REPUBLIC OF THE PHILIPPINES FOURTH JUDICIAL REGION REGIONAL TRIAL COURT CALAUAG, QUEZON – BRANCH 63 ROSENDA PENIERO MAULAWIN, Petitioner, - versus -
CIVIL CASE NO.
__________ For: Writ of Amparo
THE SECRETARY OF NATIONAL DEFENSE, THE CHIEF IEF OF STAFF, ARMED FORCES OF THE PHILIPPINES; MAJOR GENERAL EDUARDO DEL ROSARIO, ND COMMANDER OF THE 2 INFANTRY DIVISION OF THE PHILIPPINE ARMY, CAMP MATEO CAPI PIN NPI PIN N, TANAY, AY, RIZA IZAL; COL. OLIV IVE ER MAQUILIN ILING G TH COMMANDING OFFICER, 85 INF INFANTRY TRY DIV IVIS ISIO ION N, PHIL PHILIP IPP PINE INE ARMY, ARMED FORCES OF THE PHILIPPINES BRGY. VILLA PRINCIPE, GUMACA, QUEZON, Respondents. x-------------------------------------------------------x
PETITION PETITIONER, by counsel, most respectfully states, THAT:
1.
Peti Petiti tion oner er is is of lega legall age, age, mar marri ried ed,, with with res resid iden ence ce and and pos posta tall addr addres esss at
SECRETAR TARY Y OF Brgy. Brgy. Saban Sabang g II, Calau Calauag ag,, Quezo Quezon; n; wherea whereass respo responde ndent nt THE SECRE NATIONAL DEFENSE holds office at Camp Aguinaldo, Quezon City, Metro Manila;
respondent CHIEF OF STAFF, ARMED FORCES OF THE PHILIPPINES likewise holds holds offic office e at Camp Camp Aguina Aguinaldo ldo,, Quez Quezon on city, city, Metro Metro Manila Manila;; respo responde ndent nt Major Genera Generall Eduard Eduardo o Del Rosari Rosario o, Commander of the 2 nd Infantry Division of the
Phil Philip ippi pine ne Army Army,, hold holdss his his comm comman and d at Camp Camp Ma Mate teo o Capi Capinp npin in,, Tana Tanay, y, Riza Rizal; l; respondent Col. Oliver Maquiling holds his command at 85th Infantry Battalion, Philippine Army, Brgy. Villa Principe, Gumaca, Quezon, where in the said principal office office addresse addressess these responden respondents ts may all be served with summon summons, s, writs, and
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other processes of this Honorable Court; 2.
Respondent Col. Oliver Maquili iling is the commanding ing office icer with
logist logistica icall comm comman and d and superv supervisi ision on over over the milita military ry perso personn nnel el of 85th Infantry Battalion, Philippine Army that holds fort in Brgy. Villa Principe, Gumaca, Quezon;
3.
Some Someti time me on on Febr Februa uary ry 5, 5, 2012 2012 at at appr approx oxim imat atel ely y 8:00 8:00 a.m a.m., ., pet petit itio ione nerr
received reliable information that her sister Miguela Peniero, of legal age, single, with residence and postal address at Gen. Luna, Bondoc Peninsula, Quezon was arrested with the connivance, knowledge and command of all the respondents by the elements of the Joint Forces of the Armed Forces of the Philippines and Philippine National Police based in Quezon Province as shall be described in detail below; 4.
Peti Petiti tion oner er asi aside de fro from m what what she she gat gathe here red d from from the the pre previ viou ouss info inform rmat atio ion n
read from a certain publication that according to respondent Major General Eduardo Del Rosario, Commander of the 2 nd Infantry Division of the Philippine Army, they were able to apprehend and arrest the said Miguela Peniero and several others thru the 201st Brigade based in Guinayangan, Quezon; 5.
With that information, petiti itioner and her imm immediate siblings and
relatives immediately asked the assistance of Karapatan-Quezon, a Non-Government Organization (NGO) based in Quezon Province to look for their sister, Miguela Peniero, of her possible whereabouts and inquire about her personal safety especially at/within the military camps within Quezon Province; 6.
First, we went to the 201st Brigade in Brgy. San Roque, Calauag, Quezon
at around 10:00 a.m. on February 5, 2012. We were given a run around. Finally one regular soldier who identified himself as Abarrientos told us that their brigade does not have the custody of our sister Miguela Peniero and vehemently denied that the 21st Brigade has nothing to do with the apprehension of the said Miguela Peniero; 7.
Ther Therea eaft fter er at at arou around nd 12 12:00 :00 noon noon of of Febr Februa uary ry 5, 5, 201 2012, we we went went to to the the
85th Infantry Battalion, Philippine Army in Brgy. San Isidro, Lopez, Quezon to look for our sister Miguela Peniero. Upon reaching the 85th Infantry Battalion, Philippine Army, Brgy. San Isidro, Lopez, Quezon we were not allowed to enter the said brigade command. We were made to stay at the gate and told us to wait for instructions. The
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soldiers who received us did not want to be identified and while we were carrying photophoto-ca came mera, ra, we were were prohib prohibite ited d from from taking taking pictures pictures..
The said uniden unidentif tified ied
soldiers of the 85th Infantry Battalion, Philippine Army based in Lopez, Quezon likewise denied that they they have with them our our sister Miguela Peniero. Peniero. We consulted consulted our legal counsel Atty. Frumencio E. Pulgar through the telephone so that he can talk to the soldiers who were present at the military camp and in the process assuage our growing apprehension, but the soldiers refused to entertain the queries of our said legal counsel causing herein petitioner and Miguela Peniero damage and prejudice. 8.
We were were alre alread ady y appre apprehe hen nsive sive,, anxio anxious us,, and fear fearfu full of the the physi physica call
safety of Miguela Peniero as it was getting late and no confirmation just as yet as to her whereabouts. whereabouts. The Karapatan-Q Karapatan-Quezon uezon advised advised us to go to Brgy. Kalantipayan, Kalantipayan, Lopez, Quezon were Miguela Peniero was arrested, apprehended and caught in order for us to determine what exactly happened through the Barangay Officials thereof. 9.
When When we we reac reache hed d at the the exa exact ct spot spot wher where e Mig Migue uela la Pen Penie iero ro was was arr arres este ted d
in Brgy. Kalantipayan, Lopez, Quezon, we were able to talk to some Philippine Army Soldiers who were were still present and and gathered there. there. We talked to them them and inquired about the whereabouts of petitioner’s petitioner’s sister Miguela Peniero but they ignored us and even denied denied that they have have in their custod custody y the said Miguela Peniero. Peniero. They also denied that they arrested Miguela Peniero; 10. 10.
We asked asked aroun around d from from the resid residen ents ts of Brgy Brgy.. Kala Kalant ntip ipay aya an, Lopez Lopez,,
Quezon but they appeared frightened, apprehensive and fearful of the implication of giving information so they refused to be asked as to the whereabouts and the arrest of petitioner’s sister Miguela Peniero; 11. 11.
Afte Afterr repa repair irin ing g to Brgy. Brgy. Kala Kalant ntip ipay ayan an,, Lopez Lopez,, Quezo Quezon, n, we went went to the the
City of Lucena at around 5:00 p.m. We went to Camp Guillermo Nakar, Brgy. Gulanggulang, Lucena City while my other siblings and my spouse went to the Office of the Philippine National Police, Lopez, Quezon and the Battalion Headquarters in Brgy. Villa Principe, Gumaca, Quezon but the authorities therein failed and refused and continue to fail and refuse to personally allow us access to herein petitioner’s sister Miguela Peniero, causing us extreme prejudice; 12.
When we reac reached hed Lucena Lucena City, City, Quez Quezon, on, we were told to stay at the gate. gate.
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When the sentry thereat was informed about our intention to inquire about the wherea whereabo bout utss of Miguel Miguela a Penier Peniero, o, he clamm clammed ed up and and refus refused ed to give give furthe furtherr informat information. ion.
The sentry sentry and an unidentif unidentified ied officer officer of the Philippine Philippine Army said
nothing and they all said was that they do not have with them petitioner’s sister Miguela Peniero. Peniero. If our intention is to talk talk or personally seek audience audience with the PNP Provincial Director, we were also advised that it was no opportune time because it was a Sunday, copy of petitioner Rosenda Peniero Maulawin’s Affidavit is hereto attached as ANNEX “A” and made part hereof. 13. 13.
To date date or afte afterr assi assidu duou ouss inqu inquir iry y ther therea eaft fter er and and notw notwit iths hsta tand ndin ing g
persistent efforts on the part of the herein petitioner and relatives to look into the whereabouts and personal safety of of Miguela Peniero the same remain uncertain on account of enforced disappearance caused by respondents
en conniventia conniventia
and
ther theref efor ore e peti petiti tion oner er seek seekss succ succou ourr by the the priv privil ileg ege e of Writ Writ of Ampa Amparo ro1, the respondents should be ordered to produce the body of Miguela Peniero and to release her to the custody of her sister Rosenda Peniero Maulawin among other available reliefs; 14.
rightt to life life,, libe libert rty y and and Miguela Miguela Peniero Peniero enjoys enjoys untramm untrammelle elled d righ
security guaranteed by the Constitution. Petitioner has shown preponderatingly that
her her siste sisterr Migue Miguela la Penier Peniero o is in the the custo custody dy of respon responde dent ntss in violat violation ion of his Constitutional rights hence she is entitled to the privilege of the Writ of Amparo 2 1
Section 1 of the Rule on the Writ of Amparo provides for the following causes of action, viz: Section 1. Petition. - The petition for a writ of amparo is a remedy available to any person whose right to life, liberty and security is violated or threatened with violation by an unlawful act or omission of a public official or employee, or of a private individual or entity.
The writ shall cover extralegal killings and enforced disappearances or threats thereof. (emphasis supplied) Sections 17 and 18, on the other hand, provide for the degree of proof required, viz: Sec. 17. Burden of Proof and Standard of Diligence Required. - The parties shall establish their claims by substantial evidence. xxx xxx xxx Sec. 18. Judgment. - ... If the allegations in the petition are proven by substantial evidence, the court shall grant the privilege of the writ and such reliefs as may be proper and appropriate; otherwise, the privilege shall be denied. (emphases supplied) Substantial evidence has been defined as such relevant evidence as a reasonable mind migh mightt accep acceptt as adequ adequat ate e to supp support ort a concl conclus usio ion. n. THE SECRET SECRETARY ARY OF NATION NATIONAL AL DEFENSE, THE CHIEF CHIEF OF STAFF, ARMED ARMED FORCES OF THE PHILIPPINES VS. RAYMOND MANALO AND REYNALDO MANALO [G.R. No. 180906, October 07, 2008]
On October 24, 2007, the Court promulgated the Amparo Rule "in light of the prevalence of extralegal killing and enforced disappearances." It was an exercise for the first time of the Court's expanded power to promulgate rules to protect our people's constitutional rights,
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WHEREFORE,
it is respectfully prayed that by the privilege of the Writ
respondents be ordered ordered to: 1) produce produce the body of Miguela Miguela of Amparo, the respondents Penie Peniero ro and to rele release ase her her to the the custo custody dy of her her sist sister er Rose Rosend nda a Penie Peniero ro Maulawin; 2) the Court issue the writ commanding therein respondents to make a verified return within the period provided by law and containing the specific matters required required by law; (3) petitioner be granted the interim interim reliefs which made its maiden appearance in the 1987 Constitution in response to the Filipino experience of the martial law regime. As the Amparo Rule was intended to address the intractable problem of "extralegal killings" and "enforced disappearances," its coverage, in its present form, is confined to these two instances or to threats thereof. "Extralegal killings" are "killings committed without due process of law, i.e., without legal safeguards or judicial proceedings." On the other hand, "enforced disappearances" are "attended by the following characteristics: an arrest, detention or abduction of a person by a government official or organized organized groups or private individuals individuals acting with the direct or indirect acquiescenc acquiescence e of the government; the refusal of the State to disclose the fate or whereabouts of the person concerned or a refusal to acknowledge the deprivation of liberty which places such persons outside the protection of law." The writ of amparo originated in Mexico. "Amparo" literally means "protection" in Spanish. In 1837, de Tocqueville's Democracy in America became available in Mexico and stirred great interest. Its description of the practice of judicial review in the U.S. appealed to many many Mexica Mexican n jurists jurists.. One of them, them, Manuel Manuel Crescen Crescencio cio Rejón Rejón,, drafted drafted a consti constitut tution ional al provision for his native state, Yucatan, which granted judges the power to protect all persons in the enjoyment of their constitutional and legal rights. This idea was incorporated into the national constitution in 1847, viz: The federal courts shall protect any inhabitant of the Republic in the exercise and preservation of those rights granted to him by this Constitution and by laws enacted pursuant hereto, against attacks by the Legislative and Executive powers of the federal or state governments, limiting themselves to granting protection in the specific case in litigation, making making no genera generall declara declaratio tion n concern concerning ing the statute statute or regulati regulation on that motivate motivated d the violation. Since then, the protection has been an important part of Mexican constitutionalism. If, after hearing, the judge determines that a constitutional right of the petitioner is being violated, he orders the official, or the official's superiors, to cease the violation and to take the necessary measures to restore the petitioner to the full enjoyment of the right in question. Amparo Amparo thus combines combines the princip principles les of judici judicial al review review derived derived from the U.S. with the limitations on judicial power characteristic of the civil law tradition which prevails in Mexico. It enables courts to enforce the constitution by protecting individual rights in particular cases, but prevents them from using this power to make law for the entire nation. The writ of amparo amparo then spread spread through throughout out the Wester Western n Hemisp Hemispher here, e, gradual gradually ly evolving into various forms, in response to the particular needs of each country. It became, in the words of a justice of the Mexican Federal Supreme Court, one piece of Mexico's selfattributed "task of conveying to the world's legal heritage that institution which, as a shield of human dignity, her own painful history conceived." What began as a protection against acts or omissions of public authorities in violation of constitutional rights later evolved for several purposes: (1) amparo libertad for the protection of personal freedom, equivalent to the habeas corpus writ; (2) amparo contra leyes for the judicial review of the constitutionality of statutes; (3) amparo casacion for the judicial review of the constitutionality and legality of a judicial decision; (4) amparo administrativo for the judicial review of administrative actions; and (5) amparo amparo agrario agrario for the protect protection ion of peasants peasants'' rights rights derive derived d from the agrarian agrarian reform
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allowed by the Amparo Rule and all other reliefs prayed for in the petition but not covered by the Amparo Rule; (4) the Court, after hearing, render judgment as required in Sec. 18 of the Amparo Rule; and such other reliefs, just and equitable, are likewise prayed for. Makati City, Metro Manila for Gumaca, Quezon. Quezon. March 30, 2012. 2012.
process. In Latin American countries, except Cuba, the writ of amparo has been constitutionally adopted to protect against human rights abuses especially committed in countries under military juntas. In general, these countries adopted an all-encompassing writ to protect the whole gamut of constitutional rights, including socio-economic rights. Other countries like Colombia, Chile, Germany and Spain, however, have chosen to limit the protection of the writ of amparo only to some constitutional guarantees or fundamental rights. In the Philippines, while the 1987 Constitution does not explicitly provide for the writ of amparo, several of the above amparo protections are guaranteed by our charter. The second paragraph of Article VIII, Section 1 of the 1987 Constitution, the Grave Abuse Clause, provides for the judicial power "to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government." The Clause accords a similar general protection to human rights extended by the amparo contra leyes, amparo casacion, and amparo administrativo. Amparo libertad is compa comparab rable le to the the remed remedy y of habeas habeas corpu corpuss found found in seve several ral provi provisi sion onss of the the 1987 1987 Constitution. The Clause is an offspring of the U.S. common law tradition of judicial review, which finds its roots in the 1803 case of Marbury v. Madison. While constitutional rights can be protected under the Grave Abuse Clause through remedies of injunction or prohibition under Rule 65 of the Rules of Court and a petition for habeas corpus under Rule 102, these remedies may not be adequate to address the pestering problem of extralegal killings and enforced disappearances. However, with the swiftness required to resolve a petition for a writ of amparo through summary proceedings and the availability of appropriate interim and permanent reliefs under the Amparo Rule, this hybrid writ of the common law and civil law traditions - borne out of the Latin American and Philippine experience of human rights abuses - offers a better remedy to extralegal killings and enforced disappearances and threats thereof. The remedy provides rapid judicial relief as it partakes of a summary proceeding that requires only substantial evidence to make the appropriate reliefs available to the petitioner; it is not an action to determine criminal guilt requiring proof beyond reasonable doubt, or liability for damages requiring preponderance of evidence, evidence, or administrative administrative responsibilit responsibility y requiring requiring substantial substantial evidence that will require full and exhaustive proceedings. The writ of amparo serves both preventive and curative roles in addressing the problem of extralegal killings and enforced disappearances. It is preventive in that it breaks the expectation of impunity in the commission of these offenses; it is curative in that it facilitates the subsequent punishment of perpetrators as it will inevitably yield leads to subsequent investigation and action. In the long run, the goal of both the preventive and curat curativ ive e roles roles is to deter deter the furth further er comm commis issi sion on of extra extrale lega gall killi killing ngss and enfor enforce ced d disappearances. In the case at bar, respondents respondents initially initially filed an action for "Prohibition, "Prohibition, Injunction, and Tempora Temporary ry Restrai Restrainin ning g Order" Order" to stop petition petitioners ers and/or and/or their their officers officers and agents agents from depriving the respondents of their right to liberty and other basic rights on August 23, 2007, prior to the promulgation of the Amparo Rule. They also sought ancillary remedies including Protective Custody Orders, Appointment of Commissioner, Inspection and Access Orders and
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ROSENDA PENIERO MAULAWIN
Petitioner
Assisted by: SENTRO ng GABAY LEGAL sa QUEZON
Sitio Paang Bundok, Brgy. Sta. Maria, Calauag, Quezon Telefax No.: (042) 301-7096 - and -
nd
ESCOBIDO AND PULGAR LAW OFFICES
2 Floor, Africa Bldg., #2041 Edison cor. Aragon Sts., Brgy. San Isidro, Makati City, MM Telefax Nos.: 887-3120 / 887-3121 887-3121 Website : sonnypulgar.com katataspulong.blogspot.com E- mail:
[email protected] by: FRUMENCIO E. PULGAR
Roll of Attorneys No. 31068 IBP No.: 879818 / 01-06-12/ Quezon Province PTR No.: 3181233 / 01-09-12 / Makati City MCLE Compliance No. III - 0020443 / April 14, 2011 Republic of the Philippines Philippines ) Makati City, Metro Manila ) s.s. x-------------------------------x
V ER IF IC AT IO N /
C ER TI FI CA TI ON
ROSEND ROSENDA A PENIER PENIERO O MAULAW MAULAWIN, IN, of lega I, legall age, age, marr marrie ied d to Fe Feli lix x Balaston, with residence and postal address at Brgy. Sabang II, Calauag, Quezon, declare under oath, THAT:
1.
I am am the the Peti Petiti tion oner er in the the abo above ve-e -ent ntit itle led d cas case; e;
2. I have ave rea read and unde underrsto stood the the sai said Pet Petitio ition n and all the the alle llegation ions therein are true and correct of my own personal knowledge or based on authentic records; 3. I have have not not comme commen nced ced any oth other er peti petiti tion on or or pro proceed ceedin ing g invol involvi ving ng the the same issues in the Supreme Court, the Court of Appeals, or different Divisions thereof or any other tribunal or agency; 4. To the the bes bestt of my kno knowled ledge, ge, no sim similar ilar Pe Petitio ition n is pendi pendin ng in the the Supreme Court, the Court of Appeals, or different Divisions thereof, or any other tribunal agency; 5. If I shou should ld the there reaf afte terr lear learn n that that a sim simil ilar ar act actio ion n or pro proce ceed edin ing g has has been been filed or is pending before said courts or tribunal, I hereby undertake to promptly inform this Honorable Court of that fact within five (5) days therefrom. other legal and equitable remedies under Article VIII, Section 5(5) of the 1987 Constitution and Rule 135, Section 6 of the Rules of Court. When the Amparo Rule came into effect on October 24, 2007, they moved to have their petition treated as an amparo petition as it would be more effective and suitable to the circumstances of the Manalo brothers' enforced disappearance. The Court granted their motion (Ibid.)
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IN WITNESS WHEREOF, I have affixed my signature this ___ th day of March,
2012 in Makati City, Metro Manila.
ROSENDA PENIERO MAULAWIN
Affiant
SUBSCRIBED AND SWORN TO before me this ___ th day of March, 2012 at
the City of Makati, Metro Manila, affiant:
is personally known to the notary public; was identified by notary public through Competent Competent Evidence Evidence of Identity as defined by Rules on Notarial Practice of 2004, thru the presentation/production of the ff: Driver’s License No. ________________ SSS ID No. _________________ GSIS ID No. _________________
Doc. No. _______; Page No. _______; Book No._______; Series of 2012.
TIN ID No. _________________ Passport No. _______________ Company I.D. ________________
Com. Tax Cert. No. ___ _____ ____ ____ ____ ____ ____ issu issued ed on ___________ issued at _________________.
FRUMENCIO E. PULGAR Notary Public Until December 31, 2012 PTR No. 3181233 issued on January 09, 2012 at Makati City Metro Manila TIN No. 106201485 MCLE Compliance No. III - 0020443
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