Republic vs. Sandiganbayan, G.R. No.

104768, July 21, 2003
SEPTEMBER 12, 2018
Facts:
government may confiscate the monies and items taken from
Dimaano and use the same in evidence against her since at the time
of their seizure, private respondents did not enjoy any
constitutional right.

Immediately upon her assumption to office following the
successful EDSA Revolution, then President Corazon C. Aquino
issued Executive Order No. 1 (“EO No. 1”) creating the
Presidential Commission on Good Government (“PCGG”). EO No.
1 primarily tasked the PCGG to recover all ill-gotten wealth of
former President Ferdinand E. Marcos, his immediate family,
relatives, subordinates and close associates. Accordingly, the
PCGG, through its then Chairman Jovito R. Salonga, created an
AFP Anti-Graft Board (“AFP Board”) tasked to investigate reports
of unexplained wealth and corrupt practices by AFP personnel,
whether in the active service or retired.
Based on its mandate, the AFP Board investigated various reports
of alleged unexplained wealth of respondent Major General
Josephus Q. Ramas (“Ramas”). Later, the AFP Board issued a
Resolution on its findings and recommendation on the reported
unexplained wealth of Ramas.
On 3 March 1986, the Constabulary raiding team served at
Dimaano’s residence a search warrant captioned “Illegal
Possession of Firearms and Ammunition.” The raiding team
seized the items detailed in the seizure receipt together with
other items not included in the search warrant. The raiding
team seized firearms, jewelry, and land titles.
Thus, on 1 August 1987, the PCGG filed a petition for forfeiture
under Republic Act No. 1379 (“RA No. 1379”) against Ramas. The
complaint was amended to include Elizabeth Dimaano, the alleged
mistress of Ramas, as co-defendant.
The Amended Complaint further alleged that Ramas “acquired
funds, assets and properties manifestly out of proportion to his
salary as an army officer and his other income from legitimately
acquired property by taking undue advantage of his public office
and/or using his power, authority and influence as such officer of
the Armed Forces of the Philippines and as a subordinate and close
associate of the deposed President Ferdinand Marcos.” The
Amended Complaint prayed for, among others, the forfeiture of
respondents’ properties, funds and equipment in favor of the State.
Issue:
Whether or not the search of Dimaano’s home was legal
Held:
The search and seizure of Dimaano’s home were NOT legal.
The Bill of Rights under the 1973 Constitution was not operative
during the interregnum.
The EDSA Revolution took place on 23-25 February 1986. As
succinctly stated in President Aquino’s Proclamation No. 3 dated
25 March 1986, the EDSA Revolution was “done in defiance of
the provisions of the 1973 Constitution.“ The resulting government
was indisputably a revolutionary government bound by no
constitution or legal limitations except treaty obligations that the
revolutionary government, as the de jure government in the
Philippines, assumed under international law.
During the interregnum, the directives and orders of the
revolutionary government were the supreme law because no
constitution limited the extent and scope of such directives and
orders. With the abrogation of the 1973 Constitution by the
successful revolution, there was no municipal law higher than the
directives and orders of the revolutionary government. Thus,
during the interregnum, a person could not invoke any
exclusionary right under a Bill of Rights because there was neither
a constitution nor a Bill of Rights during the interregnum.
To hold that the Bill of Rights under the 1973 Constitution
remained operative during the interregnum would render void all
sequestration orders issued by the Philippine Commission on Good
Government (“PCGG”) before the adoption of the Freedom
Constitution. The sequestration orders, which direct the freezing
and even the take-over of private property by mere executive
issuance without judicial action, would violate the due process and
search and seizure clauses of the Bill of Rights.

Trial ensured. However, the Sandiganbayan subsequently

dismissed the complaint because there was an illegal search and
seizure of the items confiscated, among others.
Hence, this appeal.
During the interregnum, the government in power was concededly
a revolutionary government bound by no constitution. No one
could validly question the sequestration orders as violative of the
Bill of Rights because there was no Bill of Rights during the
interregnum.

Petitioner wants the Court to take judicial notice that the raiding
team conducted the search and seizure “on March 3, 1986 or five
days after the successful EDSA revolution.” Petitioner argues that
a revolutionary government was operative at that time by virtue of
Proclamation No. 1 announcing that President Aquino and Vice
President Laurel were “taking power in the name and by the will of
the Filipino people.” Petitioner asserts that the revolutionary
government effectively withheld the operation of the 1973
Constitution which guaranteed private respondents’ exclusionary
right.
Moreover, petitioner argues that the exclusionary right arising from
an illegal search applies only beginning 2 February 1987, the date
of ratification of the 1987 Constitution. Petitioner contends that all
rights under the Bill of Rights had already reverted to its
embryonic stage at the time of the search. Therefore, the
1 HRLAW 08281
The protection accorded to individuals under the International
Covenant on Civil and Political Rights (ICCPR) and the
Universal Declaration of Human Rights (UDHR) remained in
effect during the interregnum.
Nevertheless, even during the interregnum the Filipino people
continued to enjoy, under the ICCPR and the UDHR, almost the
same rights found in the Bill of Rights of the 1973 Constitution.
The revolutionary government, after installing itself as the de jure
government, assumed responsibility for the State’s good faith
compliance with the ICCPR to which the Philippines is a signatory.
Article 2(1) of the ICCPR requires each signatory State “to respect
and to ensure to all individuals within its territory and subject to its
jurisdiction the rights recognized in the present ICCPR.” Under
Article 17(1) of the ICCPR, the revolutionary government had the
duty to insure that “[n]o one shall be subjected to arbitrary or
unlawful interference with his privacy, family, home or
correspondence.”

The UDHR, to which the Philippines is also a signatory, provides

in its Article 17(2) that “[n]o one shall be arbitrarily deprived of his
property.” Although the signatories to the UDHR did not intend it
as a legally binding document, being only a UDHR, the Court has
interpreted the UDHR as part of the generally accepted principles
of international law and binding on the State. Thus, the
revolutionary government was also obligated under international
law to observe the rights of individuals under the UDHR.

The revolutionary government did not repudiate the ICCPR or the

UDHR during the interregnum. Whether the revolutionary
government could have repudiated all its obligations under the
ICCPR or the UDHR is another matter and is not the issue here.
Suffice it to say that the Court considers the UDHR as part of
customary international law, and that Filipinos as human beings are
proper subjects of the rules of international law laid down in the
ICCPR. The fact is the revolutionary government did not repudiate
the ICCPR or the UDHR in the same way it repudiated the 1973
Constitution. As the de jure government, the revolutionary
government could not escape responsibility for the State’s good
faith compliance with its treaty obligations under international law.

It was only upon the adoption of the Provisional Constitution on 25

March 1986 that the directives and orders of the revolutionary
government became subject to a higher municipal law that, if
contravened, rendered such directives and orders void. The
Provisional Constitution adopted verbatim the Bill of Rights of the
1973 Constitution. The Provisional Constitution served as a self-
limitation by the revolutionary government to avoid abuses of the
absolute powers entrusted to it by the people.

During the interregnum when no constitution or Bill of Rights

existed, directives and orders issued by government officers were
valid so long as these officers did not exceed the authority granted
them by the revolutionary government. The directives and orders
should not have also violated the ICCPR or the UDHR. In this
case, the revolutionary government presumptively sanctioned the
warrant since the revolutionary government did not repudiate it.
The warrant, issued by a judge upon proper application, specified
the items to be searched and seized. The warrant is thus valid with
respect to the items specifically described in the warrant.

It is obvious from the testimony of Captain Sebastian that the

warrant did not include the monies, communications equipment,
jewelry and land titles that the raiding team confiscated. The search
warrant did not particularly describe these items and the raiding
team confiscated them on its own authority. The raiding team had
no legal basis to seize these items without showing that these items
could be the subject of warrantless search and seizure. Clearly, the
raiding team exceeded its authority when it seized these items.

The seizure of these items was therefore void, and unless these
items are contraband per se, and they are not, they must be
returned to the person from whom the raiding seized them.
However, we do not declare that such person is the lawful owner of
these items, merely that the search and seizure warrant could not be
used as basis to seize and withhold these items from the possessor.
We thus hold that these items should be returned immediately to
Dimaa

2 HRLAW 08281

G.R. No. 104768 July 21, 2003
REPUBLIC OF THE PHILIPPINES, Petitioner,
vs.
SANDIGANBAYAN, MAJOR GENERAL JOSEPHUS Q.
RAMAS and ELIZABETH DIMAANO, Respondents.
DECISION
CARPIO, J.:
The Case
Before this Court is a petition for review on certiorari seeking to
set aside the Resolutions of the Sandiganbayan (First
Division)1 dated 18 November 1991 and 25 March 1992 in Civil
Case No. 0037. The first Resolution dismissed petitioner’s
Amended Complaint and ordered the return of the confiscated
items to respondent Elizabeth Dimaano, while the second
Resolution denied petitioner’s Motion for Reconsideration.
Petitioner prays for the grant of the reliefs sought in its Amended
Complaint, or in the alternative, for the remand of this case to the
Sandiganbayan (First Division) for further proceedings allowing
petitioner to complete the presentation of its evidence.
Antecedent Facts
Immediately upon her assumption to office following the
successful EDSA Revolution, then President Corazon C. Aquino
issued Executive Order No. 1 ("EO No. 1") creating the
Presidential Commission on Good Government ("PCGG"). EO No.
1 primarily tasked the PCGG to recover all ill-gotten wealth of
former President Ferdinand E. Marcos, his immediate family,
relatives, subordinates and close associates. EO No. 1 vested the
PCGG with the power "(a) to conduct investigation as may be
necessary in order to accomplish and carry out the purposes of this
order" and the power "(h) to promulgate such rules and regulations
as may be necessary to carry out the purpose of this order."
Accordingly, the PCGG, through its then Chairman Jovito R.
Salonga, created an AFP Anti-Graft Board ("AFP Board") tasked
to investigate reports of unexplained wealth and corrupt practices
by AFP personnel, whether in the active service or retired. 2
Based on its mandate, the AFP Board investigated various reports
of alleged unexplained wealth of respondent Major General
Josephus Q. Ramas ("Ramas"). On 27 July 1987, the AFP Board
issued a Resolution on its findings and recommendation on the
reported unexplained wealth of Ramas. The relevant part of the
Resolution reads:
III. FINDINGS and EVALUATION:
Evidence in the record showed that respondent is the owner of a
house and lot located at 15-Yakan St., La Vista, Quezon City. He is
also the owner of a house and lot located in Cebu City. The lot has
an area of 3,327 square meters.
The value of the property located in Quezon City may be estimated
modestly at ₱700,000.00.
The equipment/items and communication facilities which were
found in the premises of Elizabeth Dimaano and were confiscated
by elements of the PC Command of Batangas were all covered by
invoice receipt in the name of CAPT. EFREN SALIDO, RSO
Command Coy, MSC, PA. These items could not have been in the
possession of Elizabeth Dimaano if not given for her use by
respondent Commanding General of the Philippine Army.
3 HRLAW 08281
Aside from the military equipment/items and communications
equipment, the raiding team was also able to confiscate money in
the amount of ₱2,870,000.00 and $50,000 US Dollars in the house
of Elizabeth Dimaano on 3 March 1986.
Affidavits of members of the Military Security Unit, Military
Security Command, Philippine Army, stationed at Camp Eldridge,
Los Baños, Laguna, disclosed that Elizabeth Dimaano is the
mistress of respondent. That respondent usually goes and stays and
sleeps in the alleged house of Elizabeth Dimaano in Barangay
Tengga, Itaas, Batangas City and when he arrives, Elizabeth
Dimaano embraces and kisses respondent. That on February 25,
1986, a person who rode in a car went to the residence of Elizabeth
Dimaano with four (4) attache cases filled with money and owned
by MGen Ramas.
Sworn statement in the record disclosed also that Elizabeth
Dimaano had no visible means of income and is supported by
respondent for she was formerly a mere secretary.
Taking in toto the evidence, Elizabeth Dimaano could not have
used the military equipment/items seized in her house on March 3,
1986 without the consent of respondent, he being the Commanding
General of the Philippine Army. It is also impossible for Elizabeth
Dimaano to claim that she owns the ₱2,870,000.00 and $50,000
US Dollars for she had no visible source of income.
This money was never declared in the Statement of Assets and
Liabilities of respondent. There was an intention to cover the
existence of these money because these are all ill-gotten and
unexplained wealth. Were it not for the affidavits of the members
of the Military Security Unit assigned at Camp Eldridge, Los
Baños, Laguna, the existence and ownership of these money would
have never been known.
The Statement of Assets and Liabilities of respondent were also
submitted for scrutiny and analysis by the Board’s consultant.
Although the amount of ₱2,870,000.00 and $50,000 US Dollars
were not included, still it was disclosed that respondent has an
unexplained wealth of ₱104,134. 60.
IV. CONCLUSION:
In view of the foregoing, the Board finds that a prima facie case
exists against respondent for ill-gotten and unexplained wealth in
the amount of ₱2,974,134.00 and $50,000 US Dollars.
V. RECOMMENDATION:
Wherefore it is recommended that Maj. Gen. Josephus Q. Ramas
(ret.) be prosecuted and tried for violation of RA 3019, as
amended, otherwise known as "Anti-Graft and Corrupt Practices
Act" and RA 1379, as amended, otherwise known as "The Act for
the Forfeiture of Unlawfully Acquired Property."3
Thus, on 1 August 1987, the PCGG filed a petition for forfeiture
under Republic Act No. 1379 ("RA No. 1379") 4 against Ramas.
Before Ramas could answer the petition, then Solicitor General
Francisco I. Chavez filed an Amended Complaint naming the
Republic of the Philippines ("petitioner"), represented by the
PCGG, as plaintiff and Ramas as defendant. The Amended
Complaint also impleaded Elizabeth Dimaano ("Dimaano") as co-
defendant.
The Amended Complaint alleged that Ramas was the Commanding
General of the Philippine Army until 1986. On the other hand,
Dimaano was a confidential agent of the Military Security Unit,
Philippine Army, assigned as a clerk-typist at the office of Ramas
from 1 January 1978 to February 1979. The Amended Complaint
further alleged that Ramas "acquired funds, assets and properties
manifestly out of proportion to his salary as an army officer and his
other income from legitimately acquired property by taking undue
advantage of his public office and/or using his power, authority and
influence as such officer of the Armed Forces of the Philippines
and as a subordinate and close associate of the deposed President
Ferdinand Marcos."5
The Amended Complaint also alleged that the AFP Board, after a
previous inquiry, found reasonable ground to believe that
respondents have violated RA No. 1379.6 The Amended Complaint
prayed for, among others, the forfeiture of respondents’ properties,
funds and equipment in favor of the State.
Ramas filed an Answer with Special and/or Affirmative Defenses
and Compulsory Counterclaim to the Amended Complaint. In his
Answer, Ramas contended that his property consisted only of a
residential house at La Vista Subdivision, Quezon City, valued at
₱700,000, which was not out of proportion to his salary and other
legitimate income. He denied ownership of any mansion in Cebu
City and the cash, communications equipment and other items
confiscated from the house of Dimaano.
Dimaano filed her own Answer to the Amended Complaint.
Admitting her employment as a clerk-typist in the office of Ramas
from January-November 1978 only, Dimaano claimed ownership
of the monies, communications equipment, jewelry and land titles
taken from her house by the Philippine Constabulary raiding team.
After termination of the pre-trial,7 the court set the case for trial on
the merits on 9-11 November 1988.
On 9 November 1988, petitioner asked for a deferment of the
hearing due to its lack of preparation for trial and the absence of
witnesses and vital documents to support its case. The court reset
the hearing to 17 and 18 April 1989.
On 13 April 1989, petitioner filed a motion for leave to amend the
complaint in order "to charge the delinquent properties with being
subject to forfeiture as having been unlawfully acquired by
defendant Dimaano alone x x x."8
Nevertheless, in an order dated 17 April 1989, the Sandiganbayan
proceeded with petitioner’s presentation of evidence on the ground
that the motion for leave to amend complaint did not state when
petitioner would file the amended complaint. The Sandiganbayan
further stated that the subject matter of the amended complaint was
on its face vague and not related to the existing complaint. The
Sandiganbayan also held that due to the time that the case had been
pending in court, petitioner should proceed to present its evidence.
After presenting only three witnesses, petitioner asked for a
postponement of the trial.
On 28 September 1989, during the continuation of the trial,
petitioner manifested its inability to proceed to trial because of the
absence of other witnesses or lack of further evidence to present.
Instead, petitioner reiterated its motion to amend the complaint to
conform to the evidence already presented or to change the
averments to show that Dimaano alone unlawfully acquired the
monies or properties subject of the forfeiture.
The Sandiganbayan noted that petitioner had already delayed the
case for over a year mainly because of its many postponements.
Moreover, petitioner would want the case to revert to its
preliminary stage when in fact the case had long been ready for
trial. The Sandiganbayan ordered petitioner to prepare for
presentation of its additional evidence, if any.
4 HRLAW 08281
During the trial on 23 March 1990, petitioner again admitted its
inability to present further evidence. Giving petitioner one more
chance to present further evidence or to amend the complaint to
conform to its evidence, the Sandiganbayan reset the trial to 18
May 1990. The Sandiganbayan, however, hinted that the re-setting
was without prejudice to any action that private respondents might
take under the circumstances.
However, on 18 May 1990, petitioner again expressed its inability
to proceed to trial because it had no further evidence to present.
Again, in the interest of justice, the Sandiganbayan granted
petitioner 60 days within which to file an appropriate pleading. The
Sandiganbayan, however, warned petitioner that failure to act
would constrain the court to take drastic action.
Private respondents then filed their motions to dismiss based on
Republic v. Migrino.9 The Court held in Migrino that the PCGG
does not have jurisdiction to investigate and prosecute military
officers by reason of mere position held without a showing that
they are "subordinates" of former President Marcos.
On 18 November 1991, the Sandiganbayan rendered a resolution,
the dispositive portion of which states:
WHEREFORE, judgment is hereby rendered dismissing the
Amended Complaint, without pronouncement as to costs. The
counterclaims are likewise dismissed for lack of merit, but the
confiscated sum of money, communications equipment, jewelry
and land titles are ordered returned to Elizabeth Dimaano.
The records of this case are hereby remanded and referred to the
Hon. Ombudsman, who has primary jurisdiction over the forfeiture
cases under R.A. No. 1379, for such appropriate action as the
evidence warrants. This case is also referred to the Commissioner
of the Bureau of Internal Revenue for a determination of any tax
liability of respondent Elizabeth Dimaano in connection herewith.
SO ORDERED.
On 4 December 1991, petitioner filed its Motion for
Reconsideration.
In answer to the Motion for Reconsideration, private respondents
filed a Joint Comment/Opposition to which petitioner filed its
Reply on 10 January 1992.
On 25 March 1992, the Sandiganbayan rendered a Resolution
denying the Motion for Reconsideration.
Ruling of the Sandiganbayan
The Sandiganbayan dismissed the Amended Complaint on the
following grounds:
(1.) The actions taken by the PCGG are not in
accordance with the rulings of the Supreme Court in
Cruz, Jr. v. Sandiganbayan10 and Republic v.
Migrino11 which involve the same issues.
(2.) No previous inquiry similar to preliminary
investigations in criminal cases was conducted against
Ramas and Dimaano.
(3.) The evidence adduced against Ramas does not
constitute a prima facie case against him.
(4.) There was an illegal search and seizure of the items
confiscated.
The Issues
Petitioner raises the following issues:
A. RESPONDENT COURT SERIOUSLY ERRED IN
CONCLUDING THAT PETITIONER’S EVIDENCE
CANNOT MAKE A CASE FOR FORFEITURE AND
THAT THERE WAS NO SHOWING OF
CONSPIRACY, COLLUSION OR RELATIONSHIP
BY CONSANGUINITY OR AFFINITY BY AND
BETWEEN RESPONDENT RAMAS AND
RESPONDENT DIMAANO NOTWITHSTANDING
THE FACT THAT SUCH CONCLUSIONS WERE
CLEARLY UNFOUNDED AND PREMATURE,
HAVING BEEN RENDERED PRIOR TO THE
COMPLETION OF THE PRESENTATION OF THE
EVIDENCE OF THE PETITIONER.
B. RESPONDENT COURT SERIOUSLY ERRED IN
HOLDING THAT THE ACTIONS TAKEN BY THE
PETITIONER, INCLUDING THE FILING OF THE
ORIGINAL COMPLAINT AND THE AMENDED
COMPLAINT, SHOULD BE STRUCK OUT IN LINE
WITH THE RULINGS OF THE SUPREME COURT IN
CRUZ, JR. v. SANDIGANBAYAN, 194 SCRA 474
AND REPUBLIC v. MIGRINO, 189 SCRA 289,
NOTWITHSTANDING THE FACT THAT:
1. The cases of Cruz, Jr. v. Sandiganbayan,
supra, and Republic v. Migrino, supra, are
clearly not applicable to this case;
2. Any procedural defect in the institution of
the complaint in Civil Case No. 0037 was
cured and/or waived by respondents with the
filing of their respective answers with
counterclaim; and
3. The separate motions to dismiss were
evidently improper considering that they were
filed after commencement of the presentation
of the evidence of the petitioner and even
before the latter was allowed to formally offer
its evidence and rest its case;
C. RESPONDENT COURT SERIOUSLY ERRED IN
HOLDING THAT THE ARTICLES AND THINGS
SUCH AS SUMS OF MONEY, COMMUNICATIONS
EQUIPMENT, JEWELRY AND LAND TITLES
CONFISCATED FROM THE HOUSE OF
RESPONDENT DIMAANO WERE ILLEGALLY
SEIZED AND THEREFORE EXCLUDED AS
EVIDENCE.12
The Court’s Ruling
First Issue: PCGG’s Jurisdiction to Investigate Private
Respondents
This case involves a revisiting of an old issue already decided by
this Court in Cruz, Jr. v. Sandiganbayan13 and Republic v.
Migrino.14
The primary issue for resolution is whether the PCGG has the
jurisdiction to investigate and cause the filing of a forfeiture
petition against Ramas and Dimaano for unexplained wealth under
RA No. 1379.
We hold that PCGG has no such jurisdiction.
5 HRLAW 08281
The PCGG created the AFP Board to investigate the unexplained
wealth and corrupt practices of AFP personnel, whether in the
active service or retired.15 The PCGG tasked the AFP Board to
make the necessary recommendations to appropriate government
agencies on the action to be taken based on its findings. 16 The
PCGG gave this task to the AFP Board pursuant to the PCGG’s
power under Section 3 of EO No. 1 "to conduct investigation as
may be necessary in order to accomplish and to carry out the
purposes of this order." EO No. 1 gave the PCGG specific
responsibilities, to wit:
SEC. 2. The Commission shall be charged with the task of assisting
the President in regard to the following matters:
(a) The recovery of all ill-gotten wealth accumulated by former
President Ferdinand E. Marcos, his immediate family, relatives,
subordinates and close associates, whether located in the
Philippines or abroad, including the takeover and sequestration of
all business enterprises and entities owned or controlled by them,
during his administration, directly or through nominees, by taking
undue advantage of their public office and/ or using their powers,
authority, influence, connections or relationship.
(b) The investigation of such cases of graft and corruption as the
President may assign to the Commission from time to time.
x x x.
The PCGG, through the AFP Board, can only investigate the
unexplained wealth and corrupt practices of AFP personnel who
fall under either of the two categories mentioned in Section 2 of
EO No. 1. These are: (1) AFP personnel who have accumulated ill-
gotten wealth during the administration of former President Marcos
by being the latter’s immediate family, relative, subordinate or
close associate, taking undue advantage of their public office or
using their powers, influence x x x;17 or (2) AFP personnel
involved in other cases of graft and corruption provided the
President assigns their cases to the PCGG.18
Petitioner, however, does not claim that the President assigned
Ramas’ case to the PCGG. Therefore, Ramas’ case should fall
under the first category of AFP personnel before the PCGG could
exercise its jurisdiction over him. Petitioner argues that Ramas was
undoubtedly a subordinate of former President Marcos because of
his position as the Commanding General of the Philippine Army.
Petitioner claims that Ramas’ position enabled him to receive
orders directly from his commander-in-chief, undeniably making
him a subordinate of former President Marcos.
We hold that Ramas was not a "subordinate" of former President
Marcos in the sense contemplated under EO No. 1 and its
amendments.
Mere position held by a military officer does not automatically
make him a "subordinate" as this term is used in EO Nos. 1, 2, 14
and 14-A absent a showing that he enjoyed close association with
former President Marcos. Migrino discussed this issue in this wise:
A close reading of EO No. 1 and related executive orders will
readily show what is contemplated within the term ‘subordinate.’
The Whereas Clauses of EO No. 1 express the urgent need to
recover the ill-gotten wealth amassed by former President
Ferdinand E. Marcos, his immediate family, relatives, and close
associates both here and abroad.
EO No. 2 freezes ‘all assets and properties in the Philippines in
which former President Marcos and/or his wife, Mrs. Imelda
Marcos, their close relatives, subordinates, business associates,
dummies, agents, or nominees have any interest or participation.’
Applying the rule in statutory construction known as ejusdem
generis that is-
‘[W]here general words follow an enumeration of persons or things
by words of a particular and specific meaning, such general words
are not to be construed in their widest extent, but are to be held as
applying only to persons or things of the same kind or class as
those specifically mentioned [Smith, Bell & Co, Ltd. vs. Register
of Deeds of Davao, 96 Phil. 53, 58, citing Black on Interpretation
of Laws, 2nd Ed., 203].’
[T]he term "subordinate" as used in EO Nos. 1 & 2 refers to one
who enjoys a close association with former President Marcos
and/or his wife, similar to the immediate family member, relative,
and close associate in EO No. 1 and the close relative, business
associate, dummy, agent, or nominee in EO No. 2.
xxx
It does not suffice, as in this case, that the respondent is or was a
government official or employee during the administration of
former President Marcos. There must be a prima facie showing that
the respondent unlawfully accumulated wealth by virtue of his
close association or relation with former Pres. Marcos and/or his
wife. (Emphasis supplied)
Ramas’ position alone as Commanding General of the Philippine
Army with the rank of Major General19 does not suffice to make
him a "subordinate" of former President Marcos for purposes of
EO No. 1 and its amendments. The PCGG has to provide a prima
facie showing that Ramas was a close associate of former President
Marcos, in the same manner that business associates, dummies,
agents or nominees of former President Marcos were close to him.
Such close association is manifested either by Ramas’ complicity
with former President Marcos in the accumulation of ill-gotten
wealth by the deposed President or by former President Marcos’
acquiescence in Ramas’ own accumulation of ill-gotten wealth if
any.
This, the PCGG failed to do.
Petitioner’s attempt to differentiate the instant case from Migrino
does not convince us. Petitioner argues that unlike in Migrino, the
AFP Board Resolution in the instant case states that the AFP Board
conducted the investigation pursuant to EO Nos. 1, 2, 14 and 14-A
in relation to RA No. 1379. Petitioner asserts that there is a
presumption that the PCGG was acting within its jurisdiction of
investigating crony-related cases of graft and corruption and that
Ramas was truly a subordinate of the former President. However,
the same AFP Board Resolution belies this contention. Although
the Resolution begins with such statement, it ends with the
following recommendation:
V. RECOMMENDATION:
Wherefore it is recommended that Maj. Gen. Josephus Q. Ramas
(ret.) be prosecuted and tried for violation of RA 3019, as
amended, otherwise known as "Anti-Graft and Corrupt Practices
Act" and RA 1379, as amended, otherwise known as "The Act for
the Forfeiture of Unlawfully Acquired Property."20
Thus, although the PCGG sought to investigate and prosecute
private respondents under EO Nos. 1, 2, 14 and 14-A, the result
yielded a finding of violation of Republic Acts Nos. 3019 and 1379
without any relation to EO Nos. 1, 2, 14 and 14-A. This absence of
relation to EO No. 1 and its amendments proves fatal to
petitioner’s case. EO No. 1 created the PCGG for a specific and
limited purpose, and necessarily its powers must be construed to
address such specific and limited purpose.
6 HRLAW 08281
Moreover, the resolution of the AFP Board and even the Amended
Complaint do not show that the properties Ramas allegedly owned
were accumulated by him in his capacity as a "subordinate" of his
commander-in-chief. Petitioner merely enumerated the properties
Ramas allegedly owned and suggested that these properties were
disproportionate to his salary and other legitimate income without
showing that Ramas amassed them because of his close association
with former President Marcos. Petitioner, in fact, admits that the
AFP Board resolution does not contain a finding that Ramas
accumulated his wealth because of his close association with
former President Marcos, thus:
10. While it is true that the resolution of the Anti-Graft Board of
the New Armed Forces of the Philippines did not categorically
find a prima facie evidence showing that respondent Ramas
unlawfully accumulated wealth by virtue of his close
association or relation with former President Marcos and/or
his wife, it is submitted that such omission was not fatal. The
resolution of the Anti-Graft Board should be read in the context of
the law creating the same and the objective of the investigation
which was, as stated in the above, pursuant to Republic Act Nos.
3019 and 1379 in relation to Executive Order Nos. 1, 2, 14 and 14-
a;21 (Emphasis supplied)
Such omission is fatal. Petitioner forgets that it is precisely a prima
facie showing that the ill-gotten wealth was accumulated by a
"subordinate" of former President Marcos that vests jurisdiction on
PCGG. EO No. 122 clearly premises the creation of the PCGG on
the urgent need to recover all ill-gotten wealth amassed by former
President Marcos, his immediate family, relatives, subordinates
and close associates. Therefore, to say that such omission was not
fatal is clearly contrary to the intent behind the creation of the
PCGG.
In Cruz, Jr. v. Sandiganbayan,23 the Court outlined the cases that
fall under the jurisdiction of the PCGG pursuant to EO Nos. 1,
2,24 14,25 14-A:26
A careful reading of Sections 2(a) and 3 of Executive Order No. 1
in relation with Sections 1, 2 and 3 of Executive Order No. 14,
shows what the authority of the respondent PCGG to investigate
and prosecute covers:
(a) the investigation and prosecution of the civil action
for the recovery of ill-gotten wealth under Republic Act
No. 1379, accumulated by former President Marcos, his
immediate family, relatives, subordinates and close
associates, whether located in the Philippines or abroad,
including the take-over or sequestration of all business
enterprises and entities owned or controlled by them,
during his administration, directly or through his
nominees, by taking undue advantage of their public
office and/or using their powers, authority and influence,
connections or relationships; and
(b) the investigation and prosecution of such offenses
committed in the acquisition of said ill-gotten wealth as
contemplated under Section 2(a) of Executive Order No.
1.
However, other violations of the Anti-Graft and Corrupt
Practices Act not otherwise falling under the foregoing
categories, require a previous authority of the President for the
respondent PCGG to investigate and prosecute in accordance
with Section 2 (b) of Executive Order No. 1. Otherwise,
jurisdiction over such cases is vested in the Ombudsman and
other duly authorized investigating agencies such as the
provincial and city prosecutors, their assistants, the Chief State
Prosecutor and his assistants and the state
prosecutors. (Emphasis supplied)
The proper government agencies, and not the PCGG, should
investigate and prosecute forfeiture petitions not falling under EO
No. 1 and its amendments. The preliminary investigation of
unexplained wealth amassed on or before 25 February 1986 falls
under the jurisdiction of the Ombudsman, while the authority to
file the corresponding forfeiture petition rests with the Solicitor
General.27 The Ombudsman Act or Republic Act No. 6770 ("RA
No. 6770") vests in the Ombudsman the power to conduct
preliminary investigation and to file forfeiture proceedings
involving unexplained wealth amassed after 25 February 1986. 28
After the pronouncements of the Court in Cruz, the PCGG still
pursued this case despite the absence of a prima facie finding that
Ramas was a "subordinate" of former President Marcos. The
petition for forfeiture filed with the Sandiganbayan should be
dismissed for lack of authority by the PCGG to investigate
respondents since there is no prima facie showing that EO No. 1
and its amendments apply to respondents. The AFP Board
Resolution and even the Amended Complaint state that there are
violations of RA Nos. 3019 and 1379. Thus, the PCGG should
have recommended Ramas’ case to the Ombudsman who has
jurisdiction to conduct the preliminary investigation of ordinary
unexplained wealth and graft cases. As stated in Migrino:
[But] in view of the patent lack of authority of the PCGG to
investigate and cause the prosecution of private respondent for
violation of Rep. Acts Nos. 3019 and 1379, the PCGG must also be
enjoined from proceeding with the case, without prejudice to any
action that may be taken by the proper prosecutory agency. The
rule of law mandates that an agency of government be allowed to
exercise only the powers granted to it.
Petitioner’s argument that private respondents have waived any
defect in the filing of the forfeiture petition by submitting their
respective Answers with counterclaim deserves no merit as well.
Petitioner has no jurisdiction over private respondents. Thus, there
is no jurisdiction to waive in the first place. The PCGG cannot
exercise investigative or prosecutorial powers never granted to it.
PCGG’s powers are specific and limited. Unless given additional
assignment by the President, PCGG’s sole task is only to recover
the ill-gotten wealth of the Marcoses, their relatives and
cronies.29 Without these elements, the PCGG cannot claim
jurisdiction over a case.
Private respondents questioned the authority and jurisdiction of the
PCGG to investigate and prosecute their cases by filing their
Motion to Dismiss as soon as they learned of the pronouncement of
the Court in Migrino. This case was decided on 30 August 1990,
which explains why private respondents only filed their Motion to
Dismiss on 8 October 1990. Nevertheless, we have held that the
parties may raise lack of jurisdiction at any stage of the
proceeding.30 Thus, we hold that there was no waiver of
jurisdiction in this case. Jurisdiction is vested by law and not by the
parties to an action.31
Consequently, the petition should be dismissed for lack of
jurisdiction by the PCGG to conduct the preliminary investigation.
The Ombudsman may still conduct the proper preliminary
investigation for violation of RA No. 1379, and if warranted, the
Solicitor General may file the forfeiture petition with the
Sandiganbayan.32 The right of the State to forfeit unexplained
wealth under RA No. 1379 is not subject to prescription, laches or
estoppel.33
Second Issue: Propriety of Dismissal of Case
Before Completion of Presentation of Evidence
7 HRLAW 08281
Petitioner also contends that the Sandiganbayan erred in dismissing
the case before completion of the presentation of petitioner’s
evidence.
We disagree.
Based on the findings of the Sandiganbayan and the records of this
case, we find that petitioner has only itself to blame for non-
completion of the presentation of its evidence. First, this case has
been pending for four years before the Sandiganbayan dismissed it.
Petitioner filed its Amended Complaint on 11 August 1987, and
only began to present its evidence on 17 April 1989. Petitioner had
almost two years to prepare its evidence. However, despite this
sufficient time, petitioner still delayed the presentation of the rest
of its evidence by filing numerous motions for postponements and
extensions. Even before the date set for the presentation of its
evidence, petitioner filed, on 13 April 1989, a Motion for Leave to
Amend the Complaint.34 The motion sought "to charge the
delinquent properties (which comprise most of petitioner’s
evidence) with being subject to forfeiture as having been
unlawfully acquired by defendant Dimaano alone x x x."
The Sandiganbayan, however, refused to defer the presentation of
petitioner’s evidence since petitioner did not state when it would
file the amended complaint. On 18 April 1989, the Sandiganbayan
set the continuation of the presentation of evidence on 28-29
September and 9-11 October 1989, giving petitioner ample time to
prepare its evidence. Still, on 28 September 1989, petitioner
manifested its inability to proceed with the presentation of its
evidence. The Sandiganbayan issued an Order expressing its view
on the matter, to wit:
The Court has gone through extended inquiry and a narration of the
above events because this case has been ready for trial for over a
year and much of the delay hereon has been due to the inability of
the government to produce on scheduled dates for pre-trial and for
trial documents and witnesses, allegedly upon the failure of the
military to supply them for the preparation of the presentation of
evidence thereon. Of equal interest is the fact that this Court has
been held to task in public about its alleged failure to move cases
such as this one beyond the preliminary stage, when, in view of the
developments such as those of today, this Court is now faced with
a situation where a case already in progress will revert back to the
preliminary stage, despite a five-month pause where appropriate
action could have been undertaken by the plaintiff Republic. 35
On 9 October 1989, the PCGG manifested in court that it was
conducting a preliminary investigation on the unexplained wealth
of private respondents as mandated by RA No. 1379.36 The PCGG
prayed for an additional four months to conduct the preliminary
investigation. The Sandiganbayan granted this request and
scheduled the presentation of evidence on 26-29 March 1990.
However, on the scheduled date, petitioner failed to inform the
court of the result of the preliminary investigation the PCGG
supposedly conducted. Again, the Sandiganbayan gave petitioner
until 18 May 1990 to continue with the presentation of its evidence
and to inform the court of "what lies ahead insofar as the status of
the case is concerned x x x."37 Still on the date set, petitioner failed
to present its evidence. Finally, on 11 July 1990, petitioner filed its
Re-Amended Complaint.38 The Sandiganbayan correctly observed
that a case already pending for years would revert to its preliminary
stage if the court were to accept the Re-Amended Complaint.
Based on these circumstances, obviously petitioner has only itself
to blame for failure to complete the presentation of its evidence.
The Sandiganbayan gave petitioner more than sufficient time to
finish the presentation of its evidence. The Sandiganbayan
overlooked petitioner’s delays and yet petitioner ended the long-
string of delays with the filing of a Re-Amended Complaint, which
would only prolong even more the disposition of the case.
Moreover, the pronouncements of the Court in Migrino and Cruz
prompted the Sandiganbayan to dismiss the case since the PCGG
has no jurisdiction to investigate and prosecute the case against
private respondents. This alone would have been sufficient legal
basis for the Sandiganbayan to dismiss the forfeiture case against
private respondents.
Thus, we hold that the Sandiganbayan did not err in dismissing the
case before completion of the presentation of petitioner’s evidence.
Third Issue: Legality of the Search and Seizure
Petitioner claims that the Sandiganbayan erred in declaring the
properties confiscated from Dimaano’s house as illegally seized
and therefore inadmissible in evidence. This issue bears a
significant effect on petitioner’s case since these properties
comprise most of petitioner’s evidence against private respondents.
Petitioner will not have much evidence to support its case against
private respondents if these properties are inadmissible in evidence.
On 3 March 1986, the Constabulary raiding team served at
Dimaano’s residence a search warrant captioned "Illegal
Possession of Firearms and Ammunition." Dimaano was not
present during the raid but Dimaano’s cousins witnessed the raid.
The raiding team seized the items detailed in the seizure receipt
together with other items not included in the search warrant. The
raiding team seized these items: one baby armalite rifle with two
magazines; 40 rounds of 5.56 ammunition; one pistol, caliber .45;
communications equipment, cash consisting of ₱2,870,000 and
US$50,000, jewelry, and land titles.
Petitioner wants the Court to take judicial notice that the raiding
team conducted the search and seizure "on March 3, 1986 or five
days after the successful EDSA revolution."39 Petitioner argues that
a revolutionary government was operative at that time by virtue of
Proclamation No. 1 announcing that President Aquino and Vice
President Laurel were "taking power in the name and by the will of
the Filipino people."40 Petitioner asserts that the revolutionary
government effectively withheld the operation of the 1973
Constitution which guaranteed private respondents’ exclusionary
right.
Moreover, petitioner argues that the exclusionary right arising from
an illegal search applies only beginning 2 February 1987, the date
of ratification of the 1987 Constitution. Petitioner contends that all
rights under the Bill of Rights had already reverted to its
embryonic stage at the time of the search. Therefore, the
government may confiscate the monies and items taken from
Dimaano and use the same in evidence against her since at the time
of their seizure, private respondents did not enjoy any
constitutional right.
Petitioner is partly right in its arguments.
The EDSA Revolution took place on 23-25 February 1986. As
succinctly stated in President Aquino’s Proclamation No. 3 dated
25 March 1986, the EDSA Revolution was "done in defiance of
the provisions of the 1973 Constitution."41 The resulting
government was indisputably a revolutionary government bound
by no constitution or legal limitations except treaty obligations that
the revolutionary government, as the de jure government in the
Philippines, assumed under international law.
The correct issues are: (1) whether the revolutionary government
was bound by the Bill of Rights of the 1973 Constitution during the
interregnum, that is, after the actual and effective take-over of
power by the revolutionary government following the cessation of
resistance by loyalist forces up to 24 March 1986 (immediately
before the adoption of the Provisional Constitution); and (2)
whether the protection accorded to individuals under the
8 HRLAW 08281
International Covenant on Civil and Political Rights ("Covenant")
and the Universal Declaration of Human Rights ("Declaration")
remained in effect during the interregnum.
We hold that the Bill of Rights under the 1973 Constitution was
not operative during the interregnum. However, we rule that the
protection accorded to individuals under the Covenant and the
Declaration remained in effect during the interregnum.
During the interregnum, the directives and orders of the
revolutionary government were the supreme law because no
constitution limited the extent and scope of such directives and
orders. With the abrogation of the 1973 Constitution by the
successful revolution, there was no municipal law higher than the
directives and orders of the revolutionary government. Thus,
during the interregnum, a person could not invoke any
exclusionary right under a Bill of Rights because there was neither
a constitution nor a Bill of Rights during the interregnum. As the
Court explained in Letter of Associate Justice Reynato S. Puno: 42
A revolution has been defined as "the complete overthrow of the
established government in any country or state by those who were
previously subject to it" or as "a sudden, radical and fundamental
change in the government or political system, usually effected with
violence or at least some acts of violence." In Kelsen's book,
General Theory of Law and State, it is defined as that which
"occurs whenever the legal order of a community is nullified and
replaced by a new order . . . a way not prescribed by the first order
itself."
It was through the February 1986 revolution, a relatively peaceful
one, and more popularly known as the "people power revolution"
that the Filipino people tore themselves away from an existing
regime. This revolution also saw the unprecedented rise to power
of the Aquino government.
From the natural law point of view, the right of revolution has been
defined as "an inherent right of a people to cast out their rulers,
change their policy or effect radical reforms in their system of
government or institutions by force or a general uprising when the
legal and constitutional methods of making such change have
proved inadequate or are so obstructed as to be unavailable." It has
been said that "the locus of positive law-making power lies with
the people of the state" and from there is derived "the right of the
people to abolish, to reform and to alter any existing form of
government without regard to the existing constitution."
xxx
It is widely known that Mrs. Aquino’s rise to the presidency was
not due to constitutional processes; in fact, it was achieved in
violation of the provisions of the 1973 Constitution as a Batasang
Pambansa resolution had earlier declared Mr. Marcos as the
winner in the 1986 presidential election. Thus it can be said that
the organization of Mrs. Aquino’s Government which was met by
little resistance and her control of the state evidenced by the
appointment of the Cabinet and other key officers of the
administration, the departure of the Marcos Cabinet officials,
revamp of the Judiciary and the Military signaled the point where
the legal system then in effect, had ceased to be obeyed by the
Filipino. (Emphasis supplied)
To hold that the Bill of Rights under the 1973 Constitution
remained operative during the interregnum would render void all
sequestration orders issued by the Philippine Commission on Good
Government ("PCGG") before the adoption of the Freedom
Constitution. The sequestration orders, which direct the freezing
and even the take-over of private property by mere executive
issuance without judicial action, would violate the due process and
search and seizure clauses of the Bill of Rights.
During the interregnum, the government in power was concededly
a revolutionary government bound by no constitution. No one
could validly question the sequestration orders as violative of the
Bill of Rights because there was no Bill of Rights during the
interregnum. However, upon the adoption of the Freedom
Constitution, the sequestered companies assailed the sequestration
orders as contrary to the Bill of Rights of the Freedom
Constitution.
In Bataan Shipyard & Engineering Co. Inc. vs. Presidential
Commission on Good Government,43 petitioner Baseco, while
conceding there was no Bill of Rights during the interregnum,
questioned the continued validity of the sequestration orders upon
adoption of the Freedom Constitution in view of the due process
clause in its Bill of Rights. The Court ruled that the Freedom
Constitution, and later the 1987 Constitution, expressly recognized
the validity of sequestration orders, thus:
If any doubt should still persist in the face of the foregoing
considerations as to the validity and propriety of sequestration,
freeze and takeover orders, it should be dispelled by the fact that
these particular remedies and the authority of the PCGG to issue
them have received constitutional approbation and sanction. As
already mentioned, the Provisional or "Freedom" Constitution
recognizes the power and duty of the President to enact "measures
to achieve the mandate of the people to . . . (r)ecover ill-gotten
properties amassed by the leaders and supporters of the previous
regime and protect the interest of the people through orders of
sequestration or freezing of assets or accounts." And as also
already adverted to, Section 26, Article XVIII of the 1987
Constitution treats of, and ratifies the "authority to issue
sequestration or freeze orders under Proclamation No. 3 dated
March 25, 1986."
The framers of both the Freedom Constitution and the 1987
Constitution were fully aware that the sequestration orders would
clash with the Bill of Rights. Thus, the framers of both
constitutions had to include specific language recognizing the
validity of the sequestration orders. The following discourse by
Commissioner Joaquin G. Bernas during the deliberations of the
Constitutional Commission is instructive:
FR. BERNAS: Madam President, there is something schizophrenic
about the arguments in defense of the present amendment.
For instance, I have carefully studied Minister Salonga’s lecture in
the Gregorio Araneta University Foundation, of which all of us
have been given a copy. On the one hand, he argues that everything
the Commission is doing is traditionally legal. This is repeated by
Commissioner Romulo also. Minister Salonga spends a major
portion of his lecture developing that argument. On the other hand,
almost as an afterthought, he says that in the end what matters are
the results and not the legal niceties, thus suggesting that the
PCGG should be allowed to make some legal shortcuts, another
word for niceties or exceptions.
Now, if everything the PCGG is doing is legal, why is it asking the
CONCOM for special protection? The answer is clear. What they
are doing will not stand the test of ordinary due process, hence they
are asking for protection, for exceptions. Grandes malos, grandes
remedios, fine, as the saying stands, but let us not say grandes
malos, grande y malos remedios. That is not an allowable
extrapolation. Hence, we should not give the exceptions asked for,
and let me elaborate and give three reasons:
First, the whole point of the February Revolution and of the work
of the CONCOM is to hasten constitutional normalization. Very
much at the heart of the constitutional normalization is the full
effectivity of the Bill of Rights. We cannot, in one breath, ask for
constitutional normalization and at the same time ask for a
temporary halt to the full functioning of what is at the heart of
9 HRLAW 08281
constitutionalism. That would be hypocritical; that would be a
repetition of Marcosian protestation of due process and rule of law.
The New Society word for that is "backsliding." It is tragic when
we begin to backslide even before we get there.
Second, this is really a corollary of the first. Habits tend to become
ingrained. The committee report asks for extraordinary exceptions
from the Bill of Rights for six months after the convening of
Congress, and Congress may even extend this longer.
Good deeds repeated ripen into virtue; bad deeds repeated become
vice. What the committee report is asking for is that we should
allow the new government to acquire the vice of disregarding the
Bill of Rights.
Vices, once they become ingrained, become difficult to shed. The
practitioners of the vice begin to think that they have a vested right
to its practice, and they will fight tooth and nail to keep the
franchise. That would be an unhealthy way of consolidating the
gains of a democratic revolution.
Third, the argument that what matters are the results and not the
legal niceties is an argument that is very disturbing. When it comes
from a staunch Christian like Commissioner Salonga, a Minister,
and repeated verbatim by another staunch Christian like
Commissioner Tingson, it becomes doubly disturbing and even
discombobulating. The argument makes the PCGG an auctioneer,
placing the Bill of Rights on the auction block. If the price is right,
the search and seizure clause will be sold. "Open your Swiss bank
account to us and we will award you the search and seizure clause.
You can keep it in your private safe."
Alternatively, the argument looks on the present government as
hostage to the hoarders of hidden wealth. The hoarders will release
the hidden health if the ransom price is paid and the ransom price is
the Bill of Rights, specifically the due process in the search and
seizure clauses. So, there is something positively revolving about
either argument. The Bill of Rights is not for sale to the highest
bidder nor can it be used to ransom captive dollars. This nation will
survive and grow strong, only if it would become convinced of the
values enshrined in the Constitution of a price that is beyond
monetary estimation.
For these reasons, the honorable course for the Constitutional
Commission is to delete all of Section 8 of the committee report
and allow the new Constitution to take effect in full vigor. If
Section 8 is deleted, the PCGG has two options. First, it can pursue
the Salonga and the Romulo argument — that what the PCGG has
been doing has been completely within the pale of the law. If
sustained, the PCGG can go on and should be able to go on, even
without the support of Section 8. If not sustained, however, the
PCGG has only one honorable option, it must bow to the majesty
of the Bill of Rights.
The PCGG extrapolation of the law is defended by staunch
Christians. Let me conclude with what another Christian replied
when asked to toy around with the law. From his prison cell,
Thomas More said, "I'll give the devil benefit of law for my
nation’s safety sake." I ask the Commission to give the devil
benefit of law for our nation’s sake. And we should delete Section
8.
Thank you, Madam President. (Emphasis supplied)
Despite the impassioned plea by Commissioner Bernas against the
amendment excepting sequestration orders from the Bill of Rights,
the Constitutional Commission still adopted the amendment as
Section 26,44 Article XVIII of the 1987 Constitution. The framers
of the Constitution were fully aware that absent Section 26,
sequestration orders would not stand the test of due process under
the Bill of Rights.
Thus, to rule that the Bill of Rights of the 1973 Constitution
remained in force during the interregnum, absent a constitutional
provision excepting sequestration orders from such Bill of Rights,
would clearly render all sequestration orders void during the
interregnum. Nevertheless, even during the interregnum the
Filipino people continued to enjoy, under the Covenant and the
Declaration, almost the same rights found in the Bill of Rights of
the 1973 Constitution.
The revolutionary government, after installing itself as the de jure
government, assumed responsibility for the State’s good faith
compliance with the Covenant to which the Philippines is a
signatory. Article 2(1) of the Covenant requires each signatory
State "to respect and to ensure to all individuals within its territory
and subject to its jurisdiction the rights45 recognized in the present
Covenant." Under Article 17(1) of the Covenant, the revolutionary
government had the duty to insure that "[n]o one shall be subjected
to arbitrary or unlawful interference with his privacy, family, home
or correspondence."
The Declaration, to which the Philippines is also a signatory,
provides in its Article 17(2) that "[n]o one shall be arbitrarily
deprived of his property." Although the signatories to the
Declaration did not intend it as a legally binding document, being
only a declaration, the Court has interpreted the Declaration as part
of the generally accepted principles of international law and
binding on the State.46 Thus, the revolutionary government was
also obligated under international law to observe the rights47 of
individuals under the Declaration.
The revolutionary government did not repudiate the Covenant or
the Declaration during the interregnum. Whether the revolutionary
government could have repudiated all its obligations under the
Covenant or the Declaration is another matter and is not the issue
here. Suffice it to say that the Court considers the Declaration as
part of customary international law, and that Filipinos as human
beings are proper subjects of the rules of international law laid
down in the Covenant. The fact is the revolutionary government
did not repudiate the Covenant or the Declaration in the same way
it repudiated the 1973 Constitution. As the de jure government, the
revolutionary government could not escape responsibility for the
State’s good faith compliance with its treaty obligations under
international law.
It was only upon the adoption of the Provisional Constitution on 25
March 1986 that the directives and orders of the revolutionary
government became subject to a higher municipal law that, if
contravened, rendered such directives and orders void. The
Provisional Constitution adopted verbatim the Bill of Rights of the
1973 Constitution.48 The Provisional Constitution served as a self-
limitation by the revolutionary government to avoid abuses of the
absolute powers entrusted to it by the people.
During the interregnum when no constitution or Bill of Rights
existed, directives and orders issued by government officers were
valid so long as these officers did not exceed the authority granted
them by the revolutionary government. The directives and orders
should not have also violated the Covenant or the Declaration. In
this case, the revolutionary government presumptively sanctioned
the warrant since the revolutionary government did not repudiate it.
The warrant, issued by a judge upon proper application, specified
the items to be searched and seized. The warrant is thus valid with
respect to the items specifically described in the warrant.
However, the Constabulary raiding team seized items not included
in the warrant. As admitted by petitioner’s witnesses, the raiding
team confiscated items not included in the warrant, thus:
10 HRLAW 08281
Direct Examination of Capt. Rodolfo Sebastian
AJ AMORES
Q. According to the search warrant, you are supposed to seize only
for weapons. What else, aside from the weapons, were seized from
the house of Miss Elizabeth Dimaano?
A. The communications equipment, money in Philippine currency
and US dollars, some jewelries, land titles, sir.
Q. Now, the search warrant speaks only of weapons to be seized
from the house of Elizabeth Dimaano. Do you know the reason
why your team also seized other properties not mentioned in said
search warrant?
A. During the conversation right after the conduct of said raid, I
was informed that the reason why they also brought the other items
not included in the search warrant was because the money and
other jewelries were contained in attaché cases and cartons with
markings "Sony Trinitron", and I think three (3) vaults or steel
safes. Believing that the attaché cases and the steel safes were
containing firearms, they forced open these containers only to find
out that they contained money.
xxx
Q. You said you found money instead of weapons, do you know
the reason why your team seized this money instead of weapons?
A. I think the overall team leader and the other two officers
assisting him decided to bring along also the money because at that
time it was already dark and they felt most secured if they will
bring that because they might be suspected also of taking money
out of those items, your Honor.49
Cross-examination
Atty. Banaag
Q. Were you present when the search warrant in connection with
this case was applied before the Municipal Trial Court of Batangas,
Branch 1?
A. Yes, sir.
Q. And the search warrant applied for by you was for the search
and seizure of five (5) baby armalite rifles M-16 and five (5) boxes
of ammunition?
A. Yes, sir.
xxx
AJ AMORES
Q. Before you applied for a search warrant, did you conduct
surveillance in the house of Miss Elizabeth Dimaano?
A. The Intelligence Operatives conducted surveillance together
with the MSU elements, your Honor.
Q. And this party believed there were weapons deposited in the
house of Miss Elizabeth Dimaano?
A. Yes, your Honor.
Q. And they so swore before the Municipal Trial Judge?
A. Yes, your Honor.
Q. But they did not mention to you, the applicant for the search
warrant, any other properties or contraband which could be found
in the residence of Miss Elizabeth Dimaano?
A. They just gave us still unconfirmed report about some hidden
items, for instance, the communications equipment and money.
However, I did not include that in the application for search
warrant considering that we have not established concrete evidence
about that. So when…
Q. So that when you applied for search warrant, you had reason to
believe that only weapons were in the house of Miss Elizabeth
Dimaano?
A. Yes, your Honor.50
pistols or other high powered firearms, but in the course of the
search the contents turned out to be money. So the team leader also
decided to take this considering that they believed that if they will
just leave the money behind, it might get lost also.
Q. That holds true also with respect to the other articles that were
seized by your raiding team, like Transfer Certificates of Title of
lands?
A. Yes, sir. I think they were contained in one of the vaults that
were opened.51
It is obvious from the testimony of Captain Sebastian that the
warrant did not include the monies, communications equipment,
jewelry and land titles that the raiding team confiscated. The search
warrant did not particularly describe these items and the raiding
team confiscated them on its own authority. The raiding team had
no legal basis to seize these items without showing that these items
could be the subject of warrantless search and seizure.52 Clearly,
the raiding team exceeded its authority when it seized these items.

xxx
Q. You stated that a .45 caliber pistol was seized along with one
armalite rifle M-16 and how many ammunition?
A. Forty, sir.
Q. And this became the subject of your complaint with the issuing
Court, with the fiscal’s office who charged Elizabeth Dimaano for
Illegal Possession of Firearms and Ammunition?
A. Yes, sir.
Q. Do you know what happened to that case?
A. I think it was dismissed, sir.
The seizure of these items was therefore void, and unless these
items are contraband per se,53 and they are not, they must be
returned to the person from whom the raiding seized them.
However, we do not declare that such person is the lawful owner of
these items, merely that the search and seizure warrant could not be
used as basis to seize and withhold these items from the possessor.
We thus hold that these items should be returned immediately to
Dimaano.
WHEREFORE, the petition for certiorari is DISMISSED. The
questioned Resolutions of the Sandiganbayan dated 18 November
1991 and 25 March 1992 in Civil Case No. 0037, remanding the
records of this case to the Ombudsman for such appropriate action
as the evidence may warrant, and referring this case to the
Commissioner of the Bureau of Internal Revenue for a
determination of any tax liability of respondent Elizabeth Dimaano,
are AFFIRMED.

SO ORDERED.
Q. In the fiscal’s office?

A. Yes, sir.

Q. Because the armalite rifle you seized, as well as the .45 caliber
pistol had a Memorandum Receipt in the name of Felino Melegrito,
is that not correct?

A. I think that was the reason, sir.

Q. There were other articles seized which were not included in the
search warrant, like for instance, jewelries. Why did you seize the
jewelries?

A. I think it was the decision of the overall team leader and his
assistant to bring along also the jewelries and other items, sir. I do
not really know where it was taken but they brought along also
these articles. I do not really know their reason for bringing the
same, but I just learned that these were taken because they might
get lost if they will just leave this behind.

xxx

Q. How about the money seized by your raiding team, they were
not also included in the search warrant?

A. Yes sir, but I believe they were also taken considering that the
money was discovered to be contained in attaché
cases.1âwphi1 These attaché cases were suspected to be containing
11 HRLAW 08281
G.R. No. 88211, September 15, 1989 Issue:

Marcos, petitioner 1. Whether or not, in the exercise of the powers granted by the
Constitution, the President may prohibit the Marcoses from
VS.
returning to the Philippines.
2. Whether or not the President acted arbitrarily or with grave
Manglapus, respondent (Part 1)
abuse of discretion amounting to lack or excess of jurisdiction
Facts: when she determined that the return of the Marcoses to the
Philippines poses a serious threat to national interest and
Former President Ferdinand E. Marcos was deposed from the welfare and decided to bar their return.

presidency via the non-violent “people power” revolution and was

Decision:
forced into exile. Marcos, in his deathbed, has signified his wish to

return to the Philippines to die. But President Corazon Aquino, No to both issues. Petition dismissed.
considering the dire consequences to the nation of his return at a
Ratio:
time when the stability of government is threatened from various

directions and the economy is just beginning to rise and move Separation of power dictates that each department has exclusive

forward, has stood firmly on the decision to bar the return of powers. According to Section 1, Article VII of the 1987 Philippine

Marcos and his family. Constitution, “the executive power shall be vested in the President

of the Philippines.” However, it does not define what is meant by

Aquino barred Marcos from returning due to possible threats &
“executive power” although in the same article it touches on
following supervening events:
exercise of certain powers by the President, i.e., the power of

1. failed Manila Hotel coup in 1986 led by Marcos leaders control over all executive departments, bureaus and offices, the
2. channel 7 taken over by rebels & loyalists power to execute the laws, the appointing power to grant reprieves,
3. plan of Marcoses to return w/ mercenaries aboard a chartered
commutations and pardons… (art VII secfs. 14-23). Although the
plane of a Lebanese arms dealer. This is to prove that they can
stir trouble from afar constitution outlines tasks of the president, this list is not defined &
4. Honasan’s failed coup exclusive. She has residual & discretionary powers not stated in the
5. Communist insurgency movements
Constitution which include the power to protect the general welfare
6. secessionist movements in Mindanao
7. devastated economy because of of the people. She is obliged to protect the people, promote their

welfare & advance national interest. (Art. II, Sec. 4-5 of the
1. accumulated foreign debt
Constitution). Residual powers, according to Theodore Roosevelt,
2. plunder of nation by Marcos & cronies
dictate that the President can do anything which is not forbidden in

Marcos filed for a petition of mandamus and prohibition to order the Constitution (Corwin, supra at 153), inevitable to vest

the respondents to issue them their travel documents and prevent discretionary powers on the President (Hyman, American

the implementation of President Aquino’s decision to bar Marcos President) and that the president has to maintain peace during times

from returning in the Philippines. Petitioner questions Aquino’s of emergency but also on the day-to-day operation of the State.

power to bar his return in the country. He also questioned the claim The rights Marcoses are invoking are not absolute. They’re flexible
of the President that the decision was made in the interest of depending on the circumstances. The request of the Marcoses to be
national security, public safety and health. Petitioner also claimed allowed to return to the Philippines cannot be considered in the
that the President acted outside her jurisdiction. light solely of the constitutional provisions guaranteeing liberty of

According to the Marcoses, such act deprives them of their right to abode and the right to travel, subject to certain exceptions, or of

life, liberty, property without due process and equal protection of case law which clearly never contemplated situations even

the laws. They also said that it deprives them of their right to travel remotely similar to the present one. It must be treated as a matter

which according to Section 6, Article 3 of the constitution, may that is appropriately addressed to those residual unstated powers of

only be impaired by a court order. the President which are implicit in and correlative to the paramount
12 HRLAW 08281

duty residing in that office to safeguard and protect general
welfare. In that context, such request or demand should submit to
the exercise of a broader discretion on the part of the President to
determine whether it must be granted or denied.
For issue number 2, the question for the court to determine is
absolute & unlimited all the time. It can’t be arbitrary &
irrational.
4. No proof that Marcos’ return would endanger national
security or public safety. Fears are speculative & military
admits that it’s under control. Filipinos would know how to
handle Marcos’ return.

whether or not there exist factual basis for the President to Padilla, Dissenting
conclude that it was in the national interest to bar the return of the
Sarmiento, Dissenting
Marcoses in the Philippines. It is proven that there are factual bases

in her decision. The supervening events that happened before her 1. President’s determination that Marcos’ return would threaten
decision are factual. The President must take preemptive measures national security should be agreed upon by the court. Such
threat must be clear & present.
for the self-preservation of the country & protection of the people.

She has to uphold the Constitution.

G.R. No. 88211, October 27, 1989

Fernan, Concurring Marcos, petitioner

1. The president’s power is not fixed. Limits would depend on VS.

the imperatives of events and not on abstract theories of law.
We are undergoing a critical time and the current problem can Manglapus, respondent (Part 2)
only be answerable by the President.
Facts:
2. Threat is real. Return of the Marcoses would pose a clear &
present danger. Thus, it’s the executive’s responsibility &
In its decision dated September 15, 1989, the Court by a vote of
obligation to prevent a grave & serious threat to its safety
from arising. eight to seven, dismissed the petition, after finding that the
3. We can’t sacrifice public peace, order, safety & our political President did not act arbitrarily or with grave abuse of discretion in
& economic gains to give in to Marcos’ wish to die in the
determining that the return of former President Marcos and his
country. Compassion must give way to the other state
interests. family pose a threat to national interest and welfare and in

prohibiting their return to the Philippines. On September 28, 1989,

Cruz, Dissenting Marcos died in Honolulu, Hawaii.

President Corazon Aquino issued a statement saying that in the

1. As a citizen of this country, it is Marcos’ right to return, live
& die in his own country. It is a right guaranteed by the
Consti to all individuals, whether patriot, homesick, prodigal,
tyrant, etc.
2. Military representatives failed to show that Marcos’ return
would pose a threat to national security. Fears were mere
conjectures.
3. Residual powers – but the executive’s powers were outlined
to limit her powers & not expand.
interest of the safety of those who will take the death of Marcos in
widely and passionately conflicting ways, and for the tranquility
and order of the state and society, she did not allow the remains of
Marcos to be brought back in the Philippines.
A motion for Reconsideration was filed by the petitioners raising
the following arguments:

1. Barring their return would deny them their inherent right as

Paras, Dissenting
citizens to return to their country of birth and all other rights
guaranteed by the Constitution to all Filipinos.
1. AFP has failed to prove danger which would allow State to
2. The President has no power to bar a Filipino from his own
impair Marcos’ right to return to the Philippines. .
country; if she has, she had exercised it arbitrarily.
2. Family can be put under house arrest & in the event that one
3. There is no basis for barring the return of the family of former
dies, he/she should be buried w/in 10 days.
President Marcos.
3. Untenable that without a legislation, right to travel is absolute
& state is powerless to restrict it. It’s w/in police power of the
state to restrict this right if national security, public Issue:
safety/health demands that such be restricted. It can’t be
13 HRLAW 08281
Whether or not the motion for reconsideration that the Marcoses be

allowed to return in the Philippines be granted.

Decision:

No. The Marcoses were not allowed to return. Motion for

Reconsideration denied because of lack of merit.

Ratio:

1. Petitioners failed to show any compelling reason to warrant

reconsideration.
2. Factual scenario during the time Court rendered its decision
has not changed. The threats to the government, to which the
return of the Marcoses has been viewed to provide a catalytic
effect, have not been shown to have ceased. Imelda Marcos
also called President Aquino “illegal” claiming that it is
Ferdinand Marcos who is the legal president.
3. President has unstated residual powers implied from grant of
executive power. Enumerations are merely for specifying
principal articles implied in the definition; leaving the rest to
flow from general grant that power, interpreted in conformity
with other parts of the Constitution (Hamilton). Executive
unlike Congress can exercise power from sources not
enumerates so long as not forbidden by constitutional text
(Myers vs. US). This does not amount to dictatorship.
Amendment No. 6 expressly granted Marcos power of
legislation whereas 1987 Constitution granted Aquino with
implied powers.
4. It is within Aquino’s power to protect & promote interest &
welfare of the people. She bound to comply w/ that duty and
there is no proof that she acted arbitrarily

14 HRLAW 08281
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 88211 September 15, 1989
FERDINAND E. MARCOS, IMELDA R. MARCOS,
FERDINAND R. MARCOS, JR., IRENE M. ARANETA,
IMEE MANOTOC, TOMAS MANOTOC, GREGORIO
ARANETA, PACIFICO E. MARCOS, NICANOR YÑIGUEZ
and PHILIPPINE CONSTITUTION ASSOCIATION
(PHILCONSA), represented by its President, CONRADO F.
ESTRELLA, petitioners,
vs.
HONORABLE RAUL MANGLAPUS, CATALINO
MACARAIG, SEDFREY ORDOÑEZ, MIRIAM DEFENSOR
SANTIAGO, FIDEL RAMOS, RENATO DE VILLA, in their
capacity as Secretary of Foreign Affairs, Executive Secretary,
Secretary of Justice, Immigration Commissioner, Secretary of
National Defense and Chief of Staff, respectively, respondents.
CORTES, J.:
Before the Court is a contreversy of grave national importance.
While ostensibly only legal issues are involved, the Court's
decision in this case would undeniably have a profound effect on
the political, economic and other aspects of national life.
We recall that in February 1986, Ferdinand E. Marcos was deposed
from the presidency via the non-violent "people power" revolution
and forced into exile. In his stead, Corazon C. Aquino was declared
President of the Republic under a revolutionary government. Her
ascension to and consilidation of power have not been
unchallenged. The failed Manila Hotel coup in 1986 led by
political leaders of Mr. Marcos, the takeover of television station
Channel 7 by rebel troops led by Col. Canlas with the support of
"Marcos loyalists" and the unseccessful plot of the Marcos spouses
to surreptitiously return from Hawii with mercenaries aboard an
aircraft chartered by a Lebanese arms dealer [Manila Bulletin,
January 30, 1987] awakened the nation to the capacity of the
Marcoses to stir trouble even from afar and to the fanaticism and
blind loyalty of their followers in the country. The ratification of
the 1987 Constitution enshrined the victory of "people power" and
also clearly reinforced the constitutional moorings of Mrs.
Aquino's presidency. This did not, however, stop bloody
challenges to the government. On August 28, 1987, Col. Gregorio
Honasan, one of the major players in the February Revolution, led
a failed coup that left scores of people, both combatants and
civilians, dead. There were several other armed sorties of lesser
significance, but the message they conveyed was the same — a
split in the ranks of the military establishment that thraetened
civilian supremacy over military and brought to the fore the
realization that civilian government could be at the mercy of a
fractious military.
But the armed threats to the Government were not only found in
misguided elements and among rabid followers of Mr. Marcos.
There are also the communist insurgency and the seccessionist
movement in Mindanao which gained ground during the rule of
Mr. Marcos, to the extent that the communists have set up a
parallel government of their own on the areas they effectively
control while the separatist are virtually free to move about in
armed bands. There has been no let up on this groups'
determination to wrest power from the govermnent. Not only
through resort to arms but also to through the use of propaganda
15 HRLAW 08281
have they been successful in dreating chaos and destabilizing the
country.
Nor are the woes of the Republic purely political. The accumulated
foreign debt and the plunder of the nation attributed to Mr. Marcos
and his cronies left the economy devastated. The efforts at
economic recovery, three years after Mrs. Aquino assumed office,
have yet to show concrete results in alleviating the poverty of the
masses, while the recovery of the ill-gotten wealth of the Marcoses
has remained elusive.
Now, Mr. Marcos, in his deathbed, has signified his wish to return
to the Philipppines to die. But Mrs. Aquino, considering the dire
consequences to the nation of his return at a time when the stability
of government is threatened from various directions and the
economy is just beginning to rise and move forward, has stood
firmly on the decision to bar the return of Mr. Marcos and his
family.
The Petition
This case is unique. It should not create a precedent, for the case of
a dictator forced out of office and into exile after causing twenty
years of political, economic and social havoc in the country and
who within the short space of three years seeks to return, is in a
class by itself.
This petition for mandamus and prohibition asks the Courts to
order the respondents to issue travel documents to Mr. Marcos and
the immediate members of his family and to enjoin the
implementation of the President's decision to bar their return to the
Philippines.
The Issue
Th issue is basically one of power: whether or not, in the exercise
of the powers granted by the Constitution, the President may
prohibit the Marcoses from returning to the Philippines.
According to the petitioners, the resolution of the case would
depend on the resolution of the following issues:
1. Does the President have the power to bar the
return of former President Marcos and family
to the Philippines?
a. Is this a political question?
2. Assuming that the President has the power to
bar former President Marcos and his family
from returning to the Philippines, in the interest
of "national security, public safety or public
health
a. Has the President made a finding that the
return of former President Marcos and his
family to the Philippines is a clear and present
danger to national security, public safety or
public health?
b. Assuming that she has made that finding
(1) Have the requirements
of due process been
complied with in making
such finding?
 (2) Has there been prior
notice to petitioners?
(3) Has there been a freedom of movement and residence within the
hearing?
(4) Assuming that notice
and hearing may be
dispensed with, has the
President's decision,
including the grounds upon
which it was based, been
made known to petitioners
so that they may controvert
the same?
c. Is the President's determination that the
return of former President Marcos and his
family to the Philippines is a clear and present
danger to national security, public safety, or
public health a political question?
d. Assuming that the Court may inquire as to
whether the return of former President Marcos
and his family is a clear and present danger to
national security, public safety, or public
health, have respondents established such fact?
3. Have the respondents, therefore, in
implementing the President's decision to bar
the return of former President Marcos and his
family, acted and would be acting without
jurisdiction, or in excess of jurisdiction, or with
grave abuse of discretion, in performing any
act which would effectively bar the return of
former President Marcos and his family to the
Philippines? [Memorandum for Petitioners, pp.
5-7; Rollo, pp. 234-236.1
The case for petitioners is founded on the assertion that the right of
the Marcoses to return to the Philippines is guaranteed under the
following provisions of the Bill of Rights, to wit:
Section 1. No person shall be deprived of life,
liberty, or property without due process of law,
nor shall any person be denied the equal
protection of the laws.
xxx xxx xxx
Section 6. The liberty of abode and of changing
the same within the limits prescribed by law
shall not be impaired except upon lawful order
of the court. Neither shall the right to travel be
impaired except in the interest of national
security, public safety, or public health, as may
be provided by law.
The petitioners contend that the President is without power to
impair the liberty of abode of the Marcoses because only a court
may do so "within the limits prescribed by law." Nor may the
President impair their right to travel because no law has authorized
her to do so. They advance the view that before the right to travel
may be impaired by any authority or agency of the government,
there must be legislation to that effect.
The petitioners further assert that under international law, the right
of Mr. Marcos and his family to return to the Philippines is
guaranteed.
16 HRLAW 08281
The Universal Declaration of Human Rights provides:
Article 13. (1) Everyone has the right to
borders of each state.
(2) Everyone has the right to leave any country,
including his own, and to return to his country.
Likewise, the International Covenant on Civil and Political Rights,
which had been ratified by the Philippines, provides:
Article 12
1) Everyone lawfully within the territory of a
State shall, within that territory, have the right
to liberty of movement and freedom to choose
his residence.
2) Everyone shall be free to leave any country,
including his own.
3) The above-mentioned rights shall not be
subject to any restrictions except those which
are provided by law, are necessary to protect
national security, public order (order public),
public health or morals or the rights and
freedoms of others, and are consistent with the
other rights recognized in the present
Covenant.
4) No one shall be arbitrarily deprived of the
right to enter his own country.
On the other hand, the respondents' principal argument is that the
issue in this case involves a political question which is non-
justiciable. According to the Solicitor General:
As petitioners couch it, the question involved is
simply whether or not petitioners Ferdinand E.
Marcos and his family have the right to travel
and liberty of abode. Petitioners invoke these
constitutional rights in vacuo without reference
to attendant circumstances.
Respondents submit that in its proper
formulation, the issue is whether or not
petitioners Ferdinand E. Marcos and family
have the right to return to the Philippines and
reside here at this time in the face of the
determination by the President that such return
and residence will endanger national security
and public safety.
It may be conceded that as formulated by
petitioners, the question is not a political
question as it involves merely a determination
of what the law provides on the matter and
application thereof to petitioners Ferdinand E.
Marcos and family. But when the question is
whether the two rights claimed by petitioners
Ferdinand E. Marcos and family impinge on or
collide with the more primordial and
transcendental right of the State to security and
safety of its nationals, the question becomes
political and this Honorable Court can not
consider it.
There are thus gradations to the question, to wit:
Do petitioners Ferdinand E. Marcos and family
have the right to return to the Philippines and
reestablish their residence here? This is clearly
a justiciable question which this Honorable
Court can decide.
Do petitioners Ferdinand E. Marcos and family
have their right to return to the Philippines and
reestablish their residence here even if their
return and residence here will endanger
national security and public safety? this is still
a justiciable question which this Honorable
Court can decide.
Is there danger to national security and public
safety if petitioners Ferdinand E. Marcos and
family shall return to the Philippines and
establish their residence here? This is now a
political question which this Honorable Court
can not decide for it falls within the exclusive
authority and competence of the President of
the Philippines. [Memorandum for
Respondents, pp. 9-11; Rollo, pp. 297-299.]
Respondents argue for the primacy of the right of the State to
national security over individual rights. In support thereof, they cite
Article II of the Constitution, to wit:
Section 4. The prime duty of the Government
is to serve and protect the people. The
Government may call upon the people to
defend the State and, in the fulfillment thereof,
all citizens may be required, under conditions
provided by law, to render personal, military,
or civil service.
Section 5. The maintenance of peace and order,
the protection of life, liberty, and property, and
the promotion of the general welfare are
essential for the enjoyment by all the people of
the blessings of democracy.
Respondents also point out that the decision to ban Mr. Marcos and
family from returning to the Philippines for reasons of national
security and public safety has international precedents. Rafael
Trujillo of the Dominican Republic, Anastacio Somoza Jr. of
Nicaragua, Jorge Ubico of Guatemala, Fulgencio batista of Cuba,
King Farouk of Egypt, Maximiliano Hernandez Martinez of El
Salvador, and Marcos Perez Jimenez of Venezuela were among the
deposed dictators whose return to their homelands was prevented
by their governments. [See Statement of Foreign Affairs Secretary
Raul S. Manglapus, quoted in Memorandum for Respondents, pp.
26-32; Rollo, pp. 314-319.]
The parties are in agreement that the underlying issue is one of the
scope of presidential power and its limits. We, however, view this
issue in a different light. Although we give due weight to the
parties' formulation of the issues, we are not bound by its narrow
confines in arriving at a solution to the controversy.
At the outset, we must state that it would not do to view the case
within the confines of the right to travel and the import of the
decisions of the U.S. Supreme Court in the leading cases of Kent v.
Dulles [357 U.S. 116, 78 SCt 1113, 2 L Ed. 2d 1204] and Haig v.
Agee [453 U.S. 280, 101 SCt 2766, 69 L Ed. 2d 640) which
affirmed the right to travel and recognized exceptions to the
exercise thereof, respectively.
17 HRLAW 08281
It must be emphasized that the individual right involved is not the
right to travel from the Philippines to other countries or within the
Philippines. These are what the right to travel would normally
connote. Essentially, the right involved is the right to return to
one's country, a totally distinct right under international law,
independent from although related to the right to travel. Thus, the
Universal Declaration of Humans Rights and the International
Covenant on Civil and Political Rights treat the right to freedom of
movement and abode within the territory of a state, the right to
leave a country, and the right to enter one's country as separate and
distinct rights. The Declaration speaks of the "right to freedom of
movement and residence within the borders of each state" [Art.
13(l)] separately from the "right to leave any country, including his
own, and to return to his country." [Art. 13(2).] On the other hand,
the Covenant guarantees the "right to liberty of movement and
freedom to choose his residence" [Art. 12(l)] and the right to "be
free to leave any country, including his own." [Art. 12(2)] which
rights may be restricted by such laws as "are necessary to protect
national security, public order, public health or morals or enter
qqqs own country" of which one cannot be "arbitrarily deprived."
[Art. 12(4).] It would therefore be inappropriate to construe the
limitations to the right to return to one's country in the same
context as those pertaining to the liberty of abode and the right to
travel.
The right to return to one's country is not among the rights
specifically guaranteed in the Bill of Rights, which treats only of
the liberty of abode and the right to travel, but it is our well-
considered view that the right to return may be considered, as a
generally accepted principle of international law and, under our
Constitution, is part of the law of the land [Art. II, Sec. 2 of the
Constitution.] However, it is distinct and separate from the right to
travel and enjoys a different protection under the International
Covenant of Civil and Political Rights, i.e., against being
"arbitrarily deprived" thereof [Art. 12 (4).]
Thus, the rulings in the cases Kent and Haig which refer to the
issuance of passports for the purpose of effectively exercising the
right to travel are not determinative of this case and are only
tangentially material insofar as they relate to a conflict between
executive action and the exercise of a protected right. The issue
before the Court is novel and without precedent in Philippine, and
even in American jurisprudence.
Consequently, resolution by the Court of the well-debated issue of
whether or not there can be limitations on the right to travel in the
absence of legislation to that effect is rendered unnecessary. An
appropriate case for its resolution will have to be awaited.
Having clarified the substance of the legal issue, we find now a
need to explain the methodology for its resolution. Our resolution
of the issue will involve a two-tiered approach. We shall first
resolve whether or not the President has the power under the
Constitution, to bar the Marcoses from returning to the Philippines.
Then, we shall determine, pursuant to the express power of the
Court under the Constitution in Article VIII, Section 1, whether or
not the President acted arbitrarily or with grave abuse of discretion
amounting to lack or excess of jurisdiction when she determined
that the return of the Marcose's to the Philippines poses a serious
threat to national interest and welfare and decided to bar their
return.
Executive Power
The 1987 Constitution has fully restored the separation of powers
of the three great branches of government. To recall the words of
Justice Laurel in Angara v. Electoral Commission [63 Phil. 139
(1936)], "the Constitution has blocked but with deft strokes and in
bold lines, allotment of power to the executive, the legislative and
the judicial departments of the government." [At 157.1 Thus, the
1987 Constitution explicitly provides that "[the legislative power
shall be vested in the Congress of the Philippines" Art VI, Sec. 11,
"[t]he executive power shall bevested in the President of the
Philippines" [Art. VII, Sec. 11, and "[te judicial power shall be
vested in one Supreme Court and in such lower courts as may be
established by law" [Art. VIII, Sec. 1.] These provisions not only
establish a separation of powers by actual division [Angara v.
Electoral Commission, supra] but also confer plenary legislative,
executive and judicial powers subject only to limitations provided
in the Constitution. For as the Supreme Court in Ocampo v.
Cabangis [15 Phil. 626 (1910)] pointed out "a grant of the
legislative power means a grant of all legislative power; and a grant
of the judicial power means a grant of all the judicial power which
may be exercised under the government." [At 631-632.1 If this can
be said of the legislative power which is exercised by two
chambers with a combined membership of more than two hundred
members and of the judicial power which is vested in a hierarchy
of courts, it can equally be said of the executive power which is
vested in one official the President.
As stated above, the Constitution provides that "[t]he executive
power shall be vested in the President of the Philippines." [Art.
VII, Sec. 1]. However, it does not define what is meant by
executive power" although in the same article it touches on the
exercise of certain powers by the President, i.e., the power of
control over all executive departments, bureaus and offices, the
power to execute the laws, the appointing power, the powers under
the commander-in-chief clause, the power to grant reprieves,
commutations and pardons, the power to grant amnesty with the
concurrence of Congress, the power to contract or guarantee
foreign loans, the power to enter into treaties or international
agreements, the power to submit the budget to Congress, and the
power to address Congress [Art. VII, Sec. 14-23].
The inevitable question then arises: by enumerating certain powers
of the President did the framers of the Constitution intend that the
President shall exercise those specific powers and no other? Are
these se enumerated powers the breadth and scope of "executive
power"? Petitioners advance the view that the President's powers
are limited to those specifically enumerated in the 1987
Constitution. Thus, they assert: "The President has enumerated
powers, and what is not enumerated is impliedly denied to
her. Inclusion unius est exclusio alterius[Memorandum for
Petitioners, p. 4- Rollo p. 233.1 This argument brings to mind the
institution of the U.S. Presidency after which ours is legally
patterned.**
Corwin, in his monumental volume on the President of the United
States grappled with the same problem. He said:
Article II is the most loosely drawn chapter of
the Constitution. To those who think that a
constitution ought to settle everything
beforehand it should be a nightmare; by the
same token, to those who think that
constitution makers ought to leave considerable
leeway for the future play of political forces, it
should be a vision realized.
We encounter this characteristic of Article 11
in its opening words: "The executive power
shall be vested in a President of the United
States of America." . . .. [The President: Office
and Powers, 17871957, pp. 3-4.]
Reviewing how the powers of the U.S. President were exercised by
the different persons who held the office from Washington to the
early 1900's, and the swing from the presidency by commission to
Lincoln's dictatorship, he concluded that "what the presidency is at
any particular moment depends in important measure on who is
President." [At 30.]
18 HRLAW 08281
This view is shared by Schlesinger who wrote in The Imperial
Presidency:
For the American Presidency was a peculiarly
personal institution. it remained of course, an
agency of government subject to unvarying
demands and duties no remained, of cas
President. But, more than most agencies of
government, it changed shape, intensity and
ethos according to the man in charge. Each
President's distinctive temperament and
character, his values, standards, style, his
habits, expectations, Idiosyncrasies,
compulsions, phobias recast the WhiteHouse
and pervaded the entire government. The
executive branch, said Clark Clifford, was a
chameleon, taking its color from the character
and personality of the President. The thrust of
the office, its impact on the constitutional
order, therefore altered from President to
President. Above all, the way each President
understood it as his personal obligation to
inform and involve the Congress, to earn and
hold the confidence of the electorate and to
render an accounting to the nation and posterity
determined whether he strengthened or
weakened the constitutional order. [At 212-
213.]
We do not say that the presidency is what Mrs. Aquino says it is or
what she does but, rather, that the consideration of tradition and the
development of presidential power under the different constitutions
are essential for a complete understanding of the extent of and
limitations to the President's powers under the 1987 Constitution.
The 1935 Constitution created a strong President with explicitly
broader powers than the U.S. President. The 1973 Constitution
attempted to modify the system of government into the
parliamentary type, with the President as a mere figurehead, but
through numerous amendments, the President became even more
powerful, to the point that he was also the de facto Legislature. The
1987 Constitution, however, brought back the presidential system
of government and restored the separation of legislative, executive
and judicial powers by their actual distribution among three distinct
branches of government with provision for checks and balances.
It would not be accurate, however, to state that "executive power"
is the power to enforce the laws, for the President is head of state
as well as head of government and whatever powers inhere in such
positions pertain to the office unless the Constitution itself
withholds it. Furthermore, the Constitution itself provides that the
execution of the laws is only one of the powers of the President. It
also grants the President other powers that do not involve the
execution of any provision of law, e.g., his power over the
country's foreign relations.
On these premises, we hold the view that although the 1987
Constitution imposes limitations on the exercise of specific powers
of the President, it maintains intact what is traditionally considered
as within the scope of "executive power." Corollarily, the powers
of the President cannot be said to be limited only to the specific
powers enumerated in the Constitution. In other words, executive
power is more than the sum of specific powers so enumerated,
It has been advanced that whatever power inherent in the
government that is neither legislative nor judicial has to be
executive. Thus, in the landmark decision of Springer v.
Government of the Philippine Islands, 277 U.S. 189 (1928), on the
issue of who between the Governor-General of the Philippines and
the Legislature may vote the shares of stock held by the
Government to elect directors in the National Coal Company and
the Philippine National Bank, the U.S. Supreme Court, in
upholding the power of the Governor-General to do so, said:
...Here the members of the legislature who
constitute a majority of the "board" and
"committee" respectively, are not charged with
the performance of any legislative functions or
with the doing of anything which is in aid of
performance of any such functions by the
legislature. Putting aside for the moment the
question whether the duties devolved upon
these members are vested by the Organic Act
in the Governor-General, it is clear that they
are not legislative in character, and still more
clear that they are not judicial. The fact that
they do not fall within the authority of either of
these two constitutes logical ground for
concluding that they do fall within that of the
remaining one among which the powers of
government are divided ....[At 202-203;
Emphasis supplied.]
We are not unmindful of Justice Holmes' strong dissent. But in his
enduring words of dissent we find reinforcement for the view that
it would indeed be a folly to construe the powers of a branch of
government to embrace only what are specifically mentioned in the
Constitution:
The great ordinances of the Constitution do not
establish and divide fields of black and white.
Even the more specific of them are found to
terminate in a penumbra shading gradually
from one extreme to the other. ....
xxx xxx xxx
It does not seem to need argument to show that
however we may disguise it by veiling words
we do not and cannot carry out the distinction
between legislative and executive action with
mathematical precision and divide the branches
into watertight compartments, were it ever so
desirable to do so, which I am far from
believing that it is, or that the Constitution
requires. [At 210- 211.]
The Power Involved
The Constitution declares among the guiding principles that "[t]he
prime duty of theGovernment is to serve and protect the people"
and that "[t]he maintenance of peace and order,the protection of
life, liberty, and property, and the promotion of the general welfare
are essential for the enjoyment by all the people of the blessings of
democracy." [Art. II, Secs. 4 and 5.]
Admittedly, service and protection of the people, the maintenance
of peace and order, the protection of life, liberty and property, and
the promotion of the general welfare are essentially ideals to guide
governmental action. But such does not mean that they are empty
words. Thus, in the exercise of presidential functions, in drawing a
plan of government, and in directing implementing action for these
plans, or from another point of view, in making any decision as
President of the Republic, the President has to consider these
principles, among other things, and adhere to them.
Faced with the problem of whether or not the time is right to allow
the Marcoses to return to the Philippines, the President is, under the
Constitution, constrained to consider these basic principles in
arriving at a decision. More than that, having sworn to defend and
uphold the Constitution, the President has the obligation under the
19 HRLAW 08281
Constitution to protect the people, promote their welfare and
advance the national interest. It must be borne in mind that the
Constitution, aside from being an allocation of power is also a
social contract whereby the people have surrendered their
sovereign powers to the State for the common good. Hence, lest the
officers of the Government exercising the powers delegated by the
people forget and the servants of the people become rulers, the
Constitution reminds everyone that "[s]overeignty resides in the
people and all government authority emanates from them." [Art. II,
Sec. 1.]
The resolution of the problem is made difficult because the persons
who seek to return to the country are the deposed dictator and his
family at whose door the travails of the country are laid and from
whom billions of dollars believed to be ill-gotten wealth are sought
to be recovered. The constitutional guarantees they invoke are
neither absolute nor inflexible. For the exercise of even the
preferred freedoms of speech and ofexpression, although couched
in absolute terms, admits of limits and must be adjusted to the
requirements of equally important public interests [Zaldivar v.
Sandiganbayan, G.R. Nos. 79690-707, October 7, 1981.]
To the President, the problem is one of balancing the general
welfare and the common good against the exercise of rights of
certain individuals. The power involved is the President's residual
power to protect the general welfare of the people. It is founded on
the duty of the President, as steward of the people. To paraphrase
Theodore Roosevelt, it is not only the power of the President but
also his duty to do anything not forbidden by the Constitution or
the laws that the needs of the nation demand [See Corwin, supra, at
153]. It is a power borne by the President's duty to preserve and
defend the Constitution. It also may be viewed as a power implicit
in the President's duty to take care that the laws are faithfully
executed [see Hyman, The American President, where the author
advances the view that an allowance of discretionary power is
unavoidable in any government and is best lodged in the
President].
More particularly, this case calls for the exercise of the President's
powers as protector of the peace. Rossiter The American
Presidency].The power of the President to keep the peace is not
limited merely to exercising the commander-in-chief powers in
times of emergency or to leading the State against external and
internal threats to its existence. The President is not only clothed
with extraordinary powers in times of emergency, but is also tasked
with attending to the day-to-day problems of maintaining peace
and order and ensuring domestic tranquility in times when no
foreign foe appears on the horizon. Wide discretion, within the
bounds of law, in fulfilling presidential duties in times of peace is
not in any way diminished by the relative want of an emergency
specified in the commander-in-chief provision. For in making the
President commander-in-chief the enumeration of powers that
follow cannot be said to exclude the President's exercising as
Commander-in- Chief powers short of the calling of the armed
forces, or suspending the privilege of the writ of habeas corpus or
declaring martial law, in order to keep the peace, and maintain
public order and security.
That the President has the power under the Constitution to bar the
Marcose's from returning has been recognized by memembers of
the Legislature, and is manifested by the Resolution proposed in
the House of Representatives and signed by 103 of its members
urging the President to allow Mr. Marcos to return to the
Philippines "as a genuine unselfish gesture for true national
reconciliation and as irrevocable proof of our collective adherence
to uncompromising respect for human rights under the Constitution
and our laws." [House Resolution No. 1342, Rollo, p. 321.1 The
Resolution does not question the President's power to bar the
Marcoses from returning to the Philippines, rather, it appeals to the
President's sense of compassion to allow a man to come home to
die in his country.
What we are saying in effect is that the request or demand of the
Marcoses to be allowed to return to the Philippines cannot be
considered in the light solely of the constitutional provisions
guaranteeing liberty of abode and the right to travel, subject to
certain exceptions, or of case law which clearly never
contemplated situations even remotely similar to the present one. It
must be treated as a matter that is appropriately addressed to those
residual unstated powers of the President which are implicit in and
correlative to the paramount duty residing in that office to
safeguard and protect general welfare. In that context, such request
or demand should submit to the exercise of a broader discretion on
the part of the President to determine whether it must be granted or
denied.
The Extent of Review
Under the Constitution, judicial power includes the duty to
determine whether or not there has been a grave abuse of discretion
amounting to lack or excess of jurisdiction on the part of any
branch or instrumentality of the Government." [Art. VIII, Sec. 1]
Given this wording, we cannot agree with the Solicitor General that
the issue constitutes a political question which is beyond the
jurisdiction of the Court to decide.
The present Constitution limits resort to the political question
doctrine and broadens the scope of judicial inquiry into areas
which the Court, under previous constitutions, would have
normally left to the political departments to decide. But
nonetheless there remain issues beyond the Court's jurisdiction the
determination of which is exclusively for the President, for
Congress or for the people themselves through a plebiscite or
referendum. We cannot, for example, question the President's
recognition of a foreign government, no matter how premature or
improvident such action may appear. We cannot set aside a
presidential pardon though it may appear to us that the beneficiary
is totally undeserving of the grant. Nor can we amend the
Constitution under the guise of resolving a dispute brought before
us because the power is reserved to the people.
There is nothing in the case before us that precludes our
determination thereof on the political question doctrine. The
deliberations of the Constitutional Commission cited by petitioners
show that the framers intended to widen the scope of judicial
review but they did not intend courts of justice to settle all actual
controversies before them. When political questions are involved,
the Constitution limits the determination to whether or not there
has been a grave abuse of discretion amounting to lack or excess of
jurisdiction on the part of the official whose action is being
questioned. If grave abuse is not established, the Court will not
substitute its judgment for that of the official concerned and decide
a matter which by its nature or by law is for the latter alone to
decide. In this light, it would appear clear that the second
paragraph of Article VIII, Section 1 of the Constitution, defining
"judicial power," which specifically empowers the courts to
determine whether or not there has been a grave abuse of discretion
on the part of any branch or instrumentality of the government,
incorporates in the fundamental law the ruling in Lansang v.
Garcia [G.R. No. L-33964, December 11, 1971, 42 SCRA 4481
that:]
Article VII of the [1935] Constitution vests in
the Executive the power to suspend the
privilege of the writ of habeas corpus under
specified conditions. Pursuant to the principle
of separation of powers underlying our system
of government, the Executive is supreme
within his own sphere. However, the separation
of powers, under the Constitution, is not
absolute. What is more, it goes hand in hand
with the system of checks and balances, under
which the Executive is supreme, as regards the
20 HRLAW 08281
suspension of the privilege, but only if and
when he acts within the sphere alloted to him
by the Basic Law, and the authority to
determine whether or not he has so acted is
vested in the Judicial Department, which, in
this respect, is, in turn, constitutionally
supreme. In the exercise of such authority, the
function of the Court is merely to check — not
to supplant the Executive, or to ascertain
merely whether he has gone beyond the
constitutional limits of his jurisdiction, not to
exercise the power vested in him or to
determine the wisdom of his act [At 479-480.]
Accordingly, the question for the Court to determine is whether or
not there exist factual bases for the President to conclude that it
was in the national interest to bar the return of the Marcoses to the
Philippines. If such postulates do exist, it cannot be said that she
has acted, or acts, arbitrarily or that she has gravely abused her
discretion in deciding to bar their return.
We find that from the pleadings filed by the parties, from their oral
arguments, and the facts revealed during the briefing in chambers
by the Chief of Staff of the Armed Forces of the Philippines and
the National Security Adviser, wherein petitioners and respondents
were represented, there exist factual bases for the President's
decision..
The Court cannot close its eyes to present realities and pretend that
the country is not besieged from within by a well-organized
communist insurgency, a separatist movement in Mindanao,
rightist conspiracies to grab power, urban terrorism, the murder
with impunity of military men, police officers and civilian officials,
to mention only a few. The documented history of the efforts of the
Marcose's and their followers to destabilize the country, as earlier
narrated in this ponencia bolsters the conclusion that the return of
the Marcoses at this time would only exacerbate and intensify the
violence directed against the State and instigate more chaos.
As divergent and discordant forces, the enemies of the State may
be contained. The military establishment has given assurances that
it could handle the threats posed by particular groups. But it is
the catalytic effect of the return of the Marcoses that may prove to
be the proverbial final straw that would break the camel's back.
With these before her, the President cannot be said to have acted
arbitrarily and capriciously and whimsically in determining that the
return of the Marcoses poses a serious threat to the national interest
and welfare and in prohibiting their return.
It will not do to argue that if the return of the Marcoses to the
Philippines will cause the escalation of violence against the State,
that would be the time for the President to step in and exercise the
commander-in-chief powers granted her by the Constitution to
suppress or stamp out such violence. The State, acting through the
Government, is not precluded from taking pre- emptive action
against threats to its existence if, though still nascent they are
perceived as apt to become serious and direct. Protection of the
people is the essence of the duty of government. The preservation
of the State the fruition of the people's sovereignty is an obligation
in the highest order. The President, sworn to preserve and defend
the Constitution and to see the faithful execution the laws, cannot
shirk from that responsibility.
We cannot also lose sight of the fact that the country is only now
beginning to recover from the hardships brought about by the
plunder of the economy attributed to the Marcoses and their close
associates and relatives, many of whom are still here in the
Philippines in a position to destabilize the country, while the
Government has barely scratched the surface, so to speak, in its
efforts to recover the enormous wealth stashed away by the
Marcoses in foreign jurisdictions. Then, We cannot ignore the
continually increasing burden imposed on the economy by the
excessive foreign borrowing during the Marcos regime, which
stifles and stagnates development and is one of the root causes of
widespread poverty and all its attendant ills. The resulting
precarious state of our economy is of common knowledge and is
easily within the ambit of judicial notice.

The President has determined that the destabilization caused by the

return of the Marcoses would wipe away the gains achieved during
the past few years and lead to total economic collapse. Given what
is within our individual and common knowledge of the state of the
economy, we cannot argue with that determination.

WHEREFORE, and it being our well-considered opinion that the

President did not act arbitrarily or with grave abuse of discretion in
determining that the return of former President Marcos and his
family at the present time and under present circumstances poses a
serious threat to national interest and welfare and in prohibiting
their return to the Philippines, the instant petition is hereby
DISMISSED.

SO ORDERED.

21 HRLAW 08281
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 88211 October 27, 1989
FERDINAND E. MARCOS, IMELDA R. MARCOS,
FERDINAND R. MARCOS. JR., IRENE M. ARANETA,
IMEE M. MANOTOC, TOMAS MANOTOC, GREGORIO
ARANETA, PACIFICO E. MARCOS, NICANOR YÑIGUEZ
and PHILIPPINE CONSTITUTION ASSOCIATION
(PHILCONSA), represented by its President, CONRADO F.
ESTRELLA, petitioners,
vs.
HONORABLE RAUL MANGLAPUS, CATALINO
MACARAIG, SEDFREY ORDOÑEZ, MIRIAM DEFENSOR
SANTIAGO, FIDEL RAMOS, RENATO DE VILLA, in their
capacity as Secretary of Foreign Affairs, Executive Secretary,
Secretary of Justice, Immigration Commissioner, Secretary of
National Defense and Chief of Staff, respectively, respondents.
RESOLUTION
EN BANC:
In its decision dated September 15,1989, the Court, by a vote of
eight (8) to seven (7), dismissed the petition, after finding that the
President did not act arbitrarily or with grave abuse of discretion in
determining that the return of former President Marcos and his
family at the present time and under present circumstances pose a
threat to national interest and welfare and in prohibiting their return
to the Philippines. On September 28, 1989, former President
Marcos died in Honolulu, Hawaii. In a statement, President Aquino
said:
In the interest of the safety of those who will
take the death of Mr. Marcos in widely and
passionately conflicting ways, and for the
tranquility of the state and order of society, the
remains of Ferdinand E. Marcos will not be
allowed to be brought to our country until such
time as the government, be it under this
administration or the succeeding one, shall
otherwise decide. [Motion for Reconsideration,
p. 1; Rollo, p, 443.]
On October 2, 1989, a Motion for Reconsideration was filed by
petitioners, raising the following major arguments:
1. to bar former President Marcos and his family from returning to
the Philippines is to deny them not only the inherent right of
citizens to return to their country of birth but also the protection of
the Constitution and all of the rights guaranteed to Filipinos under
the Constitution;
2. the President has no power to bar a Filipino from his own
country; if she has, she had exercised it arbitrarily; and
3. there is no basis for barring the return of the family of former
President Marcos. Thus, petitioners prayed that the Court
reconsider its decision, order respondents to issue the necessary
travel documents to enable Mrs. Imelda R. Marcos, Ferdinand R.
Marcos, Jr., Irene M. Araneta, Imee M. Manotoc, Tommy Manotoc
and Gregorio Araneta to return to the Philippines, and enjoin
respondents from implementing President Aquino's decision to bar
22 HRLAW 08281
the return of the remains of Mr. Marcos, and the other petitioners,
to the Philippines.
Commenting on the motion for reconsideration, the Solicitor
General argued that the motion for reconsideration is moot and
academic as to the deceased Mr. Marcos. Moreover, he asserts that
"the 'formal' rights being invoked by the Marcoses under the label
'right to return', including the label 'return of Marcos' remains, is in
reality or substance a 'right' to destabilize the country, a 'right' to
hide the Marcoses' incessant shadowy orchestrated efforts at
destabilization." [Comment, p. 29.] Thus, he prays that the Motion
for Reconsideration be denied for lack of merit.
We deny the motion for reconsideration.
1. It must be emphasized that as in all motions for reconsideration,
the burden is upon the movants, petitioner herein, to show that
there are compelling reasons to reconsider the decision of the
Court.
2. After a thorough consideration of the matters raised in the
motion for reconsideration, the Court is of the view that no
compelling reasons have been established by petitioners to warrant
a reconsideration of the Court's decision.
The death of Mr. Marcos, although it may be viewed as a
supervening event, has not changed the factual scenario under
which the Court's decision was rendered. The threats to the
government, to which the return of the Marcoses has been viewed
to provide a catalytic effect, have not been shown to have ceased.
On the contrary, instead of erasing fears as to the destabilization
that will be caused by the return of the Marcoses, Mrs. Marcos
reinforced the basis for the decision to bar their return when she
called President Aquino "illegal," claiming that it is Mr. Marcos,
not Mrs. Aquino, who is the "legal" President of the Philippines,
and declared that the matter "should be brought to all the courts of
the world." [Comment, p. 1; Philippine Star, October 4, 1989.]
3. Contrary to petitioners' view, it cannot be denied that the
President, upon whom executive power is vested, has unstated
residual powers which are implied from the grant of executive
power and which are necessary for her to comply with her duties
under the Constitution. The powers of the President are not limited
to what are expressly enumerated in the article on the Executive
Department and in scattered provisions of the Constitution. This is
so, notwithstanding the avowed intent of the members of the
Constitutional Commission of 1986 to limit the powers of the
President as a reaction to the abuses under the regime of Mr.
Marcos, for the result was a limitation of specific power of the
President, particularly those relating to the commander-in-chief
clause, but not a diminution of the general grant of executive
power.
That the President has powers other than those expressly stated in
the Constitution is nothing new. This is recognized under the U.S.
Constitution from which we have patterned the distribution of
governmental powers among three (3) separate branches.
Article II, [section] 1, provides that "The
Executive Power shall be vested in a President
of the United States of America." In Alexander
Hamilton's widely accepted view, this
statement cannot be read as mere shorthand for
the specific executive authorizations that
follow it in [sections] 2 and 3. Hamilton
stressed the difference between the sweeping
language of article II, section 1, and the
conditional language of article I, [section] 1:
"All legislative Powers herein granted shall be
vested in a Congress of the United States . . ."
 Hamilton submitted that "[t]he [article III
enumeration [in sections 2 and 31 ought
therefore to be considered, as intended merely
to specify the principal articles implied in the
definition of execution power; leaving the rest
to flow from the general grant of that power,
interpreted in confomity with other parts of the
Constitution...

In Myers v. United States, the Supreme Court

— accepted Hamilton's proposition,
concluding that the federal executive, unlike
the Congress, could exercise power from
sources not enumerated, so long as not
forbidden by the constitutional text: the
executive power was given in general terms,
strengthened by specific terms where emphasis
was regarded as appropriate, and was limited
by direct expressions where limitation was
needed. . ." The language of Chief Justice Taft
in Myers makes clear that the constitutional
concept of inherent power is not a synonym for
power without limit; rather, the concept
suggests only that not all powers granted in the
Constitution are themselves exhausted by
internal enumeration, so that, within a sphere
properly regarded as one of "executive' power,
authority is implied unless there or elsewhere
expressly limited. [TRIBE, AMERICAN
CONSTITUTIONAL LAW 158-159 (1978).]

And neither can we subscribe to the view that a recognition of the

President's implied or residual powers is tantamount to setting the
stage for another dictatorship. Despite petitioners' strained analogy,
the residual powers of the President under the Constitution should
not be confused with the power of the President under the 1973
Constitution to legislate pursuant to Amendment No. 6 which
provides:

Whenever in the judgment of the President

(Prime Minister), there exists a grave
emergency or a threat or imminence thereof, or
whenever the interim Batasang Pambansa or
the regular National Assembly fails or is
unable to act adequately on any matter for any
reason that in his judgment requires immediate
action, he may, in order to meet the exigency,
issue the necessary decrees, orders, or letters of
instruction, which shall form part of the law of
the land,

There is no similarity between the residual powers of the President

under the 1987 Constitution and the power of the President under
the 1973 Constitution pursuant to Amendment No. 6. First of all,
Amendment No. 6 refers to an express grant of power. It is not
implied. Then, Amendment No. 6 refers to a grant to the President
of the specific power of legislation.

4. Among the duties of the President under the Constitution, in

compliance with his (or her) oath of office, is to protect and
promote the interest and welfare of the people. Her decision to bar
the return of the Marcoses and subsequently, the remains of Mr.
Marcos at the present time and under present circumstances is in
compliance with this bounden duty. In the absence of a clear
showing that she had acted with arbitrariness or with grave abuse
of discretion in arriving at this decision, the Court will not enjoin
the implementation of this decision.

ACCORDINGLY, the Court resolved to DENY the Motion for

Reconsideration for lack of merit."

23 HRLAW 08281
People v. Marti, G.R. No. 81561, 193 SCRA 57, January 18,
1991

"Package of marijuana to be sent abroad"

The Bill of Rights embodied in the Constitution is not meant to be

invoked against acts of private individuals.
It’s a restraint directed only against the government and its
agencies tasked with the enforcement of the law.
It could only be invoked against the State to whom the restraint is
imposed.

 Andre Marti and his wife Shirley wanted to send

packages to their friend in Switzerland and contracted the services
of Manila Packing and Export Forwarders.
 When asked by the forwarder if they could examine and
inspect the packages, Marti refused, assuring that the packages
simply contained books and cigars.
 However, the proprietor opened the boxes for final
inspection as part of their SOP. Upon opening, they suspected that
the contents were illegal drugs.
 The proprietor reported the incident to NBI which
confirmed that the suspected content were marijuana.
 In the presence of the NBI agents, the boxes were opened
and found dried marijuana leaves inside.
 After Marti was traced by NBI, he was charged with
violation of the Dangerous Drugs Act.
 Marti assailed the admissibility of the drugs as evidence
against him, which, according to him, is obtained in violation of his
constitutional rights against unreasonable search and seizure and
privacy of communication.
May an act of a private individual, allegedly in violation of
appellant's constitutional rights, be invoked against the State?
NO.
 The Court ruled that in the absence of governmental
interference, the liberties granted by the Constitution cannot be
invoked against the State. The constitutional right against
unreasonable search and seizure refers to the immunity of one's
person, whether citizen or alien, from interference by government.
Its protection is directed only to governmental action.
 This right do not require exclusion of evidence obtained
through a search by a private citizen.
 In this case, the evidence was primarily discovered and
obtained by a private person, acting in a private capacity and
without the intervention of State authorities. Therefore, there is no
reason why it should not be admitted to prosecute him.
 Marti, however, alleged that the NBI agents made an
illegal search and seizure of the evidence.
 The Court pointed out that: a) It was the proprietor who
made a reasonable search of the packages in compliance with SOP
AND b) the mere presence of the NBI agents did not convert the
reasonable search effected into a warrantless search and seizure.
Merely to observe and look at that which is in plain sight is not a
search.
 Marti further argued that since the Constitution expressly
declares as inadmissible any evidence obtained in violation of the
constitutional prohibition against illegal search and seizure, it
matters not whether the evidence was procured by police
authorities or private individuals.
 The Court answered that the Constitution, in laying down
the principles of the government and fundamental liberties of the
people, does not govern relationships between individuals.

Additional notes:
When a private individual violates another person’s right to
privacy, the evidence obtained therefrom is admissible; howeve

24 HRLAW 08281
G.R. No. 81561 January 18, 1991
PEOPLE OF THE PHILIPPINES, plaintiff-appellee
vs.
ANDRE MARTI, accused-appellant.
The Solicitor General for plaintiff-appellee.
Reynaldo B. Tatoy and Abelardo E. Rogacion for accused-
appellant.
BIDIN, J.:
This is an appeal from a decision * rendered by the Special
Criminal Court of Manila (Regional Trial Court, Branch XLIX)
convicting accused-appellant of violation of Section 21 (b), Article
IV in relation to Section 4, Article 11 and Section 2 (e) (i), Article
1 of Republic Act 6425, as amended, otherwise known as the
Dangerous Drugs Act.
The facts as summarized in the brief of the prosecution are as
follows:
On August 14, 1987, between 10:00 and 11:00 a.m., the
appellant and his common-law wife, Shirley Reyes, went
to the booth of the "Manila Packing and Export
Forwarders" in the Pistang Pilipino Complex, Ermita,
Manila, carrying with them four (4) gift wrapped
packages. Anita Reyes (the proprietress and no relation
to Shirley Reyes) attended to them. The appellant
informed Anita Reyes that he was sending the packages
to a friend in Zurich, Switzerland. Appellant filled up the
contract necessary for the transaction, writing therein his
name, passport number, the date of shipment and the
name and address of the consignee, namely, "WALTER
FIERZ, Mattacketr II, 8052 Zurich, Switzerland"
(Decision, p. 6)
Anita Reyes then asked the appellant if she could
examine and inspect the packages. Appellant, however,
refused, assuring her that the packages simply contained
books, cigars, and gloves and were gifts to his friend in
Zurich. In view of appellant's representation, Anita
Reyes no longer insisted on inspecting the packages. The
four (4) packages were then placed inside a brown
corrugated box one by two feet in size (1' x 2'). Styro-
foam was placed at the bottom and on top of the
packages before the box was sealed with masking tape,
thus making the box ready for shipment (Decision, p. 8).
Before delivery of appellant's box to the Bureau of
Customs and/or Bureau of Posts, Mr. Job Reyes
(proprietor) and husband of Anita (Reyes), following
standard operating procedure, opened the boxes for final
inspection. When he opened appellant's box, a peculiar
odor emitted therefrom. His curiousity aroused, he
squeezed one of the bundles allegedly containing gloves
and felt dried leaves inside. Opening one of the bundles,
he pulled out a cellophane wrapper protruding from the
opening of one of the gloves. He made an opening on one
of the cellophane wrappers and took several grams of the
contents thereof (tsn, pp. 29-30, October 6, 1987;
Emphasis supplied).
Job Reyes forthwith prepared a letter reporting the
shipment to the NBI and requesting a laboratory
25 HRLAW 08281
examination of the samples he extracted from the
cellophane wrapper (tsn, pp. 5-6, October 6, 1987).
He brought the letter and a sample of appellant's
shipment to the Narcotics Section of the National Bureau
of Investigation (NBI), at about 1:30 o'clock in the
afternoon of that date, i.e., August 14, 1987. He was
interviewed by the Chief of Narcotics Section. Job Reyes
informed the NBI that the rest of the shipment was still in
his office. Therefore, Job Reyes and three (3) NBI
agents, and a photographer, went to the Reyes' office at
Ermita, Manila (tsn, p. 30, October 6, 1987).
Job Reyes brought out the box in which appellant's
packages were placed and, in the presence of the NBI
agents, opened the top flaps, removed the styro-foam and
took out the cellophane wrappers from inside the
gloves. Dried marijuana leaves were found to have been
contained inside the cellophane wrappers (tsn, p. 38,
October 6, 1987; Emphasis supplied).
The package which allegedly contained books was
likewise opened by Job Reyes. He discovered that the
package contained bricks or cake-like dried marijuana
leaves. The package which allegedly contained
tabacalera cigars was also opened. It turned out that dried
marijuana leaves were neatly stocked underneath the
cigars (tsn, p. 39, October 6, 1987).
The NBI agents made an inventory and took charge of
the box and of the contents thereof, after signing a
"Receipt" acknowledging custody of the said effects (tsn,
pp. 2-3, October 7, 1987).
Thereupon, the NBI agents tried to locate appellant but to no avail.
Appellant's stated address in his passport being the Manila Central
Post Office, the agents requested assistance from the latter's Chief
Security. On August 27, 1987, appellant, while claiming his mail at
the Central Post Office, was invited by the NBI to shed light on the
attempted shipment of the seized dried leaves. On the same day the
Narcotics Section of the NBI submitted the dried leaves to the
Forensic Chemistry Section for laboratory examination. It turned
out that the dried leaves were marijuana flowering tops as certified
by the forensic chemist. (Appellee's Brief, pp. 9-11, Rollo, pp. 132-
134).
Thereafter, an Information was filed against appellant for violation
of RA 6425, otherwise known as the Dangerous Drugs Act.
After trial, the court a quo rendered the assailed decision.
In this appeal, accused/appellant assigns the following errors, to
wit:
THE LOWER COURT ERRED IN ADMITTING IN
EVIDENCE THE ILLEGALLY SEARCHED AND
SEIZED OBJECTS CONTAINED IN THE FOUR
PARCELS.
THE LOWER COURT ERRED IN CONVICTING
APPELLANT DESPITE THE UNDISPUTED FACT
THAT HIS RIGHTS UNDER THE CONSTITUTION
WHILE UNDER CUSTODIAL PROCEEDINGS WERE
NOT OBSERVED.
THE LOWER COURT ERRED IN NOT GIVING
CREDENCE TO THE EXPLANATION OF THE
APPELLANT ON HOW THE FOUR PARCELS CAME
 INTO HIS POSSESSION (Appellant's Brief, p. 1; Rollo,
p. 55)
1. Appellant contends that the evidence subject of the imputed
offense had been obtained in violation of his constitutional rights
against unreasonable search and seizure and privacy of
communication (Sec. 2 and 3, Art. III, Constitution) and therefore
argues that the same should be held inadmissible in evidence (Sec.
3 (2), Art. III).
Sections 2 and 3, Article III of the Constitution provide:
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.
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.
(2) Any evidence obtained in violation of this or the
preceding section shall be inadmissible for any purpose
in any proceeding.
Our present constitutional provision on the guarantee against
unreasonable search and seizure had its origin in the 1935 Charter
which, worded as follows:
The right of the people to be secure in their persons,
houses, papers and effects against unreasonable searches
and seizures shall not be violated, and no warrants shall
issue but upon probable cause, to be determined 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. (Sec. 1 [3], Article III)
was in turn derived almost verbatim from the Fourth
Amendment ** to the United States Constitution. As such, the
Court may turn to the pronouncements of the United States Federal
Supreme Court and State Appellate Courts which are considered
doctrinal in this jurisdiction.
Thus, following the exclusionary rule laid down in Mapp v. Ohio
by the US Federal Supreme Court (367 US 643, 81 S.Ct. 1684, 6
L.Ed. 1081 [1961]), this Court, in Stonehill v. Diokno (20 SCRA
383 [1967]), declared as inadmissible any evidence obtained by
virtue of a defective search and seizure warrant, abandoning in the
process the ruling earlier adopted in Moncado v. People's
Court (80 Phil. 1 [1948]) wherein the admissibility of evidence was
not affected by the illegality of its seizure. The 1973 Charter (Sec.
4 [2], Art. IV) constitutionalized the Stonehill ruling and is carried
over up to the present with the advent of the 1987 Constitution.
In a number of cases, the Court strictly adhered to the exclusionary
rule and has struck down the admissibility of evidence obtained in
violation of the constitutional safeguard against unreasonable
searches and seizures. (Bache & Co., (Phil.), Inc., v. Ruiz, 37
SCRA 823 [1971]; Lim v. Ponce de Leon, 66 SCRA 299 [1975];
People v. Burgos, 144 SCRA 1 [1986]; Roan v. Gonzales, 145
26 HRLAW 08281
SCRA 687 [1987]; See also Salazar v. Hon. Achacoso, et al., GR
No. 81510, March 14, 1990).
It must be noted, however, that in all those cases adverted to, the
evidence so obtained were invariably procured by the State acting
through the medium of its law enforcers or other authorized
government agencies.
On the other hand, the case at bar assumes a peculiar character
since the evidence sought to be excluded was primarily discovered
and obtained by a private person, acting in a private capacity and
without the intervention and participation of State authorities.
Under the circumstances, can accused/appellant validly claim that
his constitutional right against unreasonable searches and seizure
has been violated? Stated otherwise, may an act of a private
individual, allegedly in violation of appellant's constitutional
rights, be invoked against the State?
We hold in the negative. In the absence of governmental
interference, the liberties guaranteed by the Constitution cannot be
invoked against the State.
As this Court held in Villanueva v. Querubin (48 SCRA 345
[1972]:
1. This constitutional right (against unreasonable search
and seizure) refers to the immunity of one's person,
whether citizen or alien, from interference by
government, included in which is his residence, his
papers, and other possessions. . . .
. . . There the state, however powerful, does not as such
have the access except under the circumstances above
noted, for in the traditional formulation, his house,
however humble, is his castle. Thus is outlawed any
unwarranted intrusion by government, which is called
upon to refrain from any invasion of his dwelling and to
respect the privacies of his life. . . . (Cf. Schermerber v.
California, 384 US 757 [1966] and Boyd v. United
States, 116 US 616 [1886]; Emphasis supplied).
In Burdeau v. McDowell (256 US 465 (1921), 41 S Ct. 547; 65
L.Ed. 1048), the Court there in construing the right against
unreasonable searches and seizures declared that:
(t)he Fourth Amendment gives protection against
unlawful searches and seizures, and as shown in previous
cases, its protection applies to governmental action. Its
origin and history clearly show that it was intended as a
restraint upon the activities of sovereign authority, and
was not intended to be a limitation upon other than
governmental agencies; as against such authority it was
the purpose of the Fourth Amendment to secure the
citizen in the right of unmolested occupation of his
dwelling and the possession of his property, subject to
the right of seizure by process duly served.
The above ruling was reiterated in State v. Bryan (457 P.2d 661
[1968]) where a parking attendant who searched the automobile to
ascertain the owner thereof found marijuana instead, without the
knowledge and participation of police authorities, was declared
admissible in prosecution for illegal possession of narcotics.
And again in the 1969 case of Walker v. State (429 S.W.2d 121), it
was held that the search and seizure clauses are restraints upon the
government and its agents, not upon private individuals
(citing People v. Potter, 240 Cal. App.2d 621, 49 Cap. Rptr, 892
(1966); State v. Brown, Mo., 391 S.W.2d 903 (1965); State v.
Olsen, Or., 317 P.2d 938 (1957).
Likewise appropos is the case of Bernas v. US (373 F.2d 517
(1967). The Court there said:
The search of which appellant complains, however, was
made by a private citizen — the owner of a motel in
which appellant stayed overnight and in which he left
behind a travel case containing the
evidence***complained of. The search was made on the
motel owner's own initiative. Because of it, he became
suspicious, called the local police, informed them of the
bag's contents, and made it available to the authorities.
The fourth amendment and the case law applying it do
not require exclusion of evidence obtained through a
search by a private citizen. Rather, the amendment only
proscribes governmental action."
The contraband in the case at bar having come into possession of
the Government without the latter transgressing appellant's rights
against unreasonable search and seizure, the Court sees no cogent
reason why the same should not be admitted against him in the
prosecution of the offense charged.
Appellant, however, would like this court to believe that NBI
agents made an illegal search and seizure of the evidence later on
used in prosecuting the case which resulted in his conviction.
The postulate advanced by accused/appellant needs to be clarified
in two days. In both instances, the argument stands to fall on its
own weight, or the lack of it.
First, the factual considerations of the case at bar readily foreclose
the proposition that NBI agents conducted an illegal search and
seizure of the prohibited merchandise. Records of the case clearly
indicate that it was Mr. Job Reyes, the proprietor of the forwarding
agency, who made search/inspection of the packages. Said
inspection was reasonable and a standard operating procedure on
the part of Mr. Reyes as a precautionary measure before delivery of
packages to the Bureau of Customs or the Bureau of Posts (TSN,
October 6 & 7, 1987, pp. 15-18; pp. 7-8; Original Records, pp.
119-122; 167-168).
It will be recalled that after Reyes opened the box containing the
illicit cargo, he took samples of the same to the NBI and later
summoned the agents to his place of business. Thereafter, he
opened the parcel containing the rest of the shipment and entrusted
the care and custody thereof to the NBI agents. Clearly, the NBI
agents made no search and seizure, much less an illegal one,
contrary to the postulate of accused/appellant.
Second, the mere presence of the NBI agents did not convert the
reasonable search effected by Reyes into a warrantless search and
seizure proscribed by the Constitution. Merely to observe and look
at that which is in plain sight is not a search. Having observed that
which is open, where no trespass has been committed in aid
thereof, is not search (Chadwick v. State, 429 SW2d 135). Where
the contraband articles are identified without a trespass on the part
of the arresting officer, there is not the search that is prohibited by
the constitution (US v. Lee 274 US 559, 71 L.Ed. 1202 [1927]; Ker
v. State of California 374 US 23, 10 L.Ed.2d. 726 [1963]; Moore v.
State, 429 SW2d 122 [1968]).
In Gandy v. Watkins (237 F. Supp. 266 [1964]), it was likewise
held that where the property was taken into custody of the police at
the specific request of the manager and where the search was
initially made by the owner there is no unreasonable search and
seizure within the constitutional meaning of the term.
27 HRLAW 08281
That the Bill of Rights embodied in the Constitution is not meant to
be invoked against acts of private individuals finds support in the
deliberations of the Constitutional Commission. True, the liberties
guaranteed by the fundamental law of the land must always be
subject to protection. But protection against whom? Commissioner
Bernas in his sponsorship speech in the Bill of Rights answers the
query which he himself posed, as follows:
First, the general reflections. The protection of
fundamental liberties in the essence of constitutional
democracy. Protection against whom? Protection against
the state. The Bill of Rights governs the relationship
between the individual and the state. Its concern is not
the relation between individuals, between a private
individual and other individuals. What the Bill of Rights
does is to declare some forbidden zones in the private
sphere inaccessible to any power holder. (Sponsorship
Speech of Commissioner Bernas , Record of the
Constitutional Commission, Vol. 1, p. 674; July 17,
1986; Emphasis supplied)
The constitutional proscription against unlawful searches and
seizures therefore applies as a restraint directed only against the
government and its agencies tasked with the enforcement of the
law. Thus, it could only be invoked against the State to whom the
restraint against arbitrary and unreasonable exercise of power is
imposed.
If the search is made upon the request of law enforcers, a warrant
must generally be first secured if it is to pass the test of
constitutionality. However, if the search is made at the behest or
initiative of the proprietor of a private establishment for its own
and private purposes, as in the case at bar, and without the
intervention of police authorities, the right against unreasonable
search and seizure cannot be invoked for only the act of private
individual, not the law enforcers, is involved. In sum, the
protection against unreasonable searches and seizures cannot be
extended to acts committed by private individuals so as to bring it
within the ambit of alleged unlawful intrusion by the government.
Appellant argues, however, that since the provisions of the 1935
Constitution has been modified by the present phraseology found
in the 1987 Charter, expressly declaring as inadmissible any
evidence obtained in violation of the constitutional prohibition
against illegal search and seizure, it matters not whether the
evidence was procured by police authorities or private individuals
(Appellant's Brief, p. 8, Rollo, p. 62).
The argument is untenable. For one thing, the constitution, in
laying down the principles of the government and fundamental
liberties of the people, does not govern relationships between
individuals. Moreover, it must be emphasized that the
modifications introduced in the 1987 Constitution (re: Sec. 2, Art.
III) relate to the issuance of either a search warrant or warrant of
arrest vis-a-vis the responsibility of the judge in the issuance
thereof (SeeSoliven v. Makasiar, 167 SCRA 393 [1988]; Circular
No. 13 [October 1, 1985] and Circular No. 12 [June 30, 1987]. The
modifications introduced deviate in no manner as to whom the
restriction or inhibition against unreasonable search and seizure is
directed against. The restraint stayed with the State and did not
shift to anyone else.
Corolarilly, alleged violations against unreasonable search and
seizure may only be invoked against the State by an individual
unjustly traduced by the exercise of sovereign authority. To agree
with appellant that an act of a private individual in violation of the
Bill of Rights should also be construed as an act of the State would
result in serious legal complications and an absurd interpretation of
the constitution.
Similarly, the admissibility of the evidence procured by an
individual effected through private seizure equally applies, in pari
passu, to the alleged violation, non-governmental as it is, of
appellant's constitutional rights to privacy and communication.
2. In his second assignment of error, appellant contends that the
lower court erred in convicting him despite the undisputed fact that
his rights under the constitution while under custodial investigation
were not observed.
Again, the contention is without merit, We have carefully
examined the records of the case and found nothing to indicate, as
an "undisputed fact", that appellant was not informed of his
constitutional rights or that he gave statements without the
assistance of counsel. The law enforcers testified that
accused/appellant was informed of his constitutional rights. It is
presumed that they have regularly performed their duties (See.
5(m), Rule 131) and their testimonies should be given full faith and
credence, there being no evidence to the contrary. What is clear
from the records, on the other hand, is that appellant refused to
give any written statement while under investigation as testified by
Atty. Lastimoso of the NBI, Thus:
Fiscal Formoso:
You said that you investigated Mr. and Mrs. Job Reyes.
What about the accused here, did you investigate the
accused together with the girl?
WITNESS:
Yes, we have interviewed the accused together with the
girl but the accused availed of his constitutional right not
to give any written statement, sir. (TSN, October 8, 1987,
p. 62; Original Records, p. 240)
by clear and convincing evidence, are negative self-serving
evidence which deserve no weight in law and cannot be given
greater evidentiary weight than the testimony of credible witnesses
who testify on affirmative matters (People v. Esquillo, 171 SCRA
571 [1989]; People vs. Sariol, 174 SCRA 237 [1989]).
Appellant's bare denial is even made more suspect considering that,
as per records of the Interpol, he was previously convicted of
possession of hashish by the Kleve Court in the Federal Republic
of Germany on January 1, 1982 and that the consignee of the
frustrated shipment, Walter Fierz, also a Swiss national, was
likewise convicted for drug abuse and is just about an hour's drive
from appellant's residence in Zurich, Switzerland (TSN, October 8,
1987, p. 66; Original Records, p. 244; Decision, p. 21; Rollo, p.
93).
Evidence to be believed, must not only proceed from the mouth of
a credible witness, but it must be credible in itself such as the
common experience and observation of mankind can approve as
probable under the circumstances (People v. Alto, 26 SCRA 342
[1968], citing Daggers v. Van Dyke, 37 N.J. Eg. 130; see
also People v. Sarda, 172 SCRA 651 [1989]; People v. Sunga, 123
SCRA 327 [1983]); Castañares v. CA, 92 SCRA 567 [1979]). As
records further show, appellant did not even bother to ask
Michael's full name, his complete address or passport number.
Furthermore, if indeed, the German national was the owner of the
merchandise, appellant should have so indicated in the contract of
shipment (Exh. "B", Original Records, p. 40). On the contrary,
appellant signed the contract as the owner and shipper thereof
giving more weight to the presumption that things which a person
possesses, or exercises acts of ownership over, are owned by him
(Sec. 5 [j], Rule 131). At this point, appellant is therefore estopped
to claim otherwise.
Premises considered, we see no error committed by the trial court
in rendering the assailed judgment.

The above testimony of the witness for the prosecution was not WHEREFORE, the judgment of conviction finding appellant guilty
contradicted by the defense on cross-examination. As borne out by beyond reasonable doubt of the crime charged is hereby
the records, neither was there any proof by the defense that AFFIRMED. No costs.
appellant gave uncounselled confession while being
investigated. What is more, we have examined the assailed SO ORDERED.
judgment of the trial court and nowhere is there any reference
made to the testimony of appellant while under custodial
investigation which was utilized in the finding of conviction.
Appellant's second assignment of error is therefore misplaced.

3. Coming now to appellant's third assignment of error, appellant

would like us to believe that he was not the owner of the packages
which contained prohibited drugs but rather a certain Michael, a
German national, whom appellant met in a pub along Ermita,
Manila: that in the course of their 30-minute conversation, Michael
requested him to ship the packages and gave him P2,000.00 for the
cost of the shipment since the German national was about to leave
the country the next day (October 15, 1987, TSN, pp. 2-10).

Rather than give the appearance of veracity, we find appellant's

disclaimer as incredulous, self-serving and contrary to human
experience. It can easily be fabricated. An acquaintance with a
complete stranger struck in half an hour could not have pushed a
man to entrust the shipment of four (4) parcels and shell out
P2,000.00 for the purpose and for appellant to readily accede to
comply with the undertaking without first ascertaining its contents.
As stated by the trial court, "(a) person would not simply entrust
contraband and of considerable value at that as the marijuana
flowering tops, and the cash amount of P2,000.00 to a complete
stranger like the Accused. The Accused, on the other hand, would
not simply accept such undertaking to take custody of the packages
and ship the same from a complete stranger on his mere say-so"
(Decision, p. 19, Rollo, p. 91). As to why he readily agreed to do
the errand, appellant failed to explain. Denials, if unsubstantiated
28 HRLAW 08281
Velasquez Rodriguez Case, Judgment of July 29, 1988, Inter- “That, in addition, the information provided by the Government of
Am.Ct.H.R. (Ser. C) No. 4 (1988) DIGEST Honduras has been insufficient since the results of the investigation
of the Special Commission on disappeared persons is unknown and
FACTS: sufficient time has elapsed since the facts which gave rise to this
complaint were reported.”
Angel Manfredo Velasquez Rodriguez (“AMVR”), a UNAH
student, was arrested without warrant in Tegucigalpa on September
12, 1981. Eyewitnesses saw members of the National Investigation
Directorate and G-2 (Intelligence) of the Armed Forces of
Velasquez Rodriguez Case, Judgment of July 29, 1988, Inter-
Honduras apprehend and take AMVR to an unknown location. On
Am.Ct.H.R. (Ser. C) No. 4 (1988).
September 9, 1981, the Government of Honduras recognized the
jurisdiction of the Inter-American Court of Human Rights in
accordance with Article 62 of the American Convention on Human
Rights (the” Convention”).
It was believed that AMVR was first taken to II Station of Security
In the Velásquez Rodríguez case,
Force in the El Manchén neighborhood, a facility known for
torture. On September 17, 1984, AMVR was transferred to First
Battalion of Infantry. The Government of Honduras denied his The Inter-American Court of Human Rights, composed of the
arrest. The Inter-American Commission on Human Rights (the following judges:
“Commission”) requested confirmation and/or clarification of
information regarding AMVR’s case from the Government of Rafael Nieto-Navia, President
Honduras. After repeated unsuccessful requests, the Commission
presumed facts from the October 7, 1981 correspondence to be true
Hector Gros Espiell, Vice President
and approved resolution 30/83. The resolution, transmitted to the
Government of Honduras on October 11, 1983, alleged that the
Government of Honduras had violated the right to life and the right Rodolfo E. Piza E., Judge
to personal liberty of AMVR, as guaranteed by the Convention.
The resolution also recommended that the Government of Thomas Buergenthal, Judge
Honduras investigate the case and identify, apprehend, and hold
accountable the people responsible for AMVR’s disappearance.
Pedro Nikken, Judge
The Government of Honduras responded on November 18, 1983.
In its response, the Government asserted that legal domestic Hector Fix-Zamudio, Judge
remedies had not been exhausted (a writ of habeas corpus was
pending in the Supreme Court of Justice) and that AMVR was
Rigoberto Espinal Irias, Judge ad hoc
rumored to be with an El Salvadorian Guerilla group and was not
in the country. When the Commission requested more information,
the Government of Honduras claimed to know the identity of one Also present:
of the individuals who apprehended AMVR.
Charles Moyer, Secretary
On May 30, 1984, the Commission requested an update on the writ
of habeas corpus mentioned in the November 18 correspondence
and the investigation into the individual who arrested AMVR. The Manuel Ventura, Deputy Secretary
Government of Honduras requested more time as it had formed an
Investigations Commission to investigate. The Government of delivers the following judgment pursuant to Article 44( 1 ) of its
Honduras later contacted the Commission, informing it that the Rules of Procedure ( hereinafter " the Rules of Procedure " ) in the
Court had dismissed proceedings brought by the Investigation instant case submitted by the Inter-American Commission on
Commission against a number of people for murder, torture, abuse Human Rights against the State of Honduras.
of authority and disobedience.
DECISION: 1. The Inter-American Commission on Human Rights ( hereinafter
" the Commission " ) submitted the instant case to the Inter-
American Court of Human Rights ( hereinafter the " Court " ) on
April 24, 1986. It originated in a petition ( No. 7920 ) against the
The Commission found that there was an unjust delay in the State of Honduras ( hereinafter " Honduras " or " the Government "
administration of justice and that the Government of Honduras had ), which the Secretariat of the Commission received on October 7,
failed to show facts reported to be untrue and had not pursued an 1981.
adequate investigation to clarify the facts. In particular, the results
of the investigation on disappeared persons were unknown and
sufficient time had passed from when facts that gave rise to the 2. In submitting the case, the Commission invoked Articles 50 and
complaint were reported. In light of this, the Commission 51 of the American Convention on Human Rights ( hereinafter "
concluded that the Government of Honduras had not implemented the Convention " or " the American Convention " ) and requested
the recommendations of the Commission and would thus give its that the Court determine whether the State in question had violated
opinions and conclusions on the issue. Articles 4 ( Right to Life ), 5 ( Right to Humane Treatment ) and 7
( Right to Personal Liberty ) of the Convention in the case of Angel
The Commission confirmed all parts of resolution 30/83 and Manfredo Velásquez Rodríguez ( also known as Manfredo
denied the Government of Honduras’s request for reconsideration. Velásquez ). In addition, the Commission asked the Court to rule
The case was given to the Inter-American Court of Human Rights that " the consequences of the situation that constituted the breach
to decide whether rights to life (Article 1of the American of such right or freedom be remedied and that fair compensation be
Convention on Human Rights), humane treatment (Article 5) paid to the injured party or parties. "
and/or personal liberty (Article 7) had been violated. If the Court
found such violations had occurred, the people responsible were to 3. According to the petition filed with the Commission, and the
be held accountable and those injured were to be compensated. supplementary information received subsequently, Manfredo
Velasquez, a student at the National Autonomous University of
29 HRLAW 08281
Honduras, " was violently detained without a warrant for his arrest
by members of the National Office of Investigations ( DNI ) and
G-2 of the Armed Forces of Honduras. " The detention took place
in Tegucigalpa on the afternoon of September 12, 1981. According
to the petitioners, several eyewitnesses reported that Manfredo
Velasquez and others were detained and taken to the cells of Public
Security Forces Station No. 2 located in the Barrio E1 Manchen of
Tegucigalpa, where he was " accused of alleged political crimes
and subjected to harsh interrogation and cruel torture. " The
petition added that on September 17, 1981, Manfredo Velásquez
was moved to the First Infantry Battalion, where the interrogation
continued, but that the police and security forces denied that he had
been detained.
4. After transmitting the relevant parts of the petition to the
Government, the Commission, on various occasions, requested
information on the matter. Since the Commission received no
reply, it applied Article 42 ( formerly 39 ) of its Regulations and
presumed " as true the allegations contained in the communication
of October 7, 1981, concerning the detention and disappearance of
Angel Manfredo Velásquez Rodríguez in the Republic of Honduras
" and pointed out to the Government " that such acts are most
serious violations of the right to life ( Art. 4 ) and the right to
personal liberty ( Art. 7 ) of the American Convention " (
Resolution 30/83 of October 4, 1983 ).
5. On November 18, 1983, the Government requested the
reconsideration of Resolution 30/83 on the grounds that domestic
remedies had not been exhausted, that the National Office of
Investigations had no knowledge of the whereabouts of Manfredo
Velásquez, that the Government was making every effort to find
him, and that there were rumors that Manfredo Velásquez was "
with Salvadoran guerrilla groups. "
6. On May 30, 1984, the Commission informed the Government
that it had decided, " in light of the information submitted by the
Honorable Government, to reconsider Resolution 30/83 and to
continue its study of the case. " The Commission also asked the
Government to provide information on the exhaustion of domestic
legal remedies.
7. On January 29, 1985, the Commission repeated its request of
May 30, i984 and notified the Government that it would render a
final decision on the case at its meeting in March 1985. On March
1 of that year, the Government asked for a postponement of the
final decision and reported that it had set up an Investigatory
Commission to study the matter. The Commission agreed to the
Government's request on March 11, granting it thirty days in which
to present the information requested.
8. On October 17, 1985, the Government presented to the
Commission the Report of the Investigatory Commission.
9. On April 7, 1986, the Government provided information about
the outcome of the proceeding brought in the First Criminal Court
against those persons supposedly responsible for the disappearance
of Manfredo Velasquez and others. That Court dismissed the
complaints " except as they applied to General Gustavo Alvarez
Martínez, because he had left the country and had not given
testimony. " This decision was later affirmed by the First Court Of
Appeals.
10. By Resolution 22/86 of April 18, 1986, the Commission
deemed the new information presented by the Government
insufficient to warrant reconsideration of Resolution 30/83 and
found, to the contrary, that " all evidence shows that Angel
Manfredo Velásquez Rodríguez is still missing and that the
Government of Honduras... has not offered convincing proof that
would allow the Commission to determine that the allegations are
not true. " In that same Resolution, the Commission confirmed
Resolution 30/83 and referred the matter to the Court.
30 HRLAW 08281
11. The Court has jurisdiction to hear the instant case. Honduras
ratified the Convention on September 8, 1977 and recognized the
contentious jurisdiction of the Court, as set out in Article 62 of the
Convention, on September 9, 1981. The case was submitted to the
Court by the Commission pursuant to Article 61 of the Convention
and Article 50( 1 ) and 50( 2 ) of the Regulations of the
Commission.
12. The instant case was submitted to the Court on April 24, 1986.
On May 13, 1986, the Secretariat of the Court transmitted the
application to the Government, pursuant to Article 26( 1 ) of the
Rules of Procedure.
13. On July 23, 1986, Judge Jorge R. Hernández Alcerro informed
the President of the Court ( hereinafter " the President " ) that,
pursuant to Article 19( 2 ) of the Statute of the Court ( hereinafter "
the Statute " ), he had " decided to recuse ( him )self from hearing
the three cases that... were submitted to the Inter-American Court. "
The President accepted the disqualification and, by note of that
same date, informed the Government of its right to appoint a judge
ad hoc under Article 10( 3 ) of the Statute. The Government named
Rigoberto Espinal Irias to that position by note of August 21, 1986.
14. In a note of July 23, 1986, the President confirmed a
preliminary agreement that the Government present its submissions
by the end of August 1986. On August 21, 1986, the Government
requested the extension of this deadline to November 1986.
15. By his Order of August 29, 1986, having heard the views of the
parties, the President set October 31, 1986 as the deadline for the
Government's presentation of its submissions. The President also
fixed the deadlines of January 15, 1987 for the filing of the
Commission's submissions and March 1, 1987 for the
Government's response.
16. In its submissions of October 31, 1986, the Government
objected to the admissibility of the application filed by the
Commission.
17. On December 11, 1986, the President granted the
Commission's request for an extension of the deadline for the
presentation of its submissions to March 20, 1987 and extended the
deadline for the Government's response to May 25, 1987.
18. In his Order of January 30, 1987, the President made clear that
the application which gave rise to the instant proceeding should be
deemed to be the Memorial provided for in Article 30( 3 ) of the
Rules of Procedure. He also specified that the deadline of March
20, 1987 granted to the commission was the time limit set forth in
Article 27( 3 ) of the Rules for the presentation of its observations
and conclusions on the preliminary objections raised by the
Government. The President, after consulting the parties, ordered a
public hearing on June 15, 1987 for the presentation of oral
arguments on the preliminary objections and left open the time
limits for submissions on the merits, pursuant to the above-
mentioned article of the Rules of Procedure.
19. By note of March 13, 1987, the Government informed the
Court that because
"the Order of January 30, 1987 is not restricted to matters of mere
procedure nor to the determination of deadlines, but rather involves
the interpretation and classification of the submissions, ( the
Government ) considers it advisable, pursuant to Article 25 of the
Statute of the Court and Article 44( 2 ) of its Rules of Procedure,
for the Court to affirm the terms of the President's Order of January
30, 1987, in order to avoid further confusion between the parties.
As these are the first contentious cases submitted to the Court, it is
especially important to ensure strict compliance with and the
correct application of the procedural rules of the Court."
20. In a motion contained in its observations of March 20, 1987,
the Commission asked the President to rescind paragraph 3 of his
Order of January 30, 1987 in which he had set the date for the
public hearing. The Commission also observed that " in no part of
its Memorial had the Government of Honduras presented its
objections as preliminary objections. " In its note of June 11, 1987,
the Government did however refer to its objections as " preliminary
objections. "
21. By Resolution of June 8, 1987, the Court affirmed the
President's Order of January 30, 1987, in its entirety.
22. The hearing on the preliminary objections raised by the
Government took place on June 15, 1987. Representatives of the
Government and the Commission participated in this hearing.
23. On June 26, 1987, the Court delivered its judgment on the
preliminary objections. In this unanimous decision, the Court:
"1. Reject( ed ) the preliminary objections interposed by the
Government of Honduras, except for the issues relating to the
exhaustion of the domestic legal remedies, which ( were ) ordered
joined to the merits of the case.
2. Decide( d ) to proceed with the consideration of the instant case.
3. Postpone( d ) its decision on the costs until such time as it
renders judgment on the merits.
( Velásquez Rodríguez Case, Preliminary Objections, Judgment of
June 26, 1987. Series C No. 1 )."
24. On that same date, the Court adopted the following decision:
"1. To instruct the President, in consultation with the parties, to set
a deadline no later than August 27, 1987 for the Government to
submit its Counter-Memorial on the merits and offer its evidence,
with an indication of the facts that each item of evidence is
intended to prove. In its offer of proof, the Government should
show how, when and under what circumstances it wishes to present
the evidence.
2. Within thirty days of the receipt of the submission of the
Government, the Commission must ratify in writing the request of
proof already made, without prejudice to the possibility of
amending or supplementing what has been offered. The
Commission should indicate the facts that each item of evidence is
intended to prove and how, when and under what circumstances it
wishes to present the evidence. As soon as possible after receiving
the Government's submission referred to in paragraph one, the
Commission may also supplement or amend its offer of proof.
3. To instruct the President, without prejudice to a final decision
being taken by the Court, to decide preliminary matters that might
arise, to admit or exclude evidence that has been offered or may be
offered, to order the filing of expert or other documentary evidence
that may be received and, in consultation with the parties, to set the
date of the hearing or hearings on the merits at which evidence
shall be presented, the testimony of witnesses and any experts shall
be received, and at which the final arguments shall be heard.
4. To instruct the President to arrange with the respective
authorities for the necessary guarantees of immunity and
participation of the Agents and other representatives of the parties,
witnesses and experts, and, if necessary, the delegates of the
Court."
31 HRLAW 08281
25. In its submission of July 20, 1987, the Commission ratified and
supplemented its request for oral testimony and offered
documentary evidence.
26. On August 27, 1987, the Government filed its Counter-
Memorial and documentary evidence. In its prayer, the
Government asked the Court to dismiss " the suit against the State
of Honduras on the grounds that it does not find the allegations to
be true and that the domestic remedies of the State of Honduras
have not yet been exhausted. "
27. In his Order of September 1, 1987, the President admitted the
testimonial and documentary evidence offered by the Commission.
On September 14, 1987, he also admitted the documentary
evidence offered by the Government.
28. The Court held hearings on the merits and heard the final
arguments of the parties from September 30 to October 7, 1987.
There appeared before the Court
a ) for the Government of Honduras:
Edgardo Sevilla Idiaquez, Agent
Ramón Pérez Zúñiga, Representative
Juan Arnaldo Hernández, Representative
Enrique Gómez, Representative
Ruben Darío Zepeda, Adviser
Angel Augusto Morales, Adviser
Olmeda Rivera, Adviser
Mario Alberto Fortín, Adviser
Ramón Rufino Mejía, Adviser
b ) for the Inter-American Commission on Human Rights:
Gilda M.C.M. de Russomano, President, Delegate
Edmundo Vargas Carreffo, Executive Secretary,
Delegate
Claudio Grossman, Adviser
Juan Méndez, Adviser
Hugo A. Muñoz, Adviser
Jose Miguel Vivanco, Adviser
c ) Witnesses presented by the Commission to testify as to "
whether between the years 1981 and 1984 ( the period in which
Manfredo Velásquez disappeared ) there were numerous cases of
persons who were kidnapped and who then disappeared, and
whether these actions were imputable to the Armed Forces of
Honduras and enjoyed the acquiescense of the Government of
Honduras: "
Miguel Angel Pavon Salazar, Alternate Deputy 1. To call as witnesses, Marco Tulio Regalado and Alexander
Hernández, members of the Armed Forces of Honduras.
Ramón Custodio López, surgeon
C. Reiteration of a Request
Virgilio Carías, economist
1. To the Government of Honduras to establish the whereabouts of
Inés Consuelo Murillo, student José Isaías Vilorio and, once located, to call him as a witness."

Efraín Díaz Arrivillaga, Deputy
Florencio Caballero, former member of the Armed Forces
d ) Witnesses presented by the Commission to testify as to "
whether between the years 1981 and 1984 effective domestic
remedies existed in Honduras to protect those persons who were
kidnapped and who then disappeared in actions imputable to the
Armed Forces of Honduras: "
Ramón Custodio Lopez, surgeon
Virgilio Carías, economist
Milton Jiménez Puerto, lawyer
30. By the same Order, the Court set December 15, 1987 as the
deadline for the submission of documentary evidence and decided
to hear the oral testimony at its January session.
31. In response to that Order, on December 14, 1987 the
Government: a ) with respect to the organizational structure of
Battalion 316, requested that the Court receive the testimony of its
Commandant in a closed hearing "because of strict security reasons
of the State of Honduras " ; b ) requested that the Court hear the
testimony of Alexander Hernández and Marco Tulio Regalado " in
the Republic of Honduras, in a manner to be decided by the Court
and in a closed hearing to be set at an opportune time... because of
security reasons and because both persons are on active duty in the
Armed Forces of Honduras " ; and c ) reported that Jose Isaías
Vilorio was " working as an administrative employee of the
National Office of Investigations, a branch of the Public Security
Forces, in the city of Tegucigalpa. "

Inés Consuelo Murillo, student 32. By note of December 24, 1987, the Commission objected to
hearing the testimony of members of the Honduran military in
René Velasquez Díaz, lawyer closed session. This position was reiterated by note of January 11,
1988.
Cesar Augusto Murillo, lawyer
33. On the latter date, the Court decided to receive the testimony of
the members of the Honduran military at a closed hearing in the
José Gonzalo Flores Trejo, shoemaker
presence of the parties.

e ) Witnesses presented by the Commission to testify on specific

34. Pursuant to its Order of October 7, 1987 and its decision of
facts related to this case:
January 11, 1988, the Court held a closed hearing on January 20,
1988, which both parties attended, at which it received the
Leopoldo Aguilar Villalobos, advertising agent testimony of persons who identified themselves as Lt. Col.
Alexander Hernández and Lt. Marco Tulio Regalado Hernández.
Zenaida Velásquez Rodríguez, social worker The Court also heard the testimony of Col. Roberto Núñez Montes,
Head of the Intelligence Services of Honduras.
f ) The following witnesses offered by the Commission did not
appear at these hearings: 35. On January 22, 1988, the Government submitted a brief
prepared by the Honduran Bar Association on the legal remedies
available in cases of disappeared persons. The Court had asked for
Leonidas Torres Arias, former member of the Armed Forces
this document in response to the Government's request of August
26, 1987.
Linda Drucker, reporter
36. On July 7, 1988, the Commission responded to a request of the
José María Palacios, lawyer Court concerning another case before the Court ( Fairén Garbi and
Solís Corrales Case ). In its response, the Commission included
Mauricio Villeda Bermúdez, lawyer some " final observations " on the instant case.

José Isaías Vilorio, policeman
29. After having heard the witnesses, the Court directed the
submission of additional evidence to assist it in its deliberations. Its
Order of October 7, 1987 reads as follows:
37. By decision of July 14, 1988, the President refused to admit the
" final observations " because they were untimely and because "
reopening the period for submissions would violate the procedure
opportunely established and, moreover, would seriously affect the
procedural equilibrium and equality of the parties. "

38. The following non-governmental organizations submitted

"A. Documentary Evidence briefs as amici curiae: Amnesty International, Association of the
Bar of the City of New York, Lawyers Committee for Human
1. To request the Government of Honduras to provide the Rights and Minnesota Lawyers International Human Rights
organizational chart showing the structure of Battalion 316 and its Committee.
position within the Armed Forces of Honduras.
39. By note of November 4, 1987, addressed to the President of the
B. Testimony Court, the Commission asked the Court to take provisional
measures under Article 63( 2 ) of the Convention in view of the
32 HRLAW 08281
threats against the witnesses Milton Jiménez Puerto and Ramón
Custodio López. Upon forwarding this information to the
Government of Honduras, the President stated that he " does not
have enough proof to ascertain which persons or entities might be
responsible for the threats, but he strongly wishes to request that
the Government of Honduras take all measures necessary to
guarantee the safety of the lives and property of Milton Jiménez
and Ramón Custodio and the property of the Committee for the
Defense of Human Rights in Honduras ( CODEH ).... " The
President also stated that he was prepared to consult with the
Permanent Commission of the Court and, if necessary, to convoke
the Court for an emergency meeting " for taking the appropriate
measures, if that abnormal situation continues. " By
communications of November 11 and 18, 1987, the Agent of the
Government informed the Court that the Honduran government
would guarantee Ramón Custodio and Milton Jiménez " the respect
of their physical and moral integrity... and the faithful compliance
with the Convention.... "
40. By note of January 11, 1988, the Commission informed the
Court of the death of Jose Isaías Vilorio, which occurred on
January 5, 1988 at 7:15 a.m. The Court had summoned him to
appear as a witness on January 18, 1988. He was killed " on a
public thoroughfare in Colonia San Miguel, Comayaguela,
Tegucigalpa, by a group of armed men who placed the insignia of a
Honduran guerrilla movement known as Cinchonero on his body
and fled in a vehicle at high speed. "
41. On January 15, 1988, the Court was informed of the
assassinations of Moisés Landaverde and Miguel Angel Pavón
which had occurred the previous evening in San Pedro Sula. Mr.
Pavón had testified before the Court on September 30, 1987 as a
witness in this case. Also on January 15, the Court adopted the
following provisional measures under Article 63 ( 2 ) of the
Convention:
"1. That the Government of Honduras adopt, without delay, such
measures as are necessary to prevent further infringements on the
basic rights of those who have appeared or have been summoned to
do so before this Court in the " Velásquez Rodríguez, " Fairén
Garbi and Solís Corrales " and " Godínez Cruz " cases, in strict
compliance with the obligation of respect for and observance of
human rights, under the terms of Article 1( 1 ) of the Convention.
2. That the Government of Honduras also employ all means within
its power to investigate these reprehensible crimes, to identify the
perpetrators and to impose the punishment provided for by the
domestic law of Honduras."
42. After it had adopted the above Order of January 15, the Court
received a request from the Commission, dated the same day, that
the Court take the necessary measures to protect the integrity and
security of those persons who had appeared or would appear before
the Court.
43. On January 18, 1988, the Commission asked the Court to adopt
the following complementary provisional measures:
"1. That the Government of Honduras inform the Court, within 15
days, of the specific measures it has adopted to protect the physical
integrity of witnesses who testified before the Court as well as
those persons in any way involved in these proceedings, such as
representatives of human rights organizations.
2. That the Government of Honduras report, within that same
period, on the judicial investigations of the assassinations of Jose
Isaías Vilorio, Miguel Angel Pavón and Moisés Landaverde.
3. That the Government of Honduras provide the Court, within that
same period, the public statements made regarding the
33 HRLAW 08281
aforementioned assassinations and indicate where those statements
appeared.
4. That the Government of Honduras inform the Court, within the
same period,on the criminal investigations of threats against
Ramón Custodio and Milton Jiménez, who are witnesses in this
case.
5. That it inform the Court whether it has ordered police protection
to ensure the personal integrity of the witnesses who have testified
and the protection of the property of CODEH.
6. That the Court request the Government of Honduras to send it
immediately a copy of the autopsies and ballistic tests carried out
regarding the assassinations of Messrs. Vilorio, Pavón and
Landaverde."
44. That same day the Government submitted a copy of the death
certificate and the autopsy report of Jose Isaías Vilorio, both dated
January 5, 1988.
45. On January 18, 1988, the Court decided, by a vote of six to one,
to hear the parties in a public session the following day regarding
the measures requested by the Commission. After the hearing,
taking into account " Articles 63( 2 ), 33 and 62( 3 ) of the
American Convention on Human Rights, Articles 1 and 2 of the
Statute of the Court and Article 23 of its Rules of Procedure and its
character as a judicial body and the powers which derive
therefrom, " the Court unanimously decided, by Order of January
19, 1988, on the following additional provisional measures:
"1. That the Government of Honduras, within a period of two
weeks, inform this Court on the following points:
a. the measures that have been adopted or will be adopted to
protect the physical integrity of, and to avoid irreparable harm to,
those witnesses who have testified or have been summoned to do
so in these cases.
b. the judicial investigations that have been or will be undertaken
with respect to threats against the aforementioned individuals.
c. the investigations of the assassinations, including forensic
reports, and the actions that are proposed to be taken within the
judicial system of Honduras to punish those responsible.
2. That the Government of Honduras adopt concrete measures to
make clear that the appearance of an individual before the Inter-
American Commission or Court of Human Rights, under
conditions authorized by the American Convention and by the rules
of procedure of both bodies, is a right enjoyed by every individual
and is recognized as such by Honduras as a party to the
Convention.
This decision was delivered to the parties in Court."
46. Pursuant to the Court's decision of January 19, 1988, the
Government submitted the following documents on February 3,
1988:
"1. A copy of the autopsy report on the death of Professor Miguel
Angel Pavón Salazar, certified by the Third Criminal Court of San
Pedro Sula, Department of Cortes, on January 27, 1988 and
prepared by forensic specialist Rolando Tabora, of that same Court.
2. A copy of the autopsy report on the death of Professor Moisés
Landaverde Recarte, certified by the above Court on the same date
and prepared by the same forensic specialist.
3. A copy of a statement made by Dr. Rolando Tabora, forensic
specialist, as part of the inquiry undertaken by the above Court into
the deaths of Miguel Angel Pavón and Moisés Landaverde Recarte,
and certified by that Court on January 27, 1988.
4. A copy of the inquiry into threats against the lives of Ramón
Custodio and Milton Jiménez, conducted by the First Criminal
Court of Tegucigalpa, Central District, and certified by that Court
on February 2, 1988."
In the same submission, the Government stated that:
"The content of the above documents shows that the Government
of Honduras has initiated a judicial inquiry into the assassinations
of Miguel Angel Pavón Salazar and Moisés Landaverde Recarte,
under the procedures provided for by Honduran law.
Those same documents show, moreover, that the projectiles were
not removed from the bodies for ballistic study because of the
opposition of family members, which is why no ballistic report was
submitted as requested."
47. The Government also requested an extension of the deadline
ordered above " because, for justifiable reasons, it has been
impossible to obtain some of the information. " Upon instructions
from the President, the Secretariat informed the Government on the
following day that it was not possible to extend the deadline
because it had been set by the full Court.
48. By communication of March l0, 1988, the InterInstitutional
Commission of Human Rights of Honduras, a governmental body,
made several observations regarding the Court's decision of
January 15, 1988. On the threats that have been made against some
witnesses, it reported that Ramón Custodio " refused to bring a
complaint before the proper courts and that the First Criminal
Court of Tegucigalpa, Department of Morazán, had initiated an
inquiry to determine whether there were threats, intimidations or
conspiracies against the lives of Dr. Custodio and Milton Jiménez
and had duly summoned them to testify and to submit any
evidence, " but they failed to appear. It added that no Honduran
official " has attempted to intimidate, threaten or restrict the liberty
of any of the persons who testified before the Court... who enjoy
the same guarantees as other citizens. "
49. On March 23, 1988 the Government submitted the following
documents:
"1. Copies of the autopsies performed on the bodies of Miguel
Angel Pavón Salazar and Moisés Landaverde, certified by the
Secretariat of the Third Criminal Court of the Judicial District of
San Pedro Sula.
2. The ballistic report on the shrapnel removed from the bodies of
those persons, signed by the Director of the Medical-Legal
Department of the Supreme Court of Justice."
50. The Government raised several preliminary objections that the
Court ruled upon in its Judgment of June 26, 1987 ( supra 16-23 ).
There the Court ordered the joining of the merits and the
preliminary objection regarding the failure to exhaust domestic
remedies, and gave the Government and the Commission another
opportunity to " substantiate their contentions " on the matter (
Velásquez Rodríguez Case, Preliminary Objections, supra 23, para.
90 ).
51. The Court will first rule upon this preliminary objection. In so
doing, it will make use of all the evidence before it, including that
presented during the proceedings on the merits.
34 HRLAW 08281
52. The Commission presented witnesses and documentary
evidence on this point. The Government, in turn, submitted some
documentary evidence, including examples of writs of habeas
corpus successfully brought on behalf of some individuals ( infra
120( c ) ). The Government also stated that this remedy requires
identification of the place of detention and of the authority under
which the person is detained.
53. In addition to the writ of HABEAS corpus, the Government
mentioned various remedies that might possibly be invoked, such
as appeal, cassation, extraordinary writ of amparo, ad effectum
videndi, criminal complaints against those ultimately responsible
and a presumptive finding of death.
54. The Honduran Bar Association in its brief ( supra 35 )
expressly mentioned the writ of HABEAS corpus, set out in the
Law of Amparo, and the suit before a competent court " for it to
investigate the whereabouts of the person allegedly disappeared. "
55. The Commission argued that the remedies mentioned by the
Government were ineffective because of the internal conditions in
the country during that period. It presented documentation of three
writs of habeas corpus brought on behalf of Manfredo Velásquez
that did not produce results. It also cited two criminal complaints
that failed to lead to the identification and punishment of those
responsible. In the Commission's opinion, those legal proceedings
exhausted domestic remedies as required by Article 46( 1 )( a ) of
the Convention.
56. The Court will first consider the legal arguments relevant to the
question of exhaustion of domestic remedies and then apply them
to the case.
57. Article 46( 1 )( a ) of the Convention provides that, in order for
a petition or communication lodged with the Commission in
accordance with Articles 44 or 45 to be admissible, it is necessary
"that the remedies under domestic law have been pursued and
exhausted in accordance with generally recognized principles of
international law."
58. The same article, in the second paragraph, provides that this
requirement shall not be applicable when
"a. the domestic legislation of the state concerned does not afford
due process of law for the protection of the right or rights that have
allegedly been violated;
b. the party alleging violation of his rights has been denied access
to the remedies under domestic law or has been prevented from
exhausting them; or
c. there has been unwarranted delay in rendering a final judgment
under the aforementioned remedies."
59. In its Judgment of June 26, 1987, the Courtdecided, inter alia,
that " the State claiming non-exhaustion has an obligation to prove
that domestic remedies remain to be exhausted and that they are
effective " ( Velásquez Rodríguez Case, Preliminary Objections,
supra 23, para. 88 ).
60. Concerning the burden of proof, the Court did not go beyond
the conclusion cited in the preceding paragraph. The Court now
affirms that if a State which alleges non-exhaustion proves the
existence of specific domestic remedies that should have been
utilized, the opposing party has the burden of showing that those
remedies were exhausted or that the case comes within the
exceptions of Article 46( 2 ). It must not be rashly presumed that a
State Party to the Convention has failed to comply with its
obligation to provide effective domestic remedies.
61. The rule of prior exhaustion of domestic remedies allows the
State to resolve the problem under its internal law before being
confronted with an international proceeding. This is particularly
true in the international jurisdiction of human rights, because the
latter reinforces or complements the domestic jurisdiction (
American Convention, Preamble ).
62. It is a legal duty of the States to provide such remedies, as this
Court indicated in its Judgment of June 26, 1987, when it stated:
"The rule of prior exhaustion of domestic remedies under the
international law of human rights has certain implications that are
present in the Convention. Under the Convention, States Parties
have an obligation to provide effective judicial remedies to victims
of human rights violations ( Art. 25 ), remedies that must be
substantiated in accordance with the rules of due process of law (
Art. 8( 1 ) ), all in keeping with the general obligation of such
States to guarantee the free and full exercise of the rights
recognized by the Convention to all persons subject to their
jurisdiction ( Art. 1 ). ( Velásquez Rodríguez Case, Preliminary
Objections, supra 23, para. 91 )."
63. Article 46( 1 )( a ) of the Convention speaks of " generally
recognized principles of international law. " Those principles refer
not only to the formal existence of such remedies, but also to their
adequacy and effectiveness, as shown by the exceptions set out in
Article 46( 2 ).
64. Adequate domestic remedies are those which are suitable to
address an infringement of a legal right. A number of remedies
exist in the legal system of every country, but not all are applicable
in every circumstance. If a remedy is not adequate in a specific
case, it obviously need not be exhausted. A norm is meant to have
an effect and should not be interpreted in such a way as to negate
its effect or lead to a result that is manifestly absurd or
unreasonable. For example, a civil proceeding specifically cited by
the Government, such as a presumptive finding of death based on
disappearance, the purpose of which is to allow heirs to dispose of
the estate of the person presumed deceased or to allow the spouse
to remarry, is not an adequate remedy for finding a person or for
obtaining his liberty.
65. Of the remedies cited by the Government, habeas corpus would
be the normal means of finding a person presumably detained by
the authorities, of ascertaining whether he is legally detained and,
given the case, of obtaining his liberty. The other remedies cited by
the Government are either for reviewing a decision within an
inchoate proceeding ( such as those of appeal or cassation ) or are
addressed to other objectives. If, however, as the Government has
stated, the writ of habeas corpus requires the identification of the
place of detention and the authority ordering the detention, it would
not be adequate for finding a person clandestinely held by State
officials, since in such cases there is only hearsay evidence of the
detention, and the whereabouts of the victim is unknown.
66. A remedy must also be effective - that is, capable of producing
the result for which it was designed. Procedural requirements can
make the remedy of habeas corpus ineffective: if it is powerless to
compel the authorities; if it presents a danger to those who invoke
it; or if it is not impartially applied.
67. On the other hand, contrary to the Commission's argument, the
mere fact that a domestic remedy does not produce a result
favorable to the petitioner does not in and of itself demonstrate the
inexistence or exhaustion of all effective domestic remedies. For
example, the petitioner may not have invoked the appropriate
remedy in a timely fashion.
35 HRLAW 08281
68. It is a different matter, however, when it is shown that remedies
are denied for trivial reasons or without an examination of the
merits, or if there is proof of the existence of a practice or policy
ordered or tolerated by the government, the effect of which is to
impede certain persons from invoking internal remedies that would
normally be available to others. In such cases, resort to those
remedies becomes a senseless formality. The exceptions of Article
46( 2 ) would be fully applicable in those situations and would
discharge the obligation to exhaust internal remedies since they
cannot fulfill their objective in that case.
69. In the Government's opinion, a writ of habeas corpus does not
exhaust the remedies of the Honduran legal system because there
are other remedies, both ordinary and extraordinary, such as
appeal, cassation, and extraordinary writ of amparo, as well as the
civil remedy of a presumptive finding of death. In addition, in
criminal procedures parties may use whatever evidence they
choose. With respect to the cases of disappearances mentioned by
the Commission, the Government stated that it had initiated some
investigations and had opened others on the basis of complaints,
and that the proceedings remain pending until those presumed
responsible, either as principals or accomplices, are identified or
apprehended.
70. In its conclusions, the Government stated that some writs of
habeas corpus were granted from 1981 to 1984, which would prove
that this remedy was not ineffective during that period. It submitted
various documents to support its argument.
71. In response, the Commission argued that the practice of
disappearances made exhaustion of domestic remedies impossible
because such remedies were ineffective in correcting abuses
imputed to the authorities or in causing kidnapped persons to
reappear.
72. The Commission maintained that, in cases of disappearances,
the fact that a writ of habeas corpus or amparo has been brought
without success is sufficient to support a finding of exhaustion of
domestic remedies as long as the person does not appear, because
that is the most appropriate remedy in such a situation. It
emphasized that neither writs of habeas corpus nor criminal
complaints were effective in the case of Manfredo Velásquez. The
Commission maintained that exhaustion should not be understood
to require mechanical attempts at formal procedures; but rather to
require a case-by-case analysis of the reasonable possibility of
obtaining a remedy.
73. The Commission asserted that, because of the structure of the
international system for the protection of human rights, the
Government bears the burden of proof with respect to the
exhaustion of domestic remedies. The objection of failure to
exhaust presupposes the existence of an effective remedy. It stated
that a criminal complaint is not an effective means to find a
disappeared person, but only serves to establish individual
responsibility.
74. The record before the Court shows that the following remedies
were pursued on behalf of Manfredo Velásquez:
"a. Habeas Corpus
i. Brought by Zenaida Velásquez against the Public Security Forces
on September 17, 1981. No result.
ii. Brought by Zenaida Velásquez on February 6, 1982. No result.
iii. Brought by various relatives of disappeared persons on behalf
of Manfredo Velásquez and others on July 4, 1983. Denied on
September 11, 1984.
b. Criminal Complaints
i. Brought by the father and sister of Manfredo Velásquez before
the First Criminal Court of Tegucigalpa on November 9, 1982. No
result.
ii. Brought by Gertrudis Lanza González, joined by Zenaida
Velásquez, before the First Criminal Court of Tegucigalpa against
various members of the Armed Forces on April 5, 1984. The court
dismissed this proceeding and the First Court of Appeals affirmed
on January 16, 1986, although it left open the complaint with
regard to General Gustavo Alvarez Martínez, who was declared a
defendant in absence ( supra 9 )."
75. Although the Government did not dispute that the above
remedies had been brought, it maintained that the Commission
should not have found the petition admissible, much less submitted
it to the Court, because of the failure to exhaust the remedies
provided by Honduran law, given that there are no final decisions
in the record that show the contrary. It stated that the first writ of
habeas corpus was declared void because the person bringing it did
not follow through; regarding the second and third, the
Government explained that additional writs cannot be brought on
the same subject, the same facts, and based on the same legal
provisions. As to the criminal complaints, the Government stated
that no evidence had been submitted and, although presumptions
had been raised, no proof had been offered and that the proceeding
was still before Honduran courts until those guilty were
specifically identified. It stated that one of the proceedings was
dismissed for lack of evidence with respect to those accused who
appeared before the court, but not with regard to General Alvarez
Martínez, who was out of the country. Moreover, the Government
maintained that dismissal does not exhaust domestic remedies
because the extraordinary remedies of amparo, rehearing and
cassation may be invoked and, in the instant case, the statute of
limitations has not yet run, so the proceeding is pending.
76. The record ( infra Chapter V ) contains testimony of members
of the Legislative Assembly of Honduras, Honduran lawyers,
persons who were at one time disappeared, and relatives of
disappeared persons, which purports to show that in the period in
which the events took place, the legal remedies in Honduras were
ineffective in obtaining the liberty of victims of a practice of
enforced or involuntary disappearances ( hereinafter "
disappearance " or " disappearances " ), ordered or tolerated by the
Government. The record also contains dozens of newspaper
clippings which allude to the same practice. According to that
evidence, from 1981 to 1984 more than one hundred persons were
illegally detained, many of whom never reappeared, and, in
general, the legal remedies which the Government claimed were
available to the victims were ineffective.
77. That evidence also shows that some individuals were captured
and detained without due process and subsequently reappeared.
However, in some of those cases, the reappearances were not the
result of any of the legal remedies which, according to the
Government, would have been effective, but rather the result of
other circumstances, such as the intervention of diplomatic
missions or actions of human rights organizations.
78. The evidence offered shows that lawyers who filed writs of
habeas corpus were intimidated, that those who were responsible
for executing the writs were frequently prevented from entering or
inspecting the places of detention, and that occasional criminal
complaints against military or police officials were ineffective,
either because certain procedural steps were not taken or because
the complaints were dismissed without further proceedings.
79. The Government had the opportunity to call its own witnesses
to refute the evidence presented by the Commission, but failed to
do so. Although the Government's attorneys contested some of the
36 HRLAW 08281
points urged by the Commission, they did not offer convincing
evidence to support their arguments. The Court summoned as
witnesses some members of the armed forces mentioned during the
proceeding, but their testimony was insufficient to overcome the
weight of the evidence offered by the Commission to show that the
judicial and governmental authorities did not act with due diligence
in cases of disappearances. The instant case is such an example.
80. The testimony and other evidence received and not refuted
leads to the conclusion that, during the period under consideration,
although there may have been legal remedies in Honduras that
theoretically allowed a person detained by the authorities to be
found, those remedies were ineffective in cases of disappearances
because the imprisonment was clandestine; formal requirements
made them inapplicable in practice; the authorities against whom
they were brought simply ignored them, or because attorneys and
judges were threatened and intimidated by those authorities.
81. Aside from the question of whether between 1981 and 1984
there was a governmental policy of carrying out or tolerating the
disappearance of certain persons, the Commission has shown that
although writs of habeas corpus and criminal complaints were
filed, they were ineffective or were mere formalities. The evidence
offered by the Commission was not refuted and is sufficient to
reject the Government's preliminary objection that the case is
inadmissible because domestic remedies were not exhausted.
82. The Commission presented testimony and documentary
evidence to show that there were many kidnappings and
disappearances in Honduras from 1981 to 1984 and that those acts
were attributable to the Armed Forces of Honduras ( hereinafter "
Armed Forces " ), which was able to rely at least on the tolerance
of the Government. Three officers of the Armed Forces testified on
this subject at the request of the Court.
83. Various witnesses testified that they were kidnapped,
imprisoned in clandestine jails and tortured by members of the
Armed Forces ( testimony of Inés Consuelo Murillo, José Gonzalo
Flores Trejo, Virgilio Carías, Milton Jiménez Puerto, René
Velásquez Díaz and Leopoldo Aguilar Villalobos ).
84. Inés Consuelo Murillo testified that she was secretly held for
approximately three months. According to her testimony, she and
José Gonzalo Flores Trejo, whom she knew casually, were
captured on March 13, 1983 by men who got out of a car, shouted
that they were from Immigration and hit her with their weapons.
Behind them was another car which assisted in the capture. She
said she was blindfolded, bound, and driven presumably to San
Pedro Sula, where she was taken to a secret detention center. There
she was tied up, beaten, kept nude most of the time, not fed for
many days, and subjected to electrical shocks, hanging, attempts to
asphyxiate her, threats of burning her eyes, threats with weapons,
burns on the legs, punctures of the skin with needles, drugs and
sexual abuse. She admitted carrying false identification when
detained, but ten days later she gave them her real name. She stated
that thirty-six days after her detention she was moved to a place
near Tegucigalpa, where she saw military officers ( one of whom
was Second Lt. Marco Tulio Regalado Hernández ), papers with an
Army letterhead, and Armed Forces graduation rings. ThiS witness
added that she was finally turned over to the police and was
brought before a court. She was accused of some twenty crimes,
but her attorney was not allowed to present evidence and there was
no trial ( testimony of Inés Consuelo Murillo ).
85. Lt. Regalado Hernández said that he had no knowledge of the
case of Inés Consuelo Murillo, except for what he had read in the
newspaper ( testimony of Marco Tulio Regalado Hernández ).
86. The Government stated that it was unable to inform Ms.
Murillo's relatives of her detention because she was carrying false
identification, a fact which also showed, in the Government's
opinion, that she was not involved in lawful activities and was,
therefore, not telling the whole truth. It added that her testimony of
a casual relationship with José Gonzalo Flores Trejo was not
credible because both were clearly involved in criminal activities.
87. José Gonzalo Flores Trejo testified that he and Inés Consuelo
Murillo were kidnapped together and taken to a house presumably
located in San Pedro Sula, where his captors repeatedly forced his
head into a trough of water until he almost drowned, kept his hands
and feet tied, and hung him so that only his stomach touched the
ground. He also declared that, subsequently, in a place where he
was held near Tegucigalpa, his captors covered his head with a "
capucha " ( a piece of rubber cut from an inner tube, which
prevents a person from breathing through the mouth and nose ),
almost asphyxiating him, and subjected him to electric shocks. He
said he knew he was in the hands of the military because when his
blindfold was removed in order to take some pictures of him, he
saw a Honduran military officer and on one occasion when they
took him to bathe, he saw a military barracks. He also heard a
trumpet sound, orders being given and the report of a cannon (
testimony of José Gonzalo Flores Trejo ).
88. The Government argued that the testimony of the witness, a
Salvadoran national, was not credible because he attempted to
convince the Court that his encounters with Inés Consuelo Murillo
were of a casual nature. The Government added that both
individuals were involved in illicit activities.
89. Virgilio Carías, who was President of the Socialist Party of
Honduras, testified that he was kidnapped in broad daylight on
September 12, 1981, when 12 or 13 persons, armed with pistols,
carbines and automatic rifles, surrounded his automobile. He stated
that he was taken to a secret jail, threatened and beaten, and had no
food, water or bathroom facilities for four or five days. On the
tenth day, his captors gave him an injection in the arm and threw
him, bound, in the back of a pick-up truck. Subsequently, they
draped him over the back of a mule and set it walking through the
mountains near the Nicaraguan border, where he regained his
liberty ( testimony of Virgilio Carías ).
90. The Government indicated that this witness expressly admitted
that he opposed the Honduran government. The Government also
maintained that his answers were imprecise or evasive and argued
that, because the witness said he could not identify his captors, his
testimony was hearsay and of no evidentiary value since, in the
Government's view, he had no personal knowledge of the events
and only knew of them through others.
91. A Honduran attorney, who stated that he defended political
prisoners, testified that Honduran security forces detained him
without due process in 1982. He was held for ten days in a
clandestine jail, without charges, and was beaten and tortured
before he was brought before the court ( testimony of Milton
Jiménez Puerto ).
92. The Government affirmed that the witness was charged with
the crimes of threatening national security and possession of arms
that only the Armed Forces were authorized to carry and, therefore,
had a personal interest in discrediting Honduras with his testimony.
93. Another lawyer, who also said that he defended political
detainees and who testified on Honduran law, stated that personnel
of the Department of Special Investigations detained him in broad
daylight in Tegucigalpa on June 1, 1982, blindfolded him, took him
to a place he was unable to recognize and kept him without food or
water for four days. He was beaten and insulted. He said that he
could see through the blindfold that he was in a military installation
( testimony of René Velásquez Díaz ).
37 HRLAW 08281
94. The Government claimed that this witness made several false
statements regarding the law in force in Honduras and that his
testimony " lacks truth or force because it is not impartial and his
interest is to discredit the State of Honduras. "
95. The Court received testimony which indicated that somewhere
between 112 and 130 individuals were disappeared from 1981 to
1984. A former member of the Armed Forces testified that,
according to a list in the files of Battalion 316, the number might
be 140 or 150 ( testimony of Miguel Angel Pavón Salazar, Ramón
Custodio López, Efraín Díaz Arrivillaga and Florencio Caballero ).
96. The Court heard testimony from the President of the
Committee for the Defense of Human Rights in Honduras
regarding the existence of a unit within the Armed Forces which
carried out disappearances. According to his testimony, in 1980
there was a group called " the fourteen " under the command of
Major Adolfo Díaz, attached to the General Staff of the Armed
Forces. Subsequently, this group was replaced by " the ten, "
commanded by Capt. Alexander Hernández, and finally by
Battalion 316, a special operations group, with separate units
trained in surveillance, kidnapping, execution, telephone tapping,
etc. The existence of this group had always been denied until it was
mentioned in a communique of the Armed Forces in September
1986 ( testimony of Ramón Custodio López. See also the testimony
of Florencio Caballero ).
97. Alexander Hernández, now a Lieutenant Colonel, denied
having participated in the group " the ten, " having been a part of
Battalion 316, or having had any type of contact with it ( testimony
of Alexander Hernández ).
98. The current Director of Honduran Intelligence testified that he
learned from the files of his department that in 1984 an intelligence
battalion called 316 was created, the purpose of which was to
provide combat intelligence to the 101st, 105th and 110th
Brigades. He added that this battalion initially functioned as a
training unit, until the creation of the Intelligence School, to which
all its training functions were gradually transferred, and that the
Battalion was finally disbanded in September 1987. He stated that
there was never any group called " the fourteen " or " the ten " in
the Armed Forces or security forces ( testimony of Roberto Núñez
Montes ).
99. According to testimony on the modus operandi of the practice
of disappearances, the kidnappers followed a pattern: they used
automobiles with tinted glass ( which requires a special permit
from the Traffic Division ), without license plates or with false
plates, and sometimes used special disguises, such as wigs, false
mustaches, masks, etc. The kidnappings were selective. The
victims were first placed under surveillance, then the kidnapping
was planned. Microbuses or vans were used. Some victims were
taken from their homes; others were picked up in public streets. On
one occasion, when a patrol car intervened, the kidnappers
identified themselves as members of a special group of the Armed
Forces and were permitted to leave with the victim ( testimony of
Ramón Custodio López, Miguel Angel Pavón Salazar, Efraín Díaz
Arrivillaga and Florencio Caballero ).
100. A former member of the Armed Forces, who said that he
belonged to Battalion 316 ( the group charged with carrying out the
kidnappings ) and that he had participated in some kidnappings,
testified that the starting point was an order given by the chief of
the unit to investigate an individual and place him under
surveillance. According to this witness, if a decision was made to
take further steps, the kidnapping was carried out by persons in
civilian clothes using pseudonyms and disguises and carrying arms.
The unit had four double-cabin Toyota pick-up trucks without
police markings for use in kidnappings. Two of the pickups had
tinted glass ( testimony of Florencio Caballero. See also testimony
of Virgilio Carías ).
101. The Government objected, under Article 37 of the Rules of
Procedure, to the testimony of Florencio Caballero because he had
deserted from the Armed Forces and had violated his military oath.
By unanimous decision of October 6, 1987, the Court rejected the
challenge and reserved the right to consider his testimony.
102. The current Director of Intelligence of the Armed Forces
testified that intelligence units do not carry out detentions because
they " get burned " ( are discovered ) and do not use pseudonyms
or automobiles without license plates. He added that Florencio
Caballero never worked in the intelligence services and that he was
a driver for the Army General Headquarters in Tegucigalpa (
testimony of Roberto Núñez Montes ).
103. The former member of the Armed Forces confirmed the
existence of secret jails and of specially chosen places for the
burial of those executed. He also related that there was a torture
group and an interrogation group in his unit, and that he belonged
to the latter. The torture group used electric shock, the water barrel
and the " capucha. " They kept the victims nude, without food, and
threw cold water on them. He added that those selected for
execution were handed over to a group of former prisoners,
released from jail for carrying out executions, who used firearms at
first and then knives and machetes ( testimony of Florencio
Caballero ).
104. The current Director of Intelligence denied that the Armed
Forces had secret jails, stating that it was not its modus operandi.
He claimed that it was subversive elements who do have such jails,
which they call " the peoples' prisons. " He added that the function
of an intelligence service is not to eliminate or disappear people,
but rather to obtain and process information to allow the highest
levels of government to make informed decisions ( testimony of
Roberto Núñez Montes ).
105. A Honduran officer, called as a witness by the Court, testified
that the use of violence or psychological means to force a detainee
to give information is prohibited ( testimony of Marco Tulio
Regalado Hernández ).
106. The Commission submitted many clippings from the
Honduran press from 1981 to 1984 which contain information on
at least 64 disappearances, which were apparently carried out
against ideological or political opponents or trade union members.
Six of those individuals, after their release, complained of torture
and other cruel, inhuman and degrading treatment. These clippings
mention secret cemeteries where 17 bodies had been found.
107. According to the testimony of his sister, eyewitnesses to the
kidnapping of Manfredo Velásquez told her that he was detained
on September 12, 1981, between 4:30 and 5:00 p.m., in a parking
lot in downtown Tegucigalpa by seven heavily-armed men dressed
in civilian clothes ( one of them being First Sgt. José Isaías Vilorio
), who used a white Ford without license plates ( testimony of
Zenaida Velásquez. See also testimony of Ramón Custodio López
).
108. This witness informed the Court that Col. Leonidas Torres
Arias, who had been head of Honduran military intelligence,
announced in a press conference in Mexico City that Manfredo
Velásquez was kidnapped by a special squadron commanded by
Capt. Alexander Hernández, who was carrying out the direct orders
of General Gustavo Alvarez Martínez ( testimony of Zenaida
Velásquez ).
109. Lt. Col. Hernández testified that he never received any order
to detain Manfredo Velásquez and had never worked in police
operations ( testimony of Alexander Hernández ).
38 HRLAW 08281
110. The Government objected, under Article 37 of the Rules of
Procedure, to the testimony of Zenaida Velásquez because, as sister
of the victim, she was a party interested in the outcome of the case.
111. The Court unanimously rejected the objection because it
considered the fact that the witness was the victim's sister to be
insufficient to disqualify her. The Court reserved the right to
consider her testimony.
112. The Government asserted that her testimony was irrelevant
because it did not refer to the case before the Court and that what
she related about the kidnapping of her brother was not her
personal knowledge but rather hearsay.
113. The former member of the Armed Forces who claimed to
have belonged to the group that carried out kidnappings told the
Court that, although he did not take part in the kidnapping of
Manfredo Velásquez, Lt. Flores Murillo had told him what had
happened. According to this testimony, Manfredo Velásquez was
kidnapped in downtown Tegucigalpa in an operation in which Sgt.
José Isaías Vilorio, men using the pseudonyms Ezequiel and
Titanio, and Lt. Flores Murillo himself, took part. The Lieutenant
told him that during the struggle Ezequiel's gun went off and
wounded Manfredo in the leg. They took the victim to INDUMIL (
Military Industries ) where they tortured him. They then turned him
over to those in charge of carrying out executions who, at the
orders of General Alvarez, Chief of the Armed Forces, took him
out of Tegucigalpa and killed him with a knife and machete. They
dismembered his body and buried the remains in different places (
testimony of Florencio Caballero ).
114. The current Director of Intelligence testified that Jose Isaías
Vilorio was a file clerk of the DNI. He said he did not know Lt.
Flores Murillo and stated that INDUMIL had never been used as a
detention center ( testimony of Roberto Núñez Montes ).
115. One witness testified that he was taken prisoner on September
29, 1981 by five or six persons who identified themselves as
members of the Armed Forces and took him to the offices of DNI.
They blindfolded him and took him in a car to an unknown place,
where they tortured him. On October 1, 1981, while he was being
held, he heard a moaning and pained voice through a hole in the
door to an adjoining room. The person identified himself as
Manfredo Velásquez and asked for help. According to the
testimony of the witness, at that moment Lt. Ramón Mejía came in
and hit him because he found him standing up, although the
witness told the Lieutenant that he had gotten up because he was
tired. He added that, subsequently, Sgt. Carlos Alfredo Martínez,
whom he had met at the bar where he worked, told him they had
turned Manfredo Velásquez over to members of Battalion 316 (
testimony of Leopoldo Aguilar Villalobos ).
116. The Government asserted that the testimony of this witness "
is not completely trustworthy because of discrepancies that should
not be overlooked, such as the fact that he had testified that he had
only been arrested once, in 1981, for trafficking in arms and
hijacking a plane, when the truth was that Honduran police had
arrested him on several occasions because of his unenviable record.
"
117. The Commission also presented evidence to show that from
1981 to 1984 domestic judicial remedies in Honduras were
ineffective in protecting human rights, especially the rights of
disappeared persons to life, liberty and personal integrity.
118. The Court heard the following testimony with respect to this
point:
"a. The legal procedures of Honduras were ineffective in
ascertaining the whereabouts of detainees and ensuring respect for
their physical and moral integrity. When writs of HABEAS corpus
were brought, the courts were slow to name judges to execute them
and, once named, those judges were often ignored by police
authorities. On several occasions, the authorities denied the
detentions, even in cases in which the prisoners were later released.
There were no judicial orders for the arrests and the places of
detention were unknown. When writs of HABEAS corpus were
formalized, the police authorities did not present the persons
named in the writs ( testimony of Miguel Angel Pavón Salazar,
Ramón Custodio López, Milton Jiménez Puerto and Efraín Díaz
Arrivillaga ).
b. The judges named by the Courts of Justice to execute the writs
did not enjoy all the necessary guarantees. Moreover, they feared
reprisals because they were often threatened. Judges were
imprisoned on more than one occasion and some of them were
physically mistreated by the authorities. Law professors and
lawyers who defended political prisoners were pressured not to act
in cases of human rights violations. Only two dared bring writs of
HABEAS corpus on behalf of disappeared persons and one of
those was arrested while he was filing a writ ( testimony of Milton
Jiménez Puerto, Miguel Angel Pavón Salazar, Ramón Custodio
López, Cesar Augusto Murillo, René Velásquez Díaz and Zenaida
Velásquez ).
c. In no case between 1981 and 1984 did a writ of HABEAS
corpus on behalf of a disappeared person prove effective. If some
individuals did reappear, this was not the result of such a legal
remedy ( testimony of Miguel Angel Pavón Salazar, Inés Consuelo
Murillo, Cesar Augusto Murillo, Milton Jiménez Puerto, René
Velásquez Díaz and Virgilio Carías )."
119. The testimony and documentary evidence, corroborated by
press clippings, presented by the Commission, tend to show:
"a. That there existed in Honduras from 1981 to 1984 a systematic
and selective practice of disappearances carried out with the
assistance or tolerance of the government;
b. That Manfredo Velásquez was a victim of that practice and was
kidnapped and presumably tortured, executed and clandestinely
buried by agents of the Armed Forces of Honduras, and
c. That in the period in which those acts occurred, the legal
remedies available in Honduras were not appropriate or effective to
guarantee his rights to life, liberty and personal integrity."
120. The Government, in turn, submitted documents and based its
argument on the testimony of three members of the Honduran
Armed Forces, two of whom were summoned by the Court because
they had been identified in the proceedings as directly involved in
the general practice referred to and in the disappearance of
Manfredo Velásquez. This evidence may be summarized as
follows:
"a. The testimony purports to explain the organization and
functioning of the security forces accused of carrying out the
specific acts and denies any knowledge of or personal involvement
in the acts of the officers who testified;
b. Some documents purport to show that no civil suit had been
brought to establish a presumption of the death of Manfredo
Velásquez, and
c. Other documents purport to prove that the Supreme Court of
Honduras received and acted upon some writs of HABEAS corpus
and that some of those writs resulted in the release of the persons
on whose behalf they were brought."
39 HRLAW 08281
121. The record contains no other direct evidence, such as expert
opinion, inspections or reports.
122. Before weighing the evidence, the Court must address some
questions regarding the burden of proof and the general criteria
considered in its evaluation and finding of the facts in the instant
proceeding.
123. Because the Commission is accusing the Government of the
disappearance of Manfredo Velásquez, it, in principle, should bear
the burden of proving the facts underlying its petition.
124. The Commission's argument relies upon the proposition that
the policy of disappearances, supported or tolerated by the
Government, is designed to conceal and destroy evidence of
disappearances. When the existence of such a policy or practice has
been shown, the disappearance of a particular individual may be
proved through circumstantial or indirect evidence or by logical
inference. Otherwise, it would be impossible to prove that an
individual has been disappeared.
125. The Government did not object to the Commission's
approach. Nevertheless, it argued that neither the existence of a
practice of disappearances in Honduras nor the participation of
Honduran officials in the alleged disappearance of Manfredo
Velásquez had been proven.
126. The Court finds no reason to consider the Commission's
argument inadmissible. If it can be shown that there was an official
practice of disappearances in Honduras, carried out by the
Government or at least tolerated by it, and if the disappearance of
Manfredo Velásquez can be linked to that practice, the
Commission's allegations will have been proven to the Court's
satisfaction, so long as the evidence presented on both points meets
the standard of proof required in cases such as this.
127. The Court must determine what the standards of proof should
be in the instant case. Neither the Convention, the Statute of the
Court nor its Rules of Procedure speak to this matter. Nevertheless,
international jurisprudence has recognized the power of the courts
to weigh the evidence freely, although it has always avoided a rigid
rule regarding the amount of proof necessary to support the
judgment ( Cfr. Corfu Channel, Merits, Judgment, I.C.J. Reports
1949; Military and Paramilitary Activities in and against Nicaragua
( Nicaragua v. United States of America ), Merits, Judgment, I.C.J.
Reports 1986, paras. 29-30 and 59-60 ).
128. The standards of proof are less formal in an international legal
proceeding than in a domestic one. The latter recognize different
burdens of proof, depending upon the nature, character and
seriousness of the case.
129. The Court cannot ignore the special seriousness of finding that
a State Party to the Convention has carried out or has tolerated a
practice of disappearances in its territory. This requires the Court to
apply a standard of proof which considers the seriousness of the
charge and which, notwithstanding what has already been said, is
capable of establishing the truth of the allegations in a convincing
manner.
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.
132. Since this Court is an international tribunal, it has its own
specialized procedures. All the elements of domestic legal
procedures are therefore not automatically applicable.
133. The above principle is generally valid in international
proceedings, but is particularly applicable in human rights cases.
134. The international protection of human rights should not be
confused with criminal justice. States do not appear before the
Court as defendants in a criminal action. The objective of
international human rights law is not to punish those individuals
who are guilty of violations, but rather to protect the victims and to
provide for the reparation of damages resulting from the acts of the
States responsible.
135. In contrast to domestic criminal law, in proceedings to
determine human rights violations the State cannot rely on the
defense that the complainant has failed to present evidence when it
cannot be obtained without the State's cooperation.
136. The State controls the means to verify acts occurring within
its territory. Although the Commission has investigatory powers, it
cannot exercise them within a State's jurisdiction unless it has the
cooperation of that State.
137. Since the Government only offered some documentary
evidence in support of its preliminary objections, but none on the
merits, the Court must reach its decision without the valuable
assistance of a more active participation by Honduras, which might
otherwise have resulted in a more adequate presentation of its case.
138. The manner in which the Government conducted its defense
would have sufficed to prove many of the Commission's
allegations by virtue of the principle that the silence of the accused
or elusive or ambiguous answers on its part may be interpreted as
an acknowledgment of the truth of the allegations, so long as the
contrary is not indicated by the record or is not compelled as a
matter of law. This result would not hold under criminal law,
which does not apply in the instant case ( supra 134 and 135 ). The
Court tried to compensate for this procedural principle by
admitting all the evidence offered, even if it was untimely, and by
ordering the presentation of additional evidence. This was done, of
course, without prejudice to its discretion to consider the silence or
inaction of Honduras or to its duty to evaluate the evidence as a
whole.
139. In its own proceedings and without prejudice to its having
considered other elements of proof, the Commission invoked
Article 42 of its Regulations, which reads as follows:
"The facts reported in the petition whose pertinent parts have been
transmitted to the government of the State in reference shall be
presumed to be true if, during the maximum period set by the
Commission under the provisions of Article 34 paragraph 5, the
government has not provided the pertinent information, as long as
other evidence does not lead to a different conclusion."
Because the Government did not object here to the use of this legal
presumption in the proceedings before the Commission and since
the Government fully participated in these proceedings, Article 42
is irrelevant here.
140. In the instant case, the Court accepts the validity of the
documents presented by the Commission
40 HRLAW 08281
and by Honduras, particularly because the parties did not oppose or
object to those documents nor did they question their authenticity
or veracity.
141. During the hearings, the Government objected, under Article
37 of the Rules of Procedure, to the testimony of witnesses called
by the Commission. By decision of October 6, 1987, the Court
rejected the challenge, holding as follows:
"b. The objection refers to circumstances under which, according
to the Government, the testimony of these witnesses might not be
objective.
c. It is within the Court's discretion, when rendering judgment, to
weigh the evidence.
d. A violation of the human rights set out in the Convention is
established by facts found by the Court, not by the method of
proof.
f. When testimony is questioned, the challenging party has the
burden of refuting that testimony."
142. During cross-examination, the Government's attorneys
attempted to show that some witnesses were not impartial because
of ideological reasons, origin or nationality, family relations, or a
desire to discredit Honduras. They even insinuated that testifying
against the State in these proceedings was disloyal to the nation.
Likewise, they cited criminal records or pending charges to show
that some witnesses were not competent to testify ( supra 86, 88,
90, 92, 101, 110 and 116 ).
143. It is true, of course, that certain factors may clearly influence a
witness' truthfulness.
However, the Government did not present any concrete evidence to
show that the witnesses had not told the truth, but rather limited
itself to making general observations regarding their alleged
incompetency or lack of impartiality. This is insufficient to rebut
testimony which is fundamentally consistent with that of other
witnesses. The Court cannot ignore such testimony.
144. Moreover, some of the Government's arguments are
unfounded within the context of human rights law. The insinuation
that persons who, for any reason, resort to the inter-American
system for the protection of human rights are disloyal to their
country is unacceptable and cannot constitute a basis for any
penalty or negative consequence. Human rights are higher values
that " are not derived from the fact that ( an individual ) is a
national of a certain state, but are based upon attributes of his
human personality " ( American Declaration of the Rights and
Duties of Man, Whereas clauses, and American Convention,
Preamble ).
145. Neither is it sustainable that having a criminal record or
charges pending is sufficient in and of itself to find that a witness is
not competent to testify in Court. As the Court ruled, in its decision
of October 6, 1987, in the instant case.
"under the American Convention on Human Rights, it is
impermissible to deny a witness, a priori, the possibility of
testifying to facts relevant to a matter before the Court, even if he
has an interest in that proceeding, because he has been prosecuted
or even convicted under internal laws."
146. Many of the press clippings offered by the Commission
cannot be considered as documentary evidence as such. However,
many of them contain public and well-known facts which, as such,
do not require proof; others are of evidentiary value, as has been
recognized in international jurisprudence ( Military and
Paramilitary Activities in and against Nicaragua, supra 127, paras.
62-64 ), insofar as they textually reproduce public statements,
especially those of high-ranking members of the Armed Forces, of
the Government, or even of the Supreme Court of Honduras, such
as some of those made by the President of the latter. Finally, others
are important as a whole insofar as they corroborate testimony
regarding the responsibility of the Honduran military and police for
disappearances.
147. The Court now turns to the relevant facts that it finds to have
been proven. They are as follows:
"a. During the period 1981 to 1984, 100 to 150 persons
disappeared in the Republic of Honduras, and many were never
heard from again ( testimony of Miguel Angel Pavón Salazar,
Ramón Custodio López, Efraín Díaz Arrivillaga, Florencio
Caballero and press clippings ).
b. Those disappearances followed a similar pattern, beginning with
the kidnapping of the victims by force, often in broad daylight and
in public places, by armed men in civilian clothes and disguises,
who acted with apparent impunity and who used vehicles without
any official identification, with tinted windows and with false
license plates or no plates ( testimony of Miguel Angel Pavón
Salazar, Ramón Custodio López, Efraín Díaz Arrivillaga, Florencio
Caballero and press clippings ).
c. It was public and notorious knowledge in Honduras that the
kidnappings were carried out by military personnel or the police, or
persons acting under their orders ( testimony of Miguel Angel
Pavón Salazar, Ramón Custodio López, Efraín Díaz Arrivillaga,
Florencio Caballero and press clippings ).
d. The disappearances were carried out in a systematic manner,
regarding which the Court considers the following circumstances
particularly relevant:
i. The victims were usually persons whom Honduran officials
considered dangerous to State security ( testimony of Miguel Angel
Pavón Salazar, Ramón Custodio López, Efraín Díaz Arrivillaga,
Florencio Caballero, Virgilio Carías, Milton Jiménez Puerto, René
Velásquez Díaz, Inés Consuelo Murillo, José Gonzalo Flores Trejo,
Zenaida Velásquez, Cesar Augusto Murillo and press clippings ).
In addition, the victims had usually been under surveillance for
long periods of time ( testimony of Ramón Custodio López and
Florencio Caballero );
ii. The arms employed were reserved for the official use of the
military and police, and the vehicles used had tinted glass, which
requires special official authorization. In some cases, Government
agents carried out the detentions openly and without any pretense
or disguise; in others, government agents had cleared the areas
where the kidnappings were to take place and, on at least one
occasion, when government agents stopped the kidnappers they
were allowed to continue freely on their way after showing their
identification ( testimony of Miguel Angel Pavón Salazar, Ramón
Custodio López and Florencio Caballero );
iii. The kidnappers blindfolded the victims, took them to secret,
unofficial detention centers and moved them from one center to
another. They interrogated the victims and subjected them to cruel
and humiliating treatment and torture. Some were ultimately
murdered and their bodies were buried in clandestine cemeteries (
testimony of Miguel Angel Pavón Salazar, Ramón Custodio López,
Florencio Caballero, René Velásquez Díaz, Inés Consuelo Murillo
and José Gonzalo Flores Trejo );
iv. When queried by relatives, lawyers and persons or entities
interested in the protection of human rights, or by judges charged
41 HRLAW 08281
with executing writs of HABEAS corpus, the authorities
systematically denied any knowledge of the detentions or the
whereabouts or fate of the victims. That attitude was seen even in
the cases of persons who later reappeared in the hands of the same
authorities who had systematically denied holding them or
knowing their fate ( testimony of Inés Consuelo Murillo, José
Gonzalo Flores Trejo, Efraín Díaz Arrivillaga, Florencio Caballero,
Virgilio Carías, Milton Jiménez Puerto, René Velásquez Diaz,
Zenaida Velásquez, Cesar Augusto Murillo and press clippings );
v. Military and police officials as well as those from the Executive
and Judicial Branches either denied the disappearances or were
incapable of preventing or investigating them, punishing those
responsible, or helping those interested discover the whereabouts
and fate of the victims or the location of their remains. The
investigative committees created by the Government and the
Armed Forces did not produce any results. The judicial
proceedings brought were processed slowly with a clear lack of
interest and some were ultimately dismissed ( testimony of Inés
Consuelo Murillo, José Gonzalo Flores Trejo, Efraín Díaz
Arrivillaga, Florencio Caballero, Virgilio Carías, Milton Jiménez
Puerto, René Velásquez Díaz, Zenaida Velásquez, César Augusto
Murillo and press clippings );
e. On September 12, 1981, between 4:30 and 5:00 p.m., several
heavily-armed men in civilian clothes driving a white Ford without
license plates kidnapped Manfredo Velásquez from a parking lot in
downtown Tegucigalpa. Today, nearly seven years later, he
remains disappeared, which creates a reasonable presumption that
he is dead ( testimony of Miguel Angel Pavón Salazar, Ramón
Custodio López, Zenaida Velásquez, Florencio Caballero,
Leopoldo Aguilar Villalobos and press clippings ).
f. Persons connected with the Armed Forces or under its direction
carried out that kidnapping ( testimony of Ramón Custodio López,
Zenaida Velásquez, Florencio Caballero, Leopoldo Aguilar
Villalobos and press clippings ).
g. The kidnapping and disappearance of Manfredo Velásquez falls
within the systematic practice of disappearances referred to by the
facts deemed proved in paragraphs a-d. To wit:
i. Manfredo Velásquez was a student who was involved in
activities the authorities considered " dangerous " to national
security ( testimony of Miguel Angel Pavón Salazar, Ramón
Custodio López and Zenaida Velásquez ).
ii. The kidnapping of Manfredo Velásquez was carried out in broad
daylight by men in civilian clothes who used a vehicle without
license plates.
iii. In the case of Manfredo Velásquez, there were the same type of
denials by his captors and the Armed Forces, the same omissions
of the latter and of the Government in investigating and revealing
his whereabouts, and the same ineffectiveness of the courts where
three writs of HABEAS corpus and two criminal complaints were
brought ( testimony of Miguel Angel Pavón Salazar, Ramón
Custodio López, Zenaida Velásquez, press clippings and
documentary evidence ).
h. There is no evidence in the record that Manfredo Velásquez had
disappeared in order to join subversive groups, other than a letter
from the Mayor of Langue, which contained rumors to that effect.
The letter itself shows that the Government associated him with
activities it considered a threat to national security. However, the
Government did not corroborate the view expressed in the letter
with any other evidence. Nor is there any evidence that he was
kidnapped by common criminals or other persons unrelated to the
practice of disappearances existing at that time."
148. Based upon the above, the Court finds that the following facts
have been proven in this proceeding: ( 1 ) a practice of
disappearances carried out or tolerated by Honduran officials
existed between 1981 and 1984; ( 2 ) Manfredo Velásquez
disappeared at the hands of or with the acquiescence of those
officials within the framework of that practice; and ( 3 ) the
Government of Honduras failed to guarantee the human rights
affected by that practice.
149. Disappearances are not new in the history of human rights
violations. However, their systematic and repeated nature and their
use not only for causing certain individuals to disappear, either
briefly or permanently, but also as a means of creating a general
state of anguish, insecurity and fear, is a recent phenomenon.
Although this practice exists virtually worldwide, it has occurred
with exceptional intensity in Latin America in the last few years.
150. The phenomenon of disappearances is a complex form of
human rights violation that must be understood and confronted in
an integral fashion.
151. The establishment of a Working Group on Enforced or
Involuntary Disappearances of the United Nations Commission on
Human Rights, by Resolution 20 ( XXXVI ) of February 29, 1980,
is a clear demonstration of general censure and repudiation of the
practice of disappearances, which had already received world
attention at the UN General Assembly ( Resolution 33/173 of
December 20, 1978 ), the Economic and Social Council (
Resolution 1979/38 of May 10, 1979 ) and the Subcommission for
the Prevention of Discrimination and Protection of Minorities (
Resolution 5B ( XXXII ) of September 5, 1979 ). The reports of the
rapporteurs or special envoys of the Commission on Human Rights
show concern that the practice of disappearances be stopped, the
victims reappear and that those responsible be punished.
152. Within the inter-American system, the General Assembly of
the Organization of American States ( OAS ) and the Commission
have repeatedly referred to the practice of disappearances and have
urged that disappearances be investigated and that the practice be
stopped ( AG/RES.443 ( IX-0/79 ) of October 31, 1979;
AG/RES.510 ( X-0/80 ) of November 27, 1980; AG/RES.618 (
XII-0/82 ) of November 20, 1982; AG/RES.666 ( XIII-0/83 ) of
November 18, 1983; AG/RES.742 ( XIV-0/84 ) of November 17,
1984 and AG/RES.890 ( XVII-0/87 ) of November 14, 1987; Inter-
American Commission on Human Rights: Annual Report 1978, pp.
24-27; Annual Report, 1980-1981, pp. 113-114; Annual Report,
1982-1983, pp. 46-47; Annual Report, 1985-1986, pp. 37-40;
Annual Report, 1986-1987, pp. 277-284 and in many of its Country
Reports, such as OEA/Ser.L/V/II.49, doc. 19, 1980 ( Argentina );
OEA/Ser.L/V/II.66, doc. 17, 1985 ( Chile ) and
OEA/Ser.L/V/II.66, doc. 16, 1985 ( Guatemala ) ).
153. International practice and doctrine have often categorized
disappearances as a crime against humanity, although there is no
treaty in force which is applicable to the States Parties to the
Convention and which uses this terminology ( InterAmerican
Yearbook on Human Rights, 1985, pp. 368, 686 and 1102 ). The
General Assembly of the OAS has resolved that it " is an affront to
the conscience of the hemisphere and constitutes a crime against
humanity " ( AG/RES.666, supra ) and that " this practice is cruel
and inhuman, mocks the rule of law, and undermines those norms
which guarantee protection against arbitrary detention and the right
to personal security and safety " ( AG/RES.742, supra ).
154. Without question, the State has the right and duty to guarantee
its security. It is also indisputable that all societies suffer some
deficiencies in their legal orders. However, regardless of the
seriousness of certain actions and the culpability of the perpetrators
of certain crimes, the power of the State is not unlimited, nor may
the State resort to any means to attain its ends. The State is subject
42 HRLAW 08281
to law and morality. Disrespect for human dignity cannot serve as
the basis for any State action.
155. The forced disappearance of human beings is a multiple and
continuous violation of many rights under the Convention that the
States Parties are obligated to respect and guarantee. The
kidnapping of a person is an arbitrary deprivation of liberty, an
infringement of a detainee's right to be taken without delay before a
judge and to invoke the appropriate procedures to review the
legality of the arrest, all in violation of Article 7 of the Convention
which recognizes the right to personal liberty by providing that:
"1. Every person has the right to personal liberty and security.
2. No one shall be deprived of his physical liberty except for the
reasons and under the conditions established beforehand by the
constitution of the State Party concerned or by a law established
pursuant thereto.
3. No one shall be subject to arbitrary arrest or imprisonment.
4. Anyone who is detained shall be informed of the reasons for his
detention and shall be promptly notified of the charge or charges
against him.
5. Any person detained shall be brought promptly before a judge or
other officer authorized by law to exercise judicial power and shall
be entitled to trial within a reasonable time or to be released
without prejudice to the continuation of the proceedings. His
release may be subject to guarantees to assure his appearance for
trial.
6. Anyone who is deprived of his liberty shall be entitled to
recourse to a competent court, in order that the court may decide
without delay on the lawfulness of his arrest or detention and order
his release if the arrest or detention is unlawful. In States Parties
whose laws provide that anyone who believes himself to be
threatened with deprivation of his liberty is entitled to recourse to a
competent court in order that it may decide on the lawfulness of
such threat, this remedy may not be restricted or abolished. The
interested party or another person in his behalf is entitled to seek
these remedies."
156. Moreover, prolonged isolation and deprivation of
communication are in themselves cruel and inhuman treatment,
harmful to the psychological and moral integrity of the person and
a violation of the right of any detainee to respect for his inherent
dignity as a human being. Such treatment, therefore, violates
Article 5 of the Convention, which recognizes the right to the
integrity of the person by providing that:
"1. Every person has the right to have his physical, mental, and
moral integrity respected.
2. No one shall be subjected to torture or to cruel inhuman, or
degrading punishment or treatment. All persons deprived of their
liberty shall be treated with respect for the inherent dignity of the
human person."
In addition, investigations into the practice of disappearances and
the testimony of victims who have regained their liberty show that
those who are disappeared are often subjected to merciless
treatment, including all types of indignities, torture and other cruel,
inhuman and degrading treatment, in violation of the right to
physical integrity recognized in Article 5 of the Convention.
157. The practice of disappearances often involves secret execution
without trial, followed by concealment of the body to eliminate any
material evidence of the crime and to ensure the impunity of those
responsible. This is a flagrant violation of the right to life,
recognized in Article 4 of the Convention, the first clause of which
reads as follows:
"1. Every person has the right to have his life respected. m is right
shall be protected by law and, in general, from the moment of
conception. No one shall be arbitrarily deprived of his life."
158. The practice of disappearances, in addition to directly
violating many provisions of the Convention, such as those noted
above, constitutes a radical breach of the treaty in that it shows a
crass abandonment of the values which emanate from the concept
of human dignity and of the most basic principles of the inter-
American system and the Convention. The existence of this
practice, more over, evinces a disregard of the duty to organize the
State in such a manner as to guarantee the rights recognized in the
Convention, as set out below.
159. The Commission has asked the Court to find that Honduras
has violated the rights guaranteed to Manfredo Velasquez by
Articles 4, 5 and 7 of the Convention. The Government has denied
the charges and seeks to be absolved.
160. This requires the Court to examine the conditions under which
a particular act, which violates one of the rights recognized by the
Convention, can be imputed to a State Party thereby establishing its
international responsibility.
161. Article 1( 1 ) of the Convention provides:
"Article 1. Obligation to Respect Rights
1. The States Parties to this Convention undertake to respect the
rights and freedoms recognized herein and to ensure to all persons
subject to their jurisdiction the free and full exercise of those rights
and freedoms, without any discrimination for reasons of race,
color, sex, language, religion, political or other opinion, national or
social origin, economic status, birth, or any other social condition."
162. This article specifies the obligation assumed by the States
Parties in relation to each of the rights protected. Each claim
alleging that one of those rights has been infringed necessarily
implies that Article 1( 1 ) of the Convention has also been violated.
163. The Commission did not specifically allege the violation of
Article 1( 1 ) of the Convention, but that does not preclude the
Court from applying it. The precept contained therein constitutes
the generic basis of the protection of the rights recognized by the
Convention and would be applicable, in any case, by virtue of a
general principle of law, iura novit curia, on which international
jurisprudence has repeatedly relied and under which a court has the
power and the duty to apply the juridical provisions relevant to a
proceeding, even when the parties do not expressly invoke them ( "
Lotus ", Judgment No. 9, 1927, P.C.I.J., Series A No. 10, p. 31 and
Eur. Court H.R., Elandyside Case, Judgment of 7 December 1976,
Series A No. 24, para. 41 ).
164. Article 1( 1 ) is essential in determining whether a violation of
the human rights recognized by the Convention can be imputed to a
State Party. In effect, that article charges the States Parties with the
fundamental duty to respect and guarantee the rights recognized in
the Convention. Any impairment of those rights which can be
attributed under the rules of international law to the action or
omission of any public authority constitutes an act imputable to the
State, which assumes responsibility in the terms provided by the
Convention.
165. The first obligation assumed by the States Parties under
Article 1( 1 ) is " to respect the rights and freedoms " recognized by
43 HRLAW 08281
the Convention. The exercise of public authority has certain limits
which derive from the fact that human rights are inherent attributes
of human dignity and are, therefore, superior to the power of the
State. On another occasion, this Court stated:
"The protection of human rights, particularly the civil and political
rights set forth in the Convention, is in effect based on the
affirmation of the existence of certain inviolable attributes of the
individual that cannot be legitimately restricted through the
exercise of governmental power. These are individual domains that
are beyond the reach of the State or to which the State has but
limited access. Thus, the protection of human rights must
necessarily comprise the concept of the restriction of the exercise
of state power ( The Word " Laws" in Article 30 of the American
Convention on Human Rights, Advisory Opinion OC-6/86 of May
9, 1986. Series A No. 6, para. 21 )."
166. The second obligation of the States Parties is to " ensure " the
free and full exercise of the rights recognized by the Convention to
every person subject to its jurisdiction. This obligation implies the
duty of the States Parties to organize the governmental apparatus
and, in general, all the structures through which public power is
exercised, so that they are capable of juridically ensuring the free
and full enjoyment of human rights. As a consequence of this
obligation, the States must prevent, investigate and punish any
violation of the rights recognized by the Convention and,
moreover, if possible attempt to restore the right violated and
provide compensation as warranted for damages resulting from the
violation.
167. The obligation to ensure the free and full exercise of human
rights is not fulfilled by the existence of a legal system designed to
make it possible to comply with this obligation - it also requires the
government to conduct itself so as to effectively ensure the free and
full exercise of human rights.
168. The obligation of the States is, thus, much more direct than
that contained in Article 2, which reads:
"Article 2. Domestic Legal Effects
Where the exercise of any of the rights or freedoms referred to in
Article 1 is not already ensured by legislative or other provisions,
the States Parties undertake to adopt, in accordance with their
constitutional processes and the provisions of this Convention,
such legislative or other measures as may be necessary to give
effect to those rights or freedoms."
169. According to Article 1( 1 ), any exercise of public power that
violates the rights recognized by the Convention is illegal.
Whenever a State organ, official or public entity violates one of
those rights, this constitutes a failure of the duty to respect the
rights and freedoms set forth in the Convention.
170. This conclusion is independent of whether the organ or
official has contravened provisions of internal law or overstepped
the limits of his authority: under international law a State is
responsible for the acts of its agents undertaken in their official
capacity and for their omissions, even when those agents act
outside the sphere of their authority or violate internal law.
171. This principle suits perfectly the nature of the Convention,
which is violated whenever public power is used to infringe the
rights recognized therein. If acts of public power that exceed the
State's authority or are illegal under its own laws were not
considered to compromise that State's obligation under the treaty,
the system of protection provided for in the Convention would be
illusory.
172. Thus, in principle, any violation of rights recognized by the
Convention carried out by an act of public authority or by persons
who use their position of authority is imputable to the State.
However, this does not define all the circumstances in which a
State is obligated to prevent, investigate and punish human rights
violations, nor all the cases in which the State might be found
responsible for an infringement of those rights. An illegal act
which violates human rights and which is initially not directly
imputable to a State ( for example, because it is the act of a private
person or because the person responsible has not been identified )
can lead to international responsibility of the State, not because of
the act itself, but because of the lack of due diligence to prevent the
violation or to respond to it as required by the Convention.
173. Violations of the Convention cannot be founded upon rules
that take psychological factors into account in establishing
individual culpability. For the purposes of analysis, the intent or
motivation of the agent who has violated the rights recognized by
the Convention is irrelevant - the violation can be established even
if the identity of the individual perpetrator is unknown. What is
decisive is whether a violation of the rights recognized by the
Convention has occurred with the support or the acquiescence of
the government, or whether the State has allowed the act to take
place without taking measures to prevent it or to punish those
responsible. Thus, the Court's task is to determine whether the
violation is the result of a State's failure to fulfill its duty to respect
and guarantee those rights, as required by Article 1( 1 ) of the
Convention.
174. The State has a legal duty to take reasonable steps to prevent
human rights violations and to use the means at its disposal to carry
out a serious investigation of violations committed within its
jurisdiction, to identify those responsible, to impose the appropriate
punishment and to ensure the victim adequate compensation.
175. This duty to prevent includes all those means of a legal,
political, administrative and cultural nature that promote the
protection of human rights and ensure that any violations are
considered and treated as illegal acts, which, as such, may lead to
the punishment of those responsible and the obligation to
indemnify the victims for damages. It is not possible to make a
detailed list of all such measures, since they vary with the law and
the conditions of each State Party. Of course, while the State is
obligated to prevent human rights abuses, the existence of a
particular violation does not, in itself, prove the failure to take
preventive measures. On the other hand, subjecting a person to
official, repressive bodies that practice torture and assassination
with impunity is itself a breach of the duty to prevent violations of
the rights to life and physical integrity of the person, even if that
particular person is not tortured or assassinated, or if those facts
cannot be proven in a concrete case.
176. The State is obligated to investigate every situation involving
a violation of the rights protected by the Convention. If the State
apparatus acts in such a way that the violation goes unpunished and
the victim's full enjoyment of such rights is not restored as soon as
possible, the State has failed to comply with its duty to ensure the
free and full exercise of those rights to the persons within its
jurisdiction. The same is true when the State allows private persons
or groups to act freely and with impunity to the detriment of the
rights recognized by the Convention.
177. In certain circumstances, it may be difficult to investigate acts
that violate an individual's rights. The duty to investigate, like the
duty to prevent, is not breached merely because the investigation
does not produce a satisfactory result. Nevertheless, it 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
44 HRLAW 08281
effective search for the truth by the government. This is true
regardless of what agent is eventually found responsible for the
violation. Where the acts of private parties that violate the
Convention are not seriously investigated, those parties are aided in
a sense by the government, thereby making the State responsible
on the international plane.
178. In the instant case, the evidence shows a complete inability of
the procedures of the State of Honduras, which were theoretically
adequate, to carry out an investigation into the disappearance of
Manfredo Velásquez, and of the fulfillment of its duties to pay
compensation and punish those responsible, as set out in Article 1(
1 ) of the Convention.
179. As the Court has verified above, the failure of the judicial
system to act upon the writs brought before various tribunals in the
instant case has been proven. Not one writ of habeas corpus was
processed. No judge had access to the places where Manfredo
Velasquez might have been detained. The criminal complaint was
dismissed.
180. Nor did the organs of the Executive Branch carry out a serious
investigation to establish the fate of Manfredo Velasquez. There
was no investigation of public allegations of a practice of
disappearances nor a determination of whether Manfredo
Velásquez had been a victim of that practice. The Commission's
requests for information were ignored to the point that the
Commission had to presume, under Article 42 of its Regulations,
that the allegations were true. The offer of an investigation in
accord with Resolution 30/83 of the Commission resulted in an
investigation by the Armed Forces, the same body accused of
direct responsibility for the disappearances. This raises grave
questions regarding the seriousness of the investigation. The
Government often resorted to asking relatives of the victims to
present conclusive proof of their allegations even though those
allegations, because they involved crimes against the person,
should have been investigated on the Government's own initiative
in fulfillment of the State's duty to ensure public order. This is
especially true when the allegations refer to a practice carried out
within the Armed Forces, which, because of its nature, is not
subject to private investigations. No proceeding was initiated to
establish responsibility for the disappearance of Manfredo
Velásquez and apply punishment under internal law. All of the
above leads to the conclusion that the Honduran authorities did not
take effective action to ensure respect for human rights within the
jurisdiction of that State as required by Article 1( 1 ) of the
Convention.
181. The duty to investigate facts of this type continues as long as
there is uncertainty about the fate of the person who has
disappeared. Even in the hypothetical case that those individually
responsible for crimes of this type cannot be legally punished
under certain circumstances, the State is obligated to use the means
at its disposal to inform the relatives of the fate of the victims and,
if they have been killed, the location of their remains.
182. The Court is convinced, and has so found, that the
disappearance of Manfredo Velásquez was carried out by agents
who acted under cover of public authority. However, even had that
fact not been proven, the failure of the State apparatus to act, which
is clearly proven, is a failure on the part of Honduras to fulfill the
duties it assumed under Article 1( 1 ) of the Convention, which
obligated it to ensure Manfredo Velásquez the free and full
exercise of his human rights.
183. The Court notes that the legal order of Honduras does not
authorize such acts and that internal law defines them as crimes.
The Court also recognizes that not all levels of the Government of
Honduras were necessarily aware of those acts, nor is there any
evidence that such acts were the result of official orders.
Nevertheless, those circumstances are irrelevant for the purposes of
establishing whether Honduras is responsible under international
law for the violations of human rights perpetrated within the
practice of disappearances.
184. According to the principle of the continuity of the State in
international law, responsibility exists both independently of
changes of government over a period of time and continuously
from the time of the act that creates responsibility to the time when
the act is declared illegal. The foregoing is also valid in the area of
human rights although, from an ethical or political point of view,
the attitude of the new government may be much more respectful
of those rights than that of the government in power when the
violations occurred.
185. The Court, therefore, concludes that the facts found in this
proceeding show that the State of Honduras is responsible for the
involuntary disappearance of Angel Manfredo Velásquez
Rodríguez. Thus, Honduras has violated Articles 7, 5 and 4 of the
Convention.
186. As a result of the disappearance, Manfredo Velasquez was the
victim of an arbitrary detention, which deprived him of his physical
liberty without legal cause and without a determination of the
lawfulness of his detention by a judge or competent tribunal. Those
acts directly violate the right to personal liberty recognized by
Article 7 of the Convention ( supra 155 ) and are a violation
imputable to Honduras of the duties to respect and ensure that right
under Article 1( 1 ).
187. The disappearance of Manfredo Velásquez violates the right
to personal integrity recognized by Article 5 of the Convention (
supra 156 ). First, the mere subjection of an individual to prolonged
isolation and deprivation of communication is in itself cruel and
inhuman treatment which harms the psychological and moral
integrity of the person, and violates the right of every detainee
under Article 5( 1 ) and 5( 2 ) to treatment respectful of his dignity.
Second, although it has not been directly shown that Manfredo
Velásquez was physically tortured, his kidnapping and
imprisonment by governmental authorities, who have been shown
to subject detainees to indignities, cruelty and torture, constitute a
failure of Honduras to fulfill the duty imposed by Article 1( 1 ) to
ensure the rights under Article 5( 1 ) and 5( 2 ) of the Convention.
The guarantee of physical integrity and the right of detainees to
treatment respectful of their human dignity require States Parties to
take reasonable steps to prevent situations which are truly harmful
to the rights protected.
188. The above reasoning is applicable to the right to life
recognized by Article 4 of the Convention ( supra 157 ). The
context in which the disappearance of Manfredo Velasquez
occurred and the lack of knowledge seven years later about his fate
create a reasonable presumption that he was killed. Even if there is
a minimal margin of doubt in this respect, it must be presumed that
his fate was decided by authorities who systematically executed
detainees without trial and concealed their bodies in order to avoid
punishment. This, together with the failure to investigate, is a
violation by Honduras of a legal duty under Article 1( 1 ) of the
Convention to ensure the rights recognized by Article 4( 1 ). That
duty is to ensure to every person subject to its jurisdiction the
inviolability of the right to life and the right not to have one's life
taken arbitrarily. These rights imply an obligation on the part of
States Parties to take reasonable steps to prevent situations that
could result in the violation of that right.
189. Article 63( 1 ) of the Convention provides:
"If the Court finds that there has been a violation of a right or
freedom protected by this Convention, the Court shall rule that the
injured party be ensured the enjoyment of his right or freedom that
was violated. It shall also rule, if appropriate, that the consequences
of the measure or situation that constituted the breach of such right
45 HRLAW 08281
or freedom be remedied and that fair compensation be paid to the
injured party."
Clearly, in the instant case the Court cannot order that the victim be
guaranteed the enjoyment of the rights or freedoms violated. The
Court, however, can rule that the consequences of the breach of the
rights be remedied and that just compensation be paid.
190. During this proceeding the Commission requested the
payment of compensation, but did not offer evidence regarding the
amount of damages or the manner of payment. Neither did the
parties discuss these matters.
191. The Court believes that the parties can agree on the damages.
If an agreement cannot be reached, the Court shall award an
amount. The case shall, therefore, remain open for that purpose.
The Court reserves the right to approve the agreement and, in the
event no agreement is reached, to set the amount and order the
manner of payment.
192. The Rules of Procedure establish the legal procedural
relations among the Commission, the State or States Parties in the
case and the Court itself, which continue in effect until the case is
no longer before the Court. As the case is still before the Court, the
Government and the Commission should negotiate the agreement
referred to in the preceding paragraph. The recipients of the award
of damages will be the next-of-kin of the victim. This does not in
any way imply a ruling on the meaning of the word " parties " in
any other context under the Convention or the rules pursuant
thereto.
193. With no pleading to support an award of costs, it is not proper
for the Court to rule on them ( Art. 45( 1 ), Rules of Procedure ).
194. THEREFORE,
THE COURT:
Unanimously
1. Rejects the preliminary objection interposed by the Government
of Honduras alleging the inadmissibility of the case for the failure
to exhaust domestic legal remedies.
Unanimously
2. Declares that Honduras has violated, in the case of Angel
Manfredo Velásquez Rodríguez, its obligations to respect and to
ensure the right to personal liberty set forth in Article 7 of the
Convention, read in conjunction with Article 1( 1 ) thereof.
Unanimously
3. Declares that Honduras has violated, in the case of Angel
Manfredo Velásquez Rodríguez, its obligations to respect and to
ensure the right to humane treatment set forth in Article 5 of the
Convention, read in conjunction with Article 1( 1 ) thereof.
Unanimously
4. Declares that Honduras has violated, in the case of Angel
Manfredo Velásquez Rodríguez, its obligation to ensure the right to
life set forth in Article 4 of the Convention, read in conjunction
with Article 1( 1 ) thereof.
Unanimously
5. Decides that Honduras is hereby required to pay fair
compensation to the next-of-kin of the victim.

By six votes to one

6. Decides that the form and amount of such compensation, failing

agreement between Honduras and the Commission within six
months of the date of this judgment, shall be settled by the Court
and, for that purpose, retains jurisdiction of the case.

Judge Rodolfo E. Piza E. dissenting.

Unanimously

7. Decides that the agreement on the form and amount of the

compensation shall be approved by the Court.

Unanimously

8. Does not find it necessary to render a decision concerning costs.

Done in Spanish and in English, the Spanish text being authentic,

at the seat of the Court in San Jose, Costa Rica, this twenty-ninth
day of July, 1988.

Rafael Nieto-Navia

President

Héctor Gros Espiell

Rodolfo E. Pieza E.

Thomas Buergenthal

Pedro Nikken

Héctor Fix Zamudio

Rigoberto Espinal Irías

Charles Moyer

Secretary

46 HRLAW 08281
NICARAGUA VS THE UNITED STATES: USE OF FORCE
AND SELF-DEFENSE CASE DIGEST
Overview:
The case involved military and paramilitary activities carried
out by the United States against Nicaragua from 1981 to
1984. Nicaragua asked the Court to find that these activities
violated international law.
Facts of the Case:
In July 1979, the Government of President Somoza was replaced
by a government installed by Frente Sandinista de
Liberacion Nacional (FSLN). Supporters of the former Somoza
Government and former members of the National Guard opposed
the new government. The US – initially supportive of the new
government – changed its attitude when, according to the United
States, it found that Nicaragua was providing logistical support and
weapons to guerrillas in El Salvador. In April 1981 the United
States stopped its aid to Nicaragua and in September 1981,
according to Nicaragua, the United States “decided to plan and
undertake activities directed against Nicaragua”.
The armed activities against the new Government was carried
out mainly by (1) Fuerza Democratica Nicaragüense (FDN),
which operated along the border with Honduras, and
(2) Alianza Revolucionaria Democratica (ARDE), which operated
along the border with Costa Rica. Initial US support to these
groups fighting against the Nicaraguan Government (called
“contras”) was covert. Later, the United States officially
acknowledged its support (for example: In 1983 budgetary
legislation enacted by the United States Congress made specific
provision for funds to be used by United States intelligence
agencies for supporting “directly or indirectly military or
paramilitary operations in Nicaragua”).
Nicaragua also alleged that the United States is effectively in
control of the contras, the United States devised their strategy and
directed their tactics, and that the contras were paid for and
directly controlled by the United States. Nicaragua also alleged that
some attacks against Nicaragua were carried out, directly, by the
United States military – with the aim to overthrow the Government
of Nicaragua. Attacks against Nicaragua included the mining of
Nicaraguan ports, and other attacks on ports, oil installations, and a
naval base. Nicaragua alleged that aircrafts belonging to the United
States flew over Nicaraguan territory to gather intelligence, supply
to the contras in the field, and to intimidate the population.
The United States did not appear before the ICJ at the merit stages,
after refusing to accept the ICJ’s jurisdiction to decide the case.
The United States at the jurisdictional phase of the hearing,
however, stated that it relied on an inherent right of collective self-
defence guaranteed in A. 51 of the UN Charter when it provided
“upon request proportionate and appropriate assistance…” to Costa
Rica, Honduras, and El Salvador in response to Nicaragua’s acts of
aggression against those countries (paras 126, 128).
Questions before the Court:
1. Did the United States violate its customary international
law obligation not to intervene in the affairs of another
State, when it trained, armed, equipped, and financed the
contra forces or when it encouraged, supported, and
aided the military and paramilitary activities against
Nicaragua?
2. Did the United States violate its customary international
law obligation not to use force against another State,
when it directly attacked Nicaragua in 1983 and 1984
47 HRLAW 08281
and when its activities in point (1) above resulted in the
use of force?
3. Can the military and paramilitary activities that the
United States undertook in and against Nicaragua be
justified as collective self-defence?
4. Did the United States breach its customary international
law obligation not to violate the sovereignty of another
State, when it directed or authorized its aircrafts to fly
over the territory of Nicaragua and because of acts
referred to in (2) above?
5. Did the United States breach its customary international
law obligations not to violate the sovereignty of another
State, not to intervene in its affairs, not to use force
against another State and not to interrupt peaceful
maritime commerce, when it laid mines in the internal
waters and in the territorial sea of Nicaragua?
The Court’s Decision:
The United States violated customary international law in relation
to (1), (2), (4) and (5) above. On (3), the Court found that the
United States could not rely on collective self-defence to justify its
use of force against Nicaragua.
Relevant Findings of the Court:
1. The Court held that the United States violated its customary
international law obligation not to use force against another
State when its activities with the contras resulted in the threat
or use of force (see paras 191-201).
The Court held that:
 The prohibition on the use of force is found both
in Article 2(4) of the Charter of the United Nations (UN
Charter) and in customary international law.
 In a controversial finding the Court sub-classified the use
of force as:
(1) “most grave forms of the use of force” (i.e. those that constitute
an armed attack); and
(2) “other less grave forms” of the use of force (i.e. organizing,
instigating, assisting, or participating in acts of civil strife and
terrorist acts in another State – when the acts referred to involve a
threat or use of force, but not amounting to an armed attack). (Para
191),
 The United States violated the customary international
law prohibition on the use of force when it laid mines in
Nicaraguan ports. It also violated this prohibition when it
attacked Nicaraguan ports, oil installations, and a naval
base (see below). The United States could only justify its
action on the basis of collective self-defence, if certain
criteria were met (these criteria are discussed below).
 The United States violated the customary international
law prohibition on the use of force when it assisted the
contras by “organizing or encouraging the organization
of irregular forces and armed bands… for incursion into
the territory of another state” and participated “in acts of
civil strife…in another State” and when these acts
involved the threat or use of force.
 The supply of funds to the contras did not violate the
prohibition on the use of force. On the contrary,
Nicaragua had previously argued before the Court that
 the United States determined the timing of offensives
against Nicaragua when it provided funds to the contras.
The Court held that “…it does not follow that each
provision of funds by the United States was made to set
in motion a particular offensive, and that that offensive
was planned by the United States.” The Court held
further that the arming and training of the contras and the
supply of funds, in itself, only amounted to acts of
intervention in the internal affairs of Nicaragua and did
not violate the prohibition on the use of force (para 227)
(again, this aspect will be discussed in detail below).
2. The Court held that the United States violated its customary
international law obligation not to use force against another
State when it directly attacked Nicaragua in 1983 and 1984 (see
paras 187 – 201).
Note: A controversial but interesting aspect of the Court’s
judgement was its definition of an armed attack. The Court held
that an armed attack included:
(1) action by regular armed forces across an international border;
and
(2) “the sending by or on behalf of a State of armed bands, groups,
irregulars or mercenaries, which carry out acts of (sic) armed force
against another State of such gravity as to amount to (inter alia) an
actual armed attack conducted by regular forces, or its (the State’s)
substantial involvement therein”.
Note also that that he second point somewhat resembles Article
3(g) of the UNGA Resolution 3314 (XXIX) on the Definition of
Aggression.
The Court further held that:
 Mere frontier incidents will not considered as armed
attacks, unless, because of its scale and effects, it would
have been classified as an armed attack had it
been carried out by regular forces.
 Assistance to rebels by providing weapons or logistical
support did not constitute an armed attack. Instead, it can
be regarded as a threat or use of force or an intervention
in the internal or external affairs of other States (see
paras 195, 230).
 Under Article 51 of the UN Charter and under CIL –
self-defence is only available against a use of force that
amounts to an armed attack (para 211).
Note: In in the ICJ’s Case Concerning Oil Platforms and the
ICJ’s Advisory Opinion on the Legal Consequences of of the
Construction of a Wall in the Occupied Palestinian
Territory (hereinafter called the Palestine wall case) the ICJ
confirmed the definition of an “armed attack” as proposed in the
Nicaragua case. Draft Articles on State Responsibility, prepared
by the International Law Commission, provides significant
guidance as to when acts of non-State actors may be attributed to
States. These articles, together with recent State practice relating
attacks on terrorists operating from other countries may have
widened the scope of an armed attack, and consequently, the right
of self defence, envisaged by the ICJ.
48 HRLAW 08281
3. The Court held that the United States could not justify its
military and paramilitary activities on the basis of collective self-
defence.
Note that Article 51 of the UN Charter sets out the treaty based
requirements on the exercise of the right of self-defense. It states:
“Nothing in the present Charter shall impair the inherent
right of individual or collectiveself-defence if an armed
attack occurs against a Member of the United Nations, until the
Security Council has taken measures necessary to maintain
international peace and security. Measures taken by Members in
the exercise of this right of self-defence shall be immediately
reported to the Security Council.”
The Court held that:
 Customary international law allows for exceptions to the
prohibition on the use of force, which includes the right
to individual or collective self-defence (see here for a
difference between individual and collective self
defense). The United States, at an earlier stage of the
proceedings, had also agreed that the UN Charter
acknowledges the existence of this customary
international law right when it talks of the “inherent”
right under Article 51 of the Charter (para.193).
 When a State claims that it used force in collective self-
defence, the Court would examine the following:
(1) Whether the circumstances required for the exercise of self-
defence existed; and
(2) Whether the steps taken by the State, which was acting in self-
defence, corresponds to the requirements of international law.
 Under international law, several requirements must
be met for a State to exercise the right of individual or
collective self-defence:
(1) A State must have been the victim of an armed attack;
(2) That State must declare itself as a victim of an armed attack.
The assessment on whether an armed attack had taken place or not,
is done by the State who was subjected to the attack. A third State
cannot exercise a right of collective self-defence based that third
State’s own assessment;
(3) In the case of collective self-defence, the victim State must
request for assistance. The Court held that “there is no rule
permitting the exercise of collective self-defence in the absence
of a request by the State which regards itself as the victim of an
armed attack”;
(4) A State that is attacked, does not, under customary
international law, have the same obligation as under Article 51 of
the UN Charter to report to the Security Council that an armed
attack happened – but the Court held that “the absence of a report
may be one of the factors indicating whether the State in question
was itself convinced that it was acting in self-defence” (see paras
200, 232 -236).
“…Whatever influence the Charter may have had on customary
international law in these matters, it is clear that in customary
international law it is not a condition of the lawfulness of the use of
force in self-defence that a procedure so closely dependent on the
content of a treaty commitment and of the institutions established
by it, should have been followed. On the other hand, if self-defence
is advanced as a justification for measures which would otherwise
be in breach both of the principle of customary international law
and of that contained in the Charter, it is to be expected that the
conditions of the Charter should be respected. Thus for the purpose
of enquiry into the customary law position, the absence of a report
may be one of the factors indicating whether the State in question
was itself convinced that it was acting in self-defence (See paras
200, 232 -236)”.
 The Court, then, looked extensively into the conduct of
Nicaragua, El Salvador, Costa Rica, and Honduras to
determine if (1) an armed attack was undertaken by
Nicaragua against the three countries, which in turn
would (2) necessitate those countries to act in self-
defence against Nicaragua (paras 230 – 236). The
Court noted that (1) none of the countries who were
allegedly subject to an armed attack by Nicaragua
declared themselves as victims of an armed attack; (2)
they did not request assistance from the United States to
exercise its right of self-defence; (3) the United
States did not claim that when it used force, it was acting
under Article 51 of the UN Charter; and (4) the United
States did not report that it was acting in self-defense to
the Security Council. The Court concluded that, based on
the above, the United States cannot justify its use of force
as collective self-defence.
 In any event, the Court held that the criteria relating to
necessity and proportionality, that is required to be
met when using force in self-defence – were also not
fulfilled (para 237).
4. The Court held that the United States breached its CIL
obligation not to intervene in the affairs of another State, when it
trained, armed, equipped and financed the contra forces or
encouraged, supported and aided the military and paramilitary
activities against Nicaragua.
The Court held that:
 The principle of non-intervention requires that every
State has a right to conduct its affairs without outside
interference. In other words, the principle “…forbids
States or groups of States to intervene directly or
indirectly in internal or external affairs of other States.”
This is a corollary of the principle of sovereign equality
of States. The Court held that:
“A prohibited intervention must accordingly be one bearing on
matters in which each State is permitted, by the principle of State
sovereignty to decide freely. One of these is the choice of a
political, economic, social and cultural system, and the formulation
of foreign policy. Intervention is wrongful when it uses methods of
coercion in regard to such choices, which must remain free ones.
The element of coercion, which defines, and indeed forms the very
essence of, prohibited intervention, is particularly obvious in the
case of an intervention which uses force, either in the direct form
of military action, or in the indirect form of support for subversive
or terrorist armed activities within another State (para 205).”
 Nicaragua stated that the activities of the United States
were aimed to overthrow the government of Nicaragua,
to substantially damage the economy and to weaken the
political system with the aim to coerce the Government
of Nicaragua to accept various political demands of the
United States. The Court concluded that:
“…first, that the United States intended, by its support of the
contras, to coerce the Government of Nicaragua in respect of
matters in which each State is permitted, by the principle of State
49 HRLAW 08281
sovereignty, to decide freely (see paragraph 205 above) ; and
secondly that the intention of the contras themselves was to
overthrow the present Government of Nicaragua… The Court
considers that in international law, if one State, with a view to the
coercion of another State, supports and assists armed bands in that
State whose purpose is to overthrow the government of that State,
that amounts to an intervention by the one State in the internal
affairs of the other, whether or not the political objective of the
State giving such support and assistance is equally far reaching.”
 The financial support, training, supply of weapons,
intelligence and logistic support given by the United
States to the contras violated the principle of non-
interference. “…(N)o such general right of intervention,
in support of an opposition within another State, exists in
contemporary international law”, even if such a request
for assistance is made by an opposition group of that
State
 However, in a controversial finding, the Court held that
the United States did not devise the strategy, direct the
tactics of the contras or exercise control on them in
manner so as to make their acts committed in violation of
international law imputable to the United States (see in
this respect “Determining US responsibility for contra
operations under international law” 81 AMJIL 86). The
Court concluded that “a number of military and
paramilitary operations of the contras were decided and
planned, if not actually by United States advisers, then at
least in close collaboration with them, and on the basis of
the intelligence and logistic support which the United
States was able to offer, particularly the supply aircraft
provided to the contras by the United States” but not all
contra operations reflected strategy and tactics wholly
devised by the United States.
“…the various forms of assistance provided to the contras by the
United States have been crucial to the pursuit of their activities, but
is insufficient to demonstrate their complete dependence on United
States aid. On the other hand, it indicates that in the initial years of
United States assistance the contra force was so dependent.
However, whether the United States Government at any stage
devised the strategy and directed the tactics of the contras depends
on the extent to which the United States made use of the potential
for control inherent in that dependence. The Court already
indicated that it has insufficient evidence to reach a finding on this
point. It is a fortiori unable to determine that the contra force may
be equated for legal purposes with the forces of the United
States…The Court has taken the view (paragraph 110 above) that
United States participation, even if preponderant or decisive, in the
financing, organizing, training, supplying and equipping of the
contras, the selection of its military or paramilitary targets, and the
planning of the whole of its operation, is still insufficient in itself,
on the basis of the evidence in the possession of the Court, for the
purpose of attributing to the United States the acts committed by
the contras in the course of their military or paramilitary operations
in Nicaragua. All the forms of United States participation
mentioned above, and even the general control by the respondent
State over a force with a high degree of dependency on it, would
not in themselves mean, without further evidence, that the United
States directed or enforced the perpetration of the acts contrary to
human rights and humanitarian law alleged by the applicant State.
Such acts could well be committed by members of the contras
without the control of the United States. For this conduct to give
rise to legal responsibility of the United States, it would in
principle have to be proved that that State had effective control of
the military or paramilitary.”
 Interesting, however, the Court also held that providing
“…humanitarian aid to persons or forces in another
country, whatever their political affiliations or objectives,
 cannot be regarded as unlawful intervention, or as in any
other way contrary to international law” (para 242).

 In the event one State intervenes in the affairs of another

State, the victim State has a right to intervene in a
manner that is short of an armed attack (210).

“While an armed attack would give rise to an entitlement to

collective self-defence, a use of force of a lesser degree of gravity
cannot as the Court has already observed (paragraph 211 above)
produce any entitlement to take collective countermeasures
involving the use of force. The acts of which Nicaragua is accused,
even assuming them to have been established and imputable to that
State, could only have justified proportionate counter-measures on
the part of the State which had been the victim of these acts,
namely El Salvador, Honduras or Costa Rica. They could not
justify counter-measures taken by a third State, the United States,
and particularly could not justify intervention involving the use of
force.”

5. The United States violated its customary international law

obligation not to violate the sovereignty of another State, when it
directed or authorized its aircrafts to fly over Nicaraguan
territory and when it laid mines in the internal waters of
Nicaragua and its territorial sea.

 The Court examined evidence and found that in early

1984 mines were laid in or close to ports of the territorial
sea or internal waters of Nicaragua “by persons in the
pay or acting ion the instructions” of the United
States and acting under its supervision with its logistical
support. The United States did not issue any warning on
the location or existence of mines and this resulted in
injuries and increases in maritime insurance rates.

 The Court found that the United States also carried out
high-altitude reconnaissance flights over Nicaraguan
territory and certain low-altitude flights, complained of
as causing sonic booms. It held that a State’s sovereignty
extends to its internal waters, its territorial sea, and the
airspace above its territory. The United States violated
customary international law when it laid mines in the
territorial sea and internal waters of Nicaragua and when
it carried out unauthorised overflights over Nicaraguan
airspace by aircrafts that belong to or was under the
control of the United States..

50 HRLAW 08281
In re Yamashita
Facts:
General Tomoyuki Yamashita is the Commanding General of the
Japanese Imperial Army. When he surrendered in 1945, an
American military commission tried him on charges that he
permitted atrocities against both civilians and prisoners of war, in
violation of the law of war.
The bills of particulars, filed by the prosecution by order of the
commission, allege a series of 123 acts, committed by members of
the forces under petitioner's command.
The first item specifies the execution of a 'a deliberate
plan and purpose to massacre and exterminate a large
part of the civilian population of Batangas Province, and
to devastate and destroy public, private and religious
property therein, as a result of which more than 25,000
men, women and children, all unarmed noncombatant
civilians, were brutally mistreated and killed, without
cause or trial, and entire settlements were devastated and
destroyed wantonly and without military necessity.'
Other items specify acts of violence, cruelty and
homicide inflicted upon the civilian population and
prisoners of war, acts of wholesale pillage and the
wanton destruction of religious monuments.
It is not denied that such acts directed against the civilian
population of an occupied country and against prisoners of war are
recognized in international law as violations of the law of war
under Fourth Hague Convention. But it is urged t at the charge
does not allege that petitioner has either committed or directed the
commission of such acts, and consequently that no violation is
charged as against him. But this overlooks the fact that the gist of
the charge is an unlawful breach of duty by petitioner as an army
commander to control the operations of the members of his
command by 'permitting them to commit' the extensive and
widespread atrocities specified.
The question then is whether the law of war imposes on an army
commander a duty to take such appropriate measures as are within
his power to control the troops under his command for the
prevention of the specified acts which are violations of the law of
war and which are likely to attend the occupation of hostile
territory by an uncontrolled soldiery, and whether he may be
charged with personal responsibility for his failure to take such
measures when violations result. That this was the precise issue to
be tried was made clear by the statement of the prosecution at the
opening of the trial.
Issue:
Yamashita’s counsel applied leave to file petitions for writs of
habeas corpus and prohibition, challenging the jurisdiction and
legal authority of the commission.
Held:
The writs were DENIED.
The court found that Congress had legally authorized the
commission's establishment under the war powers, and that the
charge was adequate to state a violation of the law of war.
51 HRLAW 08281
It is evident that the conduct of military operations by troops whose
excesses are unrestrained by the orders or efforts of their
commander would almost certainly result in violations which it is
the purpose of the law of war to prevent. Its purpose to protect
civilian populations and prisoners of war from brutality would
largely be defeated if the commander of an invading army could
with impunity neglect to take reasonable measures for their
protection. Hence the law of war presupposes that its violation is to
be avoided through the control of the operations of war by
commanders who are to some extent responsible for their
subordinates.
Command responsibility, sometimes referred to as the Yamashita
standard or the Medina standard, is the doctrine of hierarchical
accountability in cases of war crimes. The doctrine was established
by the Hague Conventions IV (1907) and X (1907).
The "Yamashita standard" is based upon the precedent set by the
United States Supreme Court in the case of Japanese General
Tomoyuki Yamashita. He was prosecuted, in a still controversial
trial, for atrocities committed by troops under his command in the
Philippines. Yamashita was charged with "unlawfully disregarding
and failing to discharge his duty as a commander to control the acts
of members of his command by permitting them to commit war
crimes."
The "Medina standard" is based upon the prosecution of US Army
Captain Ernest Medina in connection with the My Lai Massacre
during the Vietnam War. It holds that a commanding officer, being
aware of a human rights violation or a war crime, will be held
criminally liable when he does not take action. (Medina was,
however, acquitted of all charges.)
In re Yamashita
No. 61, Misc.
Argued January 7, 8, 1946
Decided February 4, 1946*
327 U.S. 1
Syllabus
Prior to September 3, 1945, petitioner was the Commanding
General of the Fourteenth Army Group of the Imperial Japanese
Army in the Philippine Islands. On that day, he surrendered to the
United States Army and became a prisoner of war. Respondent was
the Commanding General of the United States Army Forces,
Western Pacific, whose command embraced the Philippine Islands.
Respondent appointed a military commission to try the petitioner
on a charge of violation of the law of war. The gist of the charge
was that petitioner had failed in his duty as an army commander to
control the operations of his troops, "permitting them to commit"
specified atrocities against the civilian population and prisoners of
war. Petitioner was found guilty, and sentenced to death.
Held:
1. The military commission appointed to try the petitioner was
lawfully created. P. 327 U. S. 9.
(a) Nature of the authority to create military commissions for the
trial of enemy combatants for offenses against the law of war, and
principles governing the exercise of jurisdiction by such
commissions, considered. Citing Ex parte Quirin, 317 U. S. 1, and
other cases. Pp. 327 U. S. 7-9.
(b) A military commission may be appointed by any field
commander, or by any commander competent to appoint a general
court-martial, as was respondent by order of the President. P. 327
U. S. 10.
(c) The order creating the military commission was in conformity
with the Act of Congress (10 U.S.C. §§ 1471-1593) sanctioning
Page 327 U. S. 2
the creation of such tribunals for the trial of offenses against the
law of war committed by enemy combatants. P. 327 U. S. 11.
2. Trial of the petitioner by the military commission was lawful,
although hostilities had ceased. P. 327 U. S. 12.
(a) A violation of the law of war, committed before the cessation of
hostilities, may lawfully be tried by a military commission after
hostilities have ceased -- at least until peace has been officially
recognized by treaty or proclamation by the political branch of the
Government. P. 327 U. S. 12.
(b) Trial of the petitioner by the military commission was
authorized by the political branch of the Government, by military
command, by international law and usage, and by the terms of the
surrender of the Japanese government. P. 327 U. S. 13.
3. The charge preferred against the petitioner was of a violation of
the law of war. P. 327 U. S. 13.
(a) The law of war imposes on an army commander a duty to take
such appropriate measures as are within his power to control the
troops under his command for the prevention of acts which are
violations of the law of war and which are likely to attend the
occupation of hostile territory by an uncontrolled soldiery, and he
may be charged with personal responsibility for his failure to take
such measures when violations result. Pp. 327 U. S. 14, 327 U. S.
16.
(b) What measures, if any, petitioner took to prevent the alleged
violations of the law of war, and whether such measures as he may
have taken were appropriate and sufficient to discharge the duty
imposed upon him, were questions within the peculiar competence
of the military officers composing the commission, and were for it
to decide. P. 327 U. S. 16.
(c) Charges of violations of the law of war triable before a military
tribunal need not be stated with the precision of a common law
indictment. P. 327 U. S. 17.
(d) The allegations of the charge here, tested by any reasonable
standard, sufficiently set forth a violation of the law of war, and the
military commission had authority to try and to decide the issue
which it raised. P. 327 U. S. 17.
4. In admitting on behalf of the prosecution a deposition and
hearsay and opinion evidence, the military commission did not
violate any Act of Congress, treaty, or military command defining
the commission's authority. Pp. 327 U. S. 18, 327 U. S. 23.
(a) The Articles of War, including Articles 25 and 38, are not
applicable to the trial of an enemy combatant by a military
commission
Page 327 U. S. 3
52 HRLAW 08281
for violations of the law of war, and imposed no restrictions upon
the procedure to be followed in such trial. Pp. 327 U. S. 19-20.
(b) Article 63 of the Geneva Convention of 1929, which provides
that
"Sentence may be pronounced against a prisoner of war only by the
same courts and according to the same procedure as in the case of
persons belonging to the armed forces of the detaining Power,"
does not require that Articles 25 and 38 of the Articles of War be
applied in the trial of the petitioner. Article 63 refers to sentence
"pronounced against a prisoner of war" for an offense committed
while a prisoner of war, and not for a violation of the law of war
committed while a combatant. P. 327 U. S. 20.
(c) The Court expresses no opinion on the question of the wisdom
of considering such evidence as was received in this proceeding,
nor on the question whether the action of a military tribunal in
admitting evidence which Congress or controlling military
command has directed to be excluded may be drawn in question by
petition for habeas corpus or prohibition. P. 327 U. S. 23.
5. On an application for habeas corpus, the Court is not concerned
with the guilt or innocence of the petitioner. P. 327 U. S. 8.
6. By sanctioning trials of enemy aliens by military commission for
offenses against the law of war, Congress recognized the right of
the accused to make a defense, and did not foreclose their right to
contend that the Constitution or laws of the United States withhold
authority to proceed with the trial. P. 327 U. S. 9.
7. The Court does not appraise the evidence on which the petitioner
here was convicted. P. 327 U. S. 17.
8. The military commission's rulings on evidence and on the mode
of conducting the proceedings against the petitioner are not
reviewable by the courts, but only by the reviewing military
authorities. From this viewpoint, it is unnecessary to consider what,
in other situations, the Fifth Amendment might require. Pp. 327 U.
S. 8, 327 U. S. 23.
9. Article 60 of the Geneva Convention of 1929, which provides
that,
"At the opening of a judicial proceeding directed against a prisoner
of war, the detaining Power shall advise the representative of the
protecting Power thereof as soon as possible, and always before the
date set for the opening of the trial,"
applies only to persons who are subjected to judicial proceedings
for offenses committed while prisoners of war. P. 327 U. S. 23.
10. The detention of the petitioner for trial, and his detention upon
his conviction, subject to the prescribed review by the military
authorities, were lawful. P. 327 U. S. 25.
Leave and petition denied.
Page 328 U. S. 4
No. 61, Misc. Application for leave to file a petition for writs of
habeas corpus and prohibition in this Court challenging the
jurisdiction and legal authority of a military commission which
convicted applicant of a violation of the law of war and sentenced
him to be hanged. Denied.
No. 672. Petition for certiorari to review an order of the Supreme
Court of the Commonwealth of the Philippines, 42 Off.Gaz. 664,
denying an application for writs of habeas corpus and prohibition
likewise challenging the jurisdiction and legal authority of the
military commission which tried and convicted petitioner. Denied.
In re Yamashita
No. 61, Misc.
Argued January 7, 8, 1946
Decided February 4, 1946*
327 U.S. 1
APPLICATION FOR LEAVE TO FILE PETITION FOR WRIT OF
HABEAS CORPUS AND WRIT OF PROHIBITION
Syllabus
Prior to September 3, 1945, petitioner was the Commanding
General of the Fourteenth Army Group of the Imperial Japanese
Army in the Philippine Islands. On that day, he surrendered to the
United States Army and became a prisoner of war. Respondent was
the Commanding General of the United States Army Forces,
Western Pacific, whose command embraced the Philippine Islands.
Respondent appointed a military commission to try the petitioner
on a charge of violation of the law of war. The gist of the charge
was that petitioner had failed in his duty as an army commander to
control the operations of his troops, "permitting them to commit"
specified atrocities against the civilian population and prisoners of
war. Petitioner was found guilty, and sentenced to death.
Held:
1. The military commission appointed to try the petitioner was
lawfully created. P. 327 U. S. 9.
(a) Nature of the authority to create military commissions for the
trial of enemy combatants for offenses against the law of war, and
principles governing the exercise of jurisdiction by such
commissions, considered. Citing Ex parte Quirin, 317 U. S. 1, and
other cases. Pp. 327 U. S. 7-9.
(b) A military commission may be appointed by any field
commander, or by any commander competent to appoint a general
court-martial, as was respondent by order of the President. P. 327
U. S. 10.
(c) The order creating the military commission was in conformity
with the Act of Congress (10 U.S.C. §§ 1471-1593) sanctioning
Page 327 U. S. 2
the creation of such tribunals for the trial of offenses against the
law of war committed by enemy combatants. P. 327 U. S. 11.
2. Trial of the petitioner by the military commission was lawful,
although hostilities had ceased. P. 327 U. S. 12.
(a) A violation of the law of war, committed before the cessation of
hostilities, may lawfully be tried by a military commission after
hostilities have ceased -- at least until peace has been officially
recognized by treaty or proclamation by the political branch of the
Government. P. 327 U. S. 12.
53 HRLAW 08281
(b) Trial of the petitioner by the military commission was
authorized by the political branch of the Government, by military
command, by international law and usage, and by the terms of the
surrender of the Japanese government. P. 327 U. S. 13.
3. The charge preferred against the petitioner was of a violation of
the law of war. P. 327 U. S. 13.
(a) The law of war imposes on an army commander a duty to take
such appropriate measures as are within his power to control the
troops under his command for the prevention of acts which are
violations of the law of war and which are likely to attend the
occupation of hostile territory by an uncontrolled soldiery, and he
may be charged with personal responsibility for his failure to take
such measures when violations result. Pp. 327 U. S. 14, 327 U. S.
16.
(b) What measures, if any, petitioner took to prevent the alleged
violations of the law of war, and whether such measures as he may
have taken were appropriate and sufficient to discharge the duty
imposed upon him, were questions within the peculiar competence
of the military officers composing the commission, and were for it
to decide. P. 327 U. S. 16.
(c) Charges of violations of the law of war triable before a military
tribunal need not be stated with the precision of a common law
indictment. P. 327 U. S. 17.
(d) The allegations of the charge here, tested by any reasonable
standard, sufficiently set forth a violation of the law of war, and the
military commission had authority to try and to decide the issue
which it raised. P. 327 U. S. 17.
4. In admitting on behalf of the prosecution a deposition and
hearsay and opinion evidence, the military commission did not
violate any Act of Congress, treaty, or military command defining
the commission's authority. Pp. 327 U. S. 18, 327 U. S. 23.
(a) The Articles of War, including Articles 25 and 38, are not
applicable to the trial of an enemy combatant by a military
commission
Page 327 U. S. 3
for violations of the law of war, and imposed no restrictions upon
the procedure to be followed in such trial. Pp. 327 U. S. 19-20.
(b) Article 63 of the Geneva Convention of 1929, which provides
that
"Sentence may be pronounced against a prisoner of war only by the
same courts and according to the same procedure as in the case of
persons belonging to the armed forces of the detaining Power,"
does not require that Articles 25 and 38 of the Articles of War be
applied in the trial of the petitioner. Article 63 refers to sentence
"pronounced against a prisoner of war" for an offense committed
while a prisoner of war, and not for a violation of the law of war
committed while a combatant. P. 327 U. S. 20.
(c) The Court expresses no opinion on the question of the wisdom
of considering such evidence as was received in this proceeding,
nor on the question whether the action of a military tribunal in
admitting evidence which Congress or controlling military
command has directed to be excluded may be drawn in question by
petition for habeas corpus or prohibition. P. 327 U. S. 23.
5. On an application for habeas corpus, the Court is not concerned
with the guilt or innocence of the petitioner. P. 327 U. S. 8.
6. By sanctioning trials of enemy aliens by military commission for
offenses against the law of war, Congress recognized the right of
the accused to make a defense, and did not foreclose their right to
contend that the Constitution or laws of the United States withhold
authority to proceed with the trial. P. 327 U. S. 9.
7. The Court does not appraise the evidence on which the petitioner
here was convicted. P. 327 U. S. 17.
8. The military commission's rulings on evidence and on the mode
of conducting the proceedings against the petitioner are not
reviewable by the courts, but only by the reviewing military
authorities. From this viewpoint, it is unnecessary to consider what,
in other situations, the Fifth Amendment might require. Pp. 327 U.
S. 8, 327 U. S. 23.
9. Article 60 of the Geneva Convention of 1929, which provides
that,
"At the opening of a judicial proceeding directed against a prisoner
of war, the detaining Power shall advise the representative of the
protecting Power thereof as soon as possible, and always before the
date set for the opening of the trial,"
applies only to persons who are subjected to judicial proceedings
for offenses committed while prisoners of war. P. 327 U. S. 23.
10. The detention of the petitioner for trial, and his detention upon
his conviction, subject to the prescribed review by the military
authorities, were lawful. P. 327 U. S. 25.
Leave and petition denied.
Page 328 U. S. 4
No. 61, Misc. Application for leave to file a petition for writs of
habeas corpus and prohibition in this Court challenging the
jurisdiction and legal authority of a military commission which
convicted applicant of a violation of the law of war and sentenced
him to be hanged. Denied.
No. 672. Petition for certiorari to review an order of the Supreme
Court of the Commonwealth of the Philippines, 42 Off.Gaz. 664,
denying an application for writs of habeas corpus and prohibition
likewise challenging the jurisdiction and legal authority of the
military commission which tried and convicted petitioner. Denied.
MR. CHIEF JUSTICE STONE delivered the opinion of the Court.
No. 61 Miscellaneous is an application for leave to file a petition
for writs of habeas corpus and prohibition in this Court. No. 672 is
a petition for certiorari to review an order of the Supreme Court of
the the Philippines (28 U.S.C. § 349) denying petitioner's
application to that court for writs of habeas corpus and prohibition.
As both applications raise substantially like questions, and because
of the importance and novelty of some of those presented, we set
the two applications down for oral argument as one case.
Page 327 U. S. 5
From the petitions and supporting papers, it appears that, prior to
September 3, 1945, petitioner was the Commanding General of the
Fourteenth Army Group of the Imperial Japanese Army in the
Philippine Islands. On that date, he surrendered to and became a
prisoner of war of the United States Army Forces in Baguio,
54 HRLAW 08281
Philippine Islands. On September 25th, by order of respondent,
Lieutenant General Wilhelm D. Styer, Commanding General of the
United States Army Forces, Western Pacific, which command
embraces the Philippine Islands, petitioner was served with a
charge prepared by the Judge Advocate General's Department of
the Army, purporting to charge petitioner with a violation of the
law of war. On October 8, 1945, petitioner, after pleading not
guilty to the charge, was held for trial before a military commission
of five Army officers appointed by order of General Styer. The
order appointed six Army officers, all lawyers, as defense counsel.
Throughout the proceedings which followed, including those
before this Court, defense counsel have demonstrated their
professional skill and resourcefulness and their proper zeal for the
defense with which they were charged.
On the same date, a bill of particulars was filed by the prosecution,
and the commission heard a motion made in petitioner's behalf to
dismiss the charge on the ground that it failed to state a violation of
the law of war. On October 29th, the commission was reconvened,
a supplemental bill of particulars was filed, and the motion to
dismiss was denied. The trial then proceeded until its conclusion on
December 7, 1945, the commission hearing two hundred and
eighty-six witnesses, who gave over three thousand pages of
testimony. On that date, petitioner was found guilty of the offense
as charged, and sentenced to death by hanging.
The petitions for habeas corpus set up that the detention of
petitioner for the purpose of the trial was unlawful for
Page 327 U. S. 6
reasons which are now urged as showing that the military
commission was without lawful authority or jurisdiction to place
petitioner on trial, as follows:
(a) That the military commission which tried and convicted
petitioner was not lawfully created, and that no military
commission to try petitioner for violations of the law of war could
lawfully be convened after the cessation of hostilities between the
armed forces of the United States and Japan;
(b) that the charge preferred against petitioner fails to charge him
with a violation of the law of war;
(c) that the commission was without authority and jurisdiction to
try and convict petitioner, because the order governing the
procedure of the commission permitted the admission in evidence
of depositions, affidavits, and hearsay and opinion evidence, and
because the commission's rulings admitting such evidence were in
violation of the 25th and 38th Articles of War (10 U.S.C. §§ 1496,
1509) and the Geneva Convention (47 Stat. 2021), and deprived
petitioner of a fair trial in violation of the due process clause of the
Fifth Amendment;
(d) that the commission was without authority and jurisdiction in
the premises because of the failure to give advance notice of
petitioner's trial to the neutral power representing the interests of
Japan as a belligerent as required by Article 60 of the Geneva
Convention, 47 Stat. 2021, 2051.
On the same grounds, the petitions for writs of prohibition set up
that the commission is without authority to proceed with the trial.
The Supreme Court of the Philippine Islands, after hearing
argument, denied the petition for habeas corpus presented to it on
the ground, among others, that its jurisdiction was limited to an
inquiry as to the jurisdiction of the commission to place petitioner
on trial for the offense charged, and that the commission, being
validly constituted
Page 327 U. S. 7
by the order of General Styer, had jurisdiction over the person of
petitioner and over the trial for the offense charged.
In Ex parte Quirin, 317 U. S. 1, we had occasion to consider at
length the sources and nature of the authority to create military
commissions for the trial of enemy combatants for offenses against
the law of war. We there pointed out that Congress, in the exercise
of the power conferred upon it by Article I, § 8, Cl. 10, of the
Constitution to "define and punish . . . Offenses against the Law of
Nations . . . " of which the law of war is a part, had, by the Articles
of War (10 U.S.C. §§ 1471-1593), recognized the "military
commission" appointed by military command, as it had previously
existed in United States Army practice, as an appropriate tribunal
for the trial and punishment of offenses against the law of war.
Article 15 declares that
"the provisions of these articles conferring jurisdiction upon courts-
martial shall not be construed as depriving military commissions . .
. or other military tribunals of concurrent jurisdiction in respect of
offenders of offenses that, by statute or by the law of war, may be
triable by such military commissions . . . or other military
tribunals."
See a similar provision of the Espionage Act of 1917, 50 U.S.C. §
38. Article 2 includes among those persons subject to the Articles
of War the personnel of our own military establishment. But this,
as Article 12 indicates, does not exclude from the class of persons
subject to trial by military commissions "any other person who, by
the law of war, is subject to trial by military tribunals" and who,
under Article 12, may be tried by court martial, or, under Article
15, by military commission.
We further pointed out that Congress, by sanctioning trial of enemy
combatants for violations of the law of war by military
commission, had not attempted to codify the law of war or to mark
its precise boundaries. Instead, by Article 15, it had incorporated,
by reference, as within the
Page 327 U. S. 8
preexisting jurisdiction of military commissions created by
appropriate military command, all offenses which are defined as
such by the law of war and which may constitutionally be included
within that jurisdiction. It thus adopted the system of military
common law applied by military tribunals so far as it should be
recognized and deemed applicable by the courts, and as further
defined and supplemented by the Hague Convention, to which the
United States and the Axis powers were parties.
We also emphasized in Ex parte Quirin, as we do here, that, on
application for habeas corpus, we are not concerned with the guilt
or innocence of the petitioners. We consider here only the lawful
power of the commission to try the petitioner for the offense
charged. In the present cases, it must be recognized throughout that
the military tribunals which Congress has sanctioned by the
Articles of War are not courts whose rulings and judgments are
made subject to review by this Court. See Ex parte
Vallandingham, 1 Wall. 243; In re Vidal, 179 U. S. 126; cf. Ex
parte Quirin, supra, 317 U. S. 39. They are tribunals whose
determinations are reviewable by the military authorities either as
provided in the military orders constituting such tribunals or as
provided by the Articles of War. Congress conferred on the courts
no power to review their determinations save only as it has granted
judicial power "to grant writs of habeas corpus for the purpose of
an inquiry into the cause of the restraint of liberty." 28 U.S.C. §§
451, 452. The courts may inquire whether the detention
complained of is within the authority of those detaining the
petitioner. If the military tribunals have lawful authority to hear,
55 HRLAW 08281
decide, and condemn, their action is not subject to judicial review
merely because they have made a wrong decision on disputed facts.
Correction of their errors of decision is not for the courts, but for
the military authorities, which are alone authorized to review their
decisions. See Dynes v. Hoover, 20 How. 5, 61 U. S. 81; Runkle v.
United States, 122
Page 327 U. S. 9
U.S. 543, 122 U. S. 555-556; Carter v. McClaughry, 183 U. S.
365; Collins v. McDonald, 258 U. S. 416. Cf. Matter of
Moran, 203 U. S. 96, 203 U. S. 105.
Finally, we held in Ex parte Quirin, supra, 317 U. S. 24-25, as we
hold now, that Congress, by sanctioning trials of enemy aliens by
military commission for offenses against the law of war, had
recognized the right of the accused to make a defense. Cf. Ex parte
Kawato, 317 U. S. 69. It has not foreclosed their right to contend
that the Constitution or laws of the United States withhold
authority to proceed with the trial. It has not withdrawn, and the
Executive branch of the government could not, unless there was
suspension of the writ, withdraw from the courts the duty and
power to make such inquiry into the authority of the commission as
may be made by habeas corpus.
With these governing principles in mind, we turn to the
consideration of the several contentions urged to establish want of
authority in the commission. We are not here concerned with the
power of military commissions to try civilians. See Ex parte
Milligan, 4 Wall. 2, 71 U. S. 132; Sterling v. Constantin, 287 U. S.
378; Ex parte Quirin, supra, 317 U. S. 45. The Government's
contention is that General Styer's order creating the commission
conferred authority on it only to try the purported charge of
violation of the law of war committed by petitioner, an enemy
belligerent, while in command of a hostile army occupying United
States territory during time of war. Our first inquiry must therefore
be whether the present commission was created by lawful military
command, and, if so, whether authority could thus be conferred on
the commission to place petitioner on trial after the cessation of
hostilities between the armed forces of the United States and Japan.
The authority to create the Commission. General Styer's order for
the appointment of the commission was made by him as
Commander of the United States Armed Forces, Western Pacific.
His command includes, as part
Page 327 U. S. 10
of a vastly greater area, the Philippine Islands, where the alleged
offenses were committed, where petitioner surrender as a prisoner
of war, and where, at the time of the order convening the
commission, he was detained as a prisoner in custody of the United
States Army. The Congressional recognition of military
commissions and its sanction of their use in trying offenses against
the law of war to which we have referred sanctioned their creation
by military command in conformity to long established American
precedents. Such a commission may be appointed by any field
commander, or by any commander competent to appoint a general
court martial, as was General Styer, who had been vested with that
power by order of the President. 2 Winthrop, Military Law and
Precedents,2d Ed., *1302; cf. Article of War 8.
Here, the commission was not only created by a commander
competent to appoint it, but his order conformed to the established
policy of the Government and to higher military commands
authorizing his action. In a proclamation of July 2, 1942 (56 Stat.
1964), the President proclaimed that enemy belligerents who,
during time of war, enter the United States, or any territory
possession thereof, and who violate the law of war, should be
subject to the law of war and to the jurisdiction of military
tribunals. Paragraph 10 of the Declaration of Potsdam of July 6,
1945, declared that " . . . stern justice shall be meted out to all war
criminals, including those who have visited cruelties upon
prisoners." U.S. Dept. of State Bull., Vol. XIII, No. 318, pp. 137,
138. This Declaration was accepted by the Japanese government by
its note of August 10, 1945. U.S. Dept. of State Bull., Vol. XIII,
No. 320, p. 205.
By direction of the President, the Joint Chiefs of Staff of the
American Military Forces, on September 12, 1945, instructed
General MacArthur, Commander in Chief, United States Army
Forces, Pacific, to proceed with the trial, before
Page 327 U. S. 11
appropriate military tribunals, of such Japanese war criminals "as
have been or may be apprehended." By order of General
MacArthur of September 24, 1945, General Styer was specifically
directed to proceed with the trial of petitioner upon the charge here
involved. This order was accompanied by detailed rules and
regulations which General MacArthur prescribed for the trial of
war criminals. These regulations directed, among other things, that
review of the sentence imposed by the commission should be by
the officer convening it, with "authority to approve, mitigate, remit,
commute, suspend, reduce, or otherwise alter the sentence
imposed," and directed that no sentence of death should be carried
into effect until confirmed by the Commander in Chief, United
States Army Forces, Pacific.
It thus appears that the order creating the commission for the trial
of petitioner was authorized by military command, and was in
complete conformity to the Act of Congress sanctioning the
creation of such tribunals for the trial of offenses against the law of
war committed by enemy combatants. And we turn to the question
whether the authority to create the commission and direct the trial
by military order continued after the cessation of hostilities.
An important incident to the conduct of war is the adoption of
measures by the military commander not only to repel and defeat
the enemy, but to seize and subject to disciplinary measures those
enemies who, in their attempt to thwart or impede our military
effort, have violated the law of war. Ex parte Quirin, supra, 317
U. S. 28. The trial and punishment of enemy combatants who have
committed violations of the law of war is thus not only a part of the
conduct of war operating as a preventive measure against such
violations, but is an exercise of the authority sanctioned by
Congress to administer the system of military justice recognized by
the law of war. That sanction is without qualification as to the
exercise of this authority so
Page 327 U. S. 12
long as a state of war exists -- from its declaration until peace is
proclaimed. See United States v. Anderson, 9 Wall. 56, 76 U. S.
70; The Protector, 12 Wall. 700, 79 U. S. 702; McElrath v. United
States, 102 U. S. 426, 102 U. S. 438; Kahn v. Anderson, 255 U. S.
1, 255 U. S. 9-10. The war power, from which the commission
derives its existence, is not limited to victories in the field, but
carries with it the inherent power to guard against the immediate
renewal of the conflict, and to remedy, at least in ways Congress
has recognized, the evils which the military operations have
produced. See Stewart v. Kahn, 11 Wall. 493, 78 U. S. 507.
We cannot say that there is no authority to convene a commission
after hostilities have ended to try violations of the law of war
committed before their cessation, at least until peace has been
officially recognized by treaty or proclamation of the political
branch of the Government. In fact, in most instances, the practical
administration of the system of military justice under the law of
war would fail if such authority were thought to end with the
56 HRLAW 08281
cessation of hostilities. For only after their cessation could the
greater number of offenders and the principal ones be apprehended
and subjected to trial.
No writer on international law appears to have regarded the power
of military tribunals, otherwise competent to try violations of the
law of war, as terminating before the formal state of war has ended.
[Footnote 1] In our own military history,
Page 327 U. S. 13
there have been numerous instances in which offenders were tried
by military commission after the cessation of hostilities and before
the proclamation of peace, for offenses against the law of war
committed before the cessation of hostilities. [Footnote 2]
The extent to which the power to prosecute violations of the law of
war shall be exercised before peace is declared rests not with the
courts, but with the political branch of the Government, and may
itself be governed by the terms of an armistice or the treaty of
peace. Here, peace has not been agreed upon or proclaimed. Japan,
by her acceptance of the Potsdam Declaration and her surrender,
has acquiesced in the trials of those guilty of violations of the law
of war. The conduct of the trial by the military commission has
been authorized by the political branch of the Government, by
military command, by international law and usage, and by the
terms of the surrender of the Japanese government.
The Charge. Neither Congressional action nor the military orders
constituting the commission authorized it to place petitioner on
trial unless the charge preferred against him is of a violation of the
law of war. The charge, so far as now relevant, is that petitioner,
between October 9, 1944, and September 2, 1945, in the Philippine
Islands,
"while commander of armed forces of Japan at war with the United
States of America and its allies, unlawfully disregarded and failed
to discharge his duty as commander to
Page 327 U. S. 14
control the operations of the members of his command, permitting
them to commit brutal atrocities and other high crimes against
people of the United States and of its allies and dependencies,
particularly the Philippines, and he . . . thereby violated the laws of
war."
Bills of particulars, filed by the prosecution by order of the
commission, allege a a series of acts, one hundred and twenty-three
in number, committed by members of the forces under petitioner's
command during the period mentioned. The first item specifies the
execution of a
"a deliberate plan and purpose to massacre and exterminate a large
part of the civilian population of Batangas Province, and to
devastate and destroy public, private, and religious property
therein, as a result of which more than 25,000 men, women and
children, all unarmed noncombatant civilians, were brutally
mistreated and killed, without cause or trial, and entire settlements
were devastated and destroyed wantonly and without military
necessity."
Other items specify acts of violence, cruelty, and homicide
inflicted upon the civilian population and prisoners of war, acts of
wholesale pillage, and the wanton destruction of religious
monuments.
It is not denied that such acts directed against the civilian
population of an occupied country and against prisoners of war are
recognized in international law as violations of the law of war.
Articles 4, 28, 46, and 47, Annex to Fourth Hague Convention,
1907, 36 Stat. 2277, 2296, 2303, 2306, 2307. But it is urged that
the charge does not allege that petitioner has either committed or
directed the commission of such acts, and consequently that no
violation is charged as against him. But this overlooks the fact that
the gist of the charge is an unlawful breach of duty by petitioner as
an army commander to control the operations of the members of
his command by "permitting them to commit" the extensive and
widespread atrocities specified. The question, then, is whether the
law of war imposes
Page 327 U. S. 15
on an army commander a duty to take such appropriate measures as
are within his power to control the troops under his command for
the prevention of the specified acts which are violations of the law
of war and which are likely to attend the occupation of hostile
territory by an uncontrolled soldiery, and whether he may be
charged with personal responsibility for his failure to take such
measures when violations result. That this was the precise issue to
be tried was made clear by the statement of the prosecution at the
opening of the trial.
It is evident that the conduct of military operations by troops whose
excesses are unrestrained by the orders or efforts of their
commander would almost certainly result in violations which it is
the purpose of the law of war to prevent. Its purpose to protect
civilian populations and prisoners of war from brutality would
largely be defeated if the commander of an invading army could,
with impunity, neglect to take reasonable measures for their
protection. Hence, the law of war presupposes that its violation is
to be avoided through the control of the operations of war by
commanders who are to some extent responsible for their
subordinates.
This is recognized by the Annex to Fourth Hague Convention of
1907, respecting the laws and customs of war on land. Article I
lays down, as a condition which an armed force must fulfill in
order to be accorded the rights of lawful belligerents, that it must
be "commanded by a person responsible for his subordinates." 36
Stat. 2295. Similarly, Article 19 of the Tenth Hague Convention,
relating to bombardment by naval vessels, provides that
commanders in chief of the belligerent vessels "must see that the
above Articles are properly carried out." 36 Stat. 2389. And Article
26 of the Geneva Red Cross Convention of 1929, 47 Stat. 2074,
2092, for the amelioration of the condition of the wounded and sick
in armies in the field, makes it
"the duty of the commanders in chief of the belligerent
Page 327 U. S. 16
armies to provide for the details of execution of the foregoing
articles [of the convention], as well as for unforeseen cases."
And, finally, Article 43 of the Annex of the Fourth Hague
Convention, 36 Stat. 2306, requires that the commander of a force
occupying enemy territory, as was petitioner,
"shall take all the measures in his power to restore and ensure, as
far as possible, public order and safety, while respecting, unless
absolutely prevented, the laws in force in the country."
These provisions plainly imposed on petitioner, who at the time
specified was military governor of the Philippines as well as
commander of the Japanese forces, an affirmative duty to take such
measures as were within his power and appropriate in the
circumstances to protect prisoners of war and the civilian
57 HRLAW 08281
population. This duty of a commanding officer has heretofore been
recognized, and its breach penalized by our own military tribunals.
[Footnote 3] A like principle has been applied so as to impose
liability on the United States in international arbitrations. Case of
Jenaud, 3 Moore, International Arbitrations 3000; Case of "The
Zafiro," 5 Hackworth, Digest of International Law 707.
We do not make the laws of war, but we respect them so far as they
do not conflict with the commands of Congress or the Constitution.
There is no contention that the present charge, thus read, is without
the support of evidence, or that the commission held petitioner
responsible for failing to take measures which were beyond his
control or inappropriate for a commanding officer to take in the
circumstances. [Footnote 4]
Page 327 U. S. 17
We do not here appraise the evidence on which petitioner was
convicted. We do not consider what measures, if any, petitioner
took to prevent the commission, by the troops under his command,
of the plain violations of the law of war detailed in the bill of
particulars, or whether such measures as he may have taken were
appropriate and sufficient to discharge the duty imposed upon him.
These are questions within the peculiar competence of the military
officers composing the commission, and were for it to decide. See
Smith v. Whitney, 116 U. S. 167, 116 U. S. 178. It is plain that the
charge on which petitioner was tried charged him with a breach of
his duty to control the operations of the members of his command,
by permitting them to commit the specified atrocities. This was
enough to require the commission to hear evidence tending to
establish the culpable failure of petitioner to perform the duty
imposed on him by the law of war, and to pass upon its sufficiency
to establish guilt.
Obviously, charges of violations of the law of war triable before a
military tribunal need not be stated with the precision of a common
law indictment. Cf. Collins v. McDonald, supra, 258 U. S. 420.
But we conclude that the allegations of the charge, tested by any
reasonable standard, adequately allege a violation of the law of
war, and that the
Page 327 U. S. 18
commission had authority to try and decide the issue which it
raised. Cf. Dealy v. United States, 152 U. S. 539; Williamson v.
United States, 207 U. S. 425, 207 U. S. 447; Glasser v. United
States, 315 U. S. 60, 315 U. S. 66, and cases cited.
The Proceedings before the Commission. The regulations
prescribed by General MacArthur governing the procedure for the
trial of petitioner by the commission directed that the commission
should admit such evidence
"as, in its opinion, would be of assistance in proving or disproving
the charge, or such as, in the commission's opinion, would have
probative value in the mind of a reasonable man,"
and that, in particular, it might admit affidavits, depositions, or
other statements taken by officers detailed for that purpose by
military authority. The petitions in this case charged that, in the
course of the trial, the commission received, over objection by
petitioner's counsel, the deposition of a witness taken pursuant to
military authority by a United States Army captain. It also, over
like objection, admitted hearsay and opinion evidence tendered by
the prosecution. Petitioner argues, as ground for the writ of habeas
corpus, that Article 25 [Footnote 5] of the Articles of War
prohibited the reception in evidence by the commission of
depositions on behalf of the prosecution in a capital case, and that
Article 38 [Footnote 6] prohibited the reception of hearsay and of
opinion evidence.
Page 327 U. S. 19
We think that neither Article 25 nor Article 38 is applicable to the
trial of an enemy combatant by a military commission for
violations of the law of war. Article 2 of the Articles of War
enumerates "the persons . . . subject to these articles," who are
denominated, for purposes of the Articles, as "persons subject to
military law." In general, the persons so enumerated are members
of our own Army and of the personnel accompanying the Army.
Enemy combatants are not included among them. Articles 12, 13,
and 14, before the adoption of Article 15 in 1916, 39 Stat. 653,
made all "persons subject to military law" amenable to trial by
courts-martial for any offense made punishable by the Articles of
War. Article 12 makes triable by general court martial "any other
person who, by the law of war, is [triable] by military tribunals."
Since Article 2, in its 1916 form, 39 Stat. 651, includes some
persons who, by the law of war, were, prior to 1916, triable by
military commission, it was feared by the proponents of the 1916
legislation that, in the absence of a saving provision, the authority
given by Articles 12, 13, and 14 to try such persons before courts-
martial might be construed to deprive the nonstatutory military
commission of a portion of what was considered to be its
traditional jurisdiction. To avoid this, and to preserve that
jurisdiction intact, Article 15 was added to the Articles. [Footnote
7] It declared that
"The provisions of these articles
Page 327 U. S. 20
conferring jurisdiction upon courts-martial shall not be construed
as depriving military commissions . . . of concurrent jurisdiction in
respect of offenders or offenses that, by the law of war, may be
lawfully triable by such military commissions."
By thus recognizing military commissions in order to preserve their
traditional jurisdiction over enemy combatants unimpaired by the
Articles, Congress gave sanction, as we held in Ex parte Quirin, to
any use of the military commission contemplated by the common
law of war. But it did not thereby make subject to the Articles of
War persons other than those defined by Article 2 as being subject
to the Articles, nor did it confer the benefits of the Articles upon
such persons. The Articles recognized but one kind of military
commission, not two. But they sanctioned the use of that one for
the trial of two classes of persons, to one of which the Articles do,
and to the other of which they do not, apply in such trials. Being of
this latter class, petitioner cannot claim the benefits of the Articles,
which are applicable only to the members of the other class.
Petitioner, an enemy combatant, is therefore not a person made
subject to the Articles of War by Article 2, and the military
commission before which he was tried, though sanctioned, and its
jurisdiction saved, by Article 15, was not convened by virtue of the
Articles of War, but pursuant to the common law of war. It follows
that the Articles of War, including Articles 25 and 38, were not
applicable to petitioner's trial, and imposed no restrictions upon the
procedure to be followed. The Articles left the control over the
procedure in such a case where it had previously been -- with the
military command.
Petitioner further urges that, by virtue of Article 63 of the Geneva
Convention of 1929, 47 Stat. 2052, he is entitled to the benefits
afforded by the 25th and 38th Articles of War to members of our
own forces. Article 63 provides:
"Sentence may be pronounced against a prisoner of war
Page 327 U. S. 21
58 HRLAW 08281
only by the same courts and according to the same procedure as in
the case of persons belonging to the armed forces of the detaining
Power."
Since petitioner is a prisoner of war, and as the 25th and 38th
Articles of War apply to the trial of any person in our own armed
forces, it is said that Article 63 requires them to be applied in the
trial of petitioner. But we think examination of Article 63 in its
setting in the Convention plainly shows that it refers to sentence
"pronounced against a prisoner of war" for an offense committed
while a prisoner of war, and not for a violation of the law of war
committed while a combatant.
Article 63 of the Convention appears in part 3, entitled "Judicial
Suits," of Chapter 3, "Penalties Applicable to Prisoners of War," of
§ V, "Prisoners' Relations with the Authorities," one of the sections
of Title III, "Captivity." All taken together relate only to the
conduct and control of prisoners of war while in captivity as such.
Chapter 1 of Section V, Article 42, deals with complaints of
prisoners of war because of the conditions of captivity. Chapter 2,
Articles 43 and 44, relates to those of their number chosen by
prisoners of war to represent them.
Chapter 3 of Section V, Articles 45 through 67, is entitled
"Penalties Applicable to Prisoners of War." Part 1 of that chapter,
Articles 45 through 53, indicates what acts of prisoners of war
committed while prisoners shall be considered offenses, and
defines to some extent the punishment which the detaining power
may impose on account of such offenses. [Footnote 8] Punishment
is of two kinds -- "disciplinary" and
Page 327 U. S. 22
"judicial," the latter being the more severe. Article 52 requires that
leniency be exercised in deciding whether an offense requires
disciplinary or judicial punishment. Part 2 of Chapter 3 is entitled
"Disciplinary Punishments," and further defines the extent of such
punishment and the mode in which it may be imposed. Part 3,
entitled "Judicial Suits," in which Article 63 is found, describes the
procedure by which "judicial" punishment may be imposed. The
three parts of Chapter 3, taken together, are thus a comprehensive
description of the substantive offenses which prisoners of war may
commit during their imprisonment, of the penalties which may be
imposed on account of such offenses, and of the procedure by
which guilt may be adjudged and sentence pronounced.
We think it clear, from the context of these recited provisions, that
part 3, and Article 63 which it contains, apply only to judicial
proceedings directed against a prisoner of war for offenses
committed while a prisoner of war. Section
Page 327 U. S. 23
V gives no indication that this part was designed to deal with
offenses other than those referred to in parts 1 and 2 of chapter 3.
We cannot say that the commission, in admitting evidence to which
objection is now made, violated any act of Congress, treaty, or
military command defining the commission's authority. For reasons
already stated, we hold that the commission's rulings on evidence
and on the mode of conducting these proceedings against petitioner
are not reviewable by the courts, but only by the reviewing military
authorities. From this viewpoint, it is unnecessary to consider what,
in other situations, the Fifth Amendment might require, and as to
that, no intimation one way or the other is to be implied. Nothing
we have said is to be taken as indicating any opinion on the
question of the wisdom of considering such evidence, or whether
the action of a military tribunal in admitting evidence which
Congress or controlling military command has directed to be
excluded may be drawn in question by petition for habeas corpus
or prohibition.

Effect of failure to give notice of the trial to the protecting

power. Article 60 of the Geneva Convention of July 27, 1929, 47
Stat. 2051, to which the United States and Japan were signatories,
provides that,

"At the opening of a judicial proceeding directed against a prisoner

of war, the detaining Power shall advise the representative of the
protecting Power thereof as soon as possible, and always before the
date set for the opening of the trial."

Petitioner relies on the failure to give the prescribed notice to the

protecting power [Footnote 9] to establish want of authority in the
commission to proceed with the trial.

Page 327 U. S. 24

For reasons already stated, we conclude that Article 60 of the

Geneva Convention, which appears in part 3, Chapter 3, Section V,
Title III of the Geneva Convention, applies only to persons who are
subjected to judicial proceedings for offenses committed while
prisoners of war. [Footnote 10]

Page 327 U. S. 25

It thus appears that the order convening the commission was a

lawful order, that the commission was lawfully constituted, that
petitioner was charged with violation of the law of war, and that
the commission had authority to proceed with the trial, and, in
doing so, did not violate any military, statutory, or constitutional
command. We have considered, but find it unnecessary to discuss,
other contentions which we find to be without merit. We therefore
conclude that the detention of petitioner for trial and his detention
upon his conviction, subject to the prescribed review by the
military authorities, were lawful, and that the petition for certiorari,
and leave to file in this Court

Page 327 U. S. 26

petitions for writs of habeas corpus and prohibition should be, and
they are

Denied.

MR. JUSTICE JACKSON took no part in the consideration or

decision of these cases.

* Together with No. 672, Yamashita v. Styer, Commanding

General, on petition for writ of certiorari to the Supreme Court of
the the Philippines. For earlier orders in these cases, see 326 U.S.
693-694.

59 HRLAW 08281
Guanzon vs De Villa
Posted on March 2, 2017 by thecasedigester in Criminal
Procedure
181 SCRA 623; G.R. 80508; January 30, 1990

Facts:

The 41 petitioners alleged that the “saturation drive” or “aerial

target zoning” that were conducted in their place (Tondo
Manila) were unconstitutional. They alleged that there is no
specific target house to be search and that there is no search
warrant or warrant of arrest served. Most of the policemen are
in their civilian clothes and without nameplates or
identification cards. The residents were rudely rouse from their
sleep by banging on the walls and windows of their houses. The
residents were at the point of high-powered guns and herded
like cows. Men were ordered to strip down to their briefs for
the police to examine their tattoo marks. The residents
complained that they’re homes were ransacked, tossing their
belongings and destroying their valuables. Some of their money
and valuables had disappeared after the operation. The
residents also reported incidents of maulings, spot-beatings and
maltreatment. Those who were detained also suffered mental
and physical torture to extract confessions and tactical
informations.

The respondents said that such accusations were all lies.

Respondents contends that the Constitution grants to
government the power to seek and cripple subversive
movements for the maintenance of peace in the state. The
aerial target zoning were intended to flush out subversives and
criminal elements coddled by the communities were the said
drives were conducted. They said that they have intelligently
and carefully planned months ahead for the actual operation
and that local and foreign media joined the operation to
witness and record such event.

Issue:

Whether or Not the saturation drive committed consisted of

violation of human rights.

Held:

It is not the police action per se which should be prohibited

rather it is the procedure used or the methods which “offend
even hardened sensibilities” .Based on the facts stated by the
parties, it appears to have been no impediment to securing
search warrants or warrants of arrest before any houses were
searched or individuals roused from sleep were arrested.

There is no showing that the objectives sought to be attained by

the “aerial zoning” could not be achieved even as the rights of
the squatters and low income families are fully protected.
However, the remedy should not be brought by a tazpaer suit
where not one victim complaints and not one violator is
properly charged.

In the circumstances of this taxpayers’ suit, there is no erring

soldier or policeman whom the court can order prosecuted. In
the absence of clear facts no permanent relief can be given.

In the meantime where there is showing that some abuses were

committed, the court temporary restraint the alleged violations
which are shocking to the senses. Petition is remanded to the
RTC of Manila.
60 HRLAW 08281
G.R. No. 80508 January 30, 1990 6. August 28, 1987 at l0:30 PM, in Block 34, Dagat-
dagatan Navotas, Metro Manila.
EDDIE GUAZON, JOSEFINA CABRERA, YOLANDA
DACUNES, VIOLETA SEVILLA, QUERUBIN BILLONES, 7. August 30, 1987 at 9:30 PM at Paraiso Extension,
ESTELITA BILLONES, GORGONIA MACARAEG, Magsaysay Village, Tondo, Manila.
LAUREANA JOAQUIN, CRESTITA LICUP, SOLIDAD
ABURDO, ROSALINA VILLARDA, CONRADA 8. October 12, 1987 at 12:00 midnight in Apelo Cruz
HOBALANE, ERLINDA RESTORAN, VERIDIAN FLORA, Compound, Quezon City.
ROSELA CONDE, SOSIMA COSTO, JOSEFINA ALDIANO,
ROSALINA DOMINGO, ARESTIO YANGA, MILAGROS
GONZALES, ESTRELITA ESTARES, BONIFACIA 9. October 17, 1987 at 11:00 PM in Quirino Street,
ANTIVO, PATRIA VALLES, ERLINDA LEE, MELANIO Tondo, Manila.
GAROFIL, ERIBERTO MATEO, FRANCISCO
HORTILLANO, ANATALIA PESIMO, LOSENDO GARBO, 10. October 23, 1987 at 2:30 A.M. in Sun Valley Drive,
VIRGINIA LORESTO, LYDIA ELA, RAFAEL Manila International Airport, Pasay City.
VILLABRILLE, MA. RECHILDA SABALZA, EDITHA
MAAMO, ELENIETA BANOSA, ALEXANDER LABADO, 11. November 1, 1987 at 4:00 A.M. in Cordillera Street,
ANDREW GO, WYNEFREDO REYES, ROSARIO Sta. Mesa, Manila.
SESPENE, ROSA MARTIN and JAIME
BONGAT, petitioners,
vs. 12. November 3, 1987 at 5:00 A.M. in Lower Maricaban,
MAJ. GEN. RENATO DE VILLA, BRIG. GEN. Pasay City, Metro Manila.
ALEXANDER AGUIRRE, BRIG. GEN. RAMON
MONTANO, BRIG. GEN. ALFREDO LIM, and COL. JESUS According to the petitioners, the "areal target zonings" or saturation
GARCIA, respondents. drives" are in critical areas pinpointed by the military and police as
places where the subversives are hiding. The arrests range from
seven (7) persons during the July 20 saturation drive in Bangkusay,
Tondo to one thousand five hundred (1,500) allegedly apprehended
on November 3 during the drive at Lower Maricaban, Pasay City.
The petitioners claim that the saturation drives follow a common
GUTIERREZ, JR., J.: pattern of human rights abuses. In all these drives, it is alleged that
the following were committed:
This is a petition for prohibition with preliminary injunction to
prohibit the military and police officers represented by public 1. Having no specific target house in mind, in the dead of
respondents from conducting "Areal Target Zonings" or the night or early morning hours, police and military
"Saturation Drives" in Metro Manila. units without any search warrant or warrant of arrest
cordon an area of more than one residence and
The forty one (41) petitioners state that they are all of legal sometimes whole barangay or areas of barangay in Metro
age, bona fide residents of Metro Manila and taxpayers and leaders Manila. Most of them are in civilian clothes and without
in their respective communities. They maintain that they have a nameplates or identification cards.
common or general interest in the preservation of the rule of law,
protection of their human rights and the reign of peace and order in 2. These raiders rudely rouse residents from their sleep
their communities. They claim to represent "the citizens of Metro by banging on the walls and windows of their homes,
Manila who have similar interests and are so numerous that it is shouting, kicking their doors open (destroying some in
impracticable to bring them all before this Court." the process), and then ordering the residents within to
come out of their respective residences.
The public respondents, represented by the Solicitor General,
oppose the petition contending inter alia that petitioners lack 3. The residents at the point of high-powered guns are
standing to file the instant petition for they are not the proper herded like cows, the men are ordered to strip down to
parties to institute the action. their briefs and examined for tattoo marks and other
imagined marks.
According to the petitioners, the following "saturation drives" were
conducted in Metro Manila: 4. While the examination of the bodies of the men are
being conducted by the raiders, some of the members of
1. March 5, 1987 at about 9:30 PM in Tindalo, the raiding team force their way into each and every
Kagitingan, and Magdalena Streets, Tondo, Manila. house within the cordoned off area and then proceed to
conduct search of the said houses without civilian
2. June l9, 1987 at about l0:00 PM in Mata Street, witnesses from the neighborhood.
Panday Pira Extension and San Sebastian Street, Tondo,
Manila. 5. In many instances, many residents have complained
that the raiders ransack their homes, tossing about the
3. July 20, 1987 at about 8:00 AM in Bangkusay Street, residents' belongings without total regard for their value.
Tondo, Manila. In several instances, walls are destroyed, ceilings are
damaged in the raiders' illegal effort to 'fish' for
incriminating evidence.
4. August 11 to l3, 1987 between 11:00 PM and 2:00 AM
in six blocks along Aroma Beach up to Happy Land,
Magsaysay Village, Tondo, Manila. 6. Some victims of these illegal operations have
complained with increasing frequency that their money
and valuables have disappeared after the said operations.
5. August 19, 1987 at 9:00 PM in Herbosa Extension,
Quirino Street, and Pacheco Street, Tondo, Manila.
61 HRLAW 08281
 7. All men and some women who respond to these illegal
and unwelcome intrusions are arrested on the spot and
hauled off to waiting vehicles that take them to detention
centers where they are interrogated and 'verified.' These
arrests are all conducted without any warrants of arrest
duly issued by a judge, nor under the conditions that will
authorize warrantless arrest. Some hooded men are used
to fingerpoint suspected subversives.
8. In some instances, arrested persons are released after
the expiration of the period wherein they can be legally
detained without any charge at all. In other instances,
some arrested persons are released without charge after a
few days of arbitrary detention.
9. The raiders almost always brandish their weapons and
point them at the residents during these illegal
operations.
10. Many have also reported incidents of on-the-
spotbeatings, maulings and maltreatment.
11. Those who are detained for further 'verification' by
the raiders are subjected to mental and physical torture to
extract confessions and tactical information. (Rollo, pp.
2-4)
The public respondents stress two points in their Comment which
was also adopted as their Memorandum after the petition was given
due course.
First, the respondents have legal authority to conduct saturation
drives. And second, they allege that the accusations of the
petitioners about a deliberate disregard for human rights are total
lies.
Insofar as the legal basis for saturation drives is concerned, the
respondents cite Article VII, Section 17 of the Constitution which
provides:
The President shall have control of all the executive
departments, bureaus and offices. He shall ensure that
the laws be faithfully executed. (Emphasis supplied )
They also cite Section 18 of the same Article which provides:
The President shall be the 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 or rebellion. ...
There can be no question that under ordinary circumstances, the
police action of the nature described by the petitioners would be
illegal and blantantly violative of the express guarantees of the Bill
of Rights. If the military and the police must conduct concerted
campaigns to flush out and catch criminal elements, such drives
must be consistent with the constitutional and statutory rights of all
the people affected by such actions.
There is, of course, nothing in the Constitution which denies the
authority of the Chief Executive, invoked by the Solicitor General,
to order police actions to stop unabated criminality, rising
lawlessness, and alarming communist activities. The Constitution
grants to Government the power to seek and cripple subversive
movements which would bring down constituted authority and
substitute a regime where individual liberties are suppressed as a
matter of policy in the name of security of the State. However, all
police actions are governed by the limitations of the Bill of Rights.
The Government cannot adopt the same reprehensible methods of
62 HRLAW 08281
authoritarian systems both of the right and of the left, the
enlargement of whose spheres of influence it is trying hard to
suppress. Our democratic institutions may still be fragile but they
are not in the least bit strengthened through violations of the
constitutional protections which are their distinguishing features.
In Roan v. Gonzales (145 SCRA 687; 690-691 [1986]), the Court
stated:
One of the most precious rights of the citizen in a free
society is the right to be left alone in the privacy of his
own house. That right has ancient roots, dating back
through the mists of history to the mighty English kings
in their fortresses of power. Even then, the lowly subject
had his own castle where he was monarch of all he
surveyed. This was his humble cottage from which he
could bar his sovereign lord and all the forces of the
Crown.
That right has endured through the ages albeit only in a
few libertarian regimes. Their number, regrettably,
continues to dwindle against the onslaughts of
authoritarianism. We are among the fortunate few, able
again to enjoy this right after the ordeal of the past
despotism. We must cherish and protect it all the more
now because it is like a prodigal son returning.
That right is guaranteed in the following provisions of
Article IV of the 1973 Constitution:
SEC. 3. 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 not be violated, and no search warrant or
warrant of arrest shall issue except upon probable cause
to be determined by the judge, or such other responsible
officer as may be authorized by law, 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
Only last year, the Court again issued this reminder in 20th
Century Fox Film Corporation v. Court of Appeals (164 SCRA
655; 660- 661 [1988]):
This constitutional right protects a citizen against wanton
and unreasonable invasion of his privacy and liberty as to
his person, papers and effects. We have explained in the
case of People vs. Burgos (144 SCRA 1)
citing Villanueva v. Querubin (48 SCRA 345) why the
right is so important:
It is deference to one's personality that lies at the core of
this right, but it could be also looked upon as a
recognition of a constitutionally protected area, primarily
one's home, but not necessarily thereto confined. (Cf.
Hoffa v. United States, 385 US 293 [1966]) What is
sought to be guarded is a man's prerogative to choose
who is allowed entry to his residence. In that haven of
refuge, his individuality can assert itself not only in the
choice of who shall be welcome but likewise in the kind
of objects he wants around him. There the state, however
powerful, does not as such have access except under the
circumstances above noted, for in the traditional
formulation, his house, however humble, is his castle.
Thus is outlawed any unwarranted intrusion by
government, which is called upon to refrain from any
 invasion of his dwelling and to respect the privacies of
his life. (Cf. Schmerber v. California, 384 US 757
[1966], Brennan J. and Boyd v. United States, 11 6 630
[1886]). In the same vein, Landynski in his authoritative
work (Search and Seizure and the Supreme Court
[1966]), could fitly characterize constitutional right as
the embodiment of a spiritual concept: the belief that to
value the privacy of home and person and to afford its
constitutional protection against the long reach of
government is no less than to value human dignity, and
that his privacy must not be disturbed except in case of
overriding social need, and then only under stringent
procedural safeguards. (ibid, p. 74.)
The decision of the United States Supreme Court in Rochin v.
California, (342 US 165; 96 L. Ed. 183 [1952]) emphasizes clearly
that police actions should not be characterized by methods that
offend a sense of justice. The court ruled:
Applying these general considerations to the
circumstances of the present case, we are compelled to
conclude that the proceedings by which this conviction
was obtained do more than offend some fastidious
squeamishness or private sentimentalism about
combatting crime too energetically. This is conduct that
shocks the conscience. Illegally breaking into the privacy
of the petitioner, the struggle to open his mouth and
remove what was there, the forcible extraction of his
stomach's contents this course of proceeding by agents of
government to obtain evidence is bound to offend even
hardened sensibilities. They are methods too close to the
rack and the screw to permit of constitutional
differentiation.
It is significant that it is not the police action perse which is
impermissible and which should be prohibited. Rather, it is the
procedure used or in the words of the court, methods which "offend
even hardened sensibilities." In Breithaupt v. Abram (352 US 432,
1 L. Ed. 2nd 448 [1957]), the same court validated the use of
evidence, in this case blood samples involuntarily taken from the
petitioner, where there was nothing brutal or offensive in the
taking. The Court stated:
Basically the distinction rests on the fact that there is
nothing 'brutal' or 'offensive' in the taking of a sample of
blood when done, as in this case, under the protective eye
of a physician. To be sure, the driver here was
unconscious when the blood was taken, but the absence
of conscious consent, without more, does not necessarily
render the taking a violation of a constitutional light; and
certainly the rest was administered here would not be
considered offensive by even the most delicate.
Furthermore, due process is not measured by the
yardstick of personal reaction or the sphygmogram of the
most sensitive person, but by that whole community
sense of 'decency and fairness that has been woven by
common experience into the fabric of acceptable
conduct....
The individual's right to immunity from such invasion of his body
was considered as "far outweighed by the value of its deterrent
effect" on the evil sought to be avoided by the police action.
It is clear, therefore, that the nature of the affirmative relief hinges
closely on the determination of the exact facts surrounding a
particular case.
The violations of human rights alleged by the petitioners are
serious. If an orderly procedure ascertains their truth, not only a
writ of prohibition but criminal prosecutions would immediately
issue as a matter of course. A persistent pattern of wholesale and
63 HRLAW 08281
gross abuse of civil liberties, as alleged in the petition, has no place
in civilized society.
On the other hand, according to the respondents, the statements
made by the petitioners are a complete lie.
The Solicitor General argues:
This a complete lie.
Just the contrary, they had been conducted with due
regard to human rights. Not only that, they were
intelligently and carefully planned months ahead of the
actual operation. They were executed in coordination
with barangay officials who pleaded with their
constituents to submit themselves voluntarily for
character and personal verification. Local and foreign
correspondents, who had joined these operations,
witnessed and recorded the events that transpired relative
thereto. (After Operation Reports: November 5, 1987,
Annex 12; November 20, 1987, Annex 13; November 24,
1987, Annex 14). That is why in all the drives so far
conducted, the alleged victims who numbered thousands
had not themselves complained.
In her speech during turn-over rites on January 26, 1987
at Camp Aguinaldo, President Aquino branded all
accusations of deliberate disregard for human rights as
'total lies'. Here are excerpts from her strongest speech
yet in support of the military:
All accusations of a deliberate disregard for human
rights have been shown- up to be total lies.
...To our soldiers, let me say go out and fight, fight with
every assurance that I will stand by you through thick
and thin to share the blame, defend your actions, mourn
the losses and enjoy with you the final victory that I am
certain will be ours.
You and I will see this through together.
I've sworn to defend and uphold the Constitution.
We have wasted enough time answering their barkings
for it is still a long way to lasting peace. . . . The dangers
and hardships to our men in the field are great enough as
it is without having them distracted by tills worthless
carping at their backs.
Our counter-insurgency policy remains the same:
economic development to pull out the roots-and military
operations to slash the growth — of the insurgency.
The answer to terror is force — now.
Only feats of arms can buy us the time needed to make
our economic and social initiatives bear fruit. . . Now that
the extreme Right has been defeated, I expect greater
vigor in the prosecution of the war against the
communist insurgency, even as we continue to watch our
backs against attacks from the Right. (Philippine Star,
January 27, 1988, p. 1, Annex 15; emphasis supplied)
Viewed in the light of President Aquino's observation on
the matter, it can be said that petitioners misrepresent as
human rights violations the military and police's zealous
 vigilance over the people's right to live in peace and
safety. (Rollo, pp. 36-38)
Herein lies the problem of the Court. We can only guess the truth.
Everything before us consists of allegations. According to the
petitioners, more than 3,407 persons were arrested in the saturation
drives covered by the petition. No estimates are given for the
drives in Block 34, Dagat-dagatan, Navotas; Apelo Cruz
Compound, Pasig; and Sun Valley Drive near the Manila
International Airport area. Not one of the several thousand persons
treated in the illegal and inhuman manner described by the
petitioners appears as a petitioner or has come before a trial court
to present the kind of evidence admissible in courts of justice.
Moreover, there must have been tens of thousands of nearby
residents who were inconvenienced in addition to the several
thousand allegedly arrested. None of those arrested has apparently
been charged and none of those affected has apparently
complained.
A particularly intriguing aspect of the Solicitor General's
comments is the statement that local and foreign co-respondents
actually joined the saturation drives and witnessed and recorded the
events. In other words, the activities sought to be completely
proscribed were in full view of media. The sight of hooded men
allegedly being used to fingerpoint suspected subversives would
have been good television copy. If true, this was probably effected
away from the ubiquitous eye of the TV cameras or, as the
Solicitor General contends, the allegation is a "complete lie."
The latest attempt to stage a coup d'etat where several thousand
members of the Armed Forces of the Philippines sought to
overthrow the present Government introduces another aspect of the
problem and illustrates quite clearly why those directly affected by
human rights violations should be the ones to institute court actions
and why evidence of what actually transpired should first be
developed before petitions are filed with this Court.
Where there is large scale mutiny or actual rebellion, the police or
military may go in force to the combat areas, enter affected
residences or buildings, round up suspected rebels and otherwise
quell the mutiny or rebellion without having to secure search
warrants and without violating the Bill of Rights. This is exactly
what happened in the White Plains Subdivision and the commercial
center of Makati during the first week of December, 1989.
The areal target zonings in this petition were intended to flush out
subversives and criminal elements particularly because of the
blatant assassinations of public officers and police officials by
elements supposedly coddled by the communities where the
"drives" were conducted.
It is clear from the pleadings of both petitioners and respondents,
however, that there was no rebellion or criminal activity similar to
that of the attempted coup d' etats. There appears to have been no
impediment to securing search warrants or warrants of arrest before
any houses were searched or individuals roused from sleep were
arrested. There is no strong showing that the objectives sought to
be attained by the "areal zoning" could not be achieved even as the
rights of squatter and low income families are fully protected.
Where a violation of human rights specifically guaranteed by the
Constitution is involved, it is the duty of the court to stop the
transgression and state where even the awesome power of the state
may not encroach upon the rights of the individual. It is the duty of
the court to take remedial action even in cases such as the present
petition where the petitioners do not complain that they were
victims of the police actions, where no names of any of the
thousands of alleged victims are given, and where the prayer is a
general one to stop all police "saturation drives," as long as the
Court is convinced that the event actually happened.
64 HRLAW 08281
The Court believes it highly probable that some violations were
actually committed. This is so inspite of the alleged pleas of
barangay officials for the thousands of residents "to submit
themselves voluntarily for character and personal verification." We
cannot imagine police actions of the magnitude described in the
petitions and admitted by the respondents, being undertaken
without some undisciplined soldiers and policemen committing
certain abuses. However, the remedy is not to stop all police
actions, including the essential and legitimate ones. We see
nothing wrong in police making their presence visibly felt in
troubled areas. Police cannot respond to riots or violent
demonstrations if they do not move in sufficient numbers. A show
of force is sometimes necessary as long as the rights of people are
protected and not violated. A blanket prohibition such as that
sought by the petitioners would limit all police actions to one on
one confrontations where search warrants and warrants of arrests
against specific individuals are easily procured. Anarchy may reign
if the military and the police decide to sit down in their offices
because all concerted drives where a show of force is present are
totally prohibited.
The remedy is not an original action for prohibition brought
through a taxpayers' suit. Where not one victim complains and not
one violator is properly charged, the problem is not initially for the
Supreme Court. It is basically one for the executive departments
and for trial courts. Well meaning citizens with only second hand
knowledge of the events cannot keep on indiscriminately tossing
problems of the executive, the military, and the police to the
Supreme Court as if we are the repository of all remedies for all
evils. The rules of constitutional litigation have been evolved for an
orderly procedure in the vindication of rights. They should be
followed. If our policy makers sustain the contention of the
military and the police that occasional saturation drives are
essential to maintain the stability of government and to insure
peace and order, clear policy guidelines on the behavior of soldiers
and policemen must not only be evolved, they should also be
enforced. A method of pinpointing human rights abuses and
identifying violators is necessary.
The problem is appropriate for the Commission on Human Rights.
A high level conference should bring together the heads of the
Department of Justice, Department of National Defense and the
operating heads of affected agencies and institutions to devise
procedures for the prevention of abuses.
Under the circumstances of this taxpayers' suit, there is no erring
soldier or policeman whom we can order prosecuted. In the
absence of clear facts ascertained through an orderly procedure, no
permanent relief can be given at this time. Further investigation of
the petitioners' charges and a hard look by administration officials
at the policy implications of the prayed for blanket prohibition are
also warranted.
In the meantime and in the face of a prima facie showing that some
abuses were probably committed and could be committed during
future police actions, we have to temporarily restrain the alleged
banging on walls, the kicking in of doors, the herding of half-naked
men to assembly areas for examination of tattoo marks, the
violation of residences even if these are humble shanties of
squatters, and the other alleged acts which are shocking to the
conscience.
WHEREFORE, the petition is hereby REMANDED to the
Regional Trial Courts of Manila, Malabon, and Pasay City where
the petitioners may present evidence supporting their allegations
and where specific erring parties may be pinpointed and
prosecuted.
Copies of this decision are likewise forwarded to the Commission
on Human Rights, the Secretary of Justice, the Secretary of
National Defense, and the Commanding General PC-INP for the
drawing up and enforcement of clear guidelines to govern police
actions intended to abate riots and civil disturbances, flush out
criminal elements, and subdue terrorist activities.

In the meantime, the acts violative of human rights alleged by the

petitioners as committed during the police actions are ENJOINED
until such time as permanent rules to govern such actions are
promulgated.

65 HRLAW 08281
Cariño vs Human Rights, G.R. No. 96681 case brief summary
December 2, 1991
Facts: Some 800 public school teachers, among them members
of MPSTA and ACT undertook "mass concerted actions" after the
protest rally without disrupting classes as a last call for the
government to negotiate the granting of demands had elicited no
response from the Secretary of Education. The "mass actions"
consisted in staying away from their classes, converging at the
Liwasang Bonifacio, gathering in peaceable assembly. Secretary of
Education issued a return to work in 24 hours or face dismissal and
a memorandum directing the DECS officials and to initiate
dismissal proceedings against those who did not comply. After
failure to heed the order, the CHR complainant (private
respondents) were administratively charged and preventively
suspended for 90 days. The private respondents moved "for
suspension of the administrative proceedings pending resolution by
the Supreme Court of their application for issuance of an injunctive
writ/temporary restraining order. The motion was denied. The
respondent staged a walkout. The case was eventually decided
ordering the dismissal of Esber and suspension of others. The
petition for certiorari in RTC was dismissed. Petition for Certiorari
to the Supreme Court was also denied.
Respondent complainant filed a complaint on the Commission of
Human Rights alleging they were denied due process and
dismissed without due notice. The Commission issued an order to
Cariño to appear and enlighten the commission so that they can be
accordingly guided in its investigation and resolution of the matter.
Cariño filed a petition to Supreme Court for certiorari and
prohibition whether the Commission has the jurisdiction to try and
decide on the issue regarding denial of due process and whether or
not grievances justify their mass action or strike.
Issue: Does the Commission on have jurisdiction to adjudicate, try
and hear the issue?
Ruling: The Court declares the Commission on Human Rights to
have no such power. The most that may be conceded to the
Commission in the way of adjudicative power is that it
may investigate. But fact finding is not adjudication, and cannot be
likened to the judicial function of a court of justice, or even a
quasi-judicial agency or official. The Constitution clearly and
categorically grants to the Commission the power to investigate all
forms of human rights violations involving civil and political
rights. It does not however grant it the power to resolve
issues. The Commission on Human Rights, having merely the
power "to investigate," cannot and should not "try and resolve on
the merits" of the matters involved. These are matters within the
original jurisdiction of the Secretary of Education and within the
appellate jurisdiction of the Civil Service Commission and lastly,
the Supreme Court.
The petition is granted and respondent Commission on Human
Rights and the Chairman and Members thereof are prohibited "to
hear and resolve the case on the merits."
66 HRLAW 08281
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 96681 December 2, 1991
HON. ISIDRO CARIÑO, in his capacity as Secretary of the
Department of Education, Culture & Sports, DR. ERLINDA
LOLARGA, in her capacity as Superintendent of City Schools
of Manila, petitioners,
vs.
THE COMMISSION ON HUMAN RIGHTS, GRACIANO
BUDOY, JULIETA BABARAN, ELSA IBABAO, HELEN
LUPO, AMPARO GONZALES, LUZ DEL CASTILLO, ELSA
REYES and APOLINARIO ESBER, respondents.
NARVASA, J.:
The issue raised in the special civil action of certiorari and
prohibition at bar, instituted by the Solicitor General, may be
formulated as follows: where the relief sought from the
Commission on Human Rights by a party in a case consists of the
review and reversal or modification of a decision or order issued by
a court of justice or government agency or official exercising
quasi-judicial functions, may the Commission take cognizance of
the case and grant that relief? Stated otherwise, where a particular
subject-matter is placed by law within the jurisdiction of a court or
other government agency or official for purposes of trial and
adjudgment, may the Commission on Human Rights take
cognizance of the same subject-matter for the same purposes of
hearing and adjudication?
The facts narrated in the petition are not denied by the respondents
and are hence taken as substantially correct for purposes of ruling
on the legal questions posed in the present action. These
facts, 1 together with others involved in related cases recently
resolved by this Court 2 or otherwise undisputed on the record, are
hereunder set forth.
1. On September 17, 1990, a Monday and a class day, some 800
public school teachers, among them members of the Manila Public
School Teachers Association (MPSTA) and Alliance of Concerned
Teachers (ACT) undertook what they described as "mass concerted
actions" to "dramatize and highlight" their plight resulting from the
alleged failure of the public authorities to act upon grievances that
had time and again been brought to the latter's attention. According
to them they had decided to undertake said "mass concerted
actions" after the protest rally staged at the DECS premises on
September 14, 1990 without disrupting classes as a last call for the
government to negotiate the granting of demands had elicited no
response from the Secretary of Education. The "mass actions"
consisted in staying away from their classes, converging at the
Liwasang Bonifacio, gathering in peaceable assemblies, etc.
Through their representatives, the teachers participating in the mass
actions were served with an order of the Secretary of Education to
return to work in 24 hours or face dismissal, and a memorandum
directing the DECS officials concerned to initiate dismissal
proceedings against those who did not comply and to hire their
replacements. Those directives notwithstanding, the mass actions
continued into the week, with more teachers joining in the days
that followed. 3
Among those who took part in the "concerted mass actions" were
the eight (8) private respondents herein, teachers at the Ramon
Magsaysay High School, Manila, who had agreed to support the
non-political demands of the MPSTA. 4
2. For failure to heed the return-to-work order, the CHR
complainants (private respondents) were administratively charged
on the basis of the principal's report and given five (5) days to
answer the charges. They were also preventively suspended for
ninety (90) days "pursuant to Section 41 of P.D. 807" and
temporarily replaced (unmarked CHR Exhibits, Annexes F, G, H).
An investigation committee was consequently formed to hear the
charges in accordance with P.D. 807. 5
3. In the administrative case docketed as Case No. DECS 90-082 in
which CHR complainants Graciano Budoy, Jr., Julieta Babaran,
Luz del Castillo, Apolinario Esber were, among others, named
respondents, 6 the latter filed separate answers, opted for a formal
investigation, and also moved "for suspension of the administrative
proceedings pending resolution by . . (the Supreme) Court of their
application for issuance of an injunctive writ/temporary restraining
order." But when their motion for suspension was denied by Order
dated November 8, 1990 of the Investigating Committee, which
later also denied their motion for reconsideration orally made at the
hearing of November 14, 1990, "the respondents led by their
counsel staged a walkout signifying their intent to boycott the
entire proceedings." 7 The case eventually resulted in a Decision of
Secretary Cariño dated December 17, 1990, rendered after
evaluation of the evidence as well as the answers, affidavits and
documents submitted by the respondents, decreeing dismissal from
the service of Apolinario Esber and the suspension for nine (9)
months of Babaran, Budoy and del Castillo. 8
4. In the meantime, the "MPSTA filed a petition
for certiorari before the Regional Trial Court of Manila against
petitioner (Cariño), which was dismissed (unmarked CHR Exhibit,
Annex I). Later, the MPSTA went to the Supreme Court
(on certiorari, in an attempt to nullify said dismissal, grounded on
the) alleged violation of the striking teachers" right to due process
and peaceable assembly docketed as G.R. No. 95445, supra. The
ACT also filed a similar petition before the Supreme Court . . .
docketed as G.R. No. 95590." 9 Both petitions in this Court were
filed in behalf of the teacher associations, a few named individuals,
and "other teacher-members so numerous similarly situated" or
"other similarly situated public school teachers too numerous to be
impleaded."
5. In the meantime, too, the respondent teachers submitted sworn
statements dated September 27, 1990 to the Commission on
Human Rights to complain that while they were participating in
peaceful mass actions, they suddenly learned of their replacements
as teachers, allegedly without notice and consequently for reasons
completely unknown to them. 10
6. Their complaints — and those of other teachers also "ordered
suspended by the . . . (DECS)," all numbering forty-two (42) —
were docketed as "Striking Teachers CHR Case No. 90775." In
connection therewith the Commission scheduled a "dialogue" on
October 11, 1990, and sent a subpoena to Secretary Cariño
requiring his attendance therein. 11
On the day of the "dialogue," although it said that it was "not
certain whether he (Sec. Cariño) received the subpoena which was
served at his office, . . . (the) Commission, with the Chairman
presiding, and Commissioners Hesiquio R. Mallilin and Narciso C.
Monteiro, proceeded to hear the case;" it heard the complainants'
counsel (a) explain that his clients had been "denied due process
and suspended without formal notice, and unjustly, since they did
not join the mass leave," and (b) expatiate on the grievances which
were "the cause of the mass leave of MPSTA teachers, (and) with
which causes they (CHR complainants) sympathize." 12 The
Commission thereafter issued an Order 13reciting these facts and
making the following disposition:
To be properly apprised of the real facts of the case and be
accordingly guided in its investigation and resolution of the matter,
considering that these forty two teachers are now suspended and
deprived of their wages, which they need very badly, Secretary
Isidro Cariño, of the Department of Education, Culture and Sports,
Dr. Erlinda Lolarga, school superintendent of Manila and the
Principal of Ramon Magsaysay High School, Manila, are hereby
enjoined to appear and enlighten the Commission en banc on
October 19, 1990 at 11:00 A.M. and to bring with them any and all
documents relevant to the allegations aforestated herein to assist
67 HRLAW 08281
the Commission in this matter. Otherwise, the Commission will
resolve the complaint on the basis of complainants' evidence.
xxx xxx xxx
7. Through the Office of the Solicitor General, Secretary Cariño
sought and was granted leave to file a motion to dismiss the case.
His motion to dismiss was submitted on November 14, 1990
alleging as grounds therefor, "that the complaint states no cause of
action and that the CHR has no jurisdiction over the case." 14
8. Pending determination by the Commission of the motion to
dismiss, judgments affecting the "striking teachers" were
promulgated in two (2) cases, as aforestated, viz.:
a) The Decision dated December l7, 1990 of Education Secretary
Cariño in Case No. DECS 90-082, decreeing dismissal from the
service of Apolinario Esber and the suspension for nine (9) months
of Babaran, Budoy and del Castillo; 15 and
b) The joint Resolution of this Court dated August 6, 1991 in G.R.
Nos. 95445 and 95590 dismissing the petitions "without prejudice
to any appeals, if still timely, that the individual petitioners may
take to the Civil Service Commission on the matters complained
of," 16 and inter alia "ruling that it was prima facie lawful for
petitioner Cariño to issue return-to-work orders, file administrative
charges against recalcitrants, preventively suspend them, and issue
decision on those charges." 17
9. In an Order dated December 28, 1990, respondent Commission
denied Sec. Cariño's motion to dismiss and required him and
Superintendent Lolarga "to submit their counter-affidavits within
ten (10) days . . . (after which) the Commission shall proceed to
hear and resolve the case on the merits with or without respondents
counter affidavit." 18 It held that the "striking teachers" "were
denied due process of law; . . . they should not have been replaced
without a chance to reply to the administrative charges;" there had
been a violation of their civil and political rights which the
Commission was empowered to investigate; and while expressing
its "utmost respect to the Supreme Court . . . the facts before . . .
(it) are different from those in the case decided by the Supreme
Court" (the reference being unmistakably to this Court's joint
Resolution of August 6, 1991 in G.R. Nos. 95445 and
95590, supra).
It is to invalidate and set aside this Order of December 28, 1990
that the Solicitor General, in behalf of petitioner Cariño, has
commenced the present action of certiorari and prohibition.
The Commission on Human Rights has made clear its position that
it does not feel bound by this Court's joint Resolution in G.R. Nos.
95445 and 95590, supra. It has also made plain its intention "to
hear and resolve the case (i.e., Striking Teachers HRC Case No.
90-775) on the merits." It intends, in other words, to try and decide
or hear and determine, i.e., exercise jurisdiction over the following
general issues:
1) whether or not the striking teachers were denied due process,
and just cause exists for the imposition of administrative
disciplinary sanctions on them by their superiors; and
2) whether or not the grievances which were "the cause of the mass
leave of MPSTA teachers, (and) with which causes they (CHR
complainants) sympathize," justify their mass action or strike.
The Commission evidently intends to itself adjudicate, that is to
say, determine with character of finality and definiteness, the same
issues which have been passed upon and decided by the Secretary
of Education, Culture & Sports, subject to appeal to the Civil
Service Commission, this Court having in fact, as aforementioned,
declared that the teachers affected may take appeals to the Civil
Service Commission on said matters, if still timely.
The threshold question is whether or not the Commission on
Human Rights has the power under the Constitution to do so;
whether or not, like a court of justice, 19 or even a quasi-judicial
agency, 20 it has jurisdiction or adjudicatory powers over, or the
power to try and decide, or hear and determine, certain specific
type of cases, like alleged human rights violations involving civil
or political rights.
The Court declares the Commission on Human Rights to have no
such power; and that it was not meant by the fundamental law to be
another court or quasi-judicial agency in this country, or duplicate
much less take over the functions of the latter.
The most that may be conceded to the Commission in the way of
adjudicative power is that it may investigate, i.e., receive evidence
and make findings of fact as regards claimed human rights
violations involving civil and political rights. But fact finding is not
adjudication, and cannot be likened to the judicial function of a
court of justice, or even a quasi-judicial agency or official. The
function of receiving evidence and ascertaining therefrom the facts
of a controversy is not a judicial function, properly speaking. To be
considered such, the faculty of receiving evidence and making
factual conclusions in a controversy must be accompanied by the
authority of applying the law to those factual conclusions to the
end that the controversy may be decided or determined
authoritatively, finally and definitively, subject to such appeals or
modes of review as may be provided by law. 21 This function, to
repeat, the Commission does not have. 22
The proposition is made clear by the constitutional provisions
specifying the powers of the Commission on Human Rights.
The Commission was created by the 1987 Constitution as an
independent office. 23 Upon its constitution, it succeeded and
superseded the Presidential Committee on Human Rights existing
at the time of the effectivity of the Constitution. 24 Its powers and
functions are the following 25
(1) Investigate, on its own or on complaint by any party, all forms
of human rights violations involving civil and political rights;
(2) Adopt its operational guidelines and rules of procedure, and cite
for contempt for violations thereof in accordance with the Rules of
Court;
(3) Provide appropriate legal measures for the protection of human
rights of all persons within the Philippines, as well as Filipinos
residing abroad, and provide for preventive measures and legal aid
services to the underprivileged whose human rights have been
violated or need protection;
(4) Exercise visitorial powers over jails, prisons, or detention
facilities;
(5) Establish a continuing program of research, education, and
information to enhance respect for the primacy of human rights;
(6) Recommend to the Congress effective measures to promote
human rights and to provide for compensation to victims of
violations of human rights, or their families;
(7) Monitor the Philippine Government's compliance with
international treaty obligations on human rights;
(8) Grant immunity from prosecution to any person whose
testimony or whose possession of documents or other evidence is
necessary or convenient to determine the truth in any investigation
conducted by it or under its authority;
(9) Request the assistance of any department, bureau, office, or
agency in the performance of its functions;
(10) Appoint its officers and employees in accordance with law;
and
(11) Perform such other duties and functions as may be provided
by law.
As should at once be observed, only the first of the enumerated
powers and functions bears any resemblance to adjudication or
adjudgment. The Constitution clearly and categorically grants to
the Commission the power to investigate all forms of human rights
violations involving civil and political rights. It can exercise that
power on its own initiative or on complaint of any person. It may
exercise that power pursuant to such rules of procedure as it may
adopt and, in cases of violations of said rules, cite for contempt in
accordance with the Rules of Court. In the course of any
investigation conducted by it or under its authority, it may grant
immunity from prosecution to any person whose testimony or
whose possession of documents or other evidence is necessary or
convenient to determine the truth. It may also request the assistance
of any department, bureau, office, or agency in the performance of
its functions, in the conduct of its investigation or in extending
such remedy as may be required by its findings. 26
68 HRLAW 08281
But it cannot try and decide cases (or hear and determine causes) as
courts of justice, or even quasi-judicial bodies do. To investigate is
not to adjudicate or adjudge. Whether in the popular or the
technical sense, these terms have well understood and quite distinct
meanings.
"Investigate," commonly understood, means to examine, explore,
inquire or delve or probe into, research on, study. The dictionary
definition of "investigate" is "to observe or study closely: inquire
into systematically. "to search or inquire into: . . . to subject to an
official probe . . .: to conduct an official inquiry." 27 The purpose
of investigation, of course, is to discover, to find out, to learn,
obtain information. Nowhere included or intimated is the notion of
settling, deciding or resolving a controversy involved in the facts
inquired into by application of the law to the facts established by
the inquiry.
The legal meaning of "investigate" is essentially the same: "(t)o
follow up step by step by patient inquiry or observation. To trace or
track; to search into; to examine and inquire into with care and
accuracy; to find out by careful inquisition; examination; the taking
of evidence; a legal inquiry;" 28 "to inquire; to make an
investigation," "investigation" being in turn describe as "(a)n
administrative function, the exercise of which ordinarily does not
require a hearing. 2 Am J2d Adm L Sec. 257; . . . an inquiry,
judicial or otherwise, for the discovery and collection of facts
concerning a certain matter or matters." 29
"Adjudicate," commonly or popularly understood, means to
adjudge, arbitrate, judge, decide, determine, resolve, rule on, settle.
The dictionary defines the term as "to settle finally (the rights and
duties of the parties to a court case) on the merits of issues raised: .
. . to pass judgment on: settle judicially: . . . act as judge." 30 And
"adjudge" means "to decide or rule upon as a judge or with judicial
or quasi-judicial powers: . . . to award or grant judicially in a case
of controversy . . . ." 31
In the legal sense, "adjudicate" means: "To settle in the exercise of
judicial authority. To determine finally. Synonymous
with adjudge in its strictest sense;" and "adjudge" means: "To pass
on judicially, to decide, settle or decree, or to sentence or condemn.
. . . Implies a judicial determination of a fact, and the entry of a
judgment." 32
Hence it is that the Commission on Human Rights, having merely
the power "to investigate," cannot and should not "try and resolve
on the merits" (adjudicate) the matters involved in Striking
Teachers HRC Case No. 90-775, as it has announced it means to
do; and it cannot do so even if there be a claim that in the
administrative disciplinary proceedings against the teachers in
question, initiated and conducted by the DECS, their human rights,
or civil or political rights had been transgressed. More particularly,
the Commission has no power to "resolve on the merits" the
question of (a) whether or not the mass concerted actions engaged
in by the teachers constitute and are prohibited or otherwise
restricted by law; (b) whether or not the act of carrying on and
taking part in those actions, and the failure of the teachers to
discontinue those actions, and return to their classes despite the
order to this effect by the Secretary of Education, constitute
infractions of relevant rules and regulations warranting
administrative disciplinary sanctions, or are justified by the
grievances complained of by them; and (c) what where the
particular acts done by each individual teacher and what sanctions,
if any, may properly be imposed for said acts or omissions.
These are matters undoubtedly and clearly within the original
jurisdiction of the Secretary of Education, being within the scope
of the disciplinary powers granted to him under the Civil Service
Law, and also, within the appellate jurisdiction of the Civil Service
Commission.
Indeed, the Secretary of Education has, as above narrated, already
taken cognizance of the issues and resolved them, 33 and it appears
that appeals have been seasonably taken by the aggrieved parties to
the Civil Service Commission; and even this Court itself has had
occasion to pass upon said issues. 34
Now, it is quite obvious that whether or not the conclusions
reached by the Secretary of Education in disciplinary cases are
correct and are adequately based on substantial evidence; whether
or not the proceedings themselves are void or defective in not
having accorded the respondents due process; and whether or not
the Secretary of Education had in truth committed "human rights
violations involving civil and political rights," are matters which
may be passed upon and determined through a motion for
reconsideration addressed to the Secretary Education himself, and
in the event of an adverse verdict, may be reviewed by the Civil
Service Commission and eventually the Supreme Court.
The Commission on Human Rights simply has no place in this
scheme of things. It has no business intruding into the jurisdiction
and functions of the Education Secretary or the Civil Service
Commission. It has no business going over the same ground
traversed by the latter and making its own judgment on the
questions involved. This would accord success to what may well
have been the complaining teachers' strategy to abort, frustrate or
negate the judgment of the Education Secretary in the
administrative cases against them which they anticipated would be
adverse to them.
This cannot be done. It will not be permitted to be done.

In any event, the investigation by the Commission on Human

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

WHEREFORE, the petition is granted; the Order of December 29,

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

SO ORDERED.

69 HRLAW 08281
Export Processing Zone Authority vs CHR, Valles, Aledia and
Ordonez
G.R. No. 101476 April 14, 1992
Facts:
Valles, Aedia and Ordonez filed with CHR a joint
complaint against EPZA for allegedly violating their human rights
when EPZA Project Engineer Damondamon along with 215th PNP
Company tried to level the area occupied by complainants.
The same parcel of land was reserved and allocated for
purpose of development into Cavite Export Processing Zone which
was bought by Filoil Refinery Corporation and was later sold to
EPZA.
CHR issued an order of injunction for EPZA and
company to desist from committing further acts of demolition,
terrorism and harassment until further order. 2 weeks later the
group started bulldozing the area and CHR reiterated its order of
injunction, including the Secretary of Public Works and Highways
to desist from doing work on the area. EPZA filed a motion to life
the order with CHR for lack of authority and said motion was
dismissed.
EPZA filed the case at bar for certiorari and prohibition
alleging that CHR acted in excess of its jurisdiction in issuing a
restraining order and injunctive writ; that the private respondents
have no clear and positive right to be protected by an injunction;
and that CHR abused its discretion in entertaining the complaint.
EPZA’s petition was granted and a TRO was issued ordering CHR
to cease and desist from enforcing/implementing the injunction
orders. CHR commented that its function is not limited to mere
investigation (Art. 13, Sec. 18 of the 1987 Constitution).
Issue: WON CHR has the jurisdiction to issue a writ of injunction
or restraining order against supposed violators of human rights, to
compel them to cease and desist from continuing the acts
complained of.
Ruling:
In Carino vs CHR, it was held that CHR is not a court of
justice nor even a quasi-judicial body. The most that may be
conceded to the Commission in the way of adjudicative power is
that it may investigate, i.e., receive evidence and make findings of
fact as regards claimed human rights violations involving civil and
political rights. But fact-finding is not adjudication, and cannot be
likened to the judicial function of a court of justice, or even a
quasi-judicial agency or official. The function of receiving
evidence and ascertaining therefrom the facts of a controversy is
not a judicial function, properly speaking. The constitutional
provision directing the CHR to "provide for preventive measures
and legal aid services to the underprivileged whose human rights
have been violated or need protection" may not be construed to
confer jurisdiction on the Commission to issue a restraining order
or writ of injunction for, if that were the intention, the Constitution
would have expressly said so. Jurisdiction is conferred by law and
never derived by implication.
Evidently, the "preventive measures and legal aid
services" mentioned in the Constitution refer to extrajudicial and
judicial remedies (including a preliminary writ of injunction)
which the CHR may seek from the proper courts on behalf of the
victims of human rights violations. Not being a court of justice, the
CHR itself has no jurisdiction to issue the writ, for a writ of
preliminary injunction may only be issued "by the judge of any
court in which the action is pending [within his district], or by a
Justice of the Court of Appeals, or of the Supreme Court.
A writ of preliminary injunction is an ancillary remedy.
It is available only in a pending principal action, for the
preservation or protection of the rights and interest of a party
thereto, and for no other purpose. EPZA’s petition is granted.
70 HRLAW 08281
G.R. No. 101476 April 14, 1992
EXPORT PROCESSING ZONE AUTHORITY, petitioner,
vs.
THE COMMISSION ON HUMAN RIGHTS, TERESITA
VALLES, LORETO ALEDIA and PEDRO
ORDONEZ, respondents.
GRIÑO-AQUINO, J.:
On May 30, 1980, P.D. 1980 was issued reserving and designating
certain parcels of land in Rosario and General Trias, Cavite, as the
"Cavite Export Processing Zone" (CEPZ). For purposes of
development, the area was divided into Phases I to IV. A parcel of
Phase IV was bought by Filoil Refinery Corporation, formerly
Filoil Industrial Estate, Inc. The same parcel was later sold by
Filoil to the Export Processing Zone Authority (EPZA).
Before EPZA could take possession of the area, several individuals
had entered the premises and planted agricultural products therein
without permission from EPZA or its predecessor, Filoil. To
convince the intruders to depart peacefully, EPZA, in 1981, paid a
P10,000-financial-assistance to those who accepted the same and
signed quitclaims. Among them were Teresita Valles and Alfredo
Aledia, father of respondent Loreto Aledia.
Ten years later, on May 10, 1991, respondent Teresita Valles,
Loreto Aledia and Pedro Ordoñez filed in the respondent
Commission on Human Rights (CHR) a joint complaint
(Pinagsamahang Salaysay) praying for "justice and other reliefs
and remedies" ("Katarungan at iba pang tulong"). The CHR
conducted an investigation of the complaint.
According to the CHR, the private respondents, who are farmers,
filed in the Commission on May 10, 1991 a verified complaint for
violation of their human rights. They alleged that on March 20,
1991, at 10:00 o'clock in the morning. Engineer Neron
Damondamon, EPZA Project Engineer, accompanied by his
subordinates and members of the 215th PNP Company, brought a
bulldozer and a crane to level the area occupied by the private
respondents who tried to stop them by showing a copy of a letter
from the Office of the President of the Philippines ordering
postponement of the bulldozing. However, the letter was crumpled
and thrown to the ground by a member of Damondamon's group
who proclaimed that: "The President in Cavite is Governor
Remulla!"
On April 3, 1991, mediamen who had been invited by the private
respondents to cover the happenings in the area were beaten up and
their cameras were snatched from them by members of the
Philippine National Police and some government officials and their
civilian followers.
On May 17, 1991, the CHR issued an Order of injunction
commanding EPZA, the 125th PNP Company and Governor
Remulla and their subordinates to desist from committing further
acts of demolition, terrorism, and harassment until further orders
from the Commission and to appeal before the Commission on
May 27, 1991 at 9:00 a.m. for a dialogue (Annex A).
On May 25, 1991, two weeks later, the same group accompanied
by men of Governor Remulla, again bulldozed the area. They
allegedly handcuffed private respondent Teresita Valles, pointed
their firearms at the other respondents, and fired a shot in the air.
On May 28, 1991, CHR Chairman Mary Concepcion Bautista
issued another injunction Order reiterating her order of May 17,
1991 and expanded it to include the Secretary of Public Works and
Highways, the contractors, and their subordinates. The order reads
as follows:
Considering the sworn statements of the
farmers whose farmlands are being bulldozed
and the wanton destruction of their irrigation
canals which prevent cultivation at the
farmlands as well as the claim of ownership of
the lands by some farmers-complainants, and
their possession and cultivation thereof
spanning decades, including the failure of the
officials concerned to comply with the
Constitutional provision on the eviction of
rural "squatters", the Commission reiterates its
Order of May 17, 1991, andfurther orders the
Secretary of Public Works and Highways, their
Contractors and representatives to refrain and
desist from bulldozing the farmlands of the
complainants-farmers who have come to the
Commission for relief, during the pendency of
this investigation and to refrain from further
destruction of the irrigation canals in the area
until further orders of the Commission.
This dialogue is reset to June 10, 1991 at 9 00
a.m. and the Secretary of the Department of
Public Works and Highways or his
representative is requested to appear. (p.
20, Rollo; emphasis supplied)
On July 1, 1991, EPZA filed in the CHR a motion to lift the Order
of Injunction for lack of authority to issue injunctive writs and
temporary restraining orders.
On August 16, 1991, the Commission denied the motion.
On September 11, 1991, the petitioner, through the Government
Corporate Counsel, filed in this Court a special civil action
of certiorari and prohibition with a prayer for the issuance of a
restraining order and/or preliminary injunction, alleging that the
CHR acted in excess of its jurisdiction and with grave abuse of
discretion in issuing the restraining order and injunctive writ; that
the private respondents have no clear, positive right to be protected
by an injunction; that the CHR abused its discretion in entertaining
the private respondent's complaint because the issue raised therein
had been decided by this Court, hence, it is barred by prior
judgment.
On September 19, 1991, this Court issued a temporary restraining
order, ordering the CHR to cease and desist from enforcing and/or
implementing the questioned injunction orders.
In its comment on the petition, the CHR asked for the immediate
lifting of this Court's restraining order, and for an order restraining
petitioner EPZA from doing further acts of destruction and
harassment. The CHR contends that its principal function under
Section 18, Art. 13 of the 1987 Constitution, "is not limited to mere
investigation" because it is mandated, among others, to:
a. Investigate, on its own or on complaint by
any party, all forms of human rights violations
involving civil and political rights;
b. Adopt its operational guidelines and rules of
procedure, and cite for contempt for violations
thereof in accordance with the Rules of Court;
71 HRLAW 08281
c. Provide appropriate legal measures for the
protection of human rights of all persons within
the Philippines, as well as Filipinos residing
abroad, and provide for preventive measures
and legal aid services to the under
privileged whose human rights have been
violated or need protection;
d. Monitor the Philippine Government's
compliance with international treaty
obligations on human rights. (Emphasis
supplied.) (p. 45, Rollo)
On November 14, 1991, the Solicitor General filed a Manifestation
and Motion praying that he be excused from filing a Comment for
the CHR on the ground that the Comment filed by the latter "fully
traversed and squarely met all the issues raised and discussed in the
main Petition for Certiorari and Prohibition" (p. 83, Rollo).
Does the CHR have jurisdiction to issue a writ of injunction or
restraining order against supposed violators of human rights, to
compel them to cease and desist from continuing the acts
complained of?
In Hon. Isidro Cariño, et al. vs. Commission on Human Rights, et
al., G.R No. 96681, December 2, 1991, we held that the CHR is
not a court of justice nor even a quasi-judicial body.
The most that may be conceded to the
Commission in the way of adjudicative power
is that it may investigate, i.e., receive evidence
and make findings of fact as regards claimed
human rights violations involving civil and
political rights. But fact-finding is not
adjudication, and cannot be likened to
thejudicial function of a court of justice, or
even a quasi-judicial agency or official. The
function of receiving evidence and ascertaining
therefrom the facts of a controversy is not a
judicial function, properly speaking. To be
considered such, the faculty of receiving
evidence and making factual conclusions in a
controversy must be accompanied by the
authority of applying the law to those factual
conclusions to the end that the controversy may
be decided or determined authoritatively,
finally and definitely, subject to such appeals
or modes of review as may be provided by
law. This function, to repeat, the Commission
does not have.
xxx xxx xxx
Hence it is that the Commission on Human
Rights, having merely the power "to
investigate," cannot and should not "try and
resolve on the merits" (adjudicate) the matters
involved in Striking Teachers HRC Case No.
90-775, as it has announced it means to do; and
it cannot do so even if there be a claim that in
the administrative disciplinary proceedings
against the teachers in question, initiated and
conducted by the DECS, their human rights, or
civil or political rights had been transgressed.
More particularly, the Commission has no
power to "resolve on the merits" the question
of (a) whether or not the mass concerted
actions engaged in by the teachers constitute a
strike and are prohibited or otherwise
restricted by law; (b) whether or not the act of
carrying on and taking part in those actions,
 and the failure of the teachers to
discontinue those actions and return to their
classes despite the order to this effect by the
Secretary of Education, constitute infractions
of relevant rules and regulations warranting
administrative disciplinary sanctions, or are
justified by the grievances complained of by
them; and (c) what were the particular acts
done by each individual teacher and what
sanctions, if any, may properly be imposed for
said acts or omissions. (pp. 5 & 8.)

The constitutional provision directing the CHR to "provide for

preventive measures and legal aid services to the underprivileged
whose human rights have been violated or need protection" may
not be construed to confer jurisdiction on the Commission to issue
a restraining order or writ of injunction for, if that were the
intention, the Constitution would have expressly said so.
"Jurisdiction is conferred only by the Constitution or by law"
(Oroso, Jr. vs. Court of Appeals, G.R. Nos. 76828-32, 28 January
1991; Bacalso vs. Ramolete, G.R. No. L-22488, 26 October 1967,
21 SCRA 519). It is never derived by implication (Garcia, et al. vs.
De Jesus, et al., G.R. No. 88158; Tobon Uy vs. Commission on
Election, et al.. G.R. Nos. 97108-09, March 4, 1992).

Evidently, the "preventive measures and legal aid services"

mentioned in the Constitution refer to extrajudicial and judicial
remedies (including a preliminary writ of injunction) which the
CHR may seek from the proper courts on behalf of the victims of
human rights violations. Not being a court of justice, the CHR
itself has no jurisdiction to issue the writ, for a writ of preliminary
injunction may only be issued "by the judge of any court in which
the action is pending [within his district], or by a Justice of the
Court of Appeals, or of the Supreme Court. It may also be granted
by the judge of a Court of First Instance [now Regional Trial
Court] in any action pending in an inferior court within his
district." (Sec. 2, Rule 58, Rules of Court). A writ of preliminary
injunction is an ancillary remedy. It is available only in a pending
principal action, for the preservation or protection of the rights and
interest of a party thereto, and for no other purpose

WHEREFORE, the petition for certiorari and prohibition is

GRANTED. The orders of injunction dated May 17 and 28, 1991
issued by the respondent Commission on Human Right are here by
ANNULLED and SET ASIDE and the temporary restraining order
which this Court issued on September 19, 1991, is hereby made
PERMANENT.

SO ORDERED.

72 HRLAW 08281
Simon vs. Comm. on Human Rights G.R. No. 100150 January
05, 1994
Facts :
Petitioner Mayor Simon asks to prohibit CHR from further hearing
and investigating "demolition case" on vendors of North EDSA.
Constitutional Issue :
Whether the CHR is authorized to hear and decide on the
"demolition case" and to impose a fine for contempt.
Ruling :
Section 18, Article XIII, of the 1987 Constitution empowered the
CHR to investigate all forms of human rights violations involving
civil and political rights. The demolition of stalls, sari-sari stores
and carenderia cannot fall within the compartment of "human
rights violations involving civil and political rights".
Human rights are the basic rights which inhere in man by virtue of
his humanity and are the same in all parts of the world.
Human rights include civil rights (right to life, liberty and
property; freedom of speech, of the press, of religion, academic
freedom; rights of the accused to due process of law), political
rights (right to elect public officials, to be elected to public office,
and to form political associations and engage in politics), social
rights (right to education, employment and social services.
Human rights are entitlements that inhere in the individual person
from the sheer fact of his humanity...Because they are inherent,
human rights are not granted by the State but can only be
recognized and protected by it.
Human rights includes all the civil, political, economic, social and
cultural rights defined in the Universal Declaration of Human
Rights.
Human rights are rights that pertain to man simply because he is
human. They are part of his natural birth, right, innate and
inalienable.
CIVIL RIGHTS - are those that belong to every citizen and are not
connected with the organization or administration of the
government.
POLITICAL RIGHTS - are rights to participate, directly or
indirectly, in the establishment or administration of the
government.
G.R. No. 100150 January 5, 1994
BRIGIDO R. SIMON, JR., CARLOS QUIMPO, CARLITO
ABELARDO, AND GENEROSO OCAMPO, petitioners,
vs.
COMMISSION ON HUMAN RIGHTS, ROQUE FERMO,
AND OTHERS AS JOHN DOES, respondents.
The City Attorney for petitioners.
The Solicitor General for public respondent.
VITUG, J.:
The extent of the authority and power of the Commission on
Human Rights ("CHR") is again placed into focus in this petition
for prohibition, with prayer for a restraining order and preliminary
injunction. The petitioners ask us to prohibit public respondent
CHR from further hearing and investigating CHR Case No. 90-
1580, entitled "Fermo, et al. vs. Quimpo, et al."
The case all started when a "Demolition Notice," dated 9 July
1990, signed by Carlos Quimpo (one of the petitioners) in his
capacity as an Executive Officer of the Quezon City Integrated
Hawkers Management Council under the Office of the City Mayor,
was sent to, and received by, the private respondents (being the
73 HRLAW 08281
officers and members of the North EDSA Vendors Association,
Incorporated). In said notice, the respondents were given a grace-
period of three (3) days (up to 12 July 1990) within which to vacate
the questioned premises of North EDSA.1Prior to their receipt of
the demolition notice, the private respondents were informed by
petitioner Quimpo that their stalls should be removed to give way
to the "People's Park".2 On 12 July 1990, the group, led by their
President Roque Fermo, filed a letter-complaint (Pinag-samang
Sinumpaang Salaysay) with the CHR against the petitioners, asking
the late CHR Chairman Mary Concepcion Bautista for a letter to be
addressed to then Mayor Brigido Simon, Jr., of Quezon City to
stop the demolition of the private respondents' stalls, sari-
sari stores, and carinderia along North EDSA. The complaint was
docketed as CHR Case No. 90-1580.3 On 23 July 1990, the CHR
issued an Order, directing the petitioners "to desist from
demolishing the stalls and shanties at North EDSA pending
resolution of the vendors/squatters' complaint before the
Commission" and ordering said petitioners to appear before the
CHR.4
On the basis of the sworn statements submitted by the private
respondents on 31 July 1990, as well as CHR's own ocular
inspection, and convinced that on 28 July 1990 the petitioners
carried out the demolition of private respondents' stalls, sari-
sari stores and carinderia,5 the CHR, in its resolution of 1 August
1990, ordered the disbursement of financial assistance of not more
than P200,000.00 in favor of the private respondents to purchase
light housing materials and food under the Commission's
supervision and again directed the petitioners to "desist from
further demolition, with the warning that violation of said order
would lead to a citation for contempt and arrest."6
A motion to dismiss,7 dated 10 September 1990, questioned CHR's
jurisdiction. The motion also averred, among other things, that:
1. this case came about due to the alleged
violation by the (petitioners) of the Inter-
Agency Memorandum of Agreement whereby
Metro-Manila Mayors agreed on a moratorium
in the demolition of the dwellings of poor
dwellers in Metro-Manila;
xxx xxx xxx
3. . . . , a perusal of the said Agreement
(revealed) that the moratorium referred to
therein refers to moratorium in the demolition
of the structures of poor dwellers;
4. that the complainants in this case (were) not
poor dwellers but independent business
entrepreneurs even this Honorable Office
admitted in its resolution of 1 August 1990 that
the complainants are indeed, vendors;
5. that the complainants (were) occupying
government land, particularly the sidewalk of
EDSA corner North Avenue, Quezon City; . . .
and
6. that the City Mayor of Quezon City (had)
the sole and exclusive discretion and authority
whether or not a certain business establishment
(should) be allowed to operate within the
jurisdiction of Quezon City, to revoke or
cancel a permit, if already issued, upon
grounds clearly specified by law and
ordinance.8
During the 12 September 1990 hearing, the petitioners moved for
postponement, arguing that the motion to dismiss set for 21
September 1990 had yet to be resolved. The petitioners likewise
manifested that they would bring the case to the courts.
On 18 September 1990 a supplemental motion to dismiss was filed
by the petitioners, stating that the Commission's authority should
be understood as being confined only to the investigation of
violations of civil and political rights, and that "the rights allegedly
violated in this case (were) not civil and political rights, (but) their
privilege to engage in business."9
On 21 September 1990, the motion to dismiss was heard and
submitted for resolution, along with the contempt charge that had
meantime been filed by the private respondents, albeit vigorously
objected to by petitioners (on the ground that the motion to dismiss
was still then unresolved).10
In an Order,11 dated 25 September 1990, the CHR cited the
petitioners in contempt for carrying out the demolition of the
stalls, sari-sari stores and carinderia despite the "order to desist",
and it imposed a fine of P500.00 on each of them.
On 1 March 1991,12 the CHR issued an Order, denying petitioners'
motion to dismiss and supplemental motion to dismiss, in this wise:
Clearly, the Commission on Human Rights
under its constitutional mandate had
jurisdiction over the complaint filed by the
squatters-vendors who complained of the gross
violations of their human and constitutional
rights. The motion to dismiss should be and is
hereby DENIED for lack of merit.13
The CHR opined that "it was not the intention of the
(Constitutional) Commission to create only a paper tiger limited
only to investigating civil and political rights, but it (should) be
(considered) a quasi-judicial body with the power to provide
appropriate legal measures for the protection of human rights of all
persons within the Philippines . . . ." It added:
The right to earn a living is a right essential to
one's right to development, to life and to
dignity. All these brazenly and violently
ignored and trampled upon by respondents
with little regard at the same time for the basic
rights of women and children, and their health,
safety and welfare. Their actions have
psychologically scarred and traumatized the
children, who were witness and exposed to
such a violent demonstration of Man's
inhumanity to man.
In an Order,14 dated 25 April 1991, petitioners' motion for
reconsideration was denied.
Hence, this recourse.
The petition was initially dismissed in our resolution15 of 25 June
1991; it was subsequently reinstated, however, in our
resolution16 of 18 June 1991, in which we also issued a temporary
restraining order, directing the CHR to "CEASE and DESIST from
further hearing CHR No. 90-1580."17
The petitioners pose the following:
Whether or not the public respondent has jurisdiction:
74 HRLAW 08281
a) to investigate the alleged violations of the "business rights" of
the private respondents whose stalls were demolished by the
petitioners at the instance and authority given by the Mayor of
Quezon City;
b) to impose the fine of P500.00 each on the petitioners; and
c) to disburse the amount of P200,000.00 as financial aid to the
vendors affected by the demolition.
In the Court's resolution of 10 October 1991, the Solicitor-General
was excused from filing his comment for public respondent CHR.
The latter thus filed its own comment,18 through Hon. Samuel
Soriano, one of its Commissioners. The Court also resolved to
dispense with the comment of private respondent Roque Fermo,
who had since failed to comply with the resolution, dated 18 July
1991, requiring such comment.
The petition has merit.
The Commission on Human Rights was created by the 1987
Constitution.19 It was formally constituted by then President
Corazon Aquino via Executive Order No. 163,20 issued on 5 May
1987, in the exercise of her legislative power at the time. It
succeeded, but so superseded as well, the Presidential Committee
on Human Rights.21
The powers and functions22 of the Commission are defined by the
1987 Constitution, thus: to —
(1) Investigate, on its own or on complaint by
any party, all forms of human rights violations
involving civil and political rights;
(2) Adopt its operational guidelines and rules
of procedure, and cite for contempt for
violations thereof in accordance with the Rules
of Court;
(3) Provide appropriate legal measures for the
protection of human rights of all persons within
the Philippines, as well as Filipinos residing
abroad, and provide for preventive measures
and legal aid services to the underprivileged
whose human rights have been violated or need
protection;
(4) Exercise visitorial powers over jails,
prisons, or detention facilities;
(5) Establish a continuing program of research,
education, and information to enhance respect
for the primacy of human rights;
(6) Recommend to the Congress effective
measures to promote human rights and to
provide for compensation to victims of
violations of human rights, or their families;
(7) Monitor the Philippine Government's
compliance with international treaty
obligations on human rights;
(8) Grant immunity from prosecution to any
person whose testimony or whose possession
of documents or other evidence is necessary or
convenient to determine the truth in any
 investigation conducted by it or under its
authority;
(9) Request the assistance of any department,
bureau, office, or agency in the performance of
its functions;
(10) Appoint its officers and employees in
accordance with law; and
(11) Perform such other duties and functions as
may be provided by law.
In its Order of 1 March 1991, denying petitioners' motion to
dismiss, the CHR theorizes that the intention of the members of the
Constitutional Commission is to make CHR a quasi-judicial
body.23 This view, however, has not heretofore been shared by this
Court. In Cariño v. Commission on Human Rights,24 the Court,
through then Associate Justice, now Chief Justice Andres Narvasa,
has observed that it is "only the first of the enumerated powers and
functions that bears any resemblance to adjudication or
adjudgment," but that resemblance can in no way be synonymous
to the adjudicatory power itself. The Court explained:
. . . (T)he Commission on Human Rights . . .
was not meant by the fundamental law to be
another court or quasi-judicial agency in this
country, or duplicate much less take over the
functions of the latter.
The most that may be conceded to the
Commission in the way of adjudicative power
is that it may investigate, i.e., receive evidence
and make findings of fact as regards claimed
human rights violations involving civil and
political rights. But fact finding is not
adjudication, and cannot be likened to the
judicial function of a court of justice, or even a
quasi-judicial agency or official. The function
of receiving evidence and ascertaining
therefrom the facts of a controversy is not a
judicial function, properly speaking. To be
considered such, the faculty of receiving
evidence and making factual conclusions in a
controversy must be accompanied by the
authority of applying the law to those factual
conclusions to the end that the controversy may
be decided or determined authoritatively,
finally and definitively, subject to such appeals
or modes of review as may be provided by law.
This function, to repeat, the Commission does
not have.
After thus laying down at the outset the above rule, we now
proceed to the other kernel of this controversy and, its is, to
determine the extent of CHR's investigative power.
It can hardly be disputed that the phrase "human rights" is so
generic a term that any attempt to define it, albeit not a few have
tried, could at best be described as inconclusive. Let us observe. In
a symposium on human rights in the Philippines, sponsored by the
University of the Philippines in 1977, one of the questions that has
been propounded is "(w)hat do you understand by "human rights?"
The participants, representing different sectors of the society, have
given the following varied answers:
Human rights are the basic rights which inhere
in man by virtue of his humanity. They are the
same in all parts of the world, whether the
Philippines or England, Kenya or the Soviet
75 HRLAW 08281
Union, the United States or Japan, Kenya or
Indonesia . . . .
Human rights include civil rights, such as the
right to life, liberty, and property; freedom of
speech, of the press, of religion, academic
freedom, and the rights of the accused to due
process of law; political rights, such as the
right to elect public officials, to be elected to
public office, and to form political associations
and engage in politics; and social rights, such
as the right to an education, employment, and
social services.25
Human rights are the entitlement that inhere in
the individual person from the sheer fact of his
humanity. . . . Because they are inherent,
human rights are not granted by the State but
can only be recognized and protected by it.26
(Human rights include all) the civil, political,
economic, social, and cultural rights defined in
the Universal Declaration of Human Rights.27
Human rights are rights that pertain to man
simply because he is human. They are part of
his natural birth, right, innate and inalienable.28
The Universal Declaration of Human Rights, as well as, or more
specifically, the International Covenant on Economic, Social and
Cultural Rights and International Covenant on Civil and Political
Rights, suggests that the scope of human rights can be understood
to include those that relate to an individual's social, economic,
cultural, political and civil relations. It thus seems to closely
identify the term to the universally accepted traits and attributes of
an individual, along with what is generally considered to be his
inherent and inalienable rights, encompassing almost all aspects of
life.
Have these broad concepts been equally contemplated by the
framers of our 1986 Constitutional Commission in adopting the
specific provisions on human rights and in creating an independent
commission to safeguard these rights? It may of value to look back
at the country's experience under the martial law regime which
may have, in fact, impelled the inclusions of those provisions in
our fundamental law. Many voices have been heard. Among those
voices, aptly represented perhaps of the sentiments expressed by
others, comes from Mr. Justice J.B.L. Reyes, a respected jurist and
an advocate of civil liberties, who, in his paper, entitled "Present
State of Human Rights in the Philippines,"29 observes:
But while the Constitution of 1935 and that of
1973 enshrined in their Bill of Rights most of
the human rights expressed in the International
Covenant, these rights became unavailable
upon the proclamation of Martial Law on 21
September 1972. Arbitrary action then became
the rule. Individuals by the thousands became
subject to arrest upon suspicion, and were
detained and held for indefinite periods,
sometimes for years, without charges, until
ordered released by the Commander-in-Chief
or this representative. The right to petition for
the redress of grievances became useless, since
group actions were forbidden. So were strikes.
Press and other mass media were subjected to
censorship and short term licensing. Martial
law brought with it the suspension of the writ
of habeas corpus, and judges lost independence
and security of tenure, except members of the
Supreme Court. They were required to submit
 letters of resignation and were dismissed upon
the acceptance thereof. Torture to extort
confessions were practiced as declared by
international bodies like Amnesty International
and the International Commission of Jurists.
Converging our attention to the records of the Constitutional
Commission, we can see the following discussions during its 26
August 1986 deliberations:
MR. GARCIA . . . , the primacy of its (CHR)
task must be made clear in view of the
importance of human rights and also because
civil and political rights have been determined
by many international covenants and human
rights legislations in the Philippines, as well as
the Constitution, specifically the Bill of Rights
and subsequent legislation. Otherwise, if
we cover such a wide territory in area, we
might diffuse its impact and the precise nature
of its task, hence, its effectivity would also be
curtailed.
So, it is important to delienate the parameters
of its tasks so that the commission can be most
effective.
MR. BENGZON. That is precisely my
difficulty because civil and political rights are
very broad. The Article on the Bill of Rights
covers civil and political rights. Every single
right of an individual involves his civil right or
his political right. So, where do we draw the
line?
MR. GARCIA. Actually, these civil and
political rights have been made clear in the
language of human rights advocates, as well as
in the Universal Declaration of Human Rights
which addresses a number of articles on the
right to life, the right against torture, the right
to fair and public hearing, and so on. These are
very specific rights that are considered
enshrined in many international documents and
legal instruments as constituting civil and
political rights, and these are precisely what we
want to defend here.
MR. BENGZON. So, would the commissioner
say civil and political rights as defined in the
Universal Declaration of Human Rights?
MR. GARCIA. Yes, and as I have mentioned,
the International Covenant of Civil and
Political Rights distinguished this right against
torture.
MR. BENGZON. So as to distinguish this from
the other rights that we have?
MR. GARCIA. Yes, because the other rights
will encompass social and economic rights, and
there are other violations of rights of citizens
which can be addressed to the proper courts
and authorities.
xxx xxx xxx
76 HRLAW 08281
MR. BENGZON. So, we will authorize the
commission to define its functions, and,
therefore, in doing that the commission will be
authorized to take under its wings cases which
perhaps heretofore or at this moment are under
the jurisdiction of the ordinary investigative
and prosecutorial agencies of the government.
Am I correct?
MR. GARCIA. No. We have already
mentioned earlier that we would like to define
the specific parameters which cover civil and
political rights as covered by the international
standards governing the behavior of
governments regarding the particular political
and civil rights of citizens, especially of
political detainees or prisoners. This particular
aspect we have experienced during martial law
which we would now like to safeguard.
MR. BENGZON. Then, I go back to that
question that I had. Therefore, what we are
really trying to say is, perhaps, at the proper
time we could specify all those rights stated in
the Universal Declaration of Human Rights
and defined as human rights. Those are the
rights that we envision here?
MR. GARCIA. Yes. In fact, they are also
enshrined in the Bill of Rights of our
Constitution. They are integral parts of that.
MR. BENGZON. Therefore, is the Gentleman
saying that all the rights under the Bill of
Rights covered by human rights?
MR. GARCIA. No, only those that pertain to
civil and political rights.
xxx xxx xxx
MR. RAMA. In connection with the discussion
on the scope of human rights, I would like to
state that in the past regime, everytime we
invoke the violation of human rights, the
Marcos regime came out with the defense that,
as a matter of fact, they had defended the
rights of people to decent living, food, decent
housing and a life consistent with human
dignity.
So, I think we should really limit the definition
of human rights to political rights. Is that the
sense of the committee, so as not to confuse the
issue?
MR. SARMIENTO. Yes, Madam President.
MR. GARCIA. I would like to continue and
respond also to repeated points raised by the
previous speaker.
There are actually six areas where this
Commission on Human Rights could act
effectively: 1) protection of rights of political
detainees; 2) treatment of prisoners and the
prevention of tortures; 3) fair and public trials;
4) cases of disappearances; 5) salvagings and
 hamletting; and 6) other crimes committed
against the religious.
xxx xxx xxx
The PRESIDENT. Commissioner Guingona is
recognized.
MR. GUINGONA. Thank You Madam
President.
I would like to start by saying that I agree with
Commissioner Garcia that we should, in order
to make the proposed Commission more
effective, delimit as much as possible, without
prejudice to future expansion. The coverage of
the concept and jurisdictional area of the
term "human rights". I was actually disturbed
this morning when the reference was made
without qualification to the rights embodied in
the universal Declaration of Human Rights,
although later on, this was qualified to refer to
civil and political rights contained therein.
If I remember correctly, Madam President,
Commissioner Garcia, after mentioning the
Universal Declaration of Human Rights of
1948, mentioned or linked the concept of
human right with other human rights specified
in other convention which I do not remember.
Am I correct?
MR. GARCIA. Is Commissioner Guingona
referring to the Declaration of Torture of 1985?
MR. GUINGONA. I do not know, but the
commissioner mentioned another.
MR. GARCIA. Madam President, the other
one is the International Convention on Civil
and Political Rights of which we are signatory.
MR. GUINGONA. I see. The only problem is
that, although I have a copy of the Universal
Declaration of Human Rights here, I do not
have a copy of the other covenant mentioned. It
is quite possible that there are rights specified
in that other convention which may not be
specified here. I was wondering whether it
would be wise to link our concept of human
rights to general terms like "convention," rather
than specify the rights contained in the
convention.
As far as the Universal Declaration of Human
Rights is concerned, the Committee, before the
period of amendments, could specify to us
which of these articles in the Declaration will
fall within the concept of civil and political
rights, not for the purpose of including these in
the proposed constitutional article, but to give
the sense of the Commission as to what human
rights would be included, without prejudice to
expansion later on, if the need arises. For
example, there was no definite reply to the
question of Commissioner Regalado as to
whether the right to marry would be considered
a civil or a social right. It is not a civil right?
77 HRLAW 08281
MR. GARCIA. Madam President, I have to
repeat the various specific civil and political
rights that we felt must be envisioned initially
by this provision — freedom from political
detention and arrest prevention of torture,
right to fair and public trials, as well as crimes
involving disappearance, salvagings,
hamlettings and collective violations. So, it is
limited to politically related crimes precisely to
protect the civil and political rights of a
specific group of individuals, and therefore, we
are not opening it up to all of the definite
areas.
MR. GUINGONA. Correct. Therefore, just for
the record, the Gentlemen is no longer linking
his concept or the concept of the Committee on
Human Rights with the so-called civil or
political rights as contained in the Universal
Declaration of Human Rights.
MR. GARCIA. When I mentioned earlier the
Universal Declaration of Human Rights, I was
referring to an international instrument.
MR. GUINGONA. I know.
MR. GARCIA. But it does not mean that we
will refer to each and every specific article
therein, but only to those that pertain to the
civil and politically related, as we understand it
in this Commission on Human Rights.
MR. GUINGONA. Madam President, I am not
even clear as to the distinction between civil
and social rights.
MR. GARCIA. There are two international
covenants: the International Covenant and
Civil and Political Rights and the International
Covenant on Economic, Social and Cultural
Rights. The second covenant contains all the
different rights-the rights of labor to organize,
the right to education, housing, shelter, et
cetera.
MR. GUINGONA. So we are just limiting at
the moment the sense of the committee to those
that the Gentlemen has specified.
MR. GARCIA. Yes, to civil and political
rights.
MR. GUINGONA. Thank you.
xxx xxx xxx
SR. TAN. Madam President, from the
standpoint of the victims of human rights, I
cannot stress more on how much we need a
Commission on Human Rights. . . .
. . . human rights victims are usually penniless.
They cannot pay and very few lawyers will
accept clients who do not pay. And so, they are
the ones more abused and oppressed. Another
reason is, the cases involved are very delicate
— torture, salvaging, picking up without any
warrant of arrest, massacre — and the persons
 who are allegedly guilty are people in power
like politicians, men in the military and big
shots. Therefore, this Human Rights
Commission must be independent.
I would like very much to emphasize how
much we need this commission, especially for
the little Filipino, the little individual who
needs this kind of help and cannot get it. And I
think we should concentrate only on civil and
political violations because if we open this to
land, housing and health, we will have no
place to go again and we will not receive any
response. . . .30 (emphasis supplied)
The final outcome, now written as Section 18, Article XIII, of the
1987 Constitution, is a provision empowering the Commission on
Human Rights to "investigate, on its own or on complaint by any
party, all forms of human rights violations involving civil and
political rights" (Sec. 1).
The term "civil rights,"31 has been defined as referring —
(t)o those (rights) that belong to every citizen
of the state or country, or, in wider sense, to all
its inhabitants, and are not connected with the
organization or administration of the
government. They include the rights of
property, marriage, equal protection of the
laws, freedom of contract, etc. Or, as otherwise
defined civil rights are rights appertaining to a
person by virtue of his citizenship in a state or
community. Such term may also refer, in its
general sense, to rights capable of being
enforced or redressed in a civil action.
Also quite often mentioned are the guarantees against involuntary
servitude, religious persecution, unreasonable searches and
seizures, and imprisonment for debt.32
Political rights,33 on the other hand, are said to refer to the right to
participate, directly or indirectly, in the establishment or
administration of government, the right of suffrage, the right to
hold public office, the right of petition and, in general, the rights
appurtenant to citizenship vis-a-vis the management of
government.34
Recalling the deliberations of the Constitutional Commission,
aforequoted, it is readily apparent that the delegates envisioned a
Commission on Human Rights that would focus its attention to the
more severe cases of human rights violations. Delegate Garcia, for
instance, mentioned such areas as the "(1) protection of rights of
political detainees, (2) treatment of prisoners and the prevention of
tortures, (3) fair and public trials, (4) cases of disappearances, (5)
salvagings and hamletting, and (6) other crimes committed against
the religious." While the enumeration has not likely been meant to
have any preclusive effect, more than just expressing a statement of
priority, it is, nonetheless, significant for the tone it has set. In any
event, the delegates did not apparently take comfort in
peremptorily making a conclusive delineation of the CHR's scope
of investigatorial jurisdiction. They have thus seen it fit to resolve,
instead, that "Congress may provide for other cases of violations of
human rights that should fall within the authority of the
Commission, taking into account its recommendation."35
In the particular case at hand, there is no cavil that what are sought
to be demolished are the stalls, sari-sari stores and carinderia, as
well as temporary shanties, erected by private respondents on a
land which is planned to be developed into a "People's Park". More
than that, the land adjoins the North EDSA of Quezon City which,
78 HRLAW 08281
this Court can take judicial notice of, is a busy national highway.
The consequent danger to life and limb is not thus to be likewise
simply ignored. It is indeed paradoxical that a right which is
claimed to have been violated is one that cannot, in the first place,
even be invoked, if it is, in fact, extant. Be that as it may, looking
at the standards hereinabove discoursed vis-a-vis the circumstances
obtaining in this instance, we are not prepared to conclude that the
order for the demolition of the stalls, sari-sari stores
and carinderia of the private respondents can fall within the
compartment of "human rights violations involving civil and
political rights" intended by the Constitution.
On its contempt powers, the CHR is constitutionally authorized to
"adopt its operational guidelines and rules of procedure, and cite
for contempt for violations thereof in accordance with the Rules of
Court." Accordingly, the CHR acted within its authority in
providing in its revised rules, its power "to cite or hold any person
in direct or indirect contempt, and to impose the appropriate
penalties in accordance with the procedure and sanctions provided
for in the Rules of Court." That power to cite for contempt,
however, should be understood to apply only to violations of its
adopted operational guidelines and rules of procedure essential to
carry out its investigatorial powers. To exemplify, the power to cite
for contempt could be exercised against persons who refuse to
cooperate with the said body, or who unduly withhold relevant
information, or who decline to honor summons, and the like, in
pursuing its investigative work. The "order to desist" (a semantic
interplay for a restraining order) in the instance before us, however,
is not investigatorial in character but prescinds from an
adjudicative power that it does not possess. In Export Processing
Zone Authority vs. Commission on Human Rights,36 the Court,
speaking through Madame Justice Carolina Griño-Aquino,
explained:
The constitutional provision directing the CHR
to "provide for preventive measures and legal
aid services to the underprivileged whose
human rights have been violated or need
protection" may not be construed to confer
jurisdiction on the Commission to issue a
restraining order or writ of injunction for, it
that were the intention, the Constitution would
have expressly said so. "Jurisdiction is
conferred only by the Constitution or by law".
It is never derived by implication.
Evidently, the "preventive measures and legal
aid services" mentioned in the Constitution
refer to extrajudicial and judicial remedies
(including a writ of preliminary injunction)
which the CHR may seek from proper courts
on behalf of the victims of human rights
violations. Not being a court of justice, the
CHR itself has no jurisdiction to issue the writ,
for a writ of preliminary injunction may only
be issued "by the judge of any court in which
the action is pending [within his district], or by
a Justice of the Court of Appeals, or of the
Supreme Court. . . . A writ of preliminary
injunction is an ancillary remedy. It is available
only in a pending principal action, for the
preservation or protection of the rights and
interests of a party thereto, and for no other
purpose." (footnotes omitted).
The Commission does have legal standing to indorse, for
appropriate action, its findings and recommendations to any
appropriate agency of government.37
The challenge on the CHR's disbursement of the amount of
P200,000.00 by way of financial aid to the vendors affected by the
demolition is not an appropriate issue in the instant petition. Not
only is there lack of locus standi on the part of the petitioners to
question the disbursement but, more importantly, the matter lies
with the appropriate administrative agencies concerned to initially
consider.

The public respondent explains that this petition for prohibition

filed by the petitioners has become moot and academic since the
case before it (CHR Case No. 90-1580) has already been fully
heard, and that the matter is merely awaiting final resolution. It is
true that prohibition is a preventive remedy to restrain the doing of
an act about to be done, and not intended to provide a remedy for
an act already accomplished. 38 Here, however, said Commission
admittedly has yet to promulgate its resolution in CHR Case No.
90-1580. The instant petition has been intended, among other
things, to also prevent CHR from precisely doing that.39

WHEREFORE, the writ prayed for in this petition is GRANTED.

The Commission on Human Rights is hereby prohibited from
further proceeding with CHR Case No. 90-1580 and from
implementing the P500.00 fine for contempt. The temporary
restraining order heretofore issued by this Court is made
permanent. No costs.

SO ORDERED.

79 HRLAW 08281
CHREA vs.CHR
G.R. No. 155336
November 25, 2004
FACTS: Congress passed RA 8522, otherwise known as the
General Appropriations Act of 1998. It provided for Special
Provisions Applicable to All Constitutional Offices Enjoying Fiscal
Autonomy. On the strength of these special provisions, the CHR
promulgated Resolution No. A98-047 adopting an upgrading and
reclassification scheme among selected positions in the
Commission.
By virtue of Resolution No. A98-062, the CHR “collapsed” the
vacant positions in the body to provide additional source of
funding for said staffing modification.
The CHR forwarded said staffing modification and upgrading
scheme to the DBM with a request for its approval, but the then
DBM secretary denied the request.
In light of the DBM’s disapproval of the proposed personnel
modification scheme, the CSC-National Capital Region Office,
through a memorandum, recommended to the CSC-Central Office
that the subject appointments be rejected owing to the DBM’s
disapproval of the plantilla reclassification.
Meanwhile, the officers of petitioner CHR-employees association
(CHREA) in representation of the rank and file employees of the
CHR, requested the CSC-Central Office to affirm the
recommendation of the CSC-Regional Office.
The CSC-Central Office denied CHREA’s request in a Resolution
and reversedthe recommendation of the CSC-Regional Office that
the upgrading scheme be censured. CHREA filed a motion for
reconsideration, but the CSC-Central Office denied the same.
CHREA elevated the matter to the CA, which affirmed the
pronouncement of the CSC-Central Office and upheld the validity
of the upgrading, retitling, and reclassification scheme in the CHR
on the justification that such action is within the ambit of CHR’s
fiscal autonomy.
ISSUE: Can the CHR validly implement an upgrading,
reclassification, creation, and collapsing of plantilla positions in the
Commission without the prior approval of the Department of
Budget and Management?
HELD: the petition is GRANTED, the Decision of the CA and its
are hereby REVERSED and SET ASIDE. The ruling CSC-
National Capital Region is REINSTATED. The 3 CHR
Resolutions, without the approval of the DBM are disallowed.
1. RA 6758, An Act Prescribing a Revised Compensation and
Position Classification System in the Government and For Other
Purposes, or the Salary Standardization Law, provides that it is the
DBM that shall establish and administer a unified Compensation
and Position Classification System.
The disputation of the CA that the CHR is exempt from the long
arm of the Salary Standardization Law is flawed considering that
the coverage thereof encompasses the entire gamut of government
offices, sans qualification.
This power to “administer” is not purely ministerial in character as
erroneously held by the CA. The word to administer means to
control or regulate in behalf of others; to direct or superintend the
execution, application or conduct of; and to manage or conduct
public affairs, as to administer the government of the state.
2. The regulatory power of the DBM on matters of compensation
is encrypted not only in law, but in jurisprudence as well. In the
recent case of PRA v. Buñag, this Court ruled that compensation,
allowances, and other benefits received by PRA officials and
80 HRLAW 08281
employees without the requisite approval or authority of the DBM
are unauthorized and irregular
In Victorina Cruz v. CA , we held that the DBM has the sole power
and discretion to administer the compensation and position
classification system of the national government.
In Intia, Jr. v. COA the Court held that although the charter of the
PPC grants it the power to fix the compensation and benefits of its
employees and exempts PPC from the coverage of the rules and
regulations of the Compensation and Position Classification Office,
by virtue of Section 6 of P.D. No. 1597, the compensation system
established by the PPC is, nonetheless, subject to the review of the
DBM.
(It should be emphasized that the review by the DBM of any PPC
resolution affecting the compensation structure of its personnel
should not be interpreted to mean that the DBM can dictate upon
the PPC Board of Directors and deprive the latter of its discretion
on the matter. Rather, the DBM’s function is merely to ensure that
the action taken by the Board of Directors complies with the
requirements of the law, specifically, that PPC’s compensation
system “conforms as closely as possible with that provided for
under R.A. No. 6758.” )
3. As measured by the foregoing legal and jurisprudential
yardsticks, the imprimatur of the DBM must first be sought prior to
implementation of any reclassification or upgrading of positions in
government. This is consonant to the mandate of the DBM under
the RAC of 1987, Section 3, Chapter 1, Title XVII, to wit:
SEC. 3. Powers and Functions. – The Department of Budget and
Management shall assist the President in the preparation of a
national resources and expenditures budget, preparation, execution
and control of the National Budget, preparation and maintenance of
accounting systems essential to the budgetary process, achievement
of more economy and efficiency in the management of government
operations, administration of compensation and position
classification systems, assessment of organizational effectiveness
and review and evaluation of legislative proposals having
budgetary or organizational implications.
Irrefragably, it is within the turf of the DBM Secretary to disallow
the upgrading, reclassification, and creation of additional plantilla
positions in the CHR based on its finding that such scheme lacks
legal justification.
Notably, the CHR itself recognizes the authority of the DBM to
deny or approve the proposed reclassification of positions as
evidenced by its three letters to the DBM requesting approval
thereof. As such, it is now estopped from now claiming that the
nod of approval it has previously sought from the DBM is a
superfluity
4. The CA incorrectly relied on the pronouncement of the CSC-
Central Office that the CHR is a constitutional commission, and as
such enjoys fiscal autonomy.
Palpably, the CA’s Decision was based on the mistaken premise
that the CHR belongs to the species of constitutional commissions.
But the Constitution states in no uncertain terms that only the CSC,
the COMELEC, and the COA shall be tagged as Constitutional
Commissions with the appurtenant right to fiscal autonomy.
Along the same vein, the Administrative Code, on Distribution of
Powers of Government, the constitutional commissions shall
include only the CSC, the COMELEC, and the COA, which are
granted independence and fiscal autonomy. In contrast, Chapter 5,
Section 29 thereof, is silent on the grant of similar powers to the
other bodies including the CHR. Thus:
SEC. 24. Constitutional Commissions. – The Constitutional
Commissions, which shall be independent, are the Civil Service
Commission, the Commission on Elections, and the Commission
on Audit.
SEC. 26. Fiscal Autonomy. – The Constitutional Commissions
shall enjoy fiscal autonomy. The approved annual appropriations
shall be automatically and regularly released.
SEC. 29. Other Bodies. – There shall be in accordance with the
Constitution, an Office of the Ombudsman, a Commission on
Human Rights, and independent central monetary authority, and a
national police commission. Likewise, as provided in the
Constitution, Congress may establish an independent economic and
planning agency.
From the 1987 Constitution and the Administrative Code, it is
abundantly clear that the CHR is not among the class of
Constitutional Commissions. As expressed in the oft-repeated
maxim expressio unius est exclusio alterius, the express mention of
one person, thing, act or consequence excludes all others. Stated
otherwise, expressium facit cessare tacitum – what is expressed
puts an end to what is implied.
Nor is there any legal basis to support the contention that the CHR
enjoys fiscal autonomy. In essence, fiscal autonomy entails
freedom from outside control and limitations, other than those
provided by law. It is the freedom to allocate and utilize funds
granted by law, in accordance with law, and pursuant to the
wisdom and dispatch its needs may require from time to time. 22 In
Blaquera v. Alcala and Bengzon v. Drilon,23 it is understood that it
is only the Judiciary, the CSC, the COA, the COMELEC, and the
Office of the Ombudsman, which enjoy fiscal autonomy.
Neither does the fact that the CHR was admitted as a member by
the Constitutional Fiscal Autonomy Group (CFAG) ipso facto
clothed it with fiscal autonomy. Fiscal autonomy is a constitutional
grant, not a tag obtainable by membership.
We note with interest that the special provision under Rep. Act No.
8522, while cited under the heading of the CHR, did not
specifically mention CHR as among those offices to which the
special provision to formulate and implement organizational
structures apply, but merely states its coverage to include
Constitutional Commissions and Offices enjoying fiscal autonomy
All told, the CHR, although admittedly a constitutional creation is,
nonetheless, not included in the genus of offices accorded fiscal
autonomy by constitutional or legislative fiat.
Even assuming en arguendo that the CHR enjoys fiscal autonomy,
we share the stance of the DBM that the grant of fiscal autonomy
notwithstanding, all government offices must, all the same,
kowtow to the Salary Standardization Law. We are of the same
mind with the DBM on its standpoint, thus-
Being a member of the fiscal autonomy group does not vest the
agency with the authority to reclassify, upgrade, and create
81 HRLAW 08281
positions without approval of the DBM. While the members of the
Group are authorized to formulate and implement the
organizational structures of their respective offices and determine
the compensation of their personnel, such authority is not absolute
and must be exercised within the parameters of the Unified
Position Classification and Compensation System established
under RA 6758 more popularly known as the Compensation
Standardization Law.
5. The most lucid argument against the stand of respondent,
however, is the provision of Rep. Act No. 8522 “that the
implementation hereof shall be in accordance with salary rates,
allowances and other benefits authorized under compensation
standardization laws.”26
NOTES:
1. Respondent CHR sharply retorts that petitioner has no locus
standi considering that there exists no official written record in the
Commission recognizing petitioner as a bona fide organization of
its employees nor is there anything in the records to show that its
president has the authority to sue the CHR.
On petitioner’s personality to bring this suit, we held in a multitude
of cases that a proper party is one who has sustained or is in
immediate danger of sustaining an injury as a result of the act
complained of. Here, petitioner, which consists of rank and file
employees of respondent CHR, protests that the upgrading and
collapsing of positions benefited only a select few in the upper
level positions in the Commission resulting to the demoralization
of the rank and file employees. This sufficiently meets the injury
test. Indeed, the CHR’s upgrading scheme, if found to be valid,
potentially entails eating up the Commission’s savings or that
portion of its budgetary pie otherwise allocated for Personnel
Services, from which the benefits of the employees, including
those in the rank and file, are derived.
Further, the personality of petitioner to file this case was
recognized by the CSC when it took cognizance of the CHREA’s
request to affirm the recommendation of the CSC-National Capital
Region Office. CHREA’s personality to bring the suit was a non-
issue in the CA when it passed upon the merits of this case. Thus,
neither should our hands be tied by this technical concern. Indeed,
it is settled jurisprudence that an issue that was neither raised in the
complaint nor in the court below cannot be raised for the first time
on appeal, as to do so would be offensive to the basic rules of fair
play, justice, and due process.
2. In line with its role to breathe life into the policy behind the
Salary Standardization Law of “providing equal pay for
substantially equal work and to base differences in pay upon
substantive differences in duties and responsibilities, and
qualification requirements of the positions,” the DBM, in the case
under review, made a determination, after a thorough evaluation,
that the reclassification and upgrading scheme proposed by the
CHR lacks legal rationalization.
The DBM expounded that Section 78 of the general provisions of
the General Appropriations Act FY 1998, which the CHR heavily
relies upon to justify its reclassification scheme, explicitly provides
that “no organizational unit or changes in key positions shall be
authorized unless provided by law or directed by the President.”
Here, the DBM discerned that there is no law authorizing the
creation of a Finance Management Office and a Public Affairs
Office in the CHR. Anent CHR’s proposal to upgrade twelve
positions of Attorney VI, SG-26 to Director IV, SG-28, and four
positions of Director III, SG-27 to Director IV, SG-28, in the
Central Office, the DBM denied the same as this would change the
context from support to substantive without actual change in
functions.
This view of the DBM, as the law’s designated body to implement
and administer a unified compensation system, is beyond cavil.
The interpretation of an administrative government agency, which
is tasked to implement a statute is accorded great respect and
ordinarily controls the construction of the courts. In Energy
Regulatory Board v. CA, we echoed the basic rule that the courts
will not interfere in matters which are addressed to the sound
discretion of government agencies entrusted with the regulation of
activities coming under the special technical knowledge and
training of such agencies.
G.R. No. 155336 November 25, 2004
COMMISSION ON HUMAN RIGHTS EMPLOYEES'
ASSOCIATION (CHREA) Represented by its President,
MARCIAL A. SANCHEZ, JR., petitioner,
vs.
COMMISSION ON HUMAN RIGHTS, respondent.
DECISION
CHICO-NAZARIO, J.:
Can the Commission on Human Rights lawfully implement an
upgrading and reclassification of personnel positions without the
prior approval of the Department of Budget and Management?
Before this Court is a petition for review filed by petitioner
Commission on Human Rights Employees' Association (CHREA)
challenging the Decision1 dated 29 November 2001 of the Court of
Appeals in CA-G.R. SP No. 59678 affirming the
Resolutions2 dated 16 December 1999 and 09 June 2000 of the
Civil Service Commission (CSC), which sustained the validity of
the upgrading and reclassification of certain personnel positions in
the Commission on Human Rights (CHR) despite the disapproval
thereof by the Department of Budget and Management (DBM).
Also assailed is the resolution dated 11 September 2002 of the
Court of Appeals denying the motion for reconsideration filed by
petitioner.
The antecedent facts which spawned the present controversy are as
follows:
On 14 February 1998, Congress passed Republic Act No. 8522,
otherwise known as the General Appropriations Act of 1998. It
provided for Special Provisions Applicable to All Constitutional
Offices Enjoying Fiscal Autonomy. The last portion of Article
XXXIII covers the appropriations of the CHR. These special
provisions state:
1. Organizational Structure. Any provision of law to the
contrary notwithstanding and within the limits of their
respective appropriations as authorized in this Act, the
Constitutional Commissions and Offices enjoying fiscal
autonomy are authorized to formulate and implement the
organizational structures of their respective offices, to fix
and determine the salaries, allowances, and other benefits
of their personnel, and whenever public interest so
requires, make adjustments in their personal services
itemization including, but not limited to, the transfer of
item or creation of new positions in their respective
offices: PROVIDED, That officers and employees whose
positions are affected by such reorganization or
adjustments shall be granted retirement gratuities and
82 HRLAW 08281
separation pay in accordance with existing laws, which
shall be payable from any unexpended balance of, or
savings in the appropriations of their respective offices:
PROVIDED, FURTHER, That the implementation
hereof shall be in accordance with salary rates,
allowances and other benefits authorized under
compensation standardization laws.
2. Use of Savings. The Constitutional Commissions and
Offices enjoying fiscal autonomy are hereby authorized
to use savings in their respective appropriations for: (a)
printing and/or publication of decisions, resolutions, and
training information materials; (b) repair, maintenance
and improvement of central and regional offices,
facilities and equipment; (c) purchase of books, journals,
periodicals and equipment; (d) necessary expenses for
the employment of temporary, contractual and casual
employees; (e) payment of extraordinary and
miscellaneous expenses, commutable representation and
transportation allowances, and fringe benefits for their
officials and employees as may be authorized by law;
and (f) other official purposes, subject to accounting and
auditing rules and regulations. (Emphases supplied)
on the strength of these special provisions, the CHR, through its
then Chairperson Aurora P. Navarette-Reciña and Commissioners
Nasser A. Marohomsalic, Mercedes V. Contreras, Vicente P.
Sibulo, and Jorge R. Coquia, promulgated Resolution No. A98-047
on 04 September 1998, adopting an upgrading and reclassification
scheme among selected positions in the Commission, to wit:
WHEREAS, the General Appropriations Act, FY 1998,
R.A. No. 8522 has provided special provisions applicable
to all Constitutional Offices enjoying Fiscal Autonomy,
particularly on organizational structures and authorizes
the same to formulate and implement the organizational
structures of their respective offices to fix and determine
the salaries, allowances and other benefits of their
personnel and whenever public interest so requires, make
adjustments in the personnel services itemization
including, but not limited to, the transfer of item or
creation of new positions in their respective offices:
PROVIDED, That officers and employees whose
positions are affected by such reorganization or
adjustments shall be granted retirement gratuities and
separation pay in accordance with existing laws, which
shall be payable from any unexpanded balance of, or
savings in the appropriations of their respective offices;
Whereas, the Commission on Human Rights is a member
of the Constitutional Fiscal Autonomy Group (CFAG)
and on July 24, 1998, CFAG passed an approved Joint
Resolution No. 49 adopting internal rules implementing
the special provisions heretoforth mentioned;
NOW THEREFORE, the Commission by virtue of its
fiscal autonomy hereby approves and authorizes the
upgrading and augmentation of the commensurate
amount generated from savings under Personal Services
to support the implementation of this resolution effective
Calendar Year 1998;
Let the Human Resources Development Division
(HRDD) prepare the necessary Notice of Salary
Adjustment and other appropriate documents to
implement this resolution; . . . .3 (Emphasis supplied)
Annexed to said resolution is the proposed creation of ten
additional plantilla positions, namely: one Director IV position,
with Salary Grade 28 for the Caraga Regional Office, four Security
Officer II with Salary Grade 15, and five Process Servers, with
Salary Grade 5 under the Office of the Commissioners. 4
On 19 October 1998, CHR issued Resolution No. A98-
0555 providing for the upgrading or raising of salary grades of the
following positions in the Commission:
It, likewise, provided for the creation and upgrading of the
following positions:
A. Creation
B. Upgrading
To support the implementation of such scheme, the CHR, in the
same resolution, authorized the augmentation of a commensurate
amount generated from savings under Personnel Services.
By virtue of Resolution No. A98-062 dated 17 November 1998, the
CHR "collapsed" the vacant positions in the body to provide
additional source of funding for said staffing modification. Among
the positions collapsed were: one Attorney III, four Attorney IV,
one Chemist III, three Special Investigator I, one Clerk III, and one
Accounting Clerk II.8
The CHR forwarded said staffing modification and upgrading
scheme to the DBM with a request for its approval, but the then
DBM secretary Benjamin Diokno denied the request on the
following justification:
… Based on the evaluations made the request was not favorably
considered as it effectively involved the elevation of the field units
from divisions to services.
The present proposal seeks further to upgrade the twelve (12)
positions of Attorney VI, SG-26 to Director IV, SG-28. This would
elevate the field units to a bureau or regional office, a level even
higher than the one previously denied.
The request to upgrade the three (3) positions of Director III, SG-
27 to Director IV, SG-28, in the Central Office in effect would
elevate the services to Office and change the context from support
to substantive without actual change in functions.
In the absence of a specific provision of law which may be used as
a legal basis to elevate the level of divisions to a bureau or regional
office, and the services to offices, we reiterate our previous stand
denying the upgrading of the twelve (12) positions of Attorney VI,
SG-26 to Director III, SG-27 or Director IV, SG-28, in the Field
Operations Office (FOO) and three (3) Director III, SG-27 to
Director IV, SG-28 in the Central Office.
As represented, President Ramos then issued a Memorandum to the
DBM Secretary dated 10 December 1997, directing the latter to
increase the number of Plantilla positions in the CHR both Central
and Regional Offices to implement the Philippine Decade Plan on
Human Rights Education, the Philippine Human Rights Plan and
Barangay Rights Actions Center in accordance with existing laws.
(Emphasis in the original)
Pursuant to Section 78 of the General Provisions of the General
Appropriations Act (GAA) FY 1998, no organizational unit or
changes in key positions shall be authorized unless provided by
law or directed by the President, thus, the creation of a Finance
Management Office and a Public Affairs Office cannot be given
favorable recommendation.
83 HRLAW 08281
Moreover, as provided under Section 2 of RA No. 6758, otherwise
known as the Compensation Standardization Law, the Department
of Budget and Management is directed to establish and administer
a unified compensation and position classification system in the
government. The Supreme Court ruled in the case of Victorina
Cruz vs. Court of Appeals, G.R. No. 119155, dated January 30,
1996, that this Department has the sole power and discretion to
administer the compensation and position classification system of
the National Government.
Being a member of the fiscal autonomy group does not vest the
agency with the authority to reclassify, upgrade, and create
positions without approval of the DBM. While the members of the
Group are authorized to formulate and implement the
organizational structures of their respective offices and determine
the compensation of their personnel, such authority is not absolute
and must be exercised within the parameters of the Unified
Position Classification and Compensation System established
under RA 6758 more popularly known as the Compensation
Standardization Law. We therefore reiterate our previous stand on
the matter.9 (Emphases supplied)
In light of the DBM's disapproval of the proposed personnel
modification scheme, the CSC-National Capital Region Office,
through a memorandum dated 29 March 1999, recommended to the
CSC-Central Office that the subject appointments be rejected
owing to the DBM's disapproval of the plantilla reclassification.
Meanwhile, the officers of petitioner CHREA, in representation of
the rank and file employees of the CHR, requested the CSC-
Central Office to affirm the recommendation of the CSC-Regional
Office. CHREA stood its ground in saying that the DBM is the
only agency with appropriate authority mandated by law to
evaluate and approve matters of reclassification and upgrading, as
well as creation of positions.
The CSC-Central Office denied CHREA's request in a Resolution
dated 16 December 1999, and reversed the recommendation of the
CSC-Regional Office that the upgrading scheme be censured. The
decretal portion of which reads:
WHEREFORE, the request of Ronnie N. Rosero, Hubert
V. Ruiz, Flordeliza A. Briones, George Q. Dumlao [and],
Corazon A. Santos-Tiu, is hereby denied.10
CHREA filed a motion for reconsideration, but the CSC-
Central Office denied the same on 09 June 2000.
Given the cacophony of judgments between the DBM
and the CSC, petitioner CHREA elevated the matter to
the Court of Appeals. The Court of Appeals affirmed the
pronouncement of the CSC-Central Office and upheld
the validity of the upgrading, retitling, and
reclassification scheme in the CHR on the justification
that such action is within the ambit of CHR's fiscal
autonomy. The fallo of the Court of Appeals decision
provides:
IN VIEW OF ALL THE FOREGOING, the instant
petition is ordered DISMISSED and the questioned Civil
Service Commission Resolution No. 99-2800 dated
December 16, 1999 as well as No. 001354 dated June 9,
2000, are hereby AFFIRMED. No cost.11
Unperturbed, petitioner filed this petition in this Court contending
that:
A.
 …THE COURT OF APPEALS GRAVELY ERRED
WHEN IT HELD THAT UNDER THE 1987
CONSTITUTION, THE COMMISSION ON HUMAN
RIGHTS ENJOYS FISCAL AUTONOMY.
B.
…THE COURT OF APPEALS SERIOUSLY ERRED
IN UPHOLDING THE CONSTRUCTION OF THE
COMMISSION ON HUMAN RIGHTS OF REPUBLIC
ACT NO. 8522 (THE GENERAL APPROPRIATIONS
ACT FOR THE FISCAL YEAR 1998) DESPITE ITS
BEING IN SHARP CONFLICT WITH THE 1987
CONSTITUTION AND THE STATUTE ITSELF.
C.
…THE COURT OF APPEALS SERIOUSLY AND
GRAVELY ERRED IN AFFIRMING THE VALIDITY
OF THE CIVIL SERVICE COMMISSION
RESOLUTION NOS. 992800 AND 001354 AS WELL
AS THAT OF THE OPINION OF THE DEPARTMENT
OF JUSTICE IN STATING THAT THE COMMISSION
ON HUMAN RIGHTS ENJOYS FISCAL AUTONOMY
UNDER THE 1987 CONSTITUTION AND THAT
THIS FISCAL AUTONOMY INCLUDES THE
ACTION TAKEN BY IT IN COLLAPSING,
UPGRADING AND RECLASSIFICATION OF
POSITIONS THEREIN.12
The central question we must answer in order to resolve this case
is: Can the Commission on Human Rights validly implement an
upgrading, reclassification, creation, and collapsing of plantilla
positions in the Commission without the prior approval of the
Department of Budget and Management?
Petitioner CHREA grouses that the Court of Appeals and the CSC-
Central Office both erred in sanctioning the CHR's alleged blanket
authority to upgrade, reclassify, and create positions inasmuch as
the approval of the DBM relative to such scheme is still
indispensable. Petitioner bewails that the CSC and the Court of
Appeals erroneously assumed that CHR enjoys fiscal autonomy
insofar as financial matters are concerned, particularly with regard
to the upgrading and reclassification of positions therein.
Respondent CHR sharply retorts that petitioner has no locus standi
considering that there exists no official written record in the
Commission recognizing petitioner as a bona fide organization of
its employees nor is there anything in the records to show that its
president, Marcial A. Sanchez, Jr., has the authority to sue the
CHR. The CHR contends that it has the authority to cause the
upgrading, reclassification, plantilla creation, and collapsing
scheme sans the approval of the DBM because it enjoys fiscal
autonomy.
After a thorough consideration of the arguments of both parties and
an assiduous scrutiny of the records in the case at bar, it is the
Court's opinion that the present petition is imbued with merit.
On petitioner's personality to bring this suit, we held in a multitude
of cases that a proper party is one who has sustained or is in
immediate danger of sustaining an injury as a result of the act
complained of.13 Here, petitioner, which consists of rank and file
employees of respondent CHR, protests that the upgrading and
collapsing of positions benefited only a select few in the upper
level positions in the Commission resulting to the demoralization
of the rank and file employees. This sufficiently meets the injury
test. Indeed, the CHR's upgrading scheme, if found to be valid,
potentially entails eating up the Commission's savings or that
portion of its budgetary pie otherwise allocated for Personnel
84 HRLAW 08281
Services, from which the benefits of the employees, including
those in the rank and file, are derived.
Further, the personality of petitioner to file this case was
recognized by the CSC when it took cognizance of the CHREA's
request to affirm the recommendation of the CSC-National Capital
Region Office. CHREA's personality to bring the suit was a non-
issue in the Court of Appeals when it passed upon the merits of this
case. Thus, neither should our hands be tied by this technical
concern. Indeed, it is settled jurisprudence that an issue that was
neither raised in the complaint nor in the court below cannot be
raised for the first time on appeal, as to do so would be offensive to
the basic rules of fair play, justice, and due process.14
We now delve into the main issue of whether or not the approval
by the DBM is a condition precedent to the enactment of an
upgrading, reclassification, creation and collapsing of plantilla
positions in the CHR.
Germane to our discussion is Rep. Act No. 6758, An Act
Prescribing a Revised Compensation and Position Classification
System in the Government and For Other Purposes, or the Salary
Standardization Law, dated 01 July 1989, which provides in
Sections 2 and 4 thereof that it is the DBM that shall establish and
administer a unified Compensation and Position Classification
System. Thus:
SEC. 2. Statement of Policy. -- It is hereby declared the
policy of the State to provide equal pay for substantially
equal work and to base differences in pay upon
substantive differences in duties and responsibilities, and
qualification requirements of the positions. In
determining rates of pay, due regard shall be given to,
among others, prevailing rates in the private sector for
comparable work. For this purpose, the Department of
Budget and Management (DBM) is hereby directed to
establish and administer a unified Compensation and
Position Classification System, hereinafter referred to as
the System as provided for in Presidential Decree No.
985, as amended, that shall be applied for all government
entities, as mandated by the Constitution. (Emphasis
supplied.)
SEC. 4. Coverage. – The Compensation and Position
Classification System herein provided shall apply to all
positions, appointive or elective, on full or part-time
basis, now existing or hereafter created in the
government, including government-owned or controlled
corporations and government financial institutions.
The term "government" refers to the Executive, the Legislative and
the Judicial Branches and the Constitutional Commissions and
shall include all, but shall not be limited to, departments, bureaus,
offices, boards, commissions, courts, tribunals, councils,
authorities, administrations, centers, institutes, state colleges and
universities, local government units, and the armed forces. The
term "government-owned or controlled corporations and financial
institutions" shall include all corporations and financial institutions
owned or controlled by the National Government, whether such
corporations and financial institutions perform governmental or
proprietary functions. (Emphasis supplied.)
The disputation of the Court of Appeals that the CHR is exempt
from the long arm of the Salary Standardization Law is flawed
considering that the coverage thereof, as defined above,
encompasses the entire gamut of government offices, sans
qualification.
This power to "administer" is not purely ministerial in character as
erroneously held by the Court of Appeals. The word to administer
means to control or regulate in behalf of others; to direct or
superintend the execution, application or conduct of; and to
manage or conduct public affairs, as to administer the government
of the state.15
The regulatory power of the DBM on matters of compensation is
encrypted not only in law, but in jurisprudence as well. In the
recent case of Philippine Retirement Authority (PRA) v. Jesusito L.
Buñag,16 this Court, speaking through Mr. Justice Reynato Puno,
ruled that compensation, allowances, and other benefits received
by PRA officials and employees without the requisite approval or
authority of the DBM are unauthorized and irregular. In the words
of the Court –
Despite the power granted to the Board of Directors of PRA to
establish and fix a compensation and benefits scheme for its
employees, the same is subject to the review of the Department of
Budget and Management. However, in view of the express powers
granted to PRA under its charter, the extent of the review authority
of the Department of Budget and Management is limited. As stated
in Intia, the task of the Department of Budget and Management is
simply to review the compensation and benefits plan of the
government agency or entity concerned and determine if the same
complies with the prescribed policies and guidelines issued in this
regard. The role of the Department of Budget and Management is
supervisorial in nature, its main duty being to ascertain that the
proposed compensation, benefits and other incentives to be given
to PRA officials and employees adhere to the policies and
guidelines issued in accordance with applicable laws.
In Victorina Cruz v. Court of Appeals,17 we held that the DBM has
the sole power and discretion to administer the compensation and
position classification system of the national government.
In Intia, Jr. v. Commission on Audit,18 the Court held that although
the charter19 of the Philippine Postal Corporation (PPC) grants it
the power to fix the compensation and benefits of its employees
and exempts PPC from the coverage of the rules and regulations of
the Compensation and Position Classification Office, by virtue of
Section 6 of P.D. No. 1597, the compensation system established
by the PPC is, nonetheless, subject to the review of the DBM. This
Court intoned:
It should be emphasized that the review by the DBM of any PPC
resolution affecting the compensation structure of its personnel
should not be interpreted to mean that the DBM can dictate upon
the PPC Board of Directors and deprive the latter of its discretion
on the matter. Rather, the DBM's function is merely to ensure that
the action taken by the Board of Directors complies with the
requirements of the law, specifically, that PPC's compensation
system "conforms as closely as possible with that provided for
under R.A. No. 6758." (Emphasis supplied.)
As measured by the foregoing legal and jurisprudential yardsticks,
the imprimatur of the DBM must first be sought prior to
implementation of any reclassification or upgrading of positions in
government. This is consonant to the mandate of the DBM under
the Revised Administrative Code of 1987, Section 3, Chapter 1,
Title XVII, to wit:
SEC. 3. Powers and Functions. – The Department of
Budget and Management shall assist the President in the
preparation of a national resources and expenditures
budget, preparation, execution and control of the
National Budget, preparation and maintenance of
accounting systems essential to the budgetary process,
achievement of more economy and efficiency in the
management of government operations, administration of
compensation and position classification systems,
assessment of organizational effectiveness and review
85 HRLAW 08281
and evaluation of legislative proposals having budgetary
or organizational implications. (Emphasis supplied.)
Irrefragably, it is within the turf of the DBM Secretary to disallow
the upgrading, reclassification, and creation of additional plantilla
positions in the CHR based on its finding that such scheme lacks
legal justification.
Notably, the CHR itself recognizes the authority of the DBM to
deny or approve the proposed reclassification of positions as
evidenced by its three letters to the DBM requesting approval
thereof. As such, it is now estopped from now claiming that the
nod of approval it has previously sought from the DBM is a
superfluity.
The Court of Appeals incorrectly relied on the pronouncement of
the CSC-Central Office that the CHR is a constitutional
commission, and as such enjoys fiscal autonomy.20
Palpably, the Court of Appeals' Decision was based on the
mistaken premise that the CHR belongs to the species of
constitutional commissions. But, Article IX of the Constitution
states in no uncertain terms that only the CSC, the Commission on
Elections, and the Commission on Audit shall be tagged as
Constitutional Commissions with the appurtenant right to fiscal
autonomy. Thus:
Sec. 1. The Constitutional Commissions, which shall be
independent, are the Civil Service Commission, the
Commission on Elections, and the Commission on Audit.
Sec. 5. The Commission shall enjoy fiscal autonomy.
Their approved annual appropriations shall be
automatically and regularly released.
Along the same vein, the Administrative Code, in Chapter 5,
Sections 24 and 26 of Book II on Distribution of Powers of
Government, the constitutional commissions shall include only the
Civil Service Commission, the Commission on Elections, and the
Commission on Audit, which are granted independence and fiscal
autonomy. In contrast, Chapter 5, Section 29 thereof, is silent on
the grant of similar powers to the other bodies including the CHR.
Thus:
SEC. 24. Constitutional Commissions. – The
Constitutional Commissions, which shall be independent,
are the Civil Service Commission, the Commission on
Elections, and the Commission on Audit.
SEC. 26. Fiscal Autonomy. – The Constitutional
Commissions shall enjoy fiscal autonomy. The approved
annual appropriations shall be automatically and
regularly released.
SEC. 29. Other Bodies. – There shall be in accordance
with the Constitution, an Office of the Ombudsman, a
Commission on Human Rights, and independent central
monetary authority, and a national police commission.
Likewise, as provided in the Constitution, Congress may
establish an independent economic and planning agency.
(Emphasis ours.)
From the 1987 Constitution and the Administrative Code, it is
abundantly clear that the CHR is not among the class of
Constitutional Commissions. As expressed in the oft-repeated
maxim expressio unius est exclusio alterius, the express mention of
one person, thing, act or consequence excludes all others. Stated
otherwise, expressium facit cessare tacitum – what is expressed
puts an end to what is implied.21
Nor is there any legal basis to support the contention that the CHR
enjoys fiscal autonomy. In essence, fiscal autonomy entails
freedom from outside control and limitations, other than those
provided by law. It is the freedom to allocate and utilize funds
granted by law, in accordance with law, and pursuant to the
wisdom and dispatch its needs may require from time to time.22 In
Blaquera v. Alcala and Bengzon v. Drilon,23 it is understood that it
is only the Judiciary, the Civil Service Commission, the
Commission on Audit, the Commission on Elections, and the
Office of the Ombudsman, which enjoy fiscal autonomy. Thus, in
Bengzon,24 we explained:
As envisioned in the Constitution, the fiscal autonomy
enjoyed by the Judiciary, the Civil Service Commission,
the Commission on Audit, the Commission on Elections,
and the Office of the Ombudsman contemplates a
guarantee of full flexibility to allocate and utilize their
resources with the wisdom and dispatch that their needs
require. It recognizes the power and authority to levy,
assess and collect fees, fix rates of compensation not
exceeding the highest rates authorized by law for
compensation and pay plans of the government and
allocate and disburse such sums as may be provided by
law or prescribed by them in the course of the discharge
of their functions.
...
The Judiciary, the Constitutional Commissions, and the
Ombudsman must have the independence and flexibility
needed in the discharge of their constitutional duties. The
imposition of restrictions and constraints on the manner
the independent constitutional offices allocate and utilize
the funds appropriated for their operations is anathema to
fiscal autonomy and violative not only of the express
mandate of the Constitution but especially as regards the
Supreme Court, of the independence and separation of
powers upon which the entire fabric of our constitutional
system is based. In the interest of comity and
cooperation, the Supreme Court, [the] Constitutional
Commissions, and the Ombudsman have so far limited
their objections to constant reminders. We now agree
with the petitioners that this grant of autonomy should
cease to be a meaningless provision. (Emphasis
supplied.)
Neither does the fact that the CHR was admitted as a member by
the Constitutional Fiscal Autonomy Group (CFAG) ipso facto
clothed it with fiscal autonomy. Fiscal autonomy is a constitutional
grant, not a tag obtainable by membership.
We note with interest that the special provision under Rep. Act No.
8522, while cited under the heading of the CHR, did not
specifically mention CHR as among those offices to which the
special provision to formulate and implement organizational
structures apply, but merely states its coverage to include
Constitutional Commissions and Offices enjoying fiscal autonomy.
In contrast, the Special Provision Applicable to the Judiciary under
Article XXVIII of the General Appropriations Act of 1998
specifically mentions that such special provision applies to the
judiciary and had categorically authorized the Chief Justice of the
Supreme Court to formulate and implement the organizational
structure of the Judiciary, to wit:
1. Organizational Structure. Any provision of law to the
contrary notwithstanding and within the limits of their
respective appropriations authorized in this Act, the
Chief Justice of the Supreme Court is authorized to
formulate and implement organizational structure of the
Judiciary, to fix and determine the salaries, allowances,
and other benefits of their personnel, and whenever
86 HRLAW 08281
public interest so requires, make adjustments in the
personal services itemization including, but not limited
to, the transfer of item or creation of new positions in the
Judiciary; PROVIDED, That officers and employees
whose positions are affected by such reorganization or
adjustments shall be granted retirement gratuities and
separation pay in accordance with existing law, which
shall be payable from any unexpended balance of, or
savings in the appropriations of their respective offices:
PROVIDED, FURTHER, That the implementation
hereof shall be in accordance with salary rates,
allowances and other benefits authorized under
compensation standardization laws. (Emphasis supplied.)
All told, the CHR, although admittedly a constitutional creation is,
nonetheless, not included in the genus of offices accorded fiscal
autonomy by constitutional or legislative fiat.
Even assuming en arguendo that the CHR enjoys fiscal autonomy,
we share the stance of the DBM that the grant of fiscal autonomy
notwithstanding, all government offices must, all the same,
kowtow to the Salary Standardization Law. We are of the same
mind with the DBM on its standpoint, thus-
Being a member of the fiscal autonomy group does not vest the
agency with the authority to reclassify, upgrade, and create
positions without approval of the DBM. While the members of the
Group are authorized to formulate and implement the
organizational structures of their respective offices and determine
the compensation of their personnel, such authority is not absolute
and must be exercised within the parameters of the Unified
Position Classification and Compensation System established
under RA 6758 more popularly known as the Compensation
Standardization Law.25 (Emphasis supplied.)
The most lucid argument against the stand of respondent, however,
is the provision of Rep. Act No. 8522 "that the implementation
hereof shall be in accordance with salary rates, allowances and
other benefits authorized under compensation standardization
laws."26
Indeed, the law upon which respondent heavily anchors its case
upon has expressly provided that any form of adjustment in the
organizational structure must be within the parameters of the
Salary Standardization Law.
The Salary Standardization Law has gained impetus in addressing
one of the basic causes of discontent of many civil servants.27 For
this purpose, Congress has delegated to the DBM the power to
administer the Salary Standardization Law and to ensure that the
spirit behind it is observed. This power is part of the system of
checks and balances or system of restraints in our government. The
DBM's exercise of such authority is not in itself an arrogation
inasmuch as it is pursuant to the paramount law of the land, the
Salary Standardization Law and the Administrative Code.
In line with its role to breathe life into the policy behind the Salary
Standardization Law of "providing equal pay for substantially
equal work and to base differences in pay upon substantive
differences in duties and responsibilities, and qualification
requirements of the positions," the DBM, in the case under review,
made a determination, after a thorough evaluation, that the
reclassification and upgrading scheme proposed by the CHR lacks
legal rationalization.
The DBM expounded that Section 78 of the general provisions of
the General Appropriations Act FY 1998, which the CHR heavily
relies upon to justify its reclassification scheme, explicitly provides
that "no organizational unit or changes in key positions shall be
authorized unless provided by law or directed by the President."
Here, the DBM discerned that there is no law authorizing the
creation of a Finance Management Office and a Public Affairs
Office in the CHR. Anent CHR's proposal to upgrade twelve
positions of Attorney VI, SG-26 to Director IV, SG-28, and four
positions of Director III, SG-27 to Director IV, SG-28, in the
Central Office, the DBM denied the same as this would change the
context from support to substantive without actual change in
functions.

This view of the DBM, as the law's designated body to implement

and administer a unified compensation system, is beyond cavil.
The interpretation of an administrative government agency, which
is tasked to implement a statute is accorded great respect and
ordinarily controls the construction of the courts. In Energy
Regulatory Board v. Court of Appeals,28 we echoed the basic rule
that the courts will not interfere in matters which are addressed to
the sound discretion of government agencies entrusted with the
regulation of activities coming under the special technical
knowledge and training of such agencies.

To be sure, considering his expertise on matters affecting the

nation's coffers, the Secretary of the DBM, as the President's alter
ego, knows from where he speaks inasmuch as he has the front seat
view of the adverse effects of an unwarranted upgrading or
creation of positions in the CHR in particular and in the entire
government in general.

WHEREFORE, the petition is GRANTED, the Decision dated 29

November 2001 of the Court of Appeals in CA-G.R. SP No. 59678
and its Resolution dated 11 September 2002 are hereby
REVERSED and SET ASIDE. The ruling dated 29 March 1999 of
the Civil Service Commision-National Capital Region is
REINSTATED. The Commission on Human Rights Resolution
No. A98-047 dated 04 September 1998, Resolution No. A98-055
dated 19 October 1998 and Resolution No. A98-062 dated 17
November 1998 without the approval of the Department of Budget
and Management are disallowed. No pronouncement as to costs.

SO ORDERED.

87 HRLAW 08281
BURGOS V. MACAPAGAL-ARROYO
G.R. No. 183711
22 June 2010
PONENTE: Brion, J.
PARTIES:
1. PETITIONER: EDITA BURGOS
2. RESPONDENTS: PRESIDENT GLORIA MACAPAGAL-
ARROYO, GEN. HERMOGENES ESPERON, JR., LT.
GEN. ROMEO P. TOLENTINO, MAJ. GEN. JUANITO
GOMEZ, MAJ. GEN. DELFIN BANGIT, LT. COL. NOEL
CLEMENT, LT. COL. MELQUIADES FELICIANO, and
DIRECTOR GENERAL OSCAR CALDERON
NATURE: Petition for Review on Certiorari
PROCEDURAL BACKGROUND: Court of Appeals: Petition
for the Issuance of the Writ of Habeas Corpus
FACTS:
At around 1:00 in the afternoon of April 28, 2007, Jonas Joseph T.
Burgos – a farmer advocate and a member of Kilusang
Magbubukid sa Bulacan was forcibly taken and abducted by a
group of four (4) men and a woman from the extension portion of
Hapag Kainan Restaurant, located at the ground floor of Ever
Gotesco Mall, Commonwealth Avenue, Quezon City.
On April 30, 2007, the petitioner, Edita Burgos, held a press
conference and announced that her son Jonas was missing. That
same day, the petitioner sought confirmation from the guard if the
person abducted was her son Jonas. In a subsequent police
investigation and Land Transportation Office (LTO) verification, it
was discovered that plate number TAB 194 was registered to a
1991 Isuzu XLT vehicle owned by a certain Mauro B. Mudlong.
The said vehicle was seized and impounded on June 24, 2006 for
transporting timber without permit. However, in May 2007, right
after Jonas’ abduction was made public, it was discovered that
plate number TAB 194 of this 1991 Isuzu XLT vehicle was
missing, and the engine and other spare parts were “cannibalized.”
The police was likewise able to generate cartographic sketches of
two of the abductors of Jonas based on its interview of
eyewitnesses.
On August 29, 2007, the Philippine National Police-Criminal
Investigation and Detection Group (PNP-CIDG) presented Emerito
Lipio a.k.a. Ka Tibo/Ka Cris, Marlon D. Manuel a.k.a. Ka Carlo,
and Melissa Concepcion Reyes a.k.a. Ka Lisa/Ramil to support the
theory that elements of the New People’s Army (NPA) perpetrated
the abduction of Jonas.
In its July 17, 2008 decision, the Court of Appeals (CA) dismissed
the petition for the Issuance of the Writ of Habeas Corpus, denied
the petitioner’s motion to declare the respondents in contempt; and
partially granted the privilege of the Writ of Amparo in favor of the
petitioner. Essentially, the CA found that the evidence the
petitioner presented failed to establish her claimed direct
connection between the abductors of Jonas and the military. It also
88 HRLAW 08281
found that the Armed Forces of the Philippines (AFP) and the PNP
did not fully exert their effort in the conduct of investigation. The
CA ruled that the AFP has the burden of connecting certain loose
ends regarding the identity of Ka Ramon and the allegation that Ka
Ramon is indeed Jonas in the “Order of Battle.” As for the PNP-
CIDG, the CA branded its investigation as “rather shallow” and
“conducted haphazardly.”
PERTINENT ISSUE: Whether or not the failure of the PNP and
AFP to conduct an exhaustive and meaningful investigation and to
exercise extraordinary diligence in the performance of their duties
is a fatal to the grant of the privilege of the Writ of Amparo.
ANSWER: Yes.
SUPREME COURT RULINGS:
ON PRIVILEGE OF THE WRIT OF AMPARO
Effect of the failure of the PNP and AFP to conduct an
exhaustive and meaningful investigation and to exercise
extraordinary diligence in the performance of their duties –
Considering the findings of the CA and our review of the records
of the present case, we conclude that the PNP and the AFP have so
far failed to conduct an exhaustive and meaningful investigation
into the disappearance of Jonas Burgos, and to exercise the
extraordinary diligence (in the performance of their duties) that the
Rule on the Writ of Amparo requires. Because of these
investigative shortcomings, we cannot rule on the case until a more
meaningful investigation, using extraordinary diligence, is
undertaken.
DISPOSITIVE:
In disposing of the case, the Supreme Court issued the following
directives:
1. DIRECTED the Commission on Human Rights to conduct
appropriate investigative proceedings, including field
investigations – acting as the Court’s directly commissioned
agency for purposes of the Rule on the Writ of Amparo
2. REQUIRE the incumbent Chiefs of the Armed Forces of the
Philippines and the Philippine National Police to make
available and to provide copies, to the Commission on Human
Rights, of all documents and records in their possession and as
the Commission on Human Rights may require, relevant to
the case of Jonas Joseph T. Burgos, subject to reasonable
regulations consistent with the Constitution and existing laws;
3. DIRECTED the PNP-CIDG and its incumbent Chief to
submit to the Commission on Human Rights the records and
results of the investigation the PNP-CIDG claimed to have
forwarded to the Department of Justice, which were not
 included in their previous submissions to the Commission on
Human Rights, including such records as the Commission on
Human Rights may require, pursuant to the authority granted
under this Resolution;

4. DIRECTED the PNP-CIDG to provide direct investigative

assistance to the Commission on Human Rights as it may
require, pursuant to the authority granted under this
Resolution;

5. AUTHORIZED the Commission on Human Rights to conduct

a comprehensive and exhaustive investigation that extends to
all aspects of the case (not limited to the specific directives as
outlined above), as the extraordinary measures the case may
require under the Rule on the Writ of Amparo; and

6. REQUIRED the Commission on Human Rights to submit to

this Court a Report with its recommendations, copy furnished
the petitioner, the incumbent Chiefs of the AFP, the PNP and
the PNP-CIDG, and all the respondents, within ninety (90)
days from receipt of the Resolution.

In light of the retirement of Lt. General Alexander Yano and the

reassignment of the other respondents who have all been impleaded
in their official capacities, all subsequent resolutions and actions
from the Supreme Court were served on, and directly enforceable
by, the incumbents of the impleaded offices/units whose official
action is necessary. The present respondents shall continue to be
personally impleaded for purposes of the responsibilities and
accountabilities they may have incurred during their incumbencies.

The Supreme Court likewise affirmed the dismissal of the petitions

for Contempt and for the Issuance of a Writ of Amparo with
respect to President Gloria Macapagal -Arroyo.

89 HRLAW 08281
G.R. No. 183711 June 22, 2010
EDITA T. BURGOS, Petitioner,
vs.
PRESIDENT GLORIA MACAPAGAL-ARROYO, GEN.
HERMOGENES ESPERON, JR., LT. GEN. ROMEO P.
TOLENTINO, MAJ. GEN. JUANITO GOMEZ, MAJ. GEN.
DELFIN BANGIT, LT. COL. NOEL CLEMENT, LT. COL.
MELQUIADES FELICIANO, and DIRECTOR GENERAL
OSCAR CALDERON,Respondents.
BRION, J.:
On July 17, 2008, the Court of Appeals (CA) issued a decision 1 in
the consolidated petitions for the Issuance of the Writ of Habeas
Corpus,2 for Contempt3and for the Issuance of a Writ of
Amparo4 filed by petitioner Edita T. Burgos on behalf of her son
Jonas Joseph T. Burgos, who was forcibly taken and abducted by a
group of four men and by a woman from the extension portion of
Hapag Kainan Restaurant, located at the ground floor of Ever
Gotesco Mall, Commonwealth Avenue, Quezon City, on April 28,
2007. This CA decision5 dismissed the petitioner’s petition for the
Issuance of the Writ of Habeas Corpus; denied the petitioner’s
motion to declare the respondents in contempt; and partially
granted the privilege of the Writ of Amparo in favor of the
petitioner.
The Antecedents
The established facts, as found by the CA, are summarized below: 6
The established facts show that at around one o’clock in the
afternoon of April 28, 2007, Jonas Joseph T. Burgos – a farmer
advocate and a member of Kilusang Magbubukid sa Bulacan (a
chapter of the militant peasant organization Kilusang Magbubukid
ng Pilipinas) – was forcibly taken and abducted by a group of four
(4) men and a woman from the extension portion of Hapag Kainan
Restaurant, located at the ground floor of Ever Gotesco Mall,
Commonwealth Avenue, Quezon City. On his way out of the
restaurant, Jonas told the manager, "Ma’am aktibista lang po ako!"
When a security guard tried to intervene, after he noticed that the
group was forcibly dragging a male person out of the restaurant, he
was told, "Pare, pulis!" The guard then backed off but was able to
see that Jonas was forced into the rear portion of a plain maroon
colored Toyota Revo with plate number TAB 194. The guard then
noted the plate number and reported the incident to his superiors as
well as to the police on duty in the said mall.
On April 30, 2007, the petitioner held a press conference and
announced that her son Jonas was missing. That same day, the
petitioner sought confirmation from the guard if the person
abducted was her son Jonas. Upon subsequent police investigation
and LTO verification, it was discovered that plate number TAB
194 was registered to a 1991 Isuzu XLT vehicle owned by a certain
Mauro B. Mudlong. It was also later confirmed by employees of
the Department of Environment and Natural Resources (DENR)
that Mudlong was arrested and his 1991 Isuzu XLT vehicle was
seized on June 24, 2006 by Cpl. Castro Bugalan and Pfc. Jose
Villeña of the 56th Infantry Battalion (IB) of the Philippine Army
for transporting timber without permit. As agreed upon by the
DENR employees and officers of the 56th IB, the vehicle with the
license plate no. TAB 194 was impounded in the 56th IB
headquarters whose commanding officer at that time was Lt. Col.
Noel Clement.
The established facts also show that Lt. Col. Clement and the
soldiers of the 56th IB went on retraining at the Headquarters of
the First Scout Rangers Regiment (Camp Tecson) in Brgy. Tartaro,
San Miguel, Bulacan starting November 28, 2006. A "left-behind
force" or a squad remained in the camp of the 56th IB to secure the
90 HRLAW 08281
premises and equipment as it awaited the arrival of the 69th IB,
headed by Lt. Col. Edison Caga, which took over the 56th IB’s
area of responsibility for the duration of the retraining. The 69th IB
arrived at Camp Tecson on December 1, 2006, and remained there
until March 7, 2007, when the 56th IB returned. There was no
formal turnover or inventory of equipment and vehicles when the
69th IB arrived on December 1, 2006.
Meanwhile, on January 17, 2007, Lt. Col. Melquiades Feliciano
took command of the 56th IB from Lt. Col. Clement. The actual
turnover of command took place at Camp Tecson where the 56th
IB was retraining. At the time Jonas was abducted on April 28,
2007, Lt. Col. Feliciano was the 56th IB’s commanding officer.
Earlier, on March 23, 2007, 2nd Lt. Dick A. Abletes, a member of
the 56th IB, was caught on video talking to two persons, a male
and a female, at McDonald’s Bocaue. In the video, he was seen
handing a document to the two persons. On March 26, 2007, 2nd
Lt. Abletes was arrested and charges were soon filed against him
with the Judge Advocate General for violations of Articles 82, 96
and 97 of the Articles of War.
Prior to Jonas’ abduction, Mudlong’s 1991 Isuzu XLT vehicle
remained impounded at the 56th IB’s Headquarters. In May 2007,
right after Jonas’ abduction was made public, it was discovered
that plate number TAB 194 of this 1991 Isuzu XLT vehicle was
missing, and the engine and other spare parts were "cannibalized."
On direct examination, the petitioner testified before the CA that
the police was able to generate cartographic sketches of two (one
male and one female) of the abductors of Jonas based on its
interview of eyewitnesses.7 The petitioner narrated further that
these cartographic sketches were identified by State Prosecutor
Emmanuel Velasco of the Department of Justice (DOJ); that when
she went to see State Prosecutor Velasco personally, he gave her
"five names" who were allegedly involved in the abduction of
Jonas (namely T/Sgt. Jason Roxas, Cpl. Joana Francisco, M/Sgt.
Aron Arroyo, and 1st Lt. Jaime Mendaros);8 and that the
information from State Prosecutor Velasco’s sources corroborated
the same information she received earlier from her own
sources.9 The petitioner also testified that nothing came out of the
information given by State Prosecutor Velasco because he was
"pulled out from the investigation by the DOJ Secretary,"10 and
that the police, particularly P/Supt. Jonnel C. Estomo, failed to
investigate and act upon these leads.11
On August 30, 2007, P/Supt. Estomo (the lead investigator in the
investigation conducted by the Philippine National Police-Criminal
Investigation and Detection Group [PNP-CIDG]) testified before
the CA that he did not investigate or look into the identities of the
cartographic sketches of the two abductors provided by the PNP
Criminal Investigation Unit, Quezon City.12 P/Supt. Estomo
testified further that he showed the photos of Cpl. Bugalan and
Pfc.Villeña to witness Larry Marquez for identification but failed
to show any photos of the other officers and men of the 56th
IB.13 Finally, P/Supt. Estomo also testified that he did not
propound any clarificatory questions regarding the disappearance
of Jonas Burgos to Lt. Cols. Feliciano, Clement, and Caga of the
56th IB who merely voluntarily submitted their statements.14
On August 29, 2007, the PNP-CIDG presented Emerito Lipio @
KA TIBO/KA CRIS, Marlon D. Manuel @ KA CARLO, and
Melissa Concepcion Reyes @ KA LISA/RAMIL to support the
theory that elements of the New People’s Army (NPA) perpetrated
the abduction of Jonas.15 In his Sworn Statement, Lipio admitted
that he is a member of the Communist Party of the Philippines
(CPP)/NPA and that the NPA was behind the abduction of Jonas.
Lipio revealed that Jonas is known as @KA RAMON in the
communist movement. He claimed further that he and @KA
RAMON belonged to the Bulacan Party Committee, assigned to
the White Area Committee doing intelligence work for the
movement under the leadership of Delfin de Guzman @ KA
BASTE, and that @KA RAMON was their political instructor and
head of the intelligence unit in the province.16
Sometime early April of 2007, Lipio was present in a meeting
between @KA BASTE and @KA RAMON. At this meeting, the
two had a heated argument. For this reason, @KA BASTE
instructed Lipio to place @KA RAMON under surveillance as they
suspected him of pilfering funds from the party and of acting as a
military agent.17
Lipio further averred that upon instruction of @KA BASTE, he
and a certain @KA CARLO proceeded to Ever Gotesco Mall on
April 28, 2007 to monitor the reported meeting between @KA
RAMON and other party members. At one o’clock in the
afternoon, Lipio and @KA CARLO (who stationed themselves
near the entrance/exit of the mall) saw a man, who they recognized
as @KA RAMON, forcibly taken by four men, brought outside of
the mall, and shoved inside a Toyota Revo. Lipio further alleged
that he recognized two of the abductors as "@KA DANTE" and
"@KA ENSO" who he claims to be members of the CPP/NPA’s
guerilla unit (RYG).18
In his Sworn Statement, Manuel affirmed and substantiated Lipio’s
statement that @KA RAMON and Jonas are one and the same
person and that he is a member of the communist movement in
Bulacan. Manuel also corroborated Lipio’s statement regarding the
circumstances of the abduction of @KA RAMON at Ever Gotesco
Mall on April 28, 2007; he confirmed that he and @ KA TIBO
witnessed the abduction.19
Reyes, a rebel-returnee, provided in her Sworn Statement
additional material information regarding the disappearance of
Jonas. Reyes alleged that she was supposed to meet with @KA
RAMON and another comrade in the movement (whom she
identified as @KA JO) to discuss the possibility of arranging a
meeting with a contact in the military. She averred that she met
@KA JO at about 11:30 a.m. at the Baliaug Transit Terminal,
Cubao enroute to Ever Gotesco mall where they would meet with a
certain @KA RAMON. Reyes further narrated that they arrived
about noon at Ever Gotesco mall; @KA JO left her at McDonald’s
and told her to wait while he went to look for @KA RAMON.
After an hour, @KA JO arrived without @KA RAMON and told
Reyes to go home and just keep in touch through text messaging.
Reyes alleged further that she has not heard from @KA JO since. 20
The CA Findings
In its July 17, 2008 decision, the CA found that the evidence the
petitioner presented failed to establish her claimed direct
connection between the abductors of Jonas and the military. The
CA noted that the evidence does not show how license plate
number TAB 194 (supposedly attached to the 1991 Isuzu XLT
vehicle impounded at the 56th IB Headquarters) came to be
attached to the getaway Toyota Revo on April 28, 2007, and
whether the two license plates are one and the same at all. The CA
emphasized that the evidence does not indicate whether the
abductors are members of the military or the police or are civilians;
if they are civilians, whether they acted on their own or were
following orders, and in the latter case, from whom.
The CA also found that the investigations by the Armed Forces of
the Philippines (AFP) and the PNP "leave much to be desired as
they did not fully exert their effort to unearth the truth and to bring
the real culprits before the bar of justice."21 The CA held that since
the petitioner has established that the vehicle used in the abduction
was linked to a vehicle (with license plate number TAB 194)
impounded at the headquarters of the 56th IB, it became the burden
of the AFP to exercise extraordinary diligence to determine the
why and the wherefore of the loss of the license plate in their
custody and its appearance in a vehicle (a maroon Toyota Revo)
used in Jonas’ abduction. The CA also ruled that the AFP has the
91 HRLAW 08281
burden of "connect[ing] certain loose ends"22 regarding the identity
of @Ka Ramon (as referred to by the petitioner’s witnesses) and
the allegation that @Ka Ramon is indeed Jonas in the "Order of
Battle."
As for the PNP-CIDG, the CA branded its investigation as "rather
shallow" and "conducted haphazardly." The CA took note that
P/Supt. Estomo’s investigation merely delved into the
administrative liability of Lt. Col. Clement, Lt. Col. Feliciano and
Lt. Col. Caga of the 56th IB, and failed to consider them as
suspects in the abduction of Jonas. The CA emphasized that the
PNP-CIDG’s investigation should focus on the criminal aspect of
the present case pursuant to Section 24 of Republic Act No. 6975,
which mandates the PNP to "investigate and prevent crimes, effect
the arrest of criminal offenders, bring offenders to justice and assist
in their prosecution."
The CA also found P/Supt. Estomo’s recommendation that
appropriate charges be filed against Mauro Mudlong (registered
owner of the impounded 1991 Isuzu XLT vehicle with plate license
no. TAB 194) to be without any factual basis since no evidence
was presented to connect the latter to the loss of the license plate as
well as to the abduction of Jonas. The CA stressed that it could not
find any valid reason why Mudlong should be treated any
differently from the three 56th IB colonels whom the PNP-CIDG
did not consider as suspects despite the established fact that license
plate no. TAB 194 was lost while in their custody.
On the PNP-CIDG’s new information from Lipio who claimed to
have seen Jonas being abducted by a certain @KA DANTE and
@KA ENSO of the CPP/NPA guerilla unit RYG, and on Marlon
Manuel, who corroborated Lipio’s statements, the CA held that
steps should be taken by the PNP-CIDG to verify the veracity of
these statements. Notwithstanding the new information, the CA
noted that the PNP-CIDG should not discount the possible
involvement of members of the AFP. Thus, the CA concluded that
the PNP must exert extraordinary diligence in following all
possible leads to resolve the crime committed against Jonas.
Finally, the CA noted - based on the Certification issued by the
Assistant Chief State Prosecutor, DOJ dated March 5, 2008 - that
no case has been referred by the PNP to the DOJ for preliminary
investigation in relation to the abduction and disappearance of
Jonas. This is contrary to PNP’s manifest representation that it had
already forwarded all pertinent and relevant documents to the DOJ
for the filing of appropriate charges against the suspects (i.e., @KA
DANTE and @KA ENSO).
The CA also held that the petitions for habeas corpus and contempt
as against President Gloria Macapagal-Arroyo must be dropped
since she enjoys the privilege of immunity from suit. The CA ruled
that the President’s immunity from suit is a settled doctrine citing
David v. Arroyo.23
Our Ruling
Considering the findings of the CA and our review of the records
of the present case, we conclude that the PNP and the AFP have so
far failed to conduct an exhaustive and meaningful investigation
into the disappearance of Jonas Burgos, and to exercise the
extraordinary diligence (in the performance of their duties) that the
Rule on the Writ of Amparo requires. Because of these
investigative shortcomings, we cannot rule on the case until a more
meaningful investigation, using extraordinary diligence, is
undertaken.
From the records, we note that there are very significant lapses
in the handling of the investigation - among them the PNP-
CIDG’s failure to identify the cartographic sketches of two (one
male and one female) of the five abductors of Jonas based on their
interview of eyewitnesses to the abduction. This lapse is based on
the information provided to the petitioner by no less than State
Prosecutor Emmanuel Velasco of the DOJ who identified the
persons who were possibly involved in the abduction, namely:
T/Sgt. Jason Roxas (Philippine Army), Cpl. Maria Joana Francisco
(Philippine Air Force), M/Sgt. Aron Arroyo (Philippine Air Force),
and an alias T.L., all reportedly assigned with Military Intelligence
Group 15 of Intelligence Service of the AFP.24 No search and
certification were ever made on whether these persons were AFP
personnel or in other branches of the service, such as the Philippine
Air Force. As testified to by the petitioner, no significant follow
through was also made by the PNP-CIDG in ascertaining the
identities of the cartographic sketches of two of the abductors
despite the evidentiary leads provided by State Prosecutor Velasco
of the DOJ. Notably, the PNP-CIDG, as the lead investigating
agency in the present case, did not appear to have lifted a finger to
pursue these aspects of the case.
We note, too, that no independent investigation appeared to have
been made by the PNP-CIDG to inquire into the veracity of Lipio’s
and Manuel’s claims that Jonas was abducted by a certain @KA
DANTE and a certain @KA ENSO of the CPP/NPA guerilla unit
RYG. The records do not indicate whether the PNP-CIDG
conducted a follow-up investigation to determine the identities and
whereabouts of @KA Dante and @KA ENSO. These omissions
were aggravated by the CA finding that the PNP has yet to refer
any case for preliminary investigation to the DOJ despite its
representation before the CA that it had forwarded all pertinent and
relevant documents to the DOJ for the filing of appropriate charges
against @KA DANTE and @KA ENSO.
Based on these considerations, we conclude that further
investigation and monitoring should be undertaken. While
significant leads have been provided to investigators, the
investigations by the PNP-CIDG, the AFP Provost Marshal, and
even the Commission on Human Rights (CHR) have been less than
complete. The PNP-CIDG’s investigation particularly leaves much
to be desired in terms of the extraordinary diligence that the Rule
on the Writ of Amparo requires. For this reason, we resolve to refer
the present case to the CHR as the Court’s directly commissioned
agency tasked with the continuation of the investigation of the
Burgos abduction and the gathering of evidence, with the
obligation to report its factual findings and recommendations to
this Court. We take into consideration in this regard that the CHR
is a specialized and independent agency created and empowered by
the Constitution 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 of all persons within
the Philippines.25
Under this mandate, the CHR is tasked to conduct appropriate
investigative proceedings, including field investigations – acting as
the Court’s directly commissioned agency for purposes of the Rule
on the Writ of Amparo – with the tasks of: (a) ascertaining the
identities of the persons appearing in the cartographic sketches of
the two alleged abductors as well as their whereabouts; (b)
determining based on records, past and present, the identities and
locations of the persons identified by State Prosecutor Velasco
alleged to be involved in the abduction of Jonas, namely: T/Sgt.
Jason Roxas (Philippine Army); Cpl. Maria Joana Francisco
(Philippine Air Force), M/Sgt. Aron Arroyo (Philippine Air Force),
and an alias T.L., all reportedly assigned with Military Intelligence
Group 15 of Intelligence Service of the AFP; further proceedings
and investigations, as may be necessary, should be made to pursue
the lead allegedly provided by State Prosecutor Velasco on the
identities of the possible abductors; (c) inquiring into the veracity
of Lipio’s and Manuel’s claims that Jonas was abducted by a
certain @KA DANTE and @KA ENSO of the CPP/NPA guerilla
unit RYG; (d) determining based on records, past and present, as
well as further investigation, the identities and whereabouts of
@KA DANTE and @KA ENSO; and (e) undertaking all measures,
in the investigation of the Burgos abduction that may be necessary
to live up to the extraordinary measures we require in addressing
an enforced disappearance under the Rule on the Writ of Amparo.
92 HRLAW 08281
WHEREFORE, in the interest of justice and for the foregoing
reasons, the Court RESOLVES to:
(1) DIRECT the Commission on Human Rights to
conduct appropriate investigative proceedings, including
field investigations – acting as the Court’s directly
commissioned agency for purposes of the Rule on the
Writ of Amparo - with the tasks of: (a) ascertaining the
identities of the cartographic sketches of two of the
abductors as well as their whereabouts; (b) determining
based on records, past and present, the identities and
locations of the persons identified by State Prosecutor
Velasco alleged to be involved in the abduction of Jonas
namely: T/Sgt. Jason Roxas (Philippine Army), Cpl.
Maria Joana Francisco (Philippine Air Force), M/Sgt.
Aron Arroyo (Philippine Air Force), and an alias T.L., all
reportedly assigned with Military Intelligence Group 15
of Intelligence Service of the Armed Forces of the
Philippines; further proceedings and investigations, as
may be necessary, should be made to pursue the lead
allegedly provided by State Prosecutor Velasco on the
identities of the possible abductors; (c) inquiring into the
veracity of Lipio’s and Manuel’s claims that Jonas was
abducted by a certain @KA DANTE and @KA ENSO of
the CPP/NPA guerilla unit RYG; (d) determining based
on records, past and present, as well as further
investigation, the identities and whereabouts of @KA
DANTE and @KA ENSO; and (e) undertaking all
measures, in the investigation of the Burgos abduction,
that may be necessary to live up to the extraordinary
measures we require in addressing an enforced
disappearance under the Rule on the Writ of Amparo;
(2) REQUIRE the incumbent Chiefs of the Armed Forces
of the Philippines and the Philippine National Police to
make available and to provide copies, to the Commission
on Human Rights, of all documents and records in their
possession and as the Commission on Human Rights
may require, relevant to the case of Jonas Joseph T.
Burgos, subject to reasonable regulations consistent with
the Constitution and existing laws;
(3) DIRECT the PNP-CIDG and its incumbent Chief to
submit to the Commission on Human Rights the records
and results of the investigation the PNP-CIDG claimed to
have forwarded to the Department of Justice, which were
not included in their previous submissions to the
Commission on Human Rights, including such records as
the Commission on Human Rights may require, pursuant
to the authority granted under this Resolution;
(4) Further DIRECT the PNP-CIDG to provide direct
investigative assistance to the Commission on Human
Rights as it may require, pursuant to the authority
granted under this Resolution;
(5) AUTHORIZE the Commission on Human Rights to
conduct a comprehensive and exhaustive investigation
that extends to all aspects of the case (not limited to the
specific directives as outlined above), as the
extraordinary measures the case may require under the
Rule on the Writ of Amparo; and
(6) REQUIRE the Commission on Human Rights to
submit to this Court a Report with its recommendations,
copy furnished the petitioner, the incumbent Chiefs of
the AFP, the PNP and the PNP-CIDG, and all the
respondents, within ninety (90) days from receipt of this
Resolution.
In light of the retirement of Lt. General Alexander Yano and the
reassignment of the other respondents who have all been impleaded
in their official capacities, all subsequent resolutions and actions
from this Court shall also be served on, and be directly enforceable
by, the incumbents of the impleaded offices/units whose official
action is necessary. The present respondents shall continue to be
personally impleaded for purposes of the responsibilities and
accountabilities they may have incurred during their
incumbencies.

The dismissal of the petitions for Contempt and for the Issuance of
a Writ of Amparo with respect to President Gloria Macapagal-
Arroyo is hereby AFFIRMED.

SO ORDERED.

93 HRLAW 08281
First Class Cadet Aldrin Jeff Cudia v. The Superintendent of
the Philippine Military Academy
GR Number 211362
Petition: Petition for Mandamus
Petitioner: First Class Cadet Aldrin Jeff P. Cudia
Respondent: The Superintendent of the Philippine Military
Academy, The Honor Committee of 2014 of the PMA and HC
members, and the Cadet Review and Appeals Board (CRAB)
Ponente: Peralta, J.
Date: February 24, 2014
Facts:
Petitioner, Cadet First Class Cudia, was a member of the Siklab
Diwa Class of 2014 of the Philippine Military Academy. He was
supposed to graduate with honors as the class salutatorian, receive
the Philippine Navy Saber as the top Navy Cadet graduate and be
commissioned as an ensign of the Navy.
Petitioner was issued a Delinquency Report (DR) because he was
late for two minutes in his ENG 412 class, other cadets were also
reported late for 5 minutes. The DRs reached the Department of
Tactical Officers and were logged and transmitted to the Company
of Tactical Officers (TCO) for explanation. Cudia incurred the
penalty of 11 demerits and 13 touring hours.
Several days after, Cudia was reported to the Honor Committee
(HC) per violation of the Honor Code. Lying that is giving
statements that perverts the truth in his written appeal stating that
his 4th period class ended at 3:00 that made him late for the
succeeding class.
Cudia submitted his letter of explanation on the honor report. The
HC constituted a team to conduct the preliminary investigation on
the violation, it recommended the case be formalized. Cudia
pleaded not guilty. The result was 8-1 guilty verdict and upon the
order of the Chairman, the HC reconvened in the chambers, after,
the Presiding Officer announced a 9-0 guilty verdict.
The HC denied Cudia’s appeal. The Headquarters Tactics Group
(HTG) conducted a formal review and checking of findings.
Special orders were issued placing Cudia on indefinite leave of
absence and pending approval of separation from the Armed
Forces of the Philippines. Cudia submitted a letter to the Office of
the Commandant of Cadets requesting his re-instatement. The
matter was referred to Cadet Review and Appeals Board (CRAB)
and it upheld the decision.
Cudia wrote a letter to President Aquino but the President
sustained the findings of the CRAB. CHR-CAR issued a resolution
finding probable cause for Human Rights Violations.
Issue:
1. Whether or not the PMA committed grave abuse of
discretion in dismissing Cudia in utter disregard of his
right to due process and in holding that he violated the
Honor Code through lying.
2. Whether or not the court can interfere with military
affairs
Ruling:
1. No. The determination of whether the PMA cadet has
rights to due process, education, and property should be
placed in the context of the Honor Code. All the
administrative remedies were exhausted. A student of a
military academy must be prepared to subordinate his
private interest for the proper functioning of the
institution. The PMA may impose disciplinary measures
and punishments as it deems fit and consistent with the
peculiar needs of the institution. PMA has regulatory
authority to administratively dismiss erring cadets.
PMA has a right to invoke academic freedom in the
enforcement of the internal rules and regulations.
94 HRLAW 08281
2. Yes. The court is part of the checks-and-balance
machinery mandated by Article VIII of the Constitution.
The court’s mandate (according to Section 1, Article 8) is
expanded that the duty of the courts is not only to “settle
actual controversies involving rights which are legally
demandable and enforceable” but also “to determine
whether or not there has been a grave abuse of discretion
on the part of any branch or instrumentality of the
Government” even if the latter does not exercise judicial,
quasi-judicial, or ministerial functions. No one is above
the law, including the military, especially in violations of
Constitutionally guaranteed rights.
Dispositive:
The petition is denied. The dismissal of Cudia from PMA is
affirmed.
G.R. No. 211362 February 24, 2015
FIRST CLASS CADET ALDRIN JEFF P. CUDIA of the
Philippine Military Academy, represented by his father
RENATO P. CUDIA, who also acts on his own behalf, and
BERTENI CATALUNA CAUSING, Petitioners,
vs.
THE SUPERINTENDENT OF THE PHILIPPINE
MILITARY ACADEMY (PMA), THE HONOR
COMMITTEE (HC) OF 2014 OF THE PMA and HC
MEMBERS, and the CADET REVIEW AND APPEALS
BOARD (CRAB),Respondents.
x-----------------------x
FILIPINA P. CUDIA, in behalf of CADET FIRST CLASS
ALDRIN JEFF P. CUDIA, and on her own behalf,Petitioner-
Intervenor.
DECISION
PERALTA, J.:
The true test of a cadet's character as a leader rests on his personal
commitment to uphold what is morally and ethically righteous at
the most critical and trying times, and at the most challenging
circumstances. When a cadet must face a dilemma between what is
true and right as against his security, well-being, pleasures and
comfort, or dignity, what is at stake is his honor and those that
[define] his values. A man of an honorable character does not think
twice and chooses the fore. This is the essence of and. the Spirit of
the Honor Code - it is championing truth and righteousness even if
it may mean the surrender of one's basic rights and privileges.1
The Procedural Antecedents
Six days prior to the March 16, 2014 graduation ceremonies of the
Philippine Military Academy (PMA), petitioners Renato P. Cudia,
acting for himself and in behalf of his son, Cadet First Class Aldrin
Jeff P. Cudia (Cadet JCL Cudia), and Berteni Catalufta Causing
filed this petition for certiorari, prohibition, and mandamus with
application for extremely urgent temporary restraining order
(TRO).2
In a Resolution dated March 1 7, 2014, the Court denied the prayer
for TRO and instead, required respondents to file their comment on
the petition.3
On March 25, 2014, Filipina P. Cudia, acting for herself and in
behalf of her son Cadet 1 CL Cudia, filed a motion for leave to
intervene, attaching thereto the petition-in-intervention.4 Per
Resolution dated March 31, 2014, the Court granted the motion
and resolved to await respondents' comment on the petition. 5
A manifestation was then filed by petitioners on April 3, 2014,
recommending the admission of the petition-in-intervention and
adopting it as an integral part of their petition.6 On May 20, 2014,
petitioner-intervenor filed a manifestation with motion for leave to
admit the Final Investigation Report of the Commission on Human
Rights (CHR) dated April 25, 2014.7 The Report8 was relative to
CHR-CAR Case No. 2014-0029 filed by the spouses Renato and
Filipina Cudia (Spouses Cudia), for themselves and in behalf of
their son, against the PMA Honor Committee (HC) members and
Major Vladimir P. Gracilla (Maj. Gracilla)9 for violation of Cadet
lCL Cudia's rights to due process, education, and privacy of
communication. Subsequently, on June 3, 2014, petitioners filed a
motion for leave to adopt the submission of the CHR Report.10 The
manifestation was granted and the motion was noted by the Court
in its Resolution dated July 7, 2014.
After filing three motions for extension of time,11 respondents filed
their Consolidated Comment12 on June 19, 2014. In a motion,
petitioner-intervenor filed a Reply, which was later adopted by
petitioners.13 Submitted as Annex "A" of the Reply was a copy of
the CHR Resolution dated May 22, 2014 regarding CHR-CAR
Case No. 2014-0029.14 We noted and granted the same on August
11, 2014 and October 13, 2014.
Petitioner-intervenor twice filed a manifestation with motion to
submit the case for early resolution,15 which the Court noted in a
Resolution dated August 11, 2014 and October 3, 2014.16
The Facts
Cadet 1 CL Cudia was a member of Siklab Diwa Class of 2014 of
the PMA, the country's premiere military academy located at Fort
Gregorio del Pilar in Baguio City. He belonged to the "A"
Company and was the Deputy Baron of his class. As claimed by
petitioners and petitioner-intervenor (hereinafter collectively called
"petitioners," unless otherwise indicated), he was supposed to
graduate with honors as the class salutatorian, receive the
Philippine Navy Saber as the top Navy cadet graduate, and be
commissioned as an ensign of the Philippine Navy.
On November 14, 2013, the combined classes of the Navy and Air
Force 1 CL cadets had a lesson examination (LE) on Operations
Research (OR432) under Dr. Maria Monica C. Costales (Dr.
Costales) at the PMAFI Room. Per published schedule from the
Headquarters Academic Group, the 4th period class in OR432 was
from 1 :30-3:00 p.m. (1330H-1500H), while the 5th period class in
ENG412 was from 3:05-4:05 p.m. (1505H-1605H).
Five days after, Professor Juanita Berong (Prof. Berong) of the 5th
period class issued a Delinquency Report (DR) against Cadet 1 CL
Cudia because he was "[/]ate for two (2) minutes in his Eng 412
class x x x. "17 Cadets 1 CL Narciso, Arcangel, Miranda, Pontillas,
Diaz, Otila, and Dela Cruz were also reported late for five
minutes.18
On December 4, 2013, the DRs reached the Department of Tactical
Officers. They were logged and transmitted to the Company
Tactical Officers ( CTO) for explanation of the concerned cadets.
Two days later, Cadet lCL Cudia received his DR.
In his Explanation of Report dated December 8, 2013, Cadet lCL
Cudia reasoned out that: "I came directly from OR432 Class. We
were dismissed a bit late by our instructor Sir."19
On December 19, 2013, Major Rommel Dennis Hindang (Maj.
Hindang), the CTO of Cadet 1 CL Cudia, meted out to him the
95 HRLAW 08281
penalty of 11 demerits and 13 touring hours. Immediately, Cadet
lCL Cudia clarified with Maj. Hindang his alleged violation. The
latter told him that the basis of the punishment was the result of his
conversation with Dr. Costales, who responded that she never
dismissed her class late, and the protocol to dismiss the class 10-15
minutes earlier than scheduled. When he expressed his intention to
appeal and seek reconsideration of the punishment, he was ·
advised to put the request in writing. Hence, that same day, Cadet 1
CL Cudia addressed his Request for Reconsideration of Meted
Punishment to Maj. Benjamin L. Leander, Senior Tactical Officer
(STO), asserting:
I strongly believe that I am not in control of the circumstances, our
4th period class ended 1500H and our 5th period class, which is
ENG412, started 1500H also. Immediately after 4t period class, I
went to my next class without any intention of being late Sir. 20
A day after, Maj. Leander instructed Maj. Hindang to give his
comments on the request of Cadet 1 CL Cudia and to indicate if
there were other cadets belonging to the same section who were
also late.
On December 28, 2013, Maj. Hindang submitted his reply to Maj.
Leander pointing out that, based on his investigation, the 4th period
class was not dismissed late. As a result, Maj. Leander sustained
the penalty imposed. Petitioners alleged that Cadet 1 CL Cudia
came to know of the denial of his request only on January 24, 2014
upon inquiry with Maj. Leander.
Several days passed, and on January 7, 2014, Cadet lCL Cudia was
informed that Maj. Hindang reported him to the HC21 for violation
of the Honor Code. The Honor Report stated:
Lying that is giving statement that perverts the truth in his written
appeal, stating that his 4th period class ended at l 500H that made
him late in the succeeding class.22
Upon asking the HC Chairman, Cadet 1 CL Mike Anthony P.
Mogol (Cadet 1 CL Mogol), as to what Maj. Hindang meant in his
Report, Cadet lCL Cudia learned that it was based on Maj.
Hindang's conversations with their instructors and classmates as
well as his statement in the request for reconsideration to Maj.
Leander. He then verbally applied for and was granted an extension
of time to answer the charge against him because Dr. Costales, who
could shed light on the matter, was on emergency leave.
On January 13, 2014, Dr. Costales sent text messages to Cadet lCL
Cudia, conveying:
Gud pm cdt cudia. Mam belandres gave me bkground na. She told
me its a report dated november. When maj hindang ask me, no
time referens. (04:25:11 P.M.)
All the while I thot he was refering to dismisal during last day last
december. Whc i told, i wud presume they wil finish early bee its
grp work. (04:29:21 P.M.)23
The next day, Cadets lCL Cudia and Arcangel approached Dr.
Costales, who reaffirmed that she and Maj. Hindang were not in
the same time reference when the latter asked her.
Later, Cadet 1 CL Cudia submitted his letter of explanation on the
Honor Report. He averred:
Sir, We had an LE that day (14 November 2013) in OR432 class.
When the first bell rang (1455), I stood up, reviewed my paper and
submitted it to my instructor, Ms. Costales. After which, I and
Cadet lcl Arcangel asked for some query with regards (sic) to the
deductions of our previous LE. Our instructor gladly answered our
question. She then told me that she will give the copy of our
section grade, so I waited at the hallway outside the ACAD5 office,
and then she came out of the room and gave me a copy of the
grades. Cadet Arcangel, Cadet Narciso and I immediately went to
our 5ti period class which is ENG412.
With these statements, I would like to clarify the following:
1. How could this be lying?
2. What is wrong with the side of Maj.
Hindang (why did he come up to that honor
report)?
3. What are his assumptions?
I appeal, in the name of clarity, fairness and truth[,] that my case be
reopened and carefully reviewed for I did not violate the honor
code/system, I can answer NO to both questions (Did I intend to
deceive? Did I intend to take undue advantage?) and for the
following reasons:
1. The honor report of Maj. Hindang was
already settled and finalized given the fact that
no face-to-face personal conversation with Ms.
Costales was conducted to clarify what and
when exactly was the issue at hand.
2. Statements of the respondents support my
explanation.
3. My explanation to my appeal to my DR
(Request for reconsideration of meted
punishment) further supports my explanation in
my delinquency report.
4. My understanding of the duration of the
"CLASS" covers not just a lecture in a typical
classroom instruction but includes every
transaction and communication a teacher does
with her students, especially that in our case
some cadets asked for queries, and I am given
instruction by which (sic) were directly related
to our CLASS. Her transaction and
communication with our other classmates may
have already ended but ours extended for a
little bit.
I agree and consider that because
Cadet CUDIA is under my
instruction to wait, and the other
cadets still have business with me, it
is reasonable enough for him to say
that "Our class was dismissed a bit
late" (dealing with matter of seconds
or a minute particularly 45 seconds
to 1 minute and 30 seconds)
And with concern to (sic) OR432
class, I can say it ended on time
(1500H).
(signed)
M COSTALES
w/ attached certification
96 HRLAW 08281
5. I was transparent and honest in explaining
the 2-minute delay and did not attempt to
conceal anything that happened or I did.
6. Furthermore, CPT DULA WAN PA, the
Tactical Officer of Hawk Company[,] and I
had a conversation with regards (sic) to the
same matter for which he can give important
points of my case.
7. Cadet lcl DIAZ "D" Co can also stand as a
witness that I waited for Ms. Costales. 24
On January 15, 2014, the HC constituted a team to conduct a
preliminary investigation on the reported honor violation of Cadet
1 CL Cudia. The Foxtrot Company was designated as the
investigating team and was composed of Cadet 1 CL Hasigan as
Presiding Officer, and Cadets 1 CL Mogol, lCL Raguindin, 2CL
Gumilab, 2CL Saldua, 3CL Espejo, and 3CL Poncardas as
members.25 Soon after, the team submitted its Preliminary
Investigation Report recommending that the case be formalized.
The formal investigation against Cadet 1 CL Cu di a then ensued.
The Presiding Officer was Cadet 1 CL Rhona K. Salvacion, while
the nine (9) voting members were Cadets lCL Jairus 0. Fantin, lCL
Bryan Sonny S. Arlegui, 1 CL Kim Adrian R. Martal, 1 CL J
eanelyn P. Cabrido, 1 CL ShuAydan G. Ayada, 1 CL Dalton John
G. Lagura, 2CL Renato A. Carifio, Jr., 2CL Arwi C. Martinez, and
2CL Niko Angelo C. Tarayao.26 Acting as recorders tasked to
document the entire proceedings were 4CL Jennifer A. Cuarteron
and 3CL Leoncio Nico A. de Jesus 11.27 Those who observed the
trial were Cadets 1 CL Balmeo, Dag-uman, Hasigan, Raguindin,
Paulino, Arcangel, and Narciso; Cadets 2CL Jocson and Saldua,
Jr.; and Cadet 3CL Umaguing.28
The first formal hearing started late evening of January 20, 2014
and lasted until early morning the next day. Cadet lCL Cudia was
informed of the charge against him, as to which he pleaded "Not
Guilty." Among those who testified were Cadet 1 CL Cudia, Maj.
Hindang, and Cadets 1 CL Arcangel and Narciso. On the second
night of the hearing held on January 21, 2014, Cadet 1 CL Cudia
again appeared and was called to the witness stand along with
Cadets Brit and Barrawed. Dr. Costales also testified under oath
via phone on a loudspeaker. Deliberation among the HC voting
members followed. After that, the ballot sheets were distributed.
The members cast their votes through secret balloting and
submitted their accomplished ballot sheets together with their
written justification. The result was 8-1 in favor of a guilty verdict.
Cadet lCL Dalton John G. Lagura (Cadet lCL Lagura) was the lone
dissenter. Allegedly, upon the order ofHC Chairman Cadet 1 CL
Mogol, the Presiding Officer and voting members went inside a
chamber adjoining the court room for further deliberation. After
several minutes, they went out and the Presiding Officer
announced the 9-0 guilty verdict. Cadet 1 CL Cudia, who already
served nine (9) touring hours, was then informed of the unanimous
votes finding him guilty of violating the Honor Code. He was
immediately placed in the PMA Holding Center until the resolution
of his appeal.
On January 24, 2014, Cadet ICL Cudia filed a written appeal
addressed to the HC Chairman, the full text of which stated:
WRITTEN APPEAL
14 NOVEMBER 2013
This is when I was reported for "Late for two (2) minutes in
Eng412 class", my explanation on this delinquency report when I
received it, is that "Our class was dismissed a (little) bit late and I
came directly from 4th period class ... etc". Knowing the fact that
in my delinquency report, it is stated that ENG412 classes started
1500H and I am late for two minutes, it is logical enough for I (sic)
to interpret it as "I came 1502H during that class". This is the
explanation that came into my mind that time. (I just cannot recall
the exact words I used in explaining that delinquency report, but
what I want to say is that I have no intention to be late). In my
statements, I convey my message as "since I was not the only one
left in that class, and the instructor is with us, I used the term
"CLASS", I used the word "DISMISSED" because I was under
instruction (to wait for her to give the section grade) by the
instructor, Ms. Costales. The other cadets (lCL MIRANDA, lCL
ARCANGEL) still have queries and business with her that made
me decide to use the word "CLASS", while the others who don't
have queries and business with her (ex: lCL NARCISO and 1 CL
DIAZ) were also around.
Note:
The four named cadets were also reported late.
Reference: Para 171. 0. (Leaving the Classroom Prior to Dismissal
Time)(Sec XVII, CCAFPR s2008)
It is stated in this reference that "Cadets shall not linger in the place
of instruction after the section has been dismissed. EXCEPT when
told or allowed to do so by the instructor or by any competent
authority for official purposes. "
The instruction by Ms. Costales was given to me before the two
bells rang (indicating the end of class hour, 1500H). I waited for
her for about 45 seconds to 1 minute and 30 seconds, that made me
to decide to write "a little bit late" in my explanation. Truly, the
class ENDED 1500H but due to official purpose (instruction by
Ms. Costales to wait) and the conflict in academic schedule (to
which I am not in control of the circumstances, 4th PD class
1330H-1500H and 5th PD class 1500H-1 600H), and since Ms.
Costales, my other classmates, and I were there, I used the word
"CLASS".
19 December 2013
I was informed that my delinquency report was awarded, 11
Demerits and 13 Touring hours. Not because I don't want to serve
punishment, but because I know I did nothing wrong, I obeyed
instruction, and believing that my reason is justifiable and valid,
that is why I approached our tactical officer, MAJ HINDANG
PAF, to clarify and ask why it was awarded that day.
In our conversation, he said that he had a phone call to my
instructor and he even added that they have a protocol to dismiss
the class, 15 minutes or 10 minutes before 1500H. I explained:
Sir, I strongly believe that I am not in control of the circumstances,
our 4th period class ended 1500H and our 5th period class, which
is ENG412, started 1500H also. Immediately after 4th period class,
I went to my next class without any intention of being late Sir.
These statements are supplementary to my explanation in my
delinquency report, in here, I specified the conflict in the schedule
and again, I have no intention to be late. After explaining it further
with these statements, my tactical officer said that since I was
reported in a written form, I should make an appeal in a written
form. Thinking that he already understood what I want to say, I
immediately made an appeal that day stating the words that I used
in having conversation with him.29
Attached to the written appeal was a Certification dated January
24, 2014, wherein Dr. Costales attested:
97 HRLAW 08281
1. That Cadet MIRANDA, ARCANGEL, [and]
NARCISO was (sic) with Cadet CUDIA in making query
about their latest grades in OR432 and/or results of UEl
outside the ACADS office. The following facts may
explain their queries on 14 November 2013:
a. That I held my class in the PMAFI room
instead of room 104.
b. That OR432 releases grades every
Wednesday and cadets are informed during
Thursday, either in class or posted grades in the
bulletin board (grades released was [sic J based
on the previous LEs: latest LE before UE was
Decision Trees).
c. That UE papers were already checked but
not yet recorded due to (sic) other cadets have
not taken the UE. Cadets were allowed to
verify scores but not to look at the papers.
d. Last 23 January 2014, Captain Dulawan
clarified if indeed Cadet NARCISO and
ARCANGEL verified grades. The two cadets
said that they verified something with me after
the OR432 class and they were with Cadet
CUD IA. That the statements of the three (3)
cadets are all the same and consistent, thus[,] I
honor that as true.
2. As to the aspect of dismissing late, I could not really
account for the specific time that I dismissed the class.
To this date, I [cannot] really recall an account that is
more than two (2) months earlier. According to my
records, there was a lecture followed by an LE during
(sic) on 14 November 2013. To determine the time of my
dismissal, maybe it can be verified with the other
members of class I was handling on that said date.30
Respondents contend that the HC denied the appeal the same day,
January · 24, as it found no reason to conduct a re-trial based on
the arguments and evidence presented.31 Petitioners, however,
claim that the written appeal was not acted upon until the filing of
the petition-in-intervention.32
From January 25 to February 7, 2014, respondents allege that the
Headquarters Tactics Group (HTG) conducted an informal review
to check the findings of the HC. During the course of the
investigation, Prof. Berong was said to have confirmed with the
Officer-in-Charge of the HC that classes started as scheduled (i.e.,
3:05 p.m. or 1505H), and that Cadet lCL Barrawed, the acting class
marcher of ENG412, verified before the Commandant, Assistant
Commandant, and STO that the class started not earlier than
scheduled.
Meantime, on February 4, 2014, the OIC of the HC forwarded the
Formal Investigation Report to the Staff Judge Advocate (SJA) for
review. The next day, the SJA found the report to be legally in
order.
On February 8, 2014, Colonel Rozzano D. Briguez (Col. Briguez),
the Commandant of Cadets, affirmed the HC findings and
recommended to Vice Admiral Edgar Abogado, then PMA
Superintendent, the separation from the PMA of Cadet lCL Cudia
for violation of the First Tenet of the Honor Code (Lying, pursuant
to Sec. VII.12.b of the CCAFPR S-2008). On the same date,
Special Orders No. 26 was issued by the PMA Headquarters
placing Cadet 1 CL Cudia on indefinite leave of absence without
pay and allowances effective February 10, 2014 pending approval
of his separation by the AFPGHQ, barring him from future
appointment and/or admission as cadet, and not permitting him to
qualify for any entrance requirements to the PMA. 33
Two days later, Vice Admiral Abogado approved the
recommendation to dismiss Cadet 1 CL Cudia.
On February 13, 2014, Cadet lCL Cudia submitted a letter to the
Office of the Commandant of Cadets requesting for reinstatement
by the PMA of his status as a cadet.34
Four days passed, Annavee P. Cudia (Annavee ), the sister of
Cadet 1 CL Cudia, posted his plight in her Face book account. The
day after, the Spouses Cudia gave a letter to Major General Oscar
Lopez (Maj. Gen. Lopez), the new PMA Superintendent, asking to
recognize the 8-1 voting of the HC.35 Copies of which were
furnished to the AFP Chief of Staff and other concerned military
officials. Subsequently, Maj. Gen. Lopez was directed to review
Cadet lCL Cudia's case. The latter, in turn, referred the matter to
the Cadet Review and Appeals Board (CRAB).
On February 19, 2014, Cadet lCL Cudia made his personal appeal
letter to Maj. Gen. Lopez. On even date, the AFP Chief of Staff
ordered a reinvestigation following the viral Facebook post of
Annavee demanding the intervention of the military leadership.
Petitioners claim that, on February 21, 2014, Special Order No. 1
was issued directing all PMA cadets to ostracize Cadet 1 CL Cudia
by not talking to him and by separating him from all
activities/functions of the cadets. It is said that any violation shall
be a "Class 1" offense entailing 45 demerits, 90 hours touring, and
90 hours confinement. Cadet 1 CL Cudia was not given a copy of
the order and learned about it only from the media.36 According to
an alleged news report, PMA Spokesperson Major Agnes Lynette
Flores (Maj. Flores) confirmed the HC order to ostracize Cadet 1
CL Cudia. Among his offenses were: breach of confidentiality by
putting documents in the social media, violation of the PMA Honor
Code, lack of initiative to resign, and smearing the name of the
PMA.37
On February 24, 2014, Cadet 1CL Cudia requested the CRAB for
additional time, until March 4, 2014, to file an appeal on the
ground that his intended witnesses are in on-the-job training (
OJT).38 As additional evidence to support his appeal, he also
requested for copies of the Minutes of the HC proceedings,
relevant documents pertaining to the case, and video footages and
recordings of the HC hearings.
The next day, Cadet 1 CL Cudia and his family engaged the
services of the Public Attorney's Office (PAO) in Baguio City.
The CRAB conducted a review of the case based on the following:
(a) letter of appeal of the Spouses Cudia dated February 18, 2014;
(b) directive from the AFP-GHQ to reinvestigate the case; and ( c)
guidance from Maj. Gen. Lopez.
On February 26, 2014, Brigadier General Andre M. Costales, Jr.
(Brig. Gen. Costales, Jr.), the CRAB Chairman, informed Cadet
lCL Cudia that, pending approval of the latter's request for
extension, the CRAB would continue to review the case and submit
its recommendations based on whatever evidence and testimonies
received, and that it could not favorably consider his request for
copies of the HC minutes, relevant documents, and video footages
and recordings of the HC hearings since it was neither the
appropriate nor the authorized body to take action
thereon.39Subsequently, upon verbal advice, Cadet 1 CL Cudia
wrote a letter to Maj. Gen. Lopez reiterating his request.40
Two days after, the Spouses Cudia filed a letter-complaint before
the CHR-Cordillera Administrative Region (CAR) Office against
98 HRLAW 08281
the HC members and Maj. Gracilla for alleged violation of the
human rights of Cadet lCL Cudia, particularly his rights to due
process, education, and privacy of communication.41
On March 4, 2014, Cadet 1 CL Cudia, through the PAO, moved for
additional time, until March 19, 2014, to file his appeal and submit
evidence. PAO also wrote a letter to AFP Chief of Staff General
Emmanuel T. Bautista (Gen. Bautista) seeking for immediate
directive to the PMA to expeditiously and favorably act on Cadet
1CL Cudia's requests.42
Exactly a week prior to the commencement exercises of Siklab
Diwa Class, the following events transpired:
On March 10, 2014, Annavee sought the assistance of PAO Chief
Public Attorney Persida V. Rueda-Acosta.43 On the other hand, the
CRAB submitted a report to the AFP-GHQ upholding the dismissal
of Cadet 1 CL Cudia.44
On March 11, 2014, PAO received a letter from Maj. Gen. Lopez
stating the denial of Cadet 1CL Cudia's requests for extension of
time to file an Appeal Memorandum in view of the ample time
already given, and to be furnished with a copy of relevant
documents because of confidentiality and presumption of regularity
of the HC proceedings.45Cadet 1CL Cudia, through PAO, then
filed an Appeal Memorandum46 before the CRAB.
On March 12, 2014, Spouses Cudia wrote a letter to President
Benigno Simeon C. Aquino III (Pres. Aquino), who is the
Commander-in-Chief of the AFP, attaching thereto the Appeal
Memorandum.47 On the same day, Special Orders No. 48 was
issued by the PMA constituting a Fact-Finding Board/Investigation
Body composed of the CRAB members and PMA senior officers to
conduct a deliberate investigation pertaining to Cadet 1CL Cudia's
Appeal Memorandum.48 The focus of the inquiry was not just to
find out whether the appeal has merit or may be considered but
also to investigate possible involvement of other cadets and
members of the command related to the incident and to establish
specific violation of policy or regulations that had been violated by
other cadets and members of the HC.49
On March 13, 2014, the Cudia family and the Chief Public
Attorney had a dialogue with Maj. Gen. Lopez. On March 14,
2014, the CHR-CAR came out with its preliminary findings, which
recommended the following:
a. For the PMA and the Honor Committee to respect and
uphold the 8 Guilty - 1 Not guilty vote;
b. For the PMA and the Honor Committee to officially
pronounce Cdt Cudia as Not Guilty of the charge filed
against him before the Honor Committee;
c. For the PMA to restore Cadet Cudia's rights and
entitlements as a full-fledge graduating cadet and allow
him to graduate on Sunday, 16 March 2014;
d. For the PMA to fully cooperate with the CHR in the
investigation of Cudia's Case.50
On March 15, 2014, Cadet 1CL Cudia and his family had a
meeting with Pres. Aquino and Department of National Defense
(DND) Secretary Voltaire T. Gazmin. The President recommended
that they put in writing their appeal, requests, and other concerns.
According to respondents, the parties agreed that Cadet 1 CL Cudia
would not join the graduation but it was without prejudice to the
result of the appeal, which was elevated to the AFP Chief of Staff.
The President then tasked Gen. Bautista to handle the
reinvestigation of the case, with Maj. Gen. Oscar Lopez
supervising the group conducting the review.
Four days after Siklab Diwa Class' graduation day, petitioner
Renato S. Cudia received a letter dated March 11, 2014 from the
Office of the AFP Adjutant General and signed by Brig. Gen.
Ronald N. Albano for the AFP Chief of Staff, affirming the CRAB'
s denial of Cadet 1 CL Cudia' s appeal. It held:
After review, The Judge Advocate General, APP finds that the
action of the PMA CRAB in denying the appeal for reinvestigation
is legally in order. There was enough evidence to sustain the
finding of guilt and the proprietary (sic) of the punishment
imposed. Also, your son was afforded sufficient time to file his
appeal from the date he was informed of the final verdict on
January 21, 2014, when the decision of the Honor Committee was
read to him in person, until the time the PMA CRAB conducted its
review on the case. Moreover, the continued stay of your son at the
Academy was voluntary. As such, he remained subject to the
Academy's policy regarding visitation. Further, there was no
violation of his right to due process considering that the procedure
undertaken by the Honor Committee and PMA CRAB was
consistent with existing policy. Thus, the previous finding and
recommendation of the Honor Committee finding your son, subject
Cadet guilty of "Lying" and recommending his separation from the
Academy is sustained.
2.2 issue to Cadet Cudia the
corresponding Diploma for the
degree of Bachelors of Science; and
2.3 Issue to Cadet Cudia the
corresponding official transcript 'of
his academic records for his BS
degree, without conditions therein as
to his status as a PMA cadet.
3. The Public Attorneys' Office to provide legal
services to Cadet Cudia in pursuing
administrative, criminal and civil suits against
the officers and members of the Honor
Committee named hereunder, for violation of
the Honor Code and System and the Procedure
in Formal Investigation, dishonesty, violation
of the secrecy of the ballot, tampering the true
result of the voting, perjury, intentional
omission in the Minutes of substantive part of
the formal trial proceedings which are
prejudicial to the interest of justice and Cadet
Cudia's fundamental rights to dignity, non-
discrimination and due process, which led to
the infringement of his right to education and
even transgressing his right to a good life.

In view of the foregoing, this Headquarters resolved to deny your 3.1 Cdt lCL MIKE ANTHONY
appeal for lack of merit.51 Thereafter, the Fact-Finding MOGUL, now 2nd Lt. of the AFP
Board/Investigating Body issued its Final Investigation Report on
March 23, 2014 denying Cadet 1 CL Cudia's 3.2 Cdt lCL RHONA K.
appeal.52 Subsequently, on April 28, 2014, the special investigation SALVACION, now 2nd Lt. of the
board tasked to probe the case submitted its final report to the AFP
President.53 Pursuant to the administrative appeals process, the
DND issued a Memorandum dated May 23, 2014, directing the
Office of AFP Chief of Staff to submit the complete records of the 3.3 Cdt 2CL ARWI C. MARTINEZ
case for purposes of DND review and recommendation for
disposition by the President.54 3.4 Cdt 2CL RENATO A. CARINO,
JR.
Meanwhile, on May 22, 2014, the CHR-CAR issued its Resolution
with respect to CHR-CAR Case No. 2014-0029, concluding and 3.5 Cdt 2CL NIKOANGELOC.
recommending as follows: TARAYAO

WHEREFORE, PREMISES CONSIDERED, the Commission on 3.6 Cdt lCL JEANEL YN P.

Human Rights-CAR Office finds PROBABLE CAUSE FOR CABRIDO, now 2nd Lt. of the AFP
HUMAN RIGHTS VIOLATIONS against the officers and
members of the PMA Honor Committee and .. certain PMA 3.7 Cdt lCL KIM ADRIAN R.
officials, specifically for violations of the rights of CADET MARTAL, now 2nd Lt. of the AFP
ALDRIN JEFF P. CUDIA to dignity, due process, education,
privacy/privacy of communication, and good life.
3.8 Cdt lCL JAIRUS 0. FANTIN,
now 2nd Lt. of the AFP
IN VIEW OF THE FOREGOING, the CHR-CAR Office
RESOLVED to indorse to competent authorities for their
immediate appropriate action on the following recommendations: 3.9 Cdt lCL BRYAN SONNY S.
ARLEGUI, now 2nd Lt. of the AFP
1. The Philippine Military Academy must set
aside the "9-Guilty, 0-Not Guilty" verdict 3.10 Cdt lCL DALTON JOHN G.
against Cadet Aldrin Jeff P. Cudia, for being LAGURA, now 2nd Lt. of the AFP
null and void; to uphold and respect the "8-
Guilty, 1-Not Guilty" voting result and make 3.11 Cdt 1 CL BIANCHIHEIMER L.
an official pronouncement of NOT GUILTY in EDRA, now 2nd Lt. of the AFP
favor of Cadet Cudia;
3.12 Cdt 4CL JENNIFER A.
2. The PMA, the AFP Chief of Staff, and the CUARTERON (recorder)
President in whose hands rest the ends of
justice and fate of Cadet Cudia, to:
3.13 Cdt 3CL LEONCIO NICO A.
DE JESUS II (record)
2.1 officially proclaim Cadet Cudia a
graduate and alumnus of the
Philippine Military Academy;
99 HRLAW 08281
 4. The Office of the AFP Chief of Staff and the
PMA competent authorities should investigate
and file appropriate charges against Maj.
VLADIMIR P. GRACILLA, for violation of
the right to privacy of Cadet Cudia and/or
failure, as intelligence officer, to ensure the
protection of the right to privacy of Cudia who
was then billeted at the PMA Holding Center;
5. The Office of the AFP Chief of Staff and
PMA competent authorities should investigate
Maj. DENNIS ROMMEL HINDANG for his
failure and ineptness to exercise his
responsibility as a competent Tactical Officer
and a good father of his cadets, in this case, to
Cadet Cudia; for failure to respect exhaustion
of administrative remedies;
6. The Secretary of National Defense, the Chief
of Staff of the Armed Forces of the Philppines,
the PMA Superintendent, to immediately cause
the comprehensive review of all rules of
procedures, regulations, policies, including the
so-called practices in the implementation of the
Honor Code; and, thereafter, adopt new
policies, rules of procedures and relevant
regulations which are human-rights based and
consistent with the Constitution and other
applicable laws;
7. The Congress of the Philippines to consider
the enactment of a law defining and penalizing
ostracism and discrimination, which is
apparently being practiced in the PMA, as a
criminal offense in this jurisdiction;
8. His Excellency The President of the
Philippines to certify as priority, the passage of
an anti-ostracism and/or anti-discrimination
law; and
9. Finally, for the AFP Chief of Staff and the
PMA authorities to ensure respect and
protection of the rights of those who testified
for the cause of justice and truth as well as
human rights of Cadet Cudia.
RESOLVED FURTHER, to monitor the actions by the competent
authorities on the foregoing CHR recommendations.
Let copy of this resolution be served by personal service or by
substituted service to the complainants (the spouses Renato and
Filipina Cudia; and Aldrin Jeff P. Cudia), and all the respondents.
Also, to the PMA Superintendent, the AFP Chief of Staff, the
Secretary of National Defense, His Excellency The President of the
Philippines, The Public Attorneys' Office.
SO RESOLVED.55
On June 11, 2014, the Office of the President sustained the findings
of the AFP Chief of Staff and the CRAB. The letter, which was
addressed to the Spouses Cudia and signed by Executive Secretary
Paquito N. Ochoa, Jr., stated in whole:
This refers to your letters to the President dated 12 March 2014 and
26 March 2014 appealing for a reconsideration of the decision of
the Philippine Military Academy (PMA) Honor Committee on the
case of your son, Cadet 1 CL Aldrin Jeff Cudia.
100 HRLAW 08281
After carefully studying the records of the case of Cadet Cudia, the
decision of the Chief of Staff of the Armed Forces of the
Philippines (AFP), and the Honor Code System of the AFP Cadet
Corps, this Office has found no substantial basis to disturb the
findings of the AFP and the PMA Cadet Review Appeals Board
(CRAB). There is no competent evidence to support the claim that
the decision of the Honor Committee members was initially at 8
"Guilty" votes and 1 "Not Guilty" vote. The lone affidavit of an
officer, based on his purported conversation with one Honor
Committee member, lacks personal knowledge on the deliberations
of the said Committee and is hearsay at best.
Similarly, the initial recommendations of the Commission on
Human Rights cannot be adopted as basis that Cadet Cudia's due
process rights were violated. Apart from being explicitly
preliminary in nature, such recommendations are anchored on a
finding that there was an 8-1 vote which, as discussed above, is not
supported by competent evidence.
In the evaluation of Cadet Cudia's case, this Office has been guided
by the precept that military law is regarded to be in a class of its
own, "applicable only to military personnel because the military
constitutes an armed organization requiring a system of discipline
separate from that of civilians" (Gonzales v. Abaya, G.R. No.
164007, 10 August 2005 citing Calley v. Callaway, 519 F. 2d 184
[1975] and Orloff v. Willoughby, 345 US 83 [1953]). Thus, this
Office regarded the findings of the AFP Chief, particularly his
conclusion that there was nothing irregular in the proceedings that
ensued, as carrying great weight.
Accordingly, please be informed that the President has sustained
the findings of the AFP Chief and the PMA CRAB.56
The Issues
To petitioners, the issues for resolution are:
I.
WHETHER THE PHILIPPINE MILITARY ACADEMY, THE
HONOR COMMITTEE AND THE CADET REVIEW AND
APPEALS BOARD COMMITTED GRAVE ABUSE OF
DISCRETION IN DISMISSING CADET FIRST CLASS
ALDRIN JEFF P. CUDIA FROM THE ACADEMY IN UTTER
DISREGARD OF HIS RIGHT TO DUE PROCESS
CONSIDERING THAT:
A. Despite repeated requests for relevant documents
regarding his case, Cadet First Class Aldrin Jeff Cudia
was deprived of his right to have access to evidence
which would have proven his defense, would have totally
belied the charge against him, and more importantly,
would have shown the irregularity in the Honor
Committee's hearing and rendition of decision
B. Cadet First Class Aldrin Jeff Cudia was vaguely
informed of the decisions arrived at by the Honor
Committee, the Cadet Review and Appeals Board and
the Philippine Military Academy
C. The Honor Committee, the Cadet Review and Appeals
Board and the Philippine Military Academy have
afforded Cadet First Class Aldrin Jeff Cudia nothing but
a sham trial
D. The Honor Committee, the Cadet Review and
Appeals Board and the Philippine Military Academy
violated their own rules and principles as embodied in
the Honor Code
 E. The Honor Committee, the Cadet Review and Appeals
Board and the Philippine Military Academy, in deciding
Cadet First Class Aldrin Jeff Cudia's case, grossly and in
bad faith, misapplied the Honor Code so as to defy the
1987 Constitution, notwithstanding the unquestionable
fact that the former should yield to the latter.
II
WHETHER THE PHILIPPINE MILITARY ACADEMY, THE
HONOR COMMITTEE AND THE CADET REVIEW AND
APPEALS BOARD COMMITTED GRAVE ABUSE OF
DISCRETION IN HOLDING THAT CADET FIRST CLASS
ALDRIN JEFF P. CUDIA LIED, THEREBY VIOLATING THE
HONOR CODE
III
WHETHER THE RESULT OF THE FACT-FINDING
INVESTIGATION INDEPENDENTLY CONDUCTED BY THE
COMMISSION ON HUMAN RIGHTS IS OF SUCH GREAT
WEIGHT AND PERSUASIVE NATURE THAT THIS
HONORABLE COURT MAY HONOR, UPHOLD AND
RESPECT57
On the other hand, in support of their prayer to dismiss the petition,
respondents presented the issues below:
PROCEDURAL GROUNDS
I.
THE MANDAMUS PETITION PRAYING THAT CADET
CUDIA BE INCLUDED IN THE LIST OF GRADUATES OF
SIKLAB DIWA CLASS OF 2014 AND BE ALLOWED TO
TAKE PART IN THE COMMENCEMENT EXERCISES HAS
ALREADY BEEN RENDERED MOOT.
II.
THE ISSUES RAISED IN THE PETITIONS ARE ACTUALLY
FACTUAL WHICH ARE BEYOND THE SCOPE OF A
PETITION FOR CERTIORARI, PROHIBITION AND
MANDAMUS.
III.
MANDAMUS DOES NOT LIE TO COMPEL RESPONDENTS
TO GRANT THE RELIEFS PRAYED FOR. IV. IT IS
PREMATURE TO INVOKE JUDICIAL REDRESS PENDING
THE DECISION OF THE PRESIDENT ON CADET CUDIA'S
APPEAL.
V.
WITH UTMOST DUE RESPECT, THE HONORABLE COURT
MUST EXERCISE CAREFUL RESTRAINT AND REFRAIN
FROM UNDULY OR PREMATURELY INTERFERING WITH
LEGITIMATE MILITARY MATTERS.
SUBSTANTIVE GROUNDS
VI.
CADET CUDIA HAS NECESSARILY AND VOLUNTARILY
RELINQUISHED CERTAIN CIVIL LIBERTIES BY VIRTUE
OF HIS ENTRY INTO THE PMA.
101 HRLAW 08281
VII.
THE PMA ENJOYS THE ACADEMIC FREEDOM WHICH
AUTHORIZES IT TO IMPOSE DISCIPLINARY MEASURES
AND PUNISHMENT AS IT DEEMS FIT AND CONSISTENT
WITH THE PECULIAR NEEDS OF THE ACADEMY.
VIII.
CADET CUDIA WAS PROPERLY AFFORDED PROCEDURAL
DUE PROCESS.
The PMA has regulatory authority to administratively terminate
cadets despite the absence of statutory authority.
Violation of the Honor Code warrants the administrative dismissal
of a guilty cadet.
Cadet Cudia violated the first tenet of the Honor Code by providing
untruthful statements in the explanation for his tardiness.
The higher authorities of the PMA did not blindly adopt the
findings of the Honor Committee.
The procedural safeguards in a student disciplinary case were
properly accorded to Cadet Cudia.
The subtle evolution in the voting process of the Honor Committee,
by incorporating executive session/chambering, was adopted to
further strengthen the voting procedure of the Honor Committee.
Cadet Lagura voluntarily changed his vote without any pressure
from the other voting members of the Honor Committee.
Ostracism is not a sanctioned practice of the PMA.
The findings of the Commission on Human Rights are not binding
on the Honorable Court, and are, at best, recommendatory.
Cadet Cudia was not effectively deprived of his future when he
was dismissed from the PMA.58
The Ruling of the Court
PROCEDURAL GROUNDS
Propriety of a petition for mandamus
Respondents argue that the mandamus aspect of the petition
praying that Cadet 1 CL Cudia be included in the list of graduating
cadets and for him to take part in the commencement exercises was
already rendered moot and academic when the graduation
ceremonies of the PMA Siklab Diwa Class took place on March
16, 2014. Also, a petition for mandamus is improper since it does
not lie to compel the performance of a discretionary duty. Invoking
Garcia v. The Faculty Admission Committee, Loyola School of
Theology,59 respondents assert that a mandamus petition could not
be availed of to compel an academic institution to allow a student
to continue studying therein because it is merely a privilege and not
a right. In this case, there is a clear failure on petitioners' part to
establish that the PMA has the, ministerial duty to include Cadet 1
CL Cudia in the list, much less award him with academic honors
and commission him to the Philippine Navy. Similar to the case of
University of San Agustin, Inc. v. Court of Appeals,60 it is
submitted that the PMA may rightfully exercise its discretionary
power on who may be admitted to study pursuant to its academic
freedom.
In response, petitioners contend that while the plea to allow Cadet
1 CL Cudia to participate in the PMA 2014 commencement
exercises could no longer be had, the Court may still grant the
other reliefs prayed for. They add that Garcia enunciated that a
respondent can be ordered to act in a particular manner when there
is a violation of a constitutional right, and that the certiorari aspect
of the petition must still be considered because it is within the
province of the Court to determine whether a branch of the
government or any of its officials has acted without or in excess of
jurisdiction or with grave abuse of discretion amounting to lack or
excess thereof.
We agree that a petition for mandamus is improper.
Under Section 3, Rule 65 of the Rules of Civil Procedure, a
petition for mandamus may be filed when any tribunal,
corporation, board, officer, or person unlawfully neglects the
performance of an act which the law specifically enjoins as a duty
resulting from an office, trust, or station. It may also be filed when
any tribunal, corporation, board, officer, or person unlawfully
excludes another from the use and enjoyment of a right or office to
which such other is entitled.
For mandamus to lie, the act sought to be enjoined must be a
ministerial act or duty. An act is ministerial if the act should be
performed "[under] a given state of facts, in a prescribed manner,
in obedience to the mandate of a legal authority, without regard to
or the exercise of [the tribunal or corporation's] own judgment
upon the propriety or impropriety of the act done." The tribunal,
corporation, board, officer, or person must have no choice but to
perform the act specifically enjoined by law. This is opposed to a
discretionary act whereby the officer has the choice to decide how
or when to perform the duty.61
In this case, petitioners pray for, among others: Also, after due
notice and hearing, it is prayed of the Court to issue a Writ of
Mandamus to:
1. direct the PMA to include Cadet Cudia in the list of
graduates of Siklab Diwa Class of 2014 of the PMA,
including inclusion in the yearbook;
2. direct the PMA to allow Cadet Cudia to take part in
the commencement exercises if he completed all the
requirements for his baccalaureate degree;
3. direct the PMA to award unto Cadet Cudia the
academic honors he deserves, and the commission as a
new Philippine Navy ensign;
4. direct the Honor Committee to submit to the CRAB of
the PMA all its records of the proceedings taken against
Cadet Cudia, including the video footage and audio
recordings of the deliberations and voting, for the
purpose of allowing the CRAB to conduct intelligent
review of the case of Cadet Cudia;
5. direct the PMA's CRAB to conduct a review de nova
of all the records without requiring Cadet Cudia to
submit new evidence if it was physically impossible to
do so;
6. direct the PMA's CRAB to take into account the
certification signed by Dr. Costales, the new evidence
consisting of the affidavit of a military officer declaring
under oath that the cadet who voted "not guilty" revealed
to this officer that this cadet was coerced into changing
his vote, and other new evidence if there is any;
102 HRLAW 08281
7. direct the PMA's CRAB to give Cadet Cudia the right
to a counsel who is allowed to participate actively in the
proceedings as well as in the cross-examinations during
the exercise of the right to confront witnesses against
him; and
8. direct the Honor Committee in case of remand of the
case by the CRAB to allow Cadet Cudia a representation
of a counsel.62
Similarly, petitioner-intervenor seeks for the following reliefs:
A. xxx
B. a Writ of Mandamus be issued commanding:
a.) The PMA, Honor Committee, and CRAB to
respect and uphold the 8 Guilty -1 Not Guilty
vote;
b.) The PMA, Honor Committee, and CRAB to
officially pronounce Cadet Cudia as Not Guilty
of the charge filed against him before the
Honor Committee;
c.) The PMA to restore Cadet Cudia's rights
and entitlements as a full-fledged graduating
cadet, including his diploma and awards.63
Anent the plea to direct the PMA to include Cadet 1 CL Cudia in
the list of graduates of Siklab Diwa Class of 2014 and to allow him
to take part in the commencement exercises, the same was rendered
moot and academic when the graduation ceremonies pushed
through on March 16, 2014 without including Cadet 1 CL Cudia in
the roll of graduates.
With respect to the prayer directing the PMA to restore Cadet 1 CL
Cudia's rights and entitlements as a full-fledged graduating cadet,
including his diploma, awards, and commission as a new
Philippine Navy ensign, the same cannot be granted in a petition
for mandamus on the basis of academic freedom, which We shall
discuss in more detail below. Suffice it to say at this point that
these matters are within the ambit of or encompassed by the right
of academic freedom; therefore, beyond the province of the Court
to decide.64 The powers to confer degrees at the PMA, grant
awards, and commission officers in the military service are
discretionary acts on the part of the President as the AFP
Commander-in-Chief. Borrowing the words of Garcia:
There are standards that must be met. There are policies to be
pursued. Discretion appears to be of the essence. In terms of
Hohfeld's terminology, what a student in the position of petitioner
possesses is a privilege rather than a right. She [in this case, Cadet
1 CL Cudia] cannot therefore satisfy the prime and indispensable
requisite of a mandamus proceeding.65
Certainly, mandamus is never issued in doubtful cases. It cannot be
availed against an official or government agency whose duty
requires the exercise of discretion or judgment.66 For a writ to
issue, petitioners should have a clear legal right to the thing
demanded, and there should be an imperative duty on the part of
respondents to perform the act sought to be mandated.67
The same reasons can be said as regards the other reliefs being
sought by petitioners, which pertain to the HC and the CRAB
proceedings. In the absence of a clear and unmistakable provision
of a law, a mandamus petition does not lie to require anyone to a
specific course of conduct or to control or review the exercise of
discretion; it will not issue to compel an official to do anything
which is not his duty to do or which is his duty not to do or give to
the applicant anything to which he is not entitled by law. 68
The foregoing notwithstanding, the resolution of the case must
proceed since, as argued by petitioners, the Court is empowered to
settle via petition for certiorari whether there is grave abuse of
discretion on the part of respondents in dismissing Cadet 1 CL
Cudia from the PMA.
Factual nature of the issues
According to respondents, the petition raises issues that actually
require the Court to make findings of fact because it sets forth
several factual disputes which include, among others: the tardiness
of Cadet 1 CL Cudia in , his ENG412 class and his explanation
thereto, the circumstances that transpired in the investigation of his
Honor Code violation, the proceedings before the HC, and the
allegation that Cadet 1 CL Lagura was forced to change his vote
during the executive session/"chambering."
In opposition, petitioners claim that the instant controversy
presents legal issues. Rather than determining which between the
two conflicting versions of the parties is true, the case allegedly
centers on the application, appreciation, and interpretation of a
person's rights to due process, to education, and to property; the
interpretation of the PMA Honor Code and Honor System; and the
conclusion on whether Cadet 1 CL Cudia's explanation constitutes
lying. Even if the instant case involves questions of fact, petitioners
still hold that the Court is empowered to settle mixed questions of
fact and law. Petitioners are correct.
There is a question of law when the issue does not call for an
examination of the probative value of evidence presented, the truth
or falsehood of facts being admitted and the doubt concerns the
correct application of law and jurisprudence on the matter. On the
other hand, there is a question of fact when the doubt or
controversy arises as to the truth or falsity of the alleged facts.
When there is no dispute as to fact, the question of whether or not
the conclusion drawn therefrom is correct is a question of
law.69 The petition does not exclusively present factual matters for
the Court to decide. As pointed out, the all-encompassing issue of
more importance is the determination of whether a PMA cadet has
rights to due process, to education, and to property in the context of
the Honor Code and the Honor System, and, if in the affirmative,
the extent or limit thereof. Notably, even respondents themselves
raise substantive grounds that We have to resolve. In support of
their contention that the Court must exercise careful restraint and
should refrain from unduly or prematurely interfering in legitimate
military matters, they argue that Cadet 1 CL Cudia has necessarily
and voluntarily relinquished certain civil liberties by virtue of his
entry into the PMA, and that the Academy enjoys academic
freedom authorizing the imposition of disciplinary measures and
punishment as it deems fit and consistent with the peculiar needs of
the PMA. These issues, aside from being purely legal being purely
legal questions, are of first impression; hence, the Court must not
hesitate to make a categorical ruling.
Exhaustion of administrative remedies
Respondents assert that the Court must decline jurisdiction over the
petition pending President Aquino’s resolution of Cadet 1 CL
Cudia' appeal. They say that there is an obvious non-exhaustion of
the full administrative process. While Cadet 1 CL Cudia underwent
the review procedures of his guilty verdict at the Academy level -
the determination by the SJA of whether the HC acted according to
the established procedures of the Honor System, the assessment by
the Commandant of Cadets of the procedural and legal correctness
of the guilty verdict, the evaluation of the PMA Superintendent to
warrant the administrative separation of the guilty cadet, and the
appellate review proceedings before the CRAB - he still appealed
to the President, who has the utmost latitude in making decisions
103 HRLAW 08281
affecting the military. It is contended that the President's power
over the persons and actions of the members of the armed forces is
recognized in B/Gen. (Ret.) Gudani v. Lt./Gen. Senga70 and in
Section 3171 of Commonwealth Act (CA.) No. 1 (also known as
"The National Defense Act''). As such, the President could still
overturn the decision of the PMA. In respondents' view, the filing
of this petition while the case is pending resolution of the President
is an irresponsible defiance, if not a personal affront. For them,
comity dictates that courts of justice should shy away from a
dispute until the system of administrative redress has been
completed.
From the unfolding of events, petitioners, however, consider that
President Aquino effectively denied the appeal of Cadet 1 CL
Cudia. They claim that his family exerted insurmountable efforts to
seek reconsideration of the HC recommendation from the APP
officials and the President, but was in vain. The circumstances
prior to, during, and after the PMA 2014 graduation rites, which
was attended by President Aquino after he talked to Cadet lCL
Cudia's family the night before, foreclose the possibility that the
challenged findings would still be overturned. In any case,
petitioners insist that the· rule on exhaustion of administrative
remedies is not absolute based on the Corsiga v. Defensor72 and
Verceles v. BLR-DOLE73 rulings.
We rule for petitioners.
In general, no one is entitled to judicial relief for a supposed or
threatened injury until the prescribed administrative remedy has
been exhausted. The rationale behind the doctrine of exhaustion of
administrative remedies is that "courts, for reasons of law, comity,
and convenience, should not entertain suits unless the available
administrative remedies have first been resorted to and the proper
authorities, who are competent to act upon the matter complained
of, have been given the appropriate opportunity to act and correct
their alleged errors, if any, committed in the administrative
forum."74 In the U.S. case of Ringgold v. United States,75 which
was cited by respondents, it was specifically held that in a typical
case involving a decision by military authorities, the plaintiff must
exhaust his remedies within the military before appealing to the
court, the doctrine being designed both to preserve the balance
between military and civilian authorities and to conserve judicial
resources.
Nonetheless, there are exceptions to the rule. In this jurisdiction, a
party may directly resort to judicial remedies if any of the
following is present:
1. when there is a violation of due process;
2. when the issue involved is purely a legal question;
3. when the administrative action is patently illegal
amounting to lack or excess of jurisdiction;
4. when there is estoppel on the part of the administrative
agency concerned;
5. when there is irreparable injury;
6. when the respondent is a department secretary whose
acts as an alter ego of the President bear the implied and
assumed approval of the latter;
7. when to require exhaustion of administrative remedies
would be unreasonable;
8. when it would amount to a nullification of a claim;
 9. when the subject matter is a private land in land case
proceedings;
10. when the rule does not provide a plain, speedy and
adequate remedy; and
11. when there are circumstances indicating the urgency
of judicial intervention.76
Petitioners essentially raise the lack of due process in the dismissal
of Cadet 1 CL Cudia from the PMA. Thus, it may be a ground to
give due course to the petition despite the non-exhaustion of
administrative remedies. Yet more significant is the fact that during
the pendency of this case, particularly on June 11, 2014, the Office
of the President finally issued its ruling, which sustained the
findings of the AFP Chief and the CRAB. Hence, the occurrence of
this supervening event bars any objection to the petition based on
failure to exhaust administrative remedies.
Court's interference within military affairs
Respondents cite the U.S. cases of Bois v. Marsh 77 and Schlesinger
v. Councilman78 to support their contention that judicial
intervention would pose substantial threat to military discipline and
that there should be a deferential review of military statutes and
regulations since political branches have particular expertise and
competence in assessing military needs. Likewise, in Orloff v.
Willoughby79 and Parker v. Levy,80 it was allegedly opined by the
U.S. Supreme Court that the military constitutes a specialized
community governed by a separate discipline from that of the
civilian. According to respondents, the U.S. courts' respect to the
military recognizes that constitutional rights may apply differently
in the military context than in civilian society as a whole. Such
military deference is exercised either by refusing to apply due
process and equal protection doctrines in military cases or applying
them but with leniency.
In respondents' view, although Philippine courts have the power of
judicial review in cases attended with grave abuse of discretion
amounting to lack or excess of jurisdiction, policy considerations
call for the widest latitude of deference to military affairs. Such
respect is exercised by the court where the issues to be resolved
entail a substantial consideration of legitimate governmental
interest. They suppose that allowing Cadet 1 CL Cudia's case to
prosper will set an institutionally dangerous precedent, opening a
Pandora's box of other challenges against the specialized system of
discipline of the PMA. They state that with the PMA's mandate to
train cadets for permanent commission in the AFP, its disciplinary
rules and procedure necessarily must impose h different standard of
conduct compared with civilian institutions.
Petitioners, on the other hand, consider that this Court is part of the
State's check-and-balance machinery, specifically mandated by
Article VIII of the 1987 Constitution to ensure that no branch of
the government or any of its officials acts without or in excess of
jurisdiction or with grave abuse of, discretion amounting to lack or
excess of jurisdiction. They assert that judicial non-interference in
military affairs is not deemed as absolute even in the U.S. They
cite Schlesinger and Parker, which were invoked by respondents,
as well as Burns v. Wilson81 and Harmon v. Brucker,82 wherein the
U.S. Supreme Court reviewed the proceedings of military tribunals
on account of issues posed concerning due process and violations
of constitutional rights. Also, in Magno v. De Villa83 decided by
this Court, petitioners note that We, in fact, exercised the judicial
power to determine whether the APP and the members of the court
martial acted with grave abuse o.f discretion in their military
investigation.
Petitioners' contentions are tenable.
104 HRLAW 08281
Admittedly, the Constitution entrusts the political branches of the
government, not the courts, with superintendence and control over
the military because the courts generally lack the competence and
expertise necessary to evaluate military decisions and they are ill-
equipped to determine the impact upon discipline that any
particular intrusion upon military authority might
have.84 Nevertheless, for the sake of brevity, We rule that the facts
as well as the legal issues in the U.S. cases cited by respondents are
not on all fours with the case of Cadet 1 CL Cudia. Instead, what
applies is the 1975 U.S. case of Andrews v. Knowlton,85 which
similarly involved cadets who were separated from the United
States Military Academy due to Honor Code violations. Following
Wasson v. Trowbridge86 and Hagopian v. Knowlton,87 Andrews re-
affirmed the power of the district courts to review procedures used
at the service academies in the separation or dismissal of cadets
and midshipmen. While it recognized the "constitutional
permissibility of the military to set and enforce uncommonly high
standards of conduct and ethics," it said that the courts "have
expanded at an accelerated pace the scope of judicial access for
review of military determinations." Later, in Kolesa v. Lehman,88 it
was opined that it has been well settled that federal courts have
jurisdiction "where there is a substantial claim that prescribed
military procedures violates one's constitutional rights." By 1983,
the U.S. Congress eventually made major revisions to the Uniform
Code of Military Justice (UCMJ) by expressly providing, among
others; for a direct review by the U.S. Supreme Court of decisions
by the military's highest appellate authority.89
Even without referring to U.S. cases, the position of petitioners is
still formidable. In this jurisdiction, Section 1 Article VIII of the
1987 Constitution expanded the scope of judicial power by
mandating that the duty of the courts of justice includes not only
"to settle actual controversies involving rights which are legally
demandable and enforceable" but also "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" even if the latter does not exercise judicial,
quasi-judicial or ministerial functions.90 Grave abuse of discretion
implies such capricious and whimsical exercise of judgment as is
equivalent to lack of jurisdiction or where the power is exercised in
an arbitrary or despotic manner by reason of passion or personal
hostility, which must be so patent and gross 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.91
The proceedings of the Cadet Honor Committee can, for purposes
of the Due Process Clause, be considered a governmental activity.
As ruled in Andrews:
The relationship between the Cadet Honor Committee and the
separation process at the Academy has been sufficiently
formalized, and is sufficiently interdependent, so as to bring that
committee's activities within the definition of governmental
activity for the purposes of our review. While the Academy has
long had the informal practice of referring all alleged violations to
the Cadet Honor Committee, the relationship between that
committee and the separation process has to a degree been
formalized. x x x
Regardless of whether the relationship be deemed formal or
informal, the Honor Committee under its own procedures provides
that a single "not guilty" vote by a member ends the matter, while a
"guilty" finding confronts a cadet with the hard choice of either
resigning or electing to go before a Board of Officers. An adverse
finding there results not only in formal separation from the
Academy but also in a damaging record that will follow the cadet
through life. Accordingly, we conclude that the Cadet Honor
Committee, acting not unlike a grand jury, is clearly part of the
process whereby a cadet can ultimately be adjudged to have
violated the Cadet Honor Code and be separated from the
Academy. Therefore, the effect of the committee's procedures and
determinations on the separation process is sufficiently intertwined
with the formal governmental activity which may follow as to
bring it properly under judicial review92
No one is above the law, including the military. In fact, the present
Constitution declares it as a matter of principle that civilian
authority is, at all times, supreme over the military.93 Consistent
with the republican system of checks and balances, the Court has
been entrusted, expressly or by necessary implication, with both
the duty and the obligation of determining, in appropriate cases, the
validity of any assailed legislative or executive action. 94
SUBSTANTIVE GROUNDS
Cadet's relinquishment of certain civil liberties
Respondents assert that the standard of rights applicable to a cadet
is not the same as that of a civilian because the former' s rights
have already been recalibrated to best serve the military purpose
and necessity. They claim that both Gudani and Lt. Col. Kapunan,
Jr. v. Gen. De Villa95 recognized that, to a certain degree,
individual rights of persons in the military service may be curtailed
by the rules of military discipline in order to ensure its
effectiveness in fulfilling the duties required to be discharged under
the law. Respondents remind that, as a military student aspiring to
a commissioned post in the military service, Cadet 1 CL Cudia
voluntarily gave up certain civil and political rights which the rest
of the civilian population enjoys. The deliberate surrender of
certain freedoms on his part is embodied in the cadets' Honor Code
Handbook. It is noted that at the beginning of their academic life in
the PMA, Cadet 1 CL Cudia, along with the rest of Cadet Corps,
took an oath and undertaking to stand by the Honor Code and the
Honor System.
To say that a PMA cadet surrenders his fundamental human rights,
including the right to due process, is, for petitioners, contrary to the
provisions of Section 3, Article II of the 1987
Constitution,96 Executive Order (E.O.) No. 17897 (as amended by
E.O. No. 100598), AFP Code of Ethics, Oath of Cadet Corps to the
Honor Code and the Honor System, military professionalism, and,
in general, military culture. They maintain that the HC, the CRAB,
and the PMA, grossly and in bad faith misapplied the Honor Code
and the Honor System in deciding Cadet lCL Cudia's case
considering that these should not be implemented at the expense of
human rights, due process, and fair play. Further, under the
doctrine of constitutional supremacy, they can never overpower or
defy the 1987 Constitution since the former should yield to the
latter. Petitioners stress that the statement that "a cadet can be
compelled to surrender some civil rights and liberties in order for
the Code and System to be implemented" simply pertains to what
cadets have to sacrifice in order to prove that they are men or
women of integrity and honor, such as the right to entertain vices
and the right to freely choose what they want to say or do. In the
context of disciplinary investigation, it does not contemplate a
surrender of the right to due process but, at most, refers to the
cadets' rights to privacy and to remain silent.
We concur with the stand of petitioners.
Of course, a student at a military academy must be prepared to
subordinate his private interests for the proper functioning of the
educational institution he attends to, one that is with a greater
degree than a student at a civilian public school.99 In fact, the
Honor Code and Honor System Handbook of the PMA expresses
that, "[as] a training environment, the Cadet Corps is a society
which has its own norms. Each member binds himself to what is
good for him, his subordinates, and his peers. To be part of the
Cadet Corps requires the surrender of some basic rights and
liberties for the good of the group."100
105 HRLAW 08281
It is clear, however, from the teachings of Wasson and Hagopian,
which were adopted by Andrews, that a cadet facing dismissal
from the military academy for misconduct has constitutionally
protected private interests (life, liberty, or property); hence,
disciplinary proceedings conducted within the bounds of
procedural due process is a must.101For that reason, the PMA is not
immune from the strictures of due process. Where a person's good
name, reputation, honor, or integrity is at stake because of what the
government is doing to him, the minimal requirements of the due
process clause must be satisfied.102 Likewise, the cadet faces far
more severe sanctions of being expelled from a course of college
instruction which he or she has pursued with a view to becoming a
career officer and of probably
being forever denied that career.103
The cases of Gudani and Kapunan, Jr. are inapplicable as they do
not specifically pertain to dismissal proceedings of a cadet in a
military academy due to honor violation. In Gudani, the Court
denied the petition that sought to annul the directive from then
President Gloria Macapagal-Arroyo, which' enjoined petitioners
from testifying before the Congress without her consent. We ruled
that petitioners may be subjected to military discipline for their
defiance of a direct order of the AFP Chief of Staff. On the other
hand, in Kapunan, Jr., this Court upheld the restriction imposed on
petitioner since the conditions for his "house arrest" (particularly,
that he may not issue any press statements or give any press
conference during the period of his detention) are justified by the
requirements of military discipline. In these two cases, the
constitutional rights to information, transparency in matters of
public concern, and to free speech - not to due process clause -
were restricted to better serve the greater military purpose.
Academic freedom of the PMA
Petitioners posit that there is no law providing that a guilty finding
by the HC may be used by the PMA to dismiss or recommend the
dismissal of a cadet from the PMA. They argue that Honor Code
violation is not among those listed as justifications for the attrition
of cadets considering that the Honor Code and the Honor System
do not state that a guilty cadet is automatically terminated or
dismissed from service. To them, the Honor Code and Honor
System are "gentleman's agreement" that cannot take precedence
over public interest - in the defense of the nation and in view of the
taxpayer's money spent for each cadet. Petitioners contend that,
based on the Civil Code, all written or verbal agreements are null
and void if they violate the law, good morals, good customs, public
policy, and public safety.
In opposition, respondents claim that the PMA may impose
disciplinary measures and punishment as it deems fit and consistent
with the peculiar needs of the Academy. Even without express
provision of a law, the PMA has regulatory authority to
administratively dismiss erring cadets since it is deemed
reasonably written into C.A. No. 1. Moreover, although said law
grants to the President the authority of terminating a cadet's
appointment, such power may be delegated to the PMA
Superintendent, who may exercise direct supervision and control
over the cadets.
Respondents likewise contend that, as an academic institution, the
PMA has the inherent right to promulgate reasonable norms, rules
and regulations that it may deem necessary for the maintenance of
school discipline, which is specifically mandated by Section 3
(2),104 Article XIV of the 1987 Constitution. As the premiere
military educational institution of the AFP in accordance with
Section 30,105 Article III of C.A. No. 1 and Sections 58 and
59,106 Chapter 9, Subtitle II, Title VIII, Book IV of E.O. No. 292
("Administrative Code of 1987"), the PMA is an institution that
enjoys academic freedom guaranteed by Section 5 (2),107 Article
XIV of the 1987 Constitution. In Miriam College Foundation, Inc.
v. Court of Appeals,108 it was held that concomitant with such
freedom is the right and duty to instill and impose discipline upon
its students. Also, consistent with lsabelo, Jr. v. Perpetual Help
College of Rizal, Inc.109 and Ateneo de Manila University v.
Capulong,110 the PMA has the freedom on who to admit (and,
conversely, to expel) given the high degree of discipline and honor
expected from its students who are to form part of the AFP.
For respondents, Cadet 1 CL Cudia cannot, therefore, belatedly
assail the Honor Code as basis of the HC' s decision to recommend
his dismissal from the PMA. When he enlisted for enrolment and
studied in the PMA for four years, he knew or should have been
fully aware of the standards of discipline imposed on all cadets and
the corresponding penalty for failing to abide by these standards.
In their Reply, petitioners counter that, as shown in lsabelo, Jr. and
Ateneo, academic freedom is not absolute and cannot be exercised
in blatant disregard of the right to due process and the 1987
Constitution. Although schools have the prerogative to choose
what to teach, how to teach, and who to teach, the same does not
go so far as to deprive a student of the right to graduate when there
is clear evidence that he is entitled to the same since, in such a
case, the right to graduate becomes a vested right which takes
precedence over the limited and restricted right of the educational
institution.
While both parties have valid points to consider, the arguments of
respondents are more in line with the facts of this case. We have
ruled that the school-student relationship is contractual in nature.
Once admitted, a student's enrolment is not only semestral in
duration but for the entire period he or she is expected to complete
it.111 An institution of learning has an obligation to afford its
students a fair opportunity to complete the course they seek to
pursue.112 Such contract is imbued with public interest because of
the high priority given by the Constitution to education and the
grant to the State of supervisory and regulatory powers over a
educational institutions.113
The school-student relationship has also been held as reciprocal.
"[It] has consequences appurtenant to and inherent in all contracts
of such kind -it gives rise to bilateral or reciprocal rights and
obligations. The school undertakes to provide students with
education sufficient to enable them to pursue higher education or a
profession. On the other hand, the students agree to abide by the
academic requirements of the school and to observe its rules and
regulations."114
Academic freedom or, to be precise, the institutional autonomy of
universities and institutions of higher learning,115has been
enshrined in our Constitutions of 1935, 1973, and 1987. 116 In
Garcia, this Court espoused the concurring opinion of U.S.
Supreme Court Justice Felix Frankfurter in Sweezy v. New
Hampshire,117 which enumerated "the four essential freedoms" of a
university: To determine for itself on academic grounds (1) who
may teach, (2) what may be taught, (3) how it shall be taught, and
(4) who may be admitted to study.118 An educational institution has
the power to adopt and enforce such rules as may be deemed
expedient for its government, this being incident to the very object
of incorporation, and indispensable to the successful management
of the college.119 It can decide for itself its aims and objectives and
how best to attain them, free from outside coercion or interference
except when there is an overriding public welfare which would call
for some restraint.120 Indeed, "academic freedom has never been
meant to be an unabridged license. It is a privilege that assumes a
correlative duty to exercise it responsibly. An equally telling
precept is a long recognized mandate, so well expressed in Article
19 of the Civil Code, that every 'person must, in the exercise of his
rights and in the performance of his duties, act with justice, give
everyone his due, and observe honesty and good faith."'121
The schools' power to instill discipline in their students is
subsumed in their academic freedom and that "the establishment of
106 HRLAW 08281
rules governing university-student relations, particularly those
pertaining to student discipline, may be regarded as vital, not
merely to the smooth and efficient operation of the institution, but
to its very survival."122 As a Bohemian proverb puts it: "A school
without discipline is like a mill without water." Insofar as the water
turns the mill, so does the school's disciplinary power assure its
right to survive and continue operating.123 In this regard, the Court
has always recognized the right of schools to impose disciplinary
sanctions, which includes the power to dismiss or expel, on
students who violate disciplinary rules.124 In Miriam College
Foundation, Inc. v. Court of Appeals,125 this Court elucidated:
The right of the school to discipline its students is at once apparent
in the third freedom, i.e., "how it shall be taught." A school
certainly cannot function in an atmosphere of anarchy.
Thus, there can be no doubt that the establishment of an
educational institution requires rules and regulations necessary for
the maintenance of an orderly educational program and the creation
of an educational environment conducive to learning. Such rules
and regulations are equally necessary for the protection of the
students, faculty, and property.
Moreover, the school has an interest in teaching the student
discipline, a necessary, if not indispensable, value in any field of
learning. By instilling discipline, the school teaches discipline.
Accordingly, the right to discipline the student likewise finds basis
in the freedom "what to teach." Incidentally, the school not only
has the right but the duty to develop discipline in its students. The
Constitution no less imposes such duty.
[All educational institutions] shall inculcate patriotism and
nationalism, foster love of humanity, respect for human rights,
appreciation of the role of national heroes in the historical
development of the country, teach the rights and duties of
citizenship, strengthen ethical and spiritual values, develop moral
character and personal discipline, encourage critical and creative
thinking, broaden scientific and technological knowledge, and
promote vocational efficiency.
In Angeles vs. Sison, we also said that discipline was a means for
the school to carry out its responsibility to help its students "grow
and develop into mature, responsible, effective and worthy citizens
of the community."
Finally, nowhere in the above formulation is the right to discipline
more evident than in "who may be admitted to study." If a school
has the freedom to determine whom to admit, logic dictates that it
also has the right to determine whom to exclude or expel, as well
as upon whom to impose lesser sanctions such as suspension and
the withholding of graduation privileges.126
The power of the school to impose disciplinary measures extends
even after graduation for any act done by the student prior thereto.
In University of the Phils. Board of Regents v. Court of
Appeals,127 We upheld the university's withdrawal of a doctorate
degree already conferred on a student who was found to have
committed intellectual dishonesty in her dissertation. Thus:
Art. XIV, §5 (2) of the Constitution provides that "[a]cademic
freedom shall be enjoyed in all institutions of higher learning."
This is nothing new. The 1935 Constitution and the 1973
Constitution likewise provided for the academic freedom or, more
precisely, for the institutional autonomy of universities and
institutions of higher learning. As pointed out by this Court in
Garcia v. Faculty Admission Committee, Loyola School of
Theology, it is a freedom granted to "institutions of higher
learning" which is thus given "a wide sphere of authority certainly
extending to the choice of students." If such institution of higher
learning can decide who can and who cannot study in it, it certainly
can also determine on whom it can confer the honor and distinction
of being its graduates.
Where it is shown that the conferment of an honor or distinction
was obtained through fraud, a university has the right to revoke or
withdraw the honor or distinction it has thus conferred. This
freedom of a university does not terminate upon the "graduation"
of a student, .as the Court of Appeals held. For it is precisely the
"graduation" of such a student that is in question. It is noteworthy
that the investigation of private respondent's case began before her
graduation. If she was able to join the graduation ceremonies on
April 24, 1993, it was because of too many investigations
conducted before the Board of Regents finally decided she should
not have been allowed to graduate.
Wide indeed is the sphere of autonomy granted to institutions of
higher learning, for the constitutional grant of academic freedom,
to quote again from Garcia v. Faculty Admission Committee,
Loyola School of Theology, "is not to be construed in a niggardly
manner or in a grudging fashion."
Under the U.P. Charter, the Board of Regents is the highest
governing body of the University of the Philippines. It has the
power to confer degrees upon the recommendation of the
University Council. It follows that if the conferment of a degree is
founded on error or fraud, the Board of Regents is also empowered,
subject to the observance of due process, to withdraw what it has
granted without violating a student's rights. An institution of higher
learning cannot be powerless if it discovers that an academic
degree it has conferred is not rightfully deserved. Nothing can be
more objectionable than bestowing a university's highest academic
degree upon an individual who has obtained the same through
fraud or deceit. The pursuit of academic excellence is the
university's concern. It should be empowered, as an act of self-
defense, to take measures to protect itself from serious threats to its
integrity.
While it is true that the students are entitled to the right to pursue
their education, the USC as an educational institution is also
entitled to pursue its academic freedom and in the process has the
concomitant right to see to it that this freedom is not
jeopardized.128
It must be borne in mind that schools are established, not merely to
develop the intellect and skills of the studentry, but to inculcate
lofty values, ideals and attitudes; nay, the development, or
flowering if you will, of the total man.129Essentially, education
must ultimately be religious, i.e., one which inculcates duty and
reverence.130 Under the rubric of "right to education," students
have a concomitant duty to learn under the rules laid down by the
school.131 Every citizen has a right to select a profession or, course
of study, subject to fair, reasonable, and equitable admission and
academic requirements.132 The PMA is not different. As the
primary training and educational institution of the AFP, it certainly
has the right to invoke academic freedom in the enforcement of its
internal rules and regulations, which are the Honor Code and the
Honor System in particular.
The Honor Code is a set of basic and fundamental ethical and
moral principle. It is the minimum standard for cadet behavior and
serves as the guiding spirit behind each cadet's action. It is the
cadet's responsibility to maintain the highest standard of honor.
Throughout a cadet's stay in the PMA, he or she is absolutely
bound thereto. It binds as well the members of the Cadet Corps
from its alumni or the member of the so-called "Long Gray Line."
Likewise, the Honor Code constitutes the foundation for the cadets'
character development. It defines the desirable values they must
possess to remain part of the Corps; it develops the atmosphere of
trust so essential in a military organization; and it makes them
professional military soldiers.133 As it is for character building, it
107 HRLAW 08281
should not only be kept within the society of cadets. It is best
adopted by the Cadet Corps with the end view of applying it
outside as an officer of the AFP and as a product of the PMA.134
The Honor Code and System could be justified as the primary
means of achieving the cadets' character development and as ways
by which the Academy has chosen to identify those who are
deficient in conduct.135 Upon the Code rests the ethical standards of
the Cadet Corps and it is also an institutional goal, ensuring that
graduates have strong character, unimpeachable integrity, and
moral standards of the highest order.136 To emphasize, the
Academy's disciplinary system as a whole is characterized as
"correctional and educational in nature rather than being legalistic
and punitive." Its purpose is to teach the cadets "to be prepared to
accept full responsibility for all that they do or fail to do and to
place loyalty to the service above self-interest or loyalty to friends
or associates. "137Procedural safeguards in a student disciplinary
case
Respondents stress that Guzman v. National University138 is more
appropriate in determining the minimum standards for the
imposition of disciplinary sanctions in academic institutions.
Similarly, with the guideposts set in Andrews, they believe that
Cadet 1 CL Cudia was accorded due process.
On the other hand, petitioners argue that the HC, the CRAB and
the PMA fell short in observing the important safeguards laid down
in Ang Tibay v. CIR139 and Non v. Judge Dames II,140 which set
the minimum standards to satisfy the demands of procedural due
process in the imposition of disciplinary sanctions. For them,
Guzman did not entirely do away with the due process
requirements outlined in Ang Tibay as the Court merely stated that
the minimum requirements in the Guzman case are more apropos.
Respondents rightly argued.
Ateneo de Manila University v. Capulong141 already settled the
issue as it held that although both Ang Tibay and Guzman
essentially deal with the requirements of due process, the latter
case is more apropos since it specifically deals with the minimum
standards to be satisfied in the imposition of disciplinary sanctions
in academic institutions. That Guzman is the authority on the
procedural rights of students in disciplinary cases was reaffirmed
by the Court in the fairly recent case of Go v. Colegio De San Juan
De Letran.142
In Guzman, the Court held that there are minimum standards which
must be met to satisfy the demands of procedural due process, to
wit:
(1) the students must be informed in writing of the nature and
cause of any accusation against them; (2) they shall have the right
to answer the charges against them, with the assistance of counsel,
if desired; (3) they shall be informed of the evidence against them;
( 4) they shall have the right to adduce evidence in their own
behalf; and (5) the evidence must be duly considered by the
investigating committee or official designated by the school
authorities to hear and decide the case.143
We have been consistent in reminding that due process in
disciplinary cases involving students does not entail proceedings
and hearings similar to those prescribed for actions and
proceedings in courts of justice;144 that the proceedings may be
summary;145 that cross-examination is not an essential part of the
investigation or hearing;146and that the required proof in a student
disciplinary action, which is an administrative case, is neither proof
beyond reasonable doubt nor preponderance of evidence but only
substantial evidence or "such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion."147
What is crucial is that official action must meet minimum
standards of fairness to the individual, which generally encompass
the right of adequate notice and a meaningful opportunity to be
heard.148 As held in De La Salle University, Inc. v. Court of
Appeals:149
Notice and hearing is the bulwark of administrative due process,
the right to which is among the primary rights that must be
respected even in administrative proceedings. The essence of due
process is simply an opportunity to be heard, or as applied to
administrative proceedings, an opportunity to explain one's side or
an opportunity to seek reconsideration of the action or ruling
complained of. So long as the party is given the opportunity to
advocate her cause or defend her interest in due course, it cannot be
said that there was denial of due process.
A formal trial-type hearing is not, at all times and in all instances,
essential to due process - it is enough that the parties are given a
fair and reasonable opportunity to explain their respective sides of
the controversy and to present supporting evidence on which a fair
decision can be based. "To be heard" does not only mean
presentation of testimonial evidence in court - one may also be
heard through pleadings and where the opportunity to be heard
through pleadings is accorded, there is no denial of due process.150
The PMA Honor Code explicitly recognizes that an administrative
proceeding conducted to investigate a cadet's honor violation need
not be clothed with the attributes of a judicial proceeding. It
articulates that – The Spirit of the Honor Code guides the Corps in
identifying and assessing misconduct. While cadets are interested
in legal precedents in cases involving Honor violations, those who
hold the Spirit of the Honor Code dare not look into these
precedents for loopholes to justify questionable acts and they are
not to interpret the system to their own advantage.
The Spirit of the Honor Code is a way for the cadets to internalize
Honor in a substantive way. Technical and procedural misgivings
of the legal systems may avert the true essence of imparting the
Spirit of the Code for the reason that it can be used to make
unlawful attempt to get into the truth of matters especially when a
cadet can be compelled to surrender some civil rights and liberties
in order for the Code and System to be implemented. By virtue of
being a cadet, a member of the CCAFP becomes a subject of the
Honor Code and System. Cadet's actions are bound by the existing
norms that are logically applied through the Code and System in
order to realize the Academy's mission to produce leaders of
character - men of integrity and honor.151
One of the fundamental principles of the Honor System also states:
2. The Honor System correlates with legal procedures of the state's
Justice System but it does not demean its Spirit by reducing the
Code to a systematic list of externally observed rules. Where
misinterpretations and loopholes arise through legalism and its
technicalities, the objective of building the character of the cadets
becomes futile. While, generally, Public Law penalizes only the
faulty acts, the Honor System tries to examine both the action and
the intention.152
Like in other institutions of higher learning, there is aversion
towards undue judicialization of an administrative hearing in the
military academy. It has been said that the mission of the military
is unique in the sense that its primary business is to fight or be
ready to fight wars should the occasion arise, and that over-
proceduralizing military determinations necessarily gives soldiers
less time to accomplish this task.153 Extensive cadet investigations
and complex due process hearing could sacrifice simplicity,
practicality, and timeliness. Investigations that last for several days
or weeks, sessions that become increasingly involved with legal
and procedural' points, and legal motions and evidentiary
objections that are irrelevant and inconsequential tend to disrupt,
108 HRLAW 08281
delay, and confuse the dismissal proceedings and make them
unmanageable. Excessive delays cannot be tolerated since it is
unfair to the accused, to his or her fellow cadets, to the Academy,
and, generally, to the Armed Forces. A good balance should,
therefore, be struck to achieve fairness, thoroughness, and
efficiency.154 Considering that the case of Cadet 1 CL Cudia is one
of first impression in the sense that this Court has not previously
dealt with the particular issue of a dismissed cadet's right to due
process, it is necessary for Us to refer to U.S. jurisprudence for
some guidance. Notably, our armed forces have been patterned
after the U.S. Army and the U.S. military code produced a salutary
effect in the military justice system of the Philippines.155 Hence,
pertinent case laws interpreting the U.S. military code and practices
have persuasive, if not the same, effect in this jurisdiction.
We begin by stating that U.S. courts have uniformly viewed that
"due process" is a flexible concept, requiring consideration in each
case of a variety of circumstances and calling for such procedural
protections as the particular situation demands.156 Hagopian
opined:
In approaching the question of what process is due before
governmental action adversely affecting private interests may
properly be taken, it must be recognized that due process is not a
rigid formula or simple rule of thumb to be applied undeviatingly
to any given set of facts. On the contrary, it is a flexible concept
which depends upon the balancing of various factors, including the
nature of the private right or interest that is threatened, the extent to
which the proceeding is adversarial in character, the severity and
consequences of any action that might be taken, the burden that
would be imposed by requiring use of all or part of the full panoply
of trial-type procedures, and the existence of other overriding
interests, such as the necessity for prompt action in the conduct of
crucial military operations. The full context must therefore be
considered in each case.157 (Emphasis supplied)
Wasson, which was cited by Hagopian, broadly outlined the
minimum standards of due process required in the dismissal of a
cadet. Thus:
[W]hen the government affects the private interests of individuals,
it may not proceed arbitrarily but must observe due process of law.
x x x Nevertheless, the flexibility which is inherent in the concept
of due process of law precludes the dogmatic application of
specific rules developed in one context to entirely distinct forms of
government action. "For, though 'due process of law' generally
implies and includes actor, reus, judex, regular allegations,
opportunity to answer, and a trial according to some settled course
of judicial proceedings, * * * yet, this is not universally true." x x x
Thus, to determine in any given case what procedures due process
requires, the court must carefully determine and balance the nature
of the private interest affected and of the government interest
involved, taking account of history and the precise circumstances
surrounding the case at hand.
While the government must always have a legitimate concern with
the subject matter before it may validly affect private interests, in
particularly vital and sensitive areas of government concern such as
national security and military affairs, the private interest must yield
to a greater degree to the governmental. x x x Few decisions
properly rest so exclusively within the discretion of the appropriate
government officials than the selection, training, discipline and
dismissal of the future officers of the military and Merchant
Marine. Instilling and maintaining discipline and morale in these
young men who will be required to bear weighty responsibility in
the face of adversity -- at times extreme -- is a matter of substantial
national importance scarcely within the competence of the
judiciary. And it cannot be doubted that because of these factors
historically the military has been permitted greater freedom to
fashion its disciplinary procedures than the civilian authorities.
We conclude, therefore, that due process only requires for the
dismissal of a Cadet from the Merchant Marine Academy that he
be given a fair hearing at which he is apprised of the charges
against him and permitted a defense. x x x For the guidance of the
parties x x x the rudiments of a fair hearing in broad outline are
plain. The Cadet must be apprised of the specific charges against
him. He must be given an adequate opportunity to present his
defense both from the point of view of time and the use of
witnesses and other evidence. We do not suggest, however, that the
Cadet must be given this opportunity both when demerits are
awarded and when dismissal is considered. The hearing may be
procedurally informal and need not be adversarial.158 (Emphasis
supplied)
In Andrews, the U.S. Court of Appeals held that Wasson and
Hagopian are equally controlling in cases where cadets were
separated from the military academy for violation of the Honor
Code. Following the two previous cases, it was ruled that in order
to be proper and immune from constitutional infirmity, a cadet who
is sought to be dismissed or separated from the academy must be
afforded a hearing, be apprised of the specific charges against him,
and be given an adequate opportunity to present his or her defense
both from the point of view of time and the use of witnesses and
other evidence.159 Conspicuously, these vital conditions are not too
far from what We have already set in Guzman and the subsequent
rulings in Alcuaz v. Philippine School of Business
Administration160 and De La Salle University, Inc. v. Court of
Appeals.161
In this case, the investigation of Cadet 1 CL Cudia' s Honor Code
violation followed the prescribed procedure and existing practices
in the PMA. He was notified of the Honor Report from Maj.
Hindang. He was then given the opportunity to explain the report
against him. He was informed about his options and the entire
process that the case would undergo. The preliminary investigation
immediately followed after he replied and submitted a written
explanation. Upon its completion, the investigating team submitted
a written report together with its recommendation to the HC
Chairman. The HC thereafter reviewed the findings and
recommendations. When the honor case was submitted for formal
investigation, a new team was assigned to conduct the hearing.
During the formal investigation/hearing, he was informed of the
charge against him and given the right to enter his plea. He had the
chance to explain his side, confront the witnesses against him, and
present evidence in his behalf. After a thorough discussion of the
HC voting members, he was found to have violated the ' Honor
Code. Thereafter, the guilty verdict underwent the review process
at the Academy level - from the OIC of the HC, to the SJA, to the
Commandant of Cadets, and to the PMA Superintendent. A
separate investigation was also conducted by the HTG. Then, upon
the directive of the AFP-GHQ to reinvestigate the case, a review
was conducted by the CRAB. Further, a Fact-Finding
Board/Investigation Body composed of the CRAB members and
the PMA senior officers was constituted to conduct a deliberate
investigation of the case. Finally, he had the opportunity to appeal
to the President. Sadly for him, all had issued unfavorable rulings.
It is well settled that by reason of their special knowledge and
expertise gained from the handling of specific matters falling under
their respective jurisdictions, the factual findings of administrative
tribunals are ordinarily accorded respect if not finality by the
Court, unless such findings are not supported by evidence or
vitiated by fraud, imposition or collusion; where the procedure
which led to the findings is irregular; when palpable errors are
committed; or when a grave abuse of discretion, arbitrariness, or
capriciousness is manifest.162 In the case of Cadet 1 CL Cudia, We
find no reason to deviate from the general rule. The grounds
therefor are discussed below seriatim:
As to the right to be represented by a counsel –
109 HRLAW 08281
For petitioners, respondents must be compelled to give Cadet 1 CL
Cudia the right to be represented by a counsel who could actively
participate in the proceedings like in the cross-examination of the
witnesses against him before the CRAB or HC, if remanded. This
is because while the CRAB allowed him to be represented by a
PAO lawyer, the counsel was only made an observer without any
right to intervene and demand respect of Cadet 1 CL Cudia's
rights.163 According to them, he was not sufficiently given the
opportunity to seek a counsel and was not even asked if he would
like to have one. He was only properly represented when it was
already nearing graduation day after his family sought the
assistance of the PAO. Petitioners assert that Guzman is specific in
stating that the erring student has the right to answer the charges
against him or her with the assistance of counsel, if desired.
On the other hand, respondents cited Lumiqued v. Exevea164 and
Nera v. The Auditor General165 in asserting that the right to a
counsel is not imperative in administrative investigations or non-
criminal proceedings. Also, based on Cadet lCL Cudia's academic
standing, he is said to be obviously not untutored to fully
understand his rights and express himself. Moreover, the
confidentiality of the HC proceedings worked against his right to
be represented by a counsel. In any event, respondents claim that
Cadet 1 CL Cudia was not precluded from seeking a counsel's
advice in preparing his defense prior to the HC hearing.
Essentially, petitioners claim .. that Cadet lCL Cudia is guaranteed
the right to have his counsel not just in assisting him in the
preparation for the investigative hearing before the HC and the
CRAB but in participating fully in said hearings. The Court
disagrees.
Consistent with Lumiqued and Nera, there is nothing in the 1987
Constitution stating that a party in a non-litigation proceeding is
entitled to be represented by counsel. The assistance of a lawyer,
while desirable, is not indispensable. Further, in Remolona v. Civil
Service Commission,166 the Court held that "a party in an
administrative inquiry may or may not be assisted by counsel,
irrespective of the nature of the charges and of the respondent's
capacity to represent himself, and no duty rests on such body to
furnish the person being investigated with counsel." Hence, the
administrative body is under no duty to provide the person with
counsel because assistance of counsel is not an absolute
requirement.
More in point is the opinion in Wasson, which We adopt. Thus:
The requirement of counsel as an ingredient of fairness is a
function of all of the other aspects of the hearing. Where the
proceeding is non-criminal in nature, where the hearing is
investigative and not adversarial and the government does not
proceed through counsel, where the individual concerned is mature
and educated, where his knowledge of the events x x x should
enable him to develop the facts adequately through available
sources, and where the other aspects of the hearing taken as a
whole are fair, due process does not require representation by
counsel.167
To note, U.S. courts, in general, have declined to recognize a right
to representation by counsel, as a function of due process, in
military academy disciplinary proceedings.168 This rule is
principally motivated by the policy of "treading lightly on the
military domain, with scrupulous regard for the power and
authority of the military establishment to govern its own affairs
within the broad confines of constitutional due process" and the
courts' views that disciplinary proceedings are not judicial in nature
and should be kept informal, and that literate and educated cadets
should be able to defend themselves.169 In Hagopian, it was ruled
that the importance of informality in the proceeding militates
against a requirement that the cadet be accorded the right to
representation by counsel before the Academic Board and that
unlike the welfare recipient who lacks the training and education
needed to understand his rights and express himself, the cadet
should be capable of doing so.170 In the subsequent case of
Wimmer v. Lehman,171 the issue was not access to counsel but the
opportunity to have counsel, instead of oneself, examine and cross-
examine witnesses, make objections, and argue the case during the
hearing. Disposing of the case, the U.S. Court of Appeals for the
Fourth Circuit was not persuaded by the argument that an
individual of a midshipman's presumed intelligence, selected
because he is expected to be able to care for himself and others,
often under difficult circumstances, and who has full awareness of
what he is facing, with counsel's advice, was deprived of due
process by being required to present his defense in person at an
investigatory hearing.
In the case before Us, while the records are bereft of evidence that
Cadet 1 CL Cudia was given the option or was able to seek legal
advice prior to and/or during the HC hearing, it is indubitable that
he was assisted by a counsel, a PAO lawyer to be exact, when the
CRAB reviewed and reinvestigated the case. The requirement of
due process is already satisfied since, at the very least, the counsel
aided him in the drafting and filing of the Appeal Memorandum
and even acted as an observer who had no right to actively
participate in the proceedings (such as conducting the cross-
examination). Moreover, not to be missed out are the facts that the
offense committed by Cadet 1 CL Cudia is not criminal in nature;
that the hearings before the HC and the CRAB were investigative
and not adversarial; and that Cadet lCL Cudia's excellent-academic
standing puts him in the best position to look after his own vested
interest in the Academy.
As to the confidentiality of records of the proceedings –
Petitioners allege that when Maj. Gen. Lopez denied in his March
11, 2014 letter Cadet lCL Cudia's request for documents, footages,
and recordings relevant to the HC hearings, the vital evidence
negating the regularity of the HC trial and supporting his defense
have been surely overlooked by the CRAB in its case review.
Indeed, for them, the answers on whether Cadet 1 CL Cudia was
deprived of due process and whether he lied could easily be
unearthed from the video and other records of the HC
investigation. Respondents did not deny their existence but they
refused to present them for the parties and the Court to peruse. In
particular, they note that the Minutes of the HC dated January 21,
2014 and the HC Formal Investigation Report dated January 20,
2014 were considered by the CRAB but were not furnished to
petitioners and the Court; hence, there is no way to confirm the
truth of the alleged statements therein. In their view, failure to
furnish these documents could only mean that it would be adverse
if produced pursuant to Section 3 (e), Rule 131 of the Rules of
Court.172
For lack of legal basis on PMA' s claim of confidentiality of
records, petitioners contend that it is the ministerial duty of the HC
to submit to the CRAB, for the conduct of intelligent review of the
case, all its records of the proceedings, including video footages of
the deliberations and voting. They likewise argue that PMA' s
refusal to release relevant documents to Cadet 1 CL Cudia under
the guise of confidentiality reveals another misapplication of the
Honor Code, which merely provides: "A cadet who becomes part
of any investigation is subject to the existing regulations pertaining
to rules of confidentiality and, therefore, must abide to the creed of
secrecy. Nothing shall be disclosed without proper guidance from
those with authority" (IV. The Honor System, Honor Committee,
Cadet Observer). This provision, they say, does not deprive Cadet
1 CL Cudia of his right to obtain copies and examine relevant
documents pertaining to his case.
Basically, petitioners want Us to assume that the documents,
footages, and recordings relevant to the HC hearings are favorable
to Cadet 1 CL Cudia's cause, and, consequently, to rule that
110 HRLAW 08281
respondents' refusal to produce and have them examined is
tantamount to the denial of his right to procedural due process.
They are mistaken.
In this case, petitioners have not particularly identified any
documents, witness testimony, or oral or written presentation of
facts submitted at the hearing that would support Cadet 1 CL
Cudia's defense. The Court may require that an administrative
record be supplemented, but only "where there is a 'strong showing
or bad faith or improper behavior' on the part of the
agency,"173 both of which are not present here. Petitioners have not
specifically indicated the nature of the concealed evidence, if any,
and the reason for withholding it. What they did was simply
supposing that Cadet 1 CL Cudia's guilty verdict would be
overturned with the production and examination of such
documents, footages, and recordings. As will be further shown in
the discussions below, the requested matters, even if denied, would
not relieve Cadet 1 CL Cudia's predicament. If at all, such denial
was a harmless procedural error since he was not seriously
prejudiced thereby.
As to the ostracism in the PMA –
To petitioners, the CRAB considered only biased testimonies and
evidence because Special Order No. 1 issued on February 21, 2014,
which directed the ostracism of Cadet 1 CL Cudia, left him without
any opportunity, to secure statements of his own witnesses. He
could not have access to or approach the cadets who were present
during the trial and who saw the 8-1 voting result. It is argued that
the Order directing Cadet 1 CL Cudia's ostracism is of doubtful
legal validity because the Honor Code unequivocally announced:
"x x x But by wholeheartedly dismissing the cruel method of
ostracizing Honor Code violators, PMA will not have to resort to
other humiliating means and shall only have the option to make
known among its alumni the names of those who have not
sincerely felt remorse for violating the Honor Code."
On their part, respondents assert that neither the petition nor the
petition-in-intervention attached a full text copy of the alleged
Special Order No. 1. In any case, attributing its issuance to PMA is
improper and misplaced because of petitioners' admission that
ostracism has been absolutely dismissed as an Academy-sanctioned
activity consistent with the trend in International Humanitarian
Law that the PMA has included in its curriculum. Assuming that
said Order was issued, respondents contend that it purely
originated from the cadets themselves, the sole purpose of which
was to give a strong voice to the Cadet Corps by declaring that they
did not tolerate Cadet 1 CL Cudia's honor violation and breach of
confindentiality of the HC proceedings.
More importantly, respondents add that it is highly improbable and
unlikely that Cadet 1 CL Cudia was ostracized by his fellow
cadets. They manifest that as early as January 22, 2014, he was
already transferred to the Holding Center. The practice of billeting
an accused cadet at the Holding Center is provided for in the Honor
Code Handbook. Although within the PMA compound, the
Holding Center is off-limits to cadets who do not have any
business to conduct therein. The cadets could not also ostracize
him during mess times since Cadet 1 CL Cudia opted to take his
meals at the Holding Center. The circumstances obtaining when
Special Order No. 1 was issued clearly foreclose the possibility that
he was ostracized in common areas accessible to other cadets. He
remained in the Holding Center until March 16, 2014 when he
voluntarily left the PMA. Contrary to his claim, guests were also
free to visit him in the Holding Center.
However, petitioners swear that Cadet 1 CL Cudia suffered from
ostracism in the PMA. The practice was somehow recognized by
respondents in their Consolidated Comment and by PMA
Spokesperson Maj. Flores in a news report. The CHR likewise
confirmed the same in its Resolution dated May 22, 2014. For
them, it does not matter where the ostracism order originated from
because the PMA appeared to sanction it even if it came from the
cadets themselves. There was a tacit approval of an illegal act. If
not, those cadets responsible for ostracism would have been
charged by the PMA officials. Finally, it is claimed that Cadet 1
CL Cudia did not choose to take his meals at the Holding Center as
he was not allowed to leave the place. Petitioners opine that
placing the accused cadet in the Holding Center is inconsistent
with his or her presumed innocence and certainly gives the
implication of ostracism.
We agree with respondents. Neither the petition nor the petition-
inintervention attached a full text copy or even a pertinent portion
of the alleged Special Order No. 1, which authorized the ostracism
of Cadet 1 CL Cudia. Being hearsay, its existence and contents are
of doubtful veracity. Hence, a definite ruling on the matter can
never be granted in this case.
The Court cannot close its eyes though on what appears to be an
admission of Cadet 1 CL Mogol during the CHR hearing that, upon
consultation with the entire class, the baron, and the Cadet Conduct
Policy Board, they issued an ostracism order against Cadet 1 CL
Cudia.174 While not something new in a military
academy,175 ostracism's continued existence in the modem times
should no longer be countenanced. There are those who argue that
the "silence" is a punishment resulting in the loss of private
interests, primarily that of reputation, and that such penalty may
render illusory the possibility of vindication by the reviewing body
once found guilty by the HC.176 Furthermore, in Our mind,
ostracism practically denies the accused cadet's protected rights to
present witnesses or evidence in his or her behalf and to be
presumed innocent until finally proven otherwise in a proper
proceeding.
As to Cadet 1 CL Cudia's stay in the Holding Center, the Court
upholds the same. The Honor Code and Honor System Handbook
provides that, in case a cadet has been found guilty by the HC of
violating the Honor Code and has opted not to resign, he or she
may stay and wait for the disposition of the case. In such event, the
cadet is not on full-duty status and shall be billeted at the HTG
Holding Center.177 Similarly, in the U.S., the purpose of "Boarders
Ward" is to quarter those cadets who are undergoing separation
actions. Permitted to attend classes, the cadet is sequestered ,
therein until final disposition of the case. In Andrews, it was
opined that the segregation of cadets in the Ward was a proper
exercise of the discretionary authority of Academy officials. It
relied on the traditional doctrine that "with respect to decisions
made by Army authorities, 'orderly government requires us to tread
lightly on the military domain, with scrupulous regard for the
power and authority of the military establishment to govern its own
affairs within the broad confines of constitutional due process.'"
Also, in Birdwell v. Schlesinger,178 the "administrative
segregation" was held to be a reasonable exercise of military
discipline and could not be considered an invasion of the rights to
freedom of speech and freedom of association.
Late and vague decisions –
It is claimed that Cadet 1 CL Cudia was kept in the dark as to the
charge against him and the decisions arrived at by the HC, the
CRAB, and the PMA. No written decision was furnished to him,
and if any, the information was unjustly belated and the
justifications for the decisions were vague. He had to constantly
seek clarification and queries just to be apprised of what he was
confronted with.
Petitioners relate that upon being informed of the "guilty" verdict,
Cadet 1 CL Cudia immediately inquired as to the grounds therefor,
but Cadet 1 CL Mogol answered that it is confidential since he
would still appeal the same. By March 11, 2014, Maj. Gen. Lopez
informed Cadet 1 CL Cudia that the CRAB already forwarded their
111 HRLAW 08281
recommendation for his dismissal to the General Headquarters
sometime in February-March 2014. Even then, he received no
decision/recommendation on his case, verbally or in writing. The
PMA commencement exercises pushed through with no written
decision from the CRAB or the PMA on his appeal. The letter from
the Office of the Adjutant General of the AFP was suspiciously
delayed when the Cudia family received the same only on March
20, 2014. Moreover, it fell short in laying down with specificity the
factual and legal bases used by the CRAB and even by the Office
of the Adjutant General. There remains no proof that the CRAB
and the PMA considered the evidence presented by Cadet 1 CL
Cudia, it being uncertain as to what evidence was weighed by the
CRAB, whether the same is substantial, and whether the new
evidence submitted by him was ever taken into account.
In refutation, respondents allege the existence of PMA's· practice
of orally declaring the HC finding, not putting it in a written
document so as to protect the integrity of the erring cadet and
guard the confidentiality of the HC proceedings pursuant to the
Honor System. Further, they aver that a copy of the report of the
CRAB, dated March 10, 2014, was not furnished to Cadet 1 CL
Cudia because it was his parents who filed the appeal, hence, were
the ones who were given a copy thereof.
Petitioners' contentions have no leg to stand on. While there is a
constitutional mandate stating 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,"179 such provision does not
apply in Cadet 1 CL Cudia's case. Neither Guzman nor Andrews
require a specific form and content of a decision issued in
disciplinary proceedings. The Honor Code and Honor System
Handbook also has no written rule on the matter. Even if the
provision applies, nowhere does it demand that a point-by-point
consideration and resolution of the issues raised by the parties are
necessary.180 What counts is that, albeit furnished to him late,
Cadet 1 CL Cudia was informed of how it was decided, with an
explanation of the factual and legal reasons that led to the
conclusions of the reviewing body, assuring that it went through
the processes of legal reasoning. He was not left in the dark as to
how it was reached and he knows exactly the reasons why he lost,
and is able to pinpoint the possible errors for review.
As to the blind adoption of the HC findings –
Petitioners assert that, conformably with Sections 30 and 31 of
C.A. No. 1, only President Aquino as the Commander-in-Chief has
the power to appoint and remove a cadet for a valid/legal cause.
The law gives no authority to the HC as the sole body to determine
the guilt or innocence of a cadet. It also does not empower the
PMA to adopt the guilty findings of the HC as a basis for
recommending the cadet's dismissal. In the case of Cadet 1 CL
Cudia, it is claimed that the PMA blindly followed the HC's
finding of guilt in terminating his military service.
Further, it is the ministerial duty of the CRAB to conduct a review
de nova of all records without requiring Cadet 1 CL Cudia to
submit new evidence if it is physically impossible for him to do so.
In their minds, respondents cannot claim that the CRAB and the
PMA thoroughly reviewed the HC recommendation and heard
Cadet lCL Cudia's side. As clearly stated in the letter from the
Office of the AFP Adjutant General, "[in] its report dated March
10, 2014, PMA CRAB sustained the findings and
recommendations of the Honor Committee x x x It also resolved
the appeal filed by the subject Cadet." However, the Final
Investigation Report of the CRAB was dated March 23, 2014.
While such report states that a report was submitted to the AFP
General Headquarters on March 10, 2014 and that it was only on
March 12, 2014 that it was designated as a Fact-Finding
Board/Investigating Body, it is unusual that the CRAB would do
the same things twice. This raised a valid and well-grounded
suspicion that the CRAB never undertook an in-depth
investigation/review the first time it came out with its report, and
the Final Investigation Report was drafted merely as an
afterthought when the lack of written decision was pointed out by
petitioners so as to remedy the apparent lack of due process during
the CRAB investigation and review.
Despite the arguments, respondents assure that there was a proper
assessment of the procedural and legal correctness of the guilty
verdict against Cadet 1 CL Cudia. They assert that the higher
authorities of the PMA did not merely rely on the findings of the
HC, noting that there was also a separate investigation conducted
by the HTG from January 25 to February 7, 2014. Likewise,
contrary to the contention of petitioners that the CRAB continued
with the review of the case despite the absence of necessary
documents, the CRAB conducted its own review of the case and
even conducted another investigation by constituting the Fact-
Finding Board/Investigating Body. For respondents, petitioners
failed to discharge the burden of proof in showing bad faith on the
part of the PMA. In the absence of evidence to the contrary and
considering further that petitioners' allegations are merely self-
serving and baseless, good faith on the part of the PMA' s higher
authorities is presumed and should, therefore, prevail.
We agree with respondents.
The Honor Committee, acting on behalf of the Cadet Corps, has a
limited role of investigating and determining whether or not the
alleged offender has actually violated the Honor Code.181 It is
given the responsibility of administering the Honor Code and, in
case of breach, its task is entirely investigative, examining in the
first instance a suspected violation. As a means of encouraging
self-discipline, without ceding to it any authority to make final
adjudications, the Academy has assigned it the function of
identifying suspected violators.182 Contrary to petitioners' assertion,
the HC does not have the authority to order the separation of a
cadet from the Academy. The results of its proceedings are purely
recommendatory and have no binding effect. The HC
determination is somewhat like an indictment, an allegation, which,
in Cadet 1 CL Cudia's case, the PMA-CRAB investigated de
novo.183 In the U.S., it was even opined that due process safeguards
do not actually apply at the Honor Committee level because it is
only a "charging body whose decisions had no effect other than to
initiate de nova proceedings before a Board of Officers."184
Granting, for argument's sake, that the HC is covered by the due
process clause and that irregularities in its proceedings were in fact
committed, still, We cannot rule for petitioners. It is not required
that procedural due process be afforded at every stage of
developing disciplinary action. What is required is that an adequate
hearing be held before the final act of dismissing a cadet from the
military academy.185 In the case of Cadet 1 CL Cudia, the OIC of
HC, the SJA, the Commandant of Cadets, and the PMA
Superintendent reviewed the HC findings. A separate investigation
was also conducted by the HTG. Then, upon the directive of the
AFP-GHQ to reinvestigate the case, a review was conducted by the
CRAB. Finally, a Fact-Finding Board/Investigating Body
composed of the CRAB members and the PMA senior officers was
constituted to conduct a deliberate investigation of the case. The
Board/Body actually held hearings on March 12, 13, 14 and 20,
2014. Instead of commendation, petitioners find it "unusual" that
the CRAB would do the same things twice and suspect that it never
undertook an in-depth investigation/review the first time it came
out with its report. Such assertion is mere conjecture that deserves
scant consideration.
As to the dismissal proceedings as sham trial –
According to petitioners, the proceedings before the HC were a
sham. The people behind Cadet ICL Cudia's charge, investigation,
and conviction were actually the ones who had the intent to deceive
and who took advantage of the situation. Cadet 1 CL Raguindin,
112 HRLAW 08281
who was a senior HC member and was the second in rank to Cadet
1 CL Cudia in the Navy cadet 1 CL, was part of the team which
conducted the preliminary investigation. Also, Cadet I CL Mogol,
the HC Chairman, previously charged Cadet 1 CL Cudia with
honor violation allegedly for cheating (particularly, conniving with
and tutoring his fellow cadets on a difficult topic by giving
solutions to a retake exam) but the charge was dismissed for lack
of merit. Even if he was a non-voting member, he was in a position
of influence and authority. Thus, it would be a futile exercise for
Cadet 1 CL Cudia to resort to the procedure for the removal of HC
members.186
Further, no sufficient prior notice of the scheduled CRAB hearing
was given to Cadet I CL Cudia, his family, or his PAO counsel.
During one of her visits to him in the Holding Center, petitioner-
intervenor was advised to convince his son to resign and
immediately leave the PMA. Brig. Gen. Costales, who later
became the CRAB Head, also categorically uttered to Annavee:
"Your brother, he lied!" The CRAB conferences were merely used
to formalize his dismissal and the PMA never really intended to
hear his side. For petitioners, these are manifestations of PMA's
clear resolve to dismiss him no matter what.
For their part, respondents contend that the CllR's allegation that
Maj. Hindang acted in obvious bad faith and that he failed to
discharge his duty to be a good father of cadets when he "paved the
road to [Cadet 1 CL Cudia's] sham trial by the Honor Committee"
is an unfounded accusation. They note that when Maj. Hindang
was given the DR of Cadet 1 CL Cudia, he revoked the penalty
awarded because of his explanation. However, all revocations of
awarded penalties are subject to the review of the STO. Therefore,
it was at the instance of Maj. Leander and the established
procedure followed at the PMA that Maj. Hindang was prompted
to investigate the circumstances surrounding Cadet 1 CL Cudia's
tardiness. Respondents add that bad faith cannot likewise be
imputed against Maj. Hindang by referring to the actions taken by
Maj. Jekyll Dulawan, the CTO of Cadets 1 CL Narciso and
Arcangel who also arrived late for their next class. Unlike the other
cadets, Cadet 1 CL Cudia did not admit his being late and
effectively evaded responsibility by ascribing his tardiness to Dr.
Costales.
As to the CHR' s finding that Cadet 1 CL Mogol was likewise "in
bad faith and determined to destroy [Cadet 1 CL] Cudia, for
reasons of his own" because the former previously reported the
latter for an honor violation in November 2013, respondents argue
that the bias ascribed against him is groundless as there is failure to
note that Cadet 1 CL Mogol was a non-voting member of the HC.
Further, he cannot be faulted for reporting a possible honor
violation since he is the HC Chairman and nothing less is expected
of him. Respondents emphasize that the representatives of the HC
are elected from each company, while the HC Chairman is elected
by secret ballot from the incoming first class representatives. Thus,
if Cadet 1 CL Cu'dia believed that there was bias against him, he
should have resorted to the procedure for the removal of HC
members provided for in the Honor Code Handbook.
Finally, respondents declare that there is no reason or ill-motive on
the part of the PMA to prevent Cadet 1 CL Cudia from graduating
because the Academy does not stand to gain anything from his
dismissal. On the contrary, in view of his academic standing, the
separation militates against PMA' s mission to produce
outstanding, honorable, and exceptional cadets.
The Court differs with petitioners.
Partiality, like fraudulent intent, can never be presumed. Absent
some showing of actual bias, petitioners' allegations do not hold
water. The mere imputation of ill-motive without proof is
speculative at best. Kolesa teaches us that to sustain the challenge,
specific evidence must be presented to overcome
a presumption of honesty and integrity in those serving as
adjudicators; and it must convince that, under a realistic appraisal
of psychological tendencies and human weaknesses, conferring
investigative and adjudicative powers on the same individual poses
such a risk of actual bias or prejudgment that the practice must be
forbidden if the guarantee of due process is to be implemented. 187
Although a CTO like Maj. Hindang must decide whether demerits
are to be awarded, he is not an adversary of the cadet but an
educator who shares an identity of interest with the cadet, whom he
counsels from time to time as a future leader.188 When the occasion
calls for it, cadets may be questioned as to the accuracy or
completeness of a submitted work. A particular point or issue may
be clarified. In this case, the question asked of Cadet 1 CL Cudia
concerning his being late in class is proper, since there is evidence
indicating that a breach of regulation may have occurred and there
is reasonable cause to believe that he was involved in the breach of
regulations.189
For lack of actual proof of bad faith or ill-motive, the Court shall
rely on the non-toleration clause of the Honor Code, i.e., "We do
not tolerate those who violate the Code." Cadets are reminded that
they are charged with a tremendous duty far more superior to their
personal feeling or friendship.190 They must learn to help others by
guiding them to accept the truth and do what is right, rather than
tolerating actions against truth and justice.191 Likewise, cadets are
presumed to be characteristically honorable; they cannot overlook
or arbitrarily ignore the dishonorable action of their peers, seniors,
or subordinates.192 These are what Cadet 1 CL Mogol exactly did,
although he was later proven to have erred in his accusation. Note
that even the Honor Code and Honor System Handbook recognizes
that interpretation of one's honor is generally subjective.193
Moreover, assuming, for the sake of argument, that Cadets 1 CL'
Raguindin and Mogol as well as Brig. Gen. Costales have an axe to
grind against Cadet 1 CL Cudia and were bent on causing, no
matter what, the latter's downfall, their nefarious conduct would
still be insignificant. This is so since the HC (both the preliminary
and formal investigation), the CRAB, and the Fact-Finding
Board/Investigating Body are collegial bodies. Hence, the claim
that the proceedings/hearings conducted were merely a farce
because the three personalities participated therein is tantamount to
implying the existence of a conspiracy, distrusting the competence,
independence, and integrity of the other members who constituted
the majority. Again, in the absence of specifics and substantial
evidence, the Court cannot easily give credence to this baseless
insinuation.
As to the HC executive session/chambering –
Petitioners narrate that there was an irregular administrative
hearing in the case of Cadet 1 CL Cudia because two voting rounds
took place. After the result of the secret balloting, Cadet 1 CL
Mogol ordered the voting members to go to a room without the
cadet recorders. Therein, the lone dissenter, Cadet lCL Lagura, was
asked to explain his "not guilty" vote. Pressured to change his vote,
he was made to cast a new one finding Cadet 1 CL Cudia guilty.
The original ballot was discarded and replaced. There was no
record of the change in vote from 8-1 to 9-0 that was mentioned in
the HC formal report.
The Affidavit of Commander Junjie B. Tabuada executed on
March 6, 2014 was submitted by petitioners since he purportedly
recalled Cadet 1 CL Lagura telling him that he was pressured to
change his "not guilty" vote after the voting members were
"chambered." In the sworn statement, Commander Tabuada said:
1. That after CDT lCL CUDIA [was] convicted for honor
violation, I [cannot] remember exactly the date but
sometime in the morning of 23rd or 24th of January
2014, I was in my office filling up forms for the renewal
113 HRLAW 08281
of my passport, CDT 1CL LAGURA entered and had
business with my staff;
2. When he was about to leave I called him. "Lags, halika
muna dito," and he approached me and I let him sit down
on the chair in front of my table. I told and asked him,
"Talagang nadali si Cudia ah ... ano ha ang nangyari?
Mag-Tagalog or mag-Bisaya ka." He replied, "Talagang
NOT GUILTY ang vote ko sa kanya sir", and I asked
him, "Oh, bakit naging guilty di ha pag may isang nag
NOT GUILTY, abswelto na? He replied "Chinamber ako
sir, bale pinapa-justify kung bakit NOT GUILTY vote
ko, at na-pressure din ako sir kaya binago ko, sir." So, I
told him, "Sayang sya, matalino at mabait pa naman" and
he replied "oo nga sir". After that conversation, I let him
go.194
It is claimed that the HC gravely abused its discretion when it
committed voting manipulation since, under the rules, it is required
to have a unanimous nine (9) votes finding an accused cadet guilty.
There is nothing in the procedure that permits the HC Chairman to
order the "chambering" of a member who voted contrary to the
majority and subjects him or her to reconsider in order to reflect a
unanimous vote. Neither is there an order from the Chief of Staff or
the President sanctioning the HC procedure or approving any
change therein pursuant to Sections 30 and 31 of C.A. No. 1. The
HC, the CRAB, and the PMA violated their own rules and
principles as embodied in the Honor Code. Being a clear deviation
from the established procedures, the second deliberation should be
considered null and void.
Petitioners further contend that the requirement of unanimous vote
involves a substantive right which cannot be unceremoniously
changed without a corresponding amendment/revision in the Honor
Code and Honor System Handbook. In their view, "chambering"
totally defeats the purpose of voting by secret ballot as it glaringly
destroys the very essence and philosophy behind the provisions of
the Honor System, which is to ensure that the voting member is
free to vote what is in his or her heart and mind and that no one can
pressure or persuade another to change his or her vote. They
suggest that if one voting member acquits an accused cadet who is
obviously guilty of the offense, the solution is to remove him or her
from the HC through the vote of non-confidence as provided for in
the Honor Code.195 Anent the above arguments, respondents
contend that a distinction must be made between the concepts of
the Honor Code and the Honor System. According to them, the
former sets the standard for a cadet's, minimum ethical and moral
behavior and does not change, while the latter is a set of rules for
the conduct of the observance and implementation of the· Honor
Code and may undergo necessary adjustments as may be warranted
by the incumbent members of the HC in order to be more
responsive to the moral training and character development of the
cadets. The HC may provide guidelines when the Honor System
can be used to supplement regulations. This being so, the voting
process is continuously subject to change.
Respondents note that, historically, a non-unanimous guilty verdict
automatically acquits a cadet from the charge of Honor violation.
The voting members only write either "guilty" or "not guilty" in the
voting sheets without stating their name or their justification.
However, this situation drew criticisms since there were instances
where a reported cadet already admitted his honor violation but
was acquitted due to the lone vote of a sympathetic voting member.
In the case of Cadet 1 CL Cudia, the HC adopted an existing
practice that should the voting result in 7-2 or 8-1 the HC would
automatically sanction a jury type of discussion called "executive
session" or "chambering," which is intended to elicit the
explanation and insights of the voting member/s. This prevents the
tyranny of the minority or lone dissenter from prevailing over the
manifest proof of guilt. The assailed voting practice has been
adopted and widely accepted by the PMA Siklab Diwa Class of
2014 since their first year in the Academy. The allegations of
conspiracy and sham trial are, therefore, negated by the fact that
such practice was in place and applied to all cases of honor
violations, not solely to the case of Cadet 1CL Cudia.
It is emphasized by respondents that any decision to change vote
rests solely on the personal conviction of the dissenter/s, without
any compulsion from the other voting members. There can also be
no pressuring to change one's vote to speak of since a vote may
only be considered as final when the Presiding Officer has affixed
his signature.
To debunk Commander Tabuada's statements, respondents raise
the argument that the Fact-Finding Board/Investigating Body
summoned Cadet 1 CL Lagura for inquiry. Aside from his oral
testimony made under oath, he submitted to the Board/Body an
affidavit explaining that:
11. Sometime on 23rd or 24th of January 2014, I went to the
Department of Naval Warfare to ask permission if it is possible not
to attend the Navy duty for the reason that I will be attending our
baseball game outside the Academy.
12. After I was permitted not to attend my Navy Duty and when I
was about to exit out of the Office, CDR JUNJIE B T ABU ADA
PN, our Head Department Naval Warfare Officer, called my
attention. I approached him and he said: "Talagang nadali si Cudia
ah. Ano ba talaga ang nangyari?" At first, I was hesitant to answer
because of the confidentiality of the Honor Committee
proceedings. He again said: "Wag kang mag-alala, atin, atin lang
ito, alam ko naman na bawal magsabi." Then I answered: "Ako
yung isang not guilty Sir. Kaya [yung] Presiding Officer nagsabi na
pumunta muna kami sa Chamber. Nung nasa chamber kami,
nagsalita [yung] mga nagvote ng Guilty tapos isa-isa nagsabi kung
bakit ang boto nila Guilty. Nung pakinggan ko, eh naliwanagan
ako. Pinalitan ko yung boto ko from Not Guilty to Guilty Sir." He
replied: "Sayang si Cudia ano?" And I said: "Oo nga sir, [s]ayang
si Cudia, mabait pa naman at matalino."196
Cadet 1 CL Lagura restated the above in the Counter-Affidavit
executed on March 12, 2014, which he submitted before the CHR
wherein he attested to the following:
3. I was chosen to be a voting member of the Honor
Committee for Honor Code violation committed by
Cadet Cudia, for "lying". As a voting member, we are the
one who assess or investigate the case whether the
reported Cadet is Guilty for his actions or not.
4. I was the only one who INITIALLY voted "NOT
GUILTY" among the nine (9) voting members of the
Honor Committee in the case of Cdt Cudia for Lying.
5. I initially voted "NOT GUILTY" for the reason that
after the proceedings and before the presiding Officer
told the members to vote, I was confused of the case of
Cadet Cudia. I have gathered some facts from the
investigation to make my decision but for me it is not yet
enough to give my verdict of guilty to Cdt Cudia so I
decided to vote "NOT GUILTY" with a reservation in
my mind that we will still be discussing our verdicts if
we will arrive at 8-1 or 7-2. Thus, I can still change my
vote if I may be enlightened with the other's
justifications.
6. After the votes were collected, the Presiding Officer
told us that the vote is 8 for guilty and 1 for not guilty.
By way of practice and as I predicted, we were told to go
inside the anteroom for executive meeting and to discuss
114 HRLAW 08281
our respective justifications. I have been a member for
two (2) years and the voting committee will always go
for executive meeting whenever it will meet 8-1 or 7-2
votes.
7. I listened to them and they listened to me, then I saw
things that enlightened my confusions that time. I gave a
thumbs-up sign and asked for another sheet of voting
paper. I then changed my vote from "NOT GUILTY" to
"GUILTY" and the voting members of the Honor
Committee came up with the final vote of nine (9) votes
for guilty and zero (0) votes for not guilty.
9. Cdt Cudia was called inside the courtroom and told
that the verdict was GUILTY of LYING. After that, all
persons inside the courtroom went back to barracks.
10. Right after I changed to sleeping uniform, I was
approached by Cdt Jocson and Cdt Cudia, inquiring and
said: "Bakit ka naman nagpalit ng boto? ., I answered:
"Nasa process yan, may mali talaga sa rason mo." They
also asked who were inside the Chamber and I mentioned
only Cdt Arlegui and Cdt Mogol. That was the last time
that Cdt Cudia and Cdt Jocson talked to me.
11. Sometime on 23rd or 24th of January 2014, I went to
the Department of Naval Warfare to asked (sic)
permission if it is possible not to attend the Navy duty for
the reason that I will be attending our baseball game
outside the Academy.
12. After I was permitted not to attend my Navy Duty
and when I was about to exit out of the Office, CDR
JUNJIE B TABUADA PN, our Head Department Naval
Warfare Officer, called my attention. I approached him
and he said: "Talagang nadali si Cudia ah. Ano ba talaga
ang nangyari?" At first, I was hesitant to answer because
of the confidentiality of the Honor Committee
proceedings. He again said: "Wag kang mag-alala, atin,
atin lang ito, alam ko naman na bawal magsabi. " Then I
answered: "Ako yung isang not guilty Sir. Kaya [yung}
Presiding Officer nagsabi na pumunta muna kami sa
Chamher. Nung nasa chamber kami, nagsalita [yung]
mga nagvote ng Guilty tapos isa-isa nagsabi kung bakit
ang boto nila Guilty. Nung pakinggan ko, eh
naliwanagan aka. Pinalitan ko yung boto ko from Not
Guilty to Guilty Sir. " He replied: "Sayang si Cudia
ano?" And I said: "Oo nga sir, [s]ayang si Cudia, mabait
pa naman at matalino. "197
Still not to be outdone, petitioners argue that the very fact that
Cadet 1 CL Lagura, as the lone dissenter, was made to explain in
the presence of other HC members, who were in disagreement with
him, gives a semblance of intimidation, force, or pressure. For
them, the records of the HC proceedings, which were not presented
assuming they actually exist, could have been the best way to
ensure that he was free to express his views, reject the opinion of
the majority, and stick to his decision. Also, it was pointed out that
Cadet 1 CL Lagura failed to clearly explain in his affidavit why he
initially found Cadet 1 CL Cudia "not guilty" and what made him
change his mind. His use of general statements like he "was
confused of the case " and "saw things that enlightened my
confusions " could hardly suffice to establish why he changed his
vote. Finally, petitioners note the admission of ·Cadet 1 CL Lagura
during the CHR investigation that he was the only one who was
given another ballot sheet while in the chamber and that he
accomplished it in the barracks which he only submitted the
following day. However, as the CHR found, the announcement of
the 9-0 vote was done immediately after the HC came out from the
chamber and before Cadet 1 CL Lagura submitted his
accomplished ballot sheet.
We rule for respondents.
As to the manner of voting by the HC members, the Honor Code
tersely provides:
After a thorough discussion and deliberation, the presiding member
of the Board will call for the members to vote whether the accused
is GUILTY or NOT GUILTY. A unanimous vote (9 votes) of
GUILTY decides that a cadet is found guilty of violating the Honor
Code.198
From the above-quoted provision, it readily appears that the HC
practice of conducting "executive session" or "chambering" is not
at all prohibited. The HC is given leeway on the voting procedures
in' actual cases taking into account the exigency of the times. What
is important is that, in the end, there must be a unanimous nine
votes in order to hold a cadet guilty of violating the Honor Code.
Granting, for argument's sake, that the HC violated its written
procedure,199 We still rule that there is nothing inherently wrong
with the practice of "chambering" considering that the presence of
intimidation or force cannot automatically be inferred therefrom.
The essence of secret balloting and the freedom to vote based on
what is in the heart and mind of the voting member is not
necessarily diluted by the fact that a second/final voting was
conducted. As explained by Cadet 1CL Mogol before the CRAB:
13. x x x [The] dissenting voter would have to explain his side and
insights regarding the case at hand. The other members, on the
other hand, would be given the chance to explain their votes as
well as their insights to the dissenting voter. The decision to
change the vote of the dissenting voter rests solely on his personal
conviction. Thus, if he [or she] opted not to change his/her vote
despite the discussion, his [or her] vote is accorded respect by the
Honor Committee.200
It is elementary that intimidation or force is never presumed. Mere
allegation is definitely not evidence.1âwphi1 It must be
substantiated and proved because a person is presumed to be
innocent of a crime or wrong and that official duty has been
regularly performed.201
The oral and written statements of Cadet 1 CL Lagura should settle
the issue. Before the Fact-Finding Board/Investigating Body and
the CHR, he consistently denied that he was pressured by the other
voting members of the HC. His representation must be accepted as
it is regardless of whether he has satisfactorily elaborated his
decision to change his vote. Being the one who was "chambered,"
he is more credible to clarify the issue. In case of doubt, We have
to rely on the faith that Cadet 1 CL Lagura observed the Honor
Code, which clearly states that every cadet must be his or her own
Final' Authority in honor; that he or she should not let other cadets
dictate on him or her their sense of honor.202 Moreover, the Code
implies that any person can have confidence that a cadet and any
graduate of the PMA will be fair and just in dealing with him; that
his actions, words and ways are sincere and true.203
As to the other alleged "irregularities" committed such as not
putting on record the initial/first voting and Cadet 1CL Lagura's
bringing of his ballot sheet to and accomplishing it in the barracks,
the Court shall no longer dwell on the same for being harmless
procedural errors that do not materially affect the validity of the
HC proceedings.
Cadet 1 CL Cudia 's alleged untruthful statements
Petitioners insist that Cadet 1 CL Cudia did not lie. According to
them, there is no clear time reference as to when was the actual
dismissal or what was the exact time of dismissal - whether it
115 HRLAW 08281
should be the dismissal inside the room or the dismissal after the
section grade was given by Dr. Costales -in the minds of Cadet 1
CL Cudia, Maj. Hindang, and the HC investigators and voting
members. They claim that during long examinations, the time of
dismissal was usually five minutes before the class was set to end
and the protocol of dismissing the class 15 minutes earlier was not
observed. When Maj. Hindang stated in accusatory language that
Cadet 1 CL Cudia perverted the truth by stating that OR432 class
ended at 1500H, he did not state what was the true time of
dismissal. He did not mention whether the truth he was relying on
was 5 or 15 minutes before the scheduled end of class.
It is also averred that Cadet 1 CL Cudia's only business was to ask
Dr. Costales a query such that his business was already finished as
soon as she gave an answer. However, a new business was initiated
by Dr. Costales, which is, Cadet 1 CL Cudia must stay and wait for
the section grade. At that point in time, he was no longer in control
of the circumstances. Petitioners claim that Dr. Costales never
categorically stated that Cadet lCL Cudia was lying. She
recognized the confusion. Her text messages to him clarified his
alleged violation. Also, the CHR noted during its investigation that
she could not exactly recall what happened in her class on
November 14, 2013.
Furthermore, petitioners reasoned out that when respondents stated
that ENG412 class started at 3:05 p.m., it proves that Cadet 1 CL
Cudia was obviously not late. If, as indicated in his Delinquency
Report, he was late two (2) minutes in his 1500-1600H class in
ENG 412, he must have arrived 3:02 p.m. Respondents, however,
claim that the class started at 3:05 p.m. Thus, Cadet 1 CL Cudia
was not late.
Relative to his explanation to the delinquency report, petitioners
were of the view that what appears to have caused confusion in the
minds of respondents is just a matter of semantics; that the entire
incident was a product of inaccuracy, not lying. It is malicious for
them to insinuate that Cadet 1 CL Cudia purposely used incorrect
language to hide the truth. Citing Merriam Webster's Dictionary,
petitioners argue that "dismiss" means to permit or cause to leave,
while "class" refers to a body of students meeting regularly to
study the same subject. According to them, these two words do not
have definite and precise meanings but are generic terms. Other
than the words "class" and "dismiss" used by Cadet 1 CL Cudia,
which may actually be used in their generic sense, there is nothing
deceiving about what he said. Thus, the answer he chose might be
wrong or not correct, but it is not false or not true.
For petitioners, Cadet lCL Cudia's explanations are evidently
truthful and with no intent to deceive or mislead. He did not
manipulate any fact and was truthful of his explanation. His ..
statements were clear and unambiguous but were given a narrow-
minded interpretation. Even the Honor Code acknowledges that
"[e]xperience demonstrates that human communication is
imperfect at best, and some actions are often misinterpreted."
Lastly, petitioners contend that Cadet 1 CL Cudia's transcript of
records reflects not only his outstanding academic performance but
proves his good conduct during his four-year stay in the Academy.
He has above-average grades in Conduct, with grades ranging from
96 to 100 in Conduct I to XI. His propensity to lie is, therefore, far
from the truth.
On the other hand, respondents were equally adamant to contend
that Cadet 1 CL Cudia was obviously quibbling, which, in the
military parlance, is tantamount to lying. He fell short in telling a
simple truth. He lied by making untruthful statements in his written
explanation. Respondents want Us to consider the following:
First, their OR432 class was not dismissed late. During the formal
investigation, Dr. Costales testified that a class is dismissed as long
as the instructor is not there and the bell has rung. In cases of
lesson examinations (LE), cadets are dismissed from the time they
have answered their respective LEs. Here, as Cadet Cudia stated in
his Request for Reconsideration of Meted Punishment, "We had an
LE that day (14 November 2013) in OR432 class. When the first
bell rang (1455), I stood up, reviewed my paper and submitted it to
my instructor, Ms. Costales. xxx" Clearly, at the time Cadet Cudia
submitted his papers, he was already considered dismissed. Thus,
he cannot claim that his [OR432] class ended at 3:00 in the
afternoon (1500H) or "a bit late."
Second, Cadet Cudia was in control of the circumstances leading to
his tardiness. After submitting his paper, Cadet Cudia is free to
leave and attend his next class. However, he initiated a
conversation with Dr. Costales regarding their grades. He was not
under instruction by Dr. Costales to stay beyond the period of her
class.
Furthermore, during the investigation of the Fact-Finding
Board/Investigating Body, Dr. Costales clarified her statements in
her written explanation. She explained that the "instruction to wait"
is a response to Cadet Cudia' s request and that it was not her
initiated instruction. Clearly, there was no directive from Dr.
Costales for Cadet Cudia and the other cadets to stay. On the
contrary, it was them who wanted to meet with the instructor.
Third, contrary to Cadet Cudia's explanation, his subsequent class,
ENG412, did not exactly start at 3:00 in the afternoon (1500H). In
the informal review conducted by the HTG to check the findings of
the HC, Professor Berong confirmed that her English class started
as scheduled (3:05 in the afternoon, or 1505H) and not earlier.
Cadet 1 CL Barrawed, the acting class marcher of ENG412 also
testified that their class started as scheduled (3 :05 in the afternoon,
or 1505) and not earlier.204
Respondents were unimpressed with the excuse that Cadet 1 CL
Cudia had no intention to mislead or deceive but merely used
wrong and unfitting words in his explanations. For them,
considering his academic standing, it is highly improbable that he
used incorrect language to justify his mistake. Respondents'
arguments are tenable.
The issue of whether Cadet 1 CL Cudia committed lying is an issue
of fact. Unfortunately for petitioners, the Court, not being a trier of
facts, cannot pass upon factual matters as it is not duty-bound to
analyze and weigh again the evidence considered in the
proceedings below. Moreover, We reiterate the long standing rule
that factual findings of administrative tribunals are ordinarily
accorded respect if not finality by the Court. In this case, as shown
in the previous discussions, there is no evidence that the findings of
the investigating and reviewing bodies below are not supported by
evidence or vitiated by fraud, imposition or collusion; that the
procedure which led to the findings is irregular; that palpable errors
were committed; or that a grave abuse of discretion, arbitrariness,
or capriciousness is manifest. With respect to the core issue of
whether lying is present in this case, all investigating and
reviewing bodies are in consonance in holding that Cadet 1 CL
Cudia in truth and in fact lied.
For purposes of emphasis though, We shall supplement some
points.
As succinctly worded, the Honor Code of the Cadet Corps Armed
Forces of the Philippines (CCAFP) states: "We, the Cadets, do not
lie, cheat, steal, nor tolerate among us those who do. "
The First Tenet of the Honor-Code is "We do not lie. " Cadets
violate the Honor Code by lying if they make an oral or written
statement which is contrary to what is true or use doubtful
information with the intent to deceive or mislead.205 It is expected
that every cadet's word is accepted without challenge on its
truthfulness; that it is true without qualification; and that the cadets
must answer directly, completely and truthfully even though the
116 HRLAW 08281
answer may result in punitive action under the CCPB and
CCAFPR.206
To refresh, in his Explanation of Report dated December 8, 2013,
Cadet 1 CL Cudia justified that: "I came directly from OR432
Class. We were dismissed a bit late by our instructor Sir."
Subsequently, in his Request for Reconsideration of Meted
Punishment to Maj. Leander, he reasoned out as follows:
I strongly believe that I am not in control of the circumstances, our
4th period class ended 1500H and our 5th period class, which is
ENG412, started 1500H also. Immediately after 4t period class, I
went to my next class without any intention of being late Sir. 207
In this case, the Court agrees with respondents that Cadet 1 CL
Cudia committed quibbling; hence, he lied in violation of the
Honor Code.
Following an Honor Reference Handbook, the term "Quibbling"
has been defined in one U.S. case as follows:
A person can easily create a false impression in the mind of his
listener by cleverly wording what he says, omitting relevant facts,
or telling a partial truth. When he knowingly does so with the
intent to deceive or mislead, he is quibbling. Because it is an
intentional deception, quibbling is a form of lying.208
The above definition can be applied in the instant case. Here,
instead of directly and completely telling the cause of his being late
in the ENG412 class of Prof. Berong, Cadet 1 CL Cudia chose to
omit relevant facts, thereby, telling a half-truth.
The two elements that must be presented for a cadet to have
committed an honor violation are:
1. The act and/or omission, and
2. The intent pertinent to it.
Intent does not only refer to the intent to violate the Honor Code,
but intent to commit or omit the act itself.209
The basic questions a cadet must always seek to answer
unequivocally are:
1. Do I intend to deceive?
2. Do I intend to take undue advantage?
If a cadet can answer NO to BOTH questions, he or she is doing
the honorable thing.210
Intent, being a state of mind, is rarely susceptible of direct proof,
but must ordinarily be inferred from the facts, and therefore, can
only be proved by unguarded expressions, conduct and
circumstances generally.211 In this case, Cadet 1 CL Cudia's intent
to deceive is manifested from the very act of capitalizing on the use
of the words "dismiss" and "class." The truth of the matter is that
the ordinary usage of these two terms, in the context of an
educational institution, does not correspond to what Cadet 1 CL
Cudia is trying to make it appear. In that sense, the words are not
generic and have definite and precise meaning.
By no stretch of the imagination can Cadets 1 CL Cudia, Miranda,
Arcangel, and Narciso already constitute a "class." The Court
cannot agree that such term includes "every transaction and
communication a teacher does with her students." Clearly, it does
not take too much intelligence to conclude that Cadet 1 CL Cudia
should have been accurate by pinpointing who were with him when
he was late in the next class. His deceptive explanation is made
more obvious when compared with what Cadets 1 CL Archangel
and Narciso wrote in their DR explanation, which was: "We
approached our instructor after our class."212
Further, it is unimportant whether the time of dismissal on
November 14, 2013 was five or fifteen minutes ahead of the
scheduled end of class. Worth noting is that even Dr. Costales, who
stood as a witness for Cadet 1 CL Cudia, consistently admitted
before the HC, the Fact-Finding Board/Investigating Body, and the
CHR that he was already dismissed when he passed his LE
paper.213 During the hearing of the Board/Body, she also declared
that she merely responded to his request to see the results of the UE
1 and that she had reservations on the phrases "under my
instruction" and "dismissed a bit late" used in his letter of
explanation to the HC. In addition, Dr. Costales manifested her
view before the CHR that the act of Cadet 1 CL Cudia of inquiring
about his grade outside their classroom after he submitted his LE
paper is not part of the class time because the consultation, being
cadet-initiated, is voluntary.214 Assuming, for the sake of argument,
that a new business was initiated by Dr. Costales when Cadet 1 CL
Cudia was asked to stay and wait for the section grade, still, this
does not acquit him. Given such situation, a responsible cadet who
is fully aware of the time constraint has the last say, that is, to
politely decline the invitation and immediately go to the next class.
This was not done by Cadet 1 CL Cudia. Thus, it cannot be said
that he already lost control over the circumstances.
It is apparent, therefore, that Cadet 1 CL Cudia cunningly chose
words which led to confusion in the minds of respondents and
eventually commenced the HC inquiry. His case is not just a matter
of semantics and a product of plain and simple inaccuracy. There is
manipulation of facts and presentation of untruthful explanation
constitutive of Honor Code violation.
Evidence of prior good conduct cannot clear Cadet 1 CL Cudia ..
While his Transcript of Records (TOR) may reflect not only his
outstanding academic performance but his excellent grade in
subjects on Conduct during his four-year stay in the PMA,215 it
does not necessarily follow that he is innocent of the offense
charged. It is enough to say that "evidence that one did or did not
do a certain thing at one time is not admissible to prove that he did
or did not do the same or similar thing at another time."216 While
the TOR may be received to prove his identity or habit as an
exceptional PMA student, it does not show his specific intent, plan,
or scheme as cadet accused of committing a specific Honor Code
violation.
Dismissal from the PMA as unjust and cruel punishment
Respondents insist that violation of the Honor Code warrants
separation of the guilty cadet from the cadet corps. Under the
Cadet Corps Armed Forces of the Philippines Regulation
(CCAFPR), a violation of the Cadet Honor Code is considered
Grave (Class 1) delinquency which merits a recommendation for a
cadet's dismissal from the PMA Superintendent. The same is
likewise clear from the Honor Code and Honor System Handbook.
Cadet 1 CL Cudia is, therefore, presumed to know that the Honor
Code does not accommodate a gradation or degree of offenses.
There is no difference between a little lie and a huge falsehood.
Respondents emphasize that the Honor Code has always been
considered as an absolute yardstick against which cadets have
measured themselves ever since the PMA began and that the Honor
Code and System seek to assure that only those who are able to
meet the high standards of integrity and honor are produced by the
PMA. As held in Andrews, it is constitutionally permissible for the
military "to set and enforce uncommonly high standards of conduct
and ethics. " Thus, in violating the Honor Code, Cadet 1 CL Cudia
forfeits his privilege to graduate from the PMA.
117 HRLAW 08281
On their part, petitioners concede that if it is proven that a cadet
breached the Honor Code, the offense warrants his or her dismissal
since such a policy may be the only means to maintain and uphold
the spirit of integrity in the military.217 They maintain though that
in Cadet 1 CL Cudia's case there is no need to distinguish between
a "little lie" and a "huge falsehood" since he did not lie at all.
Absent any intent to deceive and to take undue advantage, the
penalty imposed on him is considered as unjust and cruel. Under
the circumstances obtaining in this case, the penalty of dismissal is
not commensurate to the fact that he is a graduating cadet with
honors and what he allegedly committed does not amount to an
academic deficiency or an intentional and flagrant violation of the
PMA non-academic rules and regulations. Citing Non, petitioners
argue that the penalty imposed must be proportionate to the
offense. Further, lsabelo, Jr. is squarely applicable to the facts of
the case. Cadet 1 CL Cudia was deprived of his right to education,
the only means by which he may have a secure life and future.
Considering Our finding that Cadet 1 CL Cudia in truth and in fact
lied and his acceptance that violation of the Honor Code warrants
the ultimate penalty of dismissal from the PMA, there is actually
no more dispute to resolve. Indeed, the sanction is clearly set forth
and Cadet 1 CL Cudia, by contract, risked this when he entered the
Academy.218 We adopt the ruling in Andrews219 wherein it was
held that, while the penalty is severe, it is nevertheless reasonable
and not arbitrary, and, therefore, not in violation of due process. It
quoted the disposition of the district court, thus:
The fact that a cadet will be separated from the Academy upon a
finding that he has violated the Honor Code is known to all cadets
even prior to the beginning of their careers there. The finding of a
Code violation by hypothesis includes a finding of scienter on the
part of the offender. While separation is admittedly a drastic and
tragic consequence of a cadet's transgression, it is not an
unconstitutionally arbitrary one, but rather a reasonable albeit
severe method of preventing men who have suffered ethical lapses
from becoming career officers. That a policy of admonitions or
lesser penalties for single violations might be more compassionate
--or even more effective in achieving the intended result --is quite
immaterial to the question of whether the harsher penalty violates
due process.220
Nature of the CHR Findings
Petitioners contend that the PMA turned a blind eye on the CHR's
recommendations. The CHR, they note, is a constitutional body
mandated by the 1987 Constitution to investigate all forms of
human rights violations involving civil and political rights, and to
conduct investigative monitoring of economic, social, and cultural
rights, particularly of vulnerable sectors of society. Further, it was
contended that the results of CHR's investigation and
recommendations are so persuasive that this Court, on several
occasions like in the cases of Cruz v. Sec. of Environment &
Natural Resources221 and Ang Ladlad LGBT Party v. Commission
on Elections,222 gave its findings serious consideration. It is not,
therefore, too late for the Court to hear what an independent and
unbiased fact-finding body has to say on the case.
In opposition, respondents assert that Simon, Jr. v. Commission on
Human Rights223 ruled that the CHR is merely a recommendatory
body that is not empowered to arrive at a conclusive determination
of any controversy.
We are in accord with respondents.
The findings of fact and the conclusions of law of the CHR are
merely recommendatory and, therefore, not binding to this Court.
The reason is that the CHR's constitutional mandate extends only
to the investigation of all forms of human rights violations
involving civil and political rights.224 As held in Cariño v.
Commission on Human Rights225and a number of subsequent
cases,226 the CHR is only a fact-finding body, not a court of justice
or a quasi-judicial agency. It is not empowered to adjudicate claims
on the merits or settle actual case or controversies. The power to
investigate is not the same as adjudication:
The most that may be conceded to the Commission in the way of
adjudicative power is that it may investigate, i.e., receive evidence
and make findings of fact as regards claimed human rights
violations involving civil and political rights. But fact-finding is
not adjudication, and cannot be likened to the judicial function of a
court of justice, or even a quasi-judicial agency or official. The
function of receiving evidence and ascertaining therefrom the facts
of a controversy is not a judicial function, properly speaking. To be
considered such, the faculty of receiving evidence and making
factual conclusions in a controversy must be accompanied by the
authority of applying the law to those factual conclusions to the
end that the controversy may be decided or determined
authoritatively, finally and definitively, subject to such appeals or
modes of review as may be provided by law. This function, to
repeat, the Commission does not have.
did not effectively deprive him of a future. Cliche though it may
sound, being a PMA graduate is not the "be-all and end-all" of his
existence. A cadet separated from the PMA may still continue to
pursue military or civilian career elsewhere without suffering the
stigma attached to his or her dismissal. For one, as suggested by
respondents, DND-AFP Circular No. 13, dated July 15, 1991, on
the enlistment and reenlistment in the APP Regular Force, provides
under Section 14 (b) thereof that priority shall be given to, among
others, the ex-PMA or PAFFFS cadets.227 If the positions open
does not appeal to his interest for being way below the rank he
could have achieved as a PMA graduate, Cadet 1 CL Cudia could
still practice other equally noble profession or calling that is best
suited to his credentials, competence, and potential. Definitely,
nobody can deprive him of that choice.
WHEREFORE, the Petition is DENIED. The dismissal of Cadet
First Class Aldrin Jeff P. Cudia from the Philippine Military
Academy is hereby AFFIRMED. No costs.
SO ORDERED.

xxxx

[i]t cannot try and decide cases (or hear and determine causes) as
courts of justice, or even quasi-judicial bodies do. To investigate is
not to adjudicate or adjudge. Whether in the popular or the
technical sense, these terms have well understood and quite distinct
meanings.

"Investigate, "commonly understood, means to examine, explore,

inquire or delve or probe into, research on, study. The dictionary
definition of "investigate" is "to observe or study closely: inquire
into systematically: "to search or inquire into: x x x to subject to an
official probe x x x: to conduct an official inquiry;" The purpose of
investigation, of course, is to discover, to find out, to learn, obtain
information. Nowhere included or intimated is the notion of
settling, deciding or resolving a controversy involved in the facts
inquired into by application of the law to the facts established by
the inquiry.

The legal meaning of "investigate" is essentially the same: "(t)o

follow up step by step by patient inquiry or observation. To trace or
track; to search into; to examine and inquire into with care and
accuracy; to find out by careful inquisition; examination; the taking
of evidence; a legal inquiry;" "to inquire; to make an
investigation," "investigation" being in turn described as "(a)n
administrative function, the exercise of which ordinarily does not
require a hearing. 2 Am J2d Adm L Sec. 257; xx x an inquiry,
judicial or otherwise, for the discovery and collection of facts
concerning a certain matter or matters."

"Adjudicate," commonly or popularly understood, means to

adjudge, arbitrate, judge, decide, determine, resolve, rule on, settle.
The dictionary defines the term as "to settle finally (the rights and
duties of the parties to a court case) on the merits of issues raised:
xx to pass judgment on: settle judicially: x x x act as judge." And
"adjudge" means "to decide or rule upon as a judge or with judicial
or quasi-judicial powers: xx to award or grant judicially in a case
of controversy x x x."

In the legal sense, "adjudicate" means: "To settle in the exercise of

judicial authority.1âwphi1 To determine finally. Synonymous with
adjudge in its strictest sense;" and "adjudge" means: "To pass on
judicially, to decide, settle or decree, or to sentence or condemn. xx
Implies a judicial determination of a fact, and the entry of a
judgment. "226

All told, petitioners are not entitled to moral and exemplary

damages in accordance with Articles 19, 2217, 2219 and 2229 of
the Civil Code. The dismissal of Cadet 1 CL Cudia from the PMA
118 HRLAW 08281
G.R. No. 209283, March 11, 2015
CECILIA RACHEL V.
QUISUMBING, Petitioner, v. LORETTA ANN P. ROSALES,
MA. VICTORIA V. CARDONA AND NORBERTO DELA
CRUZ, IN THEIR CAPACITIES AS CHAIRPERSON AND
MEMBERS, RESPECTIVELY, OF THE COMMISSION ON
HUMAN RIGHTS, Respondent.
DECISION
BRION, J.:
Before this Court is the petition for certiorari and
prohibition1 under Rule 65 of the Rules of Court filed by petitioner
Commissioner Cecilia Rachel V. Quisumbing (petitioner) to annul
and set aside the Show Cause Order dated September 18, 2013
issued by the Commission on Human Rights (CHR), through its
Chairperson Loretta Ann P. Rosales (Chairperson Rosales).
The Antecedents
In a meeting of the CHR held on September 18, 2013, several
complaints of former employees of the petitioner, namely: Ma.
Regina D. Eugenio (Eugenio), Elizabeth Diego-Buizon (Buizon),
Alexander B. Fernandez (Fernandez), and Jesse Ayuste (Ayuste)
were taken up by the CHR. Only respondents Chairperson
Rosales, Commissioner Ma. Victoria V. Cardona and
Commissioner Norberto dela Cruz (Commissioner dela Cruz) were
present during the meeting; the petitioner was on sick leave while
Commissioner Jose Manuel S. Mamauag (Commissioner
Mamauag) was away on official business.
In their affidavits, Eugenio, Buizon, Fernandez and Ayuste accused
the petitioner of: (1) seriously maltreating and inflicting upon them
mental abuse through her unreasonable behavior and demands on
how they should work in or out of the office; (2) taking a cut from
some of her employees’ salaries to form an office fund under her
sole control; (3) repeatedly misplacing and taking no action on
official documents requiring her action; (4) forging another
commissioner’s signature; (5) hiring employees who do not come
to work; and (6) contracting consultancy work for another
government agency.
On the bases of these affidavits, the CHR issued on the same day
Resolution CHR (IV) No. A2013-148 (CHR Resolution), through
Chairperson Rosales, a Show Cause Order (dated September 18,
2013), requesting the petitioner to submit within five (5) days from
receipt, a written explanation as to why she should not be held
liable for any administrative disciplinary actions, and to transmit
the written explanation together with her supporting documents to
the Office of the Ombudsman. The Show Cause Order specified
allegations of the petitioner’s involvement in the commission of
certain acts of malfeasance or misfeasance constituting
misconduct, dishonesty, oppression, grave abuse of authority and
conduct prejudicial to the best interest of service, all in violation of
the Civil Service Laws and Rules and the Code of Conduct and
Ethical Standards for Public Officials and Employees. The Show
Cause Order was served at the petitioner’s office on September 19,
2013.
On September 26, 2013, Commissioner Mamauag issued a
Memorandum stating his concurrence with the September 18, 2013
CHR Resolution.
On September 27, 2013, Chairperson Rosales sent letters to the
President of the Republic of the Philippines and the Office of the
Ombudsman regarding the complaints and allegations against the
petitioner. Attached to the letters were copies of the Show Cause
Order and the CHR Resolution. Chairperson Rosales brought
attention to the serious allegations against the petitioner and prayed
119 HRLAW 08281
for the Offices’ appropriate action. Chairperson Rosales also
requested the Office of the Ombudsman to act on the complaint in
accordance with the established investigation and prosecutorial
procedures.
On October 4, 2013, the petitioner filed with the CHR Secretariat a
Manifestation and Motion to Dismiss the Show Cause Order. The
petitioner assailed the validity of the Show Cause Order, claiming
that its issuance is null and void because it denied her due process.
Without waiting for the CHR to act on her motion, the petitioner
filed on October 16, 2013, the present Petition forCertiorari and
Prohibition before this Court.
On October 23, 2013, the CHR through Chairperson Rosales and
Commissioners dela Cruz and Mamauag issued an Order stating
that it could no longer act on petitioner’s Motion to Dismiss since
the case had been forwarded to the Office of the Ombudsman by
virtue of its letter dated September 27, 2013.
The Petition
The petitioner imputes the following errors committed by the
respondents:
I. The respondents acted without jurisdiction and/or with
grave abuse of discretion amounting to lack of
jurisdiction in ordering the petitioner to show cause why
she should not be held liable for administrative
disciplinary actions on the bases of the allegations stated
in the Show Cause Order, in violation of the petitioner’s
right to due process of law.
II. The respondents acted without jurisdiction and/or with
grave abuse of discretion amounting to lack of
jurisdiction in filing charges with the President of the
Republic of the Philippines and the Office of the
Ombudsman against the petitioner without due process of
law.
The petitioner argues that the respondents gravely abused their
discretion when they issued the Show Cause Order and the CHR
Resolution during the meeting held on September 18, 2013,
knowing fully well that the petitioner would not be able to attend
the same. The petitioner claims that the respondents acted in bad
faith and with malice when they brought up at this meeting, during
her absence, the complaints of her former employees, thereby
depriving her of the opportunity to refute the allegations and to
participate as a member of the CHR.
The petitioner also questions the validity of the Show Cause Order
as it appears to have been issued by Chairperson Rosales
alone. She points out that Chairperson Rosales, without reference
to the other members of the CHR, solely signed and issued the
Show Cause Order. Citing GMCR, Inc. v. Bell Telecommunication
Philippines, Inc.,2 the petitioner contends that the act of a single
member, though he may be its head, done without the participation
of others, cannot be considered the act of the collegial body
itself. Since the CHR is a collegial body requiring the concurrence
of majority of its members in order to validly arrive at a decision,
the act of Chairperson Rosales in issuing the Show Cause Order
amounted to usurpation of the authority and prerogative of the
CHR.
The petitioner further maintains that the Show Cause Order is
insufficient to enable her to respond to the allegations made
because it does not specifically state: (1) the “acts of malfeasance
or misfeasance by way of misconduct, grave abuse of authority and
conduct prejudicial to the best interest of service” that she
allegedly committed; and (2) the “civil service laws and rules, and
the Code of Conduct and Ethical Standards for Public Officials and
Employees” that she allegedly violated. Thus, the petitioner claims
that she was denied due process of law.
The petitioner lastly alleged that the respondents gravely abused
their discretion when they referred the affidavits of her former
employees to the President of the Republic of the Philippines and
the Office of the Ombudsman. She claims that since the CHR, as a
body, was not empowered by law to act on disciplinary complaints
against its own members, the respondents have no authority to
issue the Show Cause Order.
The Office of the Solicitor General’s Comment
The Office of the Solicitor General (OSG) filed its
Comment3 dated January 13, 2014, on behalf of the respondents,
arguing that the petitioner availed of the wrong remedy when she
filed the special civil action for certiorari to assail the Show Cause
Order. The OSG points out that a special civil action
for certiorari is available only when any tribunal, board or
officer exercising judicial or quasi-judicial functions has acted
without or in excess or its jurisdiction, or with grave abuse of
discretion amounting to lack or excess of jurisdiction. Since the
respondents, acting in their official capacities as Chairperson and
Members of the CHR, were not engaged in judicial or quasi-
judicial functions when they issued the assailed Show Cause Order,
the petition for certiorari should be dismissed for being an
improper remedy.
The OSG also asserts that the petitioner failed to show that the
respondents acted with grave abuse of discretion in issuing the
Show Cause Order. The OSG emphasizes that aside from
petitioner’s bare allegations of malice and bad faith, she did not
offer any convincing evidence proving that the respondents
exercised their power in an arbitrary or despotic manner, by reason
of passion or personal hostility.
was at most, an exercise of fact-finding investigation, which is
entirely distinct and different from the concept of
adjudication.4 The power to initiate an investigation and to refer the
matter to the Office of the Ombudsman is within the power of the
CHR as an entity with its own distinct personality and is
recognized by no less than the Constitution.5 Thus, the CHR did
not commit any grave abuse of discretion in its actions.
The petition also fails with respect to the petitioner’s claim of
denial of due process. There can be no denial of due process where
a party was afforded an opportunity to present his case.6 In the
present case, the petitioner was given ample opportunity to air her
side on the allegations against her after being sufficiently apprised
of the allegations against her; she was afforded the chance to
submit her written explanation. Unfortunately, the petitioner failed
to avail of that right, and chose to directly seek the intervention of
this Court. These circumstances, by themselves, point the
prematurity of the petition.
Jurisprudence tells us that the essence of due process in
administrative proceedings is the chance to explain one’s side, or
seek a reconsideration of the action or ruling complained of. As
long as the parties are given the opportunity to be heard before any
definitive action is taken, the demands of due process are
sufficiently met.7
In sum, we find that the petition for certiorari and prohibition
should be dismissed for mootness and for lack of merit.
WHEREFORE, premises considered, we hereby DISMISS the
petition for certiorari and prohibition.
SO ORDERED.

The OSG lastly submits that the petitioner failed to exhaust all
administrative remedies available to her before instituting the
present petition. Since the petitioner had an ample administrative
remedy under the law to protect her right, it was premature for her
to commence the present petition before the Court.

The Issue

The ultimate issue to be resolved is whether the petitioner is

entitled to the issuance of the writs of certiorari and prohibition.

The Court’s Ruling

We dismiss the petition.

We stress, at the outset, that the subsequent referral of the case to

the Office of the Ombudsman for appropriate prosecutorial action
rendered the issues raised in the present petition moot and
academic insofar as the CHR is concerned.

Records disclose that the CHR, through Chairperson Rosales and

Commissioners Dela Cruz and Mamauag, issued an Order stating
that it could no longer act on the petitioner’s Motion to Dismiss
since the case had been forwarded to the Office of the
Ombudsman. Thus, no practical relief can be granted to the
petitioner by resolving the present petition since the proceedings
before the CHR – the initiation of an investigation through the
issuance of the assailed Show Cause Order – had been terminated.

The petition likewise fails for plain lack of merit. The OSG
correctly argued that the respondents, in their official capacities as
Chairperson and Members of the CHR, did not engage in judicial
or quasi-judicial functions; they did not adjudicate the rights and
obligations of the contending parties but simply undertook to
initiate the investigation of the allegations against the petitioner.
The inquiry was not a quasi-judicial proceeding, where offenses
were charged, parties were heard and penalties were imposed. It
120 HRLAW 08281
BAUTISTA VS SALONGA
Facts:
- August 27, 1987: President Cory Aquino appointed petitioner
Mary Concepcion Bautista as permanent Chairman of the
Commission on Human Rights (CHR).
- December 22, 1988: Bautista took her oath of office to Chief
Justice Marcelo Fernan and immediately acted as such.
- January 9, 1989: The Secretary of the Commission on
Appointments (CoA) wrote a letter to Bautista requesting for her
presence along with several documents at the office of CoA on
January 19. Bautista refused to be placed under CoA's review.
- Bautista filed a petition with the Supreme Court.
- While waiting for the progress of the case, President Aquino
appointed Hesiquio R. Mallillin as "Acting Chairman of the
Commission on Human Rights" but he was not able to sit in his
appointive office because of Bautista's refusal to surrender her
post.
- Malilin invoked EO 163-A which provides that the tenure of the
Chairman and the Commissioners of the CHR should be at the
pleasure of the President thus stating that Bautista shall be
subsequently removed as well.
Issues:
WON the President's appointment is considered constitutional.
WON or not Bautista's appointment is subject to CoA's
confirmation.
WON or not President should extend her appointment on January
14, 1989.
Held:
Sec. 16, Art. VII of the 1987 Constitution provides:
The President shall nominate and, with the consent of the
Commission on Appointments, appoint the heads of the executive
departments, ambassadors, other public ministers and consuls, or
officers of the armed forces from the rank of colonel or naval
captain, and other officers whose appointments are vested in him in
this Constitution. He shall also appoint all other officers of the
Government whose appointments are not otherwise provided for by
law, and those whom he may be authorized by law to appoint.
The Congress may, by law, vest the appointment of other officers
lower in rank in the President alone, in the courts, or in the heads
of the departments, agencies, commissions or boards. The
President shall have the power to make appointments during the
recess of the Congress, whether voluntary or compulsory, but such
appointments shall be effective only until disapproval by the
Commission on Appointments or until the next adjournment of the
Congress.
The Court held that it is within the authority of the President,
vested upon her by the Constitution, that she appoint Executive
officials. The second sentence of the provision Section 16, Article
VII provides that the President is authorized by law to appoint,
without confirmation of CoA, several government officials. The
position of Chairman of CHR is not among the positions
mentioned in the first sentence of Sec. 16, Art VII of the 1987
Constitution, which provides the appointments which are to be
made with the confirmation of CoA. It therefore follows that the
appointment of the Chairman of CHR by the President is to be
made and finalized even without the review or participation of
CoA. Bautista's appointment as the Chairman of CHR, therefore,
was already a completed act on the day she took her oath as the
appointment was finalized upon her acceptance, expressly stated in
her oath.
Furthermore, the Court held that the provisions of EO 163-A is
unconstitutional and thus cannot be invoked by Mallillin. The
Chairman of CHR cannot be removed at the pleasure of the
President for it is constitutionally guaranteed that they must have a
term of office.
121 HRLAW 08281
To hold, as the Court holds, that petitioner Bautista is the lawful
incumbent of the office of Chairman of the Commission on Human
Rights by virtue of her appointment, as such, by the President on
17 December 1988, and her acceptance thereof, is not to say that
she cannot be removed from office before the expiration of her
seven (7) year term. She certainly can be removed but her removal
must be for cause and with her right to due process properly
safeguarded.
It is to the credit of the President that, in deference to the rule of
law, after petitioner Bautista had elevated her case to this Tribunal,
Her Excellency merely designated an Acting Chairman for the
Commission on Human Rights (pending decision in this case)
instead of appointing another permanent Chairman. The latter
course would have added only more legal difficulties to an already
difficult situation.
Petitioner Bautista is declared to be, as she is, the duly appointed
Chairman of the Commission on Human Rights and the lawful
incumbent thereof, entitled to all the benefits, privileges and
emoluments of said office. The temporary restraining order
heretofore issued by the Court against respondent Mallillin
enjoining him from dismissing or terminating personnel of the
Commission on Human Rights is made permanent.
Petition granted.
G.R. No. 86439 April 13, 1989
MARY CONCEPCION BAUTISTA, petitioner,
vs.
SENATOR JOVITO R. SALONGA, COMMISSION ON
APPOINTMENTS COMMITTEE ON JUSTICE, JUDICIAL
AND BAR COUNCIL AND HUMAN RIGHTS AND
HESIQUIO R. MALLILLIN, respondents.
Mary Concepcion Bautista for and in her own behalf.
Christine A.Tomas Espinosa for private respondent Hesiquio R.
Mallillin
PADILLA, J.:
The Court had hoped that its decision in Sarmiento III vs.
Mison, 1 would have settled the question of which appointments by
the President, under the 1987 Constitution, are to be made with and
without the review of the Commission on Appointments. The
Mison case was the first major case under the 1987 Constitution
and in construing Sec. 16, Art. VII of the 1987 Constitution which
provides:
The President shall nominate and, with the
consent of the Commission on Appointments,
appoint the heads of the executive departments,
ambassadors, other public ministers and
consuls, or officers of the armed forces from
the rank of colonel or naval captain, and other
officers whose appointments are vested in him
in this Constitution. He shall also appoint all
other officers of the Government whose
appointments are not otherwise provided for by
law, and those whom he may be authorized by
law to appoint. The Congress may, by law, vest
the appointment of other officers lower in rank
in the President alone, in the courts, or in the
heads of the departments, agencies,
commissions or boards.
 The President shall have the power to make years without reappointment. Appointment to
appointments during the recess of the any vacancy shall be only for the unexpired
Congress, whether voluntary or compulsory, term of the predecessor.
but such appointments shall be effective only
until disapproval by the Commission on The above conclusions appear to be plainly evident and, therefore,
Appointments or until the next adjournment of irresistible. However, the presence in this case of certain elements
the Congress. — absent in the Mison case — makes necessary a closer scrutiny.
The facts are therefore essential.
this Court, drawing extensively from the proceedings of the 1986
Constitutional Commission and the country's experience under the On 27 August 1987, the President of the
1935 and 1973 Constitutions, held that only those appointments Philippines designated herein petitioner Mary Concepcion Bautista
expressly mentioned in the first sentence of Sec. 16, Art. VII are to as "Acting Chairman, Commission on Human Rights." The letter of
be reviewed by the Commission on Appointments, namely, "the designation reads:
heads of the executive department, ambassadors, other public
ministers and consuls, or officers of the armed forces from the rank
of colonel or naval captain, and other officers whose appointments 27 August 1987
are vested in him in this Constitution." All other appointments by
the President are to be made without the participation of the M a d a m:
Commission on Appointments. Accordingly, in the Mison case, the
appointment of therein respondent Salvador M. Mison as head of You are hereby designated ACTING CHAIRMAN,
the Bureau of Customs, without the confirmation of the COMMISSION ON HUMAN RIGHTS, to succeed the
Commission on Appointments, was held valid and in accordance late Senator Jose W. Diokno and Justice J. B. L. Reyes.
with the Constitution.

The Mison case doctrine did not foreclose contrary opinions. So

with the very provisions of Sec. 16, Art. VII as designed by the
framers of the 1987 Constitution. But the Constitution, as
construed by this Court in appropriate cases, is the supreme law of
the land. And it cannot be over-stressed that the strength of the
Constitution, with all its imperfections, lies in the respect and
obedience accorded to it by the people, especially the officials of
government, who are the subjects of its commands.

Barely a year after Mison, the Court is again confronted with a

similar question, this time, whether or not the appointment by the
President of the Chairman of the Commission on Human Rights
(CHR), an "independent office" created by the 1987 Constitution,
is to be made with or without the confirmation of the Commission
on Appointments (CA, for brevity). Once more, as in Mison, the
Court will resolve the issue irrespective of the parties involved in
the litigation, mindful that what really matters are the principles
that will guide this Administration and others in the years to come.

Since the position of Chairman of the Commission on Human

Rights is not among the positions mentioned in the first sentence of
Sec. 16, Art. VII of the 1987 Constitution, appointments to which
are to be made with the confirmation of the Commission on
Appointments, it follows that the appointment by the President of
the Chairman of the (CHR), is to be made without the review or
participation of the Commission on Appointments.

To be more precise, the appointment of the Chairman and

Members of the Commission on Human Rights is not specifically
provided for in the Constitution itself, unlike the Chairmen and
Members of the Civil Service Commission, the Commission on
Elections and the Commission on Audit, whose appointments are
expressly vested by the Constitution in the President with the
consent of the Commission on Appointments. 2

The President appoints the Chairman and Members of the

Commission on Human Rights pursuant to the second sentence in
Section 16, Art. VII, that is, without the confirmation of the HON. MARY CONCEPCION BAUTISTA 3
Commission on Appointments because they are among the officers
of government "whom he (the President) may be authorized by law Realizing perhaps the need for a permanent chairman and members
to appoint." And Section 2(c), Executive Order No. 163, 5 May of the Commission on Human Rights, befitting an independent
1987, authorizes the President to appoint the Chairman and office, as mandated by the Constitution, 4 the President of the
Members of the Commission on Human Rights. It provides: Philippines on 17 December 1988 extended to petitioner Bautista a
permanent appointment as Chairman of the Commission. The
(c) The Chairman and the Members of the appointment letter is as follows:
Commission on Human Rights shall be
appointed by the President for a term of seven
122 HRLAW 08281
 1
7

D
e
c
e
m
b
e
It is to be noted that by virtue of such appointment, petitioner
Bautista was advised by the President that she could qualifyr and
enter upon the performance of the duties of the office of Chairman
of the Commission on Human Rights, requiring her to furnish 1 the
office of the President and the Civil Service Commission 9with
copies of her oath of office. 8
8
On 22 December 1988, before the Chief Justice of this Court, Hon.
Marcelo B. Fernan, petitioner Bautista took her oath of office by
The Honorable virtue of her appointment as Chairman of the Commission on
The Chairman Human Rights. The full text of the oath of office is as follows:
Commission on Human Rights
Pasig, Metro Manila
OATH OF OFFICE
M a d a m:
I, MARY CONCEPCION BAUTISTA of 3026
General G. del Pilar Street, Bangkal, Makati,
Pursuant to the provisions of existing laws, the following are Metro Manila having been appointed to the
hereby appointed to the positions indicated opposite their position of CHAIRMAN of the Commission on
respective names in the Commission on Human Rights: Human Rights, do solemnly swear that I will
discharge to the best of my ability all the duties
MARY CONCEPCION BAUTISTA — Chairman and responsibilities of the office to which I
ABELARDO L. APORTADERA, JR — Member have been appointed; uphold the Constitution
SAMUEL SORIANO — Member of the Republic of the Philippines, and obey all
HESIQUIO R. MALLILLIN — Member the laws of the land without mental reservation
NARCISO C. MONTEIRO — Member or purpose of evasion.

By virtue hereof, they may qualify and enter upon the SO HELP ME GOD.
performance of the duties of the office furnishing this Office and
the Civil Service Commission with copies of their oath of
office.

V
e
r
y

t
r
u
l
y

y
o
u
SUBSCRIBED AND rSWORN TO before me
s
this 22nd day of December in the year of Our
Lord, 1988 in Manila. ,BAUTISTA

C
O
R
A
Z
O
N

C
.

A
123 HRLAW 08281
 January 1989 at 9 A.M. at the Conference Room, E 8th Floor,
Kanlaon Tower I, Roxas Boulevard, Pasay City R that would
deliberate on her appointment as Chairman of the Commission
N on
Human Rights. 8 A
N
On 13 January 1989, petitioner Bautista wrote to the Chairman of
the Commission on Appointments stating,C for the reasons therein
given, why she considered the Commissionh on Appointments as
having no jurisdiction to review her appointment
i as Chairman of
the Commission on Human Rights. The epetitioner's letter to the
Commission on Appointments' Chairman reads:
f

J
u
s
t
i
c
e

S
u
p
r
e
m
e

C
o
u
SENATE PRESIDENT JOVITO
r R. SALONGA
Chairman t
Commission on Appointments
Senate, Manila o
f
S i r:
t
We acknowledge receipt h of the communication
from the Commission e on Appointments
requesting our appearance on January 19, 1989
for deliberation on ourPappointments.
h
i
We respectfully submit l that the appointments
of the Commission i commissioners of the
Human Rights Commissionp are not subject to
confirmation by pthe Commission on
Appointments. i
n
The Constitution, in eArticle VII Section 16
which expressly vested s on the President the
appointing power, has expressly mentioned the
government officials 6whose appointments are
subject to the confirmation of the Commission
on Appointments of Congress. The
Immediately, after taking her oath of office as Chairman of the Commissioners of the Commission on Human
Commission on Human Rights, petitioner Bautista discharged the Rights are not included among those.
functions and duties of the Office of Chairman of the Commission
on Human Rights which, as previously stated, she had originally Where the confirmation of the Commission on
held merely in an acting capacity beginning 27 August 1987. Appointments is required, as in the case of the
Constitutional Commissions such as the
On 9 January 1989, petitioner Bautista received a letter from the Commission on Audit, Civil Service
Secretary of the Commission on Appointments requesting her to Commission and the Commission on Elections,
submit to the Commission certain information and documents as it was expressly provided that the nominations
required by its rules in connection with the confirmation of her will be subject to confirmation of Commission
appointment as Chairman of the Commission on Human on Appointments. The exclusion again of the
Rights. 7 On 10 January 1989, the Commission on Appointments' Commission on Human Rights, a constitutional
Secretary again wrote petitioner Bautista requesting her presence at office, from this enumeration is a clear denial
a meeting of the Commission on Appointments Committee on of authority to the Commission on
Justice, Judicial and Bar Council and Human Rights set for 19
124 HRLAW 08281
 Appointments to review our appointments to
the Commission on Human Rights.

Furthermore, the Constitution specifically

provides that this Commission is
an independent office which:

a. must investigate all

forms of human rights
violations involving civil
and political rights;

b. shall monitor the

government's compliance
in all our treaty obligations
on human rights. We
submit that, the monitoring
of all agencies of
government, includes even
Congress itself, in the
performance of its
functions which may affect
human rights;

c. may call on all agencies

of government for the
implementation of its
mandate.

The powers of the Commission on

Appointments is in fact a derogation of the
Chief Executive's appointing power and
therefore the grant of that authority to review a
valid exercise of the executive power can never
be presumed. It must be expressly granted.
The Commission on Appointments has no
jurisdiction under the Constitution to review
appointments by the President of
Commissioners of the Commission on Human
Rights.
In view of the foregoing considerations, as
Chairman of an independent constitutional
office. I cannot submit myself to the
Commission on Appointments for the purpose
of confirming or rejecting my appointment.
In respondent Commission's comment (in this case), dated 3
February 1989, there is attached as Annex 1 a letter of the
Commission on Appointments' Secretary to the Executive
Secretary, Hon. Catalino Macaraig, Jr. making reference to the "ad
interim appointment which Her Excellency extended to Atty. Mary
Concepcion Bautista on 14 January 1989 as Chairperson of the
Commission on Human Rights" 10 and informing Secretary
Macaraig that, as previously conveyed to him in a letter of 25
January 1989, the Commission on Appointments disapproved
petitioner Bautista's "ad interim appointment' as Chairperson of the
Commission on Human Rights in view of her refusal to submit to
the jurisdiction of the Commission on Appointments. The letter
reads:

V
e
r
y

t
r
u
l
y

y
o
u
HON. CATALINO r
MACARAIG, JR.
Executive s Secretary
Malacanang, Manila ,

S i r:
M
A
R
125 HRLAW 08281
 This refers to the ad interim appointment which Her
Excellency extended to Atty. Mary Concepcion Bautista on 14
January 1989 as Chairperson of the Commission on Human
Rights.

As we conveyed to you in our letter of 25 On the same date (1 February 1989), the Commission on
January 1989, the Commission on Appointments' Secretary informed petitioner Bautista that the
Appointments, assembled in plenary (session) motion for reconsideration of the disapproval of her "ad
on the same day, disapproved Atty. interim appointment as Chairman of the Commission on Human
Bautista's ad interim appointment as Rights" was denied by the Commission on Appointments. The
Chairperson of the Commission on Human letter reads as follows:
Rights in view of her refusal to submit to the
jurisdiction of the Commission on
Appointments.

This is to inform you that the Commission on

Appointments, likewise assembled in plenary
(session) earlier today, denied Senator
Mamintal A. J. Tamano's motion for
reconsideration of the disapproval of Atty.
Bautista's ad interim appointment as
Chairperson of the Commission on Human
Rights.

V
e
r
y

ATTY. MARY CONCEPCION BAUTISTA t

Commission on Human Rights
r
Integrated Bar of the Philippines
u
Bldg. Pasig, Metro Manila l
y
Dear Atty. Bautista:
y
o
Pursuant to Sec. 6 (a), Chapter II of the Rules
u
of the Commission on Appointments,r the
denial by the Commission on Appointments, s
assembled in plenary (session) earlier today,
, of
Senator Mamintal A.J. Tamano's motion for
reconsideration of the disapproval of your ad
interim appointment as Chairperson of the
Commission on Human Rights is respectfully
conveyed.

Thank you for your attention.

126 HRLAW 08281


In Annex 3 of respondent Commission's same comment, dated 3
February 1989, is a news item appearing in the 3 February 1989
issue of the "Manila Standard" reporting that the President had
designated PCHR Commissioner Hesiquio R. Mallillin as "Acting
Chairman of the Commission" pending the resolution of Bautista's
case which had been elevated to the Supreme Court. The news item
is here quoted in full, thus —
Aquino names replacement for MaryCon
President Aquino has named replacement for
Presidential Commission on Human Rights
Chairman Mary Concepcion Bautista whose
appointment was rejected anew by the
Congressional commission on appointments.
The President designated PCHR commissioner
Hesiquio R. Mallillin as acting chairman of the
Commission pending the resolution of
Bautista's case which had been elevated to the
Supreme Court.
The President's action followed after
Congressional Commission on Appointments
Chairman, Senate President Jovito Salonga
declared Bautista can no longer hold on to her
position after her appointment was not
confirmed for the second time.
For all practical purposes, Salonga said
Bautista can be accused of usurpation of
authority if she insists to stay on her office.
In effect, the President had asked Bautista to
vacate her office and give way to Mallillin
(Mari Villa) 13
On 20 January 1989, or even before the respondent Commission on
Appointments had acted on her "ad interimappointment as
Chairman of the Commission on Human Rights" petitioner
127 HRLAW 08281
Bautista filed with this Court the present petition
for certiorari with a prayer for the immediate issuance of a
restraining order, to declare "as unlawful and unconstitutional and
without any legal force and effect any action of the Commission on
Appointments as well as of the Committee on Justice, Judicial and
Bar Council and Human Rights, on the lawfully extended
appointment of the petitioner as Chairman of the Commission on
Human Rights, on the ground that they have no lawful and
constitutional authority to confirm and to review her
appointment." 14
The prayer for temporary restraining order was "to enjoin the
respondent Commission on Appointments not to proceed further
with their deliberation and/or proceedings on the appointment of
the petitioner ... nor to enforce, implement or act on any order,
resolution, etc. issued in the course of their deliberations." 15
Respondents were required to file comment within ten (10)
days. 16 On 7 February 1989, petitioner filed an amended petition,
with urgent motion for restraining order, impleading Commissioner
Hesiquio R. Mallillin the designated acting chairman as party
respondent and praying for the nullification of his appointment.
The succeeding day, a supplemental urgent ex-parte motion was
filed by petitioner seeking to restrain respondent Mallillin from
continuing to exercise the functions of chairman and to refrain
from demanding courtesy resignations from officers or separating
or dismissing employees of the Commission.
Acting on petitioner's amended petition and supplemental
urgent ex-parte motion, the Court resolved to issue a temporary
restraining order directing respondent Mallillin to cease and desist
from effecting the dismissal, courtesy resignation, i removal and
reorganization and other similar personnel actions. 17 Respondents
were likewise required to comment on said amended petition with
allowance for petitioner to file a reply within two (2) days from
receipt of a copy thereof.
Respondents Senator Salonga, the Commission on Appointments
the Committee on J & BC and Human Rights filed a comment to
the amended petition on 21 February 1989. 18 Petitioner filed her
reply. 19 On 24 February 1989, respondent Mallillin filed a separate
comment. 20 The Court required petitioner to reply to respondent
Mallillin's comment . 21 Petitioner filed her reply. 22
In deference to the Commission on Appointments, an
instrumentality of a co-ordinate and co-equal branch of
government, the Court did not issue a temporary restraining order
directed against it. However, this does not mean that the issues
raised by the petition, as met by the respondents' comments, will
not be resolved in this case. The Court will not shirk from its duty
as the final arbiter of constitutional issues, in the same way that it
did not in Mison.
As disclosed by the records, and as previously adverted to, it is
clear that petitioner Bautista was extended by Her Excellency, the
President a permanent appointment as Chairman of the
Commission on Human Rights on 17 December 1988. Before this
date, she was merely the "Acting Chairman" of the Commission.
Bautista's appointment on 17 December 1988 is an appointment
that was for the President solely to make, i.e., not an appointment
to be submitted for review and confirmation (or rejection) by the
Commission on Appointments. This is in accordance with Sec. 16,
Art. VII of the 1987 Constitution and the doctrine in Mison which
is here reiterated.
The threshold question that has really come to the fore is whether
the President, subsequent to her act of 17 December 1988, and after
petitioner Bautista had qualified for the office to which she had
been appointed, by taking the oath of office and actually assuming
and discharging the functions and duties thereof, could extend
another appointment to the petitioner on 14 January 1989, an "ad
interim appointment" as termed by the respondent Commission on
Appointments or any other kind of appointment to the same office
of Chairman of the Commission on Human Rights that called for
confirmation by the Commission on Appointments.
The Court, with all due respect to both the Executive and
Legislative Departments of government, and after careful
deliberation, is constrained to hold and rule in the negative. When
Her Excellency, the President converted petitioner Bautista's
designation as Acting Chairman to a permanent appointment as
Chairman of the Commission on Human Rights on 17 December
1988, significantly she advised Bautista (in the same appointment
letter) that, by virtue of such appointment, she could qualify and
enter upon the performance of the duties of the office (of Chairman
of the Commission on Human Rights). All that remained for
Bautista to do was to reject or accept the appointment. Obviously,
she accepted the appointment by taking her oath of office before
the Chief Justice of the Supreme Court, Hon. Marcelo B. Fernan
and assuming immediately thereafter the functions and duties of
the Chairman of the Commission on Human Rights. Bautista's
appointment therefore on 17 December 1988 as Chairman of the
Commission on Human Rights was a completed act on the part of
the President. To paraphrase the great jurist, Mr. Chief Justice
Marshall, in the celebrated case of Marbury vs. Madison. 23
xxx xxx xxx
The answer to this question seems an obvious
one. The appointment being the sole act of the
President, must be completely evidenced, when
it is shown that he has done everything to be
performed by him.
xxx xxx xxx
Some point of time must be taken when the
power of the executive over an officer, not
removable at his will must cease. That point of
time must be when the constitutional power of
appointment has been exercised. And this
power has been exercised when the last act,
required from the person possessing the power,
has been performed. ....
xxx xxx xxx
But having once made the appointment, his
(the President's) power over the office is
terminated in all cases, where by law the
officer is not removable by him. The right to
the office is then in the person appointed, and
he has the absolute, unconditional power of
accepting or rejecting it.
xxx xxx xxx
THE "APPOINTMENT" OF PETITIONER BAUTISTA ON 14
JANUARY 1989
It is respondent Commission's submission that the President, after
the appointment of 17 December 1988 extended to petitioner
Bautista, decided to extend another appointment (14 January 1989)
to petitioner Bautista, this time, submitting such appointment
(more accurately, nomination) to the Commission on
Appointments for confirmation. And yet, it seems obvious enough,
both in logic and in fact, that no new or further appointment could
be made to a position already filled by a previously completed
appointment which had been accepted by the appointee, through a
valid qualification and assumption of its duties.
128 HRLAW 08281
Respondent Commission vigorously contends that, granting that
petitioner's appointment as Chairman of the Commission on
Human Rights is one that, under Sec. 16, Art. VII of the
Constitution, as interpreted in the Mison case, is solely for the
President to make, yet, it is within the president's prerogative
to voluntarily submit such appointment to the Commission on
Appointment for confirmation. The mischief in this contention, as
the Court perceives it, lies in the suggestion that the President (with
Congress agreeing) may, from time to time move power
boundaries, in the Constitution differently from where they are
placed by the Constitution.
The Court really finds the above contention difficult of acceptance.
Constitutional Law, to begin with, is concerned with power not
political convenience, wisdom, exigency, or even necessity.
Neither the Executive nor the Legislative (Commission on
Appointments) can create power where the Constitution confers
none. The evident constitutional intent is to strike a careful and
delicate balance, in the matter of appointments to public office,
between the President and Congress (the latter acting through the
Commission on Appointments). To tilt one side or the other of the
scale is to disrupt or alter such balance of power. In other words, to
the extent that the Constitution has blocked off certain
appointments for the President to make with the participation of the
Commission on Appointments, so also has the Constitution
mandated that the President can confer no power of participation in
the Commission on Appointments over other appointments
exclusively reserved for her by the Constitution. The exercise of
political options that finds no support in the Constitution cannot be
sustained.
Nor can the Commission on Appointments, by the actual exercise
of its constitutionally delimited power to review presidential
appointments, create power to confirm appointments that the
Constitution has reserved to the President alone. Stated differently,
when the appointment is one that the Constitution mandates is for
the President to make without the participation of the Commission
on Appointments, the executive's voluntary act of submitting such
appointment to the Commission on Appointments and the latter's
act of confirming or rejecting the same, are done without or in
excess of jurisdiction.
EVEN IF THE PRESIDENT MAY VOLUNTARILY SUBMIT
TO THE COMMISSION ON APPOINTMENTS AN
APPOINTMENT THAT UNDER THE CONSTITUTION
SOLELY BELONGS TO HER, STILL, THERE WAS NO
VACANCY TO WHICH AN APPOINTMENT COULD BE
MADE ON 14 JANUARY 1989
Under this heading, we will assume, ex gratia argumenti, that the
Executive may voluntarily allow the Commission on Appointments
to exercise the power of review over an appointment otherwise
solely vested by the Constitution in the President. Yet, as already
noted, when the President appointed petitioner Bautista on 17
December 1988 to the position of Chairman of the Commission on
Human Rights with the advice to her that by virtue of such
appointment (not, until confirmed by the Commission on
Appointments), she could qualify and enter upon the performance
of her duties after taking her oath of office, the presidential act of
appointment to the subject position which, under the Constitution,
is to be made, in the first place, without the participation of the
Commission on Appointments, was then and there a complete and
finished act, which, upon the acceptance by Bautista, as shown by
her taking of the oath of office and actual assumption of the duties
of said office, installed her, indubitably and unequivocally, as the
lawful Chairman of the Commission on Human Rights for a term
of seven (7) years. There was thus no vacancy in the subject office
on 14 January 1989 to which an appointment could be validly
made. In fact, there is no vacancy in said office to this day.
Nor can respondents impressively contend that the new
appointment or re-appointment on 14 January 1989 was an ad
interim appointment, because, under the Constitutional design, ad
interim appointments do not apply to appointments solely for the
President to make, i.e., without the participation of the Commission
on Appointments. Ad interim appointments, by their very nature
under the 1987 Constitution, extend only to appointments where
the review of the Commission on Appointments is needed. That is
why ad interim appointments are to remain valid until disapproval
by the Commission on Appointments or until the next adjournment
of Congress; but appointments that are for the President solely to
make, that is, without the participation of the Commission on
Appointments, can not be ad interim appointments.

EXECUTIVE ORDER NO. 163-A, 30 JUNE 1987, PROVIDING

THAT THE TENURE OF THE CHAIRMAN AND MEMBERS
OF THE COMMISSION ON HUMAN RIGHTS SHALL BE AT
THE PLEASURE OF THE PRESIDENT IS
UNCONSTITUTIONAL.

Respondent Mallillin contends that with or without confirmation

by the Commission on Appointments, petitioner Bautista, as
Chairman of the Commission on Human Rights, can be removed
from said office at anytime, at the pleasure of the President; and
that with the disapproval of Bautista's appointment (nomination) by
the Commission on Appointments, there was greater reason for
her removal by the President and her replacement with respondent
Mallillin Thus, according to respondent Mallillin the petition at bar
has become moot and academic.

We do not agree that the petition has become moot and academic.
To insist on such a posture is akin to deluding oneself that day is
night just because the drapes are drawn and the lights are on. For,
aside from the substantive questions of constitutional law raised by
petitioner, the records clearly show that petitioner came to this
Court in timely manner and has not shown any indication of
abandoning her petition.

Reliance is placed by respondent Mallillin on Executive Order No.

163-A, 30 June 1987, full text of which is as follows:

WHEREAS, the Constitution does not

prescribe the term of office of the Chairman
and Members of the Commission on Human
Rights unlike those of other Constitutional
Commissions;

NOW, THEREFORE, I, CORAZON C.

AQUINO, President of the Philippines, do
hereby order: By the President:

SECTION 1. Section 2, sub-paragraph (c) of (Sgd.) JOKER P. ARROYO

Executive Order No. 163 is hereby amended to
read as follows:
The Chairman and Members of the
Commission on Human Rights shall be
appointed by the President. Their tenure in
office shall be at the pleasure of the President.
SEC. 2. This Executive Order shall take effect
immediately. DONE in the City of Manila, this
30th day of June, in the year of Our Lord,
nineteen hundred and eighty-seven.
Executive Secretary 24
Previous to Executive Order No. 163-A, or on 5 May 1987,
Executive Order No. 163 25 was issued by the President, Sec. 2(c)
of which provides:
Sec. 2(c). The Chairman and the Members of
the Commission on Human Rights shall be
appointed by the President for a term of seven
years without reappointment. Appointments to
any vacancy shall be only for the unexpired
term of the predecessor.

It is to be noted that, while the earlier executive order (No. (163)

speaks of a term of office of the Chairman and Members ofS the
Commission on Human Rights — which is seven (7) years without g
reappointment — the later executive order (163-A) speaks d of

129 HRLAW 08281

the tenure in office of the Chairman and Members of the
Commission on Human Rights, which is "at the pleasure of the
President."
Tenure in office should not be confused with term of office. As Mr.
Justice (later, Chief Justice) Concepcion in his concurring opinion
in Alba vs. Evangelista, 26 stated:
The distinction between "term" and "tenure" is
important, for, pursuant to the Constitution,
"no officer or employee in the Civil Service
may be removed or suspended except for
cause, as provided by law" (Art. XII, section
4), and this fundamental principle would be
defeated if Congress could legally make the
tenure of some officials dependent upon the
pleasure of the President, by clothing the latter
with blanket authority to replace a public
officer before the expiration of his term. 27
When Executive Order No. 163 was issued, the evident purpose
was to comply with the constitutional provision that "the term of
office and other qualifications and disabilities of the Members of
the Commission (on Human Rights) shall be provided by law"
(Sec. 17(2), Art. XIII, 1987 Constitution).
As the term of office of the Chairman (and Members) of the
Commission on Human Rights, is seven (7) years, without
reappointment, as provided by Executive Order No. 163, and
consistent with the constitutional design to give the Commission
the needed independence to perform and accomplish its functions
and duties, the tenure in office of said Chairman (and Members)
cannot be later made dependent on the pleasure of the President.
Nor can respondent Mallillin find support in the majority opinion
in the Alba case, supra, because the power of the President,
sustained therein, to replace a previously appointed vice-mayor of
Roxas City given the express provision in Sec. 8, Rep. Act No. 603
(creating the City of Roxas) stating that the vice-mayor shall serve
at the pleasure of the President, can find no application to the
Chairman of an INDEPENDENT OFFICE, created not by statute
but by the Constitution itself. Besides, unlike in the Alba case, here
the Constitution has decreed that the Chairman and Members of the
Commission on Human Rights shall have a "term of office."
Indeed, the Court finds it extremely difficult to conceptualize how
an office conceived and created by the Constitution to be
independent as the Commission on Human Rights-and vested with
the delicate and vital functions of investigating violations of human
rights, pinpointing responsibility and recommending sanctions as
well as remedial measures therefor, can truly function with
independence and effectiveness, when the tenure in office of its
Chairman and Members is made dependent on the pleasure of the
President. Executive Order No. 163-A, being antithetical to the
constitutional mandate of independence for the Commission on
Human Rights has to be declared unconstitutional.
The Court is not alone in viewing Executive Order No. 163-A as
containing the seeds of its constitutional destruction. The
proceedings in the 1986 Constitutional Commission clearly point
to its being plainly at war with the constitutional intent of
independence for the Commission. Thus —
MR. GARCIA (sponsor). Precisely, one of the
reasons why it is important for this body to be
constitutionalized is the fact that regardless of
who is the President or who holds the
executive power, the human rights issue is of
such importance that it should be safeguarded
and it should be independent of political parties
130 HRLAW 08281
or powers that are actually holding the reins of
government. Our experience during the martial
law period made us realize how precious those
rights are and, therefore, these must be
safeguarded at all times.
xxx xxx xxx
MR. GARCIA. I would like to state this fact:
Precisely we do not want the term or the power
of the Commission on Human Rights to be
coterminous with the president, because the
President's power is such that if he appoints a
certain commissioner and that commissioner is
subject to the President, therefore, any human
rights violations committed under the person's
administration will be subject to presidential
pressure. That is what we would like to avoid
— to make the protection of human rights go
beyond the fortunes of different political
parties or administrations in power. 28
xxx xxx xxx
MR. SARMIENTO (sponsor). Yes, Madam
President. I conferred with the honorable Chief
Justice Concepcion and retired Justice J.B.L.
Reyes and they believe that there should be an
independent Commission on Human Rights
free from executive influence because many of
the irregularities on human rights violations are
committed by members of the armed forces
and members of the executive branch of the
government. So as to insulate this body from
political interference, there is a need to
constitutionalize it. 29
xxx xxx xxx
MR. SARMIENTO: On the inquiry on whether
there is a need for this to be constitutionalized,
I would refer to a previous inquiry that there is
still a need for making this a constitutional
body free or insulated from interference. I
conferred with former Chief Justice
Concepcion and the acting chairman of the
Presidential Committee on Human Rights,
retired Justice J.B.L. Reyes, and they are one in
saying that this body should be
constitutionalized so that it will be free from
executive control or interferences, since many
of the abuses are committed by the members of
the military or the armed forces. 30
xxx xxx xxx
MR. SARMIENTO. Yes, Congress can create
this body, but as I have said, if we leave it to
Congress, this commission will be within the
reach of politicians and of public officers and
that to me is dangerous. We should insulate
this body from political control and political
interference because of the nature of its
functions to investigate all forms of human
rights violations which are principally
committed by members of the military, by the
Armed Forces of the Philippines. 31
xxx xxx xxx
 MR. GARCIA. The critical factor here is
political control, and normally, when a body is
appointed by Presidents who may change, the
commission must remain above these changes
in political control. Secondly, the other
important factor to consider are the armed
forces, the police forces which have
tremendous power at their command and,
therefore, we would need a commission
composed of men who also are beyond the
reach of these forces and the changes in
political administration. 32
xxx xxx xxx
MR MONSOD. Yes, It is the committee's
position that this proposed special body, in
order to function effectively, must be invested
with an independence that is necessary not only
for its credibility but also for the effectiveness
of its work. However, we want to make a
distinction in this Constitution. May be what
happened was that it was referred to the wrong
committee. In the opinion of the committee,
this need not be a commission that is similar to
the three constitutional commissions like the
COA, the COMELEC, and the Civil Service. It
need not be in that article. 33
while the case or cases against her are pending before said
court. 37 This is due process in action. This is the way of a
government of laws and not of men.
A FINAL WORD
It is to the credit of the President that, in deference to the rule of
law, after petitioner Bautista had elevated her case to this Tribunal,
Her Excellency merely designated an Acting Chairman for the
Commission on Human Rights (pending decision in this case)
instead of appointing another permanent Chairman. The latter
course would have added only more legal difficulties to an already
difficult situation.
WHEREFORE, the petition is GRANTED. Petitioner Bautista is
declared to be, as she is, the duly appointed Chairman of the
Commission on Human Rights and the lawful incumbent thereof,
entitled to all the benefits, privileges and emoluments of said
office. The temporary restraining order heretofore issued by the
Court against respondent Mallillin enjoining him from dismissing
or terminating personnel of the Commission on Human Rights is
made permanent.
SO ORDERED.

xxx xxx xxx

MR. COLAYCO. The Commissioners earlier

objection was that the Office of the President is
not involved in the project. How sure are we
that the next President of the Philippines will
be somebody we can trust? Remember, even
now there is a growing concern about some of
the bodies, agencies and commission created
by President Aquino. 34

xxx xxx xxx

.... Leaving to Congress the creation of the

Commission on Human Rights is giving less
importance to a truly fundamental need to set
up a body that will effectively enforce the rules
designed to uphold human rights. 35

PETITIONER BAUTISTA MAY OF COURSE BE REMOVED

BUT ONLY FOR CAUSE

To hold, as the Court holds, that petitioner Bautista is the lawful

incumbent of the office of Chairman of the Commission on Human
Rights by virtue of her appointment, as such, by the President on
17 December 1988, and her acceptance thereof, is not to say that
she cannot be removed from office before the expiration of her
seven (7) year term. She certainly can be removed but her removal
must be for cause and with her right to due process properly
safeguarded. In the case of NASECO vs. NLRC, 36 this Court held
that before a rank-and-file employee of the NASECO, a
government-owned corporation, could be dismissed, she was
entitled to a hearing and due process. How much more, in the case
of the Chairman of a constitutionally mandated INDEPENDENT
OFFICE, like the Commission on Human Rights.

If there are charges against Bautista for misfeasance or

malfeasance in office, charges may be filed against her with the
Ombudsman. If he finds a prima facie case against her, the
corresponding information or informations can be filed with the
Sandiganbayan which may in turn order her suspension from office
131 HRLAW 08281
G.R. No. 101207 October 1, 1993
COMMISSION ON HUMAN RIGHTS, petitioner,
vs.
CIVIL SERVICE COMMISSION and ATTY. ELIAS V.
PACETE, respondents.
ROMERO, J.:
Atty. Elias Pacete, a permanent appointee since February 1, 1988
to the position of Division Chief of Region IX of the Commission
of Human Rights (CHR) based in Zamboanga City, filed an
application for optional retirement pursuant to Rep. Act No.
1616,1 dated June 17, 1989 effective July 31, 1989 because of
failing eyesight. On July 7, 1989, however, Pacete sent a notice of
withdrawal of his application for retirement. On July 17, 1989,
Pacete was informed by the Chairman of the CHR through a
telegram of the acceptance and approval of his application for
optional retirement effective July 31, 1989 and the appointment of
Atty. Rodrigo Roy as his successor effective August 1, 1989.
On August 25, 1989, the Government Service Insurance System
(GSIS) informed private respondent that his application for
optional retirement cannot be favorably considered due to his
failure to meet the condition provided for in Section 12 (c) of Rep.
Act No. 1616,2 as amended, requiring three (3) years of continuous
service preceding retirement. Consequently, the GSIS advised the
CHR to allow Pacete to continue in the service to complete the said
requirement.
Accordingly, Pacete requested the CHR that he be reinstated to his
former position with back wages and allowances and the recall of
the appointment of his successor, Atty. Roy. On October 18, 1989,
the CHR through a resolution, denied his request and instead
formally charged him with incompetence, gross inefficiency in the
performance of official duty and failure to account for public
funds.3
On May 27, 1990, Pacete, after being informed of the action taken
by the CHR elevated his case to the Merit Systems Protection
Board (MSPB). On August 31, 1990, the MSPB ordered the
immediate reinstatement of private respondent his former position
with payment of back wages and other benefits, allowed by law
without prejudice to the outcome of the formal charges against
him.4
Upon learning of the favorable decision in favor of private
respondent, Atty. Roy forthwith stepped down a Regional Field
Officer on October 1,
1990.5
The CHR, through its then Chairman, Mary Concepcion Bautista,
filed a motion for reconsideration dated October 15, 1990.6 On
January 10, 1991, the Board affirmed its August 31, 1990
decision.7 On February 11, 1991, petitioner appealed the decision
of the MSPB to the Civil Service Commission which affirmed the
decision of the MSPB on July 25, 1991.8
Meanwhile, because of private respondent's failure to settle his
accountability as Regional Field Officer in the amount of
P114,758.60, the CHR referred this matter to the Office of the
Ombudsman for the filing of appropriate criminal charges against
him on July 26, 1991.
Hence this petition, the issue being whether or not public
respondent CSC gravely abused its discretion in ordering therein
statement of private respondent and the payment of his back wages.
132 HRLAW 08281
It is the argument of petitioner that the disapproval of private
respondent's application for optional retirement by the GSIS did
not vest in him the right to demand reinstatement from
petitioner.9 Moreover, it is the stand of petitioner that private
respondent cannot be reinstated because it has the right to
summarily remove and replace incompetent employees under
Section 40 of Pres. Decree No. 807 (The Civil Service Decree).
We affirm the decision of the Civil Service Commission.
The issue in this case revolves around the optional retirement of
private respondent. The collateral issues of his incompetence and
inefficiency are questions of fact which this court has no
jurisdiction to pass upon.
We note that the charges of incompetence and inefficiency came
belatedly only after petitioner's application for optional retirement
had already been approved. But was the petitioner justified in
refusing to allow Pacete to continue rendering service to fulfill the
requirements under Rep. Act No. 1616? We must refer to the law
in point. Petitioner cites paragraph (d) of Section 12 of Com. Act
186 as basis for its power of removal of its personnel on grounds of
inefficiency and incompetence:
(d) The employer concerned may request the
retirement of any such employee described in
the preceding subsection who, by reason of a
disqualification, is unable to perform
satisfactorily and efficiently the duties of his
position or some other position of the same
grade or class as that occupied by the employee
and to which he could be assigned, but such
request shall be submitted to the Civil Service
Board of Appeals only after the said employee
had been notified in writing of the proposed
retirement. No such employee, however, shall
be so retired unless the Civil Service Board of
Appeals has given him a hearing and found
him after examination that he is so disqualified.
The decision of the Civil Service Board of
Appeals as to whether or not the said employee
shall be retired under this sub-section shall be
final and conclusive. (Emphasis supplied)
Indisputably, the aforequoted paragraph allows an employer to
request retirement of an employee who is unable to perform
satisfactorily and efficiently his duties, but such request must first
be submitted to the Civil Service Board of Appeals and only after
said employee shall have been notified in writing of the proposed
retirement. The above provision recognizes the discretion of the
head of office in the approval of an employee's optional retirement,
but such discretion must be exercised without violating the tenets
of administrative due process.
We find that there was a glaring disregard of this procedure laid
down in the law. In fact, the October 18, 1989 resolution of the
CHR denying him reinstatement for failure to fulfill the three-year
requirement of continuous service preceding retirement was
reached without notice and hearing. Much less was there any
request for optional retirement of private respondent from the CHR
to the Civil Service Board of Appeals based on incompetence and
inefficiency. Although he was furnished a copy of the resolution
denying his application for reinstatement with the attendant
charges against him, he was not afforded the opportunity to refute
them prior to the promulgation of the said resolution. The records
disclose that the petitioner required private respondent to answer
the charges of alleged incompetence and inefficiency in the same
resolution which denied his reinstatement. The attempt to observe
due process was made only after he had been separated from the
service. The refusal of the CHR to restore Pacete to his former
position, being tantamount to termination without valid cause, the
MSPB decreed back wages in private respondent's favor.

From the facts, it is clear that prior to the withdrawal of his

application to retire optionally, Pacete's separation from service
was premised on his desire to retire because of defective eyesight.
With petitioner's denial of Pacete's reinstatement, it would now
appear that the latter's separation was due to incompetence and
inefficiency. Such cause was based on the alleged serious
administrative charges filed against him which were first
formalized by the CHR in the form of a resolution only on October
18, 1989, 2 months and 18 days after the CHR considered him
separated from service due to its acceptance of Pacete's application
for optional retirement effective July 31, 1989. Obviously,
petitioner had to devise a ground for the separation of private
respondent when it realized that its approval of his application for
optional retirement failed to separate him definitively from the
service.

To aver that the real cause which precipitated the approval of the
optional retirement of private respondent was the latter's
incompetence and inefficiency based on CHR's proffere devidence
and that its approval was an opportune time to separate him from
the service 10 smacks more of a subterfuge to ease him out since the
charges were leveled against him only after the GSIS had
disapproved his application due to non-fulfillment of the three-year
requirement of continuous service preceding retirement.

If petitioner were sincere in its denial of reinstatement to private

respondent, it should have filed the administrative charges
beforehand, not after it had allowed private respondent to undergo
the process leading to his retirement from the service. Granted that
an employee is guilty of incompetence and inefficiency, an
employer should seasonably file administrative charges against him
and marshal the needed evidence instead of springing these, on him
as he is about to retire. Such a treatment is, to put it mildly, unfair
and certainly, totally unexpected and uncalled for from a
government agency whose avowed mission is to protect and
promote human rights.

Consequently, since the resolution denying reinstatement was

issued without conforming to the requirements of due notice and
hearing, private respondent's dismissal from service was illegal. It
constituted a blatant violation of Section 46 of the Administrative
Code of 1987 and Section 36 of Pres. Decree No. 807 which
provides that "No officer or employee in the Civil Service shall be
suspended or dismissed except for cause as provided by law and
after due process," not to speak of a similar provision under Article
IX B, Sec. 2 (3) of the 1987 Constitution on the Civil Service
Commission. 11 If petitioner wishes to dismiss private respondent
for cause, the latter must be allowed to return to his previous
position so that he may avail himself of the opportunity to refute
the charges imputed to him. It should be pointed out, however, that
he may not be able to fulfill the three-year requirement if the CHR
succeeds in proving the charges of incompetence and inefficiency
through a hearing as laid down in paragraph (d) of Section 12 of
CA 186.

In conclusion, petitioner argues that considering the seriousness of

the charges against,, private respondent, it is justified in summarily
dismissing the latter based on Section 40 of Pres. Decree No. 807,
known as the Civil Service Decree. 12 Petitioner can no longer seek
refuge in this legal provision since the same has been repealed by
Rep. Act No. 6654. 13

WHEREFORE, the decision of the Civil Service Commission

dated August 31, 1990 is AFFIRMED in toto.

133 HRLAW 08281

OFFICE OF THE OMBUDSMAN v. CIVIL SERVICE
COMMISSION 451 SCRA 570 (2005)
Melchor Carandang, Paul Elmer Clemente and Jose Tereso De
Jesus, Jr., were appointed Graft Investigation Officers III of the
Office of the Ombudsman. The Civil Service Commission (CSC)
approved the appointments on the condition that for the appointees
to acquire security of tenure, they must first obtain a Career
Executive Service (CES). The Ombudsman requested to the CSC
for the change of status from temporary to permanent, of the
appointments of Carandang, Clemente and De Jesus, emphasizing
that since the Office of the Ombudsman is not governed by the
Career Executive Service Board, security of tenure can be granted
despite the absence of CES eligibility. CSC changed the status of
Carandang‘s and Clemente‘s appointments to permanent but not
with respect to De Jesus on the ground that he “has not met
the eligibility requirements. Hence, this petition for ceritiorari filed
by the Office of the Ombudsman seeking to nullify the CSC
Resolution.
ISSUE:
Whether or not the general power of the Civil Service
Commission to administer civil service cannot validly curtail the
specific discretionary power of appointment including the grant of
security of tenure by the Office of the Ombudsman
HELD:
Book V, Title I, Subtitle A of the Administrative Code of 1987
provides persons occupying positions in the CES are presidential
appointees. A person occupying the position of Graft Investigation
Officer III is not, however, appointed by the President but by the
Ombudsman as provided in Article IX of the Constitution.
To classify the position of Graft Investigation Officer III as
belonging to the CES and require an appointee thereto to acquire
CES or CSE eligibility before acquiring security of tenure would
be absurd as it would result either in 1) vesting the appointing
power for said position in the President, in violation of the
Constitution; or 2) including in the CES a position not occupied by
a presidential appointee, contrary to the Administrative Code. It
bears emphasis that that under P.D. No 807, Sec. 9(h) which
authorizes the CSC to approve appointments to positions in the
civil service, except those specified therein, its authority is limited
“only to [determine] whether or not the appointees possess the
legal qualifications and the appropriate eligibility, nothing else.”11
It is not disputed that, except for his lack of CES or CSE eligibility,
De Jesus possesses the basic qualifications of a Graft Investigation
Officer III, as provided in the earlier
quoted Qualification Standards. Such being the case, the CSC has
the ministerial duty to grant the request of the Ombudsman that
appointment be made permanent effective December 18, 2002. To
refuse to heed the request is a clear encroachment on the discretion
vested solely on the Ombudsman as appointing authority. It goes
without saying that the status of the appointments of Carandang
and Clemente, who were conferred CSE eligibility pursuant to
CSC Resolution No. 03-0665 dated June 6, 2003, should be
changed to permanent effective December 18, 2002 too.
G.R. No. 159940 February 16, 2005
OFFICE OF THE OMBUDSMAN, petitioner,
vs.
CIVIL SERVICE COMMISSION, Respondent.
DECISION
134 HRLAW 08281
CARPIO-MORALES, J.:
Before this Court is a petition for certiorari under Rule 65 of the
1997 Revised Rules of Court seeking to set aside and nullify
Resolution No. 030919 of the Civil Service Commission (CSC)
dated August 28, 2003.
The antecedents of the case are as follows:
By letter1 dated March 7, 1994 addressed to then Ombudsman
Conrado M. Vasquez, the CSC approved the Qualification
Standards for several positions in the Office of the Ombudsman
(petitioner) including that for Graft Investigation Officer III. The
Qualification Standards for said position are:
EDUCATION: Bachelor of Laws
EXPERIENCE: 5 years of experience in the practice of law,
counseling, investigation/ prosecution of cases, hearings of
administrative/ criminal cases, legal research or other related work.
TRAINING: 24 hours of relevant training
ELIGIBILITY: RA 1080 (Bar)
The Career Executive Service Board (CESB) subsequently advised
the Ombudsman, by letter of May 29, 1996,2 that pursuant to CSC
Memorandum Circular No. 21, s.1994, the position of Graft
Investigation Officer III, among other positions in petitioner
therein mentioned, was classified as a Career Executive Service
(CES) position, hence, governed by the rules of the CES pertaining
to eligibility, appointment to CES ranks, and performance
evaluation, among other things.1awphi1.nét
On September 29, 1999, the members of the Constitutional Fiscal
Autonomy Group (CFAG), namely: the Commission on Elections
(COMELEC), CSC, Commission on Audit (COA), Commission on
Human Rights (CHR), petitioner and this Court adopted Joint
Resolution No. 623 reading:
JOINT RESOLUTION NO. 62
WHEREAS, the independence of the members of the
Constitutional Fiscal Autonomy Group (CFAG) is guaranteed by
the Constitution;
WHEREAS, the Constitution has several provisions that guarantee
and protect such independence, among which are Sections 4 and 5
of Article IX, A thereof, which respectively grant them Fiscal
Autonomy and authorize them to appoint their own officials and
employees in accordance with law;
WHEREAS, Section 7(3), Title I, Book V of the Administrative
Code of 1987 enumerates exclusively and restrictively the
specific positions under the Career Executive Service, all the
holders of which are appointed by the President and are
required to have CES eligibility;
WHEREAS, in case of Home Insurance Guaranty Corporation vs.
Civil Service Commission and Daniel Cruz, G.R. No. 95450, dated
19 March 1993, the Supreme Court nullified the classification by
the CSC of the position of Corporate Vice President as belonging
to the third level of the Career Executive Services;
WHEREAS, the Court declared in the above cited case that said
position is not among those enumerated by law as falling under the
third level, nor one of those identified by the CES Board as
equivalent rank to those listed by law, nor was the incumbent
appointed by the President;
WHEREAS, in the case of Sixto Brillantes, Jr. vs. Haydee T.
Yorac, G.R. No. 93867, dated 18 December 1990, the Supreme
Court ruled that "Article IX-A, Sec. 1 of the Constitution expressly
describes all Constitutional Commissions as ‘Independent.’
Although essentially executive in nature, they are not under the
control of the President of the Philippines in the discharge of their
respective functions."
WHEREAS, only the Chairmen and Commissioners of the
Constitutional Commissions, the Commission on Human Rights,
Justices and Judges, as well as the Ombudsman and his Deputies,
are appointed by the President;
WHEREAS, the Constitutional Commissions, the Supreme
Court, the Commission on Human Rights, and the Office of the
Ombudsman are empowered to appoint officials and employees
to positions belonging to first level up to third level of their
respective agencies, and that they are not presidential
appointees;
WHEREAS, Section 22 par. 1, Chapter 5, Subtitle A, Title I, Book
V, of the Administrative Code of 1987, provides in part that "[t]he
degree of qualifications of an officer or employee shall be
determined by the appointing authority on the basis of the
qualification standard for the particular positions[,]" and par. 2
thereof provides that [t]he establishment, administration and
maintenance of qualification standards shall be the responsibility of
the department or agency, with the assistance and approval of the
Civil Service Commission…;"
NOW, THEREFORE, the CFAG jointly resolves:
1. That all third level positions under each member
agency are career positions;
2. That, where appropriate and proper, taking into
consideration the organizational set-up of the agency
concerned, the overall screening and selection process
for these positions shall be a collegial undertaking,
provided that the appointment paper shall be signed only
by the Head of the member agency;
3. That all career third level positions identified and
classified by each of the member agency
are notembraced within the Career Executive Service
(CES) and as such shall not require Career Service
Executive Eligibility (CSEE) or Career Executive
Service (CES) Eligibility for purposes of permanent
appointment;
4. That should CFAG member agencies develop their
respective eligibility requirements for the third level
positions, the test of fitness shall be jointly undertaken by
the CFAG member agencies in coordination with the
CSC;
5. That in case the test of fitness shall be in written form,
the CSC shall prepare the questionnaires and conduct the
examinations designed to ascertain the general aptitude
of the examinees while the member agency shall likewise
prepare the questionnaires and conduct in conjunction
with the CSC, the examinations to determine the
technical capabilities and expertise of the examinees
suited to its functions;
135 HRLAW 08281
6. That the resulting eligibility acquired after passing the
aforementioned examination shall appropriate for
permanent appointment only to third level positions in
the CFAG member agencies;
7. That the member agencies shall regularly coordinate
with the CSC for the conferment of the desired eligibility
in accordance with this Resolution; However this is
without prejudice to those incumbents who wish to take
the Career Service Executive Examination given by the
Civil Service Commission or the Management Aptitude
Test Battery given by the Career Executive Service
Board. (Underscoring in the original omitted; emphasis,
italics and underscoring supplied)1awphi1.nét
On July 31, 2002, Melchor Arthur H. Carandang, Paul Elmer M.
Clemente and Jose Tereso U. de Jesus, Jr. were appointed Graft
Investigation Officers III of petitioner by the Ombudsman. The
CSC approved the appointments on the condition that for the
appointees to acquire security of tenure, they must obtain CES or
Civil Service Executive (CSE) eligibility which is governed by the
CESB.
By January 2, 2003 letter to the CSC, the Ombudsman requested
for the change of status, from temporary to permanent, of the
appointments of Carandang, Clemente and De Jesus effective
December 18, 2002. Invoking the Court of Appeals ruling in Khem
N. Inok v. Hon. Corazon Alma de Leon, et al. (CA-G.R. SP No.
49699), "as affirmed by the Supreme Court," the Ombudsman
wrote:
xxx
In the Decision of the Court of Appeals dated January 28, 2001
on CA G.R. SP No. 49699 as affirmed by the Supreme Court
with finality on July 2, 2002 in G.R. No. 148782 entitled ‘Khem
N. Inok vs. Civil Service Commission,’ it stated in said Decision
that the letter and intent of the law is to circumscribe the
Career Executive Service (CES) to CES positions in the
Executive Branch of Government, and that the Judiciary, the
Constitutional Commissions, the Office of the Ombudsman and
the Commission on Human Rights are not covered by the
CES governed by the Career Executive Service Board. Said
Decision thereby effectively granted the petition of Mr. Inok
for security of tenure as Director II of the Commission on
Audit despite the absence of a CES eligibility.4 (Emphasis and
italics supplied)
The relevant portions of the cited CA decision read:
Presidential Decree No. 807, otherwise known as the Civil Service
Decree of the Philippines, provides the following levels of position
in the career service, viz:
SEC. 7. Classes of Positions in the Career Service. –
(a) Classes of positions in the career service appointment
to which requires examinations shall be grouped into
three major levels as follows:
(1) The first level shall include clerical, trades,
crafts, and custodial service positions which
involve non-professional or subprofessional
work in a non-supervisory or supervisory
capacity requiring less than four years of
collegiate studies;
(2) The second level shall include professional,
technical, and scientific positions which
 involve professional; technical, or scientific
work in a non-supervisory or supervisory
capacity requiring at least four years of college
work up to Division Chief level; and
(3) The third level shall cover positions in
the Career Executive Service.
(b) Except as herein otherwise provided, entrance to the
first two levels shall be through competitive
examinations, which shall be open to those inside and
outside the service who meet the minimum qualification
requirements. Entrance to a higher level does not
require previous qualification in a lower level.
Entrance to the third level shall be prescribed by the
Career Executive Service Board.
(c) Within the same level, no civil service examination
shall be required for promotion to a higher position in
one or more related occupational groups. A candidate for
promotion should however, have previously passed the
examination for that level.
The last sentence of Section 7(b) of P.D. No. 807 is similar to the
provision of P.D. No. 1, Article IV, par. IV, par. 5(a), to wit:
(a) Membership. A person who meets such managerial experience
and other requirements and passes such examinations as may be
prescribed by the Board shall be included in the register of career
service eligibles and, upon appointment to an appropriate class in
the Career Executive Service, become an active member in the
Service. In exceptional cases, the Board may give unassembled
examinations for eligibility. The area of recruitment shall be
government-wide, with provisions to allow qualified or outstanding
men from outside the government to enter the service.
Thus, it could be gleaned from P.D. No. 1 of the Career Executive
Service (CES), which has been [d]rafted into Executive Order No.
292, that the letter and intent of the law is to circumscribe the
Career Executive Service to CES positions in the Executive Branch
of government. Verily, consistent with the principle of the ejusdem
generis in legal hermeneutics, the phrase "other officers of
equivalent rank" could encompass only such persons occupying
positions in the Executive Department. In the contemporaneous
case of the The Secretary of Justice Serafin R. Cuevas, et. al. vs.
Atty. Josefina G. Bacal, the Supreme Court lent credence to this
postulate, viz:
Security of tenure in the career executive service is acquired with
respect to rank and not to position. The guarantee of security of
tenure to members of the CES does not extend to the particular
positions to which they may be appointed – a concept which is
applicable only to frst and second level employees in the civil
service – but to the rank to which they are appointed by the
President. x x x
Prescinding from the foregoing disquisition, We are loathe to
stamp our imprimatur to the Commission’s stance that the
"positions of Director III, including that of the COA, belong to the
third level. Hence, appointees thereto should possess the x x x
Career Executive Service (CES) Eligibility in accordance with the
Qualification Standard of the said position."
Ineluctably, the judiciary, the Constitutional Commissions, the
Office of the Ombudsman, and the Commission on Human
Rights are not covered by the CES governed by the CESB. The
power of these constitutional offices to appoint their own officers
and employees is mainly intended to safeguard their independence,
which is the same power of appointment of all officials and
136 HRLAW 08281
employees of the judiciary granted to the Supreme
Court.l^vvphi1.net As commented by a noted constitutionalist:
The authority of the Supreme Court to appoint its own officials and
employees is another measure intended to safeguard the
independence of the judiciary. However, the Court’s appointing
authority must be exercised in accordance with the Civil Service
Law.
Irrefragrably, inherent in the power to appoint is the power to
administratively supervise the officials and employees in the
constitutional offices – in the same manner that the express power
to appoint carries with it the implied power to remove the
personnel appointed in said offices. x x x
xxx
Parenthetically, the power to administratively supervise is designed
to strengthen the independence of the constitutional offices. A
respected authority on political law underscored the multifarious
factors that are integral to the independence of the constitutional
offices, scilicet:
There are several factors that preserve the independence of the
three Commissions:
xxx
(3) Their appointment must be in a permanent capacity.
(4) The Commissions enjoy their own fiscal autonomy.
The independence of these constitutional offices serves to exempt
their respective officials and employees from the coverage of the
CES under the administrative authority of the CESB. to be sure,
they are embraced by the civil service system. However, the
administrative functions belong to the constitutional offices,
instead of the CESB – in the same manner that the Supreme Court
administers the judiciary’s civil service.
x x x5 (Italics and emphasis in the original;
underscoring partly in the original and partly supplied;
citations omitted)
It appears that Carandang and Clemente were in the meantime
conferred with CSE Eligibility pursuant to CSC Resolution No. 03-
0665 dated June 6, 2003.6
Petitioner subsequently reclassified several positions by Resolution
No. 02-03 dated August 18, 2003 including Graft Investigation
Officer III which was reclassified to Graft Investigation and
Prosecution Officer III. The Ombudsman thereupon requested the
approval of the proposed Qualification Standards for the
reclassified positions. With respect to the reclassified Graft
Investigation and Prosecution Officer III position, the Qualification
Standards were the same as those for Graft Investigation Officer
III.
Subsequently, the CSC, by the challenged Resolution of August
28, 2003, changed the status of Carandang’s and Clemente’s
appointments to permanent effective June 6, 2003, but not with
respect to De Jesus on the ground that he "has not met the
eligibility requirements." The pertinent portion of the questioned
Resolution reads:
Relevant to the matter are Sections 4 and 6, Rule III and Rule VI,
respectively, of the Omnibus Rules on Appointments and Other
Personnel Action, which state:
SEC. 4. Nature of Appointment. The nature of appointment shall
be as follows:
xxx
i. Change of status:
1. temporary to permanent – the appointment issued to a temporary
employee when he acquires the appropriate eligibility or becomes
fully qualified for the position to which he is appointed.
xxx
SEC. 6. In cases where the appointee fully qualifies for the position
to which he is temporarily appointed, the appointing authority shall
no longer issue an appointment for change of status from
temporary to permanent. Upon the appointee’s presentation of the
required document/s, such change may be effected as a footnote on
the temporary appointment issued, copy furnished the Commission.
It is explicitly provided therein that the change of status from
temporary to permanent can be effected only once the
appointee becomes fully qualified to the position to which he is
appointed.
xxx
The pronouncement of the Court of Appeals in the Inok case
cannot be made the basis for changing the employment status of De
Jesus. Let it be stressed that nowhere in the aforesaid decision
states that the Office of the Ombudsman or the other constitutional
agencies mentioned therein are exempt or are not covered by the
Civil Service Law and Rules. On the contrary, the same decision
declares that these bodies are covered by the civil service system.
Basic is the rule that all appointments in the government service,
particularly the career service, must be in accordance with the
qualification requirements as laid down under existing civil service
rules and regulations. Such policy is in line with the Commission’s
mandate to professionalize the civil service. The requirements
spelled out in the Qualification Standards (QS) Manual are
designed to determine the fitness of the appointee in a certain
position. These requirements are indispensable in order to
satisfy the Constitutional mandate that appointment in the civil
service shall be made according to merit and fitness.
While it is true that constitutional agencies such as the Office of
the Ombudsman has the authority to appoint its officials in
accordance with law, such law does not necessarily imply that their
appointment will not be subject to Civil Service Law and Rules;
otherwise, these independent bodies will arrogate upon themselves
a power that properly belongs to the Civil Service Commission.
Had the intention of the framers of the Constitution been to isolate
and grant full independence to Constitutional Commissions in the
matter of appointments, it would have been so provided. But that is
not the case. the Philippine Constitution provides: "The
Constitutional Commissions shall appoint their officials and
employees in accordance with law" (Article IX-A, Section 4).
Specifically, Section 6, Article XI of the Constitution states that
"The officials, shall be appointed by the Ombudsman according to
the Civil Service Law." And since all matters pertaining to
appointments are within the realm of expertise to the CSC, all laws,
rules and regulations it issues on appointments must be complied
with.
137 HRLAW 08281
The Constitution speaks of only ‘one’ civil service, to encompass
the first, second, and third levels. It is subject to the same set of
laws, rules and regulations in the manner of observing and ensuring
that the merit and fitness principle, unless otherwise exempted
therefrom by the Constitution or law, is the guiding factor in
issuing appointments. Hence, until and unless there is a law or rule
exempting one category of public officials from the test in
determining merit and fitness, all levels in the government are
deemed subject to it. Simply put, the third level eligibility
requirement for third level officials in all agencies is mandatory.
Further, let it be clarified that the ruling enunciated in Inok case
was with regard to the authority of the Career Executive Service
Board to prescribe and to administer the Career Executive Service
Eligibility and it did not specifically nor particularly take away the
functions of the Civil Service Commission. This is evident from
the aforequoted decision in the Inok case, to wit:
The independence of these constitutional offices serves to exempt
their respective officials and employees from the coverage of the
CES under the administrative authority of the CESB. To be sure,
they are embraced by the civil service system. However, the
administrative functions belong to the constitutional offices,
instead of the CESB – in the manner that the Supreme Court
administers the judiciary’s civil service.
Pursuant to the QS Manual, a Graft Investigation Officer III
position is a career service position requiring a Career Service
Eligibility or Career Service Executive Eligibility. Considering
that De Jesus has not met the eligibility requirement, the
change of status of his appointment from temporary to
permanent cannot be effected. As held in Achacoso vs.
Macaraig, 195 SCRA 235:
It is settled that a permanent appointment can be issued only ‘to a
person who meets all the requirements for the position to which he
is appointed, including the appropriate eligibility prescribed.’
Achacoso did not. At best, therefore, his appointment could be
regarded only as temporary.
x x x (Underscoring partly in the original and partly supplied;
emphasis supplied)
Hence, the present petition anchored on the following ground:
THE GENERAL POWER OF RESPONDENT CIVIL SERVICE
COMMISSION (CSC) TO ADMINISTER THE CIVIL SERVICE
CANNOT CONSTITUTIONALLY AND VALIDLY CURTAIL
THE SPECIFIC DISCRETIONARY POWER OF
APPOINTMENT, INCLUDING THE GRANT OF SECURITY
OF TENURE, BY THE OMBUDSMAN AS AN INDEPENDENT
CONSTITUTIONAL BODY IN FAVOR OF THE LATTER’S
OWN OFFICIALS, AND ANY SUCH CURTAILMENT BY THE
RESPONDENT CSC, AS IN ITS IMPUGNED RESOLUTION
NO. 030919 DATED 26 AUGUST 2003, IS
CONSTITUTIONALLY AND LEGALLY INFIRM.
Petitioner contends that the CSC misreads the ratio of the appellate
court decision in Inok. It contends that the Ombudsman, as an
appointing authority, "is specifically tasked by the Constitution to
choose his own qualified personnel, which includes the lesser
power of granting security of tenure to his appointees once the
basic qualification requirements are satisfied."7
Petitioner likewise contends that its constitutional discretion as an
independent appointing authority cannot be curtailed by the CSC
which "has no authority to review the appointments made by other
offices except only to ascertain if the appointee possesses the
required qualifications."8
Petitioner further contends that the CES Eligibility, as administered
by the respondent CESB, cannot be validly made a requisite for the
attainment of security of tenure on qualified career officials of
petitioner who are not legally part of the CES.
Finally, petitioner argues that its officials which are appointed by
the Ombudsman are technically classified as belonging to the
Closed Career Service, the positions being unique and highly
technical as they involve investigatorial, quasi-judicial and
prosecutorial functions, in much the same way as judges are
involved in judicial functions. Hence, petitioner concludes,
appointment to such positions is likewise characterized by security
of tenure.
During the pendency of the case before this Court, the CSC, by
Resolution9 No. 040738 dated July 6, 2004, approved the proposed
Qualification Standards for Graft Investigation and Prosecution
Officer I, II and III. As proposed, the following Qualification
Standards for Graft Investigation and Prosecution Officer III were
approved:
Education : Bachelor of Laws
Experience : Five (5) years of experience in the practice
of law, counseling, investigation/ prosecution of cases,
hearings of administrative/criminal cases, legal research
or other related works
Training : 24 hours of relevant training
Eligibility : RA 1080 (BAR)
The petition is impressed with merit.
That the positions subject of the present case are unique and highly
technical in nature, as are those of the Judiciary, is recognized by
the constitutional offices under the earlier quoted Joint Resolution
No. 62 of the CFAG of which CSC is a member.10
Inok cannot be invoked as precedent in arriving at the question
raised in this petition.l^vvphi1.net This Court dismissed the petition
of the CSC in the Inok case on a technicality – therein petitioner
CSC’s failure to file a reply within the required period – and not on
the merits.
Book V, Title I, Subtitle A of the Administrative Code of 1987
provides:
SECTION 7. Career Service. – The Career Service shall be
characterized by (1) entrance based on merit and fitness to be
determined as far as practicable by competitive examination, or
based on highly technical qualifications; (2) opportunity for
advancement to higher career positions; and (3) security of tenure.
The Career Service shall include:
(1) Open Career positions for appointment to which prior
qualification in an appropriate examination is required;
(2) Closed Career positions which are scientific, or
highly technical in nature; these include the faculty and
academic staff of state colleges and universities, and
scientific and technical positions in scientific or research
institutions which shall establish and maintain their own
merit systems;
(3) Positions in the Career Executive Service;
namely, Undersecretary, Assistant Secretary, Bureau
138 HRLAW 08281
Director, Assistant Bureau Director, Regional Director,
Assistant Regional Director, Chief of Department
Service and other officers of equivalent rank as may
be identified by the Career Executive Service Board,
all of whom are appointed by the President;
x x x (Emphasis and underscoring supplied)
From the above-quoted provision of the Administrative Code,
persons occupying positions in the CES are presidential appointees.
A person occupying the position of Graft Investigation Officer III
is not, however, appointed by the President but by the Ombudsman
as provided in Article IX of the Constitution, to wit:
SECTION 6. THE OFFICIALS AND EMPLOYEES OF THE
OMBUDSMAN, OTHER THAN THE DEPUTIES, SHALL BE
APPOINTED BY THE OMBUDSMAN ACCORDING TO THE
CIVIL SERVICE LAW.
To classify the position of Graft Investigation Officer III as
belonging to the CES and require an appointee thereto to acquire
CES or CSE eligibility before acquiring security of tenure would
be absurd as it would result either in 1) vesting the appointing
power for said position in the President, in violation of the
Constitution; or 2) including in the CES a position not occupied by
a presidential appointee, contrary to the Administrative Code.
It bears emphasis that that under P.D. No 807, Sec. 9(h) which
authorizes the CSC to approve appointments to positions in the
civil service, except those specified therein, its authority is limited
"only to [determine] whether or not the appointees possess the
legal qualifications and the appropriate eligibility, nothing else."11
It is not disputed that, except for his lack of CES or CSE eligibility,
De Jesus possesses the basic qualifications of a Graft Investigation
Officer III, as provided in the earlier quoted Qualification
Standards. Such being the case, the CSC has the ministerial duty to
grant the request of the Ombudsman that appointment be made
permanent effective December 18, 2002. To refuse to heed the
request is a clear encroachment on the discretion vested solely on
the Ombudsman as appointing authority.12 It goes without saying
that the status of the appointments of Carandang and Clemente,
who were conferred CSE eligibility pursuant to CSC Resolution
No. 03-0665 dated June 6, 2003, should be changed to permanent
effective December 18, 2002 too.
In a Supplemental Memorandum13 received by this Court on
January 5, 2005, the CSC alleged that, inter alia:
. . . the reclassified G[raft] I[nvestigation and] P[rosecution]
O[fficer] III position is the same position which is the subject of
the herein case. Suffice it to state that the eligibility requirement
under the new QS is no longer third level eligibility but RA 1080
(BAR) instead. However, notwithstanding the said approval of the
new QS for GIPO III, CSC prays that the issues raised by the
Office of Ombudsman relative to the authority of the CSC to
administer the Civil Service Executive Examination for third level
positions and to prescribe third level eligibility to third level
positions in the Office of the Ombudsman be resolved.
As the Court takes note of the information of the CSC in its
Supplemental Memorandum, it holds that third level eligibility is
not required for third level officials of petitioner appointed by the
Ombudsman in light of the provisions of the Constitution vis a
vis the Administrative Code of 1987 as discussed above.
WHEREFORE, the petition is hereby GRANTED. Resolution
No. 030919 of the Civil Service Commission dated August 28,
2003 is hereby SET ASIDE. The appointment of Jose Tereso U. de
Jesus, Jr., as well as those of Melchor Arthur H. Carandang, Paul
Elmer M. Clemente, is hereby ordered made permanent effective
December 18, 2002.

SO ORDERED.

139 HRLAW 08281

Yumol vs Atty. Ferrer, Sr. A.C. No. 6585 April 21, 2005
A.C. No. 6585 April 21, 2005
Facts: The petitioner, OIC of the Commission on Human Rights,
files a disbarment case against respondent, Attorney IV said TOMAS B. YUMOL, JR., FELIX S. VENTIC, ELMER L.
commission on ground for grave misconduct. The respondent was MANIEGO and JAKE M. MAGCALAS, Complainants,
found to have issued 2 orders awarding custody of a child to a vs.
complainant in the Commission, ordered a bank to reinstate the ATTY. ROBERTO R. FERRER, SR., Respondent.
bank account of the said complainant, engaging in private practice,
notarizing public documents, and attending court hearings while DECISION
filling up his DTR at the Commission as present at the same time.
The case was referred to the IBP and the investigating CHICO-NAZARIO, J.:
commissioner recommended suspension for 2 years which was
modified by the IBP Board to 6 months.
This is a complaint for disbarment filed by Atty. Tomas B. Yumol,
ISSUE: WON respondent has committed gross misconduct arising Jr., Felix S. Ventic, Elmer L. Maniego and Jake Magcalas against
from the following alleged acts: Atty. Roberto R. Ferrer, Sr., for grave misconduct.
1. Engaging in the private practice of his profession while being a
government employee; At all time material to the controversy, complainants were
2. Falsifying his Daily Time Records; employees of the Commission on Human Rights (CHR), Atty.
3. Issuing unauthorized orders; and Yumol as Officer-in-Charge,1 Mr. Ventic, as Supervising Special
4. Continuously engaging in private practice even after the filing of Investigator, Mr. Maniego as Special Investigator III and Mr.
case against him for engaging in private practice. Magcalas as Special Investigator I. Respondent Atty. Ferrer, Sr.,
held the position of Attorney IV, also of the Commission.
RULING: The court held on the following:
1. CHR Resolution No. (III) A2002-133 authorizes CHR lawyers
On 17 September 2001, Mrs. Ma. Cecilia Mallari-Dy sought the
to engage in private practice (adopting the Civil Service
assistance of the CHR for the alleged kidnapping of her child
Commission Resolution) subject to some conditions with
Jianzil Irish M. Dy by her husband, John Burt Dy, and the coercive
indispensable requirement to secure approval from the CHR. In the
act of the latter in the transfer of her account with the Porac Rural
absence of such approval, the respondent is not allowed in private
Bank. Acting on this, Atty. Ferrer, a Senior Legal Officer of the
practice and proved to have falsified his attendance in the DTR
CHR, issued the two (2) Orders quoted below.
while appearing in court at the same time without approved leave
of absence.
2. The respondent has been notarizing even before the CHR The facts as above stated resulted in the heated altercation that took
authorized his practice as a notary public. place on 28 September 2001 between respondent and one Mr. John
3. The authority granted with the CHR in their function is merely Burt Dy, whereby the latter accused the CHR of conniving with his
to investigate all forms of human rights violation. They cannot try wife, Mrs. Ma. Cecilia Dy, and of destroying his reputation and
and decide cases. good name at the Porac Rural Bank. Atty. Yumol, being the OIC
With the above constituting grounds for suspension of lawyers Head of the Office, asked Mr. Dy if he could substantiate his
stated in Section 27, Rule 138 of the Rules of Court, the court ruled accusations. The latter showed him two (2) alleged Office Orders
to modify the suspension of 1 year as sufficient sanction. dated 18 and 19 September 2001, both signed by respondent.

The Order dated 18 September 2001,2 reads:

Acting on the Complaint of Ma. CECILIA M. DY, and

pursuant to the provision of the Family Code that
children five (5) years and below should remain under
the custody of the mother, in relation to the provisions of
the Constitution vesting powers unto this Commission
and in particular, Section 18, Article XIII of the 1987
Constitution, the respondent is hereby ordered to give
custody of JIANZIL IRISH M. DY to the maternal
custody of the aforementioned mother.

Wherefore, premises considered, pending investigation

of the above-entitled case, the custody of JIANZIL
IRISH M. DY is hereby awarded to the mother MA.
CECILIA M. DY.

SO ORDERED.

City of San Fernando, Pampanga, September 18, 2001.

(SGD)ATTY. ROBERTO R. FERRER, SR.

Senior Legal Counsel IV

The Order dated 19 September 2001,3 reads:

140 HRLAW 08281

 Before this Commission is the Complaint filed by
complainant wife for alleged kidnapping of her Pleadings Where Filed
child Jianzil Irish M. Dy which happened last August
22, 2001 and the coercive mean (sic) of Motion for MTC, Sta. Ana, Candaba,
respondent JOHN BURT DY in the transfer of the Reconsideration in Sp. Pampanga.6
complainant's cash deposit with the Porac Rural Bank. Proc. No. 01-01

Finding the allegations to (sic) sufficiently established, Motion for Issuance of MTC, San Fernando, Pampanga7
custody of the child was awarded to the Complainant and Mandatory Injunction
properly executed with the aid [of] the Sangguniang
Barangay of Sta. Cruz, Porac, Pampanga and the Urgent Ex-Parte Motion RTC-58, Angeles City8
elements of the Porac PNP. For Issuance of
Preliminary Injunction
Likewise, we find that there had been coercion in the
Petition MTC, Sta. Ana, Candaba,
transfer of complainant (sic) deposit in bank, which was
Pampanga9
already effected by the aforementioned Rural Bank.
Motion for RTC-58, Angeles City10
NOW, THEREFORE, pending the final determination Reconsideration and
of this above-entitled case and by virtue of the powers Urgent Motion for
and authority granted this Commission under Sec. 18, Postponement
Article 13 of the Constitution, the Rural Bank of Porac is
hereby ordered to reinstate the account of Motion for - do -11
complainant MA. CECILIA M. DY. Reconsideration

SO ORDERED. Motion for - do -12

Reconsideration On
City of San Fernando, Pampanga, September 19, 2001. Denial of the Release of
Vehicle

(SGD)ATTY. ROBERTO R. FERRER, SR. Addendum to Motion For - do -13

Senior Legal Counsel IV Re-Investigation

Motion to Set Motion For - do -14

Complainants Yumol and Magcalas, together with their staff, Release of Vehicle
witnessed the incident and were surprised to see the two (2) orders
allegedly issued by respondent. Mr. Dy also informed Atty. Yumol
that the two (2) orders were already enforced by respondent Several documents were also notarized by respondent, viz:
himself and his co-employees V. Rigor and E. Enolpe, Police
Officer Larucom and the Barangay Captain of their place.
Documents Where Used
Concerned by the acts of respondent, Atty. Yumol tried to clarify
the matter by writing a letter4 to the Bank Manager stating, thus: Reply of Norberto San MTC, Branch 1, San
Angel dated October 16, Fernando,
In reference to the order of Atty. Roberto R. Ferrer, Sr., 2001 Pampanga15
Attorney IV of this Regional Office, the undersigned
would like to inform your good office that the Sworn Statement dated Civil Case No. 8509
Commission's participation on the matter is limited only October 15, 2001 of May filed with the
to extend legal guidance/assistance considering that the Paule, et al. MTC San Fernando,
disagreement of spouses John Burt Dy and Ma. Cecilia Pampanga16
M. Dy is a family matter. Hence, you are being advised
to disregard Atty. Ferrer's order dated September 19, Criminal Complaint of Criminal Case No.
2001. Myrna Bulaon 01-1401 MTC of Sta.
Ana, Pampanga17
Moreover, the said case is not officially docketed as part
of Human Rights cases handled by the Commission. Reply Affidavit of Myrna - do-18
Bulaon
I hope this will clarify any misinterpretation of the
Commission's mandate. Affidavit of Renato P. Special Proceeding
Canlas No. 01-01 at MTC,
Sta. Ana,
On 28 September 2001, Yumol required5 respondent to explain Pampanga19
within seventy-two (72) hours the unauthorized issuance of the said
Orders.
Respondent also attended court hearings as shown in the following
It turned out later that respondent was engaged in private practice Minutes of Hearings, Orders, and Transcripts of Stenographic
by handling private cases in courts and other quasi-judicial bodies Notes:
as shown by the following pleadings:

Date Time

141 HRLAW 08281

 March 2, 2001 9:00 A.M. June 17, 200301-01 (Ejectment Case) MTC-4, San
MTC/Sta. Ana, Pam
Frdo.,
April 23, 2001 1:30 P.M. Crim. Case No. 00-1164 Pampanga42 RTC-58 Angeles Cit

March 6, 2001 2:15 P.M. July 17, 2003 Crim. Case No.8:30
00-1164
AM RTC-54, - do -22
Macabebe,
August 3, 2001 9:00 A.M. Crim. Case No. 01-1401 Pampanga43 MTC, Sta. Ana. Pam

Sept. 7, 2001 - do - August 26, 2003 9:00 A.M. MTC-4, - do -24

San
Frdo.,
October 15, 2001 8:30 A.M. Civil Case No. 17360 Pampanga44 RTC 42, San Frdo.,

Nov. 5, 2001 2:00 P.M. Civil Case No. 8509 MTC Branch 1,
grave 26
Pampanga.
Complainants maintained that all these acts constitute
misconduct.
Nov. 27, 2001 Civil Case No. 8509 RTC 58, Angeles Ci
We referred the present case to the Integrated Bar of the
Dec. 6, 2001 2:00 P.M. Civil Case No. 8509 MTC Br. I, S
Philippines (IBP) for investigation, report and investigation.
Pampanga.28

On 04 November 2003, respondent filed a motion45 for extension

During those times that respondent attended hearings, he declared of twenty (20) days within which to file his answer, which was
in his Daily Time Records (DTRs) that he was present at the granted by the Commission on Bar Discipline, IBP, Pasig City. 46
Office as shown by the DTRs attached to the complaint.
In his answer,47 respondent admitted that Mrs. Ma. Cecilia Mallari-
The actuations of the respondent provoked the filing of several Dy dropped by at the CHR to seek assistance regarding the
criminal cases against him, to wit: recovery of her minor son and the restitution of her time
deposit. He also acknowledged having issued the two orders but
(1) Falsification of Public Documents,29 maintained that the same were in consonance with the powers and
functions granted to all CHR lawyers. He argued that CHR
lawyers, pursuant to CHR Resolution No. A-88-056 dated 8
(2) Usurpation of Functions,30 and October 1988 and CHR Resolution No. A89-109-A dated 19 July
1989, can file, appear, prosecute and represent the Commission for
(3) Violation of Republic Act No. 6713.31 underprivileged victims and persons whose human rights have
been violated or in need of protection in civil, criminal and
administrative matters which are properly cognizable by the
Still, despite the cases filed against him, respondent continued
Commission. He likewise claimed that he was allowed by the
attending hearings in different courts as demonstrated by the
CHR to file a petition for commission as a notary public and was
following photostatic copies of the Minutes of the trials of the
commissioned on 01 December 2000. He denied having falsified
cases:32
his DTRs as the same were certified by complainant Atty. Yumol
as Officer-In-Charge of their office and that his appearances in
courts were for legal assistance as allowed in CHR Resolution No.
Dates Time Court
A-88-056. Lastly, respondent insisted that the instant complaint
October 24, 2002 2:00 PM MTC – Arayat, was an offshoot of the administrative case filed by Mrs. Ma.
Pampanga33 Cecilia Mallari-Dy against Atty. Yumol and the other
complainants, which prevented the issuance of a certificate of
November 7, 2002 2:00 PM - do - clearance to Atty. Yumol relative to his impending retirement.

January 17, 2003 9:00 AM MTC – Sta. In their reply,48 complainants claimed that respondent's
Ana, commission as notary public was granted only by the CHR on 29
Pampanga34 October 2001, and received by the CHR Region 3 on 07 November
2001, hence, the belated authority granted to him cannot be made
February 10, 2003 9:00 AM MTC – Arayat, to retroact to the notarized documents which were all done before
Pampanga35 07 November 2001. Complainants likewise argued that
respondent's act of appearing in courts as counsel is a form of
March 10, 2003 9:00 AM - do -36 private practice which is expressly prohibited by Republic Act No.
6713.49 They further explained that the CHR has no authority to
March 24, 2003 - do -37 issue the questioned orders as it cannot try and decide cases which
courts of justice or quasi-judicial bodies do. Finally, they pointed
March 28, 2003 9:00 AM MTC – Sta. out that the complaint filed by Mrs. Dy against them was already
Ana, dismissed in an Order dated 15 October 2003.
Pampanga38
After investigative hearings, IBP Investigating Commissioner
May 9, 2003 9:00 AM - do -39
Rebecca Villanueva-Maala submitted her report, the dispositive
portion of which reads:50
May 29, 2003 8:30 AM RTC-54,
Macabebe,
Pampanga40 IN VIEW OF THE FOREGOING, there is merit in the
complaint and it is hereby recommended that respondent
June 12, 2003 2:00 PM MTC – Arayat, ATTY. ROBERTO R. FERRER, SR. be SUSPENDED
Pampanga41 for a period of TWO (2) YEARS from the practice of his
profession as a lawyer and as a member of the bar.

142 HRLAW 08281

On 30 July 2004, the Board of Governors of the IBP approved the
recommendation of the Investigating Commissioner but modified
the penalty imposed:51
RESOLVED to ADOPT and APPROVE, as it is hereby
ADOPTED and APPROVED, with modification, the
Report and Recommendation of the Investigating
Commissioner of the above-entitled case, herein made
part of this Resolution as Annex "A"; and, finding the
recommendation fully supported by the evidence on
record and the applicable laws and rules, and considering
that respondent can be held liable for falsification for
making it appear that he was at the CHR office by
logging in at the DTR when actually he was attending a
hearing in some courts, Atty. Roberto R. Ferrer, Sr., is
hereby SUSPENDED from the practice of law for six (6)
months.
The issue to be resolved in this case is whether or not respondent
has committed gross misconduct arising from the following alleged
acts:
1. Engaging in the private practice of his profession
while being a government employee;
2. Falsifying his Daily Time Records;
3. Issuing unauthorized orders; and
4. Continuously engaging in private practice even after
the filing of case against him for engaging in private
practice.
Relative to the first ground, respondent contends that CHR lawyers
are authorized to engage in private practice by invoking CHR
Resolution No. (III) A2002-133.
CHR Resolution No. (III) A2002-133 authorizes CHR lawyers to
engage in private practice (adopting the Civil Service Commission
Resolution) subject to the following conditions,52 to wit:
NOW THEREFORE, foregoing premises considered, the
Commission hereby resolves to adopt the following
policy:
Lawyers employed in the Civil Service
Commission, upon written request, may be authorized to
practice their profession subject to the following
conditions:
1. It shall not entail any conflict of interest insofar as
the functions of the Commission are concerned;
2. It shall not be in representation of a client whose
cause of action is against the government;
3. It shall not involve the use of government funds or
property;
4. It shall not impair the lawyer's efficiency in the
discharge of his/her regular functions in the office, and
absences incurred, if any, shall be covered by duly
approved vacation leaves and pass slips;
5. It shall be subject to the provisions of RA No.
6713 and such other relevant Civil Service Laws and
Rules;
143 HRLAW 08281
6. The lawyers can appear only in courts of law,
offices of state prosecutors (Department of Justice),
Office of the Ombudsman and quasi-judicial agencies
decisions of which are rendered by presidential
appointees;
7. Authority is for one year subject to renewal after
review of the lawyer's office performance;
8. Provided, that, the commission reserves its right to
revoke the said authority.
...
Recognizing that the dearth of lawyers committed to the
civil service is due to the ". . . huge disparity in the
income of government lawyers as compared to those
employed in the private sector," the Commission on
Human Rights is convinced that CHR lawyers may be
authorized to engage in the practice of their profession to
augment their income so as to encourage them in the
government service.
NOW, THEREFORE, the Commission on Human Rights
adopts the above-cited conditions to authorize, upon
written request, to practice their profession. However, it
is the Commission (sic) position that said authority
should be strictly construed to maintain efficient and
effective delivery of Commission programs and services.
(Underscoring supplied)
Crystal clear from the foregoing is the fact that private practice of
law by CHR lawyers is not a matter of right. Although the
Commission allows CHR lawyers to engage in private practice,
a written request and approval thereof, with a duly approved
leave of absence for that matter are indispensable. In the case
at bar, the record is bereft of any such written request or duly
approved leave of absence. No written authority nor approval of
the practice and approved leave of absence by the CHR was ever
presented by respondent. Thus, he cannot engage in private
practice.
As to respondent's act of notarizing documents, records show that
he applied53 for commission as notary public on 14 November
2000, before the Regional Trial Court (RTC) of San Fernando,
Pampanga, Branch 42. This was granted by RTC Executive Judge
Pedro M. Sunga, Jr., on 01 December 2000. 54 However, the CHR
authorized55 respondent to act as notary public only on 29 October
2001.56 Considering that acts of notarization are within the ambit of
the "term practice of law," for which a prior written request and
approval by the CHR to engage into it are required, the crucial
period to be considered is the approval of the CHR on 29 October
2001 and not the approval of the RTC on 04 December 2000.
Practice of law has a settled meaning. It refers to any activity, in or
out of court, which requires the application of law, legal procedure,
knowledge, training and experience. "To engage in the practice of
law is to perform those acts which are characteristics of the
profession. Generally, to practice law is to give notice or render
any kind of service, which device or service requires the use in any
degree of legal knowledge or skill."57 Thus, as correctly pointed out
by complainants, the belated authority granted to respondent
cannot be made to retroact to the notarized documents dated prior
thereto.
As to the alleged falsification of DTRs, records show that
respondent has been actually attending hearings in different courts
as shown by the minutes of hearings and/or orders issued by
different courts. Since it has been amply established that he was
not properly authorized to do so as no written request by him and
approval thereof of his request and of his leave of absence was
made by the CHR, it is an ineluctable conclusion that he falsified
his DTRs when he certified thereon that he was at the office on the
same days and time. Needless to say, he could not be at two
different places at the same time.
We shall now discuss respondent's authority to issue the two (2)
Orders. The following are instructive:
. . . The [1987] Constitution clearly and categorically
grants to the Commission [on Human Rights] the power
to investigate all forms of human rights violations
involving civil and political rights. . .
But it cannot try and decide cases (or hear and determine
causes) as courts of justice, or even quasi-judicial bodies
do. To investigate is not to adjudicate or
adjudge. Whether in the popular or the technical sense,
these terms have well understood and quite distinct
meanings.
"Investigate," commonly understood, means to examine,
explore, inquire or delve or probe into, research on,
study. The dictionary definition of "investigate" is "to
observe or study closely: inquire into systematically: 'to
search or inquire into: . . . to subject to an official probe .
. .: to conduct an official inquiry.'" The purpose of
investigation, of course, is to discover, to find out, to
learn, obtain information. Nowhere included or
intimated is the notion of settling, deciding or resolving a
controversy involved in the facts inquired into by
application of the law to the facts established by the
inquiry.
The legal meaning of "investigate" is essentially the
same: "to follow up step by step by patient inquiry or
observation. To trace or track; to search into; to examine
and inquire into with care and accuracy; to find out by
careful inquisition; examination; the taking of evidence;
a legal inquiry;" to "inquire; to make an investigation,"
"investigation" being in turn described as "(a)n
administrative function, the exercise of which ordinarily
does not require a hearing . . ."
"Adjudicate," commonly or popularly understood, means
to adjudge, arbitrate, judge, decide, determine, resolve,
rule on, settle. The dictionary defines the term as "to
settle finally (the rights and duties of the parties to a
court case) on the merits of issues raised: x x to pass
judgment on: settle judicially: x x act as judge." And
"adjudge" means "to decide or rule upon as a judge or
with judicial or quasi-judicial powers: x x to award or
grant judicially in a case of controversy x x."
In the legal sense, "adjudicate" means: "To settle in the
exercise of judicial authority. To determine finally.
Synonymous with adjudge in its strictest sense;" and
"adjudge" means: "To pass on judicially, to decide, settle
or decree, or to sentence or condemn. x x Implies a
judicial determination of a fact, and the entry of a
judgment."58
The Commission on Human Rights having merely the power "to
investigate," cannot and should not try and resolve the subject
matters involved in the Order dated 18 September 2001, which
awarded the custody of the child to her mother, and Order dated 19
September 2001, which ordered the Rural Bank of Porac to
reinstate the account of the mother of the child. These matters are
undoubtedly and clearly within the judicial and adjudicatory
powers of a regular court.
144 HRLAW 08281
As to the fourth charge, suffice it to state that despite the cases
filed against respondent in courts, he continued without the proper
authority and approved leave of absence, to engage in the private
practice of his profession as shown by certified true copies of the
minutes and orders of the different courts where he attended
hearings.
In Spouses Jeneline Donato and Mario Donato v. Atty. Isaiah B.
Asuncion, Sr.,59 we explained the concept of gross misconduct as
any inexcusable, shameful or flagrant unlawful conduct on the part
of the person concerned in the administration of justice which is
prejudicial to the rights of the parties or to the right determination
of the cause. Such conduct is generally motivated by a
premeditated, obstinate or intentional purpose. The term, however,
does not necessarily imply corruption or criminal intent.
To our mind, respondent's acts of issuing the subject orders,
engaging in private practice without prior written request and
authority of the CHR and duly approved leave of absence,
notarizing documents even before being so authorized by the CHR
and falsifying his DTRs, constitute gross misconduct for which he
may be suspended, per the dictates of Section 27, Rule 138 of the
Rules of Court:
SEC. 27. Disbarment or Suspension of Attorneys by
Supreme Court; grounds therefore.- A member of the bar
may be disbarred or suspended from his office as
attorney by the Supreme Court for any deceit,
malpractice, or other gross misconduct in such office,
grossly immoral conduct, or by reason of his conviction
of a crime involving moral turpitude, or for any violation
of the oath which he is required to take before admission
to practice, or for a willful disobedience of any lawful
order of a superior court, or for corruptly or willfully
appearing as an attorney for a party to a case without
authority so to do. . . .
The question now arises as to the penalty to be imposed.
Complainants ask that respondent be disbarred. On imposing the
supreme penalty of disbarment, the rule is that disbarment is meted
out only in clear cases of misconduct that seriously affect the
standing and character of the lawyer as an officer of the
court.60 While we will not hesitate to remove an erring attorney
from the esteemed brotherhood of lawyers, where the evidence
calls for it, we will also not disbar him where a lesser penalty will
suffice to accomplish the desired end.61 In the case at bar, the IBP
Investigating Commissioner Rebecca V. Maala recommended the
suspension of respondent for two (2) years while the IBP Board of
Governors recommended a lighter penalty of six (6) months
suspension. Taking our cue therefrom, we find one (1) year
suspension to be sufficient sanction against respondent -
suspension being primarily intended not as a punishment, but as a
means to protect the public and the legal profession.62
WHEREFORE, Atty. Roberto Ferrer, Sr., is hereby found guilty
of Gross Misconduct and is hereby SUSPENDED for One (1) year
from the practice of law, effective upon his receipt of this
Decision. He is warned that a repetition of the same or similar acts
will be dealt with more severely.
Let copies of this Decision be entered in the record of respondent
as attorney and served on the IBP, as well as to the Court
Administrator who shall circulate it to all courts for their
information and guidance.
SO ORDERED.
EMILIO A. GONZALES III v. OFFICE OF PRESIDENT OF
PHILIPPINES, GR No. 196231, 2014-01-28
Facts:
In the challenged Decision, the Court upheld the constitutionality
of Section 8(2) of RA No. 6770 and ruled that the President has
disciplinary jurisdiction over a Deputy Ombudsman and a Special
Prosecutor. The Court, however, reversed the OP ruling that: (i)...
found Gonzales guilty of Gross Neglect of Duty and Grave
Misconduct constituting betrayal of public trust; and (ii) imposed
on him the penalty of dismissal.
Sulit, who had not then been dismissed and who simply sought to
restrain the disciplinary proceedings against her, solely questioned
the jurisdiction of the OP to subject her to disciplinary
proceedings. The Court affirmed the continuation of the
proceedings against her... after upholding the constitutionality of
Section 8(2) of RA No. 6770.
In view of the Court's ruling, the OP filed the present motion for
reconsideration through the Office of the Solicitor General (OSG).
In April 2005, the Office of the Ombudsman charged Major
General Carlos F. Garcia and several others, before the
Sandiganbayan, with plunder and money laundering. On May 7,
2007, Garcia filed an Urgent Petition for Bail which the
prosecution opposed. The
Sandiganbayan denied Garcia's urgent petition for bail on January
7, 2010, in view of the strength of the prosecution's evidence
against Garcia.
Issues:
Gonzales posited in his petition that the OP has no administrative
disciplinary jurisdiction over a Deputy Ombudsman. Under
Section 21 of RA No. 6770, it is the Ombudsman who exercises
administrative disciplinary jurisdiction over the Deputy
Ombudsman.
On the merits, Gonzales argued that his office received the draft
order from GIPO Garcia on April 27, 2010. On May 6, 2010, he
completed his review of the draft, approved it, and transmitted it to
the Office of the Ombudsman for final approval. Since the draft...
order on Mendoza's motion for reconsideration had to undergo
different levels of preparation, review and approval, the period it
took to resolve the motion could not be unjustified, since he
himself acted on the draft order only within nine (9) calendars days
from his receipt of... the order.
Ruling:
On motion for reconsideration and further reflection, the Court
votes to grant Gonzales' petition and to declare Section 8(2) of RA
No. 6770 unconstitutional with respect to the Office of the
Ombudsman.
a. The Philippine Ombudsman
Under Section 12, Article XI of the 1987 Constitution, the Office
of the Ombudsman is envisioned to be the "protector of the people"
against the inept, abusive, and corrupt in the Government, to
function essentially as a complaints and action bureau.[36] This
constitutional vision of a Philippine Ombudsman practically
intends to make the Ombudsman an authority to directly check and
guard against the ills, abuses and excesses of the
bureaucracy. Pursuant to Section 13(8), Article XI of the 1987
Constitution, Congress enacted RA No. 6770 to enable it to further
realize the vision of the Constitution. Section 21 of RA No. 6770
provides:
Section 21. Official Subject to Disciplinary Authority; Exceptions.
The Office of the Ombudsman shall have disciplinary authority
over all elective and appointive officials of the Government and its
subdivisions, instrumentalities and agencies, including
145 HRLAW 08281
Members of the Cabinet, local government, government-owned or
controlled corporations and their subsidiaries, except over officials
who may be removed only by impeachment or over Members of
Congress, and the Judiciary.
The Ombudsman's broad investigative and disciplinary powers
include all acts of malfeasance, misfeasance, and nonfeasance of
all public officials, including Members of the Cabinet and key
Executive officers, during their tenure.
Given the scope of its disciplinary authority, the Office of the
Ombudsman is a very powerful government constitutional agency
that is considered "a notch above other grievance-handling
investigative bodies."[39] It has powers, both constitutional... and
statutory, that are commensurate with its daunting task of enforcing
accountability of public officers.[40]... b. "Independence" of
constitutional bodies... vis-a-vis the Ombudsman's independence
Notably, the independence enjoyed by the Office of the
Ombudsman and by the Constitutional Commissions shares certain
characteristics they do not owe their existence to any act of
Congress, but are created by the Constitution itself; additionally,
they all enjoy fiscal... autonomy. In general terms, the framers of
the Constitution intended that these "independent" bodies be
insulated from political pressure to the extent that the absence of
"independence" would result in the impairment of their core
functions.
the deliberations of the 1987 Constitution on the Commission on
Audit highlighted the... developments in the past Constitutions
geared towards insulating the Commission on Audit from political
pressure.
The kind of independence enjoyed by the Office of the
Ombudsman certainly cannot be inferior but is similar in degree
and kind to the independence similarly guaranteed by the
Constitution to the Constitutional Commissions since all these
offices fill the political... interstices of a republican democracy that
are crucial to its existence and proper functioning.
c. Section 8(2) of RA No. 6770 vesting... disciplinary authority in
the President... over the Deputy Ombudsman violates... the
independence of the Office of the
Ombudsman and is thus... unconstitutional... we rule that
subjecting the Deputy Ombudsman to discipline and removal by
the President, whose own alter egos and officials in the Executive
Department are subject to the Ombudsman's disciplinary authority,
cannot but seriously place at risk the... independence of the Office
of the Ombudsman itself. The Office of the Ombudsman, by
express constitutional mandate, includes its key officials, all of
them tasked to support the Ombudsman in carrying out her
mandate. Unfortunately, intrusion upon the... constitutionally-
granted independence is what Section 8(2) of RA No. 6770 exactly
did. By so doing, the law directly collided not only with the
independence that the Constitution guarantees to the Office of the
Ombudsman, but inevitably with the principle of checks and...
balances that the creation of an Ombudsman office seeks to
revitalize
What is true for the Ombudsman must be equally and necessarily
true for her Deputies who act as agents of the Ombudsman in the
performance of their duties. The Ombudsman can hardly be
expected to place her complete trust in her subordinate officials
who are not as... independent as she is, if only because they are
subject to pressures and controls external to her Office. This need
for complete trust is true in an ideal setting and truer still in a
young democracy like the Philippines where graft and corruption is
still a major problem... for the government. For these reasons,
Section 8(2) of RA No. 6770 (providing that the President may
remove a Deputy Ombudsman) should be declared void.
he statements made by Commissioner Monsod emphasized a very
logical principle: the Executive power to remove and discipline key
officials of the Office of the Ombudsman, or to exercise any power
over them, would result in an absurd situation wherein the Office
of the
Ombudsman is given the duty to adjudicate on the integrity and
competence of the very persons who can remove or suspend its
members.
e. Congress' power determines the... manner and causes for the
removal... of non-impeachable officers is not... a carte blanch
authority
Under Section 2, Article XI of the 1987 Constitution,[53] Congress
is empowered to determine the modes of removal from office of all
public officers and employees except the President, the Vice-
President, the Members of the Supreme Court, the Members of the
Constitutional Commissions, and the Ombudsman, who are all
impeachable officials.
he intent of the framers of the Constitution in providing that "[a]ll
other public officers and employees may be removed from office
as provided by law, but not by impeachment" in the second
sentence of Section 2, Article XI is to prevent Congress from
extending the more... stringent rule of "removal only by
impeachment" to favored public officers
While the manner and cause of removal are left to congressional
determination, this must still be consistent with constitutional
guarantees and principles, namely: the right to procedural and
substantive due process; the constitutional guarantee of security...
of tenure; the principle of separation of powers; and the principle
of checks and balances.
a. The Office of the President's... finding of gross negligence has...
no legal and factual leg to... stand on... b. No gross neglect of duty
or inefficiency
Clearly, when Mendoza hijacked the tourist bus on August 23,
2010, the records of the case were already pending before
Ombudsman Gutierrez.
Gross negligence refers to negligence characterized by the want of
even the slightest care, acting or omitting to act in a situation where
there is a duty to act, not inadvertently but willfully and
intentionally, with a conscious indifference to consequences
insofar as other... persons may be affected. In the case of public
officials, there is gross negligence when a breach of duty is flagrant
and palpable.[71]
Gonzales cannot be guilty of gross neglect of duty and/or
inefficiency since he acted on the case forwarded to him within
nine days. In finding Gonzales guilty, the OP[72] relied on Section
8, Rule III of Administrative Order No. 7 (or the
Rules of Procedure of the Office of the Ombudsman, series of
1990, as amended) in ruling that Gonzales should have acted on
Mendoza's Motion for Reconsideration within five days:
Section 8. Motion for reconsideration or reinvestigation: Grounds
Whenever allowable, a motion for reconsideration or
reinvestigation may only be entertained if filed within ten (10) days
from receipt of the decision or order by the party on the basis of
any of... the following grounds:
Only one motion for reconsideration or reinvestigation shall be
allowed, and the Hearing Officer shall resolve the same within five
(5) days from the date of submission for resolution. [emphasis and
underscore ours]
Even if we consider this provision to be mandatory, the period it
requires cannot apply to Gonzales since he is a Deputy
Ombudsman whose obligation is to review the case; he is not
simply a Hearing Officer tasked with the initial resolution of the
motion.
c. No actionable failure to supervise subordinates
146 HRLAW 08281
The facts do not show that Gonzales' subordinates had in any way
been grossly negligent in their work. While GIPO Garcia reviewed
the case and drafted the order for more than three months, it is
noteworthy that he had not drafted the initial decision and,
therefore, had to... review the case for the first time.[77] Even the
Ombudsman herself could not be faulted for acting on a case
within four months, given the amount of cases that her office
handles.
The point is that these are not inordinately long periods for the
work involved: examination of the records, research on the
pertinent laws and jurisprudence, and exercise of legal judgment
and discretion.
d. No undue interest... he fact that Gonzales had Mendoza's case
endorsed to his office lies within his mandate, even if it were based
merely on the request of the alleged victim's father. The
Constitution empowers the Ombudsman and her Deputies to act
promptly on complaints filed in any form or... manner against any
public official or employee of the government.[78] This provision
is echoed by Section 13 of RA No. 6770,[79] and by Section 3,
Rule III of Administrative Order No. 7, series of 1990, as
amended.[80]
Moreover, Gonzales and his subordinates did not resolve the
complaint only on the basis of the unverified affidavit of Kalaw.
we cannot deduce undue interest simply because Gonzales'
decision differs from the decision of the PNP-IAS (which
dismissed the complaint against Mendoza).
Basic strictures of fair play dictate that we can only be held liable
for our own misdeeds; we can be made to account only... for lapses
in our responsibilities. It is notable that of all the officers, it was
Gonzales who took the least time nine days followed by Cecilio,
who took 21 days; Garcia the writer of the draft took less than four
months, and the Ombudsman, less than four months... until the
kidnapping incident rendered Mendoza's motion moot.
D. The Special Prosecutor: The Constitutional Issue
Thus, by constitutional design, the Special
Prosecutor is by no means an ordinary subordinate but one who
effectively and directly aids the Ombudsman in the exercise of
his/her duties, which include investigation and prosecution of
officials in the Executive Department.
Thus, even if the Office of the Special Prosecutor is not expressly
made part of the composition of the Office of the Ombudsman, the
role it performs as an organic component of that Office militates
against a differential treatment between the Ombudsman's
Deputies, on one... hand, and the Special Prosecutor himself, on the
other. What is true for the Ombudsman must be equally true, not
only for her Deputies but, also for other lesser officials of that
Office who act directly as agents of the Ombudsman herself in the
performance of... her duties.
Thus, under the present Constitution, there is every reason to treat
the Special Prosecutor to be at par with the Ombudsman's deputies,
at least insofar as an extraneous disciplinary authority is concerned,
and must also enjoy the same grant of independence under the
Constitution.
n the voting held on January 28, 2014, by a vote of 8-7,[108] the
Court resolved to reverse its September 4, 2012 Decision insofar as
petitioner Gonzales is concerned (G.R. No. 196231). We declared
Section 8(2) of RA
No. 6770 unconstitutional by granting disciplinary jurisdiction to
the President over a Deputy Ombudsman, in violation of the
independence of the Office of the Ombudsman.
However, by another vote of 8-7,[109] the Court resolved to
maintain the validity of Section 8(2) of RA No. 6770 insofar as
Sulit is concerned. The Court did not consider the Office of the
Special Prosecutor to be constitutionally within the
Office of the Ombudsman and is, hence, not entitled to the
independence the latter enjoys under the Constitution.
WHEREFORE, premises considered, the Court resolves to declare
Section 8(2) UNCONSTITUTIONAL. This ruling renders any
further ruling on the dismissal of Deputy Ombudsman Emilio
Gonzales III unnecessary, but is without prejudice to the power of
the Ombudsman to... conduct an administrative investigation, if
warranted, into the possible administrative liability of Deputy
Ombudsman Emilio Gonzales III under pertinent Civil Service
laws, rules and regulations.
the Ombudsman is directed to proceed with the investigation in
connection with the above case against petitioner. In G.R. No.
196232, We AFFIRM the continuation of OP-DC Case No. 11-B-
003 against Special Prosecutor Wendell Barreras-Sulit for alleged
acts and omissions tantamount to culpable violation of the
Constitution and a betrayal of public trust, in accordance with
Section 8(2) of the Ombudsman Act of 1989.3crallawlibrary
In view of the Court’s ruling, the OP filed the present motion for
reconsideration through the Office of the Solicitor General (OSG).
We briefly narrate the facts that preceded the filing of the petitions
and the present motion for reconsideration.
I. ANTECEDENTS

A. Gonzales’ petition (G.R. No. 196231)

EMILIO A. GONZALES III, Petitioner, v. OFFICE OF THE
PRESIDENT OF THE PHILIPPINES, ACTING THROUGH
a. Factual antecedents
AND REPRESENTED BY EXECUTIVE SECRETARY
PAQUITO N. OCHOA, JR., SENIOR DEPUTY EXECUTIVE
On May 26, 2008, Christian Kalaw filed separate charges with the
SECRETARY JOSE AMOR M. AMORANDO, OFFICER-IN-
Philippine National Police Internal Affairs Service (PNP-IAS) and
CHARGE - OFFICE OF THE DEPUTY EXECUTIVE
with the Manila City Prosecutor’s Office against Manila Police
SECRETARY FOR LEGAL AFFAIRS, ATTY. RONALDO A.
District Senior Inspector Rolando Mendoza and four others
GERON, DIR. ROWENA TURINGAN-SANCHEZ, AND
(Mendoza, et al.) for robbery, grave threat, robbery extortion and
ATTY. CARLITO D. CATAYONG, Respondents.
physical injury.4crallawlibrary
[G.R. No. 196232]
On May 29, 2008, Police Senior Superintendent Atty. Clarence
Guinto filed an administrative charge for grave misconduct with
WENDELL BARRERAS-SULIT, Petitioner, v. ATTY.
the National Police Commission (NAPOLCOM) PNP-NCRPO
PAQUITO N. OCHOA, JR., IN HIS CAPACITY AS
against Mendoza, et al. based on the same allegations made by
EXECUTIVE SECRETARY, OFFICE OF THE PRESIDENT,
Kalaw before the PNP-IAS.5crallawlibrary
ATTY. DENNIS F. ORTIZ, ATTY. CARLO D. SULAY AND
ATTY. FROILAN D. MONTALBAN, JR., IN THEIR
On July 2, 2008, Gonzales, Deputy Ombudsman for Military and
CAPACITIES AS CHAIRMAN AND MEMBERS OF
Other Law Enforcement Officers (MOLEO), directed the
OFFICE OF MALACAÑANG LEGAL
NAPOLCOM to turn over the records of Mendoza’s case to his
AFFAIRS, Respondents.
office. The Office of the Regional Director of the NAPOLCOM
duly complied on July 24, 2008.6 Mendoza, et al. filed their
DECISION position papers with Gonzales, in compliance with his
Order. 7crallawlibrary
BRION, J.:
Pending Gonzales’ action on Mendoza, et al.’s case (on August 26,
2008), the Office of the City Prosecutor of Manila City dismissed
We resolve the Office of the President’s (OP’s) motion for
Kalaw’s complaint against Mendoza, et al. for his failure to
reconsideration of our September 4, 2012 Decision 1 which ruled on
substantiate his allegations.8 Similarly, on October 17, 2008, the
the petitions filed by Deputy Ombudsman Emilio Gonzales III and
PNP-IAS recommended the dismissal without prejudice of the
Special Prosecutor Wendell Barreras-Sulit. Their petitions
administrative case against Mendoza, et al. for Kalaw’s failure to
challenged the constitutionality of Section 8(2) of Republic
prosecute.9crallawlibrary
Act (RA) No. 6770.2crallawlibrary
On February 16, 2009, after preparing a draft decision on
In the challenged Decision, the Court upheld the constitutionality
Mendoza, et al.’s case, Gonzales forwarded the entire records to
of Section 8(2) of RA No. 6770 and ruled that the President has
the Office of then Ombudsman Merceditas Gutierrez for her
disciplinary jurisdiction over a Deputy Ombudsman and a Special
review.10 In his draft decision, Gonzales found Mendoza, et al.
Prosecutor. The Court, however, reversed the OP ruling that: (i)
guilty of grave misconduct and imposed on them the penalty of
found Gonzales guilty of Gross Neglect of Duty and Grave
dismissal from the service.11crallawlibrary
Misconduct constituting betrayal of public trust; and (ii) imposed
on him the penalty of dismissal.
Mendoza, et al. received a copy of the Ombudsman’s decision that
approved Gonzales’ recommendation on October 30,
Sulit, who had not then been dismissed and who simply sought to
2009. Mendoza, et al. filed a motion for reconsideration12 on
restrain the disciplinary proceedings against her, solely questioned
November 5, 2009, followed by a Supplement to the Motion for
the jurisdiction of the OP to subject her to disciplinary
Reconsideration.13crallawlibrary
proceedings. The Court affirmed the continuation of the
proceedings against her after upholding the constitutionality of
On December 10, 2009, the MOLEO-Records Section forwarded
Section 8(2) of RA No. 6770.
Mendoza, et al.’s case records to the Criminal Investigation,
Prosecution and Administrative Bureau-MOLEO. On December
The fallo of our assailed Decision
14, 2009, the case was assigned to Graft Investigation and
reads:chanRoblesVirtualawlibrary
Prosecution Officer (GIPO) Dennis Garcia for review and
recommendation.14crallawlibrary
WHEREFORE, in G.R. No. 196231, the decision of the Office of
the President in OP Case No. 10-J-460 is REVERSED and SET GIPO Garcia released a draft order15 to his immediate superior,
ASIDE. Petitioner Emilio A. Gonzales III is ordered Director Eulogio S. Cecilio, for appropriate action on April 5,
REINSTATED with payment of backwages corresponding to the 2010. Dir. Cecilio signed and forwarded the draft order to
period of suspension effective immediately, even as the Office of Gonzales’ office on April 27, 2010. Gonzales reviewed the draft
147 HRLAW 08281
and endorsed the order, together with the case records, on May 6,
2010 for the final approval by the Ombudsman.16crallawlibrary
On August 23, 2010, pending final action by the Ombudsman on
Mendoza, et al.’s case, Mendoza hijacked a tourist bus and held the
21 foreign tourists and the four Filipino tour assistants on board as
hostages. While the government exerted earnest attempts to
peacefully resolve the hostage-taking, it ended tragically, resulting
in the deaths of Mendoza and several others on board the hijacked
bus.
and her prosecutorial staff, entered into a plea bargaining
agreement (Agreement) with Garcia.24 Garcia thereby agreed to:
(i) withdraw his plea of not guilty to the charge of plunder and
enter a plea of guilty to the lesser offense of indirect bribery; and
(ii) withdraw his plea of not guilty to the charge of money
laundering and enter a guilty plea to the lesser offense of
facilitating money laundering. In exchange, he would convey to
the government his ownership, rights and other interests over the
real and personal properties enumerated in the Agreement and the
bank deposits alleged in the information.25crallawlibrary

In the aftermath, President Benigno C. Aquino III directed the
Department of Justice and the Department of Interior and Local
Government to conduct a joint thorough investigation of the
incident. The two departments issued Joint Department Order No.
01-2010, creating an Incident Investigation and Review
Committee (IIRC).
In its September 16, 2010 First Report, the IIRC found the
Ombudsman and Gonzales accountable for their “gross negligence
and grave misconduct in handling the case against
Mendoza.”17 The IIRC stated that the Ombudsman and Gonzales’
failure to promptly resolve Mendoza’s motion for reconsideration,
“without justification and despite repeated pleas” xxx “precipitated
the desperate resort to hostage-taking.”18 The IIRC recommended
the referral of its findings to the OP for further determination of
possible administrative offenses and for the initiation of the proper
administrative proceedings.19crallawlibrary
Accordingly, on October 15, 2010, Gonzales was formally charged
before the OP for Gross Neglect of Duty and/or Inefficiency in the
Performance of Official Duty and for Misconduct in
Office.20crallawlibrary
b. The OP ruling
On March 31, 2011, the OP found Gonzales guilty as charged and
dismissed him from the service.21 According to the OP, “the
inordinate and unjustified delay in the resolution of [Mendoza’s]
Motion for Reconsideration [‘that spanned for nine (9) long
months’] xxx amounted to gross neglect of duty” and “constituted
a flagrant disregard of the Office of the Ombudsman’s own Rules
of Procedure.”22crallawlibrary
c. The Petition
The Sandiganbayan approved the Agreement on May 4,
201026 based on the parties’ submitted Joint Motion for
Approval.27crallawlibrary
The apparent one-sidedness of the Agreement drew public outrage
and prompted the Committee on Justice of the House of
Representatives to conduct an investigation. After public
hearings, the Committee found that Sulit, her deputies and
assistants committed culpable violations of the Constitution and
betrayal of public trust - grounds for removal under Section 8(2) of
RA No. 6770.28 The Committee recommended to the President the
dismissal from the service of Sulit and the filing of appropriate
charges against her deputies and assistants before the appropriate
government office.
Accordingly, the OP initiated an administrative disciplinary
proceeding against Sulit.29 On March 24, 2011, Sulit filed her
Written Explanation, questioning the OP’s jurisdiction.30 The
question of jurisdiction notwithstanding, the OP set the case for
preliminary investigation on April 15, 2011, prompting Sulit to
seek relief from this Court.
II. COURT’S RULING
On motion for reconsideration and further reflection, the Court
votes to grant Gonzales’ petition and to declare Section 8(2) of RA
No. 6770 unconstitutional with respect to the Office of the
Ombudsman. (As the full explanation of the Court’s vote describes
below, this conclusion does not apply to Sulit as the grant of
independence is solely with respect to the Office of the
Ombudsman which does not include the Office of the Special
Prosecutor under the Constitution. The prevailing ruling on this
latter point is embodied in the Concurring and Dissenting Opinion
of J. Marvic Mario Victor Leonen).

Gonzales posited in his petition that the OP has no administrative A. Preliminary considerations:
disciplinary jurisdiction over a Deputy Ombudsman. Under
Section 21 of RA No. 6770, it is the Ombudsman who exercises a. Absence of motion for reconsideration
administrative disciplinary jurisdiction over the Deputy on the part of the petitioners
Ombudsman.
At the outset, the Court notes that Gonzales and Sulit did not file a
On the merits, Gonzales argued that his office received the draft motion for reconsideration of the Court’s September 4, 2012
order from GIPO Garcia on April 27, 2010. On May 6, 2010, he Decision; only the OP, through the OSG, moved for the
completed his review of the draft, approved it, and transmitted it to reconsideration of our ruling reinstating Gonzales.
the Office of the Ombudsman for final approval. Since the draft
order on Mendoza’s motion for reconsideration had to undergo This omission, however, poses no obstacle for the Court’s review
different levels of preparation, review and approval, the period it of its ruling on the whole case since a serious constitutional
took to resolve the motion could not be unjustified, since he question has been raised and is one of the underlying bases for the
himself acted on the draft order only within nine (9) calendars days validity or invalidity of the presidential action. If the President
from his receipt of the order.23crallawlibrary does not have any constitutional authority to discipline a Deputy
Ombudsman and/or a Special Prosecutor in the first place, then any
B. Sulit’s petition (G.R. No. 196232) ruling on the legal correctness of the OP’s decision on the merits
will be an empty one.
In April 2005, the Office of the Ombudsman charged Major
General Carlos F. Garcia and several others, before the In other words, since the validity of the OP’s decision on the merits
Sandiganbayan, with plunder and money laundering. On May 7, of the dismissal is inextricably anchored on the final and correct
2007, Garcia filed an Urgent Petition for Bail which the ruling on the constitutional issue, the whole case - including the
prosecution opposed. The Sandiganbayan denied Garcia’s urgent constitutional issue - remains alive for the Court’s consideration on
petition for bail on January 7, 2010, in view of the strength of the motion for reconsideration.
prosecution’s evidence against Garcia.
b. The justiciability of the constitutional
On February 25, 2010, the Office of the Ombudsman, through Sulit issue raised in the petitions
148 HRLAW 08281

We clarify, too, that the issue of whether a Deputy Ombudsman
may be subjected to the administrative disciplinary jurisdiction of
the President (concurrently with that of the Ombudsman) is a
justiciable - not a political - question. A justiciable question is one
which is inherently susceptible of being decided on grounds
recognized by law,31 as where the court finds that there are
constitutionally-imposed limits on the exercise of the powers
conferred on a political branch of the government.32crallawlibrary
In resolving the petitions, we do not inquire into the wisdom of the
Congress’ choice to grant concurrent disciplinary authority to the
President. Our inquiry is limited to whether such statutory grant
violates the Constitution, particularly whether Section 8(2) of RA
No. 6770 violates the core constitutional principle of the
independence of the Office of the Ombudsman as expressed in
Section 5, Art. XI of the Constitution.
To be sure, neither the Executive nor the Legislative can create the
power that Section 8(2) of RA No. 6770 grants where the
Constitution confers none. When exercised authority is drawn
from a vacuum, more so when the authority runs counter to a core
constitutional principle and constitutional intents, the Court is duty-
bound to intervene under the powers and duties granted and
imposed on it by Article VIII of the Constitution.
B. The Deputy Ombudsman: Constitutional Issue
a. The Philippine Ombudsman
Prior to the 1973 Constitution, past presidents established several
Ombudsman-like agencies to serve as the people’s medium for
airing grievances and for direct redress against abuses and
misconduct in the government. Ultimately, however, these
agencies failed to fully realize their objective for lack of the
political independence necessary for the effective performance of
their function as government critic.33crallawlibrary
It was under the 1973 Constitution that the Office of the
Ombudsman became a constitutionally-mandated office to give it
political independence and adequate powers to enforce its mandate.
Pursuant to the 1973 Constitution, President Ferdinand Marcos
enacted Presidential Decree (PD) No. 1487, as amended by PD No.
1607 and PD No. 1630, creating the Office of the Ombudsman to
be known as Tanodbayan. It was tasked principally to investigate,
on complaint or motu proprio, any administrative act of any
administrative agency, including any government-owned or
controlled corporation. When the Office of the Tanodbayan was
reorganized in 1979, the powers previously vested in the Special
Prosecutor were transferred to the Tanodbayan himself. He was
given the exclusive authority to conduct preliminary investigation
of all cases cognizable by the Sandiganbayan, file the
corresponding information, and control the prosecution of these
cases.34crallawlibrary
With the advent of the 1987 Constitution, a new Office of the
Ombudsman was created by constitutional fiat. Unlike in the
1973 Constitution, its independence was expressly and
constitutionally guaranteed. Its objectives are to enforce the state
policy in Section 27, Article II35 and the standard of accountability
in public service under Section 1, Article XI of the 1987
Constitution. These provisions read:chanRoblesVirtualawlibrary
Section 27. The State shall maintain honesty and integrity in the
public service and take positive and effective measures against
graft and corruption.
Section 1. Public office is a public trust. Public officers and
employees must, at all times, be accountable to the people, serve
them with utmost responsibility, integrity, loyalty, and efficiency;
act with patriotism and justice, and lead modest lives.
Under Section 12, Article XI of the 1987 Constitution, the Office
149 HRLAW 08281
of the Ombudsman is envisioned to be the “protector of the people”
against the inept, abusive, and corrupt in the Government, to
function essentially as a complaints and action bureau. 36 This
constitutional vision of a Philippine Ombudsman practically
intends to make the Ombudsman an authority to directly check and
guard against the ills, abuses and excesses of the
bureaucracy. Pursuant to Section 13(8), Article XI of the 1987
Constitution, Congress enacted RA No. 6770 to enable it to further
realize the vision of the Constitution. Section 21 of RA No. 6770
provides:chanRoblesVirtualawlibrary
Section 21. Official Subject to Disciplinary Authority;
Exceptions. — The Office of the Ombudsman shall have
disciplinary authority over all elective and appointive officials
of the Government and its subdivisions, instrumentalities and
agencies, including Members of the Cabinet, local government,
government-owned or controlled corporations and their
subsidiaries, except over officials who may be removed only by
impeachment or over Members of Congress, and the
Judiciary. [emphasis ours, italics supplied]
As the Ombudsman is expected to be an “activist watchman,”37 the
Court has upheld its actions, although not squarely falling under
the broad powers granted it by the Constitution and by RA No.
6770, if these actions are reasonably in line with its official
function and consistent with the law and the
Constitution.38crallawlibrary
The Ombudsman’s broad investigative and disciplinary powers
include all acts of malfeasance, misfeasance, and nonfeasance of
all public officials, including Members of the Cabinet and key
Executive officers, during their tenure. To support these broad
powers, the Constitution saw it fit to insulate the Office of the
Ombudsman from the pressures and influence of officialdom and
partisan politics and from fear of external reprisal by making it an
“independent” office. Section 5, Article XI of the Constitution
expressed this intent, as follows:chanRoblesVirtualawlibrary
Section 5. There is hereby created the independent Office of the
Ombudsman, composed of the Ombudsman to be known as
Tanodbayan, one overall Deputy and at least one Deputy each for
Luzon, Visayas, and Mindanao. A separate Deputy for the military
establishment may likewise be appointed. [emphasis ours]
Given the scope of its disciplinary authority, the Office of the
Ombudsman is a very powerful government constitutional agency
that is considered “a notch above other grievance-handling
investigative bodies.”39 It has powers, both constitutional and
statutory, that are commensurate with its daunting task of
enforcing accountability of public officers.40crallawlibrary
b. “Independence” of constitutional bodies
vis-a-vis the Ombudsman’s independence
Under the Constitution, several constitutional bodies have
been expressly labeled as “independent.”41 The extent of the
independence enjoyed by these constitutional bodies however
varies and is to be interpreted with two significant considerations
in mind: first, the functions performed or the powers involved in a
given case; and second, consistency of any allowable interference
to these powers and functions, with the principle of checks and
balances.
Notably, the independence enjoyed by the Office of the
Ombudsman and by the Constitutional Commissions shares certain
characteristics - they do not owe their existence to any act of
Congress, but are created by the Constitution itself; additionally,
they all enjoy fiscal autonomy. In general terms, the framers of the
Constitution intended that these “independent” bodies be insulated
from political pressure to the extent that the absence of
“independence” would result in the impairment of their core
functions.
In Bengzon v. Drilon,42 involving the fiscal autonomy of the
Judiciary, we ruled against the interference that the President may
bring and maintained that the independence and the flexibility of
the Judiciary, the Constitutional Commissions and the Office of
the Ombudsman are crucial to our legal system.
The Judiciary, the Constitutional Commissions, and
the Ombudsman must have the independence and flexibility
needed in the discharge of their constitutional duties. The
imposition of restrictions and constraints on the manner the
independent constitutional offices allocate and utilize the funds
appropriated for their operations is anathema to fiscal autonomy
and violative not only the express mandate of the Constitution but
especially as regards the Supreme Court, of the independence and
separation of powers upon which the entire fabric of our
constitutional system is based.
The constitutional deliberations explain the Constitutional
Commissions’ need for independence. In the deliberations of the
1973 Constitution, the delegates amended the 1935 Constitution
by providing for a constitutionally-created Civil Service
Commission, instead of one created by law, on the premise that the
effectivity of this body is dependent on its freedom from the
tentacles of politics.43 In a similar manner, the deliberations of
the 1987 Constitution on the Commission on Audit highlighted
the developments in the past Constitutions geared towards
insulating the Commission on Audit from political
pressure.44crallawlibrary
Notably, the Constitution also created an “independent”
Commission on Human Rights, although it enjoys a lesser degree
of independence since it is not granted fiscal autonomy in the
manner fiscal autonomy is granted to the constitutional
commissions. The lack of fiscal autonomy notwithstanding, the
framers of the 1987 Constitution clearly expressed their desire to
keep the Commission independent from the executive branch and
other political leaders:chanRoblesVirtualawlibrary
MR. MONSOD. We see the merits of the arguments of
Commissioner Rodrigo. If we explain to him our concept, he can
advise us on how to reconcile his position with ours. The position
of the committee is that we need a body that would be able to work
and cooperate with the executive because the Commissioner is
right. Many of the services needed by this commission would need
not only the cooperation of the executive branch of the government
but also of the judicial branch of government. This is going to be a
permanent constitutional commission over time. We also want a
commission to function even under the worst circumstance
when the executive may not be very cooperative.However, the
question in our mind is: Can it still function during that time?
Hence, we are willing to accept suggestions from Commissioner
Rodrigo on how to reconcile this. We realize the need for
coordination and cooperation. We also would like to build in
some safeguards that it will not be rendered useless by an
uncooperative executive.
xxxx
MR. GARCIA. xxx Very often, when international commissions or
organizations on human rights go to a country, the most credible
organizations are independent human rights bodies. Very often
these are private organizations, many of which are prosecuted, such
as those we find in many countries in Latin America. In fact, what
we are proposing is an independent body on human rights,
which would provide governments with credibility precisely
because it is independent of the present
administration. Whatever it says on the human rights situation
will be credible because it is not subject to pressure or control from
the present political leadership.
Secondly, we all know how political fortunes come and go. Those
who are in power yesterday are in opposition today and those who
are in power today may be in the opposition tomorrow. Therefore,
150 HRLAW 08281
if we have a Commission on Human Rights that would
investigate and make sure that the rights of each one is
protected, then we shall have a body that could stand up to any
power, to defend the rights of individuals against arrest, unfair
trial, and so on.45
These deliberative considerations abundantly show that the
independent constitutional commissions have been consistently
intended by the framers to be independent from executive control
or supervision or any form of political influence. At least insofar
as these bodies are concerned, jurisprudence is not scarce on
how the “independence” granted to these bodies prevents
presidential interference.
In Brillantes, Jr. v. Yorac,46 we emphasized that the Constitutional
Commissions, which have been characterized under the
Constitution as “independent,” are not under the control of the
President, even if they discharge functions that are executive in
nature. The Court declared as unconstitutional the President’s act
of temporarily appointing the respondent in that case as Acting
Chairman of the Comelec “however well-meaning”47 it might have
been.
In Bautista v. Senator Salonga,48 the Court categorically stated that
the tenure of the commissioners of the independent Commission on
Human Rights could not be placed under the discretionary power
of the President:chanRoblesVirtualawlibrary
Indeed, the Court finds it extremely difficult to conceptualize
how an office conceived and created by the Constitution to be
independent - as the Commission on Human Rights - and
vested with the delicate and vital functions of investigating
violations of human rights, pinpointing responsibility and
recommending sanctions as well as remedial measures
therefor, can truly function with independence and
effectiveness, when the tenure in office of its Chairman and
Members is made dependent on the pleasure of the President.
Executive Order No. 163-A, being antithetical to the constitutional
mandate of independence for the Commission on Human Rights
has to be declared unconstitutional.
Again, in Atty. Macalintal v. Comelec,49 the Court considered even
the mere review of the rules of the Commission on Elections by
Congress a “trampling” of the constitutional mandate of
independence of this body. Obviously, the mere review of rules
places considerably less pressure on a constitutional body than the
Executive’s power to discipline and remove key officials of the
Office of the Ombudsman, yet the Court struck down the law as
unconstitutional.
The kind of independence enjoyed by the Office of the
Ombudsman certainly cannot be inferior - but is similar in degree
and kind - to the independence similarly guaranteed by the
Constitution to the Constitutional Commissions since all these
offices fill the political interstices of a republican democracy that
are crucial to its existence and proper functioning.50crallawlibrary
c. Section 8(2) of RA No. 6770 vesting
disciplinary authority in the President
over the Deputy Ombudsman violates
the independence of the Office of the
Ombudsman and is thus
unconstitutional
Our discussions, particularly the Court’s expressed caution against
presidential interference with the constitutional commissions, on
one hand, and those expressed by the framers of the 1987
Constitution, on the other, in protecting the independence of the
Constitutional Commissions, speak for themselves as
overwhelming reasons to invalidate Section 8(2) of RA No. 6770
for violating the independence of the Office of the Ombudsman.
In more concrete terms, we rule that subjecting the Deputy
Ombudsman to discipline and removal by the President, whose misplaced), that the Ombudsman would be susceptible to political
own alter egos and officials in the Executive Department are pressure, cannot be avoided. To be sure, such an impression would
subject to the Ombudsman’s disciplinary authority, cannot but erode the constitutional intent of creating an Office of the
seriously place at risk the independence of the Office of the Ombudsman as champion of the people against corruption and
Ombudsman itself. The Office of the Ombudsman, by express bureaucracy.
constitutional mandate, includes its key officials, all of them tasked
to support the Ombudsman in carrying out her mandate. d. The mutual-protection argument for
Unfortunately, intrusion upon the constitutionally-granted crafting Section 8(2)of RA No. 6770
independence is what Section 8(2) of RA No. 6770 exactly did. By
so doing, the law directly collided not only with the independence In crafting Section 8(2) of RA No. 6770, Congress apparently
that the Constitution guarantees to the Office of the Ombudsman, addressed the concern that a lack of an external check against the
but inevitably with the principle of checks and balances that the Deputy Ombudsman would result in mutual protection between the
creation of an Ombudsman office seeks to revitalize. Ombudsman and her Deputies.

What is true for the Ombudsman must be equally and
necessarily true for her Deputies who act as agents of the
Ombudsman in the performance of their duties. The
Ombudsman can hardly be expected to place her complete trust in
her subordinate officials who are not as independent as she is, if
only because they are subject to pressures and controls external to
her Office. This need for complete trust is true in an ideal setting
and truer still in a young democracy like the Philippines where
graft and corruption is still a major problem for the
government. For these reasons, Section 8(2) of RA No. 6770
(providing that the President may remove a Deputy
Ombudsman) should be declared void.
The deliberations of the Constitutional Commission on the
independence of the Ombudsman fully support this position.
Commissioner Florenz Regalado of the Constitutional Commission
expressed his apprehension that any form of presidential control
over the Office of the Ombudsman would diminish its
independence.51 The following exchanges between Commissioners
Blas Ople and Christian Monsod further reveal the constitutional
intent to keep the Office of the Ombudsman independent from the
President:chanRoblesVirtualawlibrary
MR. OPLE. xxx
While the preceding discussion already suffices to address this
concern, it should be added that this concern stands on shaky
grounds since it ignores the existing checks and balances already in
place. On the one hand, the Ombudsman’s Deputies cannot protect
the Ombudsman because she is subject to the impeachment power
of Congress. On the other hand, the Ombudsman’s attempt to
cover up the misdeeds of her Deputies can be questioned before the
Court on appeal or certiorari. The same attempt can likewise
subject her to impeachment.
The judicial recourse available is only consistent with the nature of
the Supreme Court as a non-political independent body mandated
by the Constitution to settle judicial and quasi-judicial disputes,
whose judges and employees are not subject to the disciplinary
authority of the Ombudsman and whose neutrality would be less
questionable. The Members of the Court themselves may be
subjected to the impeachment power of Congress.
In these lights, the appeal, if any, of the mutual protection
argument becomes distinctly implausible. At the same time, the
Court remains consistent with its established rulings - that the
independence granted to the Constitutional Commissions bars any
undue interference from either the Executive or Congress - and is
in full accord with constitutional intent.

May I direct a question to the Committee? xxx [W]ill the e. Congress’ power determines the
Committee consider later an amendment xxx, by way of manner and causes for the removal
designating the office of the Ombudsman as a constitutional arm of non-impeachable officers is not
for good government, efficiency of the public service and the a carte blanch authority
integrity of the President of the Philippines, instead of creating
another agency in a kind of administrative limbo which would be Under Section 2, Article XI of the 1987 Constitution,53 Congress is
accountable to no one on the pretext that it is a constitutional body? empowered to determine the modes of removal from office of all
public officers and employees except the President, the Vice-
MR. MONSOD. The Committee discussed that during our President, the Members of the Supreme Court, the Members of the
committee deliberations and when we prepared the report, it was Constitutional Commissions, and the Ombudsman, who are all
the opinion of the Committee — and I believe it still is — that it impeachable officials.
may not contribute to the effectiveness of this office of the
Ombudsman precisely because many of the culprits in inefficiency, The intent of the framers of the Constitution in providing that “[a]ll
injustice and impropriety are in the executive department. other public officers and employees may be removed from office
Therefore, as we saw the wrong implementation of the Tanodbayan as provided by law, but not by impeachment” in the second
which was under the tremendous influence of the President, it was sentence of Section 2, Article XI is to prevent Congress from
an ineffectual body and was reduced to the function of a special extending the more stringent rule of “removal only by
fiscal. The whole purpose of our proposal is precisely to separate impeachment” to favored public officers.54 Understandably so,
those functions and to produce a vehicle that will give true impeachment is the most difficult and cumbersome mode of
meaning to the concept of Ombudsman. Therefore, we regret that removing a public officer from office. It is, by its nature, a sui
we cannot accept the proposition.52 generis politico-legal process55 that signals the need for a judicious
and careful handling as shown by the process required to initiate
The statements made by Commissioner Monsod emphasized a very the proceeding;56 the one-year limitation or bar for its
logical principle: the Executive power to remove and discipline initiation;57 the limited grounds for impeachment;58 the defined
key officials of the Office of the Ombudsman, or to exercise any instrumentality given the power to try impeachment cases;59 and
power over them, would result in an absurd situation wherein the number of votes required for a finding of guilt. 60 All these
the Office of the Ombudsman is given the duty to adjudicate on argue against the extension of this removal mechanism beyond
the integrity and competence of the very persons who can those mentioned in the Constitution.
remove or suspend its members. Equally relevant is the
impression that would be given to the public if the rule were On the practical side, our nation has witnessed the complications
otherwise. A complainant with a grievance against a high-ranking and problems an impeachment proceeding entails, thus justifying
official of the Executive, who appears to enjoy the President’s its limited application only to the officials occupying the highest
favor, would be discouraged from approaching the Ombudsman echelons of responsibility in our government. To name a few,
with his complaint; the complainant’s impression (even if some of the negative practical effects of impeachment are: it stalls
151 HRLAW 08281
legislative work; it is an expensive process in terms of the cost of
prosecution alone; and, more importantly, it is inherently divisive At any rate, even assuming that the OP has disciplinary authority
of the nation.61 Thus, in a cost-benefit analysis of adopting over the Deputy Ombudsman, its decision finding Gonzales guilty
impeachment as a mechanism, limiting Congress’ power to of Gross Neglect of Duty and Grave Misconduct constituting
otherwise legislate on the matter is far more advantageous to the betrayal of public trust is patently erroneous. The OP’s decision
country. perfectly illustrates why the requirement of impeachment-grounds
in Section 8(2) of RA No. 6770 cannot be considered, even at a
It is in these lights that the second sentence in Section 2, Article XI minimum, a measure of protection of the independence of the
of the 1987 Constitution should be read. Contrary to the implied Office of the Ombudsman.
view of the minority, in no way can this provision be regarded as
blanket authority for Congress to provide for any ground of C. The Deputy Ombudsman: The Dismissal Issue
removal it deems fit. While the manner and cause of removal are
left to congressional determination, this must still be consistent a. The Office of the President’s
with constitutional guarantees and principles, namely: the right to finding of gross negligence has
procedural and substantive due process; the constitutional no legal and factual leg to
guarantee of security of tenure; the principle of separation of stand on
powers; and the principle of checks and balances.62crallawlibrary
The OP’s decision found Gonzales guilty of Gross Neglect of Duty
In short, the authority granted by the Constitution to Congress to and of Grave Misconduct. The assailed Decision of the OP
provide for the manner and cause of removal of all other public reads:chanRoblesVirtualawlibrary
officers and employees does not mean that Congress can ignore the
basic principles and precepts established by the Constitution. Upon consideration of the First Report, the evidence and
allegations of respondent Deputy Ombudsman himself, and other
In the same manner, the congressional determination of the identity documentary evidence gathered, this Office finds that the
of the disciplinary authority is not a blanket authority for Congress inordinate and unjustified delay in the resolution of Captain
to repose it on whomsoever Congress chooses without running Mendoza’s Motion for Reconsideration timely filed on 5
afoul of the independence enjoyed by the Office of the November 2009 xxx amounted to gross neglect of duty and/or
Ombudsman and without disrupting the delicate check and balance inefficiency in the performance of official duty.64crallawlibrary
mechanism under the Constitution. Properly viewed from this
perspective, the core constitutional principle of independence is b. No gross neglect of duty or inefficiency
observed and any possible absurdity resulting from a contrary
interpretation is avoided. In other words, while the Constitution Let us again briefly recall the facts.
itself vested Congress with the power to determine the manner and
cause of removal of all non-impeachable officials, this power must
1. November 5, 2009 - Mendoza filed a Motion for
be interpreted consistent with the core constitutional principle of
Reconsideration of the decision of the
independence of the Office of the Ombudsman. Our observation in
Ombudsman,65 which was followed by a Supplement to
Macalintal v. Comelec63 is apt:chanRoblesVirtualawlibrary
the Motion for Reconsideration;66crallawlibrary
2. December 14, 200967 - GIPO Garcia, who was assigned
The ambit of legislative power under Article VI of the Constitution to review these motions and make his recommendation
is circumscribed by other constitutional provisions. One such for the appropriate action, received the records of the
provision is Section 1 of Article IX-A of the 1987 Constitution case;
ordaining that constitutional commissions such as the COMELEC 3. April 5, 2010 - GIPO Garcia released a draft order to be
shall be “independent.” reviewed by his immediate superior, Dir.
Cecilio;68crallawlibrary
While one may argue that the grounds for impeachment under 4. April 27, 2010 - Dir. Cecilio signed and forwarded to
Section 8(2) of RA No. 6770 is intended as a measure of protection Gonzales this draft order;69crallawlibrary
for the Deputy Ombudsman and Special Prosecutor - since these 5. May 6, 2010 (or nine days after the records were
grounds are not intended to cover all kinds of official wrongdoing forwarded to Gonzales) - Gonzales endorsed the draft
and plain errors of judgment - this argument seriously overlooks order for the final approval of the Ombudsman.70
the erosion of the independence of the Office of the Ombudsman
that it creates. The mere fact that a statutorily-created sword of
Damocles hangs over the Deputy Ombudsman’s head, by itself,
opens up all the channels for external pressures and influence of Clearly, when Mendoza hijacked the tourist bus on August 23,
officialdom and partisan politics. The fear of external reprisal from 2010, the records of the case were already pending before
the very office he is to check for excesses and abuses defeats the Ombudsman Gutierrez.
very purpose of granting independence to the Office of the
Ombudsman. Gross negligence refers to negligence characterized by the want of
even the slightest care, acting or omitting to act in a situation where
That a judicial remedy is available (to set aside dismissals that do there is a duty to act, not inadvertently but willfully and
not conform to the high standard required in determining whether a intentionally, with a conscious indifference to consequences
Deputy Ombudsman committed an impeachable offense) and that insofar as other persons may be affected. In the case of public
the President’s power of removal is limited to specified grounds officials, there is gross negligence when a breach of duty is flagrant
are dismally inadequate when balanced with the constitutional and palpable.71crallawlibrary
principle of independence. The mere filing of an administrative
case against the Deputy Ombudsman and the Special Gonzales cannot be guilty of gross neglect of duty and/or
Prosecutor before the OP can already result in their suspension inefficiency since he acted on the case forwarded to him within
and can interrupt the performance of their functions, in nine days. In finding Gonzales guilty, the OP 72 relied on Section
violation of Section 12, Article XI of the Constitution. With only 8, Rule III of Administrative Order No. 7 (or the Rules of
one term allowed under Section 11, a Deputy Ombudsman or Procedure of the Office of the Ombudsman, series of 1990, as
Special Prosecutor, if removable by the President, can be reduced amended) in ruling that Gonzales should have acted on Mendoza’s
to the very same ineffective Office of the Ombudsman that the Motion for Reconsideration within five
framers had foreseen and carefully tried to avoid by making these days:chanRoblesVirtualawlibrary
offices independent constitutional bodies.
152 HRLAW 08281
Section 8. Motion for reconsideration or reinvestigation: Grounds
- Whenever allowable, a motion for reconsideration or
reinvestigation may only be entertained if filed within ten (10) days
from receipt of the decision or order by the party on the basis of
any of the following grounds:chanRoblesVirtualawlibrary
a) New evidence had been discovered which materially affects the
order, directive or decision;
b) Grave errors of facts or laws or serious irregularities have been
committed prejudicial to the interest of the movant.
Only one motion for reconsideration or reinvestigation shall be
allowed, and the Hearing Officer shall resolve the same within
five (5) days from the date of submission for resolution. [emphasis
and underscore ours]
Even if we consider this provision to be mandatory, the period it
requires cannot apply to Gonzales since he is a Deputy
Ombudsman whose obligation is to review the case; he is not
simply a Hearing Officer tasked with the initial resolution of the
motion. In Section 6 of Administrative Order No. 7 on the
resolution of the case and submission of the proposed decision, the
period for resolving the case does not cover the period within
which it should be reviewed:chanRoblesVirtualawlibrary
Section 6. Rendition of decision. - Not later than thirty (30) days
after the case is declared submitted for resolution, the Hearing
Officer shall submit a proposed decision containing his findings
and recommendation for the approval of the Ombudsman. Said
proposed decision shall be reviewed by the Directors, Assistant
Ombudsmen and Deputy Ombudsmen concerned. With respect
to low ranking public officials, the Deputy Ombudsman
concerned shall be the approving authority.Upon approval,
copies thereof shall be served upon the parties and the head of the
office or agency of which the respondent is an official or employee
for his information and compliance with the appropriate directive
contained therein. [italics and emphases supplied]
Thus, the OP’s ruling that Gonzales had been grossly negligent for
taking nine days, instead of five days, to review a case was totally
baseless.
c. No actionable failure to supervise subordinates
The OP’s claims that Gonzales could have supervised his
subordinates to promptly act on Mendoza’s motion and apprised
the Tanodbayan of the urgency of resolving the same are similarly
groundless.
The Office of the Ombudsman is not a corner office in our
bureaucracy. It handles numerous cases that involve the potential
loss of employment of many other public employees. We cannot
conclusively state, as the OP appears to suggest, that Mendoza’s
case should have been prioritized over other similar cases. The
Court has already taken judicial notice of the steady stream of
cases reaching the Office of the Ombudsman.73 This consideration
certainly militates against the OSG’s observation that there was “a
grossly inordinate and inexcusable delay”74 on the part of
Gonzales.
Equally important, the constitutional guarantee of “speedy
disposition of cases” before, among others, quasi-judicial
bodies,75 like the Office of the Ombudsman, is itself
a relative concept.76 Thus, the delay, if any, must be measured in
this objective constitutional sense. Unfortunately, because of the
very statutory grounds relied upon by the OP in dismissing
Gonzales, the political and, perhaps, “practical” considerations got
the better of what is legal and constitutional.
The facts do not show that Gonzales’ subordinates had in any way
been grossly negligent in their work. While GIPO Garcia reviewed
the case and drafted the order for more than three months, it is
153 HRLAW 08281
noteworthy that he had not drafted the initial decision and,
therefore, had to review the case for the first time.77 Even the
Ombudsman herself could not be faulted for acting on a case
within four months, given the amount of cases that her office
handles.
The point is that these are not inordinately long periods for the
work involved: examination of the records, research on the
pertinent laws and jurisprudence, and exercise of legal judgment
and discretion. If this Court rules that these periods per
se constitute gross neglect of duty, the Ombudsman’s constitutional
mandate to prosecute all the erring officials of this country would
be subjected to an unreasonable and overwhelming
constraint. Similarly, if the Court rules that these periods per se
constitute gross neglect of duty, then we must be prepared to
reconcile this with the established concept of the right of speedy
disposition of cases - something the Court may be hard put to
justify.
d. No undue interest
The OP also found Gonzales guilty of showing undue interest in
Mendoza’s case by having the case endorsed to the Office of the
Ombudsman and by resolving it against Mendoza on the basis of
the unverified complaint-affidavit of the alleged victim, Kalaw.
The fact that Gonzales had Mendoza’s case endorsed to his office
lies within his mandate, even if it were based merely on the request
of the alleged victim’s father. The Constitution empowers the
Ombudsman and her Deputies to act promptly on complaints filed
in any form or manner against any public official or employee of
the government.78 This provision is echoed by Section 13 of RA
No. 6770,79 and by Section 3, Rule III of Administrative Order No.
7, series of 1990, as amended.80crallawlibrary
Moreover, Gonzales and his subordinates did not resolve the
complaint only on the basis of the unverified affidavit of
Kalaw. Based on the prosecution officer’s recommendations, the
finding of guilt on the part of Mendoza, et al. was based on their
admissions as well. Mendoza, et al. admitted that they had arrested
Kalaw based on two traffic violations and allowed him to stay the
whole night until the following morning in the police precinct. The
next morning, Kalaw was allowed to leave the precinct despite his
failure to show a valid license and based merely on his promise to
return with the proper documents.81 These admissions led
Gonzales and his staff to conclude that Mendoza, et al. irregularly
acted in apprehending Kalaw, since the proper procedure for the
apprehension of traffic violators would be to give them a ticket and
to file a case, when appropriate.82crallawlibrary
Lastly, we cannot deduce undue interest simply because Gonzales’
decision differs from the decision of the PNP-IAS (which
dismissed the complaint against Mendoza). To be sure, we cannot
tie the hands of any judicial or quasi-judicial body by ruling that it
should always concur with the decisions of other judicial or quasi-
judicial bodies which may have also taken cognizance of the
case. To do so in the case of a Deputy Ombudsman would be
repugnant to the independence that our Constitution has
specifically granted to this office and would nullify the very
purpose for which it was created.
e. Penalty of dismissal totally
incommensurate with established
facts
Given the lack of factual basis for the charges against Gonzales,
the penalty of removal imposed by the OP necessarily suffers grave
infirmity. Basic strictures of fair play dictate that we can only be
held liable for our own misdeeds; we can be made to account
only for lapses in our responsibilities. It is notable that of all the
officers, it was Gonzales who took the least time — nine days —
followed by Cecilio, who took 21 days; Garcia — the writer of the
draft — took less than four months, and the Ombudsman, less
than four months until the kidnapping incident rendered
Mendoza’s motion moot.
In these lights, the decision of the OP is clearly and patently
wrong. This conclusion, however, does not preclude the
Ombudsman from looking into any other possible administrative
liability of Gonzales under existing Civil Service laws, rules and
regulations.
D. The Special Prosecutor: The Constitutional Issue
The 1987 Constitution created a new, independent Office of the
Ombudsman. The existing Tanodbayan at the time83became the
Office of the Special Prosecutor under the 1987 Constitution.
While the composition of the independent Office of the
Ombudsman under the 1987 Constitution does not textually
include the Special Prosecutor, the weight of the foregoing
discussions on the unconstitutionality of Section 8(2) of RA No.
6770 should equally apply to the Special Prosecutor on the basis
of the legislative history of the Office of the Ombudsman as
expounded in jurisprudence.
Under the 1973 Constitution,84 the legislature was mandated to
create the Office of the Ombudsman, known as the Tanodbayan,
with investigative and prosecutorial powers. Accordingly, on June
11, 1978, President Ferdinand Marcos enacted PD No.
1487.85crallawlibrary
Under PD No. 1486,86 however, the “Chief Special Prosecutor”
(CSP) was given the “exclusive authority” to conduct preliminary
investigation and to prosecute cases that are within the jurisdiction
of the Sandiganbayan.87 PD No. 1486 expressly gave the
Secretary of Justice the power of control and supervision over
the Special Prosecutor.88Consistent with this grant of power, the
law also authorized the Secretary of Justice to appoint or detail to
the Office of the CSP “any officer or employee of Department of
Justice or any Bureau or Office under the executive supervision
thereof” to assist the Office of the CSP.
In December 1978, PD No. 160789 practically gave back to the
Tanodbayan the powers taken away from it by the Office of the
CSP. The law “created in the Office of the Tanodbayan an Office
of the Chief Special Prosecutor” under the Tanodbayan’s
control,90 with the exclusive authority to conduct preliminary
investigation and prosecute all cases cognizable by the
Sandiganbayan. Unlike the earlier decree, the law also empowered
the Tanodbayan to appoint Special Investigators and subordinate
personnel and/or to detail to the Office of the CSP any public
officer or employees who “shall be under the supervision and
control of the Chief Special Prosecutor.”91 In 1979, PD No. 1630
further amended the earlier decrees by transferring the powers
previously vested in the Special Prosecutor directly to the
Tanodbayan himself.92crallawlibrary
This was the state of the law at the time the 1987 Constitution was
ratified. Under the 1987 Constitution, an “independent Office of
the Ombudsman” is created.93The existing Tanodbayan is made
the Office of the Special Prosecutor, “who shall continue to
function and exercise its powers as now94 or hereafter may be
provided by law.”95crallawlibrary
Other than the Ombudsman’s Deputies, the Ombudsman shall
appoint all other officials and employees of the Office of the
Ombudsman.96 Section 13(8), Article XI of the 1987 Constitution
provides that the Ombudsman may exercise “such other powers or
perform such functions or duties as may be provided by
law.” Pursuant to this constitutional command, Congress enacted
RA No. 6770 to provide for the functional and structural
organization of the Office of the Ombudsman and the extent of its
disciplinary authority.
In terms of composition, Section 3 of RA No. 6770 defines the
composition of the Office of the Ombudsman, including in this
154 HRLAW 08281
Office not only the offices of the several Deputy Ombudsmen but
the Office of the Special Prosecutor as well. In terms of
appointment, the law gave the President the authority to appoint the
Ombudsman, his Deputies and the Special Prosecutor, from a list
of nominees prepared by the Judicial and Bar Council. In case of
vacancy in these positions, the law requires that the vacancy be
filled within three (3) months from occurrence.97crallawlibrary
The law also imposes on the Special Prosecutor the same
qualifications it imposes on the Ombudsman himself/herself and
his/her deputies.98 Their terms of office,99 prohibitions and
qualifications,100 rank and salary are likewise the same.101 The
requirement on disclosure102 is imposed on the Ombudsman, the
Deputies and the Special Prosecutor as well. In case of vacancy in
the Office of the Ombudsman, the Overall Deputy cannot assume
the role of Acting Ombudsman; the President may designate any of
the Deputies or the Special Prosecutor as Acting
Ombudsman.103 The power of the Ombudsman and his or her
deputies to require other government agencies to render assistance
to the Office of the Ombudsman is likewise enjoyed by the Special
Prosecutor.104crallawlibrary
Given this legislative history, the present overall legal structure of
the Office of the Ombudsman, both under the 1987 Constitution
and RA No. 6770, militates against an interpretation that would
insulate the Deputy Ombudsman from the disciplinary authority of
the OP and yet expose the Special Prosecutor to the same ills that a
grant of independence to the Office of the Ombudsman was
designed for.
Congress recognized the importance of the Special Prosecutor as a
necessary adjunct of the Ombudsman, aside from his or her
deputies, by making the Office of the Special Prosecutor an organic
component of the Office of the Ombudsman and by granting the
Ombudsman control and supervision over that office.105 This
power of control and supervision includes vesting the Office of the
Ombudsman with the power to assign duties to the Special
Prosecutor as he/she may deem fit. Thus, by constitutional
design, the Special Prosecutor is by no means an ordinary
subordinate but one who effectively and directly aids the
Ombudsman in the exercise of his/her duties, which include
investigation and prosecution of officials in the Executive
Department.
Under Section 11(4) of RA No. 6770, the Special Prosecutor
handles the prosecution of criminal cases within the jurisdiction of
the Sandiganbayan and this prosecutorial authority includes high-
ranking executive officials. For emphasis, subjecting the Special
Prosecutor to disciplinary and removal powers of the
President, whose own alter egos and officials in the Executive
Department are subject to the prosecutorial authority of the
Special Prosecutor, would seriously place the independence of the
Office of the Ombudsman itself at risk.
Thus, even if the Office of the Special Prosecutor is not expressly
made part of the composition of the Office of the Ombudsman, the
role it performs as an organic component of that Office militates
against a differential treatment between the Ombudsman’s
Deputies, on one hand, and the Special Prosecutor himself, on
the other. What is true for the Ombudsman must be equally
true, not only for her Deputies but, also for other lesser officials
of that Office who act directly as agents of the
Ombudsman herself in the performance of her duties.
In Acop v. Office of the Ombudsman,106 the Court was confronted
with an argument that, at bottom, the Office of the Special
Prosecutor is not a subordinate agency of the Office of the
Ombudsman and is, in fact, separate and distinct from the latter. In
debunking that argument, the Court
said:chanRoblesVirtualawlibrary
Firstly, the petitioners misconstrue Commissioner Romulo’s
statement as authority to advocate that the intent of the
framers of the 1987 Constitution was to place the Office of the
Special Prosecutor under the Office of the President. xxx

In the second place, Section 7 of Article XI expressly provides that

the then existing Tanodbayan, to be henceforth known as the
Office of the Special Prosecutor, ’shall continue to function and
exercise its powers as now or hereafter may be provided by law,
except those conferred on the Office of the Ombudsman created
under this Constitution.’ The underscored phrase evidently refers to
the Tanodbayan’s powers under P.D. No. 1630 or subsequent
amendatory legislation. It follows then that Congress may remove
any of the Tanodbayan’s/Special Prosecutor’s powers under P.D.
N0. 1630 or grant it other powers, except those powers conferred
by the Constitution on the Office of the Ombudsman.

Pursuing the present line of reasoning, when one considers that by

express mandate of paragraph 8, Section 13, Article XI of the
Constitution, the Ombudsman may ’exercise such other powers or
perform functions or duties as may be provided by law,’ it is
indubitable then that Congress has the power to place the Office of
the Special Prosecutor under the Office of the Ombudsman.107

Thus, under the present Constitution, there is every reason to treat

the Special Prosecutor to be at par with the Ombudsman’s deputies,
at least insofar as an extraneous disciplinary authority is concerned,
and must also enjoy the same grant of independence under the
Constitution.

III. SUMMARY OF VOTING

In the voting held on January 28, 2014, by a vote of 8-7,108 the

Court resolved to reverse its September 4, 2012 Decision insofar
as petitioner Gonzales is concerned (G.R. No. 196231). We
declared Section 8(2) of RA No. 6770 unconstitutional by
granting disciplinary jurisdiction to the President over a Deputy
Ombudsman, in violation of the independence of the Office of the
Ombudsman.

However, by another vote of 8-7,109 the Court resolved to

maintain the validity of Section 8(2) of RA No. 6770 insofar as
Sulit is concerned. The Court did not consider the Office of the
Special Prosecutor to be constitutionally within the Office of the
Ombudsman and is, hence, not entitled to the independence the
latter enjoys under the Constitution.

WHEREFORE, premises considered, the Court resolves to

declare Section 8(2) UNCONSTITUTIONAL. This ruling
renders any further ruling on the dismissal of Deputy Ombudsman
Emilio Gonzales III unnecessary, but is without prejudice to the
power of the Ombudsman to conduct an administrative
investigation, if warranted, into the possible administrative liability
of Deputy Ombudsman Emilio Gonzales III under pertinent Civil
Service laws, rules and regulations.

SO ORDERED.

155 HRLAW 08281

Victor Lingan VS. Attys. Romeo Calubaquib and Jimmu P.
Baliga
A.C. No. 5377, June 15, 2006
CORONA, J.:
FACTS:
A complaint for
disbarmenthttp://sc.judiciary.gov.ph/jurisprudence/2006/june2006/
A.C. No. 5377.htm - _ftn1 was filed by Victor Lingan against
Attys. Romeo Calubaquib and Jimmy Baliga on November 16,
2000. Complainant alleged that respondents, both notaries public,
falsified certain public documents, as follows:
1. A complaint for annulment of title with damages filed
by Isaac Villegas against complainant with the
Regional Trial Court of
Tuguegarao, Cagayan. Respondent Calubaquib signed
the verification and certification of non-forum
shopping of the complaint as notary public and entered
the same as Doc. No. 182; Page No. 38; Book No.
CLXXII; Series of 1996, which according to the
records of the National Archives, the document entered
as Doc. No. 182; Page 38; Book No. CLXXII; Series of
1996 in respondent Calubaquib’s notarial register was
an affidavit of one Daniel Malayao.
2. A special power of attorney dated September 10, 1996
executed by Isaac Villegas appointing
respondent Calubaquib as his attorney-in-fact to “enter
into a compromise agreement under such terms and
conditions acceptable to him” which was notarized by
respondent Baliga and entered as Doc. No. 548, Page
No. 110; Book No. VIII; Series of 1996, which
according to respondent Baliga’s notarial register, Doc.
No. 548; Page No. 110; Book No. VIII; Series of 1996
pertains to an affidavit of loss of one Pedro
Telan, dated August 26, 1996.
3. A petition for reappointment as notary public for and
in Tuguegarao,Cagayan by respondent Baliga, which
was notarized by respondent Calubaquib and entered in
his notarial register as Doc. No. 31, Page No. 08, Book
No. CXXX, Series of 1995. However,
Notarial Register Book No. CXXX was for the year
1996 and entered there as Doc. No. 31, Page No. 08
was a cancellation of real estate mortgage dated
January 11, 1996.
Respondents Calubaquib and Baliga both admitted the
incorrectness of the entries and simply attributed them to the
inadvertence in good faith of their secretary and legal assistants to
whom they had left the task of entering all his notarial documents.
ISSUE: Whether or not respondents violated the
Notarial Practice Law
RULING:
It is abundantly clear that the notary public is personally
accountable for all entries in his notarial register. Section 245 of
the Notarial Law provides that every notary public shall keep a
register to be known as the notarial register, wherein record shall
be made of all his official acts as notary; and he shall supply a
certified copy of such record, or any part thereof, to any person
applying for it and paying the legal fees therefore. Section 246 of
the same law also provides that the notary public shall enter in such
register, in chronological order, the nature of each instrument
executed, sworn to, or acknowledged before him, the person
executing, swearing to, or acknowledging the instrument, the
witnesses, if any, to the signature, the date of execution, oath, or
156 HRLAW 08281
acknowledgment of the instrument, the fees collected by him for
his services as notary in connection therewith, and, when the
instrument is a contract, he shall keep a correct copy thereof as part
of his records, and shall likewise enter in said records a brief
description of the substance thereof and shall give to each entry a
consecutive number, beginning with number one in each calendar
year. The notary shall give to each instrument executed, sworn to,
or acknowledged before him a number corresponding to the one in
his register, and shall also state on the instrument the page or pages
of his register on which the same is recorded. No blank line shall
be left between entries.
In this connection, Section 249(b) provides that
the failure of the notary to make the proper entry or
entries in his notarial register touching his notarial acts in
the manner required by law shall, in the discretion of the
proper judge of first instance, be sufficient ground for the
revocation of his commission:
Respondents cannot be relieved of responsibility for the
violation of the aforesaid sections by passing the buck to their
secretaries, a reprehensible practice which to this day persists
despite our open condemnation.
Notarization is not an empty, meaningless
or routinary act but one invested with substantive public interest,
such that only those who are qualified or authorized to do so may
act as notaries public. The protection of that interest necessarily
requires that those not qualified or authorized to act must be
prevented from inflicting themselves upon the public, the courts
and the administrative offices in general.
Notarization by a notary public converts a private
document into a public one and makes it admissible in evidence
without further proof of its authenticity. Notaries public must
therefore observe utmost care with respect to the basic
requirements of their duties.
FALLO:
WHEREFORE, in view of the foregoing, respondents
Atty. Romeo I. Calubaquib and Atty. Jimmy P. Baliga are hereby
found guilty of violation of Rule 1.01, Canon 1 of the Code of
Professional Responsibility and of their lawyer’s oath. They are
both ordered SUSPENDED from the practice of law for ONE
YEAR effective immediately, with a warning that another
infraction shall be dealt with more severely.
Their present commissions as notaries public, if any, are
hereby REVOKED, with DISQUALIFICATION from
reappointment as notaries public for a period of two years.
Let a copy of this Resolution be attached to the personal
records of Atty. Romeo I. Calubaquib and Atty. Jimmy P. Baliga,
and copies furnished the Integrated Bar of the Philippines, the
Office of the Court Administrator and Office of the Bar Confidant
for dissemination to all courts nationwide.
This Resolution is immediately executory.
SO ORDERED.
A.C. No. 5377 June 30, 2014
VICTOR C. LINGAN, Complainant,
vs.
ATTYS. ROMEO CALUBAQUIB and JIMMY P.
BALIGA, Respondents.
RESOLUTION
LEONEN, J.:
This court has the exclusive jurisdiction to regulate the practice of
law. When this court orders a lawyer suspended from the practice
of law, the lawyer must desist from performing all functions
requiring the application of legal knowledge within the period of
suspension. This includes desisting from holding a position in
government requiring the authority to practice law.
For our resolution is respondent Atty. Jimmy P. Baliga's motion to
lift one-year suspension from the practice of law.1
In the resolution2 dated June 15, 2006, this court found Attys.
Romeo I. Calubaquib and Jimmy P. Baliga guilty of violating Rule
1.01, Canon 1 of the Code of Professional Responsibility3 and of
the Lawyer's Oath.4 Respondents allowed their secretaries to
notarize documents in their stead, in violation of Sections 245 5 and
2466 of the Notarial Law. This court suspended respondents from
the practice of law for one year, revoked their notarial
commissions, and disqualified them from reappointment as
notaries public for two years.
Complainant Victor C. Lingan filed his motion for
reconsideration,7 praying that respondents be disbarred, not merely
suspended from the practice of law. In the resolution 8 dated
September 6, 2006, this court denied complainant Lingan's motion
for reconsideration for lack of merit.
On March 22, 2007, Atty. Baliga, also the Regional Director of the
Commission on Human Rights Regional Office for Region II, filed
the undated ex parte clarificatory pleading with leave of court. 9
In his ex parte clarificatory pleading, Atty. Baliga alleged that on
July 14, 2006, complainant Lingan wrote the Commission on
Human Rights. Lingan requested the Commission to investigate
Atty. Baliga following the latter's suspension from the practice of
law.
After this court had suspended Atty. Baliga from the practice of
law, the Commission on Human Rights En Banc issued the
resolution10 dated January 16, 2007, suspending him from his
position as Director/Attorney VI of the. Commission on Human
Rights Regional Office for Region II. According to the
Commission on Human Rights En Banc, Atty. Baliga's suspension
from the practice of law "prevent[ed] [him] from assuming his post
[as Regional Director] for want of eligibility in the meantime that
his authority to practice law is suspended."11
Atty. Baliga · argued that he cannot be suspended for acts not
connected with his functions as Commission on Human Rights
Regional Director. According to Atty. Baliga, his suspension from
the practice of law did not include his suspension from public
office. He prayed for clarification of this court's resolution dated
June 15, 2006 "to prevent further injury and prejudice to [his]
rights."12
This court noted without action Atty. Baliga's ex parte clarificatory
pleading as this court does not render advisory opinions.13
157 HRLAW 08281
On May 8, 2009, this court received ·a letter from complainant
Lingan. In his letter14 dated May 4, 2009, Lingan alleged that Atty.
Baliga continued practicing law and discharging his functions as
Commission on Human Rights Regional Director, in violation of
this court's order of suspension.
Complainant Lingan allegedly received a copy of the Commission
on Human Rights En Banc 's resolution suspending Atty. Baliga as
Regional Director. On Atty. Baliga's motion, the ommission
reconsidered Atty. Baliga's suspension and instead admonished
him for "[violating] the conditions of his commission as a notary
public."15According to complainant Lingan, he was not served a
copy of Atty. Baliga's motion for reconsideration.16
Complainant Lingan claimed that the discharge of the functions of
a Commission on Human Rights Regional Director necessarily
required the practice of law. A Commission on Human Rights
Regional Director must be a member of the bar and is designated
as Attorney VI. Since this court suspended Atty. Baliga from the
practice of law, Atty. Baliga was in effect "a non-lawyer . . . and
[was] disqualified to hold the position of [Regional Director]
[during the effectivity of the order of suspension]."17 The
Commission on Human Rights, according to complainant Lingan,
should have ordered Atty. Baliga to desist from performing his
functions as Regional Director. Complainant Lingan prayed that
this court give "favorable attention and action on the matter."18
This court endorsed complainant Lingan's letter to the Office of the
Bar Confidant for report and recommendation.19
In its report and recommendation20 dated June 29, 2009, the Office
of the Bar Confidant found that the period of suspension of Attys.
Calubaquib and Baliga had already lapsed. It recommended that
respondents be required to file their respective motions to lift order
of suspension with certifications from the Integrated Bar of the
Philippines and the Executive Judge of the court where they might
appear as counsel and state that they desisted from practicing law
during the period of suspension.
On the claim that the Commission on Human Rights allowed Atty.
Baliga to perform his functions as Regional Director during the
period of suspension, the Office of the Bar Confidant said that the
Commission "deliberate[ly] disregard[ed]"21 this court's order of
suspension. According to the Office of the Bar Confidant, the
Commission on Human Rights had no power to "[alter, modify, or
set aside any of this court's resolutions] which [have] become final
and executory. "22
Thus, with respect to Atty. Baliga, the Office of the Bar Confidant
recommended that this court require him to submit a certification
from the Commission on Human Rights stating that he desisted
from performing his functions as Regional Director while he was
suspended from the practice of law.23
The Office of the Bar Confidant further recommended that Atty.
Baliga and the Commission .on Human Rights be required to
comment on complainant Lingan's allegation that Atty. Baliga
continued to perform his functions as Regional Director while he
was suspended from the practice of law.
On July 17, 2009, Atty. Baliga filed a manifestation,24 arguing that
his suspension from the practice of law did not include his
suspension from public office. Atty. Baliga said, "[t]o stretch the
coverage of [his suspension from the practice of law] to [his]
public office would be tantamount to [violating] his constitutional
rights [sic] to due process and to the statutory principle in law that
what is not included is deemed excluded."25
In the resolution26 dated September 23, 2009, this court required
respondents to file their respective motions to lift order of
suspension considering the lapse of the period of suspension. This
court further ordered Atty. Baliga and the Commission on Human
Rights to comment on complainant Lingari's allegation that Atty.
Baliga continued performing his functions as Regional Director
while he was suspended from the practice of law. The resolution
dated September 23, 2009 provides:
Considering that the period of suspension from the practice of law
and disqualification from being commissioned as notary public
imposed on respondents have [sic] already elapsed, this Court
resolves:
(1) to require both respondents, within ten (10) days from
notice, to FILE their respective motions to lift relative to
their suspension and disqualification from being
commissioned as notary public and SUBMIT
certifications from the Integrated Bar of the Philippines
and Executive Judge of the Court where they may appear
as counsel, stating that respondents have actually ceased
and desisted from the practice of law during the entire
period of their suspension and disqualification, unless
already complied with in the meantime;
(2) to require Atty. Jimmy P. Baliga to SUBMIT a
certification from the Commission on Human Rights
[CHR] stating that he has been suspended from office
and has stopped from the performance of his functions
for the period stated in the order of suspension and
disqualification, within ten (10) days from notice hereof;
(3) to require respondent Atty. Baliga and the CHR to
COMMENT on the allegations of complainant against
them, both within ten (10) days from receipt of notice
hereof; ...27 (Emphasis in the original)
In compliance with this court's order, Attys. Calubaquib and Baliga
filed their respective motions to lift order of suspension. 28 Atty.
Baliga also filed his comment on complainant Lingan's allegation
that he continued performing his functions as Regional Director
during his suspension from the practice of law.
In his comment29 dated November 13, 2009, Atty. Baliga alleged
that as Regional Director, he "perform[ed], generally, managerial
functions,"30 which did not require the practice of law. These
managerial functions allegedly included ."[supervising] ... the day
to day operations of the regional office and its
personnel";31 "monitoring progress of investigations conducted by
the [Commission on Human Rights] Investigation
Unit";32 "monitoring the implementation of all other services and
assistance programs of the [Commission on Human Rights] by the
different units at the regional level";33 and "[supervising] . . . the
budgetary requirement preparation and disbursement of funds and
expenditure of the [Regional Office]."34 The Commission allegedly
has its own "legal services unit which takes care of the legal
services matters of the [Commission]."35
Stating that his functions as Regional Director did not require the
practice of law, Atty. Baliga claimed thaf he "faithful[ly]
[complied] with [this court's resolution suspending him from the
practice of law]."36
The Commission on Human Rights filed its comment37 dated
November 27, 2009. It argued that "the penalty imposed upon Atty.
Baliga as a member of the bar is separate and distinct from any
penalty that may be imposed upon him as a public official for the
same acts."38 According to the Commission, Atty. Baliga's
suspension from the practice of law is a "bar matter"39 while the
imposition of penalty upon a Commission on Human Rights
official "is an entirely different thing, falling as it does within the
exclusive authority of the [Commission as] disciplining body."40
158 HRLAW 08281
Nevertheless, the Commission manifested that it would defer to
this court's resolution of the issue and would "abide by whatever
ruling or decision [this court] arrives at on [the] matter. "41 In
reply42 to Atty. Baliga's comment, complainant Lingan argued that
Atty. Baliga again disobeyed this. court. Atty. Baliga failed to
submit a certification from the Commission on Human Rights
stating that he was suspended from office and desisted from
performing his functions as Regional Director.
As to Atty. Baliga's claim that he did not practice law while he held
his position as Regional Director and only performed generally
managerial functions, complainant Lingan countered that Atty.
Baliga admitted to defying the order of suspension. Atty. Baliga
admitted to performing the functions of a "lawyer-
manager,"43 which under the landmark case of Cayetano v.
Monsod44 constituted practice of law. Complainant Lingan
reiterated that the position of Regional Director/ Attorney VI
requires the officer "to be a lawyer [in] good
standing."45 Moreover, as admitted by Atty. Baliga, he had
supervision and control over Attorneys III, IV, and V. Being a
"lawyer-manager," Atty. Baliga practiced law while he held his
position as Regional Director.
With respect to Atty. Baliga's claim that he was in good faith in
reassuming his position as Regional Director, complainant Lingan
countered that if Atty. Baliga were really in good faith, he should
have followed the initial resolution of the Commission on Human
Rights suspending him from office. Atty. Baliga did not even
furnish this court a copy of his motion for reconsideration of the
Commission on Human Right's resolution suspending him from
office. By "playing ignorant on what is 'practice of law', twisting
facts and philosophizing,"46 complainant Lingan argued that Atty.
Baliga "[no longer has that] moral vitality imperative to the title of
an attorney."47 Compfainant Lingan prayed that Atty. Baliga be
disbarred.
On February 17, 2010, this court lifted the order of suspension of
Atty. Calubaquib.48 He was allowed to resume his practice of law
and perform notarial acts subject to compliance with the
requirements for issuance of a notarial commission.
On the other hand, this court referred to the Office of the Bar
Confidant for evaluation, report, and recommendation Atty.
Baliga's motion to lift one-year suspension and the respective
comments of Atty. Baliga and the Commission on Human Rights. 49
In its report and recommendation50 dated October 18, 2010, the
Office of the Bar Confidant stated that Atty. Baliga "should not
[have been] allowed to perform his functions, duties, and
responsibilities [as Regional Director] which [required acts
constituting] practice .of law."51 Considering that Atty. Baliga
claimed that he did not perform his functions as Regional Director
which required the practice of law, the Office of the Bar Confidant
recommended that the Commission on Human Rights be required
to comment on this claim. The Office of the Bar Confidant also
recommended holding in abeyance the resolution of Atty. Baliga's
motion to lift suspension "pending [the Commission on Human
Right's filing of comment]."52
In the resolution53 dated January 12, 2011, this court held in
abeyance the resolution of Atty. Baliga's motion to lift one-year
suspension. The Commission on Human Rights was ordered to
comment on Atty. Baliga's claim that he did not practice law while
he held his position as Regional Director.
In its comment54 dated April 6, 2011, the Commission on Human
Rights reiterated that the penalty imposed on Atty. Baliga as a
member of the bar is separate from the penalty that might be
imposed on him as Regional Director. The Commission added that
it is "of honest belief that the position of [Regional Director] is
managerial and does not [require the practice of law]."55 It again
manifested that it will "abide by whatever ruling or decision [this
court] arrives on [the] matter."56
The issue for our resolution is whether Atty. Baliga's motion to lift
order of suspension should be granted.
We find that Atty. Baliga violated this court's order of suspension.
We, therefore, suspend him further from the practice of law for six
months.
Practice of law is "any activity, in or out of court, which requires
the application of law, legal procedure, knowledge, training and
experience."57 It includes "[performing] acts which are
characteristics of the [legal] profession"58 or "[rendering any kind
of] service [which] requires the use in any degree of legal
knowledge or skill."59
Work in government that requires the use of legal knowledge is
considered practice. of law. In Cayetano v. Monsod, 60 this court
cited the deliberations of the 1986 Constitutional Commission and
agreed that work rendered by lawyers in the Commission on Audit
requiring "[the use of] legal knowledge or legal talent"61 is practice
of law.
The Commission on Human Rights is an independent office
created under the Constitution with power to investigate "all forms
of human rights violations involving civil and political
rights[.]"62 It is divided into regional offices with each office
having primary responsibility to investigate human rights
violations in its territorial jurisdiction.63 Each regional office is
headed by the Regional Director who is given the position of
Attorney VI.
Under the Guidelines and Procedures in the Investigation and
Monitoring of Human Rights Violations and Abuses, and the
Provision of CHR Assistance,64 the Regional Director has the
following powers and functions:
a. To administer oaths or affirmations with respect to
"[Commission on Human Rights] matters;"65
b. To issue mission orders in their respective regional
offices;66
c. To conduct preliminary evaluation or initial
investigation of human rights complaints in the absence
of the legal officer or investigator;67
d. To conduct dialogues or preliminary conferences
among parties and discuss "immediate courses of action
and protection remedies and/or possible submission of
the matter to an alternative dispute resolution";68
e. To issue Commission on Human Rights processes,
including notices, letter-invitations, orders, or subpoenas
within the territorial jurisdiction of the regional
office;69 and
f. To review and approve draft resolutions of human
rights cases prepared by the legal officer.70
These powers and functions are characteristics of the legal
profession. Oaths and affirmations are usually performed by
members of the judiciary and notaries public71 - officers who are
necessarily members of the bar.72Investigating human rights
complaints are performed primarily by the Commission's legal
officer.73 Discussing immediate courses of action and protection
remedies and reviewing and approving draft resolutions of human
159 HRLAW 08281
rights cases prepared by the legal officer require the use of
extensive legal knowledge.
The exercise of the powers and functions of a Commission on
Human Rights Regional Director constitutes practice of law. Thus,
the Regional Director must be an attorney - a member of the bar in
good standing and authorized to practice law.74 When the Regional
Director loses this authority, such as when he or she is disbarred or
suspended from the practice of law, the Regional Director loses a
necessary qualification to the position he or she is holding. The
disbarred or suspended lawyer must desist from holding the
position of Regional Director.
This court suspended Atty. Baliga from the practice of law for one
year on June 15, 2006, "effective immediately."75From the time
Atty. Baliga received the court's order of suspension on July 5,
2006,76 he has been without authority to practice law. He lacked a
necessary qualification to his position as Commission on Human
Rights Regional Director/ Attorney VI. As the Commission on
Human Rights correctly resolved in its resolution dated January 16,
2007:
WHEREAS, this suspension under ethical standards, in effect,
prevents Atty. Baliga from assuming his post, for want of
eligibility in the meantime that his authority to practice law is
suspended. This is without prejudice to the investigation to be
conducted to the practice of law of Atty. Baliga, which in the case
of all Regional Human Rights Directors is not generally allowed by
the Commission;
WHEREFORE, in the light of the foregoing, the Commission on
Human Rights of the Philippines resolved to put into effect and
implement the legal implications of the SC decision by decreeing
the suspension of Atty. Jimmy P. Baliga in the discharge of his
functions and responsibilities as Director/Attorney VI of CHRP-
Region II in Tuguegarao City for the period for which the Supreme
Court Resolution is in effect.77 (Emphasis in the original)
In ordering Atty. Baliga suspended from office as Regional
Director, the Commission on Human Rights did not violate Atty.
Baliga's right to due process. First, he was only suspended after:
investigation by the Commission on Human Rights Legal and
Investigation Office.78 Second, the Commission gave Atty. Baliga
an opportunity to be heard when he filed his motion for
reconsideration.
Atty. Baliga's performance of generally managerial functions was
not supported by the record. It was also immaterial.1âwphi1 He
held the position of Commission on Human Rights Regional
Director because of his authority to practice law. Without this
authority, Atty. Baliga was disqualified to hold that position.
All told, performing the functions of a Commission on Human
Rights Regional Director constituted practice of law. Atty. Baliga
should have desisted from holding his position as Regional
Director.
Under Section 27, Rule 138 of the Rules of Court, willful
disobedience to any lawful order of a superior court is a ground for
disbarment or suspension from the practice of law:
SEC. 27. Disbarment or suspension of attorneys by Supreme Court;
grounds therefor. - A member of the bar may be disbarred or
suspended from his office as attorney by the Supreme Court for
any deceit, malpractice, or other gross misconduct in such office,
grossly immoral conduct, or by reason of his conviction of a crime
involving moral turpitude, or for any violation of the oath which he
is required to take before admission to practice, or for a willful
disobedience of any lawful order of a superior court, or for
corruptly or willfully appearing as an attorney for a party to a case
without authority so to do. The practice of soliciting cases at law
for the purpose of gain, either personally or through paid agents or
brokers, constitutes malpractice.
In Molina v. Atty. Magat,79 this court suspended further Atty.
Ceferino R. Magat from the practice of law for six months for
practicing his profession despite this court's previous order of
suspension.
We impose the same penalty on Atty. Baliga for holding his
position as Regional Director despite lack.of authority to practice
law.1âwphi1
We note that the Commission on Human Rights En Banc issued the
resolution dated April 13, 2007, reconsidering its first resolution
suspending Atty. Baliga as Regional Director/ Attorney VI.
Instead, the Commission admonished Atty. Baliga and sternly
warned him that repeating the same offense will cause his
dismissal from the service. The resolution with CHR (III) No.
A2007-045 dated April 13, 2007 reads:
In his Motion for Reconsideration dated March 15, 2007,
respondent Atty. Jimmy P. Baliga prays before the Honorable
Commission to recall and annul his suspension as Regional
Director/ Attorney VI of the Commission on Human Rights -
Regional Office No. II, per 16 January 2007 Commission en Banc
Resolution CHR (III) No. A2007-013.
merit a penalty of dismissal from the service.80 (Emphasis in the
original)
The Commission on Human Rights erred in issuing the resolution
dated April 13, 2007. This resolution caused Atty. Baliga to
reassume his position as Regional Director/ Attorney VI despite
lack of authority to practice law.
We remind the Commission on Human Rights that we have the
exclusive jurisdiction to regulate the practice of law.81 The
Commission cannot, by mere resolutions and .other issuances,
modify or defy this court's orders of suspension from the practice
of law. Although the Commission on Human Rights has the power
to appoint its officers and employees,82 it can only retain those with
the necessary qualifications in the positions they are holding.
As for Atty. Baliga, we remind him that the practice of law is a
"privilege burdened with conditions."83 To enjoy the privileges of
practicing law, lawyers must "[adhere] to the rigid standards of
mental fitness, [maintain] the highest degree of morality[,] and
[faithfully comply] with the rules of [the] legal profession."84
WHEREFORE, we further SUSPEND Atty. Jimmy P. Baliga from
the practice of law for six ( 6) months. Atty. Baliga shall serve a
total of one (1) year and six (6) months of suspension from the
practice of law, effective upon service on Atty. Baliga of a copy of
this resolution.

The grounds relied upon the motion are not sufficient to convince SERVE copies of this resolution to the Integrated Bar of the
the Commission that Atty. Jimmy P. Baliga is totally blameless and Philippines, the Office of the Bar Confidant, and the Commission
should not suffer the appropriate penalty for breach of the Code of on Human Rights.
Professional Responsibility and his Lawyer's oath.
SO ORDERED.
The Commission, in the exercise of its authority to discipline, is
concerned with the transgression by Atty. Baliga of his oath of
office as government employee. As records have it, the
Commission granted Atty. Baliga authority to secure a commission
as a notary public. With this, he is mandated to act as a notary
public in accordance with the rules and regulations, to include the
conditions expressly set forth by the Commission.

With the findings clearly enunciated in the Supreme Court

resolution in SC Administrative Case No. 5277 dated 15 June
2006, the Commission cannot close its eyes to the act of Atty.
Baliga that is clearly repugnant to the conduct of an officer reposed
with public trust.

This is enough just cause to have this piece of word, short of being
enraged, and censure Atty. Baliga for having contravened the
conditions of his commission as a notary public. What was granted
to Atty. Baliga is merely a privilege, the exercise of which requires
such high esteem to be in equal footing with the constitutional
mandate of the Commission. Clearly, Atty. Baliga should keep in
mind that the Commission exacts commensurate solicitude from
whatever privilege the Commission grants of every official and
employee.

The Commission notes that by now Atty. Baliga is serving the one
year suspension imposed on him pursuant to the Supreme Court
resolution. The Commission believes that the further suspension of
Atty. Baliga from the office may be too harsh in the meantime that
the Supreme Court penalty is being served. This Commission is
prevailed upon that the admonition of Atty. Baliga as above
expressed is sufficient to complete the cycle of penalizing an erring
public officer.

WHEREFORE, the Commission hereby modifies its ruling in

Resolution CHR (III) No. A2007-013 and imposes the penalty of
admonition with a stem warning that a repetition of the same will

160 HRLAW 08281

ABERCA v. VER
FACTS
Task Force Makabansa (TFM) was ordered by General Fabian Ver
to conduct pre-emptive strikes against Communist- Terrorist
underground houses. TFM raided several houses, employing in
most cases defectively judicial search warrants, arrested people
without warrant of arrest, denied visitation rights, and interrogated
them with the use of threats and tortures. A motion to dismiss was
filed by defendants, stating that 1) plaintiffs may not cause a
judicial inquiry about their detention because the writ of
habeas corpus was suspended; 2) defendants are immune from
liability for acts done in their official duties; 3) there was no cause
of action. On Nov 8, 1983, Judge Fortun granted the motion to
dismiss, which prompted plaintiffs to file a MR on Nov 18, 1983.
He later inhibited himself and was replaced Judge Lising, who
denied the MR for being filed out of time. Another MR was filed,
and was only modified to include Maj. Aguinaldo and MSgt.
Balaba for officers accountable in the said complaint.
ISSUES
1. Whether or not immunity from suit may be invoked?
2. Whether petitioners have the right to question the alleged
violation of their rights in the constitution?
3. Whether the superior officers who gave the orders are liable?
HELD
1. NO, Article 32 of the Civil Code provides a sanction to rights
and freedomenshrined in the constitution. These rights cannot be
violated just because of an order given by a superior. The rule of
law must prevail, or else liberty will perish. Even though they just
followed the orders of their superior, these do not authorize them
to disregard the rights of the petitioners, and therefore cannot be
considered “acts done in their official duties”. Article 32 speaks of
any public officer or private individual, and violation of
these constitutional rights does not exempt them from
responsibility.
2. YES, the suspension of the writ of habeas corpus does not
prevent petitioners from claiming damages for the illegal arrest
and detention in violation of their constitutional rights by seeking
judicial authority. What the writ suspends is merely the right of an
individual to seek release from detentionas a speedy means of
obtaining liberty. It cannot suspend their rights and cause of action
for injuries suffered due to violation of their rights.
3. YES, Article 32 speaks of the liabilities of people who are in
direct violation of the rights stated, as well as people who are
indirectly responsible for such acts. In the case at hand, the
superior officers are the ones who gave the order, and can be
considered indirectly responsible. It was also stated in the
complaint who were the ones who directly and indirectly
participated in those acts. By filing a motion to dismiss, they
admitted all the facts stated in the complaint.
G.R. No. L-69866 April 15, 1988
ROGELIO ABERCA, RODOLFO BENOSA, NESTOR
BODINO NOEL ETABAG DANILO DE LA FUENTE,
BELEN DIAZ-FLORES, MANUEL MARIO GUZMAN,
ALAN JAZMINEZ, EDWIN LOPEZ, ALFREDO MANSOS,
ALEX MARCELINO, ELIZABETH PROTACIO-
MARCELINO, JOSEPH OLAYER, CARLOS PALMA,
MARCO PALO, ROLANDO SALUTIN, BENJAMIN
SESGUNDO, ARTURO TABARA, EDWIN TULALIAN and
REBECCA TULALIAN petitioners,
161 HRLAW 08281
vs.
MAJ. GEN. FABIAN VER, COL. FIDEL SINGSON, COL.
ROLANDO ABADILLA, COL. GERARDO B. LANTORIA,
COL. GALILEO KINTANAR, 1ST LT. COL. PANFILO M.
LACSON, MAJ. RODOLFO AGUINALDO, CAPT. DANILO
PIZARRO, 1ST LT. PEDRO TANGO, 1ST LT. ROMEO
RICARDO, 1ST LT. RAUL BACALSO, MSGT
BIENVENIDO BALABA and REGIONAL TRIAL COURT,
National Capital Judicial Region, Branch XCV (95), Quezon
City, respondents.
YAP, J.:
This petition for certiorari presents vital issues not heretofore
passed upon by this Court. It poses the question whether the
suspension of the privilege of the writ of habeas corpus bars a civil
action for damages for illegal searches conducted by military
personnel and other violations of rights and liberties guaranteed
under the Constitution. If such action for damages may be
maintained, who can be held liable for such violations: only the
military personnel directly involved and/or their superiors as well.
This case stems from alleged illegal searches and seizures and
other violations of the rights and liberties of plaintiffs by various
intelligence units of the Armed Forces of the Philippines, known as
Task Force Makabansa (TFM) ordered by General Fabian Ver "to
conduct pre-emptive strikes against known communist-terrorist
(CT) underground houses in view of increasing reports about CT
plans to sow disturbances in Metro Manila," Plaintiffs allege,
among others, that complying with said order, elements of the
TFM raided several places, employing in most cases defectively
issued judicial search warrants; that during these raids, certain
members of the raiding party confiscated a number of purely
personal items belonging to plaintiffs; that plaintiffs were arrested
without proper warrants issued by the courts; that for some period
after their arrest, they were denied visits of relatives and lawyers;
that plaintiffs were interrogated in violation of their rights to
silence and counsel; that military men who interrogated them
employed threats, tortures and other forms of violence on them in
order to obtain incriminatory information or confessions and in
order to punish them; that all violations of plaintiffs constitutional
rights were part of a concerted and deliberate plan to forcibly
extract information and incriminatory statements from plaintiffs
and to terrorize, harass and punish them, said plans being
previously known to and sanctioned by defendants.
Plaintiffs sought actual/compensatory damages amounting to
P39,030.00; moral damages in the amount of at least P150,000.00
each or a total of P3,000,000.00; exemplary damages in the amount
of at least P150,000.00 each or a total of P3,000,000.00; and
attorney's fees amounting to not less than P200,000.00.
A motion to dismiss was filed by defendants, through their counsel,
then Solicitor-General Estelito Mendoza, alleging that (1) plaintiffs
may not cause a judicial inquiry into the circumstances of their
detention in the guise of a damage suit because, as to them, the
privilege of the writ of habeas corpus is suspended; (2) assuming
that the courts can entertain the present action, defendants are
immune from liability for acts done in the performance of their
official duties; and (3) the complaint states no cause of action
against the defendants. Opposition to said motion to dismiss was
filed by plaintiffs Marco Palo, Danilo de la Fuente, Benjamin
Sesgundo, Nel Etabag, Alfredo Mansos and Rolando Salutin on
July 8, 1983, and by plaintiffs Edwin Lopez, Manuel Mario
Guzman, Alan Jasminez, Nestor Bodino, Carlos Palma, Arturo
Tabara, Joseph Olayer, Rodolfo Benosa, Belen Diaz, Flores,
Rogelio Aberca, Alex Marcelino and Elizabeth Marcelino on July
21, 1983. On November 7, 1983, a Consolidated Reply was filed
by defendants' counsel.
Then, on November 8, 1983, the Regional Trial Court, National
Capital Region, Branch 95, Judge Willelmo C. Fortun,
Presiding, 1 issued a resolution granting the motion to dismiss. I
sustained, lock, stock and barrel, the defendants' contention (1) the
plaintiffs may not cause a judicial inquiry into the circumstances of
their detention in the guise of a damage suit because, as to them,
the privilege of the writ of habeas corpus is suspended; (2) that
assuming that the court can entertain the present action, defendants
are immune from liability for acts done in the performance of their
official duties; and (3) that the complaint states no cause of action
against defendants, since there is no allegation that the defendants
named in the complaint confiscated plaintiffs' purely personal
properties in violation of their constitutional rights, and with the
possible exception of Major Rodolfo Aguinaldo and Sergeant
Bienvenido Balabo committed acts of torture and maltreatment, or
that the defendants had the duty to exercise direct supervision and
control of their subordinates or that they had vicarious liability as
employers under Article 2180 of the Civil Code. The lower court
stated, "After a careful study of defendants' arguments, the court
finds the same to be meritorious and must, therefore, be granted.
On the other hand, plaintiffs' arguments in their opposition are
lacking in merit."
A motion to set aside the order dismissing the complaint and a
supplemental motion for reconsideration was filed by the plaintiffs
on November 18, 1983, and November 24, 1983, respectively. On
December 9, 1983, the defendants filed a comment on the aforesaid
motion of plaintiffs, furnishing a copy thereof to the attorneys of
all the plaintiffs, namely, Attys. Jose W. Diokno, Procopio Beltran,
Rene Sarmiento, Efren Mercado, Auguso Sanchez, Antonio L.
Rosales, Pedro B. Ella Jr., Arno V. Sanidad, Alexander Padilla,
Joker Arroyo, Rene Saguisag, Ramon Esguerra and Felicitas
Aquino.
On December 15, 1983, Judge Fortun issued an order voluntarily
inhibiting himself from further proceeding in the case and leaving
the resolution of the motion to set aside the order of dismissal to
Judge Lising, "to preclude any suspicion that he (Judge Fortun)
cannot resolve [the] aforesaid pending motion with the cold
neutrality of an impartial judge and to put an end to plaintiffs
assertion that the undersigned has no authority or jurisdiction to
resolve said pending motion." This order prompted plaintiffs to
reesolve an amplificatory motion for reconsideration signed in the
name of the Free Legal Assistance Group (FLAG) of Mabini Legal
Aid Committee, by Attys. Joker P. Arroyo, Felicitas Aquino and
Arno Sanidad on April 12, 1984. On May 2,1984, the defendants
filed a comment on said amplificatory motion for reconsideration.
In an order dated May 11, 1984, the trial court, Judge Esteban
Lising, Presiding, without acting on the motion to set aside order of
November 8, 1983, issued an order, as follows:
It appearing from the records that, indeed, the
following plaintiffs, Rogelio Aberca, Danilo de
la Fuente and Marco Palo, represented by
counsel, Atty. Jose W. Diokno, Alan Jasminez
represented by counsel, Atty. Augusta
Sanchez, Spouses Alex Marcelino and
Elizabeth Protacio-Marcelino, represented by
counsel, Atty. Procopio Beltran, Alfredo
Mansos represented by counsel, Atty. Rene
Sarmiento, and Rolando Salutin, represented
by counsel, Atty. Efren Mercado, failed to file
a motion to reconsider the Order of November
8, 1983, dismissing the complaint, nor
interposed an appeal therefrom within the
reglementary period, as prayed for by the
defendants, said Order is now final against said
plaintiffs.
162 HRLAW 08281
Assailing the said order of May 11, 1984, the plaintiffs filed a
motion for reconsideration on May 28,1984, alleging that it was
not true that plaintiffs Rogelio Aberca, Danilo de la Fuente, Marco
Palo, Alan Jasminez, Alex Marcelino, Elizabeth Protacio-
Marcelino, Alfredo Mansos and Rolando Salutin failed to file a
motion to reconsider the order of November 8, 1983 dismissing the
complaint, within the reglementary period. Plaintiffs claimed that
the motion to set aside the order of November 8, 1983 and the
amplificatory motion for reconsideration was filed for all the
plaintiffs, although signed by only some of the lawyers.
In its resolution of September 21, 1984, the respondent court dealt
with both motions (1) to reconsider its order of May 11, 1984
declaring that with respect to certain plaintiffs, the resolution of
November 8, 1983 had already become final, and (2) to set aside its
resolution of November 8, 1983 granting the defendants' motion to
dismiss. In the dispositive portion of the order of September 21,
1984, the respondent court resolved:
(1) That the motion to set aside the order of
finality, dated May 11, 1984, of the Resolution
of dismissal of the complaint of plaintiffs
Rogelio Aberca, Danilo de la Fuente, Marco
Palo, Alan Jasminez Alex Marcelino, Elizabeth
Protacio-Marcelino, Alfredo Mansos and
Rolando Salutin is deed for lack of merit;
(2) For lack of cause of action as against the
following defendants, to wit:
1. Gen Fabian Ver
2. Col. Fidel Singson
3. Col. Rolando Abadilla
4. Lt. Col. Conrado
Lantoria, Jr.
5. Col. Galileo Montanar
6. Col. Panfilo Lacson
7. Capt. Danilo Pizaro
8. 1 Lt Pedro Tango
9. Lt. Romeo Ricardo
10. Lt. Raul Bacalso
the motion to set aside and reconsider the
Resolution of dismissal of the present action or
complaint, dated November 8, 1983, is also
denied but in so far as it affects and refers to
defendants, to wit:
1. Major Rodolfo Aguinaldo, and
2. Master Sgt. Bienvenido Balaba
the motion to reconsider and set aside the
Resolution of dismissal dated November 3,
1983 is granted and the Resolution of dismissal
is, in this respect, reconsidered and modified.
Hence, petitioners filed the instant petition for certiorari on March
15, 1985 seeking to annul and set aside the respondent court's
resolution of November 8, 1983, its order of May 11, 1984, and its
resolution dated September 21, 1984. Respondents were required
to comment on the petition, which it did on November 9, 1985. A
reply was filed by petitioners on August 26, 1986.
We find the petition meritorious and decide to give it due course.
At the heart of petitioners' complaint is Article 32 of the Civil Code
which provides:
ART. 32. Any public officer or employee, or
any private individual who directly or
indirectly obstructs, defeats, violates or in any
manner impedes or impairs any of the
following rights and liberties of another person
shall be liable to the latter for damages:
(1) Freedom of religion;
(2) Freedom of speech;
(3) Freedom to write for the press or to
maintain a periodical publication;
(4) Freedom from arbitrary or illegal
detention;
(5) Freedom of suffrage;
(6) The right against deprivation of property
without due process
(7) of law;
(8) The right to a just compensation when
private property is taken for public use;
(9) The right to the equal protection of the
laws;
(10) The right to be secure in one's person,
house, papers, and effects against unreasonable
searches and seizures;
(11) The liberty of abode and of changing the
same;
(12) The privacy of cmmunication and
correspondence;
(13) The right to become a member of
associations or societies for purposes not
contrary to law;
(14) The right to take part in a peaceable
assembly to petition the Government for
redress of grievances;
(15) The right to be free from involuntary
servitude in any form;
(16) The rigth of the accused against excessive
bail;
163 HRLAW 08281
(17) The rigth of the aaccused 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 witness in
behalf;
(18) Freedom from being compelled to be a
witness against ones self, or from being forced
to confess guilt, or from being induced by a
promise of immunity or reward to make such
confession, except when the person confessing
becomes a State witness;
(19) Freedom from excessive fines or cruel and
unusual punishment, unless the same is
imposed or inflicted in accordance with a
statute which has not been judicially declared
unconstitutional; and
(20) Freedom of access to the courts.
In any of the cases referred to in this article,
whether or not the defendant's act or omission
constitutes a criminal offense, the against
grieved party has a right to commence an
entirely separate and distinct civil action for
damages, and for other relief. Such civil action
shall proceed independently of any criminal
prosecution (if the latter be instituted), and may
be proved by a preponderance of evidence.
The indemnity shall include moral damages.
Exemplary damages may also be adjudicated.
The responsibility herein set forth is not
demandable from a judge unless his act or
omission constitutes a violation of the Penal
Code or other penal statute.
It is obvious that the purpose of the above codal provision is to
provide a sanction to the deeply cherished rights and freedoms
enshrined in the Constitution. Its message is clear; no man may
seek to violate those sacred rights with impunity. In times of great
upheaval or of social and political stress, when the temptation is
strongest to yield — borrowing the words of Chief Justice Claudio
Teehankee — to the law of force rather than the force of law, it is
necessary to remind ourselves that certain basic rights and liberties
are immutable and cannot be sacrificed to the transient needs or
imperious demands of the ruling power. The rule of law must
prevail, or else liberty will perish. Our commitment to democratic
principles and to the rule of law compels us to reject the view
which reduces law to nothing but the expression of the will of the
predominant power in the community. "Democracy cannot be a
reign of progress, of liberty, of justice, unless the law is respected
by him who makes it and by him for whom it is made. Now this
respect implies a maximum of faith, a minimum of Idealism. On
going to the bottom of the matter, we discover that life demands of
us a certain residuum of sentiment which is not derived from
reason, but which reason nevertheless controls. 2
Seeking to justify the dismissal of plaintiffs' complaint, the
respondents postulate the view that as public officers they are
covered by the mantle of state immunity from suit for acts done in
the performance of official duties or function In support of said
contention, respondents maintain that —
Respondents are members of the Armed Forces
of the Philippines. Their primary duty is to
 safeguard public safety and order. The
Constitution no less provides that the President
may call them "to prevent or supress lawless
violence, invasion, insurrection or rebellion, or
imminent danger thereof." (Constitution,
Article VII, Section 9).
On January 17, 1981, the President issued
Proclamation No. 2045 lifting martial law but
providing for the continued suspension of the
privilege of the writ of habeas corpus in view
of the remaining dangers to the security of the
nation. The proclamation also provided "that
the call to the Armed Forces of the Philippines
to prevent or suppress lawless violence,
insuitection rebellion and subversion shall
continue to be in force and effect."
Petitioners allege in their complaint that their
causes of action proceed from respondent
General Ver's order to Task Force Makabansa
to launch pre-emptive strikes against
communist terrorist underground houses in
Metro Manila. Petitioners claim that this order
and its subsequent implementation by elements
of the task force resulted in the violation of
their constitutional rights against unlawful
searches, seizures and arrest, rights to counsel
and to silence, and the right to property and
that, therefore, respondents Ver and the named
members of the task force should be held liable
for damages.
But, by launching a pre-emptive strike against
communist terrorists, respondent members of
the armed forces merely performed their
official and constitutional duties. To allow
petitioners to recover from respondents by way
of damages for acts performed in the exercise
of such duties run contrary to the policy
considerations to shield respondents as public
officers from undue interference with their
duties and from potentially disabling threats of
hability (Aarlon v. Fitzgerald 102 S. Ct. 2731-1
Forbes v. Chuoco Tiaco, 16 Phil. 634), and
upon the necessity of protecting the
performance of governmental and public
functions from being harassed unduly or
constantly interrupted by private suits
(McCallan v. State, 35 Cal. App. 605; Metran
v. Paredes, 79 Phil. 819).
xxx xxx xxx
The immunity of public officers from liability
arising from the performance of their duties is
now a settled jurisprudence Alzua v. Johnson,
21 Phil. 308; Zulueta v. Nicolas, 102 Phil. 944;
Spalding v. Vilas, 161 US 483; 40 L. Ed. 780,
16 S. Ct. 631; Barr v. Mateo, 360; Butz v.
Economon, 438 US 478; 57 L. Ed. 2d 895, 98
S. Ct. 2894; Scheuer v. Rhodes, 416 US 232;
Forbes v. Chuoco Tiaco, supra; Miller v. de
Leune, 602 F. 2d 198; Sami v. US, 617 F. 2d
755).
Respondents-defendants who merely obeyed
the lawful orders of the President and his call
for the suppression of the rebellion involving
petitioners enjoy such immunity from Suit.3
164 HRLAW 08281
We find respondents' invocation of the doctrine of state immunity
from suit totally misplaced. The cases invoked by respondents
actually involved acts done by officers in the performance of
official duties written the ambit of their powers. As held in Forbes,
etc. vs. Chuoco Tiaco and Crossfield: 4
No one can be held legally responsible in
damages or otherwise for doing in a legal
manner what he had authority, under the law,
to do. Therefore, if the Governor-General had
authority, under the law to deport or expel the
defendants, and circumstances justifying the
deportation and the method of carrying it out
are left to him, then he cannot be held liable in
damages for the exercise of this power.
Moreover, if the courts are without authority to
interfere in any manner, for the purpose of
controlling or interferring with the exercise of
the political powers vested in the chief
executive authority of the Government, then it
must follow that the courts cannot intervene for
the purpose of declaring that he is liable in
damages for the exeercise of this authority.
It may be that the respondents, as members of the Armed Forces of
the Philippines, were merely responding to their duty, as they
claim, "to prevent or suppress lawless violence, insurrection,
rebellion and subversion" in accordance with Proclamation No.
2054 of President Marcos, despite the lifting of martial law on
January 27, 1981, and in pursuance of such objective, to launch
pre- emptive strikes against alleged communist terrorist
underground houses. But this cannot be construed as a blanket
license or a roving commission untramelled by any constitutional
restraint, to disregard or transgress upon the rights and liberties of
the individual citizen enshrined in and protected by the
Constitution. The Constitution remains the supreme law of the land
to which all officials, high or low, civilian or military, owe
obedience and allegiance at all times.
Article 32 of the Civil Code which renders any public officer or
employee or any private individual liable in damages for violating
the Constitutional rights and liberties of another, as enumerated
therein, does not exempt the respondents from responsibility. Only
judges are excluded from liability under the said article, provided
their acts or omissions do not constitute a violation of the Penal
Code or other penal statute.
This is not to say that military authorities are restrained from
pursuing their assigned task or carrying out their mission with
vigor. We have no quarrel with their duty to protect the Republic
from its enemies, whether of the left or of the right, or from within
or without, seeking to destroy or subvert our democratic
institutions and imperil their very existence. What we are merely
trying to say is that in carrying out this task and mission,
constitutional and legal safeguards must be observed, otherwise,
the very fabric of our faith will start to unravel. In the battle of
competing Ideologies, the struggle for the mind is just as vital as
the struggle of arms. The linchpin in that psychological struggle is
faith in the rule of law. Once that faith is lost or compromised, the
struggle may well be abandoned.
We do not find merit in respondents' suggestion that plaintiffs'
cause of action is barred by the suspension of the privilege of the
writ of habeas corpus. Respondents contend that "Petitioners
cannot circumvent the suspension of the privilege of the writ by
resorting to a damage suit aimed at the same purpose-judicial
inquiry into the alleged illegality of their detention. While the main
relief they ask by the present action is indemnification for alleged
damages they suffered, their causes of action are inextricably based
on the same claim of violations of their constitutional rights that
they invoked in the habeas corpus case as grounds for release from
detention. Were the petitioners allowed the present suit, the judicial
inquiry barred by the suspension of the privilege of the writ will
take place. The net result is that what the courts cannot do, i.e.
override the suspension ordered by the President, petitioners will
be able to do by the mere expedient of altering the title of their
action."
We do not agree. We find merit in petitioners' contention that the
suspension of the privilege of the writ of habeas corpus does not
destroy petitioners' right and cause of action for damages for illegal
arrest and detention and other violations of their constitutional
rights. The suspension does not render valid an otherwise illegal
arrest or detention. What is suspended is merely the right of the
individual to seek release from detention through the writ of habeas
corpus as a speedy means of obtaining his liberty.
Moreover, as pointed out by petitioners, their right and cause of
action for damages are explicitly recognized in P.D. No. 1755
which amended Article 1146 of the Civil Code by adding the
following to its text:
However, when the action (for injury to the
rights of the plaintiff or for a quasi-delict)
arises from or out of any act, activity or
conduct of any public officer involving the
exercise of powers or authority arising from
Martial Law including the arrest, detention
and/or trial of the plaintiff, the same must be
brought within one (1) year.
Petitioners have a point in contending that even assuming that the
suspension of the privilege of the writ of habeas corpus suspends
petitioners' right of action for damages for illegal arrest and
detention, it does not and cannot suspend their rights and causes of
action for injuries suffered because of respondents' confiscation of
their private belongings, the violation of their right to remain silent
and to counsel and their right to protection against unreasonable
searches and seizures and against torture and other cruel and
inhuman treatment.
However, we find it unnecessary to address the constitutional issue
pressed upon us. On March 25, 1986, President Corazon C. Aquino
issued Proclamation No. 2, revoking Proclamation Nos. 2045 and
2045-A and lifting the suspension of the privilege of the writ of
habeas corpus. The question therefore has become moot and
academic.
This brings us to the crucial issue raised in this petition. May a
superior officer under the notion of respondent superior be
answerable for damages, jointly and severally with his
subordinates, to the person whose constitutional rights and liberties
have been violated?
Respondents contend that the doctrine of respondent superior is
applicable to the case. We agree. The doctrine of respondent
superior has been generally limited in its application to principal
and agent or to master and servant (i.e. employer and employee)
relationship. No such relationship exists between superior officers
of the military and their subordinates.
Be that as it may, however, the decisive factor in this case, in our
view, is the language of Article 32. The law speaks of an officer or
employee or person 'directly' or "indirectly" responsible for the
violation of the constitutional rights and liberties of another. Thus,
it is not the actor alone (i.e. the one directly responsible) who must
answer for damages under Article 32; the person indirectly
responsible has also to answer for the damages or injury caused to
the aggrieved party.
165 HRLAW 08281
By this provision, the principle of accountability of public officials
under the Constitution 5 acquires added meaning and asgilrnes a
larger dimension. No longer may a superior official relax his
vigilance or abdicate his duty to supervise his subordinates, secure
in the thought that he does not have to answer for the
transgressions committed by the latter against the constitutionally
protected rights and liberties of the citizen. Part of the factors that
propelled people power in February 1986 was the widely held
perception that the government was callous or indifferent to, if not
actually responsible for, the rampant violations of human rights.
While it would certainly be go naive to expect that violators of
human rights would easily be deterred by the prospect of facing
damage suits, it should nonetheless be made clear in no ones terms
that Article 32 of the Civil Code makes the persons who are
directly, as well as indirectly, responsible for the transgression joint
tortfeasors.
In the case at bar, the trial court dropped defendants General
Fabian Ver, Col. Fidel Singson, Col. Rolando Abadilla, Col.
Gerardo Lantoria, Jr., Col. Galileo Kintanar, Col. Panfilo Lacson,
Capt. Danilo Pizarro, lst Lt. Pedro Tango, Lt. Romeo Ricardo and
Lt. Ricardo Bacalso from the acts of their subordinates. Only
Major Rodolfo Aguinaldo and Master Sgt. Bienvenido Balaba were
kept as defendants on the ground that they alone 'have been
specifically mentioned and Identified to have allegedly caused
injuries on the persons of some of the plaintiff which acts of
alleged physical violence constitute a delict or wrong that gave rise
to a cause of action. But such finding is not supported by the
record, nor is it in accord with law and jurisprudence.
Firstly, it is wrong to at the plaintiffs' action for damages 5 Section
1, Article 19. to 'acts of alleged physical violence" which
constituted delict or wrong. Article 32 clearly specifies as
actionable the act of violating or in any manner impeding or
impairing any of the constitutional rights and liberties enumerated
therein, among others —
1. Freedom from arbitrary arrest or illegal
detention;
2. The right against deprivation of property
without due process of law;
3. The right to be secure in one's person, house,
papers and effects against unreasonable
searches and seizures;
4. The privacy of communication and
correspondence;
5. Freedom from being compelled to be a
witness against one's self, or from being forced
to confess guilt, or from being induced by a
promise of immunity or reward to make a
confession, except when the person confessing
becomes a state witness.
The complaint in this litigation alleges facts showing with
abundant clarity and details, how plaintiffs' constitutional rights
and liberties mentioned in Article 32 of the Civil Code were
violated and impaired by defendants. The complaint speaks of,
among others, searches made without search warrants or based on
irregularly issued or substantially defective warrants; seizures and
confiscation, without proper receipts, of cash and personal effects
belonging to plaintiffs and other items of property which were not
subversive and illegal nor covered by the search warrants; arrest
and detention of plaintiffs without warrant or under irregular,
improper and illegal circumstances; detention of plaintiffs at
several undisclosed places of 'safehouses" where they were kept
incommunicado and subjected to physical and psychological
torture and other inhuman, degrading and brutal treatment for the motion for reconsideration. Such action tainted with legal infirmity
purpose of extracting incriminatory statements. The complaint cannot be sanctioned.
contains a detailed recital of abuses perpetrated upon the plaintiffs
violative of their constitutional rights. Accordingly, we grant the petition and annul and set aside the
resolution of the respondent court, dated November 8, 1983, its
Secondly, neither can it be said that only those shown to have order dated May 11, 1984 and its resolution dated September 21,
participated "directly" should be held liable. Article 32 of the Civil 1984. Let the case be remanded to the respondent court for further
Code encompasses within the ambit of its provisions those directly, proceedings. With costs against private respondents.
as well as indirectly, responsible for its violation.
SO ORDERED.
The responsibility of the defendants, whether direct or indirect, is
amply set forth in the complaint. It is well established in our law
and jurisprudence that a motion to dismiss on the ground that the
complaint states no cause of action must be based on what appears
on the face of the complaint. 6 To determine the sufficiency of the
cause of action, only the facts alleged in the complaint, and no
others, should be considered. 7 For this purpose, the motion to
dismiss must hypothetically admit the truth of the facts alleged in
the complaint. 8

Applying this test, it is difficult to justify the trial court's ruling,

dismissing for lack of cause of action the complaint against all the
defendants, except Major Rodolfo Aguinaldo and Master Sgt.
Bienvenido Balaba. The complaint contained allegations against all
the defendants which, if admitted hypothetically, would be
sufficient to establish a cause or causes of action against all of
them under Article 32 of the Civil Code.

This brings us to the last issue. Was the trial court correct in
dismissing the complaint with respect to plaintiffs Rogelio Aberca,
Danilo de la Puente, Marco Palo, Alan Jazminez, Alex Marcelino,
Elizabeth Protacio-Marcelino, Alfredo Mansos and Rolando
Salutin, on the basis of the alleged failure of said plaintiffs to file a
motion for reconsideration of the court's resolution of November 8,
1983, granting the respondent's motion to dismiss?

It is undisputed that a timely motion to set aside said order of

November 8, 1983 was filed by 'plaintiffs, through counsel. True,
the motion was signed only by Atty. Joker P. Arroyo, counsel for
Benjamin Sesgulido; Atty. Antonio Rosales, counsel for Edwin
Lopez and Manuel Martin Guzman; Atty. Pedro B. Ella, Jr.,
counsel for Nestor Bodino and Carlos Palma; Atty. Arno V.
Sanidad, counsel for Arturo Tabara; Atty. Felicitas S. Aquino,
counsel for Joseph Olayer; and Atty. Alexander Padilla, counsel for
Rodolfo Benosa.

But the body of the motion itself clearly indicated that the motion
was filed on behalf of all the plaintiffs. And this must have been
also the understanding of defendants' counsel himself for when he
filed his comment on the motion, he furnished copies thereof, not
just to the lawyers who signed the motion, but to all the lawyers of
plaintiffs, to wit: Attys. Jose Diokno, Procopio Beltran, Rene
Sarmiento, Efren Mercado, Augusto Sanchez, Antonio Rosales,
Pedro Efla Jr., Arno Sanidad, Alexander Padilla, Joker Arroyo,
Rene Saguisag, Ramon Esguerra and Felicitas S. Aquino.

In filing the motion to set aside the resolution of November 8,

1983, the signing attorneys did so on behalf of all the plaintiff.
They needed no specific authority to do that. The authority of an
attorney to appear for and in behalf of a party can be assumed,
unless questioned or challenged by the adverse party or the party
concerned, which was never done in this case. Thus, it was grave
abuse on the part of respondent judge to take it upon himself to rule
that the motion to set aside the order of November 8, 1953
dismissing the complaint was filed only by some of the plaintiffs,
when by its very language it was clearly intended to be filed by and
for the benefit of all of them. It is obvious that the respondent
judge took umbrage under a contrived technicality to declare that
the dismissal of the complaint had already become final with
respect to some of the plaintiffs whose lawyers did not sign the

166 HRLAW 08281