARMY, SAN MIGUEL, TARLAC
CITY AND ANY MILITARY CAMP OF THE 7th INFANTRY DIVISION
LOCATED IN AQUA FARM, HACIENDA LUISITA, TARLAC CITY; AND.
(B) CONDUCT THOROUGH AND IMPARTIAL INVESTIGATION OF THE
DISAPPEARANCE OF THE AGGRIEVED PARTIES, FILE CHARGES
AGAINST THOSE FOUND GUILTY AND SUBMIT WRITTEN REPORT
WITHIN THREE MONTHS FROM NOTICE.26 (emphasis and underscoring
supplied)
The Court finds merit in the petition.
In ruling in favor of Lt. Sumangil and Sgt. Villalobos, the appellate court
resolved the case on the basis of the credibility of 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 Victoria‘s 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 sibling‘s 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
Page 72 of 101
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 Victoria‘s
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
Galang‘s 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 court‘s 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 appellant‘s 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
RELIEFS30 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 party‘s 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 court‘s
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 citizen‘s 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 court‘s judgment by
considering the reliefs as temporary or interlocutory and by adding thereto an
order for the production of logbooks and reports.32
Page 73 of 101
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 pleading34 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.
CONCHITA CARPIO MORALES
Associate Justice
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 183871 February 18, 2010
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 Decision3 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, Dasmariñas, 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 Dasmariñas, 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., Dasmariñas, 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, Dasmariñas, 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., Parañaque
City, but nothing has happened; and the threats and harassment incidents
have been reported to the Dasmariñas 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. The investigation
would indicate that men belonging to the 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-à-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 Dasmariñas 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., Parañaque City.
The person residing in the apartment on that given address is one
Darius/Erwin See @ Darius Reyes allegedly working, per the latter‘s 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
Page 74 of 101
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 court‘s 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 court‘s 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 President‘s 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 x x
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 CA‘s 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-à-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 Statute17 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
Page 75 of 101
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 Ciano26 and Technical
Sergeant John N. Romano,27 officer-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 former‘s
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 CA‘s 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 court‘s determination of the answering
respondents‘ role in the alleged enforced disappearance of petitioner Lourdes
and the threats to her family‘s 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-sided––
hence, 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 one‘s 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 Joy‘s 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 Joy‘s 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 affidavit37 of the Deputy Overall Ombudsman and the joint affidavits38 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 judgment––disposing 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
them––hews 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
Page 76 of 101
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. Razon‘s
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.
PRESBITERO J. VELASCO, JR.
Associate Justice
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 189155 September 7, 2010
IN THE MATTER OF THE PETITION FOR THE WRIT OF AMPARO AND
THE WRIT OF HABEAS DATA IN FAVOR OF MELISSA C. ROXAS,
MELISSA C. ROXAS, Petitioner,
vs.
GLORIA MACAPAGAL-ARROYO, GILBERT TEODORO, GEN. VICTOR S.
IBRADO, P/DIR. GEN. JESUS AME VERZOSA, LT. GEN. DELFIN N.
BANGIT, PC/SUPT. LEON NILO A. DELA CRUZ, MAJ. GEN. RALPH
VILLANUEVA, PS/SUPT. RUDY GAMIDO LACADIN, AND CERTAIN
PERSONS WHO GO BY THE NAME[S] DEX, RC AND ROSE,
Respondents.
DECISION
PEREZ, J.:
At bench is a Petition For Review on Certiorari1 assailing the Decision2 dated
26 August 2009 of the Court of Appeals in CA-G.R. SP No. 00036-WRA — a
petition that was commenced jointly under the Rules on the Writ of Amparo
(Amparo Rule) and Habeas Data (Habeas Data Rule). In its decision, the
Page 77 of 101
Court of Appeals extended to the petitioner, Melissa C. Roxas, the privilege of
the writs of amparo and habeas data but denied the latter‘s prayers for an
inspection order, production order and return of specified personal belongings.
The fallo of the decision reads:
WHEREFORE, the Petition is PARTIALLY MERITORIOUS. This Court hereby
grants Petitioner the privilege of the Writ of Amparo and Habeas Data.
Accordingly, Respondents are enjoined to refrain from distributing or causing
the distribution to the public of any records in whatever form, reports,
documents or similar papers relative to Petitioner‘s Melissa C. Roxas, and/or
Melissa Roxas; alleged ties to the CPP-NPA or pertinently related to the
complained incident. Petitioner‘s prayers for an inspection order, production
order and for the return of the specified personal belongings are denied for
lack of merit. Although there is no evidence that Respondents are responsible
for the abduction, detention or torture of the Petitioner, said Respondents
pursuant to their legally mandated duties are, nonetheless, ordered to
continue/complete the investigation of this incident with the end in view of
prosecuting those who are responsible. Respondents are also ordered to
provide protection to the Petitioner and her family while in the Philippines
against any and all forms of harassment, intimidation and coercion as may be
relevant to the grant of these reliefs.3
We begin with the petitioner‘s allegations.
Petitioner is an American citizen of Filipino descent.4 While in the United
States, petitioner enrolled in an exposure program to the Philippines with the
group Bagong Alyansang Makabayan-United States of America (BAYAN-USA)
of which she is a member.5 During the course of her immersion, petitioner
toured various provinces and towns of Central Luzon and, in April of 2009, she
volunteered to join members of BAYAN-Tarlac6 in conducting an initial health
survey in La Paz, Tarlac for a future medical mission.7
In pursuit of her volunteer work, petitioner brought her passport, wallet with
Fifteen Thousand Pesos (₱15,000.00) in cash, journal, digital camera with
memory card, laptop computer, external hard disk, IPOD,8 wristwatch,
sphygmomanometer, stethoscope and medicines.9
After doing survey work on 19 May 2009, petitioner and her companions,
Juanito Carabeo (Carabeo) and John Edward Jandoc (Jandoc), decided to
rest in the house of one Mr. Jesus Paolo (Mr. Paolo) in Sitio Bagong Sikat,
Barangay Kapanikian, La Paz, Tarlac.10 At around 1:30 in the afternoon,
however, petitioner, her companions and Mr. Paolo were startled by the loud
sounds of someone banging at the front door and a voice demanding that they
open up.11
Suddenly, fifteen (15) heavily armed men forcibly opened the door, barged
inside and ordered petitioner and her companions to lie on the ground face
down.12 The armed men were all in civilian clothes and, with the exception of
their leader, were also wearing bonnets to conceal their faces.13
Petitioner tried to protest the intrusion, but five (5) of the armed men ganged
up on her and tied her hands.14 At this juncture, petitioner saw the other
armed men herding Carabeo and Jandoc, already blindfolded and taped at
their mouths, to a nearby blue van. Petitioner started to shout her name.15
Against her vigorous resistance, the armed men dragged petitioner towards
the van—bruising her arms, legs and knees.16 Once inside the van, but
before she can be blindfolded, petitioner was able to see the face of one of the
armed men sitting beside her.17 The van then sped away.
After about an hour of traveling, the van stopped.18 Petitioner, Carabeo and
Jandoc were ordered to alight.19 After she was informed that she is being
detained for being a member of the Communist Party of the Philippines-New
People‘s Army (CPP-NPA), petitioner was separated from her companions
and was escorted to a room that she believed was a jail cell from the sound of
its metal doors.20 From there, she could hear the sounds of gunfire, the noise
of planes taking off and landing and some construction bustle.21 She inferred
that she was taken to the military camp of Fort Magsaysay in Laur, Nueva
Ecija.22
What followed was five (5) straight days of interrogation coupled with
torture.23 The thrust of the interrogations was to convince petitioner to
abandon her communist beliefs in favor of returning to "the fold."24 The
torture, on the other hand, consisted of taunting, choking, boxing and
suffocating the petitioner.25
Throughout the entirety of her ordeal, petitioner was made to suffer in
blindfolds even in her sleep.26 Petitioner was only relieved of her blindfolds
when she was allowed to take a bath, during which she became acquainted
with a woman named "Rose" who bathed her.27 There were also a few times
when she cheated her blindfold and was able to peek at her surroundings.28
Despite being deprived of sight, however, petitioner was still able to learn the
names of three of her interrogators who introduced themselves to her as
"Dex," "James" and "RC."29 "RC" even told petitioner that those who tortured
her came from the "Special Operations Group," and that she was abducted
because her name is included in the "Order of Battle."30
On 25 May 2009, petitioner was finally released and returned to her uncle‘s
house in Quezon City.31 Before being released, however, the abductors gave
petitioner a cellular phone with a SIM32 card, a slip of paper containing an e-
mail address with password,33 a plastic bag containing biscuits and books,34
the handcuffs used on her, a blouse and a pair of shoes.35 Petitioner was also
sternly warned not to report the incident to the group Karapatan or something
untoward will happen to her and her family.36
Sometime after her release, petitioner continued to receive calls from RC via
the cellular phone given to her.37 Out of apprehension that she was being
monitored and also fearing for the safety of her family, petitioner threw away
the cellular phone with a SIM card.
Seeking sanctuary against the threat of future harm as well as the suppression
of any existing government files or records linking her to the communist
movement, petitioner filed a Petition for the Writs of Amparo and Habeas Data
before this Court on 1 June 2009.38 Petitioner impleaded public officials
occupying the uppermost echelons of the military and police hierarchy as
respondents, on the belief that it was government agents who were behind her
abduction and torture. Petitioner likewise included in her suit "Rose," "Dex"
and "RC."39
The Amparo and Habeas Data petition prays that: (1) respondents be enjoined
from harming or even approaching petitioner and her family; (2) an order be
issued allowing the inspection of detention areas in the 7th Infantry Division,
Fort Magsaysay, Laur, Nueva Ecija; (3) respondents be ordered to produce
documents relating to any report on the case of petitioner including, but not
limited to, intelligence report and operation reports of the 7th Infantry Division,
the Special Operations Group of the Armed Forces of the Philippines (AFP)
and its subsidiaries or branch/es prior to, during and subsequent to 19 May
2009; (4) respondents be ordered to expunge from the records of the
respondents any document pertinent or connected to Melissa C. Roxas,
Melissa Roxas or any name which sounds the same; and (5) respondents be
ordered to return to petitioner her journal, digital camera with memory card,
laptop computer, external hard disk, IPOD, wristwatch, sphygmomanometer,
stethoscope, medicines and her ₱15,000.00 cash.40
In a Resolution dated 9 June 2009, this Court issued the desired writs and
referred the case to the Court of Appeals for hearing, reception of evidence
and appropriate action.41 The Resolution also directed the respondents to file
their verified written return.42
On 18 June 2009, the Office of the Solicitor General (OSG), filed a Return of
the Writs43 on behalf of the public officials impleaded as respondents.
We now turn to the defenses interposed by the public respondents.
The public respondents label petitioner‘s alleged abduction and torture as
"stage managed."44 In support of their accusation, the public respondents
principally rely on the statement of Mr. Paolo, as contained in the Special
Report45 of the La Paz Police Station. In the Special Report, Mr. Paolo
disclosed that, prior to the purported abduction, petitioner and her companions
instructed him and his two sons to avoid leaving the house.46 From this
statement, the public respondents drew the distinct possibility that, except for
those already inside Mr. Paolo‘s house, nobody else has any way of knowing
where petitioner and her companions were at the time they were supposedly
abducted.47 This can only mean, the public respondents concluded, that if
ever there was any "abduction" it must necessarily have been planned by, or
done with the consent of, the petitioner and her companions themselves.48
Public respondents also cited the Medical Certificate49 of the petitioner, as
actually belying her claims that she was subjected to serious torture for five (5)
days. The public respondents noted that while the petitioner alleges that she
was choked and boxed by her abductors—inflictions that could have easily
produced remarkable bruises—her Medical Certificate only shows abrasions in
her wrists and knee caps.50
For the public respondents, the above anomalies put in question the very
authenticity of petitioner‘s alleged abduction and torture, more so any military
or police involvement therein. Hence, public respondents conclude that the
claims of abduction and torture was no more than a charade fabricated by the
petitioner to put the government in bad light, and at the same time, bring great
media mileage to her and the group that she represents.51
Nevertheless, even assuming the abduction and torture to be genuine, the
public respondents insist on the dismissal of the Amparo and Habeas Data
petition based on the following grounds: (a) as against respondent President
Gloria Macapagal-Arroyo, in particular, because of her immunity from suit,52
and (b) as against all of the public respondents, in general, in view of the
absence of any specific allegation in the petition that they had participated in,
or at least authorized, the commission of such atrocities.53
Finally, the public respondents posit that they had not been remiss in their duty
to ascertain the truth behind the allegations of the petitioner.54 In both the
police and military arms of the government machinery, inquiries were set-up in
the following manner:
Police Action
Police authorities first learned of the purported abduction around 4:30 o‘clock
in the afternoon of 19 May 2009, when Barangay Captain Michael M. Manuel
came to the La Paz Municipal Police Station to report the presence of heavily
armed men somewhere in Barangay Kapanikian.55 Acting on the report, the
police station launched an initial investigation.56
The initial investigation revolved around the statement of Mr. Paolo, who
informed the investigators of an abduction incident involving three (3)
persons—later identified as petitioner Melissa Roxas, Juanito Carabeo and
Page 78 of 101
John Edward Jandoc—who were all staying in his house.57 Mr. Paolo
disclosed that the abduction occurred around 1:30 o‘clock in the afternoon,
and was perpetrated by about eight (8) heavily armed men who forced their
way inside his house.58 Other witnesses to the abduction also confirmed that
the armed men used a dark blue van with an unknown plate number and two
(2) Honda XRM motorcycles with no plate numbers.59
At 5:00 o‘clock in the afternoon of 19 May 2009, the investigators sent a Flash
Message to the different police stations surrounding La Paz, Tarlac, in an
effort to track and locate the van and motorcycles of the suspects.
Unfortunately, the effort yielded negative results.60
On 20 May 2009, the results of the initial investigation were included in a
Special Report61 that was transmitted to the Tarlac Police Provincial Office,
headed by public respondent P/S Supt. Rudy Lacadin (Supt. Lacadin). Public
respondent Supt. Lacadin, in turn, informed the Regional Police Office of
Region 3 about the abduction.62 Follow-up investigations were, at the same
time, pursued.63
On 26 May 2009, public respondent PC/Supt. Leon Nilo Dela Cruz, as Director
of the Regional Police Office for Region 3, caused the creation of Special
Investigation Task Group—CAROJAN (Task Group CAROJAN) to conduct an
in-depth investigation on the abduction of the petitioner, Carabeo and
Jandoc.64
Task Group CAROJAN started its inquiry by making a series of background
examinations on the victims of the purported abduction, in order to reveal the
motive behind the abduction and, ultimately, the identity of the perpetrators.65
Task Group CAROJAN also maintained liaisons with Karapatan and the
Alliance for Advancement of People‘s Rights—organizations trusted by
petitioner—in the hopes of obtaining the latter‘s participation in the ongoing
investigations.66 Unfortunately, the letters sent by the investigators requesting
for the availability of the petitioner for inquiries were left unheeded.67
The progress of the investigations conducted by Task Group CAROJAN had
been detailed in the reports68 that it submitted to public respondent General
Jesus Ame Verzosa, the Chief of the Philippine National Police. However, as
of their latest report dated 29 June 2009, Task Group CAROJAN is still unable
to make a definitive finding as to the true identity and affiliation of the
abductors—a fact that task group CAROJAN attributes to the refusal of the
petitioner, or any of her fellow victims, to cooperate in their investigative
efforts.69
Military Action
Public respondent Gilbert Teodoro, the Secretary of National Defense, first
came to know about the alleged abduction and torture of the petitioner upon
receipt of the Resolution of this Court directing him and the other respondents
to file their return.70 Immediately thereafter, he issued a Memorandum
Directive71 addressed to the Chief of Staff of the AFP, ordering the latter,
among others, to conduct an inquiry to determine the validity of the accusation
of military involvement in the abduction.72
Acting pursuant to the Memorandum Directive, public respondent General
Victor S. Ibrado, the AFP Chief of Staff, sent an AFP Radio Message73
addressed to public respondent Lieutenant General Delfin N. Bangit (Lt. Gen.
Bangit), the Commanding General of the Army, relaying the order to cause an
investigation on the abduction of the petitioner.74
For his part, and taking cue from the allegations in the amparo petition, public
respondent Lt. Gen. Bangit instructed public respondent Major General Ralph
A. Villanueva (Maj. Gen. Villanueva), the Commander of the 7th Infantry
Division of the Army based in Fort Magsaysay, to set in motion an
investigation regarding the possible involvement of any personnel assigned at
the camp in the purported abduction of the petitioner.75 In turn, public
respondent Maj. Gen. Villanueva tapped the Office of the Provost Marshal
(OPV) of the 7th Infantry Division, to conduct the investigation.76
On 23 June 2009, the OPV of the 7th Infantry Division released an
Investigation Report77 detailing the results of its inquiry. In substance, the
report described petitioner‘s allegations as "opinionated" and thereby cleared
the military from any involvement in her alleged abduction and torture.78
The Decision of the Court of Appeals
In its Decision,79 the Court of Appeals gave due weight and consideration to
the petitioner‘s version that she was indeed abducted and then subjected to
torture for five (5) straight days. The appellate court noted the sincerity and
resolve by which the petitioner affirmed the contents of her affidavits in open
court, and was thereby convinced that the latter was telling the truth.80
On the other hand, the Court of Appeals disregarded the argument of the
public respondents that the abduction of the petitioner was "stage managed,"
as it is merely based on an unfounded speculation that only the latter and her
companions knew where they were staying at the time they were forcibly
taken.81 The Court of Appeals further stressed that the Medical Certificate of
the petitioner can only affirm the existence of a true abduction, as its findings
are reflective of the very injuries the latter claims to have sustained during her
harrowing ordeal, particularly when she was handcuffed and then dragged by
her abductors onto their van.82
The Court of Appeals also recognized the existence of an ongoing threat
against the security of the petitioner, as manifested in the attempts of "RC" to
contact and monitor her, even after she was released.83 This threat,
according to the Court of Appeals, is all the more compounded by the failure of
the police authorities to identify the material perpetrators who are still at
large.84 Thus, the appellate court extended to the petitioner the privilege of
the writ of amparo by directing the public respondents to afford protection to
the former, as well as continuing, under the norm of extraordinary diligence,
their existing investigations involving the abduction.85
The Court of Appeals likewise observed a transgression of the right to
informational privacy of the petitioner, noting the existence of "records of
investigations" that concerns the petitioner as a suspected member of the
CPP-NPA.86 The appellate court derived the existence of such records from a
photograph and video file presented in a press conference by party-list
representatives Jovito Palparan (Palparan) and Pastor Alcover (Alcover),
which allegedly show the petitioner participating in rebel exercises.
Representative Alcover also revealed that the photograph and video came
from a female CPP-NPA member who wanted out of the organization.
According to the Court of Appeals, the proliferation of the photograph and
video, as well as any form of media, insinuating that petitioner is part of the
CPP-NPA does not only constitute a violation of the right to privacy of the
petitioner but also puts further strain on her already volatile security.87 To this
end, the appellate court granted the privilege of the writ of habeas data
mandating the public respondents to refrain from distributing to the public any
records, in whatever form, relative to petitioner‘s alleged ties with the CPP-
NPA or pertinently related to her abduction and torture.88
The foregoing notwithstanding, however, the Court of Appeals was not
convinced that the military or any other person acting under the acquiescence
of the government, were responsible for the abduction and torture of the
petitioner.89 The appellate court stressed that, judging by her own statements,
the petitioner merely "believed" that the military was behind her abduction.90
Thus, the Court of Appeals absolved the public respondents from any
complicity in the abduction and torture of petitioner.91 The petition was
likewise dismissed as against public respondent President Gloria Macapagal-
Arroyo, in view of her immunity from suit.92
Accordingly, the petitioner‘s prayers for the return of her personal belongings
were denied.93 Petitioner‘s prayers for an inspection order and production
order also met the same fate.94
Hence, this appeal by the petitioner.
AMPARO
A.
Petitioner first contends that the Court of Appeals erred in absolving the public
respondents from any responsibility in her abduction and torture.95 Corollary
to this, petitioner also finds fault on the part of Court of Appeals in denying her
prayer for the return of her personal belongings.96
Petitioner insists that the manner by which her abduction and torture was
carried out, as well as the sounds of construction, gun-fire and airplanes that
she heard while in detention, as these were detailed in her two affidavits and
affirmed by her in open court, are already sufficient evidence to prove
government involvement.97
Proceeding from such assumption, petitioner invokes the doctrine of command
responsibility to implicate the high-ranking civilian and military authorities she
impleaded as respondents in her amparo petition.98 Thus, petitioner seeks
from this Court a pronouncement holding the respondents as complicit in her
abduction and torture, as well as liable for the return of her belongings.99
Command Responsibility in Amparo Proceedings
It must be stated at the outset that the use by the petitioner of the doctrine of
command responsibility as the justification in impleading the public
respondents in her amparo petition, is legally inaccurate, if not incorrect. The
doctrine of command responsibility is a rule of substantive law that establishes
liability and, by this account, cannot be a proper legal basis to implead a party-
respondent in an amparo petition.100
The case of Rubrico v. Arroyo,101 which was the first to examine command
responsibility in the context of an amparo proceeding, observed that the
doctrine is used to pinpoint liability. Rubrico notes that:102
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."103 In this sense, command responsibility is properly a form
of criminal complicity. The Hague Conventions of 1907 adopted the doctrine of
command responsibility,104 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 perpetrators105 (as opposed to crimes he
ordered). (Emphasis in the orginal, underscoring supplied)
Since the application of command responsibility presupposes an imputation of
individual liability, it is more aptly invoked in a full-blown criminal or
administrative case rather than in a summary amparo proceeding. The
obvious reason lies in the nature of the writ itself:
Page 79 of 101
The writ of amparo is a protective remedy aimed at providing judicial relief
consisting of the appropriate remedial measures and directives that may be
crafted by the court, in order to address specific violations or threats of
violation of the constitutional rights to life, liberty or security.106 While the
principal objective of its proceedings is the initial determination of whether an
enforced disappearance, extralegal killing or threats thereof had transpired—
the writ does not, by so doing, fix liability for such disappearance, killing or
threats, whether that may be criminal, civil or administrative under the
applicable substantive law.107 The rationale underpinning this peculiar nature
of an amparo writ has been, in turn, clearly set forth in the landmark case of
The Secretary of National Defense v. Manalo:108
x x x The remedy provides rapid judicial relief as it partakes of a summary
proceeding that requires only substantial evidence to make the appropriate
reliefs available to the petitioner; it is not an action to determine criminal guilt
requiring proof beyond reasonable doubt, or liability for damages requiring
preponderance of evidence, or administrative responsibility requiring
substantial evidence that will require full and exhaustive
proceedings.109(Emphasis supplied)
It must be clarified, however, that the inapplicability of the doctrine of
command responsibility in an amparo proceeding does not, by any measure,
preclude impleading military or police commanders on the ground that the
complained acts in the petition were committed with their direct or indirect
acquiescence. In which case, commanders may be impleaded—not actually
on the basis of command responsibility—but rather on the ground of their
responsibility, or at least accountability. In Razon v. Tagitis,110 the distinct,
but interrelated concepts of responsibility and accountability were given
special and unique significations in relation to an amparo proceeding, to wit:
x x x Responsibility refers to the extent the actors have been established by
substantial evidence to have participated in whatever way, by action or
omission, in an enforced disappearance, as a measure of the remedies this
Court shall craft, among them, the directive to file the appropriate criminal and
civil cases against the responsible parties in the proper courts. Accountability,
on the other hand, refers to the measure of remedies that should be
addressed to those who exhibited involvement in the enforced disappearance
without bringing the level of their complicity to the level of responsibility
defined above; or who are imputed with knowledge relating to the enforced
disappearance and who carry the burden of disclosure; or those who carry, but
have failed to discharge, the burden of extraordinary diligence in the
investigation of the enforced disappearance.
Responsibility of Public Respondents
At any rate, it is clear from the records of the case that the intent of the
petitioner in impleading the public respondents is to ascribe some form of
responsibility on their part, based on her assumption that they, in one way or
the other, had condoned her abduction and torture.111
To establish such assumption, petitioner attempted to show that it was
government agents who were behind her ordeal. Thus, the petitioner calls
attention to the circumstances surrounding her abduction and torture—i.e., the
forcible taking in broad daylight; use of vehicles with no license plates;
utilization of blindfolds; conducting interrogations to elicit communist
inclinations; and the infliction of physical abuse—which, according to her, is
consistent with the way enforced disappearances are being practiced by the
military or other state forces.112
Moreover, petitioner also claims that she was held inside the military camp
Fort Magsaysay—a conclusion that she was able to infer from the travel time
required to reach the place where she was actually detained, and also from
the sounds of construction, gun-fire and airplanes she heard while thereat.113
We are not impressed. The totality of the evidence presented by the petitioner
does not inspire reasonable conclusion that her abductors were military or
police personnel and that she was detained at Fort Magsaysay.
First. The similarity between the circumstances attending a particular case of
abduction with those surrounding previous instances of enforced
disappearances does not, necessarily, carry sufficient weight to prove that the
government orchestrated such abduction. We opine that insofar as the present
case is concerned, the perceived similarity cannot stand as substantial
evidence of the involvement of the government.
In amparo proceedings, the weight that may be accorded to parallel
circumstances as evidence of military involvement depends largely on the
availability or non-availability of other pieces of evidence that has the potential
of directly proving the identity and affiliation of the perpetrators. Direct
evidence of identity, when obtainable, must be preferred over mere
circumstantial evidence based on patterns and similarity, because the former
indubitably offers greater certainty as to the true identity and affiliation of the
perpetrators. An amparo court cannot simply leave to remote and hazy
inference what it could otherwise clearly and directly ascertain.
In the case at bench, petitioner was, in fact, able to include in her Offer of
Exhibits,114 the cartographic sketches115 of several of her abductors whose
faces she managed to see. To the mind of this Court, these cartographic
sketches have the undeniable potential of giving the greatest certainty as to
the true identity and affiliation of petitioner‘s abductors. Unfortunately for the
petitioner, this potential has not been realized in view of the fact that the faces
described in such sketches remain unidentified, much less have been shown
to be that of any military or police personnel. Bluntly stated, the abductors
were not proven to be part of either the military or the police chain of
command.
Second. The claim of the petitioner that she was taken to Fort Magsaysay was
not adequately established by her mere estimate of the time it took to reach
the place where she was detained and by the sounds that she heard while
thereat. Like the Court of Appeals, We are not inclined to take the estimate
and observations of the petitioner as accurate on its face—not only because
they were made mostly while she was in blindfolds, but also in view of the fact
that she was a mere sojourner in the Philippines, whose familiarity with Fort
Magsaysay and the travel time required to reach it is in itself doubtful.116 With
nothing else but obscure observations to support it, petitioner‘s claim that she
was taken to Fort Magsaysay remains a mere speculation.
In sum, the petitioner was not able to establish to a concrete point that her
abductors were actually affiliated, whether formally or informally, with the
military or the police organizations. Neither does the evidence at hand prove
that petitioner was indeed taken to the military camp Fort Magsaysay to the
exclusion of other places. These evidentiary gaps, in turn, make it virtually
impossible to determine whether the abduction and torture of the petitioner
was in fact committed with the acquiescence of the public respondents. On
account of this insufficiency in evidence, a pronouncement of responsibility on
the part of the public respondents, therefore, cannot be made.
Prayer for the Return of Personal Belongings
This brings Us to the prayer of the petitioner for the return of her personal
belongings.
In its decision, the Court of Appeals denied the above prayer of the petitioner
by reason of the failure of the latter to prove that the public respondents were
involved in her abduction and torture.117 We agree with the conclusion of the
Court of Appeals, but not entirely with the reason used to support it. To the
mind of this Court, the prayer of the petitioner for the return of her belongings
is doomed to fail regardless of whether there is sufficient evidence to hold
public respondents responsible for the abduction of the petitioner.
In the first place, an order directing the public respondents to return the
personal belongings of the petitioner is already equivalent to a conclusive
pronouncement of liability. The order itself is a substantial relief that can only
be granted once the liability of the public respondents has been fixed in a full
and exhaustive proceeding. As already discussed above, matters of liability
are not determinable in a mere summary amparo proceeding.118
But perhaps the more fundamental reason in denying the prayer of the
petitioner, lies with the fact that a person‘s right to be restituted of his property
is already subsumed under the general rubric of property rights—which are no
longer protected by the writ of amparo.119 Section 1 of the Amparo Rule,120
which defines the scope and extent of the writ, clearly excludes the protection
of property rights.
B.
The next error raised by the petitioner is the denial by the Court of Appeals of
her prayer for an inspection of the detention areas of Fort Magsaysay.121
Considering the dearth of evidence concretely pointing to any military
involvement in petitioner‘s ordeal, this Court finds no error on the part of the
Court of Appeals in denying an inspection of the military camp at Fort
Magsaysay. We agree with the appellate court that a contrary stance would be
equivalent to sanctioning a "fishing expedition," which was never intended by
the Amparo Rule in providing for the interim relief of inspection order.122
Contrary to the explicit position123 espoused by the petitioner, the Amparo
Rule does not allow a "fishing expedition" for evidence.
An inspection order is an interim relief designed to give support or strengthen
the claim of a petitioner in an amparo petition, in order to aid the court before
making a decision.124 A basic requirement before an amparo court may grant
an inspection order is that the place to be inspected is reasonably
determinable from the allegations of the party seeking the order. While the
Amparo Rule does not require that the place to be inspected be identified with
clarity and precision, it is, nevertheless, a minimum for the issuance of an
inspection order that the supporting allegations of a party be sufficient in itself,
so as to make a prima facie case. This, as was shown above, petitioner failed
to do.
Since the very estimates and observations of the petitioner are not strong
enough to make out a prima facie case that she was detained in Fort
Magsaysay, an inspection of the military camp cannot be ordered. An
inspection order cannot issue on the basis of allegations that are, in
themselves, unreliable and doubtful.
HABEAS DATA
As earlier intimated, the Court of Appeals granted to the petitioner the privilege
of the writ of habeas data, by enjoining the public respondents from
"distributing or causing the distribution to the public any records in whatever
form, reports, documents or similar papers" relative to the petitioner‘s "alleged
ties with the CPP-NPA or pertinently related to her abduction and torture."
Though not raised as an issue in this appeal, this Court is constrained to pass
upon and review this particular ruling of the Court of Appeals in order to rectify,
what appears to Us, an error infecting the grant.
Page 80 of 101
For the proper appreciation of the rationale used by the Court of Appeals in
granting the privilege of the writ of habeas data, We quote hereunder the
relevant portion125 of its decision:
Under these premises, Petitioner prayed that all the records, intelligence
reports and reports on the investigations conducted on Melissa C. Roxas or
Melissa Roxas be produced and eventually expunged from the records.
Petitioner claimed to be included in the Government‘s Order of Battle under
Oplan Bantay Laya which listed political opponents against whom false
criminal charges were filed based on made up and perjured information.
Pending resolution of this petition and before Petitioner could testify before Us,
Ex-army general Jovito Palaparan, Bantay party-list, and Pastor Alcover of the
Alliance for Nationalism and Democracy party-list held a press conference
where they revealed that they received an information from a female NPA
rebel who wanted out of the organization, that Petitioner was a communist
rebel. Alcover claimed that said information reached them thru a letter with
photo of Petitioner holding firearms at an NPA training camp and a video CD
of the training exercises.
Clearly, and notwithstanding Petitioner‘s denial that she was the person in said
video, there were records of other investigations on Melissa C. Roxas or
Melissa Roxas which violate her right to privacy. Without a doubt, reports of
such nature have reasonable connections, one way or another, to petitioner‘s
abduction where she claimed she had been subjected to cruelties and
dehumanizing acts which nearly caused her life precisely due to allegation of
her alleged membership in the CPP-NPA. And if said report or similar reports
are to be continuously made available to the public, Petitioner‘s security and
privacy will certainly be in danger of being violated or transgressed by persons
who have strong sentiments or aversion against members of this group. The
unregulated dissemination of said unverified video CD or reports of Petitioner‘s
alleged ties with the CPP-NPA indiscriminately made available for public
consumption without evidence of its authenticity or veracity certainly violates
Petitioner‘s right to privacy which must be protected by this Court. We, thus,
deem it necessary to grant Petitioner the privilege of the Writ of Habeas Data.
(Emphasis supplied).
The writ of habeas data was conceptualized as a judicial remedy enforcing the
right to privacy, most especially the right to informational privacy of
individuals.126 The writ operates to protect a person‘s right to control
information regarding himself, particularly in the instances where such
information is being collected through unlawful means in order to achieve
unlawful ends.
Needless to state, an indispensable requirement before the privilege of the writ
may be extended is the 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.127 This, in the case at bench, the petitioner failed to do.
The main problem behind the ruling of the Court of Appeals is that there is
actually no evidence on record that shows that any of the public respondents
had violated or threatened the right to privacy of the petitioner. The act
ascribed by the Court of Appeals to the public respondents that would have
violated or threatened the right to privacy of the petitioner, i.e., keeping
records of investigations and other reports about the petitioner‘s ties with the
CPP-NPA, was not adequately proven—considering that the origin of such
records were virtually unexplained and its existence, clearly, only inferred by
the appellate court from the video and photograph released by
Representatives Palparan and Alcover in their press conference. No evidence
on record even shows that any of the public respondents had access to such
video or photograph.
In view of the above considerations, the directive by the Court of Appeals
enjoining the public respondents from "distributing or causing the distribution
to the public any records in whatever form, reports, documents or similar
papers" relative to the petitioner‘s "alleged ties with the CPP-NPA," appears to
be devoid of any legal basis. The public respondents cannot be ordered to
refrain from distributing something that, in the first place, it was not proven to
have.
Verily, until such time that any of the public respondents were found to be
actually responsible for the abduction and torture of the petitioner, any
inference regarding the existence of reports being kept in violation of the
petitioner‘s right to privacy becomes farfetched, and premature.
For these reasons, this Court must, at least in the meantime, strike down the
grant of the privilege of the writ of habeas data.
DISPOSITION OF THE CASE
Our review of the evidence of the petitioner, while telling of its innate
insufficiency to impute any form of responsibility on the part of the public
respondents, revealed two important things that can guide Us to a proper
disposition of this case. One, that further investigation with the use of
extraordinary diligence must be made in order to identify the perpetrators
behind the abduction and torture of the petitioner; and two, that the
Commission on Human Rights (CHR), pursuant to its Constitutional mandate
to "investigate all forms of human rights violations involving civil and political
rights and to provide appropriate legal measures for the protection of human
rights,"128 must be tapped in order to fill certain investigative and remedial
voids.
Further Investigation Must Be Undertaken
Ironic as it seems, but part and parcel of the reason why the petitioner was not
able to adduce substantial evidence proving her allegations of government
complicity in her abduction and torture, may be attributed to the incomplete
and one-sided investigations conducted by the government itself. This
"awkward" situation, wherein the very persons alleged to be involved in an
enforced disappearance or extralegal killing are, at the same time, the very
ones tasked by law to investigate the matter, is a unique characteristic of
these proceedings and is the main source of the "evidentiary difficulties" faced
by any petitioner in any amparo case.129
Cognizant of this situation, however, the Amparo Rule placed a potent
safeguard—requiring the "respondent who is a public official or employee" to
prove that no less than "extraordinary diligence as required by applicable laws,
rules and regulations was observed in the performance of duty."130 Thus,
unless and until any of the public respondents is able to show to the
satisfaction of the amparo court that extraordinary diligence has been
observed in their investigations, they cannot shed the allegations of
responsibility despite the prevailing scarcity of evidence to that effect.
With this in mind, We note that extraordinary diligence, as required by the
Amparo Rule, was not fully observed in the conduct of the police and military
investigations in the case at bar.
A perusal of the investigation reports submitted by Task Group CAROJAN
shows modest effort on the part of the police investigators to identify the
perpetrators of the abduction. To be sure, said reports are replete with
background checks on the victims of the abduction, but are, at the same time,
comparatively silent as to other concrete steps the investigators have been
taking to ascertain the authors of the crime. Although conducting a
background investigation on the victims is a logical first step in exposing the
motive behind the abduction—its necessity is clearly outweighed by the need
to identify the perpetrators, especially in light of the fact that the petitioner, who
was no longer in captivity, already came up with allegations about the motive
of her captors.
Instead, Task Group CAROJAN placed the fate of their investigations solely
on the cooperation or non-cooperation of the petitioner—who, they claim, was
less than enthusiastic in participating in their investigative efforts.131 While it
may be conceded that the participation of the petitioner would have facilitated
the progress of Task Group CAROJAN‘s investigation, this Court believes that
the former‘s reticence to cooperate is hardly an excuse for Task Group
CAROJAN not to explore other means or avenues from which they could
obtain relevant leads.132 Indeed, while the allegations of government
complicity by the petitioner cannot, by themselves, hold up as adequate
evidence before a court of law—they are, nonetheless, a vital source of
valuable investigative leads that must be pursued and verified, if only to
comply with the high standard of diligence required by the Amparo Rule in the
conduct of investigations.
Assuming the non-cooperation of the petitioner, Task Group CAROJAN‘s
reports still failed to explain why it never considered seeking the assistance of
Mr. Jesus Paolo—who, along with the victims, is a central witness to the
abduction. The reports of Task Group CAROJAN is silent in any attempt to
obtain from Mr. Paolo, a cartographic sketch of the abductors or, at the very
least, of the one who, by petitioner‘s account, was not wearing any
mask.1avvphi1
The recollection of Mr. Paolo could have served as a comparative material to
the sketches included in petitioner‘s offer of exhibits that, it may be pointed
out, were prepared under the direction of, and first submitted to, the CHR
pursuant to the latter‘s independent investigation on the abduction and torture
of the petitioner.133 But as mentioned earlier, the CHR sketches remain to be
unidentified as of this date.
In light of these considerations, We agree with the Court of Appeals that
further investigation under the norm of extraordinary diligence should be
undertaken. This Court simply cannot write finis to this case, on the basis of an
incomplete investigation conducted by the police and the military. In a very
real sense, the right to security of the petitioner is continuously put in jeopardy
because of the deficient investigation that directly contributes to the delay in
bringing the real perpetrators before the bar of justice.
To add teeth to the appellate court‘s directive, however, We find it fitting, nay,
necessary to shift the primary task of conducting further investigations on the
abduction and torture of the petitioner upon the CHR.134 We note that the
CHR, unlike the police or the military, seems to enjoy the trust and confidence
of the petitioner—as evidenced by her attendance and participation in the
hearings already conducted by the commission.135 Certainly, it would be
reasonable to assume from such cooperation that the investigations of the
CHR have advanced, or at the very least, bears the most promise of
advancing farther, in terms of locating the perpetrators of the abduction, and is
thus, vital for a final resolution of this petition. From this perspective, We also
deem it just and appropriate to relegate the task of affording interim protection
to the petitioner, also to the CHR.
Hence, We modify the directive of the Court of the Appeals for further
investigation, as follows—
1.) Appointing the CHR as the lead agency tasked with conducting further
investigation regarding the abduction and torture of the petitioner. Accordingly,
the CHR shall, under the norm of extraordinary diligence, take or continue to
take the necessary steps: (a) to identify the persons described in the
cartographic sketches submitted by the petitioner, as well as their
Page 81 of 101
whereabouts; and (b) to pursue any other leads relevant to petitioner‘s
abduction and torture.
2.) Directing the incumbent Chief of the Philippine National Police (PNP), or
his successor, and the incumbent Chief of Staff of the AFP, or his successor,
to extend assistance to the ongoing investigation of the CHR, including but not
limited to furnishing the latter a copy of its personnel records circa the time of
the petitioner‘s abduction and torture, subject to reasonable regulations
consistent with the Constitution and existing laws.
3.) Further directing the incumbent Chief of the PNP, or his successor, to
furnish to this Court, the Court of Appeals, and the petitioner or her
representative, a copy of the reports of its investigations and their
recommendations, other than those that are already part of the records of this
case, within ninety (90) days from receipt of this decision.
4.) Further directing the CHR to (a) furnish to the Court of Appeals within
ninety (90) days from receipt of this decision, a copy of the reports on its
investigation and its corresponding recommendations; and to (b) provide or
continue to provide protection to the petitioner during her stay or visit to the
Philippines, until such time as may hereinafter be determined by this Court.
Accordingly, this case must be referred back to the Court of Appeals, for the
purposes of monitoring compliance with the above directives and determining
whether, in light of any recent reports or recommendations, there would
already be sufficient evidence to hold any of the public respondents
responsible or, at least, accountable. After making such determination, the
Court of Appeals shall submit its own report with recommendation to this Court
for final action. The Court of Appeals will continue to have jurisdiction over this
case in order to accomplish its tasks under this decision.
WHEREFORE, the instant petition is PARTIALLY MERITORIOUS. We hereby
render a decision:
1.) AFFIRMING the denial of the petitioner‘s prayer for the return of her
personal belongings;
2.) AFFIRMING the denial of the petitioner‘s prayer for an inspection of the
detention areas of Fort Magsaysay.
3.) REVERSING the grant of the privilege of habeas data, without prejudice,
however, to any modification that this Court may make on the basis of the
investigation reports and recommendations submitted to it under this decision.
4.) MODIFYING the directive that further investigation must be undertaken, as
follows—
a. APPOINTING the Commission on Human Rights as the lead agency tasked
with conducting further investigation regarding the abduction and torture of the
petitioner. Accordingly, the Commission on Human Rights shall, under the
norm of extraordinary diligence, take or continue to take the necessary steps:
(a) to identify the persons described in the cartographic sketches submitted by
the petitioner, as well as their whereabouts; and (b) to pursue any other leads
relevant to petitioner‘s abduction and torture.
b. DIRECTING the incumbent Chief of the Philippine National Police, or his
successor, and the incumbent Chief of Staff of the Armed Forces of the
Philippines, or his successor, to extend assistance to the ongoing investigation
of the Commission on Human Rights, including but not limited to furnishing the
latter a copy of its personnel records circa the time of the petitioner‘s
abduction and torture, subject to reasonable regulations consistent with the
Constitution and existing laws.
c. Further DIRECTING the incumbent Chief of the Philippine National Police,
or his successor, to furnish to this Court, the Court of Appeals, and the
petitioner or her representative, a copy of the reports of its investigations and
their recommendations, other than those that are already part of the records of
this case, within ninety (90) days from receipt of this decision.
d. Further DIRECTING the Commission on Human Rights (a) to furnish to the
Court of Appeals within ninety (90) days from receipt of this decision, a copy of
the reports on its investigation and its corresponding recommendations; and
(b) to provide or continue to provide protection to the petitioner during her stay
or visit to the Philippines, until such time as may hereinafter be determined by
this Court.
5.) REFERRING BACK the instant case to the Court of Appeals for the
following purposes:
a. To MONITOR the investigations and actions taken by the PNP, AFP, and
the CHR;
b. To DETERMINE whether, in light of the reports and recommendations of the
CHR, the abduction and torture of the petitioner was committed by persons
acting under any of the public respondents; and on the basis of this
determination—
c. To SUBMIT to this Court within ten (10) days from receipt of the report and
recommendation of the Commission on Human Rights—its own report, which
shall include a recommendation either for the DISMISSAL of the petition as
against the public respondents who were found not responsible and/or
accountable, or for the APPROPRIATE REMEDIAL MEASURES, AS MAY BE
ALLOWED BY THE AMPARO AND HABEAS DATA RULES, TO BE
UNDERTAKEN as against those found responsible and/or accountable.
Accordingly, the public respondents shall remain personally impleaded in this
petition to answer for any responsibilities and/or accountabilities they may
have incurred during their incumbencies.
Other findings of the Court of Appeals in its Decision dated 26 August 2009 in
CA-G.R. SP No. 00036-WRA that are not contrary to this decision are
AFFIRMED.
SO ORDERED.
JOSE PORTUGAL PEREZ
Associate Justice
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. Nos. 184461-62 May 31, 2011
LT. COL. ROGELIO BOAC, LT. COL. FELIPE ANOTADO AND LT.
FRANCIS MIRABELLE SAMSON, Petitioners,
vs.
ERLINDA T. CADAPAN AND CONCEPCION E. EMPEñO, Respondents.
x - - - - - - - - - - - - - - - - - - - - - - -x
G.R. No. 184495
ERLINDA T. CADAPAN AND CONCEPCION E. EMPEñO, Petitioners,
vs.
GEN. HERMOGENES ESPERON, P/DIR.GEN. AVELINO RAZON, (RET.)
GEN. ROMEO TOLENTINO, (RET.) GEN. JOVITO PALPARAN, LT. COL.
ROGELIO BOAC, LT. COL. FELIPE ANOTADO, ET AL., Respondents.
x - - - - - - - - - - - - - - - - - - - - - - -x
G.R. No. 187109
ERLINDA T. CADAPAN AND CONCEPCION E. EMPEñO, Petitioners,
vs.
GLORIA MACAPAGAL-ARROYO, GEN. HERMOGENES ESPERON,
P/DIR.GEN. AVELINO RAZON, (RET.) GEN. ROMEO TOLENTINO, (RET.)
GEN. JOVITO PALPARAN, LT. COL. ROGELIO BOAC, LT. COL. FELIPE
ANOTADO, DONALD CAIGAS, A.K.A. ALAN OR ALVIN, ARNEL ENRIQUEZ
AND LT. FRANCIS MIRABELLE SAMSON, Respondents.
DECISION
CARPIO MORALES, J.:
At 2:00 a.m. of June 26, 2006, armed men abducted Sherlyn Cadapan
(Sherlyn), Karen Empeño (Karen) and Manuel Merino (Merino) from a house
in San Miguel, Hagonoy, Bulacan. The three were herded onto a jeep bearing
license plate RTF 597 that sped towards an undisclosed location.
Having thereafter heard nothing from Sherlyn, Karen and Merino, their
respective families scoured nearby police precincts and military camps in the
hope of finding them but the same yielded nothing.
On July 17, 2006, spouses Asher and Erlinda Cadapan and Concepcion
Empeño filed a petition for habeas corpus1 before the Court, docketed as G.R.
No. 173228, impleading then Generals Romeo Tolentino and Jovito Palparan
(Gen. Palparan), Lt. Col. Rogelio Boac (Lt. Col. Boac), Arnel Enriquez and Lt.
Francis Mirabelle Samson (Lt. Mirabelle) as respondents. By Resolution of
July 19, 2006,2 the Court issued a writ of habeas corpus, returnable to the
Presiding Justice of the Court of Appeals.
The habeas corpus petition was docketed at the appellate court as CA-G.R.
SP No. 95303.
By Return of the Writ dated July 21, 2006,3 the respondents in the habeas
corpus petition denied that Sherlyn, Karen and Merino are in the custody of
the military. To the Return were attached affidavits from the respondents,
except Enriquez, who all attested that they do not know Sherlyn, Karen and
Merino; that they had inquired from their subordinates about the reported
abduction and disappearance of the three but their inquiry yielded nothing; and
that the military does not own nor possess a stainless steel jeep with plate
number RTF 597. Also appended to the Return was a certification from the
Land Transportation Office (LTO) that plate number RTF 597 had not yet been
manufactured as of July 26, 2006.
Trial thereupon ensued at the appellate court.
Witness Wilfredo Ramos, owner of the house where the three were abducted,
recounted that on June 26, 2006, while he was inside his house in Hagonoy,
he witnessed armed men wearing bonnets abduct Sherlyn and Karen from his
Page 82 of 101
house and also abduct Merino on their way out; and that tied and blindfolded,
the three were boarded on a jeep and taken towards Iba in Hagonoy.4
Witness Alberto Ramirez (Ramirez) recalled that on June 28, 2006, while he
was sleeping in his house, he was awakened by Merino who, in the company
of a group of unidentified armed men, repaired to his house; that onboard a
stainless jeep bearing plate number RTF 597, he (Ramirez) was taken to a
place in Mercado, Hagonoy and was asked by one Enriquez if he knew
"Sierra," "Tanya," "Vincent" and "Lisa"; and that Enriquez described the
appearance of two ladies which matched those of Sherlyn and Karen, whom
he was familiar with as the two had previously slept in his house.5
Another witness, Oscar Leuterio, who was himself previously abducted by
armed men and detained for five months, testified that when he was detained
in Fort Magsaysay in Nueva Ecija, he saw two women fitting the descriptions
of Sherlyn and Karen, and also saw Merino, his kumpare.6
Lt. Col. Boac, the then commander of Task Force Malolos, a special
operations team tasked to neutralize the intelligence network of communists
and other armed groups, declared that he conducted an inquiry on the
abduction of Sherlyn, Karen and Merino but his subordinates denied
knowledge thereof.7
While he denied having received any order from Gen. Palparan to investigate
the disappearance of Sherlyn, Karen and Merino, his assistance in locating the
missing persons was sought by the mayor of Hagonoy.
Major Dominador Dingle, the then division adjutant of the Philippine Army‘s 7th
Infantry Division in Fort Magsaysay, denied that a certain Arnel Enriquez is a
member of his infantry as in fact his name did not appear in the roster of
troops.8
Roberto Se, a supervisor of the Equipment, Plate Number and Supply Units of
the LTO, denied that his office manufactured and issued a plate number
bearing number RTF 597.9
On rebuttal, Lt. Mirabelle, Lt. Col. Boac and Gen. Palparan took the witness
stand as hostile witnesses.
Lt. Mirabelle testified that she did not receive any report on the abduction of
Sherlyn, Karen and Merino nor any order to investigate the matter. And she
denied knowing anything about the abduction of Ramirez nor who were Ka
Tanya or Ka Lisa.10
Gen. Palparan testified that during a debate in a televised program, he
mentioned the names of Ka Lisa and Ka Tanya as the ones involved in
revolutionary tax activities; and that he ordered Lt. Col. Boac to conduct an
investigation on the disappearance of Sherlyn, Karen and Merino.11 When
pressed to elaborate, he stated: "I said that I got the report that it stated that it
was Ka Tanya and Ka Lisa that, I mean, that incident happened in Hagonoy,
Bulacan was the abduction of Ka Lisa and Ka Tanya, Your Honor, and another
one. That was the report coming from the people in the area."12
By Decision of March 29, 2007,13 the Court of Appeals dismissed the habeas
corpus petition in this wise:
As Sherlyn Cadapan, Karen Empeño and Manuel Merino are indeed missing,
the present petition for habeas corpus is not the appropriate remedy since the
main office or function of the habeas corpus is to inquire into the legality of
one‘s detention which presupposes that respondents have actual custody of
the persons subject of the petition. The reason therefor is that the courts have
limited powers, means and resources to conduct an investigation. x x x.
It being the situation, the proper remedy is not a habeas corpus proceeding
but criminal proceedings by initiating criminal suit for abduction or kidnapping
as a crime punishable by law. In the case of Martinez v. Mendoza, supra, the
Supreme Court restated the doctrine that habeas corpus may not be used as a
means of obtaining evidence on the whereabouts of a person, or as a means
of finding out who has specifically abducted or caused the disappearance of a
certain person. (emphasis and underscoring supplied)
Thus the appellate court disposed:
WHEREFORE, the petition for habeas corpus is hereby DISMISSED, there
being no strong evidence that the missing persons are in the custody of the
respondents.
The Court, however, further resolves to refer the case to the Commission on
Human Rights, the National Bureau of Investigation and the Philippine
National Police for separate investigations and appropriate actions as may be
warranted by their findings and to furnish the Court with their separate reports
on the outcome of their investigations and the actions taken thereon.
Let copies of this decision be furnished the Commission on Human Rights, the
National Bureau of Investigation and the Philippine National Police for their
appropriate actions.
SO ORDERED. (emphasis and underscoring supplied)
Petitioners in CA-G.R. SP No. 95303 moved for a reconsideration of the
appellate court‘s decision. They also moved to present newly discovered
evidence consisting of the testimonies of Adoracion Paulino, Sherlyn‘s mother-
in-law who was allegedly threatened by soldiers; and Raymond Manalo who
allegedly met Sherlyn, Karen and Merino in the course of his detention at a
military camp.
During the pendency of the motion for reconsideration in CA-G.R. SP No.
95303, Erlinda Cadapan and Concepcion Empeño filed before this Court a
Petition for Writ of Amparo14 With Prayers for Inspection of Place and
Production of Documents dated October 24, 2007, docketed as G.R. No.
179994. The petition impleaded the same respondents in the habeas corpus
petition, with the addition of then President Gloria Macapagal-Arroyo, then
Armed Forces of the Phil. (AFP) Chief of Staff Hermogenes Esperon Jr., then
Phil. National Police (PNP) Chief Gen. Avelino Razon (Gen. Razon), Lt. Col.
Felipe Anotado (Lt. Col. Anotado) and Donald Caigas.
Then President Arroyo was eventually dropped as respondent in light of her
immunity from suit while in office.
Petitioners in G.R. No. 179994 also prayed that they be allowed to inspect the
detention areas of the following places:
1. 7th Infantry Division at Fort Magsaysay, Laur, Nueva Ecija
2. 24th Infantry Batallion at Limay, Bataan
3. Army Detachment inside Valmocina Farm, Pinaod, San Ildefonso, Bulacan
4. Camp Tecson, San Miguel, Bulacan
5. The Resthouse of Donald Caigas alias Allan or Alvin of the 24th Infantry
Batallion at Barangay Banog, Bolinao, Pangasinan
6. 56th Infantry Batallion Headquarters at Iba, Hagonoy, Bulacan
7. Army Detachment at Barangay Mercado, Hagonoy, Bulacan
8. Beach House [at] Iba, Zambales used as a safehouse with a retired military
personnel as a caretaker;
By Resolution of October 25, 2007, the Court issued in G.R. No. 179994 a writ
of amparo returnable to the Special Former Eleventh Division of the appellate
court, and ordered the consolidation of the amparo petition with the pending
habeas corpus petition.
Docketed as CA-G.R. SP No. 002, respondents in the amparo case, through
the Solicitor General, filed their Return of the Writ on November 6, 2007.15 In
the Return, Gen. Palparan, Lt. Col. Boac and Lt. Mirabelle reiterated their
earlier narrations in the habeas corpus case.
Gen. Hermogenes Esperon Jr. stated in the Return that he immediately
caused to investigate and verify the identities of the missing persons and was
aware of the earlier decision of the appellate court ordering the police, the
Commission on Human Rights and the National Bureau of Investigation to
take further action on the matter.16
Lt. Col. Felipe Anotado, the then battalion commander of the 24th Infantry
Battalion based in Balanga City, Bataan, denied any involvement in the
abduction. While the 24th Infantry Battalion detachment was reported to be a
detention site of the missing persons, Lt. Col. Anotado claimed that he found
no untoward incident when he visited said detachment. He also claimed that
there was no report of the death of Merino per his inquiry with the local
police.17
Police Director General Avelino Razon narrated that he ordered the
compilation of pertinent records, papers and other documents of the PNP on
the abduction of the three, and that the police exhausted all possible actions
available under the circumstances.18
In addition to the witnesses already presented in the habeas corpus case,
petitioners called on Adoracion Paulino and Raymond Manalo to testify during
the trial.
Adoracion Paulino recalled that her daughter-in-law Sherlyn showed up at
home on April 11, 2007, accompanied by two men and three women whom
she believed were soldiers. She averred that she did not report the incident to
the police nor inform Sherlyn‘s mother about the visit.19
Raymond Manalo (Manalo) claimed that he met the three abducted persons
when he was illegally detained by military men in Camp Tecson in San Miguel,
Bulacan. His group was later taken to a camp in Limay, Bataan. He recalled
that Lt. Col. Anotado was the one who interrogated him while in detention.20
In his Sinumpaang Salaysay,21 Manalo recounted:
xxxx
59. Saan ka dinala mula sa Sapang?
Pagkalipas ng humigit kumulang 3 buwan sa Sapang, dinala ako sa Camp
Tecson sa ilalim ng 24th IB.
xxxx
Sa loob ng barracks ko nakilala si Sherlyn Cadapan, isang estudyante ng UP.
Page 83 of 101
Ipinapalinis din sa akin ang loob ng barracks. Sa isang kwarto sa loob ng
barracks, may nakita akong babae na nakakadena[.] Noong una,
pinagbawalan akong makipag-usap sa kanya. Sa ikatlo o ikaapat na araw,
nakausap ko yung babaeng nagngangalang Sherlyn. Binigyan ko siya ng
pagkain. Sinabi niya sa akin na dinukot si[ya] sa Hagonoy, Bulacan at matindi
ang tortyur na dinaranas niya. Sabi niya gusto niyang umuwi at makasama
ang kanyang magulang. Umiiyak siya. Sabi niya sa akin ang buong pangalan
niya ay Sherlyn Cadapan, mula sa Laguna. Sa araw tinatanggal ang kanyang
kadena at inuutusan si Sherlyn na maglaba.
x x x x.
61. Sino ang mga nakilala mo sa Camp Tecson?
Dito sa Camp Tecson naming nakilala si ‗Allan Alvin‘ (maya-maya nalaman
naming na siya pala si Donald Caigas), ng 24th IB, na tinatawag na ‗master‘ o
‗commander‘ ng kanyang mga tauhan.
Pagkalipas ng 2 araw matapos dalhin si Reynaldo sa Camp Tecson dumating
sina Karen Empeño at Manuel Merino na mga bihag din. Inilagay si Karen at
Manuel sa kwarto ni ‗Allan[.]‘ Kami naman ni Reynaldo ay nasa katabing
kwarto, kasama si Sherlyn.
xxxx
62. x x x x
Kaming mga lalake (ako, si Reynaldo at si Manuel) ay ginawang utusan,
habang sina Sherlyn at Karen ay ginawang labandera.
Si Sherlyn ang pinahirapan nina Mickey, Donald at Billy. Sabi ni Sherlyn sa
akin na siya‘y ginahasa.
xxxx
63. x x x x
xxxx
Kaming lima (ako, si Reynaldo, si Sherlyn, si Karen at si [Merino]) ang dinala
sa Limay. Sinakay ako, si Reynaldo, si Sherlyn at si [Merino] sa isang
stainless na jeep. Si Karen ay isinakay sa itim na sasakyan ni Donald Caigas.
xxxx
xxxx
66. Saan pa kayo dinala mula sa Limay, Bataan?
Mula sa Limay, kaming 5 (ako, si Reynaldo, si Sherlyn, Si Karen at si Manuel)
ay dinala sa isang safehouse sa Zambales, tabi ng dagat. x x x x
(underscoring supplied; italics and emphasis in the original)
On rebuttal, Lt. Col. Anotado and Col. Eduardo Boyles Davalan were called to
the witness stand.
Lt. Col. Anotado denied seeing or meeting Manalo. He posited that Manalo
recognized him because he was very active in conducting lectures in Bataan
and even appeared on television regarding an incident involving the 24th
Infantry Batallion. He contended that it was impossible for Manalo, Sherlyn,
Karen and Merino to be detained in the Limay detachment which had no
detention area.
Col. Eduardo Boyles Davalan, the then chief of staff of the First Scout Ranger
Regiment in Camp Tecson, testified that the camp is not a detention facility,
nor does it conduct military operations as it only serves as a training facility for
scout rangers. He averred that his regiment does not have any command
relation with either the 7th Infantry Division or the 24th Infantry Battalion.22
By Decision of September 17, 2008,23 the appellate court granted the Motion
for Reconsideration in CA-G.R. SP No. 95303 (the habeas corpus case) and
ordered the immediate release of Sherlyn, Karen and Merino in CA-G.R. SP
No. 00002 (the amparo case). Thus it disposed:
WHEREFORE, in CA-G.R. SP NO. 95303 (Habeas Corpus case), the Motion
for Reconsideration is GRANTED.
Accordingly, in both CA-G.R. SP NO. 95303 (Habeas Corpus case) and in CA-
G.R. SP NO. 00002 (Amparo case), the respondents are thereby ordered to
immediately RELEASE, or cause the release, from detention the persons of
Sher[lyn] Cadapan, Karen Empeño and Manuel Merino.
Respondent Director General Avelino Razon is hereby ordered to resume [the]
PNP‘s unfinished investigation so that the truth will be fully ascertained and
appropriate charges filed against those truly responsible.
SO ORDERED.
In reconsidering its earlier Decision in the habeas corpus case, the appellate
court relied heavily on the testimony of Manalo in this wise:
With the additional testimony of Raymond Manalo, the petitioners have been
able to convincingly prove the fact of their detention by some elements in the
military. His testimony is a first hand account that military and civilian
personnel under the 7th Infantry Division were responsible for the abduction of
Sherlyn Cadapan, Karen Empeño and Manuel Merino. He also confirmed the
claim of Oscar Leuterio that the latter was detained in Fort Magsaysay. It was
there where he (Leuterio) saw Manuel Merino.
His testimony that Leuterio saw Manuel Merino in Fort Magsaysay may be
hearsay but not with respect to his meeting with, and talking to, the three
desaparecidos. His testimony on those points was no hearsay. Raymond
Manalo saw the three with his very own eyes as they were detained and
tortured together. In fact, he claimed to be a witness to the burning of Manuel
Merino. In the absence of confirmatory proof, however, the Court will presume
that he is still alive.
The testimony of Raymond Manalo can no longer be ignored and brushed
aside. His narration and those of the earlier witnesses, taken together,
constitute more than substantial evidence warranting an order that the three
be released from detention if they are not being held for a lawful cause. They
may be moved from place to place but still they are considered under
detention and custody of the respondents.
His testimony was clear, consistent and convincing. x x x.
xxxx
The additional testimonies of Lt. Col. Felipe Anotado and Col. Eduardo Boyles
Davalan were of no help either. Again, their averments were the same
negative ones which cannot prevail over those of Raymond Manalo. Indeed,
Camp Tecson has been utilized as a training camp for army scout rangers.
Even Raymond Manalo noticed it but the camp‘s use for purposes other than
training cannot be discounted.
xxxx
In view of the foregoing, there is now a clear and credible evidence that the
three missing persons, [Sherlyn, Karen and Merino], are being detained in
military camps and bases under the 7th Infantry Division. Being not held for a
lawful cause, they should be immediately released from detention. (italic in the
original; emphasis and underscoring supplied)
Meanwhile, in the amparo case, the appellate court deemed it a superfluity to
issue any inspection order or production order in light of the release order. As
it earlier ruled in the habeas corpus case, it found that the three detainees‘
right to life, liberty and security was being violated, hence, the need to
immediately release them, or cause their release. The appellate court went on
to direct the PNP to proceed further with its investigation since there were
enough leads as indicated in the records to ascertain the truth and file the
appropriate charges against those responsible for the abduction and detention
of the three.
Lt. Col. Rogelio Boac, et al. challenged before this Court, via petition for
review, the September 17, 2008 Decision of the appellate court. This was
docketed as G.R. Nos. 184461-62, the first above-captioned case- subject of
the present Decision.
Erlinda Cadapan and Concepcion Empeño, on the other hand, filed their own
petition for review also challenging the same September 17, 2008 Decision of
the appellate court only insofar as the amparo aspect is concerned. Their
petition, docketed as G.R. No. 179994, was redocketed as G.R. No. 184495,
the second above-captioned case.
By Resolution of June 15, 2010, the Court ordered the consolidation of G.R.
No. 184495 with G.R. Nos. 1844461-62.24
Meanwhile, Erlinda Cadapan and Concepcion Empeño filed before the
appellate court a Motion to Cite Respondents in Contempt of Court for failure
of the respondents in the amparo and habeas corpus cases to comply with the
directive of the appellate court to immediately release the three missing
persons. By Resolution of March 5, 2009,25 the appellate court denied the
motion, ratiocinating thus:
While the Court, in the dispositive portion, ordered the respondents "to
immediately RELEASE, or cause the release, from detention the persons of
Sherlyn Cadapan, Karen Empeño and Manuel Merino," the decision is not ipso
facto executory. The use of the term "immediately" does not mean that that it
is automatically executory. There is nothing in the Rule on the Writ of Amparo
which states that a decision rendered is immediately executory. x x x.
Neither did the decision become final and executory considering that both
parties questioned the Decision/Resolution before the Supreme Court. x x x.
Besides, the Court has no basis. The petitioners did not file a motion for
execution pending appeal under Section 2 of Rule 39. There being no motion,
the Court could not have issued, and did not issue, a writ of execution. x x x.
(underscoring supplied)
Via a petition for certiorari filed on March 30, 2009 before this Court, Erlinda
Cadapan and Concepcion Empeño challenged the appellate court‘s March 5,
2009 Resolution denying their motion to cite respondents in contempt. The
petition was docketed as G.R. No. 187109, the last above-captioned case
subject of the present Decision.
Only Lt. Col. Anotado and Lt. Mirabelle remained of the original respondents in
the amparo and habeas corpus cases as the other respondents had retired
from government service.26 The AFP has denied that Arnel Enriquez was a
Page 84 of 101
member of the Philippine Army.27 The whereabouts of Donald Caigas remain
unknown.28
In G.R. Nos. 184461-62, petitioners posit as follows:
I
…THE COURT OF APPEALS GROSSLY MISAPPRECIATED THE VALUE
OF THE TESTIMONY OF RAYMOND MANALO.
II
THE PETITION[S] FOR HABEAS CORPUS AND WRIT OF AMPARO
SHOULD BE DISMISSED BECAUSE RESPONDENTS FAILED TO PROVE
BY THE REQUIRED QUANTUM OF EVIDENCE THAT PETITIONERS HAVE
SHERLYN CADAPAN, KAREN EMPEñO AND MANUEL MERINO ARE IN
THEIR CUSTODY.
III
PETITIONERS‘ DENIALS PER SE SHOULD NOT HAVE BEEN TAKEN
AGAINST THEM BECAUSE THEY DID NOT REALLY HAVE ANY
INVOLVEMENT IN THE ALLEGED ABDUCTION; MOREOVER, THE
SUPPOSED INCONSISTENCIES IN THEIR TESTIMONIES ARE ON POINTS
IRRELEVANT TO THE PETITION.
IV
THE DISPOSITIVE PORTION OF THE ASSAILED DECISION IS VAGUE
AND INCONGRUENT WITH THE FINDINGS OF THE COURT OF APPEALS.
V
THE COURT OF APPEALS IGNORED AND FAILED TO RULE UPON THE
FATAL PROCEDURAL INFIRMITIES IN THE PETITION FOR WRIT OF
AMPARO.29
In G.R. No. 184495, petitioners posit as follows:
5. The Court of Appeals erred in not granting the Interim Relief for Inspection
of Places;
6. The Court of Appeals erred in not granting the Interim Relief for Production
of Documents;
7. The Court of Appeals erred in not finding that the Police Director Gen.
Avelino Razon did not make extraordinary diligence in investigating the
enforced disappearance of the aggrieved parties…
8. The Court of Appeals erred in not finding that this was not the command
coming from the highest echelon of powers of the Armed Forces of the
Philippines, Philippine Army and the Seventh Infantry Division of the Philippine
Army to enforcibly disappear [sic] the aggrieved parties…
9. The Court of Appeals erred in dropping President Gloria Macapagal Arroyo
as party respondent in this case;
10. The Court of Appeals erred in not finding that President Gloria Macapagal
Arroyo had command responsibility in the enforced disappearance and
continued detention of the three aggrieved parties…
11. The Court of Appeals erred in not finding that the Armed Forces Chief of
Staff then Hermogenes Esperon and the Present Chief of Staff as having
command responsibility in the enforced disappearance and continued
detention of the three aggrieved parties…30
In G.R. No. 187109, petitioners raise the following issues:
[1] Whether… the decision in the Court of Appeals has become final and
executory[.]
[2] Whether…there is a need to file a motion for execution in a Habeas Corpus
decision or in an Amparo decision[.]
[3] Whether…an appeal can stay the decision of a Habeas Corpus [case] [or]
an Amparo case[.]31
Essentially, the consolidated petitions present three primary issues, viz: a)
whether the testimony of Raymond Manalo is credible; b) whether the chief of
the AFP, the commanding general of the Philippine Army, as well as the heads
of the concerned units had command responsibility over the abduction and
detention of Sherlyn, Karen and Merino; and c) whether there is a need to file
a motion for execution to cause the release of the aggrieved parties.
G.R. Nos. 184461-62
Petitioners Lt. Col. Boac, et al. contend that the appellate court erred in giving
full credence to the testimony of Manalo who could not even accurately
describe the structures of Camp Tecson where he claimed to have been
detained along with Sherlyn, Karen and Merino. They underscore that Camp
Tecson is not under the jurisdiction of the 24th Infantry Batallion and that
Manalo‘s testimony is incredible and full of inconsistencies.32
In Secretary of National Defense v. Manalo,33 an original petition for
Prohibition, Injunction and Temporary Restraining Order which was treated as
a petition under the Amparo Rule, said Rule having taken effect during the
pendency of the petition, the Court ruled on the truthfulness and veracity of the
personal account of Manalo which included his encounter with Sherlyn, Kara
and Merino while on detention. Thus it held:
We affirm the factual findings of the appellate court, largely based on
respondent Raymond Manalo‘s affidavit and testimony, viz:
x x x x.
We reject the claim of petitioners that respondent Raymond Manalo‘s
statements were not corroborated by other independent and credible pieces of
evidence. Raymond‘s affidavit and testimony were corroborated by the
affidavit of respondent Reynaldo Manalo. The testimony and medical reports
prepared by forensic specialist Dr. Molino, and the pictures of the scars left by
the physical injuries inflicted on respondents, also corroborate respondents‘
accounts of the torture they endured while in detention. Respondent Raymond
Manalo‘s familiarity with the facilities in Fort Magsaysay such as the "DTU," as
shown in his testimony and confirmed by Lt. Col. Jimenez to be the "Division
Training Unit," firms up respondents‘ story that they were detained for some
time in said military facility. (citations omitted; emphasis and underscoring
supplied)
On Manalo‘s having allegedly encountered Sherlyn, Karen and Merino while
on detention, the Court in the immediately cited case synthesized his tale as
follows:
The next day, Raymond‘s chains were removed and he was ordered to clean
outside the barracks. It was then he learned that he was in a detachment of
the Rangers. There were many soldiers, hundreds of them were training. He
was also ordered to clean inside the barracks. In one of the rooms therein, he
met Sherlyn Cadapan from Laguna. She told him that she was a student of the
University of the Philippines and was abducted in Hagonoy, Bulacan. She
confided that she had been subjected to severe torture and raped. She was
crying and longing to go home and be with her parents. During the day, her
chains were removed and she was made to do the laundry.
After a week, Reynaldo was also brought to Camp Tecson. Two days from his
arrival, two other captives, Karen Empeño and Manuel Merino, arrived. Karen
and Manuel were put in the room with "Allan" whose name they later came to
know as Donald Caigas, called "master" or "commander" by his men in the
24th Infantry Battalion. Raymond and Reynaldo were put in the adjoining
room. At times, Raymond and Reynaldo were threatened, and Reynaldo was
beaten up. In the daytime, their chains were removed, but were put back on at
night. They were threatened that if they escaped, their families would all be
killed.
On or about October 6, 2006, Hilario arrived in Camp Tecson. He told the
detainees that they should be thankful they were still alive and should continue
along their "renewed life." Before the hearing of November 6 or 8, 2006,
respondents were brought to their parents to instruct them not to attend the
hearing. However, their parents had already left for Manila. Respondents were
brought back to Camp Tecson. They stayed in that camp from September
2006 to November 2006, and Raymond was instructed to continue using the
name "Oscar" and holding himself out as a military trainee. He got acquainted
with soldiers of the 24th Infantry Battalion whose names and descriptions he
stated in his affidavit.
On November 22, 2006, respondents, along with Sherlyn, Karen, and Manuel,
were transferred to a camp of the 24th Infantry Battalion in Limay, Bataan.
There were many huts in the camp. They stayed in that camp until May 8,
2007. Some soldiers of the battalion stayed with them. While there, battalion
soldiers whom Raymond knew as "Mar" and "Billy" beat him up and hit him in
the stomach with their guns. Sherlyn and Karen also suffered enormous
torture in the camp. They were all made to clean, cook, and help in raising
livestock.
Raymond recalled that when "Operation Lubog" was launched, Caigas and
some other soldiers brought him and Manuel with them to take and kill all
sympathizers of the NPA. They were brought to Barangay Bayan-bayanan,
Bataan where he witnessed the killing of an old man doing kaingin. The
soldiers said he was killed because he had a son who was a member of the
NPA and he coddled NPA members in his house. Another time, in another
"Operation Lubog," Raymond was brought to Barangay Orion in a house
where NPA men stayed. When they arrived, only the old man of the house
who was sick was there. They spared him and killed only his son right before
Raymond‘s eyes.
From Limay, Raymond, Reynaldo, Sherlyn, Karen, and Manuel were
transferred to Zambales, in a safehouse near the sea. Caigas and some of his
men stayed with them. A retired army soldier was in charge of the house. Like
in Limay, the five detainees were made to do errands and chores. They stayed
in Zambales from May 8 or 9, 2007 until June 2007.
In June 2007, Caigas brought the five back to the camp in Limay. Raymond,
Reynaldo, and Manuel were tasked to bring food to detainees brought to the
camp. Raymond narrated what he witnessed and experienced in the camp,
viz:
x x x x.34 (emphasis and underscoring supplied)
Page 85 of 101
The Court takes judicial notice of its Decision in the just cited Secretary of
National Defense v. Manalo35 which assessed the account of Manalo to be a
candid and forthright narrative of his and his brother Reynaldo‘s abduction by
the military in 2006; and of the corroborative testimonies, in the same case, of
Manalo‘s brother Reynaldo and a forensic specialist, as well as Manalo‘s
graphic description of the detention area. There is thus no compelling reason
for the Court, in the present case, to disturb its appreciation in Manalo‘s
testimony. The outright denial of petitioners Lt. Col. Boac, et al. thus crumbles.
Petitioners go on to point out that the assailed Decision of the appellate court
is "vague and incongruent with [its] findings" for, so they contend, while the
appellate court referred to the perpetrators as "misguided and self-righteous
civilian and military elements of the 7th Infantry Division," it failed to identify
who these perpetrators are. Moreover, petitioners assert that Donald Caigas
and Arnel Enriquez are not members of the AFP. They furthermore point out
that their co-petitioners Generals Esperon, Tolentino and Palparan have
already retired from the service and thus have no more control of any military
camp or base in the country.36
There is nothing vague and/or incongruent about the categorical order of the
appellate court for petitioners to release Sherlyn, Karen and Merino. In its
discourse, the appellate court merely referred to "a few misguided self-
righteous people who resort to the extrajudicial process of neutralizing those
who disagree with the country‘s democratic system of government." Nowhere
did it specifically refer to the members of the 7th Infantry Division as the
"misguided self-righteous" ones.
Petitioners finally point out that the parents of Sherlyn and Karen do not have
the requisite standing to file the amparo petition on behalf of Merino. They call
attention to the fact that in the amparo petition, the parents of Sherlyn and
Karen merely indicated that they were "concerned with Manuel Merino" as
basis for filing the petition on his behalf.37
Section 2 of the Rule on the Writ of Amparo38 provides:
The petition may be filed by the aggrieved party or by any qualified person or
entity in the following order:
(a) Any member of the immediate family, namely: the spouse, children and
parents of the aggrieved party;
(b) Any ascendant, descendant or collateral relative of the aggrieved party
within the fourth civil degree of consanguinity or affinity, in default of those
mentioned in the preceding paragraph; or
(c) Any concerned citizen, organization, association or institution, if there is no
known member of the immediate family or relative of the aggrieved party.
Indeed, the parents of Sherlyn and Karen failed to allege that there were no
known members of the immediate family or relatives of Merino. The exclusive
and successive order mandated by the above-quoted provision must be
followed. The order of priority is not without reason—"to prevent the
indiscriminate and groundless filing of petitions for amparo which may even
prejudice the right to life, liberty or security of the aggrieved party."39
The Court notes that the parents of Sherlyn and Karen also filed the petition
for habeas corpus on Merino‘s behalf. No objection was raised therein for, in a
habeas corpus proceeding, any person may apply for the writ on behalf of the
aggrieved party.40
It is thus only with respect to the amparo petition that the parents of Sherlyn
and Karen are precluded from filing the application on Merino‘s behalf as they
are not authorized parties under the Rule.
G.R. No. 184495
Preliminarily, the Court finds the appellate court‘s dismissal of the petitions
against then President Arroyo well-taken, owing to her immunity from suit at
the time the habeas corpus and amparo petitions were filed.41
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. x x x 42
Parenthetically, the petitions are bereft of any allegation that then President
Arroyo permitted, condoned or performed any wrongdoing against the three
missing persons.
On the issue of whether a military commander may be held liable for the acts
of his subordinates in an amparo proceeding, a brief discussion of the concept
of command responsibility and its application insofar as amparo cases already
decided by the Court is in order.
Rubrico v. Macapagal Arroyo43 expounded on the concept of command
responsibility as follows:
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." In this sense, command responsibility is properly a form of
criminal complicity. The Hague Conventions of 1907 adopted the doctrine of
command responsibility, 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 perpetrators (as opposed to crimes he
ordered). (citations omitted; emphasis in the original; underscoring supplied)44
It bears stressing that command responsibility is properly a form of criminal
complicity,45 and thus a substantive rule that points to criminal or
administrative liability.
An amparo proceeding is not criminal in nature nor does it ascertain the
criminal liability of individuals or entities involved. Neither does it partake of a
civil or administrative suit.46 Rather, it is a remedial measure designed to
direct specified courses of action to government agencies to safeguard the
constitutional right to life, liberty and security of aggrieved individuals.47
Thus Razon Jr. v. Tagitis 48 enlightens:
[An amparo proceeding] does nor determine guilt nor pinpoint criminal
culpability for the disappearance [threats thereof or extrajudicial killings]; it
determines responsibility, or at least accountability, for the enforced
disappearance…for purposes of imposing the appropriate remedies to
address the disappearance…49 (emphasis and underscoring supplied)
Further, Tagitis defines what constitutes "responsibility" and "accountability,"
viz:
x x x. Responsibility refers to the extent the actors have been established by
substantial evidence to have participated in whatever way, by action or
omission, in an enforced disappearance, as a measure of the remedies this
Court shall craft, among them, the directive to file the appropriate criminal and
civil cases against the responsible parties in the proper courts. Accountability,
on the other hand, refers to the measure of remedies that should be
addressed to those who exhibited involvement in the enforced disappearance
without bringing the level of their complicity to the level of responsibility
defined above; or who are imputed with knowledge relating to the enforced
disappearance and who carry the burden of disclosure; or those who carry, but
have failed to discharge, the burden of extraordinary diligence in the
investigation of the enforced disappearance. In all these cases, the issuance
of the Writ of Amparo is justified by our primary goal of addressing the
disappearance, so that the life of the victim is preserved and his liberty and
security are restored.50 (emphasis in the original; underscoring supplied)
Rubrico categorically denies the application of command responsibility in
amparo cases to determine criminal liability.51 The Court maintains its
adherence to this pronouncement as far as amparo cases are concerned.
Rubrico, however, recognizes a preliminary yet limited application of command
responsibility in amparo cases to instances of determining the responsible or
accountable individuals or entities that are duty-bound to abate any
transgression on the life, liberty or security of the aggrieved party.
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.52 (emphasis and underscoring supplied)
In other words, command responsibility may be loosely applied in amparo
cases in order to identify those accountable individuals that have the power to
effectively implement whatever processes an amparo court would issue.53 In
such application, the amparo court does not impute criminal responsibility but
merely pinpoint the superiors it considers to be in the best position to protect
the rights of the aggrieved party.
Such identification of the responsible and accountable superiors may well be a
preliminary determination of criminal liability which, of course, is still subject to
further investigation by the appropriate government agency.
Relatedly, the legislature came up with Republic Act No. 985154 (RA 9851) to
include command responsibility as a form of criminal complicity in crimes
against international humanitarian law, genocide and other crimes.55 RA 9851
is thus the substantive law that definitively imputes criminal liability to those
superiors who, despite their position, still fail to take all necessary and
reasonable measures within their power to prevent or repress the commission
of illegal acts or to submit these matters to the competent authorities for
investigation and prosecution.
Page 86 of 101
The Court finds that the appellate court erred when it did not specifically name
the respondents that it found to be responsible for the abduction and
continued detention of Sherlyn, Karen and Merino. For, from the records, it
appears that the responsible and accountable individuals are Lt. Col. Anotado,
Lt. Mirabelle, Gen. Palparan, Lt. Col. Boac, Arnel Enriquez and Donald
Caigas. They should thus be made to comply with the September 17, 2008
Decision of the appellate court to IMMEDIATELY RELEASE Sherlyn, Karen
and Merino.
The petitions against Generals Esperon, Razon and Tolentino should be
dismissed for lack of merit as there is no showing that they were even
remotely accountable and responsible for the abduction and continued
detention of Sherlyn, Karen and Merino.
G.R. No. 187109.
Contrary to the ruling of the appellate court, there is no need to file a motion
for execution for an amparo or habeas corpus decision. Since the right to life,
liberty and security of a person is at stake, the proceedings should not be
delayed and execution of any decision thereon must be expedited as soon as
possible since any form of delay, even for a day, may jeopardize the very
rights that these writs seek to immediately protect.
The Solicitor General‘s argument that the Rules of Court supplement the Rule
on the Writ of Amparo is misplaced. The Rules of Court only find suppletory
application in an amparo proceeding if the Rules strengthen, rather than
weaken, the procedural efficacy of the writ. As it is, the Rule dispenses with
dilatory motions in view of the urgency in securing the life, liberty or security of
the aggrieved party. Suffice it to state that a motion for execution is
inconsistent with the extraordinary and expeditious remedy being offered by
an amparo proceeding.
In fine, the appellate court erred in ruling that its directive to immediately
release Sherlyn, Karen and Merino was not automatically executory. For that
would defeat the very purpose of having summary proceedings56 in amparo
petitions. Summary proceedings, it bears emphasis, are immediately
executory without prejudice to further appeals that may be taken therefrom.57
WHEREFORE, in light of the foregoing discussions, the Court renders the
following judgment:
1. The Petitions in G.R. Nos. 184461-62 and G.R. No. 184495 are
DISMISSED. The Decision of the Court of Appeals dated September 17, 2008
is AFFIRMED with modification in that respondents in G.R. No. 184495,
namely Lt. Col. Felipe Anotado, Lt. Francis Mirabelle Samson, Gen. Jovito
Palparan, Lt. Col. Rogelio Boac, Arnel Enriquez and Donald Caigas are
ordered to immediately release Sherlyn Cadapan, Karen Empeño and Manuel
Merino from detention.
The petitions against Generals Esperon, Razon and Tolentino are
DISMISSED.
2. The petition in G.R. No. 187109 is GRANTED. The named respondents are
directed to forthwith comply with the September 17, 2008 Decision of the
appellate court. Owing to the retirement and/or reassignment to other places
of assignment of some of the respondents herein and in G.R. No. 184495, the
incumbent commanding general of the 7th Infantry Division and the incumbent
battalion commander of the 24th Infantry Battalion, both of the Philippine
Army, are enjoined to fully ensure the release of Sherlyn Cadapan, Karen
Empeño and Manuel Merino from detention.1awphi1
Respondents Lt. Col. Felipe Anotado, Lt. Francis Mirabelle Samson, Gen.
Jovito Palparan, Lt. Col. Rogelio Boac, Arnel Enriquez and Donald Caigas
shall remain personally impleaded in the petitions to answer for any
responsibilities and/or accountabilities they may have incurred during their
incumbencies.
Let copies of this Decision and the records of these cases be furnished the
Department of Justice (DOJ), the Philippine National Police (PNP) and the
Armed Forces of the Philippines (AFP) for further investigation to determine
the respective criminal and administrative liabilities of respondents.
All the present petitions are REMANDED to the Court of Appeals for
appropriate action, directed at monitoring of the DOJ, PNP and AFP
investigations and the validation of their results.
SO ORDERED.
CONCHITA CARPIO MORALES
Associate Justice
Republic of the Philippines
SUPREME COURT
Baguio City
EN BANC
G.R. No. 191805 April 16, 2013
IN THE MATTER OF THE PETITION FOR THE WRIT OF AMPARO AND
HABEAS DATA IN FAVOR OF NORIEL RODRIGUEZ, NORIEL
RODRIGUEZ, Petitioner,
vs.
GLORIA MACAPAGAL-ARROYO, GEN. VICTOR S. IBRADO, PDG JESUS
AME VERSOZA, LT. GEN. DELFIN BANGIT, MAJ. GEN. NESTOR Z.
OCHOA, P/CSUPT. AMETO G. TOLENTINO, P/SSUPT. JUDE W. SANTOS,
COL. REMIGIO M. DE VERA, an officer named MATUTINA, LT. COL.
MINA, CALOG, GEORGE PALACPAC under the name "HARRY,"
ANTONIO CRUZ, ALDWIN "BONG" PASICOLAN and VINCENT
CALLAGAN, Respondents.
x-----------------------x
G.R. No. 193160
IN THE MATTER OF THE PETITION FOR THE WRIT OF AMPARO AND
HABEAS DATA IN FAVOR OF NORIEL RODRIGUEZ, POLICE DIR. GEN.
JESUS A. VERSOZA, P/SSUPT. JUDE W. SANTOS, BGEN. REMEGIO M.
DE VERA, 1ST LT. RYAN S. MATUTINA, LT. COL. LAURENCE E. MINA,
ANTONIO C. CRUZ, ALDWIN C. PASICOLAN and VICENTE A. CALLAGAN,
Petitioners,
vs.
NORIEL H. RODRIGUEZ, Respondent.
RESOLUTION
SERENO, CJ.:
On 15 November 2011, the Court promulgated its Decision in the present
case, the dispositive portion of which reads:
WHEREFORE, we resolve to GRANT the Petition for Partial Review in G.R.
No. 191805 and DENY the Petition for Review in G.R. No. 193160. The
Decision of the Court of Appeals is hereby AFFIRMED WITH MODIFICATION.
The case is dismissed with respect to respondents former President Gloria
Macapagal-Arroyo, P/CSupt. Ameto G. Tolentino, and P/SSupt. Jude W.
Santos, Calog, George Palacpac, Antonio Cruz, Aldwin Pasicolan and Vincent
Callagan for lack of merit.
This Court directs the Office of the Ombudsman (Ombudsman) and the
Department of Justice (DOJ) to take the appropriate action with respect to any
possible liability or liabilities, within their respective legal competence, that may
have been incurred by respondents Gen. Victor lbrado, PDG. Jesus Verzosa,
Lt. Gen. Delfin Bangit, Maj. Gen. Nestor Ochoa, Brig. Gen. Remegio De Vera,
1st Lt. Ryan Matutina, and Lt. Col. Laurence Mina. The Ombudsman and the
DOJ are ordered to submit to this Court the results of their action within a
period of six months from receipt of this Decision.
In the event that herein respondents no longer occupy their respective posts,
the directives mandated in this Decision and in the Court of Appeals are
enforceable against the incumbent officials holding the relevant positions.
Failure to comply with the foregoing shall constitute contempt of court.
SO ORDERED.
After a careful examination of the records, the Court was convinced that the
Court of Appeals correctly found sufficient evidence proving that the soldiers of
the 17th Infantry Battalion, 5th Infantry Division of the military abducted
petitioner Rodriguez on 6 September 2009, and detained and tortured him
until 17 September 2009.
Pursuant to the Decision ordering the Office of the Ombudsman to take further
action, Ombudsman Conchita Carpio Morales sent this Court a letter dated 23
May 2012, requesting an additional two-month period, or until 24 July 2012,
within which to submit a report. The Ombudsman stated that Noriel Rodriguez
(Rodriguez) and his family refused to cooperate with the investigation for
security reasons.
On 6 January 2012, respondents filed their Motion for Reconsideration,1
arguing that the soldiers belonging to the 17th Infantry Battalion, 5th Infantry
Division of the military cannot be held accountable for authoring the abduction
and torture of petitioner. Their arguments revolve solely on the claim that
respondents were never specifically mentioned by name as having performed,
permitted, condoned, authorized, or allowed the commission of any act or
incurrence omission which would violate or threaten with violation the rights to
life, liberty, and security of petitioner-respondent and his family.2
On 18 January 2013, the Ombudsman submitted the Investigation Report, as
compliance with the Court‘s directive to take appropriate action with respect to
possible liabilities respondents may have incurred. The exhaustive report
detailed the steps taken by the Field Investigation Office (FIO) of the Office of
the Ombudsman, concluding that no criminal, civil, or administrative liabilities
may be imputed to the respondents. It was reflected therein that the lawyers
for the Rodriguezes had manifested to the FIO that the latter are hesitant to
appear before them for security reasons, viz:
Karapatan (a non-governmental organization that provides legal assistance to
victims of human rights violations and their families) could not locate Noriel
and Rodel. As of this writing, the Rodriguezes refused to participate in the
present fact-finding investigation ‗for security reasons.‘ Atty. Yambot disclosed
(through a Manifestation dated March 30, 2012 that despite efforts to convince
Page 87 of 101
Noriel to participate in the present proceedings, the latter ‗remains
unconvinced and unwilling to this date.‘
Recent information, however, revealed that Noriel and his family are no longer
interested in participating in the present case.
Instead of appearing before this Office for a conference under oath, SPO1
Robert B. Molina submitted an Affidavit dated June 13, 2012 stating that on
September 15, 2009, at around 11:00 o‘clock in the morning, Wilma H.
Rodriguez appeared before the Gonzaga Police Station and requested to
enter into the blotter that her son, Noriel, was allegedly missing in Sitio
Comunal, Gonzaga, Cagayan. Thereupon, he gathered information relative to
Wilma‘s report "but the community residence failed to reveal anything".3
The other accounts – specifically that of respondent Antonino C. Cruz, Special
Investigator II of the Commission on Human Rights (CHR), as well as the
claims of respondents Mina and De Vera that they had disclosed to the CHR
that Noriel had become an agent ("asset") of the 17th Infantry Battalion – have
been thoroughly evaluated and ruled upon in our Decision. The OMB further
laments, "If only he (Noriel) could be asked to verify the circumstances under
which he executed these subsequent affidavits, his inconsistent claims will
finally be settled," and that "(I)f there is one person who can attest on whether
detention and torture were indeed committed by any of the Subjects herein, it
is Noriel Rodriguez himself, the supposed victim."4
The purported unwillingness of the petitioner to appear or participate at this
stage of the proceedings due to security reasons does not affect the rationale
of the writ granted by the CA, as affirmed by this Court. In any case, the issue
of the existence of criminal, civil, or administrative liability which may be
imputed to the respondents is not the province of amparo proceedings --
rather, the writ serves both preventive and curative roles in addressing the
problem of extrajudicial killings and enforced disappearances. It is preventive
in that it breaks the expectation of impunity in the commission of these
offenses, and it is curative in that it facilitates the subsequent punishment of
perpetrators by inevitably leading to subsequent investigation and action.5 In
this case then, the thrust of ensuring that investigations are conducted and the
rights to life, liberty, and security of the petitioner, remains.
We deny the motion for reconsideration.
The writ of amparo partakes of a summary proceeding that requires only
substantial evidence to make the appropriate interim and permanent reliefs
available to the petitioner. As explained in the Decision, it is not an action to
determine criminal guilt requiring proof beyond reasonable doubt, or liability for
damages requiring preponderance of evidence, or even administrative
responsibility requiring substantial evidence. The totality of evidence as a
standard for the grant of the writ was correctly applied by this Court, as first
laid down in Razon v. Tagitis:
The fair and proper rule, to our mind, is to consider all the pieces of evidence
adduced in their totality, and to consider any evidence otherwise inadmissible
under our usual rules to be admissible if it is consistent with the admissible
evidence adduced. In other words, we reduce our rules to the most basic test
of reason – i.e., to the relevance of the evidence to the issue at hand and its
consistency with all other pieces of adduced evidence. Thus, even hearsay
evidence can be admitted if it satisfies this basic minimum test.6 (Emphasis
supplied.)
No reversible error may be attributed to the grant of the privilege of the writ by
the CA, and the present motion for reconsideration raises no new issues that
would convince us otherwise.
Respondents‘ claim that they were not competently identified as the soldiers
who abducted and detained the petitioner, or that there was no mention of
their names in the documentary evidence, is baseless. The CA rightly
considered Rodriguez‘s Sinumpaang Salaysay7 as a meticulous and
straightforward account of his horrific ordeal with the military, detailing the
manner in which he was captured and maltreated on account of his suspected
membership in the NPA.8
Petitioner narrated that at dawn on 9 September 2009, he noticed a soldier
with the name tag "Matutina," who appeared to be an official because the
other soldiers addressed him as "sir."9 He saw Matutina again at 11:00 p.m.
on 15 September 2009, when his abductors took him to a military operation in
the mountains. His narration of his suffering included an exhaustive
description of his physical surroundings, personal circumstances, and
perceived observations. He likewise positively identified respondents 1st Lt.
Matutina and Lt. Col. Mina to be present during his abduction, detention and
torture.10 These facts were further corroborated by Hermie Antonio Carlos in
his Sinumpaang Salaysay dated 16 September 2009,11 wherein he recounted
in detail the circumstances surrounding the victim‘s capture.
Respondents‘ main contention in their Return of the Writ was correctly
deemed illogical and contradictory by the CA. They claim that Rodriguez had
complained of physical ailments due to activities in the CPP-NPA, yet
nevertheless signified his desire to become a double-agent for the military.
The CA stated:
In the Return of the Writ, respondent AFP members alleged that petitioner
confided to his military handler, Cpl. Navarro, that petitioner could no longer
stand the hardships he experienced in the wilderness, and that he wanted to
become an ordinary citizen again because of the empty promises of the CPP-
NPA. However, in the same Return, respondents state that petitioner agreed
to become a double agent for the military and wanted to re-enter the CPP-
NPA, so that he could get information regarding the movement directly from
the source. If petitioner was tired of life in the wilderness and desired to
become an ordinary citizen again, it defies logic that he would agree to
become an undercover agent and work alongside soldiers in the mountains –
or the wilderness he dreads – to locate the hideout of his alleged NPA
comrades.12 (Emphasis supplied.)
Respondents conveniently neglect to address the findings of both the CA and
this Court that aside from the abduction of Rodriguez, respondents,
specifically 1st Lt. Matutina, had violated and threatened the former‘s right to
security when they made a visual recording of his house, as well as the photos
of his relatives. The CA found that the soldiers even went as far as taking
videos of the photos of petitioner‘s relatives hung on the wall of the house, and
the innermost portions of the house.13 There is no reasonable justification for
this violation of the right to privacy and security of petitioner‘s abode, which
strikes at the very heart and rationale of the Rule on the Writ of Amparo. More
importantly, respondents also neglect to address our ruling that the failure to
conduct a fair and effective investigation similarly amounted to a violation of,
or threat to Rodriguez‘s rights to life, liberty, and security.14
The writ‘s curative role is an acknowledgment that the violation of the right to
life, liberty, and security may be caused not only by a public official‘s act, but
also by his omission. Accountability may attach to respondents who are
imputed with knowledge relating to the enforced disappearance and who carry
the burden of disclosure; or those who carry, but have failed to discharge, the
burden of extraordinary diligence in the investigation of the enforced
disappearance.15 The duty to investigate must be undertaken in a serious
manner and not as a mere formality preordained to be ineffective.16
The CA found that respondents Gen. Ibrado, PDG Verzosa, LT. Gen. Bangit,
Maj. Gen. Ochoa, Col. De Vera, and Lt. Col. Mina conducted a perfunctory
investigation which relied solely on the accounts of the military. Thus, the CA
correctly held that the investigation was superficial, one-sided, and depended
entirely on the report prepared by 1st Lt. Johnny Calub. No efforts were
undertaken to solicit petitioner‘s version of the incident, and no witnesses were
questioned regarding it.17 The CA also took into account the palpable lack of
effort from respondent Versoza, as the chief of the Philippine National Police.
WHEREFORE, in view of the foregoing, the Motion for Reconsideration is
hereby DENIED with FINALITY. Let a copy of this Resolution be furnished the
Ombudsman for whatever appropriate action she may still take under
circumstances.
SO ORDERED.
MARIA LOURDES P. A. SERENO
Chief Justice
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 184467 June 19, 2012
EDGARDO NAVIA,1 RUBEN DIO,2 and ANDREW BUISING, Petitioners,
vs.
VIRGINIA PARDICO, for and in behalf and in representation of BENHUR
V. PARDICO Respondent.
DECISION
DEL CASTILLO, J.:
For the protective writ of amparo to issue in enforced disappearance cases,
allegation and proof that the persons subject thereof are missing are not
enough. It must also be shown by the required quantum of proof that their
disappearance was carried out by, "or with the authorization, support or
acquiescence of, [the government] or a political organization, followed by a
refusal to acknowledge [the same or] give information on the fate or
whereabouts of [said missing] persons."3
This petition for review on certiorari4 filed in relation to Section 19 of A.M. No.
07-9-12-SC5 challenges the July 24, 2008 Decision6 of the Regional Trial
Court (RTC), Branch 20, Malolos City which granted the Petition for Writ of
Amparo7 filed by herein respondent against the petitioners.
Factual Antecedents
On March 31, 2008, at around 8:30 p.m., a vehicle of Asian Land Strategies
Corporation8 (Asian Land) arrived at the house of Lolita M. Lapore (Lolita)
located at 7A Lot 9, Block 54, Grand Royale Subdivision, Barangay Lugam,
Malolos City. The arrival of the vehicle awakened Lolita‘s son, Enrique Lapore
(Bong), and Benhur Pardico (Ben), who were then both staying in her house.
When Lolita went out to investigate, she saw two uniformed guards
disembarking from the vehicle. One of them immediately asked Lolita where
they could find her son Bong. Before Lolita could answer, the guard saw Bong
and told him that he and Ben should go with them to the security office of
Page 88 of 101
Asian Land because a complaint was lodged against them for theft of electric
wires and lamps in the subdivision.9
Shortly thereafter, Bong, Lolita and Ben were in the office of the security
department of Asian Land also located in Grand Royale Subdivision.10 The
supervisor of the security guards, petitioner Edgardo Navia (Navia), also
arrived thereat.
As to what transpired next, the parties‘ respective versions diverge.
Version of the Petitioners
Petitioners alleged that they invited Bong and Ben to their office because they
received a report from a certain Mrs. Emphasis, a resident of Grand Royale
Subdivision, that she saw Bong and Ben removing a lamp from a post in said
subdivision.11 The reported unauthorized taking of the lamp was relayed thru
radio to petitioners Ruben Dio (Dio) and Andrew Buising (Buising), who both
work as security guards at the Asian Land security department. Following their
department‘s standard operating procedure, Dio and Buising entered the
report in their logbook and proceeded to the house of Mrs. Emphasis. It was
there where Dio and Buising were able to confirm who the suspects were.
They thus repaired to the house of Lolita where Bong and Ben were staying to
invite the two suspects to their office. Bong and Ben voluntarily went with
them.
At the security office, Dio and Buising interviewed Bong and Ben. The
suspects admitted that they took the lamp but clarified that they were only
transferring it to a post nearer to the house of Lolita.12 Soon, Navia arrived
and Buising informed him that the complainant was not keen in participating in
the investigation. Since there was no complainant, Navia ordered the release
of Bong and Ben. Bong then signed a statement to the effect that the guards
released him without inflicting any harm or injury to him.13 His mother Lolita
also signed the logbook below an entry which states that she will never again
harbor or entertain Ben in her house. Thereafter, Lolita and Bong left the
security office.
Ben was left behind as Navia was still talking to him about those who might be
involved in the reported loss of electric wires and lamps within the subdivision.
After a brief discussion though, Navia allowed Ben to leave. Ben also affixed
his signature on the logbook to affirm the statements entered by the guards
that he was released unharmed and without any injury.14
Upon Navia‘s instructions, Dio and Buising went back to the house of Lolita to
make her sign the logbook as witness that they indeed released Ben from their
custody. Lolita asked Buising to read aloud that entry in the logbook where
she was being asked to sign, to which Buising obliged. Not contented, Lolita
put on her reading glasses and read the entry in the logbook herself before
affixing her signature therein. After which, the guards left.
Subsequently, petitioners received an invitation15 from the Malolos City Police
Station requesting them to appear thereat on April 17, 2008 relative to the
complaint of Virginia Pardico (Virginia) about her missing husband Ben. In
compliance with the invitation, all three petitioners appeared at the Malolos
City Police Station. However, since Virginia was not present despite having
received the same invitation, the meeting was reset to April 22, 2008.16
On April 22, 2008, Virginia attended the investigation. Petitioners informed her
that they released Ben and that they have no information as to his present
whereabouts.17 They assured Virginia though that they will cooperate and
help in the investigation of her missing husband.18
Version of the Respondent
According to respondent, Bong and Ben were not merely invited. They were
unlawfully arrested, shoved into the Asian Land vehicle and brought to the
security office for investigation. Upon seeing Ben at the security office, Navia
lividly grumbled "Ikaw na naman?"19 and slapped him while he was still
seated. Ben begged for mercy, but his pleas were met with a flurry of punches
coming from Navia hitting him on different parts of his body.20 Navia then took
hold of his gun, looked at Bong, and said, "Wala kang nakita at wala kang
narinig, papatayin ko na si Ben."21
Bong admitted that he and Ben attempted to take the lamp. He explained that
the area where their house is located is very dark and his father had long been
asking the administrator of Grand Royale Subdivision to install a lamp to
illumine their area. But since nothing happened, he took it upon himself to take
a lamp from one of the posts in the subdivision and transfer it to a post near
their house. However, the lamp Bong got was no longer working. Thus, he
reinstalled it on the post from which he took it and no longer pursued his plan.
22
Later on, Lolita was instructed to sign an entry in the guard‘s logbook where
she undertook not to allow Ben to stay in her house anymore.23 Thereafter,
Navia again asked Lolita to sign the logbook. Upon Lolita‘s inquiry as to why
she had to sign again, Navia explained that they needed proof that they
released her son Bong unharmed but that Ben had to stay as the latter‘s case
will be forwarded to the barangay. Since she has poor eyesight, Lolita
obligingly signed the logbook without reading it and then left with Bong.24 At
that juncture, Ben grabbed Bong and pleaded not to be left alone. However,
since they were afraid of Navia, Lolita and Bong left the security office at once
leaving Ben behind.25
Moments after Lolita and Bong reached their house, Buising arrived and asked
Lolita to sign the logbook again. Lolita asked Buising why she had to sign
again when she already twice signed the logbook at the headquarters. Buising
assured her that what she was about to sign only pertains to Bong‘s release.
Since it was dark and she has poor eyesight, Lolita took Buising‘s word and
signed the logbook without, again, reading what was written in it. 26
The following morning, Virginia went to the Asian Land security office to visit
her husband Ben, but only to be told that petitioners had already released him
together with Bong the night before. She then looked for Ben, asked around,
and went to the barangay. Since she could not still find her husband, Virginia
reported the matter to the police.
In the course of the investigation on Ben‘s disappearance, it dawned upon
Lolita that petitioners took advantage of her poor eyesight and naivete. They
made her sign the logbook as a witness that they already released Ben when
in truth and in fact she never witnessed his actual release. The last time she
saw Ben was when she left him in petitioners‘ custody at the security office.27
Exasperated with the mysterious disappearance of her husband, Virginia filed
a Petition for Writ of Amparo28 before the RTC of Malolos City. Finding the
petition sufficient in form and substance, the amparo court issued an Order29
dated June 26, 2008 directing, among others, the issuance of a writ of amparo
and the production of the body of Ben before it on June 30, 2008. Thus:
WHEREFORE, conformably with Section 6 of the Supreme Court Resolution
[in] A.M. No. 07-[9]-12-SC, also known as "The Rule On The Writ Of Amparo",
let a writ of amparo be issued, as follows:
(1) ORDERING [petitioners] Edgardo Navia, Ruben Dio and Andrew Buising of
the Asian Land Security Agency to produce before the Court the body of
aggrieved party Benhur Pardico, on Monday, June 30, 2008, at 10:30 a.m.;
(2) ORDERING the holding of a summary hearing of the petition on the
aforementioned date and time, and DIRECTING the [petitioners] to personally
appear thereat;
(3) COMMANDING [petitioners] Edgardo Navia, Ruben Dio and Andrew
Buising to file, within a non-extendible period of seventy-two (72) hours from
service of the writ, a verified written return with supporting affidavits which
shall, among other things, contain the following:
a) The lawful defenses to show that the [petitioners] did not violate or threaten
with violation the right to life, liberty and security of the aggrieved party,
through any act or omission;
b) The steps or actions taken by the [petitioners] to determine the fate or
whereabouts of the aggrieved party and the person or persons responsible for
the threat, act or omission; and
c) All relevant information in the possession of the [petitioners] pertaining to
the threat, act or omission against the aggrieved party.
(4) GRANTING, motu proprio, a Temporary Protection Order prohibiting the
[petitioners], or any persons acting for and in their behalf, under pain of
contempt, from threatening, harassing or inflicting any harm to [respondent],
his immediate family and any [member] of his household.
The Branch Sheriff is directed to immediately serve personally on the
[petitioners], at their address indicated in the petition, copies of the writ as well
as this order, together with copies of the petition and its annexes.30
A Writ of Amparo31 was accordingly issued and served on the petitioners on
June 27, 2008.32 On June 30, 2008, petitioners filed their Compliance33
praying for the denial of the petition for lack of merit.
A summary hearing was thereafter conducted. Petitioners presented the
testimony of Buising, while Virginia submitted the sworn statements34 of Lolita
and Enrique which the two affirmed on the witness stand.
Ruling of the Regional Trial Court
On July 24, 2008, the trial court issued the challenged Decision35 granting the
petition. It disposed as follows:
WHEREFORE, the Court hereby grants the privilege of the writ of amparo, and
deems it proper and appropriate, as follows:
(a) To hereby direct the National Bureau of Investigation (NBI) to immediately
conduct a deep and thorough investigation of the [petitioners] Edgardo Navia,
Ruben Dio and Andrew Buising in connection with the circumstances
surrounding the disappearance of [Benhur] Pardico, utilizing in the process, as
part of the investigation, the documents forming part of the records of this
case;
(b) To hereby direct the NBI to extend to the family of [Benhur] Pardico and
the witnesses who testified in this case protection as it may deem necessary
to secure their safety and security; and
(c) To hereby direct the Office of the Provincial Prosecutor of Bulacan to
investigate the circumstances concerning the legality of the arrest of [Benhur]
Pardico by the [petitioners] in this case, utilizing in the process, as part of said
investigation, the pertinent documents and admissions forming part of the
Page 89 of 101
record of this case, and take whatever course/s of action as may be
warranted.
Furnish immediately copies of this decision to the NBI, through the Office of
Director Nestor Mantaring, and to the Provincial Prosecutor of Bulacan.
SO ORDERED.36
Petitioners filed a Motion for Reconsideration37 which was denied by the trial
court in an Order38 dated August 29, 2008.
Hence, this petition raising the following issues for our consideration:
4.1. WHETHER X X X THE HONORABLE TRIAL COURT GRAVELY ERRED
IN RULING THAT RESPONDENT IS ENTITLED TO THE PRIVILEGE OF
THE WRIT OF AMPARO.
4.1.1. WHETHER X X X RESPONDENT WAS ABLE TO ESTABLISH THAT
PETITIONERS HAVE COMMITTED OR ARE COMMITTING ACTS IN
VIOLATION OF HER HUSBAND‘S RIGHT TO LIFE, LIBERTY, OR
SECURITY.
4.1.2. WHETHER X X X RESPONDENT SUFFICIENTLY ESTABLISHED THE
FACT OF THE DISAPPEARANCE OF BENHUR PARDICO.
4.1.3. WHETHER X X X RESPONDENT WAS ABLE TO ESTABLISH THAT
THE ALLEGED DISAPPEARANCE OF BENHUR PARDICO WAS AT THE
INSTANCE OF HEREIN PETITIONERS.39
Petitioners‘ Arguments
Petitioners essentially assail the sufficiency of the amparo petition. They
contend that the writ of amparo is available only in cases where the factual
and legal bases of the violation or threatened violation of the aggrieved party‘s
right to life, liberty and security are clear. Petitioners assert that in the case at
bench, Virginia miserably failed to establish all these. First, the petition is
wanting on its face as it failed to state with some degree of specificity the
alleged unlawful act or omission of the petitioners constituting a violation of or
a threat to Ben‘s right to life, liberty and security. And second, it cannot be
deduced from the evidence Virginia adduced that Ben is missing; or that
petitioners had a hand in his alleged disappearance. On the other hand, the
entries in the logbook which bear the signatures of Ben and Lolita are eloquent
proof that petitioners released Ben on March 31, 2008 at around 10:30 p.m.
Petitioners thus posit that the trial court erred in issuing the writ and in holding
them responsible for Ben‘s disappearance.
Our Ruling
Virginia‘s Petition for Writ of Amparo is fatally defective and must perforce be
dismissed, but not for the reasons adverted to by the petitioners.
A.M. No. 07-9-12-SC or The Rule on the Writ of Amparo was promulgated to
arrest the rampant extralegal killings and enforced disappearances in the
country. Its purpose is to provide an expeditious and effective relief "to any
person whose right to life, liberty and security is violated or threatened with
violation by an unlawful act or omission of a public official or employee, or of a
private individual or entity." 40
Here, Ben‘s right to life, liberty and security is firmly settled as the parties do
not dispute his identity as the same person summoned and questioned at
petitioners‘ security office on the night of March 31, 2008. Such
uncontroverted fact ipso facto established Ben‘s inherent and constitutionally
enshrined right to life, liberty and security. Article 641 of the International
Covenant on Civil and Political Rights42 recognizes every human being‘s
inherent right to life, while Article 943 thereof ordains that everyone has the
right to liberty and security. The right to life must be protected by law while the
right to liberty and security cannot be impaired except on grounds provided by
and in accordance with law. This overarching command against deprivation of
life, liberty and security without due process of law is also embodied in our
fundamental law.44
The pivotal question now that confronts us is whether Ben‘s disappearance as
alleged in Virginia‘s petition and proved during the summary proceedings
conducted before the court a quo, falls within the ambit of A.M. No. 07-9-12-
SC and relevant laws.
It does not. Section 1 of A.M. No. 07-9-12-SC provides:
SECTION 1. Petition. – The petition for a writ of amparo is a remedy available
to any person whose right to life, liberty and security is violated or threatened
with violation by an unlawful act or omission of a public official or employee, or
of a private individual or entity.
The writ shall cover extralegal killings and enforced disappearances or threats
thereof. (Emphasis ours.)
While Section 1 provides A.M. No. 07-9-12-SC‘s coverage, said Rules does
not, however, define extralegal killings and enforced disappearances. This
omission was intentional as the Committee on Revision of the Rules of Court
which drafted A.M. No. 07-9-12-SC chose to allow it to evolve through time
and jurisprudence and through substantive laws as may be promulgated by
Congress.45 Then, the budding jurisprudence on amparo blossomed in
Razon, Jr. v. Tagitis46 when this Court defined enforced disappearances. The
Court in that case applied the generally accepted principles of international law
and adopted the International Convention for the Protection of All Persons
from Enforced Disappearance‘s definition of enforced disappearances, as "the
arrest, detention, abduction or any other form of deprivation of liberty by
agents of the State or by persons or groups of persons acting with the
authorization, support or acquiescence of the State, followed by a refusal to
acknowledge the deprivation of liberty or by concealment of the fate or
whereabouts of the disappeared person, which place such a person outside
the protection of the law."47
Not long thereafter, another significant development affecting A.M. No. 07-9-
12-SC came about after Congress enacted Republic Act (RA) No. 985148 on
December 11, 2009. Section 3(g) thereof defines enforced or involuntary
disappearances as follows:
(g) "Enforced or involuntary disappearance of persons" means the arrest,
detention, or abduction of persons by, or with the authorization, support or
acquiescence of, a State or a political organization followed by a refusal to
acknowledge that deprivation of freedom or to give information on the fate or
whereabouts of those persons, with the intention of removing from the
protection of the law for a prolonged period of time.
Then came Rubrico v. Macapagal-Arroyo49 where Justice Arturo D. Brion
wrote in his Separate Opinion that with the enactment of RA No. 9851, "the
Rule on the Writ of Amparo is now a procedural law anchored, not only on the
constitutional rights to the rights to life, liberty and security, but on a concrete
statutory definition as well of what an ‗enforced or involuntary disappearance‘
is."50 Therefore, A.M. No. 07-9-12-SC‘s reference to enforced disappearances
should be construed to mean the enforced or involuntary disappearance of
persons contemplated in Section 3(g) of RA No. 9851. Meaning, in probing
enforced disappearance cases, courts should read A.M. No. 07-9-12-SC in
relation to RA No. 9851.
From the statutory definition of enforced disappearance, thus, we can derive
the following elements that constitute it:
(a) that there be an arrest, detention, abduction or any form of deprivation of
liberty;
(b) that it be carried out by, or with the authorization, support or acquiescence
of, the State or a political organization;
(c) that it be followed by the State or political organization‘s refusal to
acknowledge or give information on the fate or whereabouts of the person
subject of the amparo petition; and,
(d) that the intention for such refusal is to remove subject person from the
protection of the law for a prolonged period of time.
As thus dissected, it is now clear that for the protective writ of amparo to issue,
allegation and proof that the persons subject thereof are missing are not
enough. It must also be shown and proved by substantial evidence that the
disappearance was carried out by, or with the authorization, support or
acquiescence of, the State or a political organization, followed by a refusal to
acknowledge the same or give information on the fate or whereabouts of said
missing persons, with the intention of removing them from the protection of the
law for a prolonged period of time. Simply put, the petitioner in an amparo
case has the burden of proving by substantial evidence the indispensable
element of government participation.
In the present case, we do not doubt Bong‘s testimony that Navia had a
menacing attitude towards Ben and that he slapped and inflicted fistic blows
upon him. Given the circumstances and the pugnacious character of Navia at
that time, his threatening statement, "Wala kang nakita at wala kang narinig,
papatayin ko na si Ben," cannot be taken lightly. It unambiguously showed his
predisposition at that time. In addition, there is nothing on record which would
support petitioners‘ assertion that they released Ben on the night of March 31,
2008 unscathed from their wrath. Lolita sufficiently explained how she was
prodded into affixing her signatures in the logbook without reading the entries
therein. And so far, the information petitioners volunteered are sketchy at best,
like the alleged complaint of Mrs. Emphasis who was never identified or
presented in court and whose complaint was never reduced in writing.1âwphi1
But lest it be overlooked, in an amparo petition, proof of disappearance alone
is not enough. It is likewise essential to establish that such disappearance was
carried out with the direct or indirect authorization, support or acquiescence of
the government. This indispensable element of State participation is not
present in this case. The petition does not contain any allegation of State
complicity, and none of the evidence presented tend to show that the
government or any of its agents orchestrated Ben‘s disappearance. In fact,
none of its agents, officials, or employees were impleaded or implicated in
Virginia‘s amparo petition whether as responsible or accountable persons.51
Thus, in the absence of an allegation or proof that the government or its
agents had a hand in Ben‘s disappearance or that they failed to exercise
extraordinary diligence in investigating his case, the Court will definitely not
hold the government or its agents either as responsible or accountable
persons.
We are aware that under Section 1 of A.M. No. 07-9-12-SC a writ of amparo
may lie against a private individual or entity. But even if the person sought to
be held accountable or responsible in an amparo petition is a private individual
or entity, still, government involvement in the disappearance remains an
indispensable element. Here, petitioners are mere security guards at Grand
Royale Subdivision in Brgy. Lugam, Malolos City and their principal, the Asian
Page 90 of 101
Land, is a private entity. They do not work for the government and nothing has
been presented that would link or connect them to some covert police, military
or governmental operation. As discussed above, to fall within the ambit of A.M.
No. 07-9-12-SC in relation to RA No. 9851, the disappearance must be
attended by some governmental involvement. This hallmark of State
participation differentiates an enforced disappearance case from an ordinary
case of a missing person.
WHEREFORE, the July 24, 2008 Decision of the Regional Trial Court, Branch
20, Malolos City, is REVERSED and SET ASIDE. The Petition for Writ of
Amparo filed by Virginia Pardico is hereby DISMISSED.
SO ORDERED.
MARIANO C. DEL CASTILLO
Associate Justice
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 204528 February 19, 2013
SECRETARY LEILA M. DE LIMA, DIRECTOR NONNATUS R. ROJAS and
DEPUTY DIRECTOR REYNALDO 0. ESMERALDA, Petitioners,
vs.
MAGTANGGOL B. GATDULA, Respondent.
RESOLUTION
LEONEN, J.:
Submitted for our resolution is a prayer for the issuance of a temporary
restraining order and/or writ of preliminary injunction to enjoin "the Regional
Trial Court, Branch 26, in Manila from implementing its Decision x x x in Civil
Case No. 12-127405 granting respondent's application for the issuance of
inspection and production orders x x x."1 This is raised through a Petition for
Review on Certiorari under Rule 45 from the "Decision" rendered by the
Regional Trial Court dated 20 March 2012.
From the records, it appears that on 27 February 2012, respondent
Magtanggol B. Gatdula filed a Petition for the Issuance of a Writ of Amparo in
the Regional Trial Court of Manila. This case was docketed as In the Matter of
the Petition for Issuance of Writ of Amparo of Atty. Magtanggol B. Gatdula, SP
No. 12-127405. It was raffled to the sala of Judge Silvino T. Pampilo, Jr. on
the same day.
The Amparo was directed against petitioners Justice Secretary Leila M. De
Lima, Director Nonnatus R. Rojas and Deputy Director Reynaldo O.
Esmeralda of the National Bureau of Investigation (DE LIMA, ET AL. for
brevity). Gatdula wanted De Lima, et al. "to cease and desist from framing up
Petitioner [Gatdula] for the fake ambush incident by filing bogus charges of
Frustrated Murder against Petitioner [Gatdula] in relation to the alleged
ambush incident."3
Instead of deciding on whether to issue a Writ of Amparo, the judge issued
summons and ordered De Lima, et al. to file an Answer.4 He also set the case
for hearing on 1 March 2012. The hearing was held allegedly for determining
whether a temporary protection order may be issued. During that hearing,
counsel for De Lima, et al. manifested that a Return, not an Answer, is
appropriate for Amparo cases.5
In an Order dated 2 March 2012, Judge Pampilo insisted that "[s]ince no writ
has been issued, return is not the required pleading but answer". The judge
noted that the Rules of Court apply suppletorily in Amparo cases. He opined
that the Revised Rules of Summary Procedure applied and thus required an
Answer.
Judge Pampilo proceeded to conduct a hearing on the main case on 7 March
2012.10 Even without a Return nor an Answer, he ordered the parties to file
their respective memoranda within five (5) working days after that hearing.
Since the period to file an Answer had not yet lapsed by then, the judge also
decided that the memorandum of De Lima, et al. would be filed in lieu of their
Answer.11
On 20 March 2012, the RTC rendered a "Decision" granting the issuance of
the Writ of Amparo. The RTC also granted the interim reliefs prayed for,
namely: temporary protection, production and inspection orders. The
production and inspection orders were in relation to the evidence and reports
involving an on-going investigation of the attempted assassination of Deputy
Director Esmeralda. It is not clear from the records how these pieces of
evidence may be related to the alleged threat to the life, liberty or security of
the respondent Gatdula.
In an Order dated 8 October 2012, the RTC denied the Motion for
Reconsideration dated 23 March 2012 filed by De Lima, et al.
Petitioners Sec. De Lima, et al. thus came to this Court assailing the RTC
"Decision" dated 20 March 2012 through a Petition for Review on Certiorari
(With Very Urgent Application for the Issuance of a Temporary Restraining
Order/Writ of Preliminary Injunction) via Rule 45, as enunciated in Section 19
of the Rule on the Writ of Amparo (A.M. No. 07-9- 12-SC, 25 September
2007), viz:
SEC. 19. Appeal. – Any party may appeal from the final judgment or order to
the Supreme Court under Rule 45. The appeal may raise questions of fact or
law or both. x x x (Emphasis supplied).
It is the Court‘s view that the "Decision" dated 20 March 2012 granting the writ
of Amparo is not the judgment or final order contemplated under this rule.
Hence, a Petition for Review under Rule 45 may not yet be the proper remedy
at this time.
The RTC and the Parties must understand the nature of the remedy of
Amparo to put its procedures in the proper context.
The remedy of the Writ of Amparo is an equitable and extraordinary remedy to
safeguard the right of the people to life, liberty12 and security13 as enshrined
in the 1987 Constitution.14 The Rule on the Writ of Amparo was issued as an
exercise of the Supreme Court's power to promulgate rules concerning the
protection and enforcement of constitutional rights.15 It aims to address
concerns such as, among others, extrajudicial killings and enforced
disappearances.
Due to the delicate and urgent nature of these controversies, the procedure
was devised to afford swift but decisive relief. It is initiated through a petition18
to be filed in a Regional Trial Court, Sandiganbayan, the Court of Appeals, or
the Supreme Court. The judge or justice then makes an "immediate"
evaluation20 of the facts as alleged in the petition and the affidavits submitted
"with the attendant circumstances detailed".21 After evaluation, the judge has
the option to issue the Writ of Amparo22 or immediately dismiss the case.
Dismissal is proper if the petition and the supporting affidavits do not show that
the petitioner's right to life, liberty or security is under threat or the acts
complained of are not unlawful. On the other hand, the issuance of the writ
itself sets in motion presumptive judicial protection for the petitioner. The court
compels the respondents to appear before a court of law to show whether the
grounds for more permanent protection and interim reliefs are necessary.
The respondents are required to file a Return23 after the issuance of the writ
through the clerk of court. The Return serves as the responsive pleading to the
petition. Unlike an Answer, the Return has other purposes aside from
identifying the issues in the case. Respondents are also required to detail the
actions they had taken to determine the fate or whereabouts of the aggrieved
party.
If the respondents are public officials or employees, they are also required to
state the actions they had taken to: (i) verify the identity of the aggrieved party;
(ii) recover and preserve evidence related to the death or disappearance of the
person identified in the petition; (iii) identify witnesses and obtain statements
concerning the death or disappearance; (iv) determine the cause, manner,
location, and time of death or disappearance as well as any pattern or practice
that may have brought about the death or disappearance; and (vi) bring the
suspected offenders before a competent court.25 Clearly these matters are
important to the judge so that s/he can calibrate the means and methods that
will be required to further the protections, if any, that will be due to the
petitioner.
There will be a summary hearing only after the Return is filed to determine the
merits of the petition and whether interim reliefs are warranted. If the Return is
not filed, the hearing will be done ex parte. After the hearing, the court will
render the judgment within ten (10) days from the time the petition is submitted
for decision.
If the allegations are proven with substantial evidence, the court shall grant the
privilege of the writ and such reliefs as may be proper and appropriate.29 The
judgment should contain measures which the judge views as essential for the
continued protection of the petitioner in the Amparo case. These measures
must be detailed enough so that the judge may be able to verify and monitor
the actions taken by the respondents. It is this judgment that could be subject
to appeal to the Supreme Court via Rule 45. After the measures have served
their purpose, the judgment will be satisfied. In Amparo cases, this is when the
threats to the petitioner‘s life, liberty and security cease to exist as evaluated
by the court that renders the judgment. Parenthetically, the case may also be
terminated through consolidation should a subsequent case be filed – either
criminal or civil. Until the full satisfaction of the judgment, the extraordinary
remedy of Amparo allows vigilant judicial monitoring to ensure the protection
of constitutional rights.
The "Decision" dated 20 March 2012 assailed by the petitioners could not be
the judgment or final order that is appealable under Section 19 of the Rule on
the Writ of Amparo. This is clear from the tenor of the dispositive portion of the
"Decision", to wit:
The Branch Clerk of Court of Court [sic] is hereby DIRECTED to issue the Writ
of Amparo.
Likewise, the Branch Clerk of Court is hereby DIRECTED to effect the service
of the Writ of Amparo in an expeditious manner upon all concerned, and for
this purpose may call upon the assistance of any military or civilian agency of
the government.
Page 91 of 101
This "Decision" pertained to the issuance of the writ under Section 6 of the
Rule on the Writ of Amparo, not the judgment under Section 18. The
"Decision" is thus an interlocutory order, as suggested by the fact that
temporary protection, production and inspection orders were given together
with the decision. The temporary protection, production and inspection orders
are interim reliefs that may be granted by the court upon filing of the petition
but before final judgment is rendered.
The confusion of the parties arose due to the procedural irregularities in the
RTC.
First, the insistence on filing of an Answer was inappropriate. It is the Return
that serves as the responsive pleading for petitions for the issuance of Writs of
Amparo. The requirement to file an Answer is contrary to the intention of the
Court to provide a speedy remedy to those whose right to life, liberty and
security are violated or are threatened to be violated. In utter disregard of the
Rule on the Writ of Amparo, Judge Pampilo insisted on issuing summons and
requiring an Answer.
Judge Pampilo‘s basis for requiring an Answer was mentioned in his Order
dated 2 March 2012:
Under Section 25 of the same rule [on the Writ of Amparo], the Rules of Court
shall apply suppletorily insofar as it is not inconsistent with the said rule.
Considering the summary nature of the petition, Section 5 of the Revised
Rules of Summary Procedure shall apply.
Section 5. Answer – Within ten (10) days from service of summons, the
defendant shall file his Answer to the complaint and serve a copy thereof on
the plaintiff. x x x
WHEREFORE, based on the foregoing, the respondents are required to file
their Answer ten (days) from receipt of this Order.33
The 1991 Revised Rules of Summary Procedure is a special rule that the
Court has devised for the following circumstances:
SECTION 1. Scope. – This rule shall govern the summary procedure in the
Metropolitan Trial Courts, the Municipal Trial Courts in Cities, the Municipal
Trial Courts, and the Municipal Circuit Trial Courts in the following cases falling
within their jurisdiction:
A. Civil Cases:
(1) All cases of forcible entry and unlawful detainer, x x x.
(2) All other cases, except probate proceedings, where the total amount of the
plaintiff‘s claim does not exceed x x x.
B. Criminal Cases:
(1) Violations of traffic laws, rules and regulations;
(2) Violations of the rental law;
(3) Violations of municipal or city ordinances;
(4) All other criminal cases where the penalty prescribed by law for the offense
charged is imprisonment not exceeding six months, or a fine not exceeding
one thousand pesos (P1,000.00), or both, x x x.
xxxx
It is clear from this rule that this type of summary procedure only applies to
MTC/MTCC/MCTCs. It is mind-boggling how this rule could possibly apply to
proceedings in an RTC. Aside from that, this Court limited the application of
summary procedure to certain civil and criminal cases. A writ of Amparo is a
special proceeding. It is a remedy by which a party seeks to establish a status,
a right or particular fact.34 It is not a civil nor a criminal action, hence, the
application of the Revised Rule on Summary Procedure is seriously
misplaced.
The second irregularity was the holding of a hearing on the main case prior to
the issuance of the writ and the filing of a Return. Without a Return, the issues
could not have been properly joined.
Worse, is the trial court‘s third irregularity: it required a memorandum in lieu of
a responsive pleading (Answer) of De Lima, et al.
The Return in Amparo cases allows the respondents to frame the issues
subject to a hearing. Hence, it should be done prior to the hearing, not after. A
memorandum, on the other hand, is a synthesis of the claims of the party
litigants and is a final pleading usually required before the case is submitted
for decision. One cannot substitute for the other since these submissions have
different functions in facilitating the suit.
More importantly, a memorandum is a prohibited pleading under the Rule on
the Writ of Amparo.35
The fourth irregularity was in the "Decision" dated 20 March 2012 itself. In the
body of its decision, the RTC stated:
"Accordingly this court GRANTS the privilege of the writ and the interim reliefs
prayed for by the petitioner." (Emphasis supplied).
This gives the impression that the decision was the judgment since the
phraseology is similar to Section 18 of the Rule on the Writ of Amparo:
"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 supplied).
The privilege of the Writ of Amparo should be distinguished from the actual
order called the Writ of Amparo. The privilege includes availment of the entire
procedure outlined in A.M. No. 07-9-12-SC, the Rule on the Writ of Amparo.
After examining the petition and its attached affidavits, the Return and the
evidence presented in the summary hearing, the judgment should detail the
required acts from the respondents that will mitigate, if not totally eradicate,
the violation of or the threat to the petitioner's life, liberty or security.
A judgment which simply grants "the privilege of the writ" cannot be
executed.1âwphi1 It is tantamount to a failure of the judge to intervene and
grant judicial succor to the petitioner. Petitions filed to avail of the privilege of
the Writ of Amparo arise out of very real and concrete circumstances. Judicial
responses cannot be as tragically symbolic or ritualistic as "granting the
privilege of the Writ of Amparo."
The procedural irregularities in the RTC affected the mode of appeal that
petitioners used in elevating the matter to this Court.
It is the responsibility of counsels for the parties to raise issues using the
proper procedure at the right time. Procedural rules are meant to assist the
parties and courts efficiently deal with the substantive issues pertaining to a
case. When it is the judge himself who disregards the rules of procedure,
delay and confusion result.
The Petition for Review is not the proper remedy to assail the interlocutory
order denominated as "Decision" dated 20 March 2012. A Petition for
Certiorari, on the other hand, is prohibited.36 Simply dismissing the present
petition, however, will cause grave injustice to the parties involved. It
undermines the salutary purposes for which the Rule on the Writ of Amparo
were promulgated.
In many instances, the Court adopted a policy of liberally construing its rules in
order to promote a just, speedy and inexpensive disposition of every action
and proceeding.37 The rules can be suspended on the following grounds: (1)
matters of life, liberty, honor or property, (2) the existence of special or
compelling circumstances, (3) the merits of the case, (4) a cause not entirely
attributable to the fault or negligence of the party favored by the suspension of
the rules, (5) a lack of any showing that the review sought is merely frivolous
and dilatory, and (6) the other party will not be unjustly prejudiced thereby.38
WHEREFORE, in the interest of justice, as a prophylactic to the irregularities
committed by the trial court judge, and by virtue of its powers under Article VIII,
Section 5 (5) of the Constitution, the Court RESOLVES to:
(1) NULLIFY all orders that are subject of this Resolution issued by Judge
Silvino T. Pampilo, Jr. after respondent Gatdula filed the Petition for the
Issuance of a Writ of Amparo;
(2) DIRECT Judge Pampilo to determine within forty-eight (48) hours from his
receipt of this Resolution whether the issuance of the Writ of Amparo is proper
on the basis of the petition and its attached affidavits.
The Clerk of Court is DIRECTED to cause the personal service of this
Resolution on Judge Silvino T. Pampilo, Jr. of Branch 26 of the Regional Trial
Court of Manila for his proper guidance together with a WARNING that further
deviation or improvisation from the procedure set in A.M. No. 07-9-12-SC shall
be meted with severe consequences.
SO ORDERED.
MARVIC MARIO VICTOR F. LEONEN
Associate Justice
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 193652 August 5, 2014
Infant JULIAN YUSA Y CARAM, represented by his mother, MA.
CHRISTINA YUSAY CARAM, Petitioner,
vs.
Atty. MARIJOY D. SEGUI, Atty. SALLY D. ESCUTIN, VILMA B. CABRERA,
and CELIA C. YANGCO, Respondents.
DECISION
Page 92 of 101
VILLARAMA, JR., J.:
Before us is a petition for review on certiorari under Rule 45 of the 1997 Rules
of Civil Procedure, as amended, and Section 191 of the Rule on the Writ of
Amparo2 seeking to set aside the August 17, 20103 and September 6, 20104
Orders of the Regional Trial Court (RTC), Branch 106 of Quezon City, in Sp.
Proc. Case No. Q-10-67604. The RTC had dismissed petitioner‘s petition for
the issuance ofa writ of amparo which petitioner filed in order for her to regain
parental authority and custody of Julian Yusay Caram (Baby Julian), her
biological child, from the respondent officers of the Department of Social
Welfare and Development (DSWD). The factual antecedents as gleaned from
the records follow:
Petitioner Ma. Christina Yusay Caram(Christina) had an amorous relationship
with Marcelino Gicano Constantino III (Marcelino) and eventually became
pregnant with the latter‘s child without the benefit of marriage. After getting
pregnant, Christina mislead Marcelino into believing that she had an abortion
when in fact she proceeded to complete the term of her pregnancy. During this
time, she intended to have the child adopted through Sun and Moon Home for
Children (Sun and Moon) in Parañaque City to avoid placing her family ina
potentially embarrassing situation for having a second illegitimate son.5
On July 26, 2009, Christina gavebirth to Baby Julian at Amang Rodriguez
Memorial MedicalCenter, Marikina City.6 Sun and Moon shouldered all the
hospital and medical expenses. On August 13, 2009, Christina voluntarily
surrendered Baby Julian by way of a Deed of Voluntary Commitment7 to the
DSWD.
On November 26, 2009, Marcelino suffered a heart attack and died8 without
knowing about the birth of his son. Thereafter, during the wake, Christina
disclosed to Marcelino‘s family that she and the deceased had a son that she
gave up for adoption due to financial distress and initial embarrassment.
Marcelino‘s family was taken aback by the revelation and sympathized with
Christina. After the emotional revelation, they vowed to help her recover and
raise the baby.9 On November 27, 2009, the DSWD, through Secretary
Esperanza I. Cabral issued a certificate10 declaring Baby Julian as "Legally
Available for Adoption." A local matching conference was held on January 27,
2010 and on February 5, 2010, Baby Julian was "matched" with the spouses
Vergel and Filomina Medina (Medina Spouses) of the Kaisahang Bahay
Foundation. Supervised trial custody then commenced.11
On May 5, 2010, Christina who had changed her mind about the adoption,
wrote a letter to the DSWDasking for the suspension of Baby Julian‘s adoption
proceedings. She alsosaid she wanted her family back together.12
On May 28, 2010, the DSWD, through respondent Atty. Marijoy D. Segui, sent
a Memorandum13 to DSWD Assistant Secretary Vilma B. Cabrera informing
her that the certificate declaring Baby Julian legally available for adoption had
attained finality on November 13, 2009, or three months after Christina signed
the Deed of Voluntary Commitment which terminated her parental authority
and effectively made Baby Julian a ward of the State. The said Memorandum
was noted by respondent Atty. Sally D. Escutin, Director IV of the Legal
Service, DSWD.
On July 12, 2010, Noel Gicano Constantino, Marcelino‘s brother, sent a letter
to Atty. Escutin informing her that a DNA testing was scheduled on July 16,
2010 at the DNA Analysis Laboratory at the University of the Philippines.14
On July 16, 2010, Assistant Secretary Cabrera sent a letter15 to Noel
Constantino stating that it would not allow Baby Julian to undergo DNA testing.
Assistant Secretary Cabrera informed Noel Constantino that the procedures
followed relative to the certification on the availability of the child for adoption
and the child‘s subsequent placement to prospective adoptive parents were
proper, and that the DSWD was no longer in the position to stop the adoption
process. Assistant Secretary Cabrera further stated that should Christina wish
to reacquire her parental authority over Baby Julian or halt the adoption
process, she may bring the matter to the regular courts as the reglementary
period for her to regain her parental rights had already lapsed under Section 7
of Republic Act (R.A.) No. 9523.16
On July 27, 2010, Christina filed a petition17 for the issuance of a writ of
amparo before the RTC of Quezon City seeking to obtain custody of Baby
Julian from Atty. Segui, Atty. Escutin, Assistant Secretary Cabrera and Acting
Secretary Celia C. Yangco, all of the DSWD.
In her petition, Christina accused respondents of "blackmailing" her into
surrendering custody of her childto the DSWD utilizing what she claims to be
an invalid certificate of availability for adoption which respondents allegedly
used as basis to misrepresent that all legal requisites for adoption of the minor
child had been complied with.
Christina argued that by making these misrepresentations, the respondents
had acted beyond the scope of their legal authority thereby causing the
enforced disappearance of the said child and depriving her of her custodial
rights and parental authority over him.
On the basis of the said petition,the RTC, Branch 106 of Quezon City, through
its Presiding Judge, the Honorable Angelene Mary W. Quimpo-Sale, issued a
Writ of Amparo18 on July 28, 2010 commanding the four respondents to
produce the body of Baby Julian at a hearing scheduled on August 4, 2010.
Respondents were alsorequired to file their verified written return to the writ
pursuant to Section 919 of the Amparo Rule, within five working days from the
service of the writ.

The respondents complied with the writ and filed their Return20 on August 2,
2010 praying that the petition be denied for being the improper remedy to avail
of in a case relating toa biological parent‘s custodial rights over her child.
On August 4, 2010, respondents appeared before the RTC but respondents
did not bring the child, stating that threats of kidnapping were made on the
child and his caregivers. To give respondents another chance, the RTC reset
the hearing to August 5, 2010.
At the August 5, 2010 hearing, the Office of the Solicitor General (OSG)
entered its appearance as representative of the State and prayed that its
lawyers be given time to file their memorandum or position paper in this case.
In turn, the RTC acknowledged the appearance of the OSG and allowed its
representatives to actively participate in the arguments raised during the said
hearing. Relative to the matter of the parties submitting additional pleadings,
Judge Sale narrowed the issues to be discussed by providing for the following
guidelines, thus:
To abbreviate the proceedings, in view of all the manifestations and counter-
manifestations made by the counsels, the court enjoined the parties to file their
respective position papers on the following issues:
1. Whether or not this court has jurisdiction over the instant case;
2. Whether or not this petition isthe proper remedy based on the facts of the
case and prayer in the petition; and
3. Whether or not the prayer in the petition should be granted and custody of
the child be given to his biological mother.
The parties were given five (5) days from today to file their respective position
papers based on these three main issues. They may include other related
issues they deem essential for the resolution of this case. Set this case for
further hearing, if necessary, on August 18, 2010 at 9:00 a.m.21
In the same order, Judge Sale alsoacknowledged that the child subject of the
case was brought before the court and the petitioner was allowed to see him
and take photographs of him.
On August 17, 2010, the RTC dismissed the petition for issuance of a writ of
amparo without prejudice to the filing of the appropriate action in court. The
RTC held that Christina availed of the wrong remedy to regain custody of her
child Baby Julian.22 The RTC further stated that Christina should have filed a
civil case for custody of her child as laid down in the Family Code and the Rule
on Custody of Minors and Writ of Habeas Corpus in Relation to Custody of
Minors. If there is extreme urgency to secure custody of a minor who has been
illegallydetained by another, a petition for the issuance of a writ of habeas
corpus may be availed of, either as a principal or ancillary remedy, pursuant to
the Rule on Custody of Minors and Writ of Habeas Corpus inRelation to
Custody of Minors.23
On August 20, 2010, Christina filed a motion for reconsideration24 arguing
that since the RTC assumed jurisdiction of the petition for the issuance of a
writ of amparo, the latter is duty-bound to dispose the case on the merits.25
The RTC, however, deniedChristina‘s motion for reconsideration on
September 6, 2010 maintaining that the latter availed of the wrong remedy and
that the Supreme Court intended the writ of amparo to address the problem of
extrajudicial killings and enforced disappearances.26
On September 28, 2010, Christina directly elevated the case before this Court,
via a petition for review on certiorari under Rule 45 of the 1997 Rules of Civil
Procedure, as amended, in relation to Section 19 of the Rule on the Writ of
Amparo. In her petition, Christina prayed that the Court (1) set aside the
August 17, 2010 and September 6, 2010 Orders of the RTC, (2) declare R.A.
No. 9523 unconstitutional for being contrary to A.M. No. 02-6-02-SC,27 which
was promulgated by the Supreme Court, and for violating the doctrine of
separation of powers, (3) declare the "enforced separation" between her and
Baby Julian as violative of her rights to life, liberty and security, and (4) grant
her the privilege of availing the benefits of a writ of amparo so she could be
reunited with her son.28
The only relevant issue presented before the Court worthy of attention is
whether a petition for a writ of amparo is the proper recourse for obtaining
parental authority and custody of a minor child. This Court will not belabor to
discuss Christina‘s argumentsrelating to the supposedunconstitutionality or
R.A. No. 9523 as Congress has the plenary power to repeal, alter and modify
existing laws29 and A.M. No. 02-6-02-SC functions only as a means to
enforce the provisions of all adoption and adoption-related statutes before the
courts.
Now, in her petition, Christina argues that the life, liberty and security of Baby
Julian is being violated or threatened by the respondent DSWD officers‘
enforcement of an illegal Deed of Voluntary Commitment between her and
Sun and Moon. She claims thatshe had been "blackmailed" through the said
Deed by the DSWD officers and Sun and Moon‘s representatives into
surrendering her child thereby causing the "forced separation" of the said
infant from his mother. Furthermore, she also reiterates that the respondent
DSWD officers acted beyond the scope of their authority when they deprived
her of Baby Julian‘s custody.30
The Court rejects petitioner‘s contentions and denies the petition.
Page 93 of 101
Section 1 of the Rule on the Writ of Amparo provides as follows:
SECTION 1. Petition. – The petition for a writ of amparois a remedy available
to any person whose right to life, liberty and security is violated or threatened
with violation by an unlawful actor omission of a public official or employee, or
of a private individual or entity.
The writ shall cover extralegal killings and enforced disappearances or threats
thereof.
In the landmark case of Secretary of National Defense, et al. v. Manalo, et
al.,31 this Court held:
[T]he AmparoRule was intended to address the intractable problem of
"extralegal killings" and "enforced disappearances," its coverage, in its present
form, is confined to these two instances or to threats thereof. "Extralegal
killings" are "killings committed without due process of law, i.e., without legal
safeguards or judicial proceedings." On the other hand, "enforced
disappearances" are "attended by the following characteristics: an arrest,
detention or abduction of a person by a government official or organized
groupsor private individuals acting with the direct or indirect acquiescence of
the government; the refusal of the State to disclose the fate or whereabouts of
the person concerned or a refusal to acknowledge the deprivation of liberty
which places such persons outside the protection of law.
This pronouncement on the coverage of the writ was further cemented in the
latter case of Lozada, Jr. v. Macapagal-Arroyo32 where this Court explicitly
declared that as it stands, the writ of amparo is confined only to cases of
extrajudicial killings and enforced disappearances, or to threats thereof. As to
what constitutes "enforced disappearance," the Court in Navia v. Pardico33
enumerated the elementsconstituting "enforced disappearances" as the term
is statutorily defined in Section 3(g) of R.A. No. 985134 to wit:
(a) that there be an arrest, detention, abduction or any form of deprivation of
liberty;
(b) that it be carried out by, or with the authorization, support or acquiescence
of, the State ora political organization;
(c) that it be followed by the State or political organization‘s refusal to
acknowledge or give information on the fate or whereabouts of the person
subject of the amparopetition; and,
(d) that the intention for such refusal isto remove subject person from the
protection of the law for a prolonged period of time.1âwphi1
In this case, Christina alleged that the respondent DSWD officers caused her
"enforced separation" from Baby Julian and that their action amounted to an
"enforced disappearance" within the context of the Amparo rule. Contrary to
her position, however, the respondent DSWD officers never concealed Baby
Julian's whereabouts. In fact, Christina obtained a copy of the DSWD's May
28, 2010 Memorandum35 explicitly stating that Baby Julian was in the custody
of the Medina Spouses when she filed her petition before the RTC. Besides,
she even admitted in her petition for review on certiorari that the respondent
DSWD officers presented Baby Julian before the RTC during the hearing held
in the afternoon of August 5, 2010.36 There is therefore, no "enforced
disappearance" as used in the context of the Amparo rule as the third and
fourth elements are missing.
Christina's directly accusing the respondents of forcibly separating her from
her child and placing the latter up for adoption, supposedly without complying
with the necessary legal requisites to qualify the child for adoption, clearly
indicates that she is not searching for a lost child but asserting her parental
authority over the child and contesting custody over him.37 Since it is extant
from the pleadings filed that what is involved is the issue of child custody and
the exercise of parental rights over a child, who, for all intents and purposes,
has been legally considered a ward of the State, the Amparo rule cannot be
properly applied.
To reiterate, the privilege of the writ of amparo is a remedy available to victims
of extra-judicial killings and enforced disappearances or threats of a similar
nature, regardless of whether the perpetrator of the unlawful act or omission is
a public official or employee or a private individual. It is envisioned basically to
protect and guarantee the right to life, liberty and security of persons, free from
fears and threats that vitiate the quality of life.
WHEREFORE, the petition is DENIED. The August 17, 2010 and September
6, 2010 Orders of the Regional Trial Court, Branch 106, Quezon City in Sp.
Proc. Case No. Q-10-67604 are AFFIRMED without prejudice to petitioner's
right to avail of proper legal remedies afforded to her by law and related rules.
No costs. SO ORDERED.
MARTIN S. VILLARAMA, JR.
Associate Justice
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 191416 February 7, 2017

MAYOR WILLIAM N. MAMBA, ATTY. FRANCISCO N. MAMBA, JR., ARIEL
MALANA, NARDING AGGANGAN, JOMARI SAGALON, JUN CINABRE,
FREDERICK BALIGOD, ROMMEL ENCOLLADO, JOSEPH TUMALIUAN,
and RANDY DAYAG, Petitioners
vs.
LEOMAR BUENO, Respondent
DECISION
REYES, J.:
This is a Petition for Review on Certiorari1 filed in relation to Section 19 of
A.M. No. 07-9-12-SC,2 seeking to annul and set aside the Decision3 dated
January 18, 2010 and Resolution4 dated March 2, 2010 of the Court of
Appeals (CA) in CA-G.R. SP. No. 00038, which granted the petition for the
issuance of a writ of amparo filed by Leomar Bueno (respondent) against
Mayor William N. Mamba (Mayor Mamba), Atty. Francisco N. Mamba, Jr. (Atty.
Mamba), Ariel Malana (Malana), Narding Aggangan (Aggangan), Jomari
Sagalon (Sagalon), Jun Cinabre (Cinabre), Frederick Baligod (Baligod),
Rommel Encollado (Encollado ), Joseph Tumaliuan (Tumaliuan), and Randy
Dayag (Dayag) (collectively, the petitioners).
The Facts
On June 13, 2009, the canteen owned by Emelita N. Mamba (Emelita) in
Tuao, Cagayan was robbed. Emelita is the mother of Mayor Mamba, then
Mayor of the Municipality of Tuao, Cagayan and Atty. Mamba, then a
Malacafiang official.5 The Task Force Lingkod Bayan (Task Force), an agency
created by the Sangguniang Bayan of Tuao to help the local police force in
maintaining peace and order in the municipality, undertook an investigation on
the robbery.6
On June 14, 2009, several members of the Task Force, Malana, Aggangan
and Sagalon, together with barangay officials Cinabre and Encollado, went to
the. house of the respondent, then still a minor, to invite him for questioning on
his supposed involvement in the robbery. The respondent and his mother,
Maritess Bueno (Maritess ), acceded to the invitation. Thereupon, the
respondent was brought to the Tuao police station.7
The parties gave different accounts of what happened after the respondent
was brought to the Tuao police station.
The petitioners claim that:
When they reached the Tuao police station, there were no police investigators
or any representative from the local Social Welfare and Development (SWD)
office and, hence, the investigation could not proceed. At that time, Raymund
Rodriguez (Raymund), allegedly an eyewitness to the robbery, was at the
police station. Raymund pointed to the respondent as among those who
robbed the store; the respondent then told Raymund that he would kill him for
ratting him out.8 The petitioners allege that prior to the robbery of the canteen,
the respondent approached Raymund and his brother Robin and proposed to
them that they rob the canteen. The latter, however, declined the offer. Later
that night, Raymund saw the respondent and Lorenzo Haber (Haber) robbing
the canteen. Thereafter, Robin reported the incident to the Task Force.9
The petitioners further claim that at the time of the robbery, Mayor Mamba and
Atty. Mamba were not around since they previously left Tuao, Cagayan for
Manila on June 10, 2009. Mayor Mamba was on official leave for 10 days,
from June 10, 2009 until June 20, 2009, while Atty. Mamba had to report for
work in Malacañang.10
The respondent's custody was then referred to the Task Force. Haber was
later invited to the police station for questioning regarding his involvement in
the robbery. However, his custody was likewise referred to the Task Force
since there were still no police investigators.11
On June 17, 2009, Atty. Mamba arrived in Tuao, Cagayan. While going out of
his residence, Maritess approached Atty. Mamba and asked him about her
son. Atty. Mamba told her that he does not know her son and that if the
respondent indeed committed a crime, she should not tolerate what her son
was doing.12
On June 18, 2009, while the members of the Task Force were on their way to
bring the respondent and Haber to the police station, they were met by Police
Superintendent Joselito Buenaobra (P/Supt. Buenaobra) of the Philippine
National Police (PNP) Cagayan Regional Office. Thereafter, the respondent's
custody was transferred to the PNP Cagayan Regional Office.13
Maritess then went to the office of Mayor Mamba, but she was told to come
back at later date since Mayor Mamba was still on official leave. When Mayor
Mamba arrived in Tuao on June 20, 2009, a conference was immediately held.
Maritess requested that the members of the Task Force be brought to Mayor
Mamba's office. Almost all of the members of the Task Force arrived.
However, Maritess was unable to pinpoint who among them took custody of
his son. Mayor Mamba then advised her to file a complaint in court should she
be able to identify the responsible persons.14
On the other hand, the respondent alleges that:
At around 3:00 p.m. of June 14, 2009, Tumaliuan and Dayag, both members
of the Task Force, upon the order of Baligod, then Municipal Administrator of
Page 94 of 101
Tuao, fetched the respondent from the police station and brought him to Mayor
Mamba's house.15 Sometime in the evening of even date, the respondent was
made to board a white van driven by Aggangan. Inside the van, he was beaten
with a gun by Malana, who later threatened him that he would be killed.
Thereafter, he was brought back to Mayor Mamba's house.16
That same evening, Haber, likewise a minor, was invited by the barangay
captain in his place, accompanied by about 10 barangay tanods and two
police officers, for questioning as regards the robbery of the canteen. Haber
was brought to the police station where he spent the night.17
On June 15, 2009, Haber was brought to Mayor Mamba's house. The
respondent and Haber were then tortured to force them to admit to their
involvement in the robbery. They were made to roll on the grass while being
kicked and beaten with a cue stick by Malana; hot wax was poured over their
bodies to force them to admit to the robbery, but they denied any involvement
therein. Thereafter, they were blindfolded and were questioned by Atty.
Mamba regarding the robbery of the canteen. When his blindfold was taken
off, the respondent saw Atty. Mamba sitting nearby.18 On June 16, 2009,
Malana brought the respondent and Haber, together with Robin and Raymund,
to the office of the Task Force, where they all spent the night.19
Meanwhile, Maritess went to the Tuao police station to look for her son; she
was told that the respondent was brought to Mayor Mamba's house. However,
when Maritess went to Mayor Mamba's house, she was not permitted to see
her son. Maritess was able to talk to Mayor Mamba who told her that she
should not condone the acts of her son. Maritess then sought the assistance
of P/Supt. Buenaobra regarding the respondent's disappearance from the
police station. The PNP Cagayan Regional Office was then preparing a case
for habeas corpus when the respondent was released on June 18, 2009 to the
local SWD office.20
Maritess then sought the assistance of the Regional Office of the Commission
on Human Rights (CHR) in Cagayan as regards the case of the respondent.21
On August 25, 2009, the respondent, assisted by the CHR, filed a Petition for
the Issuance of a Writ of Amparo with the CA.22
On September 14, 2009, the CA, gave due course to the petition and directed
the issuance of the writ of amparo. On September 23, 2009, the petitioners
filed their verified return.23
A summary hearing was thereafter conducted by the CA. The respondent
presented in evidence his own testimony and the testimonies of Dr. Odessa B.
Tiangco (Dr. Tiangco) of the Cagayan Valley Medical Center, provindal social
welfare officer Elvira Layus (Layus), and Maritess.24 The petitioners, on the
other hand, presented the testimony of Cinabre, Encollado, Baligod, and
Robin.25
The CA further issued subpoena duces tecum ad testificandum to and heard
the testimony of P/Supt. Buenaobra.26
On January 18, 2010, the CA rendered the herein assailed Decision,27 the
decretal portion of which reads:
WHEREFORE, the Petition for a Writ of Amparo filed by [the respondent] is
hereby GRANTED. Accordingly:
1. [The petitioners] are hereby enjoined from doing any act of physical or
psychological violence that would harm or threaten [the respondent] and his
family, including those who assisted him in the preparation of this present
petition, especially the [CHR], Regional Office No. 02, Cagayan and his
witnesses;
2. The Head of the PNP Regional Office of Cagayan, whoever is the
incumbent, is hereby ordered to continue the investigation on the violation
done against [the respondent], and using extraordinary diligence, to furnish
this Court with a report regarding the said investigation. The investigation must
be commenced as soon as possible but not more than 30 days from the
receipt of this Decision.
3. [Mayor Mamba] is hereby ordered to provide assistance to the above PNP
investigation including but not limited to the act of furnishing and/or providing
the latter a list of the members of the Task Force who had direct involvement
in the violation of [the respondent's] rights to life, liberty and security, including
their identities and whereabouts, and to allow the investigation to run its
course unhindered or influenced. He is further ordered to update and furnish
this Court of the actions he has done or will be doing regarding this directive.
4. The Head of the PNP Regional Office of Cagayan and [Mayor Mamba] are
ordered to update this Court regarding their reportorial duty under this
Decision within ten (10) days from the commencement of the investigation,
and thereafter, to make a quarterly report regarding the said investigation. The
investigation should be completed within one year from the receipt of this
Decision;
5. All findings resulting from the said investigation should be made available to
[the respondent] and his counsel should they consider the same necessary to
aid them in the filing of appropriate actions, criminal or otherwise, against
those who are responsible for the violation of the former's rights.
Failure to comply with the above will render the Head of the PNP Regional
Office of Cagayan and [Mayor Mamba] liable for contempt of this Court.
The Clerk of Court is hereby ordered to also furnish the Head of the PNP
Regional Office of Cagayan a copy of this Decision.
SO ORDERED.28
The CA opined that the respondent's rights to liberty and security were
undeniably undermined when he was invited by the members of the Task
Force for investigation and was brought to Mayor Mamba's house from the
Tuao police station.29 It further pointed out that notwithstanding that Mayor
Mamba was not in Tuao when the incident happened, he is still accountable
since he· failed to show sufficient action to protect the respondent's rights; that
Mayor Mamba failed to acknowledge the irregularity of the acts of the
members of the Task Force or to identify those who were responsible for the
violation of the respondent's rights. The CA further ruled that it was incumbent
upon Atty. Mamba, being a public servant, to ensure that the respondent's
constitutional rights are not violated.30
The CA pointed out that the "invitation" extended to the respondent by the
members of the Task Force was in the nature of an arrest as the real purpose
of the same was to make him answer to the heist committed the night before.
The CA ruled that the same amounted to an invalid warrantless arrest since
the circumstances of the case do not fall within the purview of Section 5 of
Rule 113 of the Rules of Court.31
Further, the CA ruled that although the respondent was subsequently released
and that he failed to establish that there is an impending danger of physical
harm to him or his family, the refusal of the respondent officials of the local
government of Tuao, especially Mayor Mamba, to admit and address the
irregularities committed by the members of the Task Force is tantamount to a
continuing violation of the respondent's right to security.32
The petitioners sought a reconsideration33 of the Decision dated January 18,
2010, but it was denied by the CA in its Resolution34 dated March 2, 2010.
Hence, this petition.
The petitioners claim that the CA erred in issuing the writ of amparo in favor of
the respondent. They insist that the respondent, who was then the suspect in
the robbery of the canteen, was not illegally detained or tortured; that the
members of the Task Force merely invited him for questioning as to his
involvement in the robbery.35 They allege that the petition for the issuance of
a writ of amparo is not the proper remedy available to the respondent since
the present laws provide ample recourse to him for the alleged threats to his
life, liberty and security. They also maintain that the respondent's rights to life,
liberty and security are not under threat since he and his mother stated that
they are not afraid of the petitioners.36
The petitioners further aver that it was improper for the CA to direct the PNP
Cagayan Regional Office to conduct further investigation on the incident since
P/Supt. Buenaobra had already testified for the respondent during the
summary hearing conducted by the CA.37 They also maintain that Mayor
Mamba and Atty. Mamba had nothing to do with the alleged violation of the
rights of the respondent since they were not in Tuao at the time of the incident.
That when Mayor Mamba returned to Tuao, he immediately met Maritess to
discuss the incident, but the latter failed to identify the persons involved in the
incident.38
On the other hand, the respondent claims that this petition was filed beyond
the reglementary period. He claims that under Section 19 of A.M. No. 07-9-12-
SC, an appeal from the final judgment or order must be filed with this Court
within five working days from notice of the adverse judgment. The respondent
avers that the petitioners, instead of immediately filing a petition for review on
certiorari with this Court, opted to file a motion for reconsideration with the CA,
which is a prohibited pleading since it is dilatory.39
The respondent further maintains that the CA did not err when it directed the
issuance of a writ of amparo in his favor. He claims that the writ of amparo is
an appropriate remedy in his case since it covers enforced disappearances;
that his illegal warrantless arrest is covered by the term "enforced
disappearances."40
Issues
Essentially, the issues for the Court's consideration are the following: first,
whether the petition for review on certiorari before the Court was filed within
the reglementary period; and second, whether the CA erred in granting the
petition for the issuance of a writ of amparo.
Ruling of the Court
The petition is devoid of merit.
First Issue: Timeliness of the petition
The petition for review on certiorari before the Court, which assails the CA's
grant of the writ of amparo, contrary to the respondent's assertion, was filed on
time. Section 19 of A.M. No. 07-9-12-SC provides that:
Sec. 19. Appeal. - Any party may appeal from the final judgment or order to
the Supreme Court under Rule 45. The appeal may raise question of fact or
law or both.
The period of appeal shall be five (5) working days from the date of notice of
the adverse judgment.1âwphi1
Page 95 of 101
The appeal shall be given the same priority as in habeas corpus cases.
There is nothing in A.M. No. 07-9-12-SC which proscribes the filing of a motion
for reconsideration of the final judgment or order that grants or denies a writ of
amparo. Section 11 of A.M. No. 07-9-12-SC only prohibits the following
pleadings and motions:
Sec. 11. Prohibited Pleadings and Motions. - The following pleadings and
motions are prohibited:
a. Motion to dismiss;
b. Motion for extension of time to file return, opposition, affidavit, position
paper and other pleadings;
c. Dilatory motion for postponement;
d. Motion for a bill of particulars;
e. Counterclaim or cross-claim;
f. Third-party complaint;
g. Reply;
h. Motion to declare respondent in default;
i. Intervention;
j. Memorandum;
k. Motion for reconsideration of interlocutory orders or interim relief orders; and
l. Petition for certiorari, mandamus, or prohibition against any interlocutory
order.
What is prohibited under Section 11 of A.M. No. 07-9-12-SC are motions for
reconsideration directed against interlocutory orders or interim relief orders,
not those assailing the final judgment or order. The pleadings and motions
enumerated in Section 11 of A.M. No. 07-9-12-SC would unnecessarily cause
delays in the proceedings; they are, thus, proscribed since they would run
counter to the summary nature of the rule on the writ of amparo. A motion
seeking a reconsideration of a final judgment or order in such case, obviously,
no longer affects the proceedings.
Moreover, the Rules of Court applies suppletorily to A.M. No. 07-9-12- SC
insofar as it is not inconsistent with the latter.41 Accordingly, there being no
express prohibition to the contrary, the rules on motions for reconsideration
under the Rules of Court apply suppletorily to the Rule on the Writ of Amparo.
Nevertheless, considering that under Section 19 of A.M. No. 07-9-12-SC a
party is only given five working days from the date of notice of the adverse
judgment within which to appeal to this Court through a petition· for review on
certiorari, a motion for reconsideration of a final judgment or order must
likewise be filed within the same period. Thereafter, from the order denying or
granting the motion for reconsideration, the party concerned may file an
appeal to the Court via a Rule 45 petition within five working days from notice
of the order pursuant to the fresh period rule.42
The petitioners received a copy of the CA's Decision dated January 18, 2010
on January 20, 2010.43 They, thus, have until January 27, 2010 to either file a
motion for reconsideration with the CA or an appeal to this Court through a
Rule 45 petition.44 On January 25, 2010, the petitioners filed a motion for
reconsideration with the CA.45 The CA denied the petitioners' motion for
reconsideration in its Resolution dated March 2, 2010, a copy of which was
received by the petitioners' counsel on March 8, 2010.46 Thus, the petitioners
had until March 15, 2010 within which to appeal to this Court.47 The
petitioners filed this petition for review on certiorari on March 12, 2010.48
Thus, contrary to the respondent's claim, this petition was filed within the
reglementary period.
Second Issue: Propriety of the grant of the writ of amparo
The writ of amparo is a protective remedy aimed at providing judicial relief
consisting of the appropriate remedial measures and directives that may be
crafted by the court, in order to address specific violations or threats of
violation of the constitutional rights to life, liberty or security.49 Section 1 of
A.M. No. 07-9-12-SC specifically delimits the coverage of the writ of amparo to
extralegal killings and enforced disappearances, viz.:
Sec. 1. Petition. - The petition for a writ of amparo is a remedy available to any
person whose rights 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.
Extralegal killings are killings committed without due process of law, i.e.,
without legal safeguards or judicial proceedings.50 On the other hand,
enforced disappearance has been defined by the Court as the arrest,
detention, abduction or any other form of deprivation of liberty by agents of the
State or by persons or groups of persons acting with the authorization, support
or acquiescence of the State, followed by a refusal to acknowledge the
deprivation of liberty or by concealment of the fate or whereabouts of the
disappeared person, which place such a person outside the protection of the
law.51
In an amparo action, the parties must establish their respective claims by
substantial evidence.52 Substantial evidence is that amount of evidence which
a reasonable mind might accept as adequate to support a conclusion. It is
more than a mere imputation of wrongdoing or violation that would warrant a
finding of liability against the person charged.53
After a thorough review of the records of this case, the Court affirms the
factual findings of the CA, which is largely based on the respondent's
evidence. Verily, the totality of the evidence presented by the respondent
meets the requisite evidentiary threshold. To corroborate his allegations, the
respondent presented the testimony of Haber who, during the hearing
conducted by the CA on October 6, 2009, averred that on June 15, 2009, he
was brought to Mayor Mamba's house where he and the respondent were
tortured. Haber testified that hot wax was dripped onto their bodies while they
were handcuffed; that they were kicked and beaten with a cue stick and an
alcohol container. Thereafter, Haber testified that he and the respondent were
brought to the guardhouse where they were suffocated by placing plastic bags
on their heads. He also testified that a wire was inserted inside their
penises.54
The respondent's claim was further corroborated by Dr. Tiangco who testified
that on June 18, 2009, she examined the respondent and found that he
suffered several injuries and multiple second degree bums. Layus also
attested that she saw the scars incurred by the respondent on his head, arms,
and back when she interviewed him on July 26, 2009.55
In contrast, the respective testimonies of the witnesses for the petitioners
merely consisted in denial and the allegation that the respondent was indeed
the one who robbed the canteen.56 Clearly, against the positive testimony of
the respondent, which was corroborated by his witnesses, the petitioners'
allegations must fail.
It is settled that denial is inherently a weak defense. To be believed, it must be
buttressed by a strong evidence of non-culpability; otherwise, such denial is
purely self-serving and without evidentiary value.57 Further, even if the
respondent was indeed guilty of a crime, assuming it to be true, it does not
justify his immediate apprehension, in the guise of an invitation, and the
subsequent acts of torture inflicted on him.
What is clear is that the respondent was able to prove by substantial evidence
that he was apprehended by the members of the Task Force, illegally
detained, and tortured. It was further established that Maritess would not have
seen his son if not for the timely intercession of P/Supt. Buenaobra of the PNP
Cagayan Regional Office. The members of the Task Force apprehended and
detained the respondent to make him admit to his complicity in the heist the
night before sans the benefit of legal and judicial processes.
Nevertheless, it is undisputed that the respondent, after four days of detention,
had been released by the members of the Task Force on June 18, 2009. This
fact alone, however, does not negate the propriety of the grant of a writ of
amparo.
In the seminal case of Secretary of National Defense, et al. v. Manalo, et al.,58
the Court emphasized that the writ of amparo serves both preventive and
curative roles in addressing the problem of extralegal killings and enforced
disappearances. It is preventive in that it breaks the expectation of impunity in
the commission of these offenses; it is curative in that it facilitates the
subsequent punishment of perpetrators as it will inevitably yield leads to
subsequent investigation and action.59
Accordingly, a writ of amparo may still issue in the respondent's favor
notwithstanding that he has already been released from detention. In such
case, the writ of amparo is issued to facilitate the punishment of those behind
the illegal detention through subsequent investigation and action.
More importantly, the writ of amparo likewise covers violations of the right to
security.1âwphi1 At the core of the guarantee of the right to security, as
embodied in Section 2, Article III of the Constitution,60 is the immunity of one's
person, including the extensions of his/her person, i.e., houses, papers and
effects, against unwarranted government intrusion. Section 2, Article III of the
Constitution not only limits the State's power over a person's home and
possession, but more importantly, protects the privacy and sanctity of the
person himself.61
The right to security is separate and distinct from the right to life. The right to
life guarantees essentially the right to be alive - upon which the enjoyment of
all other rights is preconditioned. On the other hand, the right to security is a
guarantee of the secure quality of life, i.e., the life, to which each person has a
right, is not a life lived in fear that his person and property may be
unreasonably violated by a powerful ruler.62
In Manalo, the Court further opined that the right to security of person yields
various permutations of the exercise of the right, such as freedom from fear or,
in the arnparo context, freedom from threat; a guarantee of bodily and
psychological integrity or security; and a guarantee of protection of one's rights
by the government.63 As regards the right to security, in the sense of the
guarantee of protection of one's rights by the government, the Court explained:
Page 96 of 101
In the context of the writ of amparo, this right is built into the guarantees of the
rights to life and liberty under Article III, Section 1 of the 1987 Constitution and
the right to security of person (as freedom from threat and guarantee of bodily
and psychological integrity) under Article III, Section 2. The right to security of
person in this third sense is a corollary of the policy that the State "guarantees
full respect for human rights" under Article II, Section 11 of the 1987
Constitution. As the government is the chief guarantor of order and security,
the Constitutional guarantee of the rights to life, liberty and security of person
is rendered ineffective if government does not afford protection to these rights
especially when they are under threat. Protection includes conducting effective
investigations, organization of the government apparatus to extend protection
to victims of extralegal killings or enforced disappearances (or threats thereof)
and/or their families, and bringing offenders to the bar of justice. x x x.64
(Citation omitted and emphasis in the original)
In this case, it is incumbent upon the petitioners, who all hold positions in the
local government of Tuao, to conduct, at the very least, an investigation on the
alleged illegal arrest, illegal detention and torture of the respondent. The
petitioners, nevertheless, claim that the Office of the Mayor and the police
station of Tuao, unknown to the respondent, are conducting an investigation
on the incident. However, other than their bare assertion, they failed to present
any evidence that would prove the supposed investigation. Mere allegation is
not a fact. Absent any evidence that would corroborate the said claim, it is a
mere allegation that does not have any probative value.
Verily, the petitioners failed to point to any specific measures undertaken by
them to effectively investigate the irregularities alleged by the respondent and
to prosecute those who are responsible therefor. Worse, the illegal detention
and torture suffered by the respondent were perpetrated by the members of
the Task Force themselves.
Instead of effectively addressing the irregularities committed against the
respondent, the petitioners seemingly justify the illegal arrest and detention
and infliction of bodily harm upon the respondent by stating that the latter is a
habitual delinquent and was the one responsible for the robbery of the
canteen. As stated earlier, even if the respondent committed a crime, the
petitioners, as local government officials, are not at liberty to disregard the
respondent's constitutionally guaranteed rights to life, liberty and security. It is
quite unfortunate that the petitioners, all local government officials, are the
very ones who are infringing on the respondent's fundamental rights to life,
liberty and security.
Clearly, there is substantial evidence in this case that would warrant the
conclusion that the respondent's right to security, as a guarantee of protection
by the government, was violated. Accordingly, the CA correctly issued the writ
of amparo in favor of the respondent.
The petitioners' claim that it was improper for the CA to direct the PNP
Cagayan Regional Office to conduct further investigation on the respondent's
allegations deserves scant consideration. There is simply no basis to the
petitioners' claim that the PNP Cagayan Regional Office would not be
expected to be objective in their investigation since representatives therefrom
testified during the summary hearing. It bears stressing that P/Supt.
Buenaobra was not a witness for the respondent; he testified pursuant to the
subpoena duces tecum ad testificandum issued by the CA. Further, as aptly
pointed out by the CA, it would be more reasonable for the PNP Cagayan
Regional Office to conduct the said investigation since it has already
commenced an initial investigation on the incident.
Nevertheless, there is a need to modify the reliefs granted by the CA in favor
of the respondent. The CA's Decision was promulgated in 2010.1âwphi1 Since
then, Mayor Mamba's term of office as Mayor of Tuao had ended and,
presumably, a new individual is now occupying the position of Mayor of Tuao.
Accordingly, the incumbent Mayor of Tuao should be directed to likewise
provide assistance to the investigation to be conducted by the PNP Cagayan
Regional Office. Further, it has not been manifested in this case that the PNP
Cagayan Regional Office had commenced the investigation on the incident
that was ordered by the CA.
WHEREFORE, in consideration of the foregoing disquisitions, the petition is
DENIED. The Decision dated January 18, 2010 and Resolution dated March
2, 2010 issued by the Court of Appeals in CA-G.R. SP. No. 00038 are hereby
AFFIRMED subject to the following terms:
1. Petitioners Mayor William N. Mamba, Atty. Francisco N. Mamba, Jr., Ariel
Malana, Narding Aggangan, Jomari Sagalon, Jun Cinabre, Frederick Baligod,
Rommel Encollado, Joseph Tumaliuan, and Randy Dayag and the incumbent
local government officials of Tuao, Cagayan are hereby enjoined from doing
any act of physical or psychological violence on respondent Leomar Bueno
and his family including those who assisted him in the filing of the petition for
the issuance of a writ of amparo with the Court of Appeals;
2. The Regional Director of the Philippine National Police – Cagayan Regional
Office, whoever is the incumbent, is hereby directed to conduct an
investigation, using extraordinary diligence, on the violation of the rights to life,
liberty and security of the respondent when he was supposedly arrested on
June 14, 2009 by the members of the Task Force Lingkod Bayan until he was
released on June 18, 2009;
3. The petitioners and the incumbent officials of the local government of Tuao
are hereby ordered to provide genuine and effective assistance to the
investigation to be conducted by the Philippine National Police - Cagayan
Regional Office, including but not limited to furnishing and/or providing the
latter a list of the members of the Task Force Lingkod Bayan and all those who
had a direct involvement in the violation of the respondent's rights to life,
liberty and security, including their whereabouts, and to allow the investigation
to run its course unhindered;
4. The investigation shall be completed not later than six (6) months from
receipt of this Decision; and within thirty (30) days after completion of the
investigation, the Regional Director of the Philippine National Police - Cagayan
Regional Office shall submit a full report on the results of the investigation to
the Court of Appeals;
5. The Court of Appeals, within thirty (30) days from the submission by the
Regional Director of the Philippine National Police - Cagayan Regional Office
of his full report, is directed to submit to this Court its own report and
recommendations on the investigation and furnish a copy thereof to the
incumbent Regional Director of the Philippine National Police - Cagayan
Regional Office, the petitioners, and the respondent; and
6. This case is referred back to the Court of Appeals for appropriate
proceedings directed at the monitoring of (a) the investigation to be conducted
by the Philippine National Police - Cagayan Regional Office, (b) the actions to
be undertaken in pursuance of the said investigation, and (c) the validation of
the results.
SO ORDERED.
BIENVENIDO L. REYES
Associate Justice
HABEAS DATA
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 STC‘s 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.
Page 97 of 101
Using STC‘s computers, Escudero‘s 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, Escudero‘s 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
student‘s Facebook page, showed the photosto Kristine Rose Tigol (Tigol),
STC‘s 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 school‘s 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), STC‘s high school principal and ICM6 Directress.
They claimed that during the meeting, they were castigated and verbally
abused by the STC officials present in the conference, including Assistant
Principal Mussolini S. Yap (Yap), Roswinda Jumiller, and Tigol. What is more,
Sr. Purisima informed their parents the following day that, as part of their
penalty, they are barred from joining the commencement exercises scheduled
on March 30, 2012.
A week before graduation, or on March 23, 2012, Angela‘s 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-CEB8 on the basis of
the following considerations:
1. The photos of their children in their undergarments (e.g., bra) were taken for
posterity before they changed into their swimsuits on the occasion of a
birthday beach party;
2. The privacy setting of their children‘s 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
STC‘s 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 STC‘s 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 children‘s 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 children‘s 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 RTC‘s 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 school‘s 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 one‘s right to the truth and to informational privacy. It seeks
to protect a person‘s 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
individual‘s 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 person‘s 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 provider‘s databases, which are outside
the control of the end-users––is 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.
Page 98 of 101
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 one‘s 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 technology––a 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. Puno‘s 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 privacy––usually 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 system‘s inherent vulnerability to
attacks and intrusions, there is more reason that every individual‘s right to
control said flow of information should be protected and that each individual
should have at least a reasonable expectation of privacy in cyberspace.
Several commentators regarding privacy and social networking sites, however,
all agree that given the millions of OSN users, "[i]n this [Social Networking]
environment, privacy is no longer grounded in reasonable expectations, but
rather in some theoretical protocol better known as wishful thinking."24
It is due to this notion that the Court saw the pressing need to provide for
judicial remedies that would allow a summary hearing of the unlawful use of
data or information and to remedy possible violations of the right to privacy.25
In the same vein, the South African High Court, in its Decision in the landmark
case, H v. W,26 promulgated on January30, 2013, recognized that "[t]he law
has to take into account the changing realities not only technologically but also
socially or else it will lose credibility in the eyes of the people. x x x It is
imperative that the courts respond appropriately to changing times, acting
cautiously and with wisdom." Consistent with this, the Court, by developing
what may be viewed as the Philippine model of the writ of habeas data, in
effect, recognized that, generally speaking, having an expectation of
informational privacy is not necessarily incompatible with engaging in
cyberspace activities, including those that occur in OSNs.
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 socializing––sharing a myriad
of information,27 some of which would have otherwise remained personal.
b. Facebook‘s 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 anything––from text, to pictures, to music and videos––
access to which would depend on whether he or she allows one, some or all of
the other users to see his or her posts. Since gaining popularity, the OSN
phenomenon has paved the way to the creation of various social networking
sites, includingthe one involved in the case at bar, www.facebook.com
(Facebook), which, according to its developers, people use "to stay connected
with friends and family, to discover what‘s 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 user‘s "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 user‘s profile31 as well as information uploaded by the user.
In H v. W,32 the South Gauteng High Court recognized this ability of the users
to "customize their privacy settings," but did so with this caveat: "Facebook
states in its policies that, although it makes every effort to protect a user‘s
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 user‘sprofile 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 user‘s Facebook friends and their friends can
view the photo;
(b) Friends - only the user‘s 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,
Page 99 of 101
statuses, and photos, among others, from another user‘s 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
one‘s 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 user‘s 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 OSN‘s privacy tools. In
other words, utilization of these privacy tools is the manifestation,in cyber
world, of the user‘s 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.38
Otherwise, using these privacy tools would be a feckless exercise, such that if,
for instance, a user uploads a photo or any personal information to his or her
Facebook page and sets its privacy level at "Only Me" or a custom list so that
only the user or a chosen few can view it, said photo would still be deemed
public by the courts as if the user never chose to limit the photo‘s 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 children‘s privacy right being
violated, insist that Escudero intruded upon their children‘s 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 children‘s
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. Aspetitioner‘s children testified, it was Angelawho
uploaded the subjectphotos which were only viewable by the five of them,40
although who these five are do not appear on the records.
Escudero, on the other hand, stated in her affidavit41 that "my students
showed me some pictures of girls cladin brassieres. This student [sic] of mine
informed me that these are senior high school [students] of STC, who are their
friends in [F]acebook. x x x They then said [that] there are still many other
photos posted on the Facebook accounts of these girls. At the computer lab,
these students then logged into their Facebook account [sic], and accessed
from there the various photographs x x x. They even told me that there had
been times when these photos were ‗public‘ i.e., not confined to their friends in
Facebook."
In this regard, We cannot give muchweight to the minors‘ testimonies for one
key reason: failure to question the students‘ act of showing the photos to Tigol
disproves their allegation that the photos were viewable only by the five of
them. Without any evidence to corroborate their statement that the images
were visible only to the five of them, and without their challenging Escudero‘s
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 Escudero‘s 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 Escudero‘s 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 user‘s Facebook friend can "share"49 the former‘s 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 post‘s or profile detail‘s
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 user‘s
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, A‘s Facebook friend, tags B in A‘s post, which is set
at "Friends," the initial audience of 100 (A‘s own Facebook friends) is
dramatically increased to 300 (A‘s 100 friends plus B‘s 200 friends or the
public, depending upon B‘s privacy setting). As a result, the audience who can
view the post is effectively expanded––and to a very large extent.
This, along with its other features and uses, is confirmation of Facebook‘s
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 minor‘s
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 Facebook‘s 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 user‘s
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 user‘s friends en masse, becomes more manifest
and palpable.
On Cyber Responsibility
Page 100 of 101
It has been said that "the best filter is the one between your children‘s ears."53
This means that self-regulation on the part of OSN users and internet
consumers ingeneral is the best means of avoiding privacy rights violations.54
As a cyberspace communitymember, one has to be proactive in protecting his
or her own privacy.55 It is in this regard that many OSN users, especially
minors, fail.Responsible social networking or observance of the
"netiquettes"56 on the part of teenagers has been the concern of many due to
the widespreadnotion that teenagers can sometimes go too far since they
generally lack the people skills or general wisdom to conduct themselves
sensibly in a public forum.57
Respondent STC is clearly aware of this and incorporating lessons on good
cyber citizenship in its curriculum to educate its students on proper online
conduct may be mosttimely. Too, it is not only STC but a number of schools
and organizations have already deemed it important to include digital literacy
and good cyber citizenshipin their respective programs and curricula in view of
the risks that the children are exposed to every time they participate in online
activities.58 Furthermore, considering the complexity of the cyber world and its
pervasiveness,as well as the dangers that these children are wittingly or
unwittingly exposed to in view of their unsupervised activities in cyberspace,
the participation of the parents in disciplining and educating their children
about being a good digital citizen is encouraged by these institutions and
organizations. In fact, it is believed that "to limit such risks, there‘s 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.1âwphi1 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.
PRESBITERO J. VELASCO, JR.
Associate Justice
Republic of the Philippines
SUPREME COURT
Manila
FIRST DIVISION
G.R. No. 203254, October 08, 2014
DR. JOY MARGATE LEE, Petitioner, v. P/SUPT. NERI A. ILAGAN,
Respondent.
DECISION
PERLAS-BERNABE, J.:
Before the Court is a petition for review on certiorari1 assailing the Decision2
dated August 30, 2012 of the Regional Trial Court of Quezon City, Branch 224
(RTC) in SP No. 12-71527, which extended the privilege of the writ of habeas
data in favor of respondent Police Superintendent Neri A. Ilagan (Ilagan).
The Facts
In his Petition for Issuance of the Writ of Habeas Data3 dated June 22, 2012,
Ilagan alleged that he and petitioner Dr. Joy Margate Lee (Lee) were former
common law partners. Sometime in July 2011, he visited Lee at the latter‘s
condominium, rested for a while and thereafter, proceeded to his office. Upon
arrival, Ilagan noticed that his digital camera was missing.4 On August 23,
2011, Lee confronted Ilagan at the latter‘s office regarding a purported sex
video (subject video) she discovered from the aforesaid camera involving
Ilagan and another woman. Ilagan denied the video and demanded Lee to
return the camera, but to no avail.5 During the confrontation, Ilagan allegedly
slammed Lee‘s head against a wall inside his office and walked
away.6Subsequently, Lee utilized the said video as evidence in filing various
complaints against Ilagan, namely: (a) a criminal complaint for violation of
Republic Act No. 9262,7otherwise known as the ―Anti-Violence Against
Women and Their Children Act of 2004,‖ before the Office of the City
Prosecutor of Makati; and (b) an administrative complaint for grave misconduct
before the National Police Commission (NAPOLCOM).8 Ilagan claimed that
Lee‘s acts of reproducing the subject video and threatening to distribute the
same to the upper echelons of the NAPOLCOM and uploading it to the
internet violated not only his right to life, liberty, security, and privacy but also
that of the other woman, and thus, the issuance of a writ of habeas data in his
favor is warranted.9
Finding the petition prima facie meritorious, the RTC issued a Writ of Habeas
Data10 dated June 25, 2012, directing Lee to appear before the court a quo,
and to produce Ilagan‘s digital camera, as well as the negative and/or original
of the subject video and copies thereof, and to file a verified written return
within five (5) working days from date of receipt thereof.
In her Verified Return11 dated July 2, 2012, Lee admitted that she indeed kept
the memory card of the digital camera and reproduced the aforesaid video but
averred that she only did so to utilize the same as evidence in the cases she
filed against Ilagan. She also admitted that her relationship with Ilagan started
sometime in 2003 and ended under disturbing circumstances in August 2011,
and that she only happened to discover the subject video when Ilagan left his
camera in her condominium. Accordingly, Lee contended that Ilagan‘s petition
for the issuance of the writ of habeas data should be dismissed because: (a)
its filing was only aimed at suppressing the evidence against Ilagan in the
cases she filed; and (b) she is not engaged in the gathering, collecting, or
storing of data regarding the person of Ilagan.12
The RTC Ruling
In a Decision13 dated August 30, 2012, the RTC granted the privilege of the
writ of habeas data in Ilagan‘s favor, and accordingly, ordered the
implementing officer to turn-over copies of the subject video to him, and
enjoined Lee from further reproducing the same.14
evidence showing an actual or threatened violation of the right to privacy in
life, liberty or security of the victim.20 In this relation, it bears pointing out that
the writ of 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 and doubtful.21
In this case, the Court finds that Ilagan was not able to sufficiently allege that
his right to privacy in life, liberty or security was or would be violated through
the supposed reproduction and threatened dissemination of the subject sex
video. While Ilagan purports a privacy interest in the suppression of this video
– which he fears would somehow find its way to Quiapo or be uploaded in the
internet for public consumption – he failed to explain the connection between
such interest and any violation of his right to life, liberty or security. Indeed,
courts cannot speculate or contrive versions of possible transgressions. As the
rules and existing jurisprudence on the matter evoke, alleging and eventually
proving the nexus between one‘s privacy right to the cogent rights to life,
liberty or security are crucial in habeas data cases, so much so that a failure
on either account certainly renders a habeas data petition dismissible, as in
this case.
In fact, even discounting the insufficiency of the allegations, the petition would
equally be dismissible due to the inadequacy of the evidence presented. As
the records show, all that Ilagan submitted in support of his petition was his
self-serving testimony which hardly meets the substantial evidence
requirement as prescribed by the Habeas Data Rule. This is because nothing
therein would indicate that Lee actually proceeded to commit any overt act
towards the end of violating Ilagan‘s right to privacy in life, liberty or security.
Nor would anything on record even lead a reasonable mind to conclude22 that
Lee was going to use the subject video in order to achieve unlawful ends – say
for instance, to spread it to the public so as to ruin Ilagan‘s reputation.
Contrastingly, Lee even made it clear in her testimony that the only reason
why she reproduced the subject video was to legitimately utilize the same as
evidence in the criminal and administrative cases that she filed against
Ilagan.23 Hence, due to the insufficiency of the allegations as well as the
glaring absence of substantial evidence, the Court finds it proper to reverse
the RTC Decision and dismiss the habeas data petition.
WHEREFORE, the petition is GRANTED. The Decision dated August 30, 2012
of the Regional Trial Court of Quezon City, Branch 224 in SP No. 12-71527is
hereby REVERSED and SET ASIDE. Accordingly, the Petition for Issuance of
the Writ of Habeas Data filed by respondent P/Supt. Neri A. Ilagan is
DISMISSED for lack of merit.
SO ORDERED.
Sereno, C.J., (Chairperson), Leonardo-De Castro, Bersamin, and Perez, JJ.,
concur.

The RTC did not give credence to Lee‘s defense that she is not engaged in
the gathering, collecting or storing of data regarding the person of Ilagan,
finding that her acts of reproducing the subject video and showing it to other
people, i.e., the NAPOLCOM officers, violated the latter‘s right to privacy in life
and caused him to suffer humiliation and mental anguish. In this relation, the
RTC opined that Lee‘s use of the subject video as evidence in the various
cases she filed against Ilagan is not enough justification for its reproduction.
Nevertheless, the RTC clarified that it is only ruling on the return of the
aforesaid video and not on its admissibility before other tribunals.15

Dissatisfied, Lee filed this petition.

The Issue Before the Court

The essential issue for the Court‘s resolution is whether or not the RTC
correctly extended the privilege of the writ of habeas data in favor of Ilagan.

The Court‘s Ruling

The petition is meritorious.

A.M. No. 08-1-16-SC, or the Rule on the Writ of Habeas Data (Habeas Data
Rule), 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.16 It was conceptualized as a judicial remedy
enforcing the right to privacy, most especially the right to informational privacy
of individuals,17 which is defined as ―the right to control the collection,
maintenance, use, and dissemination of data about oneself.‖18

As defined in Section 1 of the Habeas Data Rule, the writ of habeas data now
stands as ―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.‖ Thus, in order to
support a petition for the issuance of such writ, Section 6 of the Habeas Data
Rule essentially requires that the petition sufficiently alleges, among others,
―[t]he manner the right to privacy is violated or threatened and how it affects
the right to life, liberty or security of the aggrieved party.‖ In other words, the
petition must adequately show that there exists a nexus between the right to
privacy on the one hand, and the right to life, liberty or security on the other
.19 Corollarily, the allegations in the petition must be supported by substantial
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