habeas corpus, data and amparo

RULE 102 Habeas Corpus Section 1. To what habeas corpus extends. — Except as otherwise expressly provided by law, the writ of habeas corpus shall extend to all cases of illegal confinement or detention by which any person is deprived of his liberty, or by which the rightful custody of any person is withheld from the person entitled thereto. Section 2. Who may grant the writ. — The writ of habeas corpus may be granted by the Supreme Court, or any member thereof in the instances authorized by law, and if so granted it shall be enforceable anywhere in the Philippines, and may be made returnable before the court or any member thereof, or before a Court of First Instance, or any judge thereof for the hearing and decision on the merits. It may also be granted by a Court of First Instance, or a judge thereof, on any day and at any time, and returnable before himself, enforceable only within his judicial district. Section 3. Requisites of application therefor. — Application for the writ shall be by petition signed and verified either by the party for whose relief it is intended, or by some person on his behalf, and shall set forth: (a) That the person in whose behalf the application is made is imprisoned or restrained on his liberty; (b) The officer or name of the person by whom he is so imprisoned or restrained; or, if both are unknown or uncertain, such officer or person may be described by an assumed appellation, and the person who is served with the writ shall be deemed the person intended; (c) The place where he is so imprisoned or restrained, if known; (d) A copy of the commitment or cause of detention of such person, if it can be procured without impairing the efficiency of the remedy; or, if the imprisonment or restraint is without any legal authority, such fact shall appear. Section 4. When writ not allowed or discharge authorized. — If it appears that the person alleged to be restrained of his liberty is in the custody of an officer under process issued by a court or judge or by virtue of a judgment or order of a court of record, and that the court or judge had jurisdiction to issue the process, render the judgment, or make the order, the writ shall not be allowed; or if the jurisdiction appears after the writ is allowed, the person shall not be discharged by reason of any informality or defect in the process, judgment, or order. Not shall anything in this rule be held to authorize the discharge of a person charged with or convicted of an offense in the Philippines, or of a person suffering imprisonment under lawful judgment. Section 5. When the writ must be granted and issued. — A court or judge authorized to grant the writ must, when a petition therefor is presented and it appears that the writ ought to issue, grant the same forthwith, and immediately thereupon the clerk of the court shall issue the writ under the seal of the court; or in case of emergency, the judge may issue the writ under his own hand, and may depute any officer or person to serve it. Section 6. To whom writ directed, and what to require. — In case of imprisonment or restraint by an officer, the writ shall be directed to him, and shall command him to have the body of the person restrained of his liberty before the court or judge designated in the writ at the time and place therein

specified. In case of imprisonment or restraint by a person not an officer, the writ shall be directed to an officer, and shall command him to take and have the body of the person restrained of his liberty before the court or judge designated in the writ at the time and place therein specified, and to summon the person by whom he is restrained then and there to appear before said court or judge to show the cause of the imprisonment or restraint. Section 7. How prisoner designated and writ served. — The person to be produced should be designated in the writ by his name, if known, but if his name is not known he may be otherwise described or identified. The writ may be served in any province by the sheriff or other proper officer, or by a person deputed by the court or judge. Service of the writ shall be made by leaving the original with the person to whom it is directed and preserving a copy on which to make return or service. If that person cannot be found, or has not the prisoner in his custody, then the service shall be made on any other person having or exercising such custody. Section 8. How writ executed and returned. — The officer to whom the writ is directed shall convey the person so imprisoned or restrained, and named in the writ, before the judge allowing the writ, or in case of his absence or disability, before some other judge of the same court, on the day specified in the writ, unless, from sickness or infirmity of the person directed to be produced, such person cannot, without danger, be bought before the court or judge; and the officer shall make due return of the writ, together with the day and the cause of the caption and restraint of such person according to the command thereof. Section 9. Defect of form. — No writ of habeas corpus can be disobeyed for defect of form, if it sufficiently appears therefrom in whose custody or under whose restraint the party imprisoned or restrained is held and the court or judge before whom he is to be bought. Section 10. Contents of return. — When the person to be produced is imprisoned or restrained by an officer, the person who makes the return shall state therein, and in other cases the person in whose custody the prisoner is found shall state, in writing to the court or judge before whom the writ is returnable, plainly and unequivocably: (a) Whether he has or has not the party in his custody or power, or under restraint; (b) If he has the party in his custody or power, or under restraint, the authority and the true and whole cause thereof, set forth at large, with a copy of the writ, order execution, or other process, if any, upon which the party is held; (c) If the party is in his custody or power or is restrained by him, and is not produced, particularly the nature and gravity of the sickness or infirmity of such party by reason of which he cannot, without danger, be bought before the court or judge; (d) If he has had the party in his custody or power, or under restraint, and has transferred such custody or restraint to another, particularly to whom, at what time, for what cause, and by what authority such transfer was made. Section 11. Return to be signed and sworn to. — The return or statement shall be signed by the person who makes it; and shall also be sworn by him if the prisoner is not produced, and in all other cases unless the return is made and signed by a sworn public officer in his official capacity. Section 12. Hearing on return. Adjournments. — When the writ is returned before one judge, at a time when the court is in session, he may forthwith adjourn the case into the court, there to be heard and determined. The court or judge before whom the writ is returned or adjourned must immediately

proceed to hear and examine the return, and such other matters as are properly submitted for consideration, unless for good cause shown the hearing is adjourned, in which event the court or judge shall make such order for the safekeeping of the person imprisoned or restrained as the nature of the case requires. If the person imprisoned or restrained is not produced because of his alleged sickness or infirmity, the court or judge must be satisfied that it is so grave that such person cannot be produced without danger, before proceeding to hear and dispose of the matter. On the hearing the court or judge shall disregard matters of form and technicalities in respect to any warrant or order of commitment of a court or officer authorized to commit by law. Section 13. When the return evidence, and when only a plea. — If it appears that the prisoner is in custody under a warrant of commitment in pursuance of law, the return shall be considered prima facie evidence of the cause of restraint, but if he is restrained of his liberty by any alleged private authority, the return shall be considered only as a plea of the facts therein set forth, and the party claiming the custody must prove such facts. Section 14. When person lawfully imprisoned recommitted, and when let to bail. — If it appears that the prisoner was lawfully committed, and is plainly and specifically charged in the warrant of commitment with an offense punishable by death, he shall not be released, discharged, or bailed. If he is lawfully imprisoned or restrained on a charge of having committed an offense not so punishable, he may be recommitted to imprisonment or admitted to bail in the discretion of the court or judge. If he be admitted to bail, he shall forthwith file a bond in such sum as the court or judge deems reasonable, considering the circumstances of the prisoner and the nature of the offense charged, conditioned for his appearance before the court where the offense is properly cognizable to abide its order of judgment; and the court or judge shall certify the proceedings, together with the bond, forthwith to the proper court. If such bond is not so filed, the prisoner shall be recommitted to confinement. Section 15. When prisoner discharged if no appeal. — When the court or judge has examined into the cause of caption and restraint of the prisoner, and is satisfied that he is unlawfully imprisoned or restrained, he shall forthwith order his discharge from confinement, but such discharge shall not be effective until a copy of the order has been served on the officer or person detaining the prisoner. If the officer or person detaining the prisoner does not desire to appeal, the prisoner shall be forthwith released. Section 16. Penalty for refusing to issue writ, or for disobeying the same. — A clerk of a court who refuses to issue the writ after allowance thereof and demand therefor, or a person to whom a writ is directed, who neglects or refuses to obey or make return of the same according to the command thereof, or makes false return thereof, or who, upon demand made by or on behalf of the prisoner, refuses to deliver to the person demanding, within six (6) hours after the demand therefor, a true copy of the warrant or order of commitment, shall forfeit to the party aggrieved the sum of one thousand pesos, to be recorded in a proper action, and may also be punished by the court or judge as for contempt. Section 17. Person discharged not to be again imprisoned. — A person who is set at liberty upon a writ of habeas corpus shall not be again imprisoned for the same offense unless by the lawful order or process of a court having jurisdiction of the cause or offense; and a person who knowingly, contrary to the provisions of this rule, recommits or imprisons, or causes to be committed or imprisoned, for the same offense, or pretended offense, any person so set at liberty, or knowingly aids or assists therein, shall forfeit to the party aggrieved the sum of one thousand pesos, to be recovered in a proper action, notwithstanding any colorable pretense or variation in the warrant of commitment, and may also be punished by the court or judge granting the writ as for contempt.

Section 18. When prisoner may be removed from one custody to another. — A person committed to prison, or in custody of an officer, for any criminal matter, shall not be removed therefrom into the custody of another unless by legal process, or the prisoner be delivered to an inferior officer to carry to jail, or, by order of the proper court or judge, be removed from one place to another within the Philippines for trial, or in case of fire epidemic, insurrection, or other necessity or public calamity; and a person who, after such commitment, makes signs, or counter-signs any order for such removal contrary to this section, shall forfeit to the party aggrieved the sum of one thousand pesos, to be recovered in a proper action. Section 19. Record of writ, fees and costs. — The proceedings upon a writ of habeas corpus shall be recorded by the clerk of the court, and upon the final disposition of such proceedings the court or judge shall make such order as to costs as the case requires. The fees of officers and witnesses shall be included in the costs taxed, but no officer or person shall have the right to demand payment in advance of any fees to which he is entitled by virtue of the proceedings. When a person confined under color of proceedings in a criminal case is discharged, the costs shall be taxed against the Republic of the Philippines, and paid out of its Treasury; when a person in custody by virtue or under color of proceedings in a civil case is discharged, the costs shall be taxed against him, or against the person who signed the application for the writ, or both, as the court shall direct.

SECOND DIVISION

[G.R. No. 125901. March 8, 2001]

EDGARDO A. TIJING and BIENVENIDA R. TIJING, petitioners, vs. COURT OF APPEALS (Seventh Division) and ANGELITA DIAMANTE, respondents. DECISION QUISUMBING, J.:

For review is the decision of the Court of Appeals dated March 6, 1996, in CA-G.R. SP No. 39056, reversing the decision of the Regional Trial Court in a petition for habeas corpus of Edgardo Tijing, Jr., allegedly the child of petitioners. Petitioners are husband and wife. They have six children. The youngest is Edgardo Tijing, Jr., who was born on April 27, 1989, at the clinic of midwife and registered nurse Lourdes Vasquez in Sta. Ana, Manila. Petitioner Bienvenida served as the laundrywoman of private respondent Angelita Diamante, then a resident of Tondo, Manila. According to Bienvenida in August 1989, Angelita went to her house to fetch her for an urgent laundry job. Since Bienvenida was on her way to do some marketing, she asked Angelita

to wait until she returned. She also left her four-month old son, Edgardo, Jr., under the care of Angelita as she usually let Angelita take care of the child while Bienvenida was doing laundry. When Bienvenida returned from the market, Angelita and Edgardo, Jr., were gone. Bienvenida forthwith proceeded to Angelita‟s house in Tondo, Manila, but did not find them there. Angelita‟s maid told Bienvenida that her employer went out for a stroll and told Bienvenida to come back later. She returned to Angelita‟s house after three days, only to discover that Angelita had moved to another place. Bienvenida then complained to her barangay chairman and also to the police who seemed unmoved by her pleas for assistance. Although estranged from her husband, Bienvenida could not imagine how her spouse would react to the disappearance of their youngest child and this made her problem even more serious. As fate would have it, Bienvenida and her husband reconciled and together, this time, they looked for their missing son in other places. Notwithstanding their serious efforts, they saw no traces of his whereabouts. Four years later or in October 1993, Bienvenida read in a tabloid about the death of Tomas Lopez, allegedly the common-law husband of Angelita, and whose remains were lying in state in Hagonoy, Bulacan. Bienvenida lost no time in going to Hagonoy, Bulacan, where she allegedly saw her son Edgardo, Jr., for the first time after four years. She claims that the boy, who was pointed out to her by Benjamin Lopez, a brother of the late Tomas Lopez, was already named John Thomas Lopez.[1] She avers that Angelita refused to return to her the boy despite her demand to do so. Bienvenida and Edgardo filed their petition for habeas corpus with the trial court in order to recover their son. To substantiate their petition, petitioners presented two witnesses, namely, Lourdes Vasquez and Benjamin Lopez. The first witness, Vasquez, testified that she assisted in the delivery of one Edgardo Tijing, Jr. on April 27, 1989 at her clinic in Sta. Ana, Manila. She supported her testimony with her clinical records.[2] The second witness, Benjamin Lopez, declared that his brother, the late Tomas Lopez, could not have possibly fathered John Thomas Lopez as the latter was sterile. He recalled that Tomas met an accident and bumped his private part against the edge of a banca causing him excruciating pain and eventual loss of his childbearing capacity. Benjamin further declared that Tomas admitted to him that John Thomas Lopez was only an adopted son and that he and Angelita were not blessed with children.[3] For her part, Angelita claimed that she is the natural mother of the child. She asserts that at age 42, she gave birth to John Thomas Lopez on April 27, 1989, at the clinic of midwife Zosima Panganiban in Singalong, Manila. She added, though, that she has two other children with her real husband, Angel Sanchez.[4] She said the birth of John Thomas was registered by her common-law husband, Tomas Lopez, with the local civil registrar of Manila on August 4, 1989. On March 10, 1995, the trial court concluded that since Angelita and her common-law husband could not have children, the alleged birth of John Thomas Lopez is an impossibility.[5] The trial court also held that the minor and Bienvenida showed strong facial similarity. Accordingly, it ruled that Edgardo Tijing, Jr., and John Thomas Lopez are one and the same person who is the natural child of petitioners. The trial court decreed:

WHEREFORE, PREMISES CONSIDERED, judgment is hereby rendered GRANTING the petition for Habeas Corpus, as such, respondent Angelita Diamante

is ordered to immediately release from her personal custody minor John Thomas D. Lopez, and turn him over and/or surrender his person to petitioners, Spouses Edgardo A. Tijing and Bienvenida R. Tijing, immediately upon receipt hereof. Branch Sheriff of this Court, Carlos Bajar, is hereby commanded to implement the decision of this Court by assisting herein petitioners in the recovery of the person of their minor son, Edgardo Tijing Jr., the same person as John Thomas D. Lopez. SO ORDERED.[6] Angelita seasonably filed her notice of appeal.[7] Nonetheless, on August 3, 1994, the sheriff implemented the order of the trial court by taking custody of the minor. In his report, the sheriff stated that Angelita peacefully surrendered the minor and he turned over the custody of said child to petitioner Edgardo Tijing.[8] On appeal, the Court of Appeals reversed and set aside the decision rendered by the trial court. The appellate court expressed its doubts on the propriety of thehabeas corpus. In its view, the evidence adduced by Bienvenida was not sufficient to establish that she was the mother of the minor. It ruled that the lower court erred in declaring that Edgardo Tijing, Jr., and John Thomas Lopez are one and the same person,[9] and disposed of the case, thus:

IN VIEW OF THE FOREGOING, the decision of the lower court dated March 10, 1995 is hereby REVERSED, and a new one entered dismissing the petition in Spec. Proc. No. 94-71606, and directing the custody of the minor John Thomas Lopez to be returned to respondent Angelita Diamante, said minor having been under the care of said respondent at the time of the filing of the petition herein. SO ORDERED.[10] Petitioners sought reconsideration of the abovequoted decision which was denied. Hence, the instant petition alleging: I

THAT THE RESPONDENT COURT OF APPEALS COMMITTED A GRAVE ERROR WHEN IT DECLARED THAT THE PETITIONERS‟ ACTION FOR HABEAS CORPUS IS MERELY SECONDARY TO THE QUESTION OF FILIATION THAT THE PETITIONERS HAD LIKEWISE PROVEN. II

THAT THE RESPONDENT COURT OF APPEALS ERRED IN REVERSING THE DECISION OF THE REGIONAL TRIAL COURT DISMISSING THE PETITION FOR “HABEAS CORPUS” AND DIRECTING THAT THE CUSTODY OF THE MINOR JOHN THOMAS LOPEZ WHO WAS PROVEN

TO THE SAME MINOR AS EDGARDO R. TIJING, JR., BE RETURNED TO THE PRIVATE RESPONDENT.[11] In our view, the crucial issues for resolution are the following: (1) Whether or not habeas corpus is the proper remedy? (2) Whether or not Edgardo Tijing, Jr., and John Thomas Lopez are one and the same person and is the son of petitioners?

We shall discuss the two issues together since they are closely related. The writ of habeas corpus extends to all cases of illegal confinement or detention by which any person is deprived of his liberty, or by which the rightful custody of any person is withheld from the person entitled thereto.[12] Thus, it is the proper legal remedy to enable parents to regain the custody of a minor child even if the latter be in the custody of a third person of his own free will. It may even be said that in custody cases involving minors, the question of illegal and involuntary restraint of liberty is not the underlying rationale for the availability of the writ as a remedy. Rather, it is prosecuted for the purpose of determining the right of custody over a child.[13] It must be stressed too that in habeas corpus proceedings, the question of identity is relevant and material, subject to the usual presumptions including those as to identity of the person. In this case, the minor‟s identity is crucial in determining the propriety of the writ sought. Thus, it must be resolved first whether the Edgardo Tijing, Jr., claimed by Bienvenida to be her son, is the same minor named John Thomas Lopez, whom Angelita insists to be her offspring. We must first determine who between Bienvenida and Angelita is the minor‟s biological mother. Evidence must necessarily be adduced to prove that two persons, initially thought of to be distinct and separate from each other, are indeed one and the same.[14] Petitioners must convincingly establish that the minor in whose behalf the application for the writ is made is the person upon whom they have rightful custody. If there is doubt on the identity of the minor in whose behalf the application for the writ is made, petitioners cannot invoke with certainty their right of custody over the said minor. True, it is not the function of this Court to examine and evaluate the probative value of all evidence presented to the concerned tribunal which formed the basis of its impugned decision, resolution or order.[15] But since the conclusions of the Court of Appeals contradict those of the trial court, this Court may scrutinize the evidence on the record to determine which findings should be preferred as more conformable to the evidentiary facts. A close scrutiny of the records of this case reveals that the evidence presented by Bienvenida is sufficient to establish that John Thomas Lopez is actually her missing son, Edgardo Tijing, Jr. First, there is evidence that Angelita could no longer bear children. From her very lips, she admitted that after the birth of her second child, she underwent ligation at the Martinez Hospital in 1970, before she lived with Tomas Lopez without the benefit of marriage in 1974. Assuming she had that ligation removed in 1978, as she claimed, she offered no evidence she gave birth to a child between 1978 to 1988 or for a period of ten years. The midwife who allegedly delivered

the child was not presented in court. No clinical records, log book or discharge order from the clinic were ever submitted. Second, there is strong evidence which directly proves that Tomas Lopez is no longer capable of siring a son. Benjamin Lopez declared in court that his brother, Tomas, was sterile because of the accident and that Tomas admitted to him that John Thomas Lopez was only an adopted son. Moreover, Tomas Lopez and his legal wife, Maria Rapatan Lopez, had no children after almost fifteen years together. Though Tomas Lopez had lived with private respondent for fourteen years, they also bore no offspring. Third, we find unusual the fact that the birth certificate of John Thomas Lopez was filed by Tomas Lopez instead of the midwife and on August 4, 1989, four months after the alleged birth of the child. Under the law, the attending physician or midwife in attendance at birth should cause the registration of such birth. Only in default of the physician or midwife, can the parent register the birth of his child. The certificate must be filed with the local civil registrar within thirty days after the birth.[16] Significantly, the birth certificate of the child stated Tomas Lopez and private respondent were legally married on October 31, 1974, in Hagonoy, Bulacan, which is false because even private respondent had admitted she is a “common-law wife”.[17] This false entry puts to doubt the other data in said birth certificate. Fourth, the trial court observed several times that when the child and Bienvenida were both in court, the two had strong similarities in their faces, eyes, eyebrows and head shapes. Resemblance between a minor and his alleged parent is competent and material evidence to establish parentage.[18] Needless to stress, the trial court‟s conclusion should be given high respect, it having had the opportunity to observe the physical appearances of the minor and petitioner concerned. Fifth, Lourdes Vasquez testified that she assisted in Bienvenida‟s giving birth to Edgardo Tijing, Jr., at her clinic. Unlike private respondent, she presented clinical records consisting of a log book, discharge order and the signatures of petitioners. All these considered, we are constrained to rule that subject minor is indeed the son of petitioners. The writ of habeas corpus is proper to regain custody of said child. A final note. Parentage will still be resolved using conventional methods unless we adopt the modern and scientific ways available. Fortunately, we have now the facility and expertise in using DNA test[19] for identification and parentage testing. The University of the Philippines Natural Science Research Institute (UP-NSRI) DNA Analysis Laboratory has now the capability to conduct DNA typing using short tandem repeat (STR) analysis. The analysis is based on the fact that the DNA of a child/person has two (2) copies, one copy from the mother and the other from the father. The DNA from the mother, the alleged father and child are analyzed to establish parentage.[20] Of course, being a novel scientific technique, the use of DNA test as evidence is still open to challenge.[21] Eventually, as the appropriate case comes, courts should not hesitate to rule on the admissibility of DNA evidence. For it was said, that courts should apply the results of science when competently obtained in aid of situations presented, since to reject said result is to deny progress.[22] Though it is not necessary in this case to resort to DNA testing, in future it would be useful to all concerned in the prompt resolution of parentage and identity issues.

WHEREFORE, the instant petition is GRANTED. The assailed DECISION of the Court of Appeals is REVERSED and decision of the Regional Trial Court is REINSTATED. Costs against the private respondent. SO ORDERED. Bellosillo, (Chairman), Mendoza, Buena, and De Leon, Jr., JJ., concur.

[1]

TSN, September 26, 1994, p. 6 and October 4, 1994, p. 19.

[2]

TSN, September 28, 1994, p. 3 and October 4, 1994, p. 3.

[3]

TSN, October 4, 1994, pp. 19-20.

[4]

TSN, November 22, 1994, p. 15.

[5]

Rollo, p. 44.

[6]

Id. at 46.

[7]

RTC Records, p. 118.

[8]

Id. at 119-120.

[9]

Rollo, pp. 27-28.

[10]

Id. at 31.

[11]

Id. at 10.

[12]

Section 1, Rule 102, Rules of Court.

[13]

Sombong vs. CA, 322 Phil 737, 750 (1996).

[14]

Id. at 752.

[15]

Acebedo Optical Inc. vs. CA, 320 Phil 506, 511-512 (1995).

[16]

Section 4, Act No. 3753 or Civil Register Law.

[17]

RTC Records, p. 40

[18]

R. J. Francisco. Basic Evidence (1991) pp. 95-96 citing Chua Yeng vs. Collector of Customs, 28 Phil 591, 595 (1914). [19]

DNA (deoxyribonucleic acid) refers to the chain of molecules found in every cell of the body, except in red blood cells, which transmit hereditary characteristics among individuals. DNA testing is synonymous to DNA typing, DNA fingerprinting, DNA profiling, genetic testing or genetic fingerprinting. [20]

A Primer On DNA-Based Paternity Testing, and Guidelines For DNA Analysis, UP-NSRI-DNA Analysis Laboratory, University of the Philippines, Diliman, Quezon City. [21]

See S.C. Halos, Current Trends in DNA Typing and Applications in the Judicial System, a paper presented at the Third Convention and Seminar of Philippine Judges Association held on June 11, 1999, 4 Court Systems Journal 47, 55 (1999). [22]

Jao vs. CA, 152 SCRA 359, 366 (1987).

SECOND DIVISION [G.R. No. 122954. February 15, 2000]

NORBERTO FERIA Y PACQUING, petitioner, vs. THE COURT OF APPEALS, THE DIRECTOR OF THE BUREAU OF CORRECTIONS, MUNTINLUPA, METRO MANILA (IN PLACE OF THE JAIL WARDEN OF THE MANILA CITY JAIL), THE PRESIDING JUDGE OF BRANCH II, REGIONAL TRIAL COURT OF MANILA, and THE CITY PROSECUTOR, CITY OF MANILA, respondents. DECISION QUISUMBING, J.: The mere loss or destruction of the records of a criminal case subsequent to conviction of the accused will not render the judgment of conviction void, nor will it warrant the release of the convict by virtue of a writ of habeas corpus. The proper remedy is the reconstitution of judicial records which is as much a duty of the prosecution as of the defense. Subject of this petition for review on certiorari are (1) the Decision dated April 28, 1995, of the Eighth Division of the Court of Appeals, which affirmed the dismissal of the petition for habeas corpus filed by petitioner, and (2) the Resolution of the Court of Appeals dated December 1, 1995, which denied the Motion for Reconsideration. As hereafter elucidated, we sustain the judgment of respondent appellate court. Based on the available records and the admissions of the parties, the antecedents of the present petition are as follows: Petitioner Norberto Feria y Pacquing has been under detention since May 21, 1981, up to present[1] by reason of his conviction of the crime of Robbery with Homicide, in Criminal Case No. 60677, by the Regional Trial Court of Manila, Branch 2, for the jeepney hold-up and killing of United States Peace Corps Volunteer Margaret Viviene Carmona. Some twelve (12) years later, or on June 9, 1993, petitioner sought to be transferred from the Manila City Jail to the Bureau of Corrections in Muntinlupa City, [2] but the Jail Warden of the Manila City Jail informed the Presiding Judge of the RTC-Manila, Branch 2, that the transfer cannot be effected without the submission of the requirements, namely, the Commitment Order or Mittimus, Decision, and Information. [3] It was then discovered that the entire records of the case, including the copy of the judgment, were missing. In response to the inquiries made by counsel of petitioner, both the Office of the City Prosecutor of Manila and the Clerk of Court of Regional Trial Court of Manila, Branch 2 attested to the fact that the records of Criminal Case No. 60677 could not be

found in their respective offices. Upon further inquiries, the entire records appear to have been lost or destroyed in the fire which occurred at the second and third floor of the Manila City Hall on November 3, 1986.[4] On October 3, 1994, petitioner filed a Petition for the Issuance of a Writ of Habeas Corpus[5] with the Supreme Court against the Jail Warden of the Manila City Jail, the Presiding Judge of Branch 2, Regional Trial Court of Manila, and the City Prosecutor of Manila, praying for his discharge from confinement on the ground that his continued detention without any valid judgment is illegal and violative of his constitutional right to due process. In its Resolution dated October 10, 1994,[6] the Second Division of this Court resolved " x x x (a) to ISSUE the Writ of Habeas Corpus; (b) to ORDER the Executive Judge of the Regional Trial Court of Manila to conduct an immediate RAFFLE of this case among the incumbent judges thereof; and (c) to REQUIRE [1] the Judge to whom this case is raffled to SET the case for HEARING on Thursday, October 13, 1994 at 8:30 A.M., try and decide the same on the merits and thereafter FURNISH this Court with a copy of his decision thereon; [2] the respondents to make a RETURN of the Writ on or before the close of office hours on Wednesday, October 12, 1994 and APPEAR PERSONALLY and PRODUCE the person of Norberto Feria y Pa[c]quing on the aforesaid date and time of hearing to the Judge to whom this case is raffled, and [3] the Director General, Philippine National Police, through his duly authorized representative(s) to SERVE the Writ and Petition, and make a RETURN thereof as provided by law and, specifically, his duly authorized representative(s) to APPEAR PERSONALLY and ESCORT the person of Norberto Feria y Pa[c]quing at the aforesaid date and time of hearing." The case was then raffled to Branch 9 of the Regional Trial Court of Manila, which on November 15, 1994, after hearing, issued an Order[7]dismissing the case on the ground that the mere loss of the records of the case does not invalidate the judgment or commitment nor authorize the release of the petitioner, and that the proper remedy would be reconstitution of the records of the case which should be filed with the court which rendered the decision. Petitioner duly appealed said Order to the Court of Appeals, which on April 28, 1995, rendered the assailed Decision[8] affirming the decision of the trial court with the modification that "in the interest of orderly administration of justice" and "under the peculiar facts of the case" petitioner may be transferred to the Bureau of Corrections in Muntinlupa City without submission of the requirements (Mittimus, Decision and Information) but without prejudice to the reconstitution of the original records. The Motion for Reconsideration of the aforesaid Order having been denied for lack of merit,[9] petitioner is now before us on certiorari, assigning the following errors of law:[10]

I. WHETHER OR NOT, UNDER THE PECULIAR CIRCUMSTANCES OF THIS CASE, WHERE THE RECORDS OF CONVICTION WERE LOST, THE PETITIONER‘S CONTINUED INCARCERATION IS JUSTIFIED UNDER THE LAW. COROLLARY TO THIS, WHETHER OR NOT THE COURT OF APPEALS‘ RESOLUTION, AFFIRMING THE DENIAL OF HEREIN APPELLANT‘S PETITION FOR HABEAS CORPUS IS, IN CONTEMPLATION OF LAW, A JUDGMENT OR A SUBSTITUTE JUDGMENT, WHICH CAN BE UTILIZED AS A SUFFICIENT BASIS FOR HIS INCARCERATION. II. WHETHER OR NOT THE RECONSTITUTION OF OFFICIAL RECORDS LOST/DESTROYED SHOULD BE INITIATED BY THE GOVERNMENT AND ITS ORGANS, WHO ARE IN CUSTODY OF SUCH, OR BY THE PRISONER, WHOSE LIBERTY IS RESTRAINED. Petitioner argues that his detention is illegal because there exists no copy of a valid judgment as required by Sections 1 and 2 of Rule 120 of the Rules of Court,[11] and that the evidence considered by the trial court and Court of Appeals in the habeas corpus proceedings did not establish thecontents of such judgment. Petitioner further contends that our ruling in Gunabe v. Director of Prisons, 77 Phil. 993, 995 (1947), that "reconstitution is as much the duty of the prosecution as of the defense" has been modified or abandoned in the subsequent case of Ordonez v. Director of Prisons, 235 SCRA 152, 155 (1994), wherein we held that "[i]t is not the fault of the prisoners that the records cannot now be found. If anyone is to be blamed, it surely cannot be the prisoners, who were not the custodians of those records." In its Comment,[12] the Office of the Solicitor General contends that the sole inquiry in this habeas corpus proceeding is whether or not there is legal basis to detain petitioner. The OSG maintains that public respondents have more than sufficiently shown the existence of a legal ground for petitioner‘s continued incarceration, viz., his conviction by final judgment, and under Section 4 of Rule 102 of the Rules of Court, the discharge of a person suffering imprisonment under lawful judgment is not authorized. Petitioner‘s remedy, therefore, is not a petition for habeas corpus but a proceeding for the reconstitution of judicial records. The high prerogative writ of habeas corpus, whose origin is traced to antiquity, was devised and exists as a speedy and effectual remedy to relieve persons from unlawful restraint, and as the best and only sufficient defense of personal freedom. [13] It secures to a prisoner the right to have the cause of his detention examined and determined by a court of justice, and to have the issue ascertained as to whether he is held under lawful authority.[14] Consequently, the writ may also be availed of where, as a consequence of a judicial proceeding, (a) there has been a deprivation of a constitutional right resulting in the restraint of a person, (b) the court had no jurisdiction to impose the sentence, or (c) an excessive penalty has been imposed, as such sentence is void as to such

excess.[15] Petitioner‘s claim is anchored on the first ground considering, as he claims, that his continued detention, notwithstanding the lack of a copy of a valid judgment of conviction, is violative of his constitutional right to due process. Based on the records and the hearing conducted by the trial court, there is sufficient evidence on record to establish the fact of conviction of petitioner which serves as the legal basis for his detention. Petitioner made judicial admissions, both verbal and written, that he was charged with and convicted of the crime of Robbery with Homicide, and sentenced to suffer imprisonment "habang buhay". In its Order dated October 17, 1994, the RTC-Manila, Branch 9, made the finding that [16]

"During the trial and on manifestation and arguments made by the accused, his learned counsel and Solicitor Alexander G. Gesmundo who appeared for the respondents, it appears clear and indubitable that: (A) Petitioner had been charged with Robbery with Homicide in Criminal Case No. 60677, Illegal Possession of Firearm in Criminal Case No. 60678 and Robbery in Band in Criminal Case No. 60867. ... In Criminal Case No. 60677 (Robbery with Homicide) the accused admitted in open Court that a decision was read to him in open Court by a personnel of the respondent Court (RTC Branch II) sentencing him to Life Imprisonment (Habang buhay)..." (emphasis supplied) Further, in the Urgent Motion for the Issuance of Commitment Order of the Above Entitled Criminal Case dated June 8, 1993,[17] petitioner himself stated that "COMES NOW, the undersigned accused in the above entitled criminal case and unto this Honorable Court most respectfully move: 1. That in 1981 the accused was charge of (sic) Robbery with Homicide; 2. That after four years of trial, the court found the accused guilty and given a Life Sentence in a promulgation handed down in 1985; (emphasis supplied) 3. That after the sentence was promulgated, the Presiding Judge told the councel (sic) that accused has the right to appeal the decision; 4. That whether the de oficio counsel appealed the decision is beyond the accused comprehension (sic) because the last time he saw the counsel was when the decision was promulgated.

5. That everytime there is change of Warden at the Manila City Jail attempts were made to get the Commitment Order so that transfer of the accused to the Bureau of Corrections can be affected, but all in vain;" Petitioner‘s declarations as to a relevant fact may be given in evidence against him under Section 23 of Rule 130 of the Rules of Court. This rule is based upon the presumption that no man would declare anything against himself, unless such declaration were true,[18] particularly with respect to such grave matter as his conviction for the crime of Robbery with Homicide. Further, under Section 4 of Rule 129, "[a]n admission, verbal or written, made by a party in the course of the proceedings in the same case, does not require proof. The admission may be contradicted only by a showing that it was made through palpable mistake or that no such admission was made." Petitioner does not claim any mistake nor does he deny making such admissions. The records also contain a certified true copy of the Monthly Report dated January 1985[19] of then Judge Rosalio A. De Leon, attesting to the fact that petitioner was convicted of the crime of Robbery with Homicide on January 11, 1985. Such Monthly Report constitutes an entry in official records under Section 44 of Rule 130 of the Revised Rules on Evidence, which is prima facie evidence of facts therein stated. Public respondents likewise presented a certified true copy of People‘s Journal dated January 18, 1985, page 2,[20] issued by the National Library, containing a short news article that petitioner was convicted of the crime of Robbery with Homicide and was sentenced to "life imprisonment." However, newspaper articles amount to "hearsay evidence, twice removed"[21] and are therefore not only inadmissible but without any probative value at all whether objected to or not,[22] unless offered for a purpose other than proving the truth of the matter asserted. In this case, the news article is admissible only as evidence that such publication does exist with the tenor of the news therein stated. As a general rule, the burden of proving illegal restraint by the respondent rests on the petitioner who attacks such restraint. In other words, where the return is not subject to exception, that is, where it sets forth process which on its face shows good ground for the detention of the prisoner, it is incumbent on petitioner to allege and prove new matter that tends to invalidate the apparent effect of such process. [23] If the detention of the prisoner is by reason of lawful public authority, the return is considered prima facie evidence of the validity of the restraint and the petitioner has the burden of proof to show that the restraint is illegal. Thus, Section 13 of Rule 102 of the Rules of Court provides: "SEC. 13. When the return evidence, and when only a plea.—If it appears that the prisoner is in custody under a warrant of commitment in pursuance of law, the return shall be considered prima facie evidence of the cause of restraint, but if he is restrained of his liberty by any alleged private authority, the return shall be considered only as a plea of the facts

therein set forth, and the party claiming the custody must prove such facts." Public respondents having sufficiently shown good ground for the detention, petitioner‘s release from confinement is not warranted under Section 4 of Rule 102 of the Rules of Court which provides that "Sec. 4. When writ not allowed or discharge authorized. - If it appears that the person alleged to be restrained of his liberty is in the custody of an officer under process issued by a court or judge or by virtue of a judgment or order of a court of record, and that the court or judge had jurisdiction to issue the process, render the judgment, or make the order, the writ shall not be allowed; or if the jurisdiction appears after the writ is allowed, the person shall not be discharged by reason of any informality or defect in the process, judgment, or order. Nor shall anything in this rule be held to authorize the discharge of a person charged with or convicted of an offense in the Philippines, or of a person suffering imprisonment under lawful judgment." In the case of Gomez v. Director of Prisons, 77 Phil. 458 (1946), accused was convicted by the trial court of the crime of rape, and was committed to the New Bilibid Prison. Pending appeal with the Court of Appeals, the records of the case were, for reasons undisclosed, completely destroyed or lost. Accused then filed a petition for the issuance of the writ of habeas corpus with the Supreme Court. The Court denied the petition, ruling thus: "The petition does not make out a case. The Director of Prisons is holding the prisoner under process issued by a competent court in pursuance of a lawful, subsisting judgment. The prisoner himself admits the legality of his detention. The mere loss or destruction of the record of the case does not invalidate the judgment or the commitment, or authorize the prisoner‘s release." Note further that, in the present case, there is also no showing that petitioner duly appealed his conviction of the crime of Robbery with Homicide, hence for all intents and purposes, such judgment has already become final and executory. When a court has jurisdiction of the offense charged and of the party who is so charged, its judgment, order, or decree is not subject to collateral attack by habeas corpus.[24] Put another way, in order that a judgment may be subject to collateral attack by habeas corpus, it must be void for lack of jurisdiction.[25] Thus, petitioner‘s invocation of our ruling in Reyes v. Director of Prisons, supra, is misplaced. In the Reyes case, we granted the writ and ordered the release of the prisoner on the ground that "[i]t does not appear that the prisoner has been sentenced by any tribunal duly established by a competent authority during the enemy occupation" and not because there were no copies of the decision and information. Here, a copy of the mittimus is available. And, indeed, petitioner does not raise any jurisdictional issue.

The proper remedy in this case is for either petitioner or public respondents to initiate the reconstitution of the judgment of the case under either Act No. 3110,[26] the general law governing reconstitution of judicial records, or under the inherent power of courts to reconstitute at any time the records of their finished cases in accordance with Section 5 (h) of Rule 135 of the Rules of Court.[27] Judicial records are subject to reconstitution without exception, whether they refer to pending cases or finished cases. [28] There is no sense in limiting reconstitution to pending cases; finished cases are just as important as pending ones, as evidence of rights and obligations finally adjudicated.[29] Petitioner belabors the fact that no initiative was taken by the Government to reconstitute the missing records of the trial court. We reiterate, however, that "reconstitution is as much the duty of the prosecution as of the defense."[30] Petitioner‘s invocation of Ordoñez v. Director of Prisons, 235 SCRA 152 (1994), is misplaced since the grant of the petition for habeas corpus therein was premised on the loss of records prior to the filing of Informations against the prisoners, and therefore "[t]he government has failed to show that their continued detention is supported by a valid conviction or by the pendency of charges against them or by any legitimate cause whatsoever." In this case, the records were lost after petitioner, by his own admission, was already convicted by the trial court of the offense charged. Further, the same incident which gave rise to the filing of the Information for Robbery with Homicide also gave rise to another case for Illegal Possession of Firearm,[31] the records of which could be of assistance in the reconstitution of the present case. WHEREFORE, the petition is DENIED for lack of merit, and the decision of the Court of Appeals is AFFIRMED. SO ORDERED. Bellosillo, (Chairman), Mendoza, Buena, and De Leon, Jr., JJ., concur.

[1]

He was initially detained at the Manila City Jail, then transferred to the Youth Rehabilitation Center, Camp Sampaguita, Muntinlupa, and later, pursuant to the assailed Decision of the Court of Appeals dated April 28, 1995, transferred to the Bureau of Corrections in Muntinlupa City; Petition for Habeas Corpus, Records, p. 5. [2] Urgent Motion for the Issuance of Commitment Order of the Above Entitled Criminal Case, Annex "F", Records, p. 31-32. [3] Letter dated November 26, 1993 to Hon. Napoleon Flojo, Presiding Judge, RTC-Manila, Branch 2, from C/Insp. JMP Warden Reynaldo E. Erlano, Annex "L" to the Petition for Habeas Corpus, Records, p. 42. [4] Petition, Records, p. 9; Certification dated November 17, 1993, by Emilia V. Queri, Chief, Records Division, City Prosecutor‟s Office, Records, p. 38; Certification dated April 8, 1987 by Zenaida A. Arabiran, OIC, Administrative Division, City Fiscal‟s Office, Manila, Records, p. 39. [5] Records, pp. 1-14. [6] Id. at 61. [7] Id. at 121-122. [8] Rollo, pp. 43-46. [9] Rollo, p. 50. [10] Memorandum, Rollo, p. 156; Petition for Review, Rollo, pp. 14-15.

[11]

Section 1 of Rule 120 provides:

"Section 1. Judgment defined. - The term judgment as used in this Rule means the adjudication by the court that the accused is guilty or is not guilty of the offense charged, and the imposition of the proper penalty and civil liability provided for by law on the accused." Section 2 provides: "Section 2. Form and contents of judgment. - The judgment must be written in the official language, personally and directly prepared by the judge and signed by him and shall contain clearly and distinctly a statement of the facts proved or admitted by the accused and the law upon which the judgment is based. If it is of conviction, the judgment shall state (a) the legal qualification of the offense constituted by the acts committed by the accused, and the aggravating or mitigating circumstances attending the commission thereof, if there are any; (b) the participation of the accused in the commission of the offense, whether as principal, accomplice or accessory after the fact; (c) the penalty imposed upon the accused; and (d) the civil liability or damages caused by the wrongful act to be recovered from the accused by the offended party, if there is any, unless the enforcement of the civil liability by a separate action has been reserved or waived. In case of acquittal, unless there is a clear showing that the act from which the civil liability might arise did not exist, the judgment shall make a finding on the civil liability of the accused in favor of the offended party." [12] Rollo, pp. 66-102; Public Respondents filed a Manifestation and Motion in lieu of Memorandum; Rollo, pp. 134135. [13] Velasco v. Court of Appeals, 245 SCRA 677, 679 (1995); Nava v. Gatmaitan, 90 Phil. 172, 176 (1951); Villavicencio v. Lukban, 39 Phil. 778, 788 (1919). [14] Nava v. Gatmaitan, 90 Phil. 172, 176 (1951); Quintos v. Director of Prisons, 55 Phil. 304, 306 (1930). [15] Andal v. People of the Philippines. et. al., G.R. Nos. 138268-69, May 26, 1999, p. 3; Harden v. Director of Prisons, 81 Phil. 741, 746 (1948); Cruz v. Director of Prisons, 17 Phil. 269, 272 (1910). [16] Records, pp. 69-70. [17] Annex "F" of the Petition for Habeas Corpus, Records, pp. 31-32. [18] Francisco, R., Basic Evidence, 1991 ed., p. 116. [19] Records, p. 52. [20] Id. at 90. [21] State Prosecutors v. Muro, 251 SCRA 111, 113 (1995), citing 3 Jones, Commentaries on Evidence, 2d. ed., Sec. 1084. [22] State Prosecutors v. Muro, 251 SCRA 111, 113 (1995); Salonga v. Cruz Paño, 134 SCRA 438, 451 (1985). [23] 39 Am Jur 2d § 152. [24] Harden v. Director of Prisons, 81 Phil. 741, 749-750 (1948). [25] 39 C.J.S. § 35; 39 Am Jur 2d § 11, 28, 30, 64. [26] AN ACT TO PROVIDE AN ADEQUATE PROCEDURE FOR THE RECONSTITUTION OF THE RECORDS OF PENDING JUDICIAL PROCEEDINGS AND BOOKS, DOCUMENTS, AND FILES OF THE OFFICE OF THE REGISTER OF DEEDS, DESTROYED BY FIRE OR OTHER PUBLIC CALAMITIES, AND FOR OTHER PURPOSES; See also Almario v. Ibañez, 81 Phil. 592 (1948); Zafra v. De Aquino, 84 Phil. 507 (1949). [27] Yatco v. Cruz, 6 SCRA 1078, 1081 (1962); Wee Bin v. Republic, 100 SCRA 139, 149 (1980). [28] Erlanger & Galinger v. Exconde, 93 Phil. 894, 900 (1953). [29] Ibid. [30] Gunabe v. Director of Prisons, 77 Phil. 993, 995 (1947); See also People v. Catoltol, Sr., 265 SCRA 109, 112 (1996), where it was the Public Attorney‟s Office which initiated the request for the reconstitution of the burned records of a decided case for rape; Asiavest Limited v. Court of Appeals, G.R. No. 128803, September 25, 1998, p. 541, where it was plaintiff, through counsel, which moved for the reconstitution of a pending civil case. [31] People of the Philippines v. Norberto Feria y Pacquing, Criminal Case No. 60678, decided by the RTC-Manila, Branch 4 on January 24, 1983, convicting accused (petitioner herein); Records, Annex "C" to the Petition, p. 23-25.

Republic of the Philippines SUPREME COURT Manila EN BANC

G.R. No. 115576 August 4, 1994 IN THE MATTER OF THE PETITION FOR HABEAS CORPUS OF LEONARDO PAQUINTO AND JESUS CABANGUNAY. CHAIRMAN SEDFREY A. ORDOÑEZ, COMM. SAMUEL M. SORIANO, COMM. HESIQUIO R. MALLILLIN, COMM. NARCISO C. MONTEIRO, COMM. PAULYNN PAREDES-SICAM, THE COMMISSION ON HUMAN RIGHTS, petitioners, vs. DIRECTOR OF PRISONS, respondent.

CRUZ, J.: Why are Leonardo Paquinto and Jesus Cabangunay still in prison? These persons are among the civilians who were tried by the military commissions during the period of martial law. Both were originally condemned to die by musketry, but their sentence was commuted by the new Constitution toreclusion perpetua. Their convictions were subsequently nullified by this Court in the case of Olaguer v. Military Commission No. 34, 1where we held that the military tribunals had no jurisdiction to try civilians when the courts of justice were functioning.

Accordingly, in the case of Cruz v. Ponce Enrile, 2 this Court directed the Department of Justice to file the corresponding informations in the civil courts against the petitioners within 180 days from notice of the decision.

No information has so far been filed against Paquinto and Cabangunay, but they have remained under detention. On May 27, 1992, Ernesto Abaloc, together with Cabangunay and Paquinto, wrote to the United Nations Human Rights Committee (UNHRC) complaining that their continued detention violated their rights under Articles 6, 7, 9, 10, 14, and 26 of the International Covenant on Civil and Political Rights. 3 In its decision dated October 14, 1993, the UNHRC declared their communication as admissible and requested the Republic of the Philippines to submit a written explanation of their complaint within six months from the date of transmittal. 4

The Department of Foreign Affairs furnished the Commission on Human Rights with a copy of the decision. Thereupon, the Commission, through its Chairman Sedfrey A. Ordoñez wrote the Secretary of Justice of its intention to sue for the release of the complaints unless criminal charges had already been filed against them. 5 On June 7, 1994, the Department of Justice informed the Commission that Abaloc had been released on September 29, 1992, and that Paquinto and Cabangunay were still detained at the National Penitentiary. There was the intimation that it would not object to a petition for habeas corpus that the Commission might choose to file for Paquinto and Cabangunay. 6 This assurance was later confirmed in a letter from the Department dated May 31, 1994.7

The present petition for habeas corpus was filed with this Court on June 13, 1994. The writ was immediately issued, returnable on or before June 22, 1994, on which date a hearing was also scheduled. At the hearing, Chairman Ordoñez argued for the prisoners and pleaded for their immediate release in view of the failure of the Department of Justice to file charges against them within the period specified in the Cruz case. He stressed that their continued detention despite the nullification of their convictions was a clear violation of their human rights. For its part, the Office of the Solicitor General, as counsel for the respondent Director of Prisons, argued that under our ruling in Tan v. Barrios, 8 the Olaguer decision could not be retroactively applied to decisions of the military tribunals that have already become final or to persons who were already serving their sentence. It suggested that, under the circumstances, the only recourse of the prisoners was to reiterate and pursue their applications for executive clemency.

It has been seven years since the Olaguer decision nullifying the convictions of Paquinto and Cabangunay by the military commissions was promulgated. It has been six years since our decision in the Cruz case directed the Secretary of Justice to file the appropriate informations against the civilians still detained under convictions rendered by the military tribunals. The prisoners have been confined since 1974. We can only guess at the validity of their convictions as the records of their cases have allegedly been burned. The loss of these records is the main reason the Department gives for its failure to file the corresponding charges against the two detainees before the civil courts. It is unacceptable, of course. It is not the fault of the prisoners that the records cannot now be found. If anyone is to be blamed, it surely cannot be the prisoners, who were not the custodian of those records. It is illogical and even absurd to suggest that because the government cannot prosecute them, the prisoners' detention must continue. The other excuse of the government must also be rejected. During the hearing, the Office of the Solicitor General contended that the prisoners had themselves opted to serve their sentences rather than undergo another trial. Their ultimate objective, so it was maintained, was to secure their release by applying for executive clemency. To prove this, counsel submitted a letter from one Atty. Anselmo B. Mabuti to the Secretary of Justice manifesting that Leonardo B. Paquinto "chooses to complete the service of his sentence so that the Board of Pardons and Parole has jurisdiction over his case." 9 No mention was made of Jesus Cabangunay. Upon direct questioning from the Court during the hearing, both Paquinto and Cabangunay disowned Atty. Mabuti as their counsel and said they had never seen nor talked to him before. Paquinto denied ever having authorized him to write the letter. Instead, the two prisoners reiterated their plea to be released on the strength of the Olaguer decision.

The petitioners further contend in their memorandum that a re-examination of the ruling in Cruz v. Enrile 10 in relation to the case of Tan v. Barrios, 11 is necessary in view of certain supervening events. These are the failure of the Department of Justice to file the informations against the prisoners; the decision of the UNHRC declaring admissible the communication No. 503/1992 of Abaloc, Paquinto and Cabangunay and thus suggesting the violation of their liberty as guaranteed under the International Covenant on Civil and Political Rights; and the assurance of the Department of Justice that it would have no objection to the filing of a petition for habeas corpus by the Commission on behalf of Paquinto and Cabangunay.

The Court stresses that in its en banc resolution dated February 26, 1991, it declared, citing the Tan case, that "those civilians who were convicted by military courts and who have been serving (but not yet completed) their sentences of imprisonment for the past many years" . . . "may be given the option either to complete the service of their sentence, or be tried anew by the civil courts. Upon conviction, they should be credited in the service of their sentence for the full period of their previous imprisonment. Upon acquittal, they should be set free." Accordingly, it directed "the Department of Justice to forthwith comply with the directive in the "Cruz Cases" for the filing of the necessary informations against them in the courts having jurisdiction over the offenses involved, without prejudice to said petitioners' exercise of the option granted to them by this Court's ruling in G.R. Nos. 85481-82, William Tan, et al. v. Hernani T. Barrios, etc., et al., supra." The Office of the Solicitor General submitted its memorandum after its second motion for extension was denied, in view of the necessity to decide this petition without further delay. 12 The memorandum was admitted just the same, but we find it adds nothing to the respondent's original arguments.

There is absolutely no question that the prisoners' plea should be heeded. The government has failed to show that their continued detention is supported by a valid conviction or by the pendency of charges against them or by any legitimate cause whatsoever. If no information can be filed against them because the records have been lost, it is not the prisoners who should be made to suffer. In the eyes of the law, Paquinto and Cabangunay are not guilty or appear to be guilty of any crime for which they may be validly held. Hence, they are entitled to be set free. Liberty is not a gift of the government but the right of the governed. Every person is free, save only for the fetters of the law that limit but do not bind him unless he affronts the rights of others or offends the public welfare. Liberty is not derived from the sufferance of the government or its magnanimity or even from the Constitution itself, which merely affirms but does not grant it. Liberty is a right that inheres in every one of us as a member of the human family. When a person is deprived of this right, all of us are diminished and debased for liberty is total and indivisible. WHEREFORE, the petition is GRANTED. Jesus Cabangunay and Leonardo Paquinto should not be detained in prison a minute longer. They are ordered released IMMEDIATELY. Narvasa, C.J., Feliciano, Padilla, Bidin, Regalado, Davide, Jr., Romero, Bellosillo, Melo, Quiason, Puno, Vitug, Kapunan and Mendoza, JJ., concur.

#Footnotes

1 150 SCRA 144. 2 160 SCRA 700.

3 Rollo, p. 17. 4 Rollo, p. 18. 5 Annex "B" to the Petition; rollo, p. 11. 6 Annex "C" to the Petition; rollo, p. 12. 7 Annex "A" to the Memorandum of Petitioners; rollo, p. 86. 8 190 SCRA 686. 9 Rollo, p. 70. 10 Supra. 11 Supra. 12 Supreme Court, First Division, Resolution, July 20, 1994.

Republic of the Philippines SUPREME COURT Manila FIRST DIVISION G.R. No. 139789

July 19, 2001

IN THE MATTER OF THE PETITION FOR HABEAS CORPUS OF POTENCIANO ILUSORIO, ERLINDA K. ILUSORIO, petitioner, vs. ERLINDA K. ILUSORIO-BILDNER, SYLVIA K. ILUSORIO-YAP, JOHN DOES and JANE DOES, respondents. x---------------------------------------------------------x G.R. No. 139808 July 19, 2001 POTENCIANO ILUSORIO, MA. ERLINDA I. BILDNER and SYLVIA K. ILUSORIO, petitioners, vs. HON. COURT OF APPEALS and ERLINDA K. ILUSORIO, respondents. RESOLUTION PARDO, J.:

Once again we see the sad tale of a prominent family shattered by conflicts on expectancy in fabled fortune. On March 11, 1999, Erlinda K. Ilusorio, the matriarch who was so lovingly inseparable from her husband some years ago, filed a petition with the Court of Appeals1 for habeas corpus to have custody of her husband in consortium. On April 5, 1999, the Court of Appeals promulgated its decision dismissing the petition for lack of unlawful restraint or detention of the subject, Potenciano Ilusorio. Thus, on October 11, 1999, Erlinda K. Ilusorio filed with the Supreme Court an appeal via certiorari pursuing her desire to have custody of her husband Potenciano Ilusorio.2 This case was consolidated with another case3 filed by Potenciano Ilusorio and his children, Erlinda I. Bildner and Sylvia K. Ilusorio appealing from the order giving visitation rights to his wife, asserting that he never refused to see her. On May 12, 2000, we dismissed the petition for habeas corpus4 for lack of merit, and granted the petition5 to nullify the Court of Appeals' ruling6 giving visitation rights to Erlinda K. Ilusorio.7 What is now before the Court is Erlinda's motion to reconsider the decision.8 On September 20, 2000, we set the case for preliminary conference on October 11, 2000, at 10:00 a. m., without requiring the mandatory presence of the parties. In that conference, the Court laid down the issues to be resolved, to wit: (a) To determine the propriety of a physical and medical examination of petitioner Potenciano Ilusorio; (b) Whether the same is relevant; and (c) If relevant, how the Court will conduct the same.9 The parties extensively discussed the issues. The Court, in its resolution, enjoined the parties and their lawyers to initiate steps towards an amicable settlement of the case through mediation and other means. On November 29, 2000, the Court noted the manifestation and compliance of the parties with the resolution of October 11, 2000.10 On January 31, 2001, the Court denied Erlinda Ilusorio's manifestation and motion praying that Potenciano Ilusorio be produced before the Court and be medically examined by a team of medical experts appointed by the Court.11 On March 27, 2001, we denied with finality Erlinda's motion to reconsider the Court's order of January 31 , 2001.12 The issues raised by Erlinda K. Ilusorio in her motion for reconsideration are mere reiterations of her arguments that have been resolved in the decision. Nevertheless, for emphasis, we shall discuss the issues thus:

First. Erlinda K. Ilusorio claimed that she was not compelling Potenciano to live with her in consortium and that Potenciano's mental state was not an issue. However, the very root cause of the entire petition is her desire to have her husband's custody.13 Clearly, Erlinda cannot now deny that she wanted Potenciano Ilusorio to live with her. Second. One reason why Erlinda K. Ilusorio sought custody of her husband was that respondents Lin and Sylvia were illegally restraining Potenciano Ilusorio to fraudulently deprive her of property rights out of pure greed.14 She claimed that her two children were using their sick and frail father to sign away Potenciano and Erlinda's property to companies controlled by Lin and Sylvia. She also argued that since Potenciano retired as director and officer of Baguio Country Club and Philippine Oversees Telecommunications, she would logically assume his position and control. Yet, Lin and Sylvia were the ones controlling the corporations.15 The fact of illegal restraint has not been proved during the hearing at the Court of Appeals on March 23, 1999.16Potenciano himself declared that he was not prevented by his children from seeing anybody and that he had no objection to seeing his wife and other children whom he loved. Erlinda highlighted that her husband suffered from various ailments. Thus, Potenciano Ilusorio did not have the mental capacity to decide for himself. Hence, Erlinda argued that Potenciano be brought before the Supreme Court so that we could determine his mental state. We were not convinced that Potenciano Ilusorio was mentally incapacitated to choose whether to see his wife or not. Again, this is a question of fact that has been decided in the Court of Appeals. As to whether the children were in fact taking control of the corporation, these are matters that may be threshed out in a separate proceeding, irrelevant in habeas corpus. Third. Petitioner failed to sufficiently convince the Court why we should not rely on the facts found by the Court of Appeals. Erlinda claimed that the facts mentioned in the decision were erroneous and incomplete. We see no reason why the High Court of the land need go to such length. The hornbook doctrine states that findings of fact of the lower courts are conclusive on the Supreme Court.17 We emphasize, it is not for the Court to weigh evidence all over again.18 Although there are exceptions to the rule,19 Erlinda failed to show that this is an exceptional instance. Fourth. Erlinda states that Article XII of the 1987 Constitution and Articles 68 and 69 of the Family Code support her position that as spouses, they (Potenciano and Erlinda) are duty bound to live together and care for each other. We agree. The law provides that the husband and the wife are obliged to live together, observe mutual love, respect and fidelity.20 The sanction therefor is the "spontaneous, mutual affection between husband and wife and not any legal mandate or court order" to enforce consortium.21 Obviously, there was absence of empathy between spouses Erlinda and Potenciano, having separated from bed and board since 1972. We defined empathy as a shared feeling between husband and wife experienced not only by having spontaneous sexual intimacy but a deep sense of spiritual communion. Marital union is a two-way process. Marriage is definitely for two loving adults who view the relationship with "amor gignit amorem" respect, sacrifice and a continuing commitment to togetherness, conscious of its value as a sublime social institution.22

On June 28, 2001, Potenciano Ilusorio gave his soul to the Almighty, his Creator and Supreme Judge. Let his soul rest in peace and his survivors continue the much prolonged fracas ex aequo et bono. IN VIEW WHEREOF, we DENY Erlinda's motion for reconsideration. At any rate, the case has been rendered moot by the death of subject. SO ORDERED. Davide, Jr., C .J ., Puno, Kapunan and Ynares-Santiago, JJ ., concur.

Footnotes 1

Docketed as CA-G.R. SP No. 51689.

2

Docketed as G.R. No. 139789.

3

G. R No. 139808.

4

G. R. No. 139789.

5

G. R. No. 139808.

6

In CA-G.R. SP No. 51689, promulgated on April 5, 1999.

7

Decision, Rollo of G.R. No. 139808, pp. 290-A — 290-J.

8

Promulgated on May 12, 2000.

9

Rollo of G. R No. 139808, p. 409.

10

Rollo of G. R No. 139808, p. 438.

11

Rollo of G. R No. 139808, p. 453-A.

12

Rollo of G. R No. 139808, p. 596.

13

Rollo of G. R. No. 139789, p. 24.

14

Rollo of G.R. No. 139808, p. 311.

15

Rollo of G.R. No. 139789, p. 560.

16

Court of Appeals Decision in CA-G. R. SP No. 51689, Rollo of G.R. No. 139789, pp. 2938. 17

Omandam vs. Court of Appeals, G.R. No. 128750, January 18, 2001.

18

Co vs. Court of Appeals, 317 Phil. 230, 238 [1995]; Gobonseng, Jr. vs. Court of Appeals, 316 Phil. 570 [1995]. 19

Romago Electric Co. vs. Court of Appeals, G. R No. 125947, June 8, 2000; Halili vs. Court of Appeals, 287 SCRA 465 [1998]; Bautista vs. Mangaldan Rural Bank, Inc., 230 SCRA 16 [1994]. 20

Art. 68, Family Code.

21

Tsoi vs. Lao-Tsoi, 334 Phil. 294 [1997], citing Cuaderno vs. Cuaderno, 120 Phil. 1298 [1964]. 22

Tsoi vs. Court of Appeals, supra, Note 21. Republic of the Philippines SUPREME COURT Manila EN BANC

G.R. No. L-49299 April 15, 1988 NORA CONTADO, ADELINA RAZON and NERA TIZON, petitioners, vs. RUFILO L. TAN, LILIO BORJA, EDEN BOCO, FELIPE ALDE JR., DICKY CERNAL, PIO GOPOLE, JOSE ROMEO ESCOTO, JORGE SILLA, ABRAHAM CODOY, PRIVADO ALIDO, ISAIAS COPADA, GONZALO BORJA, EUFEMIO BORMATE, ROBERTO TAN, JR., BENITO PICCIO and several PC soldiers, respondents. Lutgardo B. Barbo for petitioners.

TEEHANKEE, C.J.: This is another tragic story of missing persons—desaparecidos — during the martial law regime that must be told and recorded in the annals of our jurisprudence for the lessons that should be learned from it and never be forgotten by a freedom loving people. This petition for habeas corpus was flied on November 20, 1978 by Nora Contado, Adelina Razon and Nena Tizon in behalf of their spouses Crispo Contado, Cesar Razon and Jimmy Tizon. The respondents are Rufilo L. Tan, the then Municipal Mayor of Llorente, Eastern Samar; Lilio Borja Eden Boco, Felipe Alde, Jr., Dicky Cernal, Pio Gopole, Jose Alde, Romeo Escoto, Jorge Silla, Abraham Codoy, Privado Alido — then members of the Integrated National Police of Llorente, Samar; Isaias Copada and Gonzalo Borja — residents of Llorente, Eastern Samar, then government employees holding office at the municipal building of Llorente, Eastern Samar, Eufemio Bormate — then driver of the ambulance car — employee of the Llorente Community Hospital and Health Center (medicare) of Llorente, Eastern Samar; Roberto Tan, Jr. — brother of then Mayor Rufilo Tan-head of the Llorente Community Hospital; Lt. Col. Benito Piccio, then Provincial Commander of the Philippine Constabulary/Integrated National Police at Camp Asidillo, Borongan, Eastern Samar and the soldiers were under his command.

Petitioners alleged that on September 13,1978, their spouses were arrested by members of the Integrated National Police of Llorente, Eastern Samar, restrained of their liberty and were in grave danger of being liquidated, if they had not already been liquidated; that respondents conspired, helped one another and operated in arresting and detaining said Crispo Contado, Cesar Razon and Jimmy Tizon who were maltreated, tortured and subjected to cruel and inhuman punishment in the municipal building of Llorente, Eastern Samar; that the imprisonment of the above detainees or the restraint of their liberty, or their possible liquidation was without any legal authority or lawful basis. Petitioners further alleged that detainees were abused, maltreated, beaten and tortured by respondents led by then Mayor Rufilo Tan and his brother Roberto Tan, Jr. They had bloodied noses and mouths, broken teeth, black eyes, swollen ears, and blackish parts of their bodies. They were brought down from the second floor of the municipal building to the ground floor where the jail is located, totally naked — with nothing to cover their bodies, with the exception of Crispo Contado who had only a brief. They were ordered to drink urine. Their backs, hands and mouths showed cigarette burns. They were handcuffed at the back even as handkerchiefs were tied into their mouths. Respondents Eden Boco, Privado Alido and Felipe Alde, Jr. entered the detention cell to beat and maltreat the three by boxing and using karate chops on their mouths and bodies while the three were handcuffed and helpless. The three were not allowed to eat for several days. Their fellow detainees were ordered not to give food to them. Even the relatives and friends of Crispo Contado, a native of Llorente, Eastern Samar, were prohibited to see him and bring him food. The petitioners further stated that per their information, their husbands were transferred from the Llorente Municipal Jail to the Philippine Constabulary Stockade at Borongan, Eastern Samar and back. They were also informed that on September 18, 1978 at 2:00 a.m. or 3:00 a.m., a very unholy hour, their husbands were taken out of the Llorente Municipal Jail aboard an ambulance car and brought to an undisclosed, unknown and secret place somewhere in Can-avid or Oras, Eastern Samar. Such ambulance car of the Llorente Community Hospital and Health Center (medicare) was driven by respondent Eufemio Bormate upon instructions of Roberto Tan, Jr., the mayor's brother and was escorted by two jeeploads of PC soldiers. Petitioners expressed their fear that in such unknown, undisclosed and secret place, their husband might have already been liquidated without mercy and justice. On the same date that the petition was filed on November 20, 1978, we issued the writ requiring respondents to make a Return and to hear the petition on November 29, 1978. The respondents filed their separate returns 1which alleged in substance that they could not comply with the writ and present the persons of the detainees as they had been released on the very same day of their arrest, September 13, 1978 at 8:00 p.m.

After hearing the parties on November 29, 1978 the court required counsel for respondents to file, if they wished, a proper return of the writ to counter the allegations in the petition and counsel for petitioners to file a reply or traverse to respondents' separate returns as well as to submit any document or affidavits specifically dealing with the factual issue of whether or not the three persons arrested on September 13, 1978 and whose whereabouts and release were sought in the petition at bar were indeed released on the same day at 8:00 p.m. as alleged in the returns. In their separate amended returns, 2 respondents denied the material allegations of the petition stating that they (respondents) merely invited the three missing persons for questioning and reiterated that they had been released on the same day on September 13, 1978 at 8:00 p.m. Respondents prayed that the petition be dismissed for being moot and academic.

Petitioners, in their reply to the separate amended returns, 3 stated that the subject persons were never released on September 13,1978 or on any day thereafter as shown by the affidavits of one Diosdado Camora and one Diomedes Bono (Annexes "A" and "B", Reply) who stated that they saw Crispo Contado, one of the detainees at the municipal jail of Llorente, Eastern Samar on September 14 and 15, 1978. Petitioners' counter had interviewed and talked with respondent Lt. Col. Piccio who told him

that he (Piccio) had recommended the release of the detainees two nights after or on September 15, 1978 contrary to respondents' claim that they released the subject persons on September 13, 1978. Petitioners averred that if their spouses had been truly released, they would have certainly gone home to them and their children. Petitioners further stated that respondents had not produced the bodies of the detainees, neither had they offered a valid excuse not to produce them and prayed that the respondents be adjudged guilty of contempt and be imprisoned and fined.

At the resumpttion of the hearing on December 1, 1978, the Court continued to interpellate respondents Piccio and Lilio Borja as well as Messrs. Diosdado Camora and Diomedes Bano who affirmed their statements in their affidavits (Annexes "A" and "B" reply) and resolved, among others, to direct the Chief, Philippine Constabulary thru Major Benito Y. Custodio to hold respondents Lt. Col. Piccio, Cpl. Lilio Borja and Beneficto (Dicky) Cernal in Metro Manila until further orders from the Court and to direct NBI Director Jolly Bugarin to take the alleged driver of the ambulance respondent Eufemio Bormate under protective custody and to conduct an investigation as to his alleged participation in spiriting away the three detainees to an undisclosed place. The three (3) respondents who were under PC custody were nevertheless allowed upon motion to be with their respective families during the holidays by then Chairman of the First Division, now the Chief Justice, in an order dated December 28, 1978 provided that they returned and were held back in Metro Manila from January 8,1979 and thereafter . 4 On December 11, 1978, respondent Eufemio Bormate filed a manifestation of waiver with motion to lift order of protective custody; 5 On December 13, 1978, the Director of the National Bureau of Investigation wrote the Court a letter stating that efforts exerted by agents of his office to locate and place under protective custody the person of Eufemio Bormate yielded negative results, as persons knowledgeable of his whereabouts were either hostile or uncooperative and transmitted a copy of the Agents' Report for the Court's information and proper action. 6

On January 3, 1979, the Court Resolved among others to deny the prayer in the manifestation of waiver with motion to lift order of protective custody personally filed by respondent Eufemio Bormate with the assistance of his counsel and to require said counsel to explain why he should not be held in contempt of court or disciplinarily dealt with for obstructing the implementation of the Court's resolution of December 1, 1978 and the investigation therein ordered to be conducted as to Bormate's alleged participation in the alleged transporting and killing of the detainees subject of the petition at bar and to produce the person of Bormate before the NBI Director or agents-in-charge of the case, both within 5 days from notice hereof. 7 Said lawyer complied when he filed his explanation and compliance 8 and produced on January 12, 1979 at around 3:30 p.m. the person of Eufemio Bormate before NBI Director Jolly Bugarin and Agent Antonio A. Reyes.

Meanwhile, Administrative Case No. 78-33 for grave misconduct was filed against respondent Lilio Borja and Benedicto Cernal with the National Police Commission of the Ministry of National Defense, 9 the investigation of which was conducted by the Hearing Officer of the NAPOLCOM at its headquarters here in Metro Manila instead of in Camp Asedillo, Borongan, Eastern Samar. 10 On January 19, 1979, Assistant Commissioner Alfredo G. Pagulayan of the Inspection, Investigation and Intelligence Branch of the National Police Commission filed a letter stating that their office was directed by then Minister of National Defense Juan Ponce Enrile to conduct a thorough investigation on the alleged involvement of Mayor Rufilo Tan of Llorente, Eastern Samar and some members of the Police station thereafter in the mysterious disappearance of Crespo Contado, Jaime Tizon and Cesar Razon and requesting that an order be issued directing that Eufemio Bormate who was then under NBI custody be escorted and accompanied to their office for interrogation/interview. 11 This was granted in the resolution of January 19, 1979. 12 Respondent Cpl. Lilio Borja and Benedicto (Dicky) Cemal who were then under PC custody were also escorted/accompanied as requested to the Commissioner for interrogation/investigation at the scheduled dates and time . 13

In the comment 14 filed by respondent Piccio on the declarations of Diomedes Bano and Diosdado Camora in open court of December 1, 1978, he stated that these two are not telling the truth. Said comment was adopted by respondents Lilio Borja and Benedicto Cernal.

On March 24,1979, respondent Eufemio Bormate, thru counsel, filed a motion to lift order of protective custody. 15The Court, acting on said motion, required the Director of the National Bureau of Investigation to comment on said motion and to submit a status report on its investigation. 16 In the same resolution, the Court also directed Major General Fidel V. Ramos, then Chief of the Philippine Constabulary and Director General, Integrated National Police and Brig. Gen. Antonio P. Uy, Commanding General, CIS to submit their report of the thorough investigation conducted by them as per their Return of November 29, 1978. In a letter dated April 10, 1979, the Director of the National Bureau of Investigation offered objection to Eufemio Bormate's motion on grounds of investigative necessity. 17 Attached to said letter are copies of their Agents' self- explanatory status reports dated 5 and 10 April, 1979 on the investigation conducted pursuant to the resolution of 1 December 1978, General Ramos and Brig. Gen. Antonio Uy, through Col. Santiago 0.Tomelden, complied with said resolution when it submitted its initial report dated April 27, 1979. 18

In the meantime, in the January 7, 1979 issue of the TimesJournal, page 1 19 under the heading "Marcos sacks Eastern Samar town mayor" it was stated that then President Marcos has ordered the ouster of the mayor of Llorente, Eastern Samar, for his alleged participation in the unlawful arrest, arbitrary detention, maltreatment and disappearance of three Manila fish merchants three months ago.

On May 28, 1979, the Court Resolved among others to require Commissioner Alfredo Pagulayan of the NAPOLCOM to submit within ten (10) days from notice, a copy of the report to the NAPOLCOM as reported in the Philippine Daily Express issue of February 22, 1979, page 1 under the heading "Murdered Trader"s Body Dug Up" carrying the by-line of Ros Manlangit stating that "the remains, said to be those of Manila businessman Jaime Tizon, were discovered in a remote area in barangay Calbang in Can-avid town, about 100 kilometers from Llorente, in the town where the three were held earlier by the police and further reporting that "Commissioner Alfredo Pagulayan of the NAPOLCOM said the grave digger (name withheld) admitted having buried Tizon"s body "on orders of certain persons." 20 In compliance with the above resolution, Commissioner Pagulayan stated that after digging the spot pointed to as the alleged grave, the team, unearthed what Dr. Marcial B. Adal, Municipal Health Officer of Can-avid certified as: part of the scalp hair; whitish substance with bad peculiar odor probably melted fatty tissues and cartiliges; blackish substances with a foul odor probably melted muscles substances and blood and pubic hair. The health officer was very certain that the remains found and mentioned above were parts and accessory of a human organism. 21 Commissioner Pagulayan further stated that on January 12 and 13, 1979, the statements of the two grave diggers, Salvador Rebay and Peperion Hubayan, were taken down and they alleged in substance that sometime in the month of September or October, 1978, at Sitio Calbang, Barangay Carolina, Can-avid, Eastern Samar, after hearing a burst of gunfire, they were called by a group of unidentified soldiers and required to Identifya person who had gunshot wounds in his body and lying dead. Having failed to ascertain the Identity of the dead man, the two and some other persons who were around at the time were ordered by the said group of unidentified soldiers to dig up a hole and bury him: they obeyed. One Salvador Rebay further alleged that the male dead person had a mestizo feature. He further stated that one Leo Rebay, one of the alleged grave diggers, gave his statement on January 24, 1979 and he substantially corroborated the statements of Salvador Rebay and qqqPeperion Hubayan. When shown a line-up of photographs, Leo Rebay readily picked up the

picture of one Jaime Tizon and pointed to it as that of the very person whom they buried in Sitio Calbang, Barangay Carolina, Can-avid, Eastern Samar sometime in the month of October 1978. This report was noted in the resolution of June 22, 1979. On June 4, 1979, respondent Lt. Col. Benito D. Piccio filed an urgent ex-parte motion for permission to leave Metro Manila and go home to Cebu City to attend to his daughter who was then in the hospital. 22 This motion was granted in the resolution of June 6, 1979 provided he returned after ten days and reported back to the Chief of the Philippine Constabulary in accordance with the court's resolution of December 1, 1978. 23

On December 19, 1979, Brig. Gen. Prospers A- Olivas then Acting Chief of Constabulary and Acting Director General of the Integrated National Police filed a letter 24 addressed to this Court on behalf of respondents Lt. Col. Piccio, Cpl. Lilio Borja and Pat. Benedicto (Dicky) Cernal who requested that their custody be transferred from the Chief of Philippine Constabulary through Major Benito Y. Custodio to the Regional Commander, PC Regional Command No. 8 and the restriction of their movement to Metro Manila be enlarged to include Camp September 21st, Leyte, where the Headquarters of PC Regional Command No. 8 is stationed. This request was granted in the Resolution of January 14, 1980 and the Court also Resolved to Require the Chief of the P.C. and Director General, INP; National Police Commisision, Ministry of National Defense; and the Director, NBI to submit their final reports of their respective" investigations conducted on the disappearance of Crispo Contado, Cesar Razon and Jimmy Tizon. 25

On January 11, 1980, respondent Lt. Col. Benito D. Piccio filed an urgent ex-parte motion for the Lifting of the order holding him in Metro Manila in order that he could seek preferential assignment in Region 7 with station in Cebu City, to enable him to resettle his family in Minglanilla before his retirement on May 30, 1980. 26 This was granted in the resolution of February 1, 1980. 27 In the report of Santiago O.Tomelden, Colonel, JAGS (PC) GSC Constabulary Judge Advocate, for the Chief of Constabulary/Director General, Integrated National Police and the Commanding General, Criminal Investigation Service, Philippine Constabulary, he stated that the result of his investigation showed that there is no evidence which would warrant prosecution of any persons or at least pinpoint responsibility for the alleged disappearance of Crispo Contado, Jimmy Tizon and Cesar Razon. 28 In the contrary investigation Report of the Inspection, Investigation and Intelligence Branch of the National Police Commission, Ministry of National Defense, thru Assistant Commissioner Alfredo G. Pagulayan, it was stated, however, that on the basis of its findings, it would appear that Mayor Rufilo Tan, Dr. Roberto Tan, Jr., Castolo Ocampo, Isaias Copada, Pat. Benedicto Cernal, Pat. Jose Alde, Pat. Privado Alido Pat. Jorge Silla, Pat. Eden Boco and Pat. Romeo Escoto and PC Capt. Berting Casillana were probably liable for murder under Art. 248 of the Revised Penal Code; that the killing of Jimmy Tizon and his two other companions almost resulted in a perfect crime that the precision in carrying out the plot was almost perfect; that the arrest, detention, maltreatment, the use of government personnel and equipment and the attempt to mislead government agents were only some of the circumstances that strengthened the suspicion that influential persons, military and/or civilians, were involved in the killing; and it recomendedthat all the suspects, namely Mayor Rufilo Tan, Dr. Roberto Tan, Castolo Ocampo; Isaias Copada, Pat. Benedicto Cernal, Pat. Jose Alde, Pat. Privado Alido, Pat. Jorge Silla,Pat. Eden Boco, and Pat. Romeo Escoto, who were positively Identified by witnesses as responsible in connection with the illegal arrest, detention, maltreatment and killing of Jaime Tizon be arrested and detained; that PC Captain Betting Casillano of the PC Command in Can-avid, Eastern Samar who was Identified by witnesses to be the Officer ordering the burial of Jaime Tizon in Sitio Carolina, Can-avid, Eastern Samar, be likewise arrested and detained; and that steps should be taken to assure the safety of witnesses. 29

In the finall report of the National Bureau of Investigation, it stated that the involvement of respondent Bormate in the instant case was established by evidence. 30 On February 20, 1980, the Court resolved to furnish the Minister of Justice a copy of the aforesaid reports for the criminal prosecution of the officials and persons involved on the basis of the evidence collated by the National Police Commission and National Bureau of Investigation. 31 On May 29, 1981, an amended information for murder was filed with the Sandiganbayan against the herein respondents, more specifically Criminal Case No. 2679 entitled "People of the Philippines vs. Rufilo L. Tan, et al." On January 29, 1982, the First Division of the Sandiganbayan 32 rendered its decision in the aforesaid case wherein it found respondents Rufilo L. Tan, Dr. Roberto L. Tan, Jr., Lilio G. Borja, Benedicto Cernal, Isaias A. Copada and Castulo A. Campo guilty beyond reasonable doubt of the offense of Less Serious Physical Injuries. The remaining respondents were acquitted for insufficiency of evidence. The pertinent portion of the 72-page decision is hereunder reproduced:

For any of the accused to be held liable for the death of Tizon in Can-Avid, it is, therefore, imperative and essential that conspiracy between them and those who filled Tizon be proven, which proof of conspiracy is quite separate and different from that which the prosecution has shown to have existed between and among those who participated in the maltreatment of Tizon and his companions. Unfortunately, the prosecution's evidence is bereft of such proof of conspiracy between those who liquidated Tizon in Can-Avid and the accused who are charged with having detained and maltreated him in Llorente. Even Bormate, whose participation in the transport of the three suspects to Can-Avid and Escoto, who is claimed to have been present during the liquidation of Tizon, cannot be adjudged as co-conspirators in the latter's killing in the absence of any fact or circumstance that they performed any overt act in furtherance of such conspiracy to kill Tizon or to conceal his remains. For conspiracy to be adjudged against the accused herein, there should be proof of community of design, concert of mind, unity of purpose and execution, because mere knowledge, acquiescence or approval, even presence at the scene of the crime is not enough to constitute one a party to a conspiracy. Prescinding therefrom, the Court must, therefore, hold that none of the accused herein can be held liable, individually or collectively, for the death of Jimmy Tizon in Can-Avid. Liability for such a heinous crime, as well as for the liquidation of Cesar Razon and Crespo Contado, must be laid at the feet of other persons who were pointed to by the prosecution to have been led by one PC Sgt. Berting Casillano, acting presumably under orders of their superiors for purposes which are not reflected on the record and which should be ventilated in other appropriate proceedings. That the prosecution failed in its primary mission to secure the conviction of those who were responsible for Tizon's death need not be belabored, considering the legal restraints under which it proceeded, occasioned by the "split jurisdiction" which resulted from the exclusion of military personnel in the filing of the instant charge, although their participation clearly appears from the facts gathered by the NAPOLCOM team during its investigation (exhibits H-2 to H-182, inclusive). Accordingly, the exact nature of the liability of the accused herein, if any, must be reckoned only with respect to the incidents described and testified to by the prosecution witnesses as having occurred in the afternoon of September 13, 1978 inside the offices of Sub-Station Commander Lilio Borja and Mayor Rufilo Tan inside

the municipal building of LIorente. As proven by the prosecution's evidence, Jimmy Tizon was picked-up, together with Cesar Razon, at Mamerta Cruz" carinderia at around 4:30 o'clock in the afternoon of September 13, 1978, by accused Patrolmen Abraham Codoy, Privado Alido and Eden Boco. They were brought by the latter to the municipal building where they were joined later by Crespo Contado who was picked up at his uncle's house by accused Patrolmen Alido, Boco, Jose Alde and Gonzalo Borja. Tizon and his companions were then maltreated (third degreed) inside the office of the station commander, after they were told by accused Pat. Benedicto Cernal to undress and face the wall. After questioning by Cernal as to the suspect's purpose in coming to Llorente resulted in their claims of a business trip, Cernal got and boxed Contado on the ribs, followed by a knee blow. Accused Dr. Roberto Tan, Jr. and Castulo Campo arrived and both of them rained continuous blows on the three suspects, including Tizon who rolled on the floor as a result of the beating. Accused mayor Rufilo Tan then arrived with a gun and because his questions to the suspects did not satisfy him, fired a shot between Razon's thighs after which he ordered Pat. Alde, Cemal, Alido, Codoy and Jorge Silla to bring the suspects to his office located two doors away. Thereat, Mayor Tan resumed his questioning of the suspects and, because he did not like their answers, he struck the throats of Contado, Razon and Tizon with the tip of his fingers and stomped on them when they rolled on the ground. Dr. Tan, Jr., then came in, holding a piece of wood, 2 x 2 inches, together with Campo. Dr. Tan hit Contado on the left eye and body with the club, causing Contado's left eye to almost pop out, after which he administered the same beating on Tizon and Razon, causing Tizon to fall unconscious on the floor. All the while, despite Razon's pleas, Mayor Tan sat on his table smoking a cigarette, telling the suspects to tell the truth. Thereafter, accused Isaias Copada came in and also administered fist blows on Razon, Tizon and Contado. The foregoing proven facts indubitably reveal the existence of a conspiracy between several accused, namely, Mayor Tan, Station Commander Lilio Borja, Patrolmen Benedicto Cernal, Dr. Roberto Tan, Jr., Castulo Campo and Isaias Copada to maltreat Tizon and his companions. Such maltreatment had no other purpose than to compel said suspects to admit that they had come to Llorente for illegal or improper motives, overlooking the obvious and indubitable fact that said suspects had come to Llorente purposely for business and that even one of them is a native of said town. The above-named accused having acted in pursuance of a common purpose or objective, each doing a part so that their acts, though apparently independent, were in fact connected and cooperative thus indicating a closeness of personal association and a concurrence of sentiment, then the Court is justified in holding that they should be held liable as co-conspirators (People vs. Cabrera 43 Phil. 65: People vs. Carbonnel, 48 Phil. 869, People vs. Caballero, 64 Phil. 586). The community of interest due to relationship, the absence of immediate and sufficient cause or provocation, the point of attack, and the obvious plan to deal separately with the complainant are facts and circumstances from which the unity of design that characterizes conspiracy can be inferred without need of direct proof (People vs. Co Unjieng, 61 Phil. 236), and it is enough that from the individual act of each accused, it may be reasonably deduced that they had a common plan to commit the felony (People vs. Catao, G.R. No. 9532, April 29,1960). It is immaterial that the details of the common plan do not appear in evidence as it is enough that each accused pursued the same objective and achieved it through their collective acts (People vs. Mitra, No. L-13339, June 30, 1960).

While thus holding that the above-named accused are liable, collectively, for the maltreatment Tiizon, however, such liability cannot be made to fall under the provisions of article 235 of the Revised Penal Code, qqqsinee the offense described and penalized therein can only be committed upon Persons y confined in a penal establishment either as convicts or as detention prisoners. Under Article 235, it is essential that the maltreated prisoner be under the charge of the officer maltreating him and that the former has either been committed or actually placed injail or in prison (People vs. Punzalan, 99 Phil. 259; People vs. Baring, 37 O.G. 1367; People vs. Oliva, 95 Phil. 962; People vs. Del Rosario, 110 Phil. 476). The liability, therefore, of said accused can only be made to fall under Article 265 of the Revised Penal Code, for Less Serious Physical Injuries, the evidence for the prosecution having clearly and satisfactorily shown that the victim herein, Jimmy Tizon suffered physical injuries during his maltreatment on September 13, 1978 while inside the offices of the station commander and the mayor, respectively, resulting in injuries to his forearms, his jaw, cheeks and throat. The nature of those injuriess were testified to by prosecution petition witnes Fidel Loste, Leo Rebay and Ponciano Geroy. Said injuries were still evident on the person of Tizon, as testified to by Geroy who declared that when he saw Tizon for the first time at the Can-Avid PC detachment camp in the third week of September, 1978, Tizon was limping and had a swollen jaw and swollen cheeks and could hardly swallow his food, while Rebay declared that when Tizon was buried in his grave, the forearms appeared broken when he raised the hands of Tizon over his breast preparatory to burial. Since the injuries were inflicted on September 13, 1978 and were still evident at the time Tizon was brought to the Can-Avid PC detachment on September 18, 1978 and also up to two weeks, later or in the early part of October 1978, then the duration of said injuries is less than one month, hence, Properly falling under Article 265 of said Code. While it may be contended that the victim was not presented to testify as to the fact of the infliction of injuries upon his person or that no physician was presented to testifyy on said injuries and the fact of incapacity for labor or the necessity of medical attendance for the period required under Article 265, yet, on the other hand, from the very nature and circumstances of the case, the prosecution cannot be legally required to submit such kind of evidence, considering that the victim had disappeared and had in fact been liquidated. Thus, the Court must have to rest on evidence of corpus delicti, or the fact of the commission of the offense, and on this point, the Court finds and holds that the evidence on record fully justifies and supports the fact of corpus delicti. ... Consistent with the foregoing doctrines, this Court finds and holds, therefore, that the fact of infliction of the injuries on Tizon by the above- named accused has been proven by the prosecution in evidence, as well as the nature of the wounds, the length or duration for said injuries to heal and, finally the perpetrators of the offense, those fully establishing corpus delicti. Although the charge in the instant case is for Murder, a finding of guilt for the offense of Less Serious Physical Injuries is proper and in order, considering that the latter offense is necessarily included in the former inasmuch as the essential ingredients of Less Serious Physical Injuries constitute and form part of those constituting the offense of Murder (Rule 120, section 5). In the same manner, the accused may be convicted of slight, Less Serious or Serious Physical Injuries in a prosecution for Homicide or Murder, inasmuch as the infliction of physical injuries could lead to any of the latter offenses when carried to its utmost degree, despite the fact that an

essential requisite of the crime of Homicide or Murder is intent to kill but which is not required in a conviction for physical injuries. Similarly, a person accused of Attempted or Frustrated Murder or Homicide, wherein intent to kill is alleged, may, as the case may be, be convicted of physical injuries only, thus connoting that there was no intent to kill hence, the crime could not be elevated to the category of an attempt or frustration of such offenses of homicide or murder. Conformably, therefore, with the foregoing findings and conclusions, the liability of accused Rufilo Tan, Dr. Roberto Tan, Jr., Station Comander Lilio Borja, Patrolmen Benedicto Cernal, Isaias Copada and Castulo Campo for the crime of Less Serious Physical Injuries must be adjudged. Inasmuch as said accused are all public officers, and, in the commission of the offense charged, they acted with abuse of their public positions and, likewise, took advantage of their numerical superiority and/or superior strength in the infliction of these injuries on the victim, Jimmy Tizon, then perforce, the Court finds that said aggravating circumstances must be taken into account in the imposition of the corresponding penalty. The record, however, showing that said accused had voluntarily surrendered, then such mitigating circumstance should be considered in their favor. On the other hand, with respect to accused Gonzalo Borja, Eufemio Bormate and Patrolmen Abraham Codoy, PrivadoAlido, Jose Alde, Eden Boco, Jorge Silla, Pio Gopole, Felipe Alde, Jr. and Romeo Escoto, against whom the evidence is insufficient to warrant a finding of guilt, their acquittal must necessarily be adjudged. WHEREFORE, accused Rufilo Tan y Loste, Dr. Roberto Tan, Jr. y Loste, Lilio Borja y Grafil, Benedicto Cernal y Alde, Isaias Copada y Alde and Castulo Campo y Averia are hereby found GUILTY beyond reasonable doubt of the offense of Less Serious Physical Injuries, as defined penalized under Article 265 of the Revised Penal Code, as co-principals thereof, and there being duly proven the aggravating circumstances of taking advantage of their official positions and superior strength, offset only by the mitigating circumstance of voluntary surrender, hereby sentences each of them to suffer a straight imprisonment of SIX (6) MONTHS of arresto mayor, to indemnify, jointly and severally the heirs of Jimmy Tizon in the amount of Pl,500.00, representing moral damages, P1,500.00 as exemplary damages, and to pay the cost of this action proportionately. Accused Gonzalo Borja y Grafil, Eufemio Bormate y Bade and Patrolmen Abraham Codoy y Conrada, Privado Alido y Avendano, Jose Alde y Codoy, Eden Boco y Bertos, Jorge Silla y Calzado, Pio Gopole y Albor, Felipe Alde, Jr. y Coritana and Romeo Escoto y Candido are hereby acquitted for insufficiency of evidence, with costs de oficio. The bail bonds posted for their provisional liberty are hereby cancelled and their bondsmen thereunder relieved of any further liability thereon. 33 This decision of the Sandiganbayan became final and executory after this Court denied the convicted respondents' petititions for review in L-60592 entitled "Rufilo L. Tan vs. Sandiganbayan" and L-60701 entitled"Roberto L. Tan, Isaias A. Copada, Lilio G. Borja, Benedicto A. Cernal and Castulo A. Campo vs. Sandiganbayan"on October 21, 1982. Their motion for reconsideration of the resolution of October 21, 1982 was denied in the resolution of December 3, 1982 and entry of final judgment was made on January 7,1983. The Sandiganbayan decision, lenient as it was, proves beyond per adventure the falsity of the incredible claim by res respondents in their returns and amended returns in the case at bar that they released the three detainees-victims on the very same night of their arrest on September 13,1978.

They thereby flaunted the authority of this Court; brazenly perjured themselves in swearing to their false returns; failed to give respect due to justice and truth and created and placed obstacles to the administration of justice and prevented the resolution of this case with the promptness which its very nature required, involving as it did, the liberty and lives of the three victims. Atty. Lutgardo B. Barbo, counsel for petitioners, merits the Court's commendation for his fearless and unrelenting pursuit of the cause of truth and justice for the tragic victims. He pleaded in his reply to the separate amended returns thus: a) People do not just vanish into thin air. One, perhaps, may disappear without a trace, two, may do the same, but a group of three responsible married men with wives and small children anxiously waiting for them, is simply just too much. For this reason, petitioners have no other recourse but to go to court because they are convinced of the justness of their cause; they certainly are not the type of people, what with their limited education and financial resources, who will go to court merely to harass town officials of a faraway place, or maliciously annoy the whole provincial Philippine Constabulary/Integrated National Police Command of Eastern Samar. b) Then there is also the unnatural behavior, if not dereliction of responsibility, of the town officials led by the mayor and the Sub-Station Commander who admitted before this Honorable Court that they did not inquire about the whereabouts of the three innocent men whom they wrongly suspected of being "pirates" even after their wives arrived from Manila anxiously looking for their long missing husbands. One can only surmise that the said mayor and the sub-station commander know exactly what happened to the three innocent men. He prayed that respondents be held and punished for contempt of court pursuant to the Court's power and authority to punish for contempt as an incident essential to the execution and maintenance of judicial authority. It is beyond doubt the bounden duty of respondents having custody of a detained person to respect and obey a writ of habeas corpus issued by a court or judge having jurisdiction in the premises and properly served upon them, and every person who unlawfully disobeys the Court's commands or unlawfully resists or counsels' resistance to its execution is in contempt of court and may be summarily punished therefor. Disobedience to the writ may take the form of neglecting or refusing to produce the person whose presence is sought by the writ, of failing to make a return, of making a false or evasive return, or of refusing to obey the final order or judgment entered in the proceedings. What the Court held in the early case of Villavicencio v. Lucban 34 still holds true as ever: "When one is commanded to produce a certain person and does not do so, and does not offer a valid excuse, a court must vindicate its authority, adjudge the respondent to be guilty of contempt, and order him either imprisoned or fined."

A punishment of contempt in this case is called for in order to vindicate the dignity and integrity of the writ of habeas corpus and to impress upon the respondents and all others the serious consequences of disobedience or willful evasion of the great writ of liberty. It is likewise necessary to maintain the authority of the court and to vindicate its honor and dignity whenever it is outraged. The Court herein exercises this power on a corrective and not a retaliatory or vindictive principle (though it could impose a heavier penalty and order respondents" imprisonment for a substantial period of time) and therefore finds respondents guilty of contempt of court and sentences each of them to pay a fine of One Thousand Pesos (P l,000.00) as hereinbelow ordered. But the respondents must face criminal charges for their perjured returns to the writ, as set forth hereinabove.

ACCORDINGLY, the Court, finding respondents guilty of contempt of court, sentences each of them to pay a fine of One Thousand Pesos (P1,000.00) payable within ten (10) days from notice or to suffer ten (10) days imprisonment should they fail to pay such fine within the aforesaid period. The Court refers this case to the Secretary of Justice for the criminal prosecution of the respondents for perjury and other charges, including murder as may be warranted in the premises, and of other parties not herein impleaded led by then PC Sergeant Berting Casillano and pointed to by the prosecution as responsible for the death in Can-avid of Jimmy Tizon and the two other hapless victims Cesar Razon and Crespo Contado, as stated in the Sandiganbayan's decision of January 29, 1982 in Criminal Case No. 2679 thereof (supra, pp. 15-17). This decision is immediately executory. * SO ORDERED. Yap, Fernan, Narvasa, Melencio-Herrera, Cruz, Paras, Feliciano, Gancayco, Padilla, Bidin, Sarmiento and Cortes, JJ., concur. Griño-Aquino, J., took no part. Gutierrez, Jr., J., is on leave.

Footnotes 1 Pages 34-53 and 117-131, Rollo 2 Pages 64-95, Rollo. Pages 3 Pages 96-116, Rollo. 4 Page 180, Rollo; the case had been assigned to the First Division, then composed of Teehankee, J., chairman, and Felix v. Makasiar, Guillermo S. Santos (who was designated to sit in the First Division), Ramon C. Fernandez and Juvenal K. Guerrero, JJ., members. 5 Pages 184-187, Rollo.6 6 Pages 188-191, Rollo. 7 Page 201, Rollo. 8 Pages 229-228, Rollo. 9 Page 219, Rollo. 10 Pages 223 and 270, Rollo. 11 Page 239, Rollo.

12 Page 241, Rollo. 13 Pages 256-257, Rollo. 14 Pages 206-217, Rollo. 15 Pages 277-280, Rollo. 16 Page 281, Rollo. 17 Pages 28.3-292, Rollo. 18 Pages 294-361, Rollo. 19 Page 366, Rono. 20 Page 367, Rollo. 21 See Folder attached to Rollo, marked "Napolcom Report." 22 Pages 373-375, Rollo. 23 Page 400, Rollo. 24 Pages 418-425, Rollo. 25 Page 426, Rollo. 26 Pages 428-431, Rollo. 27 Page 447, Rollo. 28 Pages 448-456, Rollo. 29 Pages 457-491, Rollo. 30 Pages 432-446, Rollo. 31 Page 492, Rollo. 32 Pamaran, PJ, Escareal, J. ponente, and Molina, J. 33 Pages 61-72 of the decision found on pp. 112-123 of the Record of G.R. No. 60592 of the Court. 34 39 Phil. 778 (1919) * In immediately executory decisions, no extension of time to file motion for reconsideration shall be granted.

FIRST DIVISION

[G.R. No. 111876. January 31, 1996]

JOHANNA SOMBONG, petitioner, vs. COURT OF APPEALS and MARIETTA NERI ALVIAR, LILIBETH NERI and all persons holding the subject child ARABELA SOMBONG in their custody, respondents. SYLLABUS 1.

REMEDIAL LAW; SPECIAL PROCEEDINGS; HABEAS CORPUS; PURPOSE. In general, the purpose of the writ of habeas corpus is to determine whether or not a particular person is legally held. A prime specification of an application for a writ of habeas corpus, in fact, is an actual and effective, and not merely nominal or moral, illegal restraint of liberty. ―The writ of habeas corpus was devised and exists as a speedy and effectual remedy to relieve persons from unlawful restraint, and as the best and only sufficient defense of personal freedom. A prime specification of an application for a writ of habeas corpus is restraint of liberty. The essential object and purpose of the writ of habeas corpusis to inquire into all manner of involuntary restraint as distinguished from voluntary, and to relieve a person therefrom if such restraint is illegal. Any restraint which will preclude freedom of action is sufficient.‖

2.

ID.; ID.; ID.; PROPER LEGAL REMEDY. - Although the Writ of Habeas Corpus ought not to be issued if the restraint is voluntary, we have held time and again that the said writ is the proper legal remedy to enable parents to regain the custody of a minor child even if the latter be in the custody of a third person of her own free will. It may even be said that in custody cases involving minors, the question of illegal and involuntary restraint of liberty is not the underlying rationale for the availability of the writ as a remedy; rather, the writ of habeas corpus is prosecuted for the purpose of determining the right of custody over a child.

3.

ID.; ID.; ID.; CHILD CUSTODY CASES; WELFARE OF THE CHILD IS THE SUPREME CONSIDERATION. - The controversy does not involve the question of personal freedom, because an infant is presumed to be in the custody of someone until he attains majority age. In passing on the writ in a child custody case, the court deals with a matter of an equitable nature. Not bound by any mere legal right of parent or guardian, the court gives his or her claim to the custody of the child due weight as a claim founded on human nature and considered generally equitable and just. Therefore, these cases are decided, not on the legal right of the petitioner to be relived from unlawful imprisonment or detention, as in the .case of adults, but on the court‘s view of the best interests of those whose welfare requires that they be in

custody of one person or another. Hence, the court is not bound to deliver a child into the custody of any claimant or of any persons, but should, in the consideration of the facts, leave it in such custody as its welfare at the time appears to require. In short, the child‘s welfare is the supreme consideration. APPEARANCES OF COUNSEL Nimfa N. Ward for petitioner. Josefin de Alban Law Office for private respondent.

DECISION HERMOSISIMA, JR., J.:

Every so‘ often two women claim to be the legitimate parent of the same child. One or the other, whether for financial gain or for sheer cupidity, should be an impostor. The court is consequently called upon to decide as to which of them should have the child‘s lawful custody. This is the very nature of this case. The child herein had considerably grown through the years that this controversy had unbearably lagged. The wisdom of the ages should be of some help, delicate as the case considerably is. The earliest recorded decision on the matter is extant in the Bible, I Kings 3. As it appears, King Solomon in all his glory resolved the controversy posed by two women claiming the same child:

“And the King said, Bring me a sword. And they brought a sword before the King. “And the King said, Divide the living child in two, and give half to the one, and half to the other. “Then spoke the woman whose the living child was unto the King, for her bowels yearned upon her son, and she said, O my Lord, give her the living child, and in no wise slay it. But the other said, Let it be neither mine nor thine, but divide it. “Then the King answered and said, Give her the living child, and in no wise slay it: she is the mother thereof.” (1 Kings, Chapter 3, Verses 25-27) King Solomon‘s wisdom, was inspired by God:

“And all Israel heard of the judgment which the King had judged; and they feared the King: for they saw that the wisdom of God was in him, to do judgment.” (Ibid., Verse 28) We do resolve the herein controversy inspired by God‘s own beloved King. The Petition for Review on Certiorari before us seeks the reversal of the decision 1 of respondent Court of Appeals2 which had reversed the decision3 of the Regional Trial Court4 which granted the Petition for Habeas Corpus filed by petitioner.

The following facts were developed by the evidence presented by the opposing parties: Petitioner is the mother of Arabella O. Sombong who was born on April 23, 1987 in Signal Village, Taguig, Metro Manila.5 Some time in November, 1987, Arabella, then only six months old, was brought to the Sir John Clinic, located at 121 First Avenue, Kalookan City, for relief of coughing fits and for treatment of colds. Petitioner did not have enough money to pay the hospital bill in the amount of P300.00. Arabella could not be discharged, then, because of the petitioner‘s failure to pay the bill. Petitioner surprisingly gave testimony to the effect that she allegedly paid the private respondents by installments in the total amount of P1,700.00, knowing for a fact that the sum payable was only P300.00. Despite such alleged payments, the owners of the clinic, Dra. Carmen Ty and her husband, Mr. Vicente Ty, allegedly refused to turn over Arabella to her. Petitioner claims that the reason for such a refusal was that she refused to go out on a date with Mr. Ty, who had been courting her. This allegedly gave Dra. Ty a reason to be jealous of her, making it difficult for everyone all around. On the other hand and in contrast to her foregoing allegations, petitioner testified that she visited Arabella at the clinic only after two years, i.e., in 1989. This time, she did not go beyond berating the spouses Ty for their refusal to give Arabella to her. Three years thereafter, i.e., in 1992, petitioner again resurfaced to lay claim to her child. Her pleas allegedly fell on deaf ears. Consequently, on May 21, 1992, petitioner filed a petition with the Regional Trial Court of Quezon City for the issuance of a Writ of Habeas Corpus against the spouses Ty. She alleged therein that Arabella was being unlawfully detained and imprisoned at No. 121, First Avenue, Grace Park, Kalookan City. The petition was denied due course and summarily dismissed,6 without prejudice, on the ground of lack of jurisdiction, the alleged detention having been perpetrated in Kalookan City. Petitioner, thereafter, filed a criminal complaint7 with the Office of the City Prosecutor of Kalookan City against the spouses Ty. Dr. Ty, in her counter-affidavit, admitted that petitioner‘s child, Arabella, had for some time been in her custody. Arabella was discharged from the clinic in April, 1989, and was, in the presence of her clinic staff, turned over to someone who was properly identified to be the child‘s guardian. In the face of the refusal of the spouses Ty to turn over Arabella to her, she had sought the help of Barangay Captains Alfonso and Bautista of Kalookan City, Mayor Asistio of the same city, and even Congresswoman Hortensia L. Starke of Negros Occidental. Their efforts to help availed her nothing. On September 4, 1992, the Office of the City Prosecutor of Kalookan City, on the basis of petitioner‘s complaint, filed an information8 against the spouses Ty for Kidnapping and Illegal Detention of a Minor before the Regional Trial Court of Kalookan City.9 On September 16, 1992, an order for the arrest of the spouses Ty was issued in the criminal case. Facing arrest, Dra. Ty disclosed the possibility that the child, Arabella, may be found at No. 23 Jesus Street, San Francisco del Monte, Quezon City. The agents of the National Bureau of

Investigation went to said address and there found a female child who answered to the name of Cristina Grace Neri. Quite significantly, the evidence disclosed that the child, Cristina, had been living with respondent Marietta Neri Alviar since 1988. When she was just a baby, Cristina was abandoned by her parents at the Sir John Clinic. On April 18, 1988, Dr. Fe Mallonga, a dentist at the Sir John Clinic and niece of both Dra. Ty and respondent Alviar, called the latter up to discuss the possibility of turning over to her care one of the several abandoned babies at the said clinic. Respondent Alviar was told that this baby whose name was unknown had long been abandoned by her parents and appeared to be very small, very thin, and full of scabies. Taking pity on the baby, respondent Alviar and her mother, Maura Salacup Neri, decided to take care of her. This baby was baptized at the Good Samaritan Church on April 30, 1988. Her Certificate of Baptism10 indicates her name to be Cristina Grace S. Neri; her birthday to be April 30, 1987; her birthplace to be Quezon City; and her foster father and foster mother to be Cicero Neri and Maura Salacup, respectively. Respondent Alviar was invited by the National Bureau of Investigation for questioning on September 22, 1992 in the presence of Dra. Ty and petitioner. Cristina was also brought along by said respondent. At that confrontation, Dra. Ty could not be sure that Cristina was indeed petitioner‘s child, Arabella. Neither could petitioner with all certainty say that Cristina was her long lost daughter. On October 13, 1992, petitioner filed a petition for the issuance of a Writ of Habeas Corpus with the Regional Trial Court11 of Quezon City. The trial court conducted a total of eight (8) hearings, for the period, from October 28, 1992 to December 11, 1992. On January 15, 1993, it rendered a decision granting the Petition for Habeas Corpus and ordering respondent Alviar to immediately deliver the person of Cristina Grace Neri to the petitioner, the court having found Cristina to be the petitioner‘s long lost child, Arabella. The trial court, in justification of its conclusions, discussed that:

“On the issue of whether or not the minor child, in question, is the daughter of the petitioner, there seems to be no question, to the mind of this Court, that the petitioner, is, indeed, the mother of the child, registered by the name of Arabella O. Sombong, per her Certificate of Birth x x x and later caused to be baptized as Cristina Grace S. Nery (sic) x x x For, this child is the same child which was delivered by the Sir John Clinic at Kalookan City, owned by Dra. Carmen Ty, to Dra. Fe Mallonga and later given to the custody of the respondents. In fact, Dra. Carmen Ty, in her testimony admitted that the petitioner is the mother of Arabella xxx On the question of whether or not the petitioner has the rightful custody of the minor child, in question, which is being withheld by the respondents from her, as will authorize the granting of the petition for habeas corpus x x x there is no question that the minor x x x is only about five (5) years old x x x it follows that the child must not be separated from the mother, who is the petitioner, unless, of course, this Court finds compelling reasons to order otherwise.

Heretofore, under the New Civil Code of the Philippines, the compelling reasons which may deprive the parents of their authority or suspend exercise thereof are stated. It was then provided in Article 332, supra, that: „The courts may deprive the parents of their authority x x x if they should treat their children with excessive harshness x x x or abandon them. x x x‟ (Italics supplied by the RTC) Unfortunately, the foregoing article, which was under Title XI, parental authority, was expressly repealed by Article 254 of the Family Code of the Philippines xxx xxx

xxx

xxx

It can be seen, therefore, that the words „or abandoned them‟ mentioned in Article 332 of the New Civil Code x x x is (sic) no longer mentioned in the amending (of) Art. 231 of the Family Code of the Philippines. It is clear x x x that under the law presently controlling, abandonment is no longer considered a compelling reason upon the basis of which the Court may separate the child below seven (7) years old from the mother. Conceivably, however, in paragraph 6 of Article 231, supra, the effects of culpable negligence on the part of the parent may be considered by this Court in suspending petitioner‟s parental authority over her daughter, in question x x x The question, therefore, is whether there is culpable negligence on the part of the petitioner so that her parental authority over her child, in question, may at least be suspended by this Court. This Court is not persuaded that the petitioner is guilty of culpable negligence vis-avis her daughter, in question, upon the bases of the facts adduced. For, there is no question that from April, 1988 she kept on demanding from Dra. Carmen Ty x x x the return of her child to her but the latter refused even to see her or to talk to her. Neither did Vicente Ty, the husband of Dra. Carmen Ty, respond to her entreaties to return her daughter. xxx

xxx

xxx

Besides, in the interim, while petitioner was looking for her daughter, she made representations for her recovery with Barangay Captains Alfonso and Bautista, and Mayor Asistio, all of Kalookan City, as well as with Congresswoman Hortensia L. Starke to intervene in her behalf.

It cannot be said, therefore, no matter how remotely, that the petitioner was negligent, nay culpably, in her efforts for the recovery of her daughter. xxx

xxx

xxx

Certainly, the respondents have no right to the parental authority of the child, superior to that of the petitioner as they are not her parents. They have, therefore, no right to the custody of petitioner‘s daughter. The Sir John Clinic, or Dra. Carmen Ty, have (sic) no right to deliver the child, in question, to Dra. Fe Mallonga. Neither had the latter the right and the authority to gave (sic) the child to the respondents, whose custody of petitioner‘s daughter is, consequently, illegal.‖12 Herein private respondents filed an appeal from the decision of the Regional Trial Court to the Court of Appeals. The Appellate Court took cognizance of the following issues: (1) The propriety of the habeas corpus proceeding vis-a-vis the problem respecting the identity of the child subject of said proceeding; (2) If indeed petitioner be the mother of the child in question, what the effect would proof of abandonment be under the circumstances of the case; and (3) Will the question of the child‘s welfare be the paramount consideration in this case which involves child custody. The Court of Appeals reversed and set aside the decision of the trial court, ruling as it did that:

“x x x the lower court erred in sweepingly concluding that petitioner‟s child Arabella Sombong and respondents‟ foster child Cristina Neri are one and the same person to warrant the issuance of the writ. x x x As clearly stated in the facts of this case, not even petitioner herself could recognize her own child when respondents‟ foster child Cristina Neri was presented to her before the NBI and respondent court. Dr. Carmen Ty at the NB! investigation could not also ascertain whether or not Cristina Neri and petitioner‟s missing child are one and the same person. Before the lower court, petitioner-appellee presented two physicians from the Sir John Clinic, namely, Dr. Carmen Ty and Dr. Angelina Trono to identify the child in question. But both witnesses could not positively declare that Cristina Neri is the same missing child Arabella Sombong of petitioner. Dr. Trono even declared in court that there were other babies left in the clinic and that she could not be certain which baby was given to respondents (pp. 48-49, tsn, Nov. 10, 1992). x x x Petitioner, herself, could not identify her own child, prompting the respondent court to call for child Cristina Neri to come forward near the bench for comparison of her physical features with that of her alleged mother, the petitioner (p. 32, tsn, Nov. 5, 1992). After a comparison of petitioner and Cristina Neri‟s physical features, the lower court found no similarity and to which petitioner agreed claiming that said child looked like her sister-in-law (p. 33, id.) When the lower court instructed petitioner to bring said sister-

in-law in the next hearing, petitioner stated they were not on good terms (p. 34, id.) No one, therefore, up to this time has come forward to testify as a witness in order to positively identify respondents‟ child Cristina Neri to be one and the same as petitioner‟s missing child, Arabella Sombong. xxx

xxx

xxx

The issuance of a writ of habeas corpus does not lie in this case considering that petitioner is not entitled to the custody of Cristina Neri because she is not the mother of the said child, and does not have the right to have custody over said child. xxx

xxx

xxx

We do not agree with the lower court that the ground of abandonment of a child has been repealed by Art. 231 of the Family Code for abandonment can also be included under the phrase „cases which have resulted from culpable negligence of the parent‟ (par. 2, Art. 231 of the Family Code). What can be the worst culpable negligence of a parent than abandoning her own child. This court does not believe petitionerappellee‟s explanation that she had been negotiating for the discharge of her child for the past five years. That was too long a time for negotiation when she could have filed immediately a complaint with the authorities or the courts x x x As to the issue of the welfare of the child, petitioner-appellee‟s capability to give her child the basic needs and guidance in life appear (sic) to be bleak. Before the lower court petitioner-appellee filed a motion to litigate as pauper as she had no fixed income. She also admitted that she had no stable job, and she had been separated from a man previously married to another woman. She also confessed that she planned to go abroad and leave her other child Johannes to the care of the nuns. The child Arabella Sombong wherever she is certainly does not face a bright prospect with petitioner-appellee.”13 This prompted the petitioner to file this petition. We do not find the petition to be meritorious. While we sympathize with the plight of petitioner who has been separated from her daughter for more than eight years, we cannot grant her the relief she is seeking, because the evidence in this case does not support a finding that the child, Cristina, is in truth and in fact her child, Arabella; neither is there sufficient evidence to support the finding that private respondents‘ custody of Cristina is so illegal as to warrant the grant of a Writ ofHabeas Corpus. In general, the purpose of the writ of habeas corpus is to determine whether or not a particular person is legally held. A prime specification of an application for a writ of habeas corpus, in fact, is an actual and effective, and not merely nominal or moral, illegal restraint of liberty. ―The writ of habeas corpus was devised and

exists as a speedy and effectual remedy to relieve persons from unlawful restraint, and as the best and only sufficient defense of personal freedom. A prime specification of an application for a writ of habeas corpus is restraint of liberty. The essential object and purpose of the writ of habeas corpus is to inquire into all manner of involuntary restraint as distinguished from voluntary, and to relieve a person therefrom if such restraint is illegal. Any restraint which will preclude freedom of action is sufficient.14 Fundamentally, in order to justify the grant of the writ of habeas corpus, the restraint of liberty must be in the nature of an illegal and involuntary deprivation of freedom of action. This is the basic requisite under the first part of Section 1, Rule 102, of the Revised Rules of Court, which provides that ―except as otherwise expressly provided by law, the writ of habeas corpus shall extend to all cases of illegal confinement or detention by which any person is deprived of his liberty.‖ In the second part of the same provision, however, Habeas Corpus may be resorted to in cases where ―the rightful custody of any person is withheld from the person entitled thereto.‖ Thus, although the Writ of Habeas Corpus ought not to be issued if the restraint is voluntary, we have held time and again that the said writ is the proper legal remedy to enable parents to regain the custody of a minor child even if the latter be in the custody of a third person of her own free will.15 It may even be said that in custody cases involving minors, the question of illegal and involuntary restraint of liberty is not the underlying rationale for the availability of the writ as a remedy; rather, the writ of habeas corpus is prosecuted for the purpose of determining the right of custody over a child. The controversy does not involve the question of personal freedom, because an infant is presumed to be in the custody of someone until he attains majority age. In passing on the writ in a child custody case, the court deals with a matter of an equitable nature. Not bound by any mere legal right of parent or guardian, the court gives his or her claim to the custody of the child due weight as a claim founded on human nature and considered generally equitable and just. Therefore, these cases are decided, not on the legal right of the petitioner to be relieved from unlawful imprisonment or detention, as in the case of adults, but on the court‘s view of the best interests of those whose welfare requires that they be in custody of one person or another. Hence, the court is not bound to deliver a child into the custody of any claimant or of any person, but should, in the consideration of the facts, leave it in such custody as its welfare at the time appears to require. In short, the child‘s welfare is the supreme consideration. Considering that the child‘s welfare is an all-important factor in custody cases, the Child and Youth Welfare Code16 unequivocally provides that in all questions regarding the care and custody, among others, of the child, his welfare shall be the paramount consideration.17 In the same vein, the Family Code authorizes the courts to, if the welfare of the child so demands, deprive the parents concerned of parental authority over the child or adopt such measures as may be proper under the circumstances. 18 The foregoing principles considered, the grant of the writ in the instant case will all depend on the concurrence of the following requisites: (1) that the petitioner has the right of custody over the minor; (2) that the rightful custody of the minor is being

withheld from the petitioner by the respondent; and (3) that it is to the best interest of the minor concerned to be in the custody of petitioner and not that of the respondent. Not all of these requisites exist in this case. The dismissal of this petition is thus warranted. I As to the question of identity. Petitioner does not have the right of custody over the minor Cristina because, by the evidence disclosed before the court a quo, Cristina has not been shown to be petitioner‘s daughter, Arabella. The evidence adduced before the trial court does not warrant the conclusion that Arabella is the same person as Cristina. It will be remembered that, in habeas corpus proceedings, the question of identity is relevant and material, subject to the usual presumptions including those as to identity of person.19 These presumptions may yield, however, to the evidence proffered by the parties.

“Identity may be thought of as a quality of a person or thing, - the quality of sameness with another person or thing. The essential assumption is that two persons or things are first thought of as existing, and that then the one is alleged, because of common features, to be the same as the other.”20 Evidence must necessarily be adduced to prove that two persons, initially thought of to be distinct and separate from each other, are indeed one and the same. The process is both logical and analytical.

“x x x it operates by comparing common marks found to exist in the two supposed separate objects of thought, with reference to the possibility of their being the same. It follows that its force depends on the necessariness of the association between the mark and a single object. Where a certain circumstance, feature, or mark, may commonly be found associated with a large number of objects, the presence of that feature or mark in two supposed objects is little indication of their identity, because x x x the other conceivable hypotheses are so numerous, i.e., the objects that possess that mark are numerous and therefore any two of them possessing it may well be different. But where the objects possessing the mark are only one or a few, and the mark is found in two supposed instances, the chances of two being different are „nil‟ or are comparatively small. Hence, in the process of identification of two supposed objects, by a common mark, the force of the inference depends on the degree of necessariness of association of that mark with a single object. For simplicity‘s sake, the evidential circumstance may thus be spoken of as ‗a mark.‘ But in practice it rarely occurs that the evidential mark is a single circumstance.

The evidencing feature is usually a group of circumstances, which as a whole constitute a feature capable of being associated with a single object. Rarely can one circumstance alone be so inherently peculiar to a single object. It is by adding circumstance to circumstance that we obtain a composite feature or mark which as a whole cannot be supposed to be associated with more than a single object. The process of constructing an inference of identity thus consists usually in adding together a number of circumstances, each of which by itself might be a feature of many objects, but all of which together make it more probable that they co-exist in a single object only. Each additional circumstance reduces the chances of there being more than one object so associated.‖21 In the instant case, the testimonial and circumstantial proof establishes the individual and separate existence of petitioner‘s child, Arabella, from that of private respondents‘ foster child, Cristina. We note, among others, that Dr. Trono, who is petitioner‘s own witness, testified in court that, together with Arabella, there were several babies left in the clinic and so she could not be certain whether it was Arabella or some other baby that was given to private respondents. Petitioner‘s own evidence shows that, after the confinement of Arabella in the clinic in 1987, she saw her daughter again only in 1989 when she visited the clinic. This corroborates the testimony of petitioner‘s own witness, Dra. Ty, that Arabella was physically confined in the clinic from November, 1987 to April, 1989. This testimony tallies with her assertion in her counter-affidavit to the effect that Arabella was in the custody of the hospital until April, 1989. All this, when juxtaposed with the unwavering declaration of private respondents that they obtained custody of Cristina in April, 1988 and had her baptized at the Good Samaritan Church on April 30, 1988, leads to the conclusion that Cristina is not Arabella. Significantly, Justice. Lourdes K. Tayao-Jaguros, herself a mother and the ponente of the herein assailed decision, set the case for hearing onAugust 30, 1993 primarily for the purpose of observing petitioner‘s demeanor towards the minor Cristina. She made the following personal but relevant manifestation:

“The undersigned ponente as a mother herself of four children, wanted to see how petitioner as an alleged mother of a missing child supposedly in the person of Cristina Neri would react on seeing again her long lost child. The petitioner appeared in the scheduled hearing of this case late, and she walked inside the courtroom looking for a seat without even stopping at her alleged daughter‟s seat; without even casting a glance on said child, and without even that tearful embrace which characterizes the reunion of a loving mother with her missing dear child. Throughout the proceedings, the undersigned ponente noticed no signs of endearment and affection expected of a mother who had been deprived of the embrace of her little child for many years. The conclusion or finding of undersigned ponente as a mother, herself, that petitionerappellee is not the mother of Cristina Neri has been given support by aforestated observation x x x.”22

The process of constructing an inference of identity having earlier been explained to consist of adding one circumstance to another in order to obtain a composite feature or mark which as a whole cannot be supposed to be associated with more than a single object, the reverse is also true, i.e., when one circumstance is added to another, and the result is a fortification of the corporeality of. each of the two objects the identity of which is being sought to be established, the nexus of circumstances correspondingly multiply the chances of there being more than one object so associated. This is the situation that confronts us in this case, and so the inevitable but sad conclusion that we must make is that petitioner has no right of custody over the minor Cristina, because Cristina is not identical with her missing daughter, Arabella. II Private respondents not unlawfully withholding custody. Since we hold that petitioner has not been established by evidence to be entitled to the custody of the minor Cristina on account of mistaken identity, it cannot be said that private respondents are unlawfully withholding from petitioner the rightful custody over Cristina. At this juncture, we need not inquire into the validity of the mode by which private respondents acquired custodial rights over the minor, Cristina. This matter is not ripe for adjudication in this instant petition for habeas corpus. III Private respondents have the interest of the child Cristina at heart. We find that private respondents are financially, physically and spiritually in a better position to take care of the child, Cristina. They have the best interest of Cristina at heart. On the other hand, it is not to the best interest of the minor, Cristina, to be placed in the custody of petitioner, had the petitioner‘s custody rights over Cristina been established. The Court of Appeals gave the reason:

“As to the issue of the welfare of the child, petitioner-appellee‟s capability to give her child the basic needs and guidance in life appear (sic) to be bleak. Before the lower court petitioner-appellee filed a motion to litigate as pauper as she had no fixed income. She also admitted that she had no stable job, and she had been separated from a man previously married to another woman. She also confessed that she planned to go abroad and leave her other child Johannes to the care of the nuns. The child Arabella Sombong wherever she is certainly does not face a bright prospect with petitioner-appellee “23 In the light of the aforegoing premises, we are constrained to rule that Habeas Corpus does not lie to afford petitioner the relief she seeks.

WHEREFORE, the appealed decision of the Court of Appeals in CA-G.R. SP No. 30574 is AFFIRMED IN TOTO. Costs against petitioner. SO ORDERED. Padilla (Chairman), Bellosillo, Vitug, and Kapunan, JJ., concur.

1

Decision in CA-G.R. SP No. 30574 penned by Associate Justice Lourdes K. Tayao-Jaguros and promulgated on August 31, 1993; Rollo, pp. 30-41. 2

Sixth Division with members, Presiding Justice Nathanael P. de Pano, Jr. and Associate Justices Asaali S. Isnani and Lourdàs K. Tayao-Jaguros. 3

Decision in Sp. Proc. No. Q-92-13700 penned by Judge Rodolfo A. Ortiz and promulgated on January 28, 1993, Rollo, pp. 42-51. 4

Regional Trial Court of Quezon City, Branch 89.

5

Certified Xerox Copy of the Certification of Live Birth of Arabella O. Sombong, dated April 7, 1992, issued by the Office of the Local Civil Registrar of Taguig, Metro Manila;Rollo, p. 52. 6

Order of the Regional Trial Court of Quezon City dated May 22, 1992.

7

I.S.No. 18-1506.

8

Docketed as Crim. Case No. C-40946.

9

Branch 123.

10

True Copy of the Certificate of Baptism of Cristina Grace S. Nery; Rollo, p. 55.

11

Branch 89.

12

Decision of the RTC of Quezon City in Sp. Proc. No. Q-092-13700, pp. 5-10; RoIlo, pp. 46-51.

13

Decision of the Court of Appeals, pp. 6-11; Rollo, pp. 35,37-41.

14

Villavicencio v. Lukban, 39 Phil. 778.

15

Salvana v. Gaela, 55 Phil. 680.

16

Presidential Decree No. 603, as amended.

17

Id., Article 8.

18

Family Code of the Philippines, Article 231.

19

Section 192, 39 A C.J.S., p. 99.

20

Wigmore, John Henry, Evidence in Trials at Common Law, Vol. 2, 1990 Edition, p. 385.

21

Ibid., pp. 384-3 86.

22 23

Decision of the Court of Appeals, p. 11; Rollo, p. 35. 23 Decision, supra, pp. 10-11; Rollo, pp. 41, 35.

Republic of the Philippines SUPREME COURT Manila EN BANC A. M. No. 08-1-16-SC

January 22, 2008 THE RULE ON THE WRIT OF HABEAS DATA RESOLUTION

Acting on the recommendation of the Chairperson of the Committee on Revision of the Rules of Court submitting for this Court‘s consideration and approval the proposed Rule on the Writ of Habeas Data, the Court Resolved to APPROVE the same. This Resolution shall take effect on February 2, 2008, following its publication in three (3) newspapers of general circulation. January 22, 2008. (Sgd.) REYNATO S. PUNO Chief Justice (Sgd.)

(Sgd.)

LEONARDO A. QUISUMBING Associate Justice

CONSUELO YNARES-SANTIAGO Associate Justice

(Sgd.)

(Sgd.)

ANGELINA SANDOVAL-GUTIERREZ Associate Justice

ANTONIO T. CARPIO Associate Justice

(Sgd.)

(Sgd.)

MA. ALICIA AUSTRIA-MARTINEZ Associate Justice

RENATO C. CORONA Associate Justice

(Sgd.)

(Sgd.)

CONCHITA CARPIO MORALES Associate Justice

ADOLFO S. AZCUNA Associate Justice

(Sgd.)

(ON OFFICIAL LEAVE)

DANTE O. TINGA Associate Justice

MINITA V. CHICO-NAZARIO Associate Justice

(Sgd.)

(Sgd.)

PRESBITERO J. VELASCO JR. Associate Justice

ANTONIO EDUARDO B. NACHURA Associate Justice

(Sgd.)

(Sgd.)

RUBEN T. REYES TERESITA J. Associate Justice

LEONARDO-DE CASTRO Associate Justice

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THE RULE ON THE WRIT OF HABEAS DATA SECTION 1. Habeas Data. - The writ of habeas data is a remedy available to any person whose right to privacy in life, liberty or security is violated or threatened by an unlawful act or omission of a public official or employee, or of a private individual or entity engaged in the gathering, collecting or storing of data or information regarding the person, family, home and correspondence of the aggrieved party. SEC. 2. Who May File. - Any aggrieved party may file a petition for the writ of habeas data. However, in cases of extralegal killings and enforced disappearances, the petition may be filed by: (a) Any member of the immediate family of the aggrieved party, namely: the spouse, children and parents; or (b) Any ascendant, descendant or collateral relative of the aggrieved party within the fourth civil degree of consanguinity or affinity, in default of those mentioned in the preceding paragraph; or SEC. 3. Where to File. - The petition may be filed with the Regional Trial Court where the petitioner or respondent resides, or that which has jurisdiction over the place where the data or information is gathered, collected or stored, at the option of the petitioner. The petition may also be filed with the Supreme Court or the Court of Appeals or the Sandiganbayan when the action concerns public data files of government offices. SEC. 4. Where Returnable; Enforceable. - When the writ is issued by a Regional Trial Court or any judge thereof, it shall be returnable before such court or judge. When issued by the Court of Appeals or the Sandiganbayan or any of its justices, it may be returnable before such court or any justice thereof, or to any Regional Trial Court of the place where

the petitioner or respondent resides, or that which has jurisdiction over the place where the data or information is gathered, collected or stored. When issued by the Supreme Court or any of its justices, it may be returnable before such Court or any justice thereof, or before the Court of Appeals or the Sandiganbayan or any of its justices, or to any Regional Trial Court of the place where the petitioner or respondent resides, or that which has jurisdiction over the place where the data or information is gathered, collected or stored. The writ of habeas data shall be enforceable anywhere in the Philippines. Sec. 5. Docket Fees. - No docket and other lawful fees shall be required from an indigent petitioner. The petition of the indigent shall be docked and acted upon immediately, without prejudice to subsequent submission of proof of indigency not later than fifteen (15) days from the filing of the petition. SEC. 6. Petition. - A verified written petition for a writ of habeas data should contain: (a) The personal circumstances of the petitioner and the respondent; (b) The manner the right to privacy is violated or threatened and how it affects the right to life, liberty or security of the aggrieved party; (c) The actions and recourses taken by the petitioner to secure the data or information; (d) The location of the files, registers or databases, the government office, and the person in charge, in possession or in control of the data or information, if known; (e) The reliefs prayed for, which may include the updating, rectification, suppression or destruction of the database or information or files kept by the respondent. In case of threats, the relief may include a prayer for an order enjoining the act complained of; and (f) Such other relevant reliefs as are just and equitable. SEC. 7. Issuance of the Writ. - Upon the filing of the petition, the court, justice or judge shall immediately order the issuance of the writ if on its face it ought to issue. The clerk of court shall issue the writ under the seal of the court and cause it to be served within three (3) days from the issuance; or, in case of urgent necessity, the justice or judge may issue the writ under his or her own hand, and may deputize any officer or person serve it. The writ shall also set the date and time for summary hearing of the petition which shall not be later than ten (10) work days from the date of its issuance. SEC. 8. Penalty for Refusing to Issue or Serve the Writ. - A clerk of court who refuses to issue the writ after its allowance, or a deputized person who refuses to serve the same, shall be punished by the court, justice or judge for contempt without prejudice to other disciplinary actions. SEC. 9. How the Writ is Served. - The writ shall be served upon the respondent by a judicial officer or by a person deputized by the court, justice or judge who shall retain a copy on which to make a

return of service. In case the writ cannot be served personally on the respondent, the rules on substituted service shall apply. SEC. 10. Return; Contents. - The respondent shall file a verified written return together with supporting affidavits within five (5) working days from service of the writ, which period may be reasonably extended by the Court for justifiable reasons. The return shall, among other things, contain the following: (a) The lawful defenses such as national security, state secrets, privileged communications, confidentiality of the source of information of media and others; (b) In case of respondent in charge, in possession or in control of the data or information subject of the petition; (i) a disclosure of the data or information about the petitioner, the nature of such data or information, and the purpose for its collection; (ii) the steps or actions taken by the respondent to ensure the security and confidentiality of the data or information; and, (iii) the currency and accuracy of the data or information held; and, (c) Other allegations relevant to the resolution of the proceeding. A general denial of the allegations in the petition shall not be allowed. SEC. 11. Contempt. - The court, justice or judge may punish with imprisonment or fine a respondent who commits contempt by making a false return, or refusing to make a return; or any person who otherwise disobeys or resist a lawful process or order of the court. SEC. 12. When Defenses May be Heard in Chambers. - A hearing in chambers may be conducted where the respondent invokes the defense that the release of the data or information in question shall compromise national security or state secrets, or when the data or information cannot be divulged to the public due to its nature or privileged character. Sec. 13. Prohibited Pleadings and Motions. - The following pleadings and motions are prohibited: (a) Motion to dismiss; (b) Motion for extension of time to file return, opposition, affidavit, position paper and other pleadings; (c) Dilatory motion for postponement; (d) Motion for a bill of particulars; (e) Counterclaim or cross-claim; (f) Third-party complaint;

(g) Reply; (h) Motion to declare respondent in default; (i) Intervention; (j) Memorandum; (k) Motion for reconsideration of interlocutory orders or interim relief orders; and (l) Petition for certiorari, mandamus or prohibition against any interlocutory order. SEC. 14. Return; Filing. - In case the respondent fails to file a return, the court, justice or judge shall proceed to hear the petition ex parte, granting the petitioner such relief as the petition may warrant unless the court in its discretion requires the petitioner to submit evidence. SEC. 15. Summary Hearing. - The hearing on the petition shall be summary. However, the court, justice or judge may call for a preliminary conference to simplify the issues and determine the possibility of obtaining stipulations and admissions from the parties. SEC. 16. Judgment. - The court shall render judgment within ten (10) days from the time the petition is submitted for decision. If the allegations in the petition are proven by substantial evidence, the court shall enjoin the act complained of, or order the deletion, destruction, or rectification of the erroneous data or information and grant other relevant reliefs as may be just and equitable; otherwise, the privilege of the writ shall be denied. Upon its finality, the judgment shall be enforced by the sheriff or any lawful officers as may be designated by the court, justice or judge within five (5) working days. SEC. 17. Return of Service. - The officer who executed the final judgment shall, within three (3) days from its enforcement, make a verified return to the court. The return shall contain a full statement of the proceedings under the writ and a complete inventory of the database or information, or documents and articles inspected, updated, rectified, or deleted, with copies served on the petitioner and the respondent. The officer shall state in the return how the judgment was enforced and complied with by the respondent, as well as all objections of the parties regarding the manner and regularity of the service of the writ. SEC. 18. Hearing on Officer’s Return. - The court shall set the return for hearing with due notice to the parties and act accordingly. SEC. 19. Appeal. - Any party may appeal from the final judgment or order to the Supreme Court under Rule 45. The appeal may raise questions of fact or law or both. The period of appeal shall be five (5) working days from the date of notice of the judgment or final order. The appeal shall be given the same priority as in habeas corpus and amparo cases.

SEC. 20. Institution of Separate Actions. - The filing of a petition for the writ of habeas data shall not preclude the filing of separate criminal, civil or administrative actions. SEC. 21. Consolidation. - When a criminal action is filed subsequent to the filing of a petition for the writ, the latter shall be consolidated with the criminal action. When a criminal action and a separate civil action are filed subsequent to a petition for a writ of habeas data, the petition shall be consolidated with the criminal action. After consolidation, the procedure under this Rule shall continue to govern the disposition of the reliefs in the petition. SEC. 22. Effect of Filing of a Criminal Action. - When a criminal action has been commenced, no separate petition for the writ shall be filed. The relief under the writ shall be available to an aggrieved party by motion in the criminal case. The procedure under this Rule shall govern the disposition of the reliefs available under the writ of habeas data. SEC. 23. Substantive Rights. - This Rule shall not diminish, increase or modify substantive rights. SEC. 24. Suppletory Application of the Rules of Court. - The Rules of Court shall apply suppletorily insofar as it is not inconsistent with this Rule. SEC. 25. Effectivity. - This Rule shall take effect on February 2, 2008, following its publication in three (3) newspapers of general circulation. [PUBLISHED IN THE MANILA BULLETIN, THE PHILIPPINE STAR AND THE PHILIPPINE DAILY INQUIRER ON 25 JANUARY 2008]

Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. 193636

July 24, 2012

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

SERENO, J.: Before this Court is an Appeal by Certiorari (Under Rule 45 of the Rules of Court) filed pursuant to Rule 191 of the Rule on the Writ of Habeas Data,2 seeking a review of the 9 September 2010 Decision in Special Proc. No. 14979 of the Regional Trial Court, First Judicial Region, Laoag City, Branch 13 (RTC Br. 13).3 The questioned Decision denied petitioner the privilege of the writ of habeas data.4 At the time the present Petition was filed, petitioner Marynette R. Gamboa (Gamboa) was the Mayor of Dingras, Ilocos Norte.5 Meanwhile, respondent Police Senior Superintendent (P/SSUPT.) Marlou C. Chan was the Officer-in-Charge, and respondent Police Superintendent (P/SUPT.) William O. Fang was the Chief of the Provincial Investigation and Detective Management Branch, both of the Ilocos Norte Police Provincial Office.6 On 8 December 2009, former President Gloria Macapagal-Arroyo issued Administrative Order No. 275 (A.O. 275), "Creating an Independent Commission to Address the Alleged Existence of Private Armies in the Country."7 The body, which was later on referred to as the Zeñarosa Commission,8 was formed to investigate the existence of private army groups (PAGs) in the country with a view to eliminating them before the 10 May 2010 elections and dismantling them permanently in the future.9 Upon the conclusion of its investigation, the Zeñarosa Commission released and submitted to the Office of the President a confidential report entitled "A Journey Towards H.O.P.E.: The Independent Commission Against Private Armies‘ Report to the President" (the Report).10 Gamboa alleged that the Philippine National Police in Ilocos Norte (PNP–Ilocos Norte) conducted a series of surveillance operations against her and her aides,11 and classified her as someone who keeps a PAG.12Purportedly without the benefit of data verification, PNP–Ilocos Norte forwarded the information gathered on her to the Zeñarosa Commission,13 thereby causing her inclusion in the Report‘s enumeration of individuals maintaining PAGs.14 More specifically, she pointed out the following items reflected therein: (a) The Report cited the PNP as its source for the portion regarding the status of PAGs in the Philippines.15 (b) The Report stated that "x x x the PNP organized one dedicated Special Task Group (STG) for each private armed group (PAG) to monitor and counteract their activities."16 (c) Attached as Appendix "F" of the Report is a tabulation generated by the PNP and captioned as "Status of PAGs Monitoring by STGs as of April 19, 2010," which classifies PAGs in the country according to region, indicates their identity, and lists the prominent personalities with whom these groups are associated.17 The first entry in the table names a PAG, known as the Gamboa Group, linked to herein petitioner Gamboa.18 (d) Statistics on the status of PAGs were based on data from the PNP, to wit: The resolutions were the subject of a national press conference held in Malacañang on March 24, 2010 at which time, the Commission was also asked to comment on the PNP report that out of one hundred seventeen (117) partisan armed groups validated, twenty-four (24) had been dismantled with sixty-seven (67) members apprehended and more than eighty-six (86) firearms confiscated. Commissioner Herman Basbaño qualified that said statistics were based on PNP data but that the more significant fact from his report is that the PNP has been vigilant in monitoring

the activities of these armed groups and this vigilance is largely due to the existence of the Commission which has continued communicating with the Armed Forces of the Philippines (AFP) and PNP personnel in the field to constantly provide data on the activities of the PAGs. Commissioner Basbaño stressed that the Commission‘s efforts have preempted the formation of the PAGs because now everyone is aware that there is a body monitoring the PAGs movement through the PNP. Commissioner Lieutenant General Edilberto Pardo Adan also clarified that the PAGs are being destabilized so that their ability to threaten and sow fear during the election has been considerably weakened.19 (e) The Report briefly touched upon the validation system of the PNP: Also, in order to provide the Commission with accurate data which is truly reflective of the situation in the field, the PNP complied with the Commission‘s recommendation that they revise their validation system to include those PAGs previously listed as dormant. In the most recent briefing provided by the PNP on April 26, 2010, there are one hundred seven (107) existing PAGs. Of these groups, the PNP reported that seven (7) PAGs have been reorganized.20 On 6 and 7 July 2010, ABS-CBN broadcasted on its evening news program the portion of the Report naming Gamboa as one of the politicians alleged to be maintaining a PAG.21 Gamboa averred that her association with a PAG also appeared on print media.22 Thus, she was publicly tagged as someone who maintains a PAG on the basis of the unverified information that the PNP-Ilocos Norte gathered and forwarded to the Zeñarosa Commission.23 As a result, she claimed that her malicious or reckless inclusion in the enumeration of personalities maintaining a PAG as published in the Report also made her, as well as her supporters and other people identified with her, susceptible to harassment and police surveillance operations.24 Contending that her right to privacy was violated and her reputation maligned and destroyed, Gamboa filed a Petition dated 9 July 2010 for the issuance of a writ of habeas data against respondents in their capacities as officials of the PNP-Ilocos Norte.25 In her Petition, she prayed for the following reliefs: (a) destruction of the unverified reports from the PNP-Ilocos Norte database; (b) withdrawal of all information forwarded to higher PNP officials; (c) rectification of the damage done to her honor; (d) ordering respondents to refrain from forwarding unverified reports against her; and (e) restraining respondents from making baseless reports.26 The case was docketed as Special Proc. No. 14979 and was raffled to RTC Br. 13, which issued the corresponding writ on 14 July 2010 after finding the Petition meritorious on its face.27 Thus, the trial court (a) instructed respondents to submit all information and reports forwarded to and used by the Zeñarosa Commission as basis to include her in the list of persons maintaining PAGs; (b) directed respondents, and any person acting on their behalf, to cease and desist from forwarding to the Zeñarosa Commission, or to any other government entity, information that they may have gathered against her without the approval of the court; (c) ordered respondents to make a written return of the writ together with supporting affidavits; and (d) scheduled the summary hearing of the case on 23 July 2010.28 In their Return of the Writ, respondents alleged that they had acted within the bounds of their mandate in conducting the investigation and surveillance of Gamboa.29 The information stored in their database supposedly pertained to two criminal cases in which she was implicated, namely: (a) a Complaint for murder and frustrated murder docketed as NPS DOC No. 1-04-INQ-091-00077, and (b) a Complaint for murder, frustrated murder and direct assault upon a person in authority, as well as indirect assault and multiple attempted murder, docketed as NPS DOCKET No. 1-04-INV-10-A00009.30

Respondents likewise asserted that the Petition was incomplete for failing to comply with the following requisites under the Rule on the Writ of Habeas Data: (a) the manner in which the right to privacy was violated or threatened with violation and how it affected the right to life, liberty or security of Gamboa; (b) the actions and recourses she took to secure the data or information; and (c) the location of the files, registers or databases, the government office, and the person in charge, in possession or in control of the data or information.31 They also contended that the Petition for Writ of Habeas Data, being limited to cases of extrajudicial killings and enforced disappearances, was not the proper remedy to address the alleged besmirching of the reputation of Gamboa.32 RTC Br. 13, in its assailed Decision dated 9 September 2010, dismissed the Petition.33 The trial court categorically ruled that the inclusion of Gamboa in the list of persons maintaining PAGs, as published in the Report, constituted a violation of her right to privacy, to wit: In this light, it cannot also be disputed that by her inclusion in the list of persons maintaining PAGs, Gamboa‘s right to privacy indubitably has been violated. The violation understandably affects her life, liberty and security enormously. The untold misery that comes with the tag of having a PAG could even be insurmountable. As she essentially alleged in her petition, she fears for her security that at any time of the day the unlimited powers of respondents may likely be exercised to further malign and destroy her reputation and to transgress her right to life. By her inclusion in the list of persons maintaining PAGs, it is likewise undisputed that there was certainly intrusion into Gamboa‘s activities. It cannot be denied that information was gathered as basis therefor. After all, under Administrative Order No. 275, the Zeñarosa Commission was tasked to investigate the existence of private armies in the country, with all the powers of an investigative body under Section 37, Chapter 9, Book I of the Administrative Code of 1987. xxx

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By her inclusion in the list of persons maintaining PAGs, Gamboa alleged as she accused respondents, who are public officials, of having gathered and provided information that made the Zeñarosa Commission to include her in the list. Obviously, it was this gathering and forwarding of information supposedly by respondents that petitioner barks at as unlawful. x x x.34 Despite the foregoing findings, RTC Br. 13 nevertheless dismissed the Petition on the ground that Gamboa failed to prove through substantial evidence that the subject information originated from respondents, and that they forwarded this database to the Zeñarosa Commission without the benefit of prior verification.35 The trial court also ruled that even before respondents assumed their official positions, information on her may have already been acquired.36 Finally, it held that the Zeñarosa Commission, as the body tasked to gather information on PAGs and authorized to disclose information on her, should have been impleaded as a necessary if not a compulsory party to the Petition.37 Gamboa then filed the instant Appeal by Certiorari dated 24 September 2010,38 raising the following assignment of errors: 1. The trial court erred in ruling that the Zeñarosa Commission be impleaded as either a necessary or indispensable party; 2. The trial court erred in declaring that Gamboa failed to present sufficient proof to link respondents as the informant to [sic] the Zeñarosa Commission; 3. The trial court failed to satisfy the spirit of Habeas Data;

4. The trial court erred in pronouncing that the reliance of the Zeñarosa Commission to [sic] the PNP as alleged by Gamboa is an assumption; 5. The trial court erred in making a point that respondents are distinct to PNP as an agency.39 On the other hand, respondents maintain the following arguments: (a) Gamboa failed to present substantial evidence to show that her right to privacy in life, liberty or security was violated, and (b) the trial court correctly dismissed the Petition on the ground that she had failed to present sufficient proof showing that respondents were the source of the report naming her as one who maintains a PAG.40 Meanwhile, Gamboa argues that although A.O. 275 was a lawful order, fulfilling the mandate to dismantle PAGs in the country should be done in accordance with due process, such that the gathering and forwarding of unverified information on her must be considered unlawful.41 She also reiterates that she was able to present sufficient evidence showing that the subject information originated from respondents.42 In determining whether Gamboa should be granted the privilege of the writ of habeas data, this Court is called upon to, first, unpack the concept of the right to privacy; second, explain the writ of habeas data as an extraordinary remedy that seeks to protect the right to informational privacy; and finally, contextualize the right to privacy vis-à-vis the state interest involved in the case at bar. The Right to Privacy The right to privacy, as an inherent concept of liberty, has long been recognized as a constitutional right. This Court, in Morfe v. Mutuc,43 thus enunciated: The due process question touching on an alleged deprivation of liberty as thus resolved goes a long way in disposing of the objections raised by plaintiff that the provision on the periodical submission of a sworn statement of assets and liabilities is violative of the constitutional right to privacy. There is much to be said for this view of Justice Douglas: "Liberty in the constitutional sense must mean more than freedom from unlawful governmental restraint; it must include privacy as well, if it is to be a repository of freedom. The right to be let alone is indeed the beginning of all freedom." As a matter of fact, this right to be let alone is, to quote from Mr. Justice Brandeis "the most comprehensive of rights and the right most valued by civilized men." The concept of liberty would be emasculated if it does not likewise compel respect for his personality as a unique individual whose claim to privacy and interference demands respect. xxx. xxx

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x x x In the leading case of Griswold v. Connecticut, Justice Douglas, speaking for five members of the Court, stated: "Various guarantees create zones of privacy. The right of association contained in the penumbra of the First Amendment is one, as we have seen. The Third Amendment in its prohibition against the quartering of soldiers ‗in any house‘ in time of peace without the consent of the owner is another facet of that privacy. The Fourth Amendment explicitly affirms the ‗right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.‘ The Fifth Amendment in its Self-Incrimination Clause enables the citizen to create a zone of privacy which government may not force him to surrender to his detriment. The Ninth Amendment provides: ‗The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." After referring to various American Supreme

Court decisions, Justice Douglas continued: "These cases bear witness that the right of privacy which presses for recognition is a legitimate one." xxx

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So it is likewise in our jurisdiction. The right to privacy as such is accorded recognition independently of its identification with liberty; in itself, it is fully deserving of constitutional protection. The language of Prof. Emerson is particularly apt: "The concept of limited government has always included the idea that governmental powers stop short of certain intrusions into the personal life of the citizen. This is indeed one of the basic distinctions between absolute and limited government. Ultimate and pervasive control of the individual, in all aspects of his life, is the hallmark of the absolute state. In contrast, a system of limited government, safeguards a private sector, which belongs to the individual, firmly distinguishing it from the public sector, which the state can control. Protection of this private sector — protection, in other words, of the dignity and integrity of the individual — has become increasingly important as modern society has developed. All the forces of a technological age — industrialization, urbanization, and organization — operate to narrow the area of privacy and facilitate intrusion into it. In modern terms, the capacity to maintain and support this enclave of private life marks the difference between a democratic and a totalitarian society."44 (Emphases supplied) In Ople v. Torres,45 this Court traced the constitutional and statutory bases of the right to privacy in Philippine jurisdiction, to wit: Indeed, if we extend our judicial gaze we will find that the right of privacy is recognized and enshrined in several provisions of our Constitution. It is expressly recognized in section 3 (1) of the Bill of Rights: Sec. 3. (1) The privacy of communication and correspondence shall be inviolable except upon lawful order of the court, or when public safety or order requires otherwise as prescribed by law. Other facets of the right to privacy are protected in various provisions of the Bill of Rights, viz: Sec. 1. No person shall be deprived of life, liberty, or property without due process of law, nor shall any person be denied the equal protection of the laws. Sec. 2. The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable, and no search warrant or warrant of arrest shall issue except upon probable cause to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched and the persons or things to be seized. xxx

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Sec. 6. The liberty of abode and of changing the same within the limits prescribed by law shall not be impaired except upon lawful order of the court. Neither shall the right to travel be impaired except in the interest of national security, public safety, or public health as may be provided by law. xxx

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Sec. 8. The right of the people, including those employed in the public and private sectors, to form unions, associations, or societies for purposes not contrary to law shall not be abridged. Sec. 17. No person shall be compelled to be a witness against himself. Zones of privacy are likewise recognized and protected in our laws. The Civil Code provides that "every person shall respect the dignity, personality, privacy and peace of mind of his neighbors and other persons" and punishes as actionable torts several acts by a person of meddling and prying into the privacy of another. It also holds a public officer or employee or any private individual liable for damages for any violation of the rights and liberties of another person, and recognizes the privacy of letters and other private communications. The Revised Penal Code makes a crime the violation of secrets by an officer, the revelation of trade and industrial secrets, and trespass to dwelling. Invasion of privacy is an offense in special laws like the Anti-Wiretapping Law, the Secrecy of Bank Deposits Act and the Intellectual Property Code. The Rules of Court on privileged communication likewise recognize the privacy of certain information. Unlike the dissenters, we prescind from the premise that the right to privacy is a fundamental right guaranteed by the Constitution, hence, it is the burden of government to show that A.O. No. 308 is justified by some compelling state interest and that it is narrowly drawn. x x x.46 (Emphases supplied) Clearly, the right to privacy is considered a fundamental right that must be protected from intrusion or constraint. However, in Standard Chartered Bank v. Senate Committee on Banks,47 this Court underscored that the right to privacy is not absolute, viz: With respect to the right of privacy which petitioners claim respondent has violated, suffice it to state that privacy is not an absolute right. While it is true that Section 21, Article VI of the Constitution, guarantees respect for the rights of persons affected by the legislative investigation, not every invocation of the right to privacy should be allowed to thwart a legitimate congressional inquiry. In Sabio v. Gordon, we have held that the right of the people to access information on matters of public concern generally prevails over the right to privacy of ordinary financial transactions. In that case, we declared that the right to privacy is not absolute where there is an overriding compelling state interest. Employing the rational basis relationship test, as laid down in Morfe v. Mutuc, there is no infringement of the individual‘s right to privacy as the requirement to disclosure information is for a valid purpose, in this case, to ensure that the government agencies involved in regulating banking transactions adequately protect the public who invest in foreign securities. Suffice it to state that this purpose constitutes a reason compelling enough to proceed with the assailed legislative investigation.48 Therefore, when the right to privacy finds tension with a competing state objective, the courts are required to weigh both notions. In these cases, although considered a fundamental right, the right to privacy may nevertheless succumb to an opposing or overriding state interest deemed legitimate and compelling. The Writ of Habeas Data The writ of habeas data is an independent and summary remedy designed to protect the image, privacy, honor, information, and freedom of information of an individual, and to provide a forum to enforce one‘s right to the truth and to informational privacy.49 It seeks to protect a person‘s right to control information regarding oneself, particularly in instances in which such information is being collected through unlawful means in order to achieve unlawful ends.50 It must be emphasized that in order for the privilege of the writ to be granted, there must exist a nexus between the right to privacy

on the one hand, and the right to life, liberty or security on the other. Section 1 of the Rule on the Writ of Habeas Data reads: Habeas data. – The writ of habeas data is a remedy available to any person whose right to privacy in life, liberty or security is violated or threatened by an unlawful act or omission of a public official or employee, or of a private individual or entity engaged in the gathering, collecting or storing of data information regarding the person, family, home and correspondence of the aggrieved party. The notion of informational privacy is still developing in Philippine law and jurisprudence. Considering that even the Latin American habeas data, on which our own Rule on the Writ of Habeas Data is rooted, finds its origins from the European tradition of data protection,51 this Court can be guided by cases on the protection of personal data decided by the European Court of Human Rights (ECHR). Of particular note is Leander v. Sweden,52 in which the ECHR balanced the right of citizens to be free from interference in their private affairs with the right of the state to protect its national security. In this case, Torsten Leander (Leander), a Swedish citizen, worked as a temporary replacement museum technician at the Naval Museum, which was adjacent to a restricted military security zone.53He was refused employment when the requisite personnel control resulted in an unfavorable outcome on the basis of information in the secret police register, which was kept in accordance with the Personnel Control Ordinance and to which he was prevented access.54 He claimed, among others, that this procedure of security control violated Article 8 of the European Convention of Human Rights55 on the right to privacy, as nothing in his personal or political background would warrant his classification in the register as a security risk.56 The ECHR ruled that the storage in the secret police register of information relating to the private life of Leander, coupled with the refusal to allow him the opportunity to refute the same, amounted to an interference in his right to respect for private life.57 However, the ECHR held that the interference was justified on the following grounds: (a) the personnel control system had a legitimate aim, which was the protection of national security,58 and (b) the Personnel Control Ordinance gave the citizens adequate indication as to the scope and the manner of exercising discretion in the collection, recording and release of information by the authorities.59 The following statements of the ECHR must be emphasized: 58. The notion of necessity implies that the interference corresponds to a pressing social need and, in particular, that it is proportionate to the legitimate aim pursued (see, inter alia, the Gillow judgment of 24 November 1986, Series A no. 109, p. 22, § 55). 59. However, the Court recognises that the national authorities enjoy a margin of appreciation, the scope of which will depend not only on the nature of the legitimate aim pursued but also on the particular nature of the interference involved. In the instant case, the interest of the respondent State in protecting its national security must be balanced against the seriousness of the interference with the applicant‘s right to respect for his private life. There can be no doubt as to the necessity, for the purpose of protecting national security, for the Contracting States to have laws granting the competent domestic authorities power, firstly, to collect and store in registers not accessible to the public information on persons and, secondly, to use this information when assessing the suitability of candidates for employment in posts of importance for national security. Admittedly, the contested interference adversely affected Mr. Leander‘s legitimate interests through the consequences it had on his possibilities of access to certain sensitive posts within the public service. On the other hand, the right of access to public service is not as such enshrined in the Convention (see, inter alia, the Kosiek judgment of 28 August 1986, Series A no. 105, p. 20, §§ 34-

35), and, apart from those consequences, the interference did not constitute an obstacle to his leading a private life of his own choosing. In these circumstances, the Court accepts that the margin of appreciation available to the respondent State in assessing the pressing social need in the present case, and in particular in choosing the means for achieving the legitimate aim of protecting national security, was a wide one. xxx

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66. The fact that the information released to the military authorities was not communicated to Mr. Leander cannot by itself warrant the conclusion that the interference was not "necessary in a democratic society in the interests of national security", as it is the very absence of such communication which, at least partly, ensures the efficacy of the personnel control procedure (see, mutatis mutandis, the above-mentioned Klass and Others judgment, Series A no. 28, p. 27, § 58). The Court notes, however, that various authorities consulted before the issue of the Ordinance of 1969, including the Chancellor of Justice and the Parliamentary Ombudsman, considered it desirable that the rule of communication to the person concerned, as contained in section 13 of the Ordinance, should be effectively applied in so far as it did not jeopardise the purpose of the control (see paragraph 31 above). 67. The Court, like the Commission, thus reaches the conclusion that the safeguards contained in the Swedish personnel control system meet the requirements of paragraph 2 of Article 8 (art. 8-2). Having regard to the wide margin of appreciation available to it, the respondent State was entitled to consider that in the present case the interests of national security prevailed over the individual interests of the applicant (see paragraph 59 above). The interference to which Mr. Leander was subjected cannot therefore be said to have been disproportionate to the legitimate aim pursued. (Emphases supplied) Leander illustrates how the right to informational privacy, as a specific component of the right to privacy, may yield to an overriding legitimate state interest. In similar fashion, the determination of whether the privilege of the writ of habeas data, being an extraordinary remedy, may be granted in this case entails a delicate balancing of the alleged intrusion upon the private life of Gamboa and the relevant state interest involved. The collection and forwarding of information by the PNP vis-à-vis the interest of the state to dismantle private armies. The Constitution explicitly mandates the dismantling of private armies and other armed groups not recognized by the duly constituted authority.60 It also provides for the establishment of one police force that is national in scope and civilian in character, and is controlled and administered by a national police commission.61 Taking into account these constitutional fiats, it is clear that the issuance of A.O. 275 articulates a legitimate state aim, which is to investigate the existence of PAGs with the ultimate objective of dismantling them permanently. To enable the Zeñarosa Commission to achieve its goals, A.O. 275 clothed it with the powers of an investigative body, including the power to summon witnesses, administer oaths, take testimony or evidence relevant to the investigation and use compulsory processes to produce documents, books, and records.62 A.O. 275 likewise authorized the Zeñarosa Commission to deputize the Armed Forces

of the Philippines, the National Bureau of Investigation, the Department of Justice, the PNP, and any other law enforcement agency to assist the commission in the performance of its functions.63 Meanwhile, the PNP, as the national police force, is empowered by law to (a) enforce all laws and ordinances relative to the protection of lives and properties; (b) maintain peace and order and take all necessary steps to ensure public safety; and (c) investigate and prevent crimes.64 Pursuant to the state interest of dismantling PAGs, as well as the foregoing powers and functions accorded to the Zeñarosa Commission and the PNP, the latter collected information on individuals suspected of maintaining PAGs, monitored them and counteracted their activities.65 One of those individuals is herein petitioner Gamboa. This Court holds that Gamboa was able to sufficiently establish that the data contained in the Report listing her as a PAG coddler came from the PNP. Contrary to the ruling of the trial court, however, the forwarding of information by the PNP to the Zeñarosa Commission was not an unlawful act that violated or threatened her right to privacy in life, liberty or security. The PNP was rationally expected to forward and share intelligence regarding PAGs with the body specifically created for the purpose of investigating the existence of these notorious groups. Moreover, the Zeñarosa Commission was explicitly authorized to deputize the police force in the fulfillment of the former‘s mandate, and thus had the power to request assistance from the latter. Following the pronouncements of the ECHR in Leander, the fact that the PNP released information to the Zeñarosa Commission without prior communication to Gamboa and without affording her the opportunity to refute the same cannot be interpreted as a violation or threat to her right to privacy since that act is an inherent and crucial component of intelligence-gathering and investigation. Additionally, Gamboa herself admitted that the PNP had a validation system, which was used to update information on individuals associated with PAGs and to ensure that the data mirrored the situation on the field.66 Thus, safeguards were put in place to make sure that the information collected maintained its integrity and accuracy. 1âw phi 1

Pending the enactment of legislation on data protection, this Court declines to make any further determination as to the propriety of sharing information during specific stages of intelligence gathering. To do otherwise would supplant the discretion of investigative bodies in the accomplishment of their functions, resulting in an undue encroachment on their competence. However, to accord the right to privacy with the kind of protection established in existing law and jurisprudence, this Court nonetheless deems it necessary to caution these investigating entities that information-sharing must observe strict confidentiality. Intelligence gathered must be released exclusively to the authorities empowered to receive the relevant information. After all, inherent to the right to privacy is the freedom from "unwarranted exploitation of one‘s person or from intrusion into one‘s private activities in such a way as to cause humiliation to a person‘s ordinary sensibilities."67 In this case, respondents admitted the existence of the Report, but emphasized its confidential nature. That it was leaked to third parties and the media was regrettable, even warranting reproach. But it must be stressed that Gamboa failed to establish that respondents were responsible for this unintended disclosure. In any event, there are other reliefs available to her to address the purported damage to her reputation, making a resort to the extraordinary remedy of the writ of habeas data unnecessary and improper. 1âwphi1

Finally, this Court rules that Gamboa was unable to prove through substantial evidence that her inclusion in the list of individuals maintaining PAGs made her and her supporters susceptible to

harassment and to increased police surveillance. In this regard, respondents sufficiently explained that the investigations conducted against her were in relation to the criminal cases in which she was implicated. As public officials, they enjoy the presumption of regularity, which she failed to overcome. It is clear from the foregoing discussion that the state interest of dismantling PAGs far outweighs the alleged intrusion on the private life of Gamboa, especially when the collection and forwarding by the PNP of information against her was pursuant to a lawful mandate. Therefore, the privilege of the writ of habeas data must be denied. WHEREFORE, the instant petition for review is DENIED. The assailed Decision in Special Proc. No. 14979 dated 9 September 2010 of the Regional Trial Court, Laoag City, Br. 13, insofar as it denies Gamboa the privilege of the writ of habeas data, is AFFIRMED. SO ORDERED. MARIA LOURDES P.A. SERENO Associate justice WE CONCUR: ANTONIO T. CARPIO Senior Associate Justice

PRESBITERO J. VELASCO, JR. Associate Justice

(On official leave) TERESITA J. LEONARDO-DE CASTRO* Associate Justice

(On leave) ARTURO D. BRION** Associate Justice

(On official business) DIOSDADO M. PERALTA*** Associate Justice

LUCAS P. BERSAMIN Associate Justice

MARIANO C. DEL CASTILLO Associate Justice

ROBERTO A. ABAD Associate Justice

MARTIN S. VILLARAMA, JR. Associate Justice

JOSE PORTUGAL PEREZ Associate Justice

(On leave) JOSE CATRAL MENDOZA Associate Justice

BIENVENIDO L. REYES Associate Justice

ESTELA M. PERLAS-BERNABE Associate Justice

CERTIFICATION I certify that the conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the opinion of the Court.

ANTONIO T. CARPIO Senior Associate Justice (Per Section 12, R.A. 296, The Judiciary Act of 1948, as amended)

Footnotes *

On official leave.

**

On leave.

***

On official business.

Sec. 19. Appeal. – Any party may appeal from the final judgment or order to the Supreme Court under Rule 45. The appeal may raise questions of fact or law or both. 1

The period of appeal shall be five (5) working days from the date of notice of the judgment or final order. The appeal shall be given the same priority as in habeas corpus and amparo cases. 2

A.M. No. 08-1-06-SC, 22 January 2008.

3

Rollo, pp. 36-47; Decision dated 9 September 2010.

4

Id. at 47.

5

Id. at 4, Appeal by Certiorari.

6

Id. at 39-40, Decision; id. at 142-143, Affidavit of P/SSupt. Chan dated 21 July 2010; id. at 144-145, Affidavit of P/Supt. Fang dated 21 July 2010. 7

108 O.G. 310 (Jan., 2010).

8

Named after the Chairperson, retired Court of Appeals Associate Justice Monina ArevaloZeñarosa. The other members of the body included Bishop Juan de Dios Pueblos, D.D., Alleem Mahmod Mala L. Adilao, (Ret.) General Virtus V. Gil, (Ret.) Lieutenant General Edilberto Pardo Adan, (Ret.) Herman Zamora Basbaño, Dante Lazaro Jimenez, and General Jaime Callada Echeverria(+). Rollo, pp. 292-299. 9

Supra note 7.

10

Rollo, pp. 287-563; rollo, p. 20, Appeal by Certiorari; rollo, p. 591, Comment.

11

Id. at 6, Appeal by Certiorari; id. at 51-52, Petition for the Writ of Habeas Data.

12

Id. at 20-23, Appeal by Certiorari; id. at 52, Petition for the Writ of Habeas Data.

13

Id.

14

Id. at 20-23, Appeal by Certiorari.

15

Id. at 20, Appeal by Certiorari; id. at 337, Report.

16

Id. at 20-21, Appeal by Certiorari; id. at 338, Report.

17

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

18

Id. at 431, Appendix "F" of the Report.

19

Id. at 21-22, Appeal by Certiorari; id. at 348-349, Report.

20

Id. at 22, Appeal by Certiorari; id. at 364, Report.

21

The records refer to two different television news programs: the Position Paper indicates TV Patrol World, while the Return of the Writ mentions Bandila; id. at 6-7, Appeal by Certiorari; id. at 37, Decision; id. at 59, Affidavit of Demijon Castillo dated 9 July 2010; id. at 133, Return of the Writ; id. at 147-148, Position Paper of Gamboa; id. at 591, Comment. 22

Id. at 6-7, Appeal by Certiorari; id. at 166, Position Paper of Gamboa.

23

Id. at 52-53, Petition for the Writ of Habeas Data.

24

Id. at 52-54.

25

Id. at 48-58.

26

Id.

27

Id. at 113-114, Writ of Habeas Data dated 14 July 2010; id. at 115-117, Order dated 14 July 2010. 28

Id.

29

Id. at 118-145, Return of the Writ dated 22 July 2010.

30

Id. at 125.

31

Id. at 126-131.

32

Id. at 131-132.

33

Id. at 36-47, Decision.

34

Id. at 41-42.

35

Id. at 44.

36

Id. at 44-46.

37

Id. at 47.

38

Id. at 3-34.

39

Id. at 7-8, Appeal by Certiorari.

40

Id. at 589-622, Comment dated 3 January 2011.

41

Id. at 647-656, Reply dated 29 January 2012.

42

Id.

43

130 Phil. 415 (1968).

44

Id. at 433-436.

45

354 Phil. 948 (1998).

46

Id. at 972-975.

47

G.R. No. 167173, 27 December 2007, 541 SCRA 456.

48

Id. at 475-476 [citing Morfe v. Mutuc, supra note 43; Gordon v. Sabio, 535Phil. 687 (2006)]. 49

Manila Electric Co. v. Lim, G.R. No. 184769, 5 October 2010, 632 SCRA 195, 202.

50

Roxas v. Arroyo, G.R. No. 189155, 7 September 2010, 630 SCRA 211, 239.

51

Guadamuz, A. "Habeas Data vs the European Data Protection Directive," 2001 (3) The Journal of Information, Law and Technology (JILT). 52

26 March 1987, 9 EHRR 433.

53

Para. 10.

54

Paras. 12-13, 15-17, 19.

55

Article 8. 1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder of crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

56

Para. 47.

57

Para. 48.

58

Para. 49.

59

Para. 56.

60

Constitution, Art. XVIII, Sec. 24.

61

Constitution, Art. XVI, Sec. 6.

62

A.O. 275, Sec. 5(a).

63

A.O. 275, Sec. 5(f).

64

Republic Act No. 6975, otherwise known as the Department of Interior and Local Government Act of 1990, Sec. 24(a), (b), (c). 65

Rollo, p. 338; Report.

66

Id. at 21-22, Appeal by Certiorari; id. at 364, Report.

67

Social Justice Society v. Dangerous Drugs Board, G.R. Nos. 157870, 158633 and 161658, 3 November 2008, 570 SCRA 410, 431.

EN BANC MANILA ELECTRIC COMPANY, ALEXANDER S. DEYTO and RUBEN A. SAPITULA, Petitioners,

– versus –

G.R. No. 184769 Present: CORONA, C.J., CARPIO, CARPIO MORALES, VELASCO, JR., NACHURA, LEONARDO-DE CASTRO, BRION,* PERALTA, BERSAMIN,

DEL CASTILLO, ABAD, VILLARAMA, JR., PEREZ, MENDOZA, and SERENO, JJ. Promulgated: ROSARIO GOPEZ LIM, Respondent. October 5, 2010 x - -- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x

DECISION

CARPIO MORALES, J.: The Court is once again confronted with an opportunity to define the evolving metes and bounds of the writ of habeas data. May an employee invoke the remedies available under such writ where an employer decides to transfer her workplace on the basis of copies of an anonymous letter posted therein ─ imputing to her disloyalty to the company and calling for her to leave, which imputation it investigated but fails to inform her of the details thereof? Rosario G. Lim (respondent), also known as Cherry Lim, is an administrative clerk at the Manila Electric Company (MERALCO). On June 4, 2008, an anonymous letter was posted at the door of the Metering Office of the Administration building of MERALCO Plaridel, Bulacan Sector, at which respondent is assigned, denouncing respondent. The letter reads: Cherry Lim: MATAPOS MONG LAMUNIN LAHAT NG BIYAYA NG MERALCO, NGAYON NAMAN AY GUSTO MONG PALAMON ANG BUONG KUMPANYA SA MGA

BUWAYA NG GOBYERNO. KAPAL NG MUKHA MO, LUMAYAS KA RITO, WALANG UTANG NA LOOB….[1]

Copies of the letter were also inserted in the lockers of MERALCO linesmen. Informed about it, respondent reported the matter on June 5, 2008 to the Plaridel Station of the Philippine National Police.[2] By Memorandum[3] dated July 4, 2008, petitioner Alexander Deyto, Head of MERALCO‟s Human Resource Staffing, directed the transfer of respondent to MERALCO‟s Alabang Sector in Muntinlupa as “A/F OTMS Clerk,” effective July 18, 2008 in light of the receipt of “… reports that there were accusations and threats directed against [her] from unknown individuals and which could possibly compromise [her] safety and security.” Respondent, by letter of July 10, 2008 addressed to petitioner Ruben A. Sapitula, Vice-President and Head of MERALCO‟s Human Resource Administration, appealed her transfer and requested for a dialogue so she could voice her concerns and misgivings on the matter, claiming that the “punitive” nature of the transfer amounted to a denial of due process. Citing the grueling travel from her residence in Pampanga to Alabang and back entails, and violation of the provisions on job security of their Collective Bargaining Agreement (CBA), respondent expressed her thoughts on the alleged threats to her security in this wise:

xxxx I feel that it would have been better . . . if you could have intimated to me the nature of the alleged accusations and threats so that at least I could have found out if these are credible or even serious. But as you stated, these came from unknown individuals and the way they were handled, it appears that the veracity of these accusations and threats to be [sic] highly suspicious, doubtful or are just mere jokes if they existed at all. Assuming for the sake of argument only, that the alleged threats exist as the management apparently believe, then my transfer to an unfamiliar place and environment which will make me a “sitting

duck” so to speak, seems to betray the real intent of management which is contrary to its expressed concern on my security and safety . . . Thus, it made me think twice on the rationale for management‟s initiated transfer. Reflecting further, it appears to me that instead of the management supposedly extending favor to me, the net result and effect of management action would be apunitive one.[4] (emphasis and underscoring supplied)

Respondent thus requested for the deferment of the implementation of her transfer pending resolution of the issues she raised. No response to her request having been received, respondent filed a petition[5] for the issuance of a writ of habeas data against petitioners before the Regional Trial Court (RTC) of Bulacan, docketed as SP. Proc. No. 213-M-2008. By respondent‟s allegation, petitioners‟ unlawful act and omission consisting of their continued failure and refusal to provide her with details or information about the alleged report which MERALCO purportedly received concerning threats to her safety and security amount to a violation of her right to privacy in life, liberty and security, correctible by habeas data. Respondent thus prayed for the issuance of a writ commanding petitioners to file a written return containing the following:

a)

a full disclosure of the data or information about respondent in relation to the report purportedly received by petitioners on the alleged threat to her safety and security; the nature of such data and the purpose for its collection;

b)

the measures taken by petitioners to ensure the confidentiality of such data or information; and

c)

the currency and accuracy of such data or information obtained.

Additionally, respondent prayed for the issuance of a Temporary Restraining Order (TRO) enjoining petitioners from effecting her transfer to the MERALCO Alabang Sector. By Order[6] of August 29, 2008, Branch 7 of the Bulacan RTC directed petitioners to file their verified written return. And by Order of September 5, 2008, the trial court granted respondent‟s application for a TRO.

Petitioners moved for the dismissal of the petition and recall of the TRO on the grounds that, inter alia, resort to a petition for writ of habeas data was not in order; and the RTC lacked jurisdiction over the case which properly belongs to the National Labor Relations Commission (NLRC).[7] By Decision[8] of September 22, 2008, the trial court granted the prayers of respondent including the issuance of a writ of preliminary injunction directing petitioners to desist from implementing respondent‟s transfer until such time that petitioners comply with the disclosures required. The trial court justified its ruling by declaring that, inter alia, recourse to a writ of habeas data should extend not only to victims of extra-legal killings and political activists but also to ordinary citizens, like respondent whose rights to life and security are jeopardized by petitioners‟ refusal to provide her with information or data on the reported threats to her person. Hence, the present petition for review under Rule 45 of 1997 Rules of Civil Procedure and the Rule on the Writ of Habeas Data[9] contending that 1) the RTC lacked jurisdiction over the case and cannot restrain MERALCO‟s prerogative as employer to transfer the place of work of its employees, and 2) the issuance of the writ is outside the parameters expressly set forth in the Rule on the Writ of Habeas Data.[10] Maintaining that the RTC has no jurisdiction over what they contend is clearly a labor dispute, petitioners argue that “although ingeniously crafted as a petition for habeas data, respondent is essentially questioning the

transfer of her place of work by her employer”[11] and the terms and conditions of her employment which arise from an employer-employee relationship over which the NLRC and the Labor Arbiters under Article 217 of the Labor Code have jurisdiction. Petitioners thus maintain that the RTC had no authority to restrain the implementation of the Memorandum transferring respondent‟s place of work which is purely a management prerogative, and that OCA-Circular No. 792003[12] expressly prohibits the issuance of TROs or injunctive writs in laborrelated cases. Petitioners go on to point out that the Rule on the Writ of Habeas Data directs the issuance of the writ only against public officials or employees, or private individuals or entities engaged in the gathering, collecting or storing of data or information regarding an aggrieved party‟s person, family or home; and that MERALCO (or its officers) is clearly not engaged in such activities. The petition is impressed with merit. Respondent‟s plea that she be spared from complying with MERALCO‟s Memorandum directing her reassignment to the Alabang Sector, under the guise of a quest for information or data allegedly in possession of petitioners, does not fall within the province of a writ of habeas data.

Section 1 of the Rule on the Writ of Habeas Data provides: Section 1. Habeas Data. – The writ of habeas data is a remedy available to any person whose right to privacy in life, liberty or security is violated or threatened by an unlawful act or omission of a public official or employee or of a private individual or entity engaged in the gathering, collecting or storing of data or information regarding the person, family, home and correspondence of the aggrieved party. (emphasis and underscoring supplied)

The habeas data rule, in general, is designed to protect by means of judicial complaint the image, privacy, honor, information, and freedom of information of an individual. It is meant to provide a forum to enforce one‟s right to the truth and to informational privacy, thus safeguarding the constitutional guarantees of a person‟s right to life, liberty and security against abuse in this age of information technology. It bears reiteration that like the writ of amparo, habeas data was conceived as a response, given the lack of effective and available remedies, to address the extraordinary rise in the number of killings and enforced disappearances. Its intent is to address violations of or threats to the rights to life, liberty or security as a remedy independently from those provided under prevailing Rules.[13] Castillo v. Cruz[14] underscores the emphasis laid down in Tapuz v. del Rosario[15] that the writs of amparo and habeas datawill NOT issue to protect purely property or commercial concerns nor when the grounds invoked in support of the petitions therefor are vague or doubtful.[16] Employment constitutes a property right under the context of the due process clause of the Constitution.[17] It is evident that respondent‟s reservations on the real reasons for her transfer  a legitimate concern respecting the terms and conditions of one‟s employment  are what prompted her to adopt the extraordinary remedy of habeas data. Jurisdiction over such concerns is inarguably lodged by law with the NLRC and the Labor Arbiters. In another vein, there is no showing from the facts presented that petitioners committed any unjustifiable or unlawful violation of respondent‟s right to privacy vis-a-vis the right to life, liberty or security. To argue that petitioners‟ refusal to disclose the contents of reports allegedly received on the threats to respondent‟s safety amounts to a violation of her right to privacy is at best speculative. Respondent in fact trivializes these threats and accusations from unknown individuals in her earlier-quoted portion of her July 10, 2008 letter as “highly suspicious, doubtful or are just mere jokes if they existed at all.” [18] And she even suspects that her transfer to another place of work “betray[s] the real intent of management]” and could be a “punitive move.” Her posture unwittingly concedes that the issue is labor-related.

WHEREFORE, the petition is GRANTED. The assailed September 22, 2008 Decision of the Bulacan RTC, Branch 7 in SP. Proc. No. 213-M-2008 is hereby REVERSED and SET ASIDE. SP. Proc. No. 213-M-2008 is, accordingly, DISMISSED. No costs. SO ORDERED.

CONCHITA CARPIO MORALES Associate Justice

WE CONCUR:

RENATO C. CORONA Chief Justice

ANTONIO T. CARPIO Associate Justice

PRESBITERO J. VELASCO, JR. Associate Justice

ANTONIO EDUARDO B. NACHURA Associate Justice

TERESITA J. LEONARDO-DE CASTRO Associate Justice

(ON OFFICIAL LEAVE) ARTURO D. BRION Associate Justice

DIOSDADO M. PERALTA Associate Justice

LUCAS P. BERSAMIN Associate Justice

MARIANO C. DEL CASTILLO Associate Justice

ROBERTO A. ABAD Associate Justice

MARTIN S. VILLARAMA, JR. Associate Justice

JOSE PORTUGAL PEREZ Associate Justice

JOSE CATRAL MENDOZA Associate Justice

MARIA LOURDES P. A. SERENO Associate Justice

CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution, I hereby certify that the conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the opinion of the Court.

RENATO C. CORONA Chief Justice Republic of the Philippines SUPREME COURT Manila A.M. No. 07-9-12-SC (25 September 2007) THE RULE ON THE WRIT OF AMPARO 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. SEC. 2. Who May File. – The petition may be filed by the aggrieved party or by any qualified person or entity in the following order: a. Any member of the immediate family, namely: the spouse, children and parents of the aggrieved party; b. Any ascendant, descendant or collateral relative of the aggrieved party within the fourth civil degree of consanguinity or affinity, in default of those mentioned in the preceding paragraph; or c. Any concerned citizen, organization, association or institution, if there is no known member of the immediate family or relative of the aggrieved party. The filing of a petition by the aggrieved party suspends the right of all other authorized parties to file similar petitions. Likewise, the filing of the petition by an authorized party on behalf of the aggrieved party suspends the right of all others, observing the order established herein. SEC. 3. Where to File. – The petition may be filed on any day and at any time with the Regional Trial Court of the place where the threat, act or omission was committed or any of its elements

occurred, or with the Sandiganbayan, the Court of Appeals, the Supreme Court, or any justice of such courts. The writ shall be enforceable anywhere in the Philippines. When issued by a Regional Trial Court or any judge thereof, the writ shall be returnable before such court or judge. When issued by the Sandiganbayan or the Court of Appeals or any of their justices, it may be returnable before such court or any justice thereof, or to any Regional Trial Court of the place where the threat, act or omission was committed or any of its elements occurred. When issued by the Supreme Court or any of its justices, it may be returnable before such Court or any justice thereof, or before the Sandiganbayan or the Court of Appeals or any of their justices, or to any Regional Trial Court of the place where the threat, act or omission was committed or any of its elements occurred. SEC. 4. No Docket Fees. – The petitioner shall be exempted from the payment of the docket and other lawful fees when filing the petition. The court, justice or judge shall docket the petition and act upon it immediately. SEC. 5. Contents of Petition. – The petition shall be signed and verified and shall allege the following: a. The personal circumstances of the petitioner; b. The name and personal circumstances of the respondent responsible for the threat, act or omission, or, if the name is unknown or uncertain, the respondent may be described by an assumed appellation; c. The right to life, liberty and security of the aggrieved party violated or threatened with violation by an unlawful act or omission of the respondent, and how such threat or violation is committed with the attendant circumstances detailed in supporting affidavits; d. The investigation conducted, if any, specifying the names, personal circumstances, and addresses of the investigating authority or individuals, as well as the manner and conduct of the investigation, together with any report; e. The actions and recourses taken by the petitioner to determine the fate or whereabouts of the aggrieved party and the identity of the person responsible for the threat, act or omission; and f. The relief prayed for. The petition may include a general prayer for other just and equitable reliefs. SEC. 6. Issuance of the Writ. – Upon the filing of the petition, the court, justice or judge shall immediately order the issuance of the writ if on its face it ought to issue. The clerk of court shall issue the writ under the seal of the court; or in case of urgent necessity, the justice or the judge may issue the writ under his or her own hand, and may deputize any officer or person to serve it. The writ shall also set the date and time for summary hearing of the petition which shall not be later than seven (7) days from the date of its issuance. SEC. 7. Penalty for Refusing to Issue or Serve the Writ. – A clerk of court who refuses to issue the writ after its allowance, or a deputized person who refuses to serve the same, shall be punished by the court, justice or judge for contempt without prejudice to other disciplinary actions.

SEC. 8. How the Writ is Served. – The writ shall be served upon the respondent by a judicial officer or by a person deputized by the court, justice or judge who shall retain a copy on which to make a return of service. In case the writ cannot be served personally on the respondent, the rules on substituted service shall apply. SEC. 9. Return; Contents. – Within seventy-two (72) hours after service of the writ, the respondent shall file a verified written return together with supporting affidavits which shall, among other things, contain the following: a. The lawful defenses to show that the respondent did not violate or threaten with violation the right to life, liberty and security of the aggrieved party, through any act or omission; b. The steps or actions taken by the respondent to determine the fate or whereabouts of the aggrieved party and the person or persons responsible for the threat, act or omission; c. All relevant information in the possession of the respondent pertaining to the threat, act or omission against the aggrieved party; and d. If the respondent is a public official or employee, the return shall further state the actions that have been or will still be taken: i. ii.

iii. iv. v. vi.

to verify the identity of the aggrieved party; to recover and preserve evidence related to the death or disappearance of the person identified in the petition which may aid in the prosecution of the person or persons responsible; to identify witnesses and obtain statements from them concerning the death or disappearance; to determine the cause, manner, location and time of death or disappearance as well as any pattern or practice that may have brought about the death or disappearance; to identify and apprehend the person or persons involved in the death or disappearance; and to bring the suspected offenders before a competent court.

The return shall also state other matters relevant to the investigation, its resolution and the prosecution of the case. A general denial of the allegations in the petition shall not be allowed. SEC. 10. Defenses not Pleaded Deemed Waived. — All defenses shall be raised in the return, otherwise, they shall be deemed waived. SEC. 11. Prohibited Pleadings and Motions. – The following pleadings and motions are prohibited: a. Motion to dismiss; b. Motion for extension of time to file return, opposition, affidavit, position paper and other pleadings; c. Dilatory motion for postponement; d. Motion for a bill of particulars; e. Counterclaim or cross-claim; f. Third-party complaint; g. Reply; h. Motion to declare respondent in default; i. Intervention; j. Memorandum;

k. Motion for reconsideration of interlocutory orders or interim relief orders; and l. Petition for certiorari, mandamus or prohibition against any interlocutory order. SEC. 12. Effect of Failure to File Return. — In case the respondent fails to file a return, the court, justice or judge shall proceed to hear the petition ex parte. SEC. 13. Summary Hearing. — The hearing on the petition shall be summary. However, the court, justice or judge may call for a preliminary conference to simplify the issues and determine the possibility of obtaining stipulations and admissions from the parties. The hearing shall be from day to day until completed and given the same priority as petitions for habeas corpus. SEC. 14. Interim Reliefs. — Upon filing of the petition or at anytime before final judgment, the court, justice or judge may grant any of the following reliefs: (a) Temporary Protection Order. – The court, justice or judge, upon motion or motu proprio, may order that the petitioner or the aggrieved party and any member of the immediate family be protected in a government agency or by an accredited person or private institution capable of keeping and securing their safety. If the petitioner is an organization, association or institution referred to in Section 3(c) of this Rule, the protection may be extended to the officers involved. The Supreme Court shall accredit the persons and private institutions that shall extend temporary protection to the petitioner or the aggrieved party and any member of the immediate family, in accordance with guidelines which it shall issue. The accredited persons and private institutions shall comply with the rules and conditions that may be imposed by the court, justice or judge. (b) Inspection Order. — The court, justice or judge, upon verified motion and after due hearing, may order any person in possession or control of a designated land or other property, to permit entry for the purpose of inspecting, measuring, surveying, or photographing the property or any relevant object or operation thereon. The motion shall state in detail the place or places to be inspected. It shall be supported by affidavits or testimonies of witnesses having personal knowledge of the enforced disappearance or whereabouts of the aggrieved party. If the motion is opposed on the ground of national security or of the privileged nature of the information, the court, justice or judge may conduct a hearing in chambers to determine the merit of the opposition. The movant must show that the inspection order is necessary to establish the right of the aggrieved party alleged to be threatened or violated. The inspection order shall specify the person or persons authorized to make the inspection and the date, time, place and manner of making the inspection and may prescribe other conditions to protect the constitutional rights of all parties. The order shall expire five (5) days after the date of its issuance, unless extended for justifiable reasons.

(c) Production Order. – The court, justice or judge, upon verified motion and after due hearing, may order any person in possession, custody or control of any designated documents, papers, books, accounts, letters, photographs, objects or tangible things, or objects in digitized or electronic form, which constitute or contain evidence relevant to the petition or the return, to produce and permit their inspection, copying or photographing by or on behalf of the movant. The motion may be opposed on the ground of national security or of the privileged nature of the information, in which case the court, justice or judge may conduct a hearing in chambers to determine the merit of the opposition. The court, justice or judge shall prescribe other conditions to protect the constitutional rights of all the parties. (d) Witness Protection Order. – The court, justice or judge, upon motion or motu proprio, may refer the witnesses to the Department of Justice for admission to the Witness Protection, Security and Benefit Program, pursuant to Republic Act No. 6981. The court, justice or judge may also refer the witnesses to other government agencies, or to accredited persons or private institutions capable of keeping and securing their safety. SEC. 15. Availability of Interim Reliefs to Respondent. – Upon verified motion of the respondent and after due hearing, the court, justice or judge may issue an inspection order or production order under paragraphs (b) and (c) of the preceding section. A motion for inspection order under this section shall be supported by affidavits or testimonies of witnesses having personal knowledge of the defenses of the respondent. SEC. 16. Contempt. – The court, justice or judge may order the respondent who refuses to make a return, or who makes a false return, or any person who otherwise disobeys or resists a lawful process or order of the court to be punished for contempt. The contemnor may be imprisoned or imposed a fine. SEC. 17. Burden of Proof and Standard of Diligence Required. – The parties shall establish their claims by substantial evidence. The respondent who is a private individual or entity must prove that ordinary diligence as required by applicable laws, rules and regulations was observed in the performance of duty. The respondent who is a public official or employee must prove that extraordinary diligence as required by applicable laws, rules and regulations was observed in the performance of duty. The respondent public official or employee cannot invoke the presumption that official duty has been regularly performed to evade responsibility or liability. SEC. 18. Judgment. — The court shall render judgment within ten (10) days from the time the petition is submitted for decision. If the allegations in the petition are proven by substantial evidence, the court shall grant the privilege of the writ and such reliefs as may be proper and appropriate; otherwise, the privilege shall be denied.

SEC. 19. Appeal. – Any party may appeal from the final judgment or order to the Supreme Court under Rule 45. The appeal may raise questions of fact or law or both. The period of appeal shall be five (5) working days from the date of notice of the adverse judgment. The appeal shall be given the same priority as in habeas corpus cases. SEC. 20. Archiving and Revival of Cases. – The court shall not dismiss the petition, but shall archive it, if upon its determination it cannot proceed for a valid cause such as the failure of petitioner or witnesses to appear due to threats on their lives. A periodic review of the archived cases shall be made by the amparo court that shall, motu proprio or upon motion by any party, order their revival when ready for further proceedings. The petition shall be dismissed with prejudice upon failure to prosecute the case after the lapse of two (2) years from notice to the petitioner of the order archiving the case. The clerks of court shall submit to the Office of the Court Administrator a consolidated list of archived cases under this Rule not later than the first week of January of every year. SEC. 21. Institution of Separate Actions. — This Rule shall not preclude the filing of separate criminal, civil or administrative actions. SEC. 22. Effect of Filing of a Criminal Action. – When a criminal action has been commenced, no separate petition for the writ shall be filed. The reliefs under the writ shall be available by motion in the criminal case. The procedure under this Rule shall govern the disposition of the reliefs available under the writ of amparo. SEC. 23. Consolidation. – When a criminal action is filed subsequent to the filing of a petition for the writ, the latter shall be consolidated with the criminal action. When a criminal action and a separate civil action are filed subsequent to a petition for a writ of amparo, the latter shall be consolidated with the criminal action. After consolidation, the procedure under this Rule shall continue to apply to the disposition of the reliefs in the petition. SEC. 24. Substantive Rights. — This Rule shall not diminish, increase or modify substantive rights recognized and protected by the Constitution. SEC. 25. Suppletory Application of the Rules of Court. – The Rules of Court shall apply suppletorily insofar as it is not inconsistent with this Rule. SEC. 26. Applicability to Pending Cases. – This Rule shall govern cases involving extralegal killings and enforced disappearances or threats thereof pending in the trial and appellate courts. SEC. 27. Effectivity. – This Rule shall take effect on October 24, 2007, following its publication in three (3) newspapers of general circulation.

EN BANC P/SUPT. FELIXBERTO CASTILLO, POLICE OFFICERS ROMEO BAGTAS, RUPERTO BORLONGAN, EDMUNDO DIONISIO, RONNIE MORALES, ARNOLD TRIA, and GILBERTO PUNZALAN, ENGR. RICASOL P. MILLAN, ENGR. REDENTOR S. DELA CRUZ, MR. ANASTACIO L. BORLONGAN, MR. ARTEMIO ESGUERRA, “TISOY,” and JOHN DOES, Petitioners,

- versus -

DR. AMANDA T. CRUZ, NIXON T. CRUZ, and FERDINAND T. CRUZ, Respondents.

G.R. No. 182165 Present: PUNO, CJ, CARPIO, CORONA* CARPIO MORALES, CHICO-NAZARIO, VELASCO, JR.,* NACHURA, LEONARDO-DE CASTRO, BRION, PERALTA,* BERSAMIN, DEL CASTILLO, ABAD, VILLARAMA, JR., JJ.

Promulgated: November 25, 2009

X--------------------------------------------------x DECISION CARPIO MORALES, J. Petitioners[1], employees and members of the local police force of the City Government of Malolos, challenge the March 28, 2008 Decision of the Regional Trial Court (RTC) of Malolos, Branch 10 in a petition for issuance of writs of amparo and habeas datainstituted by respondents.

The factual antecedents. Respondent Amanda Cruz (Amanda) who, along with her husband Francisco G. Cruz (Spouses Cruz), leased a parcel of land situated at Barrio Guinhawa, Malolos (the property), refused to vacate the property, despite demands by the lessor Provincial Government of Bulacan (the Province) which intended to utilize it for local projects. The Province thus filed a complaint for unlawful detainer against the Spouses Cruz before the then Municipal Trial Court (MTC) of Bulacan, Bulacan. By Decision of September 5, 1997, the MTC rendered judgment against the Spouses Cruz, which judgment, following its affirmance by the RTC, became final and executory. The finality of the decision in the ejectment case notwithstanding, the spouses Cruz refused to vacate the property. They thereupon filed cases against the Province[2] and the judges who presided over the case.[3] Those cases were dismissed except their petition for annulment of judgment lodged before Branch 18 of the RTC of Malolos, and a civil case for injunction 833-M-2004lodged before Branch 10 of the same RTC Malolos. The Spouses Cruz sought in the case for injunction the issuance of a permanent writ of injunction to prevent the execution of the final and executory judgment against them. By Order of July 19, 2005, the RTC, finding merit in the Spouses Cruzes‟ allegation that subsequent events changed the situation of the parties to justify a suspension of the execution of the final and executory judgment, issued a permanent writ of injunction, the dispositive portion of which reads: WHEREFORE, the foregoing petitioners‟ Motion for Reconsideration of the Order dated August 10, 2004 is hereby GRANTED. Order dated August 10, 2004 is hereby RECONSIDERED and SET ASIDE. Further, the verified petition dated November 05, 2002 are herebyREINSTATED and MADE PERMANENT until the MTC-Bulacan, Bulacan finally resolves the pending motions of petitioners with the same determines the metes and bounds of 400 sq.

meters leased premises subject matter of this case with immediate dispatch. Accordingly, REMAND the determination of the issues raised by the petitioners on the issued writ of demolition to the MTC of Bulacan, Bulacan. SO ORDERED.[4] (Emphasis in the original; underscoring supplied)

Finding that the fallo of the RTC July 19, 2005 Order treats, as a suspensive condition for the lifting of the permanent injunction, the determination of the boundaries of the property, the Province returned the issue for the consideration of the MTC. In a Geodetic Engineer‟s Report submitted to the MTC on August 31, 2007, the metes and bounds of the property were indicated. The MTC, by Order of January 2, 2008, approved the Report and ruled that the permanent injunction which the RTC issued is ineffective. On motion of the Province, the MTC, by Order of January 21, 2008, thus issued a Second Alias Writ of Demolition. On receiving notice of the January 2, 2008 MTC Order, the Spouses Cruz filed a motion before Branch 10 of the RTC for the issuance of a temporary restraining order (TRO) which it set for hearing on January 25, 2008 on which date, however, the demolition had, earlier in the day, been implemented. Such notwithstanding, the RTC issued a TRO.[5] The Spouses Cruz, along with their sons-respondents Nixon and Ferdinand, thereupon entered the property, placed several container vans and purportedly represented themselves as owners of the property which was for lease. On February 21, 2008, petitioners Police Superintendent Felixberto Castillo et al., who were deployed by the City Mayor in compliance with a memorandum issued by Governor Joselito R. Mendoza instructing him to “protect, secure and maintain thepossession of the property,” entered the property. Amanda and her co-respondents refused to turn over the property, however. Insisting that the RTC July 19, 2005 Order of Permanent Injunction enjoined the Province from repossessing it, they shoved petitioners, forcing the latter to arrest them and cause their indictment for direct assault, trespassing and other forms of light threats.

Respondents later filed on March 3, 2008 a “Respectful Motion-Petition for Writ of Amparo and Habeas Data,” docketed asSpecial Civil Action No. 53-M2008, which was coincidentally raffled to Branch 10 of the RTC Malolos. Respondents averred that despite the Permanent Injunction, petitioners unlawfully entered the property with the use of heavy equipment, tore down the barbed wire fences and tents,[6] and arrested them when they resisted petitioners‟ entry; and that as early as in the evening of February 20, 2008, members of the Philippine National Police had already camped in front of the property. On the basis of respondents‟ allegations in their petition and the supporting affidavits, the RTC, by Order of March 4, 2008, issued writs of amparo and habeas data.[7] The RTC, crediting respondents‟ version in this wise: Petitioners have shown by preponderant evidence that the facts and circumstances of the alleged offenses examined into on Writs of Amparo and Habeas Data that there have been an on-going hearings on the verified Petition for Contempt, docketed as Special Proceedings No. 306-M-2006, before this Court for alleged violation by the respondents of the Preliminary Injunction Order dated July 16, 2005 [sic] in Sp. Civil Action No. 833-M-2002, hearings were held on January 25, 2008, February 12 and 19, 2008, where the respondents prayed for an April 22, 2008 continuance, however, in the pitch darkness of February 20, 2008, police officers, some personnel from the Engineering department, and some civilians proceeded purposely to the Pinoy Compound, converged therein and with continuing threats of bodily harm and danger and stone-throwing of the roofs of the homes thereat from voices around its premises, on a pretext of an ordinary police operation when enterviewed [sic] by the media then present, but at 8:00 a.m. to late in the afternoon of February 21, 2008, zoomed in on the petitioners, subjecting them to bodily harm, mental torture, degradation, and the debasement of a human being, reminiscent of the martial law police brutality, sending chill in any ordinary citizen,[8]

rendered judgment, by Decision respondents, disposing as follows:

of

March

28,

2008,

in

favor

of

“WHEREFORE, premises considered, the Commitment Orders and waivers in Crim. Cases Nos. 08-77 for Direct assault; Crim. Case No. 08-77 for Other Forms of Trespass; and Crim. Case No. 08-78 for Light Threats are hereby DECLARED illegal, null and void, as petitioners were deprived of their substantial rights, induced by duress or a well-founded fear of personal violence. Accordingly, the commitment orders and waivers are hereby SET ASIDE. The temporary release of the petitioners is declared ABSOLUTE. Without any pronouncement as to costs. SO ORDERED.”[9] (Emphasis in the original; underscoring supplied)

Hence, the present petition for review on certiorari, pursuant to Section 19 of The Rule on the Writ of Amparo (A.M. No. 07-9-12-SC),[11] which is essentially reproduced in the Rule on the Writ of Habeas Data (A.M. No. 08-1-16SC).[12] [10]

In the main, petitioners fault the RTC for … giving due course and issuing writs of amparo and habeas data when from the allegations of the petition, the same ought not to have been issued as (1) the petition in [sic] insufficient in substance as the same involves property rights; and (2) criminal cases had already been filed and pending with the Municipal Trial Court in Cities, Branch 1, City of Malolos. (Underscoring supplied)

The petition is impressed with merit. The Court is, under the Constitution, empowered to promulgate rules for the protection and enforcement of constitutional rights.[13] In view of the heightening prevalence of extrajudicial killings and enforced disappearances, the Rule on the Writ of Amparo was issued and took effect on October 24, 2007 which coincided with the celebration of United Nations Day and affirmed the Court‟s commitment towards internationalization of human rights. More than three months later or on February 2, 2008, the Rule on the Writ ofHabeas Data was promulgated. Section 1 of the Rule on the Writ of Amparo provides: Section 1. Petition. – The petition for a writ of amparo is a remedy available to any person whose right to life, liberty and security is violated or

threatened with violation by an unlawful act or omission of a public official or employee, or of a private individual or entity. The writ shall cover extralegal killings and enforced disappearances or threats thereof. (Emphasis and underscoring supplied)

Section 1 of the Rule on the Writ of Habeas Data provides: Section 1. Habeas Data. – The writ of habeas data is a remedy available to any person whose right to privacy in life, liberty or security is violated or threatened by an unlawful act or omission of a public official or employee or of a private individual or entity engaged in the gathering, collecting or storing of data or information regarding the person, family, home and correspondence of the aggrieved party. (Emphasis and underscoring supplied)

From the above-quoted provisions, the coverage of the writs is limited to the protection of rights to life, liberty and security. And the writs cover not only actual but also threats of unlawful acts or omissions. Secretary of National Defense v. Manalo[14] teaches: As the Amparo Rule was intended to address the intractable problem of “extralegal killings” and “enforced disappearances,” its coverage, in its present form, is confined to these two instances or to threats thereof. “Extralegal killings” are “killings committed without due process of law, i.e., without legal safeguards or judicial proceedings.” On the other hand, “enforced disappearances” are “attended by the following characteristics: an arrest, detention or abduction of a person by a government official or organized groups or private individuals acting with the direct or indirect acquiescence of the government; the refusal of the State to disclose the fate or whereabouts of the person concerned or a refusal to acknowledge the deprivation of liberty which places such persons outside the protection of law.[15] (Underscoring supplied, citations omitted)

To thus be covered by the privilege of the writs, respondents must meet the threshold requirement that their right to life, libertyand security is violated or threatened with an unlawful act or omission. Evidently, the present controversy arose out of a propertydispute between the Provincial Government and respondents. Absent any considerable nexus between the acts complained of and

its effect on respondents‟ right to life, liberty and security, the Court will not delve on the propriety of petitioners‟ entry into the property. Apropos is the Court‟s ruling in Tapuz v. Del Rosario:[16] To start off with the basics, the writ of amparo was originally conceived as a response to the extraordinary rise in the number of killings and enforced disappearances, and to the perceived lack of available and effective remedies to address these extraordinary concerns. It is intended to address violations of or threats to the rights to life, liberty or security, as an extraordinary and independent remedy beyond those available under the prevailing Rules, or as a remedy supplemental to these Rules. What it is not, is a writ to protect concerns that are purely property or commercial. Neither is it a writ that we shall issue on amorphous and uncertain grounds. Consequently, the Rule on the Writ of Amparo – in line with the extraordinary character of the writ and the reasonable certainty that its issuance demands – requires that every petition for the issuance of the writ must be supported by justifying allegations of fact, to wit: xxxx The writ shall issue if the Court is preliminarily satisfied with the prima facie existence of the ultimate facts determinable from the supporting affidavits that detail the circumstances of how and to what extent a threat to or violation of the rights to life, liberty and security of the aggrieved party was or is being committed.[17] (Emphasis and italics in the original, citation omitted)

Tapuz also arose out of a property dispute, albeit between private individuals, with the petitioners therein branding as “acts of terrorism” the therein respondents‟ alleged entry into the disputed land with armed men in tow. The Court therein held: On the whole, what is clear from these statements – both sworn and unsworn – is the overriding involvement of property issues as the petition traces its roots to questions of physical possession of the property disputed by the private parties. If at all, issues relating to the right to life or to liberty can hardly be discerned except to the extent that the occurrence of past violence has been alleged. The right to security, on the other hand, is alleged only to the extent of the treats and harassments implied from the presence of “armed men bare to the waist” and the alleged pointing and firing of weapons. Notably, none of the supporting affidavits compellingly show that the threat to the rights to life, liberty and security of the petitioners is imminent or continuing.[18] (Emphasis in the original; underscoring supplied)

It bears emphasis that respondents‟ petition did not show any actual violation, imminent or continuing threat to their life, liberty and security. Bare allegations that petitioners “in unison, conspiracy and in contempt of court, there and then willfully, forcibly and feloniously with the use of force and intimidation entered and forcibly, physically manhandled the petitioners (respondents) and arrested the herein petitioners (respondents)”[19] will not suffice to prove entitlement to the remedy of the writ of amparo. No undue confinement or detention was present. In fact, respondents were even able to post bail for the offenses a day after their arrest.[20] Although respondents‟ release from confinement does not necessarily hinder supplication for the writ of amparo, absent any evidence or even an allegation in the petition that there is undue and continuing restraint on their liberty, and/or that there exists threat or intimidation that destroys the efficacy of their right to be secure in their persons, the issuance of the writ cannot be justified. That respondents are merely seeking the protection of their property rights is gathered from their Joint Affidavit, viz: xxxx 11. Kami ay humarang at humiga sa harap ng mga heavy equipment na hawak hawak ang nasabing kautusan ng RTC Branch 10 (PERMANENT INJUNCTION at RTC ORDERS DATED February 12, 17 at 19 2008) upang ipaglaban ang dignidad ng kautusan ng korte, ipaglaban ang prinsipyo ng “SELF-HELP” at batas ukol sa “PROPERTY RIGHTS”, Wala kaming nagawa ipagtanggol ang aming karapatan sa lupa na 45 years naming “IN POSSESSION.” (Underscoring supplied)

Oddly, respondents also seek the issuance of a writ of habeas data when it is not even alleged that petitioners are gathering, collecting or storing data or information regarding their person, family, home and correspondence. As for respondents‟ assertion of past incidents[21] wherein the Province allegedly violated the Permanent Injunction order, these incidents were already

raised in the injunction proceedings on account of which respondents filed a case for criminal contempt against petitioners.[22] Before the filing of the petition for writs of amparo and habeas data, or on February 22, 2008, petitioners even instituted a petition for habeas corpus which was considered moot and academic by Branch 14 of the Malolos RTC and was accordingly denied by Order of April 8, 2008. More. Respondent Amanda and one of her sons, Francisco Jr., likewise filed a petition for writs of amparo and habeas databefore the Sandiganbayan, they alleging the commission of continuing threats by petitioners after the issuance of the writs by the RTC, which petition was dismissed for insufficiency and forum shopping. It thus appears that respondents are not without recourse and have in fact taken full advantage of the legal system with the filing of civil, criminal and administrative charges.[23]

It need not be underlined that respondents‟ petitions for writs of amparo and habeas data are extraordinary remedies which cannot be used as tools to stall the execution of a final and executory decision in a property dispute. AT ALL EVENTS, respondents‟ filing of the petitions for writs of amparo and habeas data should have been barred, for criminal proceedings against them had commenced after they were arrested in flagrante delicto and proceeded against in accordance with Section 6, Rule 112[24] of the Rules of Court. Validity of the arrest or the proceedings conducted thereafter is a defense that may be set up by respondents during trial and not before a petition for writs of amparo and habeas data. The reliefs afforded by the writs may, however, be made available to the aggrieved party by motion in the criminal proceedings.[25] WHEREFORE, the petition is GRANTED. The challenged March 4, 2008 Order of Branch 10 of the Regional Trial Court of Malolos is DECLARED NULL AND VOID, and its March 28, 2008 Decision is REVERSED and SET ASIDE. Special Civil Action No. 53-M-2008 is DISMISSED.

SO ORDERED. CONCHITA CARPIO MORALES Associate Justice

WE CONCUR:

REYNATO S. PUNO Chief Justice

ANTONIO T. CARPIO Associate Justice

MINITA V. CHICO-NAZARIO Associate Justice

ANTONIO EDUARDO B. NACHURA Associate Justice

ARTURO D. BRION Associate Justice

(ON OFFICIAL LEAVE) RENATO C. CORONA Associate Justice

(ON OFFICIAL LEAVE) PRESBITERO J. VELASCO, JR. Associate Justice

TERESITA J. LEONARDO-DE CASTRO Associate Justice

(ON OFFICIAL LEAVE) DIOSDADO M. PERALTA Associate Justice

LUCAS P. BERSAMIN Associate Justice

ROBERTO A. ABAD Associate Justice

MARIANO C. DEL CASTILLO Associate Justice

MARTIN S. VILLARAMA, JR. Associate Justice

CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution, I hereby certify that the conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the opinion of the Court.

REYNATO S. PUNO Chief Justice

* [1]

[2]

[3]

[4]

On Official Leave. P/Supt. Felixberto Castillo (Chief of Police), SPO1 Romeo Bagtas, SPO3 Ruperto Borlongan, PO Edmundo Dionisio, PO Ronnie Morales, PO Arnold Tria and PO Gilberto Punzalan (police officers), Engineer Ricasol Millan (Chief, City Engineer‟s Office) Engineer Redentor S. dela Cruz (City Engineer‟s Office), Anastacio Borlongan (City Administrator), Artemio Esguerra and Rolando “Tisoy” Cruz. Petition for Annulment of Judgment with prayer for Writ of Preliminary Injunction before RTC-Malolos; Petition for Certiorari before the Court of Appeals, questioning the denial of Spouses Cruzes‟ motion for inhibition against the Presiding Judge of Branch 18, RTC-Malolos; Complaint for Damages before RTCQuezon City, Civil Case for Injunction before RTC-Malolos. Criminal Complaint against Presiding Judge of Branch 18 RTC-Malolos, dismissed by Resolution of May 3, 2004; Administrative Complaint docketed as A.M. No. CA-04-38 against Court of Appeals Justice Portia A. Hormachuelos, RTC Judges Victoria C. Fernandez-Bernardo, Renato C. Francisco, Manuel DJ Siayngco, Caesar A. Casanova and MTC Judge Ester R. Chua-Yu. The complaint was dismissed by Resolution of March 31, 2004. Cruz was found guilty of contempt of court and consequently fined in the amount of P20,000.00. Rollo, p. 171.

[5] [6] [7] [8] [9] [10]

[11] [12] [13] [14] [15] [16] [17] [18] [19] [20] [21] [22] [23] [24]

[25]

Id. at 151-153. Id. at 173, “Sama-Samang Sinumpaang Salaysay.” Id. at 178-180. Id. at 127-128. Id. at 131. Sec. 19. Appeal. – Any party may appeal from the final judgment or order to the Supreme Court under Rule 45. The appeal may raise questions of facts or law or both. The period of appeal shall be five (5) working days from the date of notice of the adverse judgment. The appeal shall be given the same priority as habeas corpus cases. Took effect on October 24, 2007. Took effect on February 2, 2008. Article VIII, Section 5 (5). G.R. No. 180906, October 7, 2008, 568 SCRA 1. Id. at 38 – 39. G.R. No. 182484, June 17, 2008, 554 SCRA 768. Id. at 784-785. Id. at 786. Rollo, p. 94. Ibid. Id. at 95. Docketed as Sp. Civil Action No. 306-M-2006, id. at 409-411. Vide Notes 2 and 3. When a person is lawfully arrested without a warrant involving an offense, which requires a preliminary investigation, the complaint or information may be filed by a prosecutor without need of such investigation provided an inquest has been conducted in accordance with existing Rules. In the absence or unavailability of an inquest prosecutor, the complaint may be filed by the offended party or a peace officer directly with the proper court on the basis of the affidavit of the offended party or arresting officer or person. x x x Section 22. Effect of Filing of a Criminal Action. – When a criminal action has been commenced, no separate petition for the writ shall be filed. The reliefs under the writ shall be made available by motion in the criminal case. x x x (The same section is reproduced in the Rules on the Writ of Habeas Data, also at Section 22).

Republic of the Philippines

Supreme Court Manila EN BANC

THE SECRETARY OF NATIONAL DEFENSE, THE CHIEF OF STAFF, ARMED FORCES OF THEPHILIPPINES, Petitioners,

G.R. No. 180906 Present: PUNO, C.J., QUISUMBING, YNARESSANTIAGO,

- versus -

RAYMOND MANALO and REYNALDO MANALO, Respondents.

CARPIO, AUSTRIAMARTINEZ, CORONA, CARPIO MORALES, AZCUNA, TINGA, CHICONAZARIO, VELASCO, JR., NACHURA, REYES, LEONARDO-DE CASTRO, and BRION, JJ. Promulgated:

October 7, 2008 x- - -- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x DECISION PUNO, C.J.: While victims of enforced disappearances are separated from the rest of the world behind secret walls, they are not separated from the constitutional protection of their basic rights. The constitution is an overarching sky that covers all in its protection. The case at bar involves the rights to life, liberty and security in the first petition for a writ of amparo filed before this Court. This is an appeal via Petition for Review under Rule 45 of the Rules of Court in relation to Section 19[1] of the Rule on the Writ of Amparo, seeking to reverse and set aside on both questions of fact and law, the Decision promulgated by the Court of Appeals in C.A. G.R. AMPARO No. 00001, entitled “Raymond Manalo and Reynaldo Manalo, petitioners, versus The Secretary of National Defense, the Chief of Staff, Armed Forces of the Philippines, respondents.”

This case was originally a Petition for Prohibition, Injunction, and Temporary Restraining Order (TRO)[2] filed before this Court by herein respondents (therein petitioners) on August 23, 2007 to stop herein petitioners (therein respondents) and/or their officers and agents from depriving them of their right to liberty and other basic rights. Therein petitioners also sought ancillary remedies, Protective Custody Orders, Appointment of Commissioner, Inspection and Access Orders, and all other legal and equitable reliefs under Article VIII, Section 5(5)[3] of the 1987 Constitution and Rule 135, Section 6 of the Rules of Court. In our Resolution dated August 24, 2007, we (1) ordered the Secretary of the Department of National Defense and the Chief of Staff of the AFP, their agents, representatives, or persons acting in their stead, including but not limited to the Citizens Armed Forces Geographical Unit (CAFGU) to submit their Comment; and (2) enjoined them from causing the arrest of therein petitioners, or otherwise restricting, curtailing, abridging, or depriving them of their right to life, liberty, and other basic rights as guaranteed under Article III, Section 1[4] of the 1987 Constitution.[5] While the August 23, 2007 Petition was pending, the Rule on the Writ of Amparo took effect on October 24, 2007. Forthwith, therein petitioners filed a Manifestation and Omnibus Motion to Treat Existing Petition as Amparo Petition, to Admit Supporting Affidavits, and to Grant Interim and Final Amparo Reliefs. They prayed that: (1) the petition be considered a Petition for the Writ ofAmparo under Sec. 26[6] of the Amparo Rule; (2) the Court issue the writ commanding therein respondents to make a verified return within the period provided by law and containing the specific matter required by law; (3) they be granted the interim reliefs allowed by the Amparo Rule and all other reliefs prayed for in the petition but not covered by the Amparo Rule; (4) the Court, after hearing, render judgment as required in Sec. 18[7] of the Amparo Rule; and (5) all other just and equitable reliefs.[8] On October 25, 2007, the Court resolved to treat the August 23, 2007 Petition as a petition under the Amparo Rule and further resolved, viz: WHEREFORE, let a WRIT OF AMPARO be issued to respondents requiring them to file with the CA (Court of Appeals) a verified written return within five (5) working days from service of the writ. We REMAND the petition to the CA and designate the Division of Associate Justice Lucas P. Bersamin to conduct the summary hearing on the petition on November 8, 2007 at 2:00

p.m. and decide the petition in accordance with the Rule on the Writ of Amparo.[9]

On December 26, 2007, the Court of Appeals rendered a decision in favor of therein petitioners (herein respondents), the dispositive portion of which reads, viz: ACCORDINGLY, the PRIVILEGE AMPARO is GRANTED.

OF

THE

WRIT

OF

The respondents SECRETARY OF NATIONAL DEFENSE and AFP CHIEF OF STAFF are hereby REQUIRED: 1. To furnish to the petitioners and to this Court within five days from notice of this decision all official and unofficial reports of the investigation undertaken in connection with their case, except those already on file herein; 2. To confirm in writing the present places of official assignment of M/Sgt Hilario aka Rollie Castillo and Donald Caigas within five days from notice of this decision. 3. To cause to be produced to this Court all medical reports, records and charts, reports of any treatment given or recommended and medicines prescribed, if any, to the petitioners, to include a list of medical and (sic) personnel (military and civilian) who attended to them from February 14, 2006 until August 12, 2007 within five days from notice of this decision. The compliance with this decision shall be made under the signature and oath of respondent AFP Chief of Staff or his duly authorized deputy, the latter‟s authority to be express and made apparent on the face of the sworn compliance with this directive. SO ORDERED.[10]

Hence, this appeal. In resolving this appeal, we first unfurl the facts as alleged by herein respondents: Respondent Raymond Manalo recounted that about one or two weeks before February 14, 2006, several uniformed and armed soldiers and members of the CAFGU summoned to a meeting all the residents of their barangay in San Idelfonso, Bulacan. Respondents were not able to attend as they were not informed of the gathering, but Raymond saw some of the soldiers when he passed by the barangay hall.[11]

On February 14, 2006, Raymond was sleeping in their house in Buhol na Mangga, San Ildefonso, Bulacan. At past noon, several armed soldiers wearing white shirts, fatigue pants and army boots, entered their house and roused him. They asked him if he was Bestre, but his mother, Ester Manalo, replied that he was Raymond, not Bestre. The armed soldier slapped him on both cheeks and nudged him in the stomach. He was then handcuffed, brought to the rear of his house, and forced to the ground face down. He was kicked on the hip, ordered to stand and face up to the light, then forcibly brought near the road. He told his mother to follow him, but three soldiers stopped her and told her to stay.[12] Among the men who came to take him, Raymond recognized brothers Michael de la Cruz, Madning de la Cruz, “Puti” de la Cruz, and “Pula” de la Cruz, who all acted as lookout. They were all members of the CAFGU and residing in Manuzon, San Ildefonso, Bulacan. He also recognized brothers Randy Mendoza and Rudy Mendoza, also members of the CAFGU. While he was being forcibly taken, he also saw outside of his house two barangay councilors, Pablo Cunanan and Bernardo Lingasa, with some soldiers and armed men.[13] The men forced Raymond into a white L300 van. Once inside, he was blindfolded. Before being blindfolded, he saw the faces of the soldiers who took him. Later, in his 18 months of captivity, he learned their names. The one who drove the van was Rizal Hilario alias Rollie Castillo, whom he estimated was about 40 years of age or older. The leader of the team who entered his house and abducted him was “Ganata.” He was tall, thin, curly-haired and a bit old. Another one of his abductors was “George” who was tall, thin, white-skinned and about 30 years old.[14] The van drove off, then came to a stop. A person was brought inside the van and made to sit beside Raymond. Both of them were beaten up. On the road, he recognized the voice of the person beside him as his brother Reynaldo‟s. The van stopped several times until they finally arrived at a house. Raymond and Reynaldo were each brought to a different room. With the doors of their rooms left open, Raymond saw several soldiers continuously hitting his brother Reynaldo on the head and other parts of his body with the butt of their guns for about 15 minutes. After which, Reynaldo was brought to his (Raymond‟s) room and it was his (Raymond‟s) turn to be beaten up in the other room. The soldiers asked him if he was a member of the New People‟s Army. Each time he said he was not, he

was hit with the butt of their guns. He was questioned where his comrades were, how many soldiers he had killed, and how many NPA members he had helped. Each time he answered none, they hit him.[15] In the next days, Raymond‟s interrogators appeared to be high officials as the soldiers who beat him up would salute them, call them “sir,” and treat them with respect. He was in blindfolds when interrogated by the high officials, but he saw their faces when they arrived and before the blindfold was put on. He noticed that the uniform of the high officials was different from those of the other soldiers. One of those officials was tall and thin, wore white pants, tie, and leather shoes, instead of combat boots. He spoke in Tagalog and knew much about his parents and family, and a habeas corpus case filed in connection with the respondents‟ abduction.[16] While these officials interrogated him, Raymond was not manhandled. But once they had left, the soldier guards beat him up. When the guards got drunk, they also manhandled respondents. During this time, Raymond was fed only at night, usually with left-over and rotten food.[17] On the third week of respondents‟ detention, two men arrived while Raymond was sleeping and beat him up. They doused him with urine and hot water, hit his stomach with a piece of wood, slapped his forehead twice with a .45 pistol, punched him on the mouth, and burnt some parts of his body with a burning wood. When he could no longer endure the torture and could hardly breathe, they stopped. They then subjected Reynaldo to the same ordeal in another room. Before their torturers left, they warned Raymond that they would come back the next day and kill him.[18] The following night, Raymond attempted to escape. He waited for the guards to get drunk, then made noise with the chains put on him to see if they were still awake. When none of them came to check on him, he managed to free his hand from the chains and jumped through the window. He passed through a helipad and firing range and stopped near a fishpond where he used stones to break his chains. After walking through a forested area, he came near a river and an Iglesia ni Kristo church. He talked to some women who were doing the laundry, asked where he was and the road to Gapan. He was told that he was in Fort Magsaysay.[19] He reached the highway, but some soldiers spotted him, forcing him to run away. The soldiers chased him and caught up with him. They brought him to another place near the entrance of what he saw

was Fort Magsaysay. He was boxed repeatedly, kicked, and hit with chains until his back bled. They poured gasoline on him. Then a so-called “Mam” or “Madam” suddenly called, saying that she wanted to see Raymond before he was killed. The soldiers ceased the torture and he was returned inside Fort Magsaysay where Reynaldo was detained.[20] For some weeks, the respondents had a respite from all the torture. Their wounds were treated. When the wounds were almost healed, the torture resumed, particularly when respondents‟ guards got drunk.[21] Raymond recalled that sometime in April until May 2006, he was detained in a room enclosed by steel bars. He stayed all the time in that small room measuring 1 x 2 meters, and did everything there, including urinating, removing his bowels, bathing, eating and sleeping. He counted that eighteen people[22] had been detained in that bartolina, including his brother Reynaldo and himself.[23] For about three and a half months, the respondents were detained in Fort Magsaysay. They were kept in a small house with two rooms and a kitchen. One room was made into the bartolina. The house was near the firing range, helipad and mango trees. At dawn, soldiers marched by their house. They were also sometimes detained in what he only knew as the “DTU.”[24] At the DTU, a male doctor came to examine respondents. He checked their body and eyes, took their urine samples and marked them. When asked how they were feeling, they replied that they had a hard time urinating, their stomachs were aching, and they felt other pains in their body. The next day, two ladies in white arrived. They also examined respondents and gave them medicines, including orasol, amoxicillin and mefenamic acid. They brought with them the results of respondents‟ urine test and advised them to drink plenty of water and take their medicine. The two ladies returned a few more times. Thereafter, medicines were sent through the “master” of the DTU, “Master” Del Rosario alias Carinyoso at Puti. Respondents were kept in the DTU for about two weeks. While there, he met a soldier named Efren who said that Gen. Palparan ordered him to monitor and take care of them.[25] One day, Rizal Hilario fetched respondents in a Revo vehicle. They, along with Efren and several other armed men wearing fatigue suits, went to a

detachment in Pinaud, San Ildefonso, Bulacan. Respondents were detained for one or two weeks in a big two-storey house. Hilario and Efren stayed with them. While there, Raymond was beaten up by Hilario‟s men.[26] From Pinaud, Hilario and Efren brought respondents to Sapang, San Miguel, Bulacan on board the Revo. They were detained in a big unfinished house inside the compound of “Kapitan” for about three months. When they arrived in Sapang, Gen. Palparan talked to them. They were brought out of the house to a basketball court in the center of the compound and made to sit. Gen. Palparan was already waiting, seated. He was about two arms‟ length away from respondents. He began by asking if respondents felt well already, to which Raymond replied in the affirmative. He asked Raymond if he knew him. Raymond lied that he did not. He then asked Raymond if he would be scared if he were made to face Gen. Palparan. Raymond responded that he would not be because he did not believe that Gen. Palparan was an evil man.[27] Raymond narrated his conversation with Gen. Palparan in his affidavit, viz: Tinanong ako ni Gen. Palparan, “Ngayon na kaharap mo na ako, di ka ba natatakot sa akin?” Sumagot akong, “Siyempre po, natatakot din…” Sabi ni Gen. Palparan: “Sige, bibigyan ko kayo ng isang pagkakataon na mabuhay, basta‟t sundin n‟yo ang lahat ng sasabihin ko… sabihin mo sa magulang mo – huwag pumunta sa mga rali, sa hearing, sa Karapatan at sa Human Right dahil niloloko lang kayo. Sabihin sa magulang at lahat sa bahay na huwag paloko doon. Tulungan kami na kausapin si Bestre na sumuko na sa gobyerno.”[28]

Respondents agreed to do as Gen. Palparan told them as they felt they could not do otherwise. At about 3:00 in the morning, Hilario, Efren and the former‟s men - the same group that abducted them - brought them to their parents‟ house. Raymond was shown to his parents while Reynaldo stayed in the Revo because he still could not walk. In the presence of Hilario and other soldiers, Raymond relayed to his parents what Gen. Palparan told him. As they were afraid, Raymond‟s parents acceded. Hilario threatened Raymond‟s parents that if they continued to join human rights rallies, they would never see their children again. The respondents were then brought back to Sapang.[29]

When respondents arrived back in Sapang, Gen. Palparan was about to leave. He was talking with the four “masters” who were there: Arman, Ganata, Hilario and Cabalse.[30] When Gen. Palparan saw Raymond, he called for him. He was in a big white vehicle. Raymond stood outside the vehicle as Gen. Palparan told him to gain back his strength and be healthy and to take the medicine he left for him and Reynaldo. He said the medicine was expensive at Php35.00 each, and would make them strong. He also said that they should prove that they are on the side of the military and warned that they would not be given another chance.[31] During his testimony, Raymond identified Gen. Palparan by his picture.[32] One of the soldiers named Arman made Raymond take the medicine left by Gen. Palparan. The medicine, named “Alive,” was green and yellow. Raymond and Reynaldo were each given a box of this medicine and instructed to take one capsule a day. Arman checked if they were getting their dose of the medicine. The “Alive” made them sleep each time they took it, and they felt heavy upon waking up.[33] After a few days, Hilario arrived again. He took Reynaldo and left Raymond at Sapang. Arman instructed Raymond that while in Sapang, he should introduce himself as “Oscar,” a military trainee from Sariaya, Quezon, assigned in Bulacan. While there, he saw again Ganata, one of the men who abducted him from his house, and got acquainted with other military men and civilians.[34] After about three months in Sapang, Raymond was brought to Camp Tecson under the 24th Infantry Battalion. He was fetched by three unidentified men in a big white vehicle. Efren went with them. Raymond was then blindfolded. After a 30-minute ride, his blindfold was removed. Chains were put on him and he was kept in the barracks.[35] The next day, Raymond‟s chains were removed and he was ordered to clean outside the barracks. It was then he learned that he was in a detachment of the Rangers. There were many soldiers, hundreds of them were training. He was also ordered to clean inside the barracks. In one of the rooms therein, he met Sherlyn Cadapan from Laguna. She told him that she was a student of the University of the Philippines and was abducted in Hagonoy, Bulacan. She confided that she had been subjected to severe torture and raped. She was crying and longing to go

home and be with her parents. During the day, her chains were removed and she was made to do the laundry.[36] After a week, Reynaldo was also brought to Camp Tecson. Two days from his arrival, two other captives, Karen Empeño and Manuel Merino, arrived. Karen and Manuel were put in the room with “Allan” whose name they later came to know as Donald Caigas, called “master” or “commander” by his men in the 24th Infantry Battalion. Raymond and Reynaldo were put in the adjoining room. At times, Raymond and Reynaldo were threatened, and Reynaldo was beaten up. In the daytime, their chains were removed, but were put back on at night. They were threatened that if they escaped, their families would all be killed.[37] On or about October 6, 2006, Hilario arrived in Camp Tecson. He told the detainees that they should be thankful they were still alive and should continue along their “renewed life.” Before the hearing of November 6 or 8, 2006, respondents were brought to their parents to instruct them not to attend the hearing. However, their parents had already left for Manila. Respondents were brought back to Camp Tecson. They stayed in that camp from September 2006 to November 2006, and Raymond was instructed to continue using the name “Oscar” and holding himself out as a military trainee. He got acquainted with soldiers of the 24th Infantry Battalion whose names and descriptions he stated in his affidavit.[38] On November 22, 2006, respondents, along with Sherlyn, Karen, and Manuel, were transferred to a camp of the 24th Infantry Battalion in Limay, Bataan. There were many huts in the camp. They stayed in that camp until May 8, 2007. Some soldiers of the battalion stayed with them. While there, battalion soldiers whom Raymond knew as “Mar” and “Billy” beat him up and hit him in the stomach with their guns. Sherlyn and Karen also suffered enormous torture in the camp. They were all made to clean, cook, and help in raising livestock.[39] Raymond recalled that when “Operation Lubog” was launched, Caigas and some other soldiers brought him and Manuel with them to take and kill all sympathizers of the NPA. They were brought to Barangay Bayanbayanan, Bataan where he witnessed the killing of an old man doing kaingin. The

soldiers said he was killed because he had a son who was a member of the NPA and he coddled NPA members in his house.[40] Another time, in another “Operation Lubog,” Raymond was brought to Barangay Orion in a house where NPA men stayed. When they arrived, only the old man of the house who was sick was there. They spared him and killed only his son right before Raymond‟s eyes.[41] From Limay, Raymond, Reynaldo, Sherlyn, Karen, and Manuel were transferred to Zambales, in a safehouse near the sea. Caigas and some of his men stayed with them. A retired army soldier was in charge of the house. Like in Limay, the five detainees were made to do errands and chores. They stayed in Zambales from May 8 or 9, 2007 until June 2007.[42] In June 2007, Caigas brought the five back to the camp in Limay. Raymond, Reynaldo, and Manuel were tasked to bring food to detainees brought to the camp. Raymond narrated what he witnessed and experienced in the camp, viz: Isang gabi, sinabihan kami ni Donald (Caigas) na matulog na kami. Nakita ko si Donald na inaayos ang kanyang baril, at nilagyan ng silenser. Sabi ni Donald na kung mayroon man kaming makita o marinig, walang nangyari. Kinaumagahan, nakita naming ang bangkay ng isa sa mga bihag na dinala sa kampo. Mayroong binuhos sa kanyang katawan at ito‟y sinunog. Masansang ang amoy. Makaraan ang isang lingo, dalawang bangkay and ibinaba ng mga unipormadong sundalo mula sa 6 x 6 na trak at dinala sa loob ng kampo. May naiwang mga bakas ng dugo habang hinihila nila ang mga bangkay. Naamoy ko iyon nang nililinis ang bakas. Makalipas ang isa o dalawang lingo, may dinukot sila na dalawang Ita. Itinali sila sa labas ng kubo, piniringan, ikinadena at labis na binugbog. Nakita kong nakatakas ang isa sa kanila at binaril siya ng sundalo ngunit hindi siya tinamaan. Iyong gabi nakita kong pinatay nila iyong isang Ita malapit sa Post 3; sinilaban ang bangkay at ibinaon ito. Pagkalipas ng halos 1 buwan, 2 pang bangkay ang dinala sa kampo. Ibinaba ang mga bangkay mula sa pick up trak, dinala ang mga bangkay sa labas ng bakod. Kinaumagahan nakita kong mayroong sinilaban, at napakamasangsang ang amoy. May nakilala rin akong 1 retiradong koronel at 1 kasama niya. Pinakain ko sila. Sabi nila sa akin na dinukot sila sa Bataan. Iyong gabi, inilabas sila at hindi ko na sila nakita.

xxx

xxx

xxx

Ikinadena kami ng 3 araw. Sa ikatlong araw, nilabas ni Lat si Manuel dahil kakausapin daw siya ni Gen. Palparan. Nakapiring si Manuel, wala siyang suot pang-itaas, pinosasan. Nilakasan ng mga sundalo ang tunog na galing sa istiryo ng sasakyan. Di nagtagal, narinig ko ang hiyaw o ungol ni Manuel. Sumilip ako sa isang haligi ng kamalig at nakita kong sinisilaban si Manuel. Kinaumagahan, naka-kadena pa kami. Tinanggal ang mga kadena mga 3 o 4 na araw pagkalipas. Sinabi sa amin na kaya kami nakakadena ay dahil pinagdedesisyunan pa ng mga sundalo kung papatayin kami o hindi. Tinanggal ang aming kadena. Kinausap kami ni Donald. Tinanong kami kung ano ang sabi ni Manuel sa amin. Sabi ni Donald huwag na raw naming hanapin ang dalawang babae at si Manuel, dahil magkakasama na yung tatlo. Sabi pa ni Donald na kami ni Reynaldo ay magbagong buhay at ituloy namin ni Reynaldo ang trabaho. Sa gabi, hindi na kami kinakadena.[43]

On or about June 13, 2007, Raymond and Reynaldo were brought to Pangasinan, ostensibly to raise poultry for Donald (Caigas). Caigas told respondents to also farm his land, in exchange for which, he would take care of the food of their family. They were also told that they could farm a small plot adjoining his land and sell their produce. They were no longer put in chains and were instructed to use the names Rommel (for Raymond) and Rod (for Reynaldo) and represent themselves as cousins from Rizal, Laguna.[44] Respondents started to plan their escape. They could see the highway from where they stayed. They helped farm adjoining lands for which they were paid Php200.00 or Php400.00 and they saved their earnings. When they had saved Php1,000.00 each, Raymond asked a neighbor how he could get a cellular phone as he wanted to exchange text messages with a girl who lived nearby. A phone was pawned to him, but he kept it first and did not use it. They earned some more until they had saved Php1,400.00 between them. There were four houses in the compound. Raymond and Reynaldo were housed in one of them while their guards lived in the other three. Caigas entrusted respondents to Nonong, the head of the guards. Respondents‟ house did not have electricity. They used a lamp. There was no television, but they had a radio. In the evening of August 13, 2007, Nonong and his cohorts had a drinking

session. At about 1:00 a.m., Raymond turned up the volume of the radio. When none of the guards awoke and took notice, Raymond and Reynaldo proceeded towards the highway, leaving behind their sleeping guards and barking dogs. They boarded a bus bound forManila and were thus freed from captivity.[45] Reynaldo also executed an affidavit affirming the contents of Raymond‟s affidavit insofar as they related to matters they witnessed together. Reynaldo added that when they were taken from their house on February 14, 2006, he saw the faces of his abductors before he was blindfolded with his shirt. He also named the soldiers he got acquainted with in the 18 months he was detained. When Raymond attempted to escape from Fort Magsaysay, Reynaldo was severely beaten up and told that they were indeed members of the NPA because Raymond escaped. With a .45 caliber pistol, Reynaldo was hit on the back and punched in the face until he could no longer bear the pain. At one point during their detention, when Raymond and Reynaldo were in Sapang, Reynaldo was separated from Raymond and brought to Pinaud by Rizal Hilario. He was kept in the house of Kapitan, a friend of Hilario, in a mountainous area. He was instructed to use the name “Rodel” and to represent himself as a military trainee from Meycauayan, Bulacan. Sometimes, Hilario brought along Reynaldo in his trips. One time, he was brought to a market in San Jose, del Monte, Bulacan and made to wait in the vehicle while Hilario was buying. He was also brought to Tondo, Manila where Hilario delivered boxes of “Alive” in different houses. In these trips, Hilario drove a black and red vehicle. Reynaldo was blindfolded while still in Bulacan, but allowed to remove the blindfold once outside the province. In one of their trips, they passed by Fort Magsaysay and Camp Tecson where Reynaldo saw the sign board, “Welcome to Camp Tecson.”[46] Dr. Benito Molino, M.D., corroborated the accounts of respondents Raymond and Reynaldo Manalo. Dr. Molino specialized in forensic medicine and was connected with the Medical Action Group, an organization handling cases of human rights violations, particularly cases where torture was involved. He was requested by an NGO to conduct medical examinations on the respondents after their escape. He first asked them about their ordeal, then proceeded with the physical examination. His findings showed that the scars borne by respondents were consistent with their account of physical injuries inflicted upon them. The

examination was conducted onAugust 15, 2007, two days after respondents‟ escape, and the results thereof were reduced into writing. Dr. Molino took photographs of the scars. He testified that he followed the Istanbul Protocol in conducting the examination.[47] Petitioners dispute respondents‟ account of their alleged abduction and torture. In compliance with the October 25, 2007Resolution of the Court, they filed a Return of the Writ of Amparo admitting the abduction but denying any involvement therein, viz: 13. Petitioners Raymond and Reynaldo Manalo were not at any time arrested, forcibly abducted, detained, held incommunicado, disappeared or under the custody by the military. This is a settled issue laid to rest in the habeas corpus case filed in their behalf by petitioners‟ parents before the Court of Appeals in C.A.-G.R. SP No. 94431 against M/Sgt. Rizal Hilario aka Rollie Castillo, as head of the 24th Infantry Battalion; Maj. Gen. Jovito Palparan, as Commander of the 7th Infantry Division in Luzon; Lt. Gen. Hermogenes Esperon, in his capacity as the Commanding General of the Philippine Army, and members of the Citizens Armed Forces Geographical Unit (CAFGU), namely: Michael dela Cruz, Puti dela Cruz, Madning dela Cruz, Pula dela Cruz, Randy Mendoza and Rudy Mendoza. The respondents therein submitted a return of the writ… On July 4, 2006, the Court of Appeals dropped as party respondents Lt. Gen. Hermogenes C. Esperon, Jr., then Commanding General of the Philippine Army, and on September 19, 2006, Maj. (sic) Jovito S. Palparan, then Commanding General, 7th Infantry Division, Philippine Army, stationed at Fort Magsaysay, Palayan City, Nueva Ecija, upon a finding that no evidence was introduced to establish their personal involvement in the taking of the Manalo brothers. In a Decision dated June 27, 2007…, it exonerated M/Sgt. Rizal Hilario aka Rollie Castillo for lack of evidence establishing his involvement in any capacity in the disappearance of the Manalo brothers, although it held that the remaining respondents were illegally detaining the Manalo brothers and ordered them to release the latter.[48]

Attached to the Return of the Writ was the affidavit of therein respondent (herein petitioner) Secretary of National Defense, which attested that he assumed office only on August 8, 2007 and was thus unaware of the Manalo brothers‟ alleged abduction. He also claimed that: 7. The Secretary of National Defense does not engage in actual military directional operations, neither does he undertake command directions of the AFP units in the field, nor in any way micromanage the AFP operations. The principal responsibility of the Secretary of National Defense is focused in

providing strategic policy direction to the Department (bureaus and agencies) including the Armed Forces of the Philippines; 8. In connection with the Writ of Amparo issued by the Honorable Supreme Court in this case, I have directed the Chief of Staff, AFP to institute immediate action in compliance with Section 9(d) of the Amparo Rule and to submit report of such compliance… Likewise, in a Memorandum Directive also dated October 31, 2007, I have issued a policy directive addressed to the Chief of Staff, AFP that the AFP should adopt the following rules of action in the event the Writ of Amparo is issued by a competent court against any members of the AFP: (1) to verify the identity of the aggrieved party; (2) to recover and preserve evidence related to the death or disappearance of the person identified in the petition which may aid in the prosecution of the person or persons responsible; (3) to identify witnesses and obtain statements from them concerning the death or disappearance; (4) to determine the cause, manner, location and time of death or disappearance as well as any pattern or practice that may have brought about the death or disappearance; (5) to identify and apprehend the person or persons involved in the death or disappearance; and (6) to bring the suspected offenders before a competent court.[49]

Therein respondent AFP Chief of Staff also submitted his own affidavit, attached to the Return of the Writ, attesting that he received the above directive of therein respondent Secretary of National Defense and that acting on this directive, he did the following: 3.1. As currently designated Chief of Staff, Armed Forces of the Philippines (AFP), I have caused to be issued directive to the units of the AFP for the purpose of establishing the circumstances of the alleged disappearance and the recent reappearance of the petitioners. 3.2. I have caused the immediate investigation and submission of the result thereof to Higher headquarters and/or direct the immediate conduct of the investigation on the matter by the concerned unit/s, dispatching Radio Message on November 05, 2007, addressed to the Commanding General, Philippine Army (Info: COMNOLCOM, CG, 71D PA and CO 24 IB PA). A Copy of the Radio Message is attached as ANNEX “3” of this Affidavit.

3.3. We undertake to provide result of the investigations conducted or to be conducted by the concerned unit relative to the circumstances of the alleged disappearance of the persons in whose favor the Writ of Amparo has been sought for as soon as the same has been furnished Higher headquarters. 3.4. A parallel investigation has been directed to the same units relative to another Petition for the Writ of Amparo (G.R. No. 179994) filed at the instance of relatives of a certain Cadapan and Empeño pending before the Supreme Court. 3.5. On the part of the Armed Forces, this respondent will exert earnest efforts to establish the surrounding circumstances of the disappearances of the petitioners and to bring those responsible, including any military personnel if shown to have participated or had complicity in the commission of the complained acts, to the bar of justice, when warranted by the findings and the competent evidence that may be gathered in the process.[50]

Also attached to the Return of the Writ was the affidavit of Lt. Col. Felipe Anontado, INF (GSC) PA, earlier filed in G.R. No. 179994, another amparo case in this Court, involving Cadapan, Empeño and Merino, which averred among others, viz: 10) Upon reading the allegations in the Petition implicating the 24 Infantry Batallion detachment as detention area, I immediately went to the 24th IB detachment in Limay, Bataan and found no untoward incidents in the area nor any detainees by the name of Sherlyn Cadapan, Karen Empeño and Manuel Merino being held captive; th

11) There was neither any reports of any death of Manuel Merino in the 24 IB in Limay, Bataan; th

12) After going to the 24th IB in Limay, Bataan, we made further inquiries with the Philippine National Police, Limay, Bataan regarding the alleged detentions or deaths and were informed that none was reported to their good office; 13) I also directed Company Commander 1st Lt. Romeo Publico to inquire into the alleged beachhouse in Iba, Zambales also alleged to be a detention place where Sherlyn Cadapan, Karen Empeño and Manuel Merino were detained. As per the inquiry, however, no such beachhouse was used as a detention place found to have been used by armed men to detain Cadapan, Empeño and Merino.[51]

It was explained in the Return of the Writ that for lack of sufficient time, the affidavits of Maj. Gen Jovito S. Palparan (Ret.), M/Sgt. Rizal Hilario aka Rollie

Castillo, and other persons implicated by therein petitioners could not be secured in time for the submission of the Return and would be subsequently submitted.[52] Herein petitioners presented a lone witness in the summary hearings, Lt. Col. Ruben U. Jimenez, Provost Marshall, 7th Infantry Division, Philippine Army, based in Fort Magsaysay, Palayan City, Nueva Ecija. The territorial jurisdiction of this Division covers Nueva Ecija, Aurora, Bataan, Bulacan, Pampanga, Tarlac and a portion of Pangasinan.[53] The 24th Infantry Battalion is part of the 7thInfantry Division.[54] On May 26, 2006, Lt. Col. Jimenez was directed by the Commanding General of the 7th Infantry Division, Maj. Gen. Jovito Palaran,[55] through his Assistant Chief of Staff,[56] to investigate the alleged abduction of the respondents by CAFGU auxiliaries under his unit, namely: CAA Michael de la Cruz; CAA Roman de la Cruz, aka Puti; CAA Maximo de la Cruz, aka Pula; CAA Randy Mendoza; ex-CAA Marcelo de la Cruz aka Madning; and a civilian named Rudy Mendoza. He was directed to determine: (1) the veracity of the abduction of Raymond and Reynaldo Manalo by the alleged elements of the CAFGU auxiliaries; and (2) the administrative liability of said auxiliaries, if any.[57] Jimenez testified that this particular investigation was initiated not by a complaint as was the usual procedure, but because the Commanding General saw news about the abduction of the Manalo brothers on the television, and he was concerned about what was happening within his territorial jurisdiction.[58] Jimenez summoned all six implicated persons for the purpose of having them execute sworn statements and conducting an investigation on May 29, 2006.[59] The investigation started at 8:00 in the morning and finished at 10:00 in the evening.[60] The investigating officer, Technical Sgt. Eduardo Lingad, took the individual sworn statements of all six persons on that day. There were no other sworn statements taken, not even of the Manalo family, nor were there other witnesses summoned and investigated[61] as according to Jimenez, the directive to him was only to investigate the six persons.[62] Jimenez was beside Lingad when the latter took the statements.[63] The six persons were not known to Jimenez as it was in fact his first time to meet them.[64] During the entire time that he was beside Lingad, a subordinate of his in

the Office of the Provost Marshall, Jimenez did not propound a single question to the six persons.[65] Jimenez testified that all six statements were taken on May 29, 2006, but Marcelo Mendoza and Rudy Mendoza had to come back the next day to sign their statements as the printing of their statements was interrupted by a power failure. Jimenez testified that the two signed on May 30, 2006, but the jurats of their statements indicated that they were signed on May 29, 2006.[66] When the Sworn Statements were turned over to Jimenez, he personally wrote his investigation report. He began writing it in the afternoon ofMay 30, 2006 and finished it on June 1, 2006.[67] He then gave his report to the Office of the Chief of Personnel.[68] As petitioners largely rely on Jimenez‟s Investigation Report dated June 1, 2006 for their evidence, the report is herein substantially quoted: III. BACKGROUND OF THE CASE 4. This pertains to the abduction of RAYMOND MANALO and REYNALDO MANALO who were forcibly taken from their respective homes in Brgy. Buhol na Mangga, San Ildefonso, Bulacan on 14 February 2006 by unidentified armed men and thereafter were forcibly disappeared. After the said incident, relatives of the victims filed a case for Abduction in the civil court against the herein suspects: Michael dela Cruz, Madning dela Cruz, Puti Dela Cruz, Pula Dela Cruz, Randy Mendoza and Rudy Mendoza as alleged members of the Citizen Armed Forces Geographical Unit (CAFGU). a) Sworn statement of CAA Maximo F. dela Cruz, aka Pula dated 29 May 2006 in (Exhibit “B”) states that he was at Sitio Mozon, Brgy.Bohol na Mangga, San Ildefonso, Bulacan doing the concrete building of a church located nearby his residence, together with some neighbor thereat. He claims that on 15 February 2006, he was being informed by Brgy. Kagawad Pablo Umayan about the abduction of the brothers Raymond and Reynaldo Manalo. As to the allegation that he was one of the suspects, he claims that they only implicated him because he was a CAFGU and that they claimed that those who abducted the Manalo brothers are members of the Military and CAFGU. Subject vehemently denied any participation or involvement on the abduction of said victims. b) Sworn statement of CAA Roman dela Cruz y Faustino Aka Puti dtd 29 May 2006 in (Exhibit “C”) states that he is a resident of Sitio Muzon, Brgy. Buhol na Mangga, San Ildefonso, Bulacan and a CAA member based at Biak na Bato Detachment, San Miguel, Bulacan. He claims that Raymond and Reynaldo Manalo being his neighbors are active members/sympathizers of the CPP/NPA

and he also knows their elder Rolando Manalo @ KA BESTRE of being an NPA Leader operating in their province. That at the time of the alleged abduction of the two (2) brothers and for accusing him to be one of the suspects, he claims that on February 14, 2006, he was one of those working at the concrete chapel being constructed nearby his residence. He claims further that he just came only to know about the incident on other day (15 Feb 06) when he was being informed by Kagawad Pablo Kunanan. That subject CAA vehemently denied any participation about the incident and claimed that they only implicated him because he is a member of the CAFGU. c) Sworn Statement of CAA Randy Mendoza y Lingas dated 29 May 2006 in (Exhibit “O”) states that he is a resident of Brgy. Buhol na Mangga, San Ildefonso, Bulacan and a member of CAFGU based at Biak na Bato Detachment. That being a neighbor, he was very much aware about the background of the two (2) brothers Raymond and Reynaldo as active supporters of the CPP NPA in their Brgy. and he also knew their elder brother “KUMANDER BESTRE” TN: Rolando Manalo. Being one of the accused, he claims that on 14 February 2006, he was at Brgy. Magmarate, San Miguel, Bulacan in the house of his aunt and he learned only about the incident when he arrived home in their place. He claims further that the only reason why they implicated him was due to the fact that his mother has filed a criminal charge against their brother Rolando Manalo @ KA BESTRE who is an NPA Commander who killed his father and for that reason they implicated him in support of their brother. Subject CAA vehemently denied any involvement on the abduction of said Manalo brothers. d) Sworn Statement of Rudy Mendoza y Lingasa dated May 29, 2006 in (Exhibit “E”) states that he is a resident of Brgy. Marungko, Angat, Bulacan. He claims that Raymond and Reynaldo Manalo are familiar to him being his barriomate when he was still unmarried and he knew them since childhood. Being one of the accused, he claims that on 14 February 2006, he was at his residence in Brgy. Marungko, Angat, Bulacan. He claims that he was being informed only about the incident lately and he was not aware of any reason why the two (2) brothers were being abducted by alleged members of the military and CAFGU. The only reason he knows why they implicated him was because there are those people who are angry with their family particularly victims of summary execution (killing) done by their brother @ KA Bestre Rolando Manalo who is an NPA leader. He claims further that it was their brother @ KA BESTRE who killed his father and he was living witness to that incident. Subject civilian vehemently denied any involvement on the abduction of the Manalo brothers. e) Sworn statement of Ex-CAA Marcelo dala Cruz dated 29 May 2006 in (Exhibit “F”) states that he is a resident of Sitio Muzon, Brgy. Buhol na Mangga, San Ildefonso, Bulacan, a farmer and a former CAA based at Biak na Bato, San Miguel, Bulacan. He claims that Raymond and Reynaldo Manalo are familiar to him being their barrio mate. He claims further that they are active supporters of CPP/NPA and that their brother Rolando Manalo @ KA BESTRE is an NPA

leader. Being one of the accused, he claims that on 14 February 2006, he was in his residence at Sitio Muzon, Brgy. Buhol na Mangga, San Ildefonso, Bulacan. That he vehemently denied any participation of the alleged abduction of the two (2) brothers and learned only about the incident when rumors reached him by his barrio mates. He claims that his implication is merely fabricated because of his relationship to Roman and Maximo who are his brothers. f) Sworn statement of Michael dela Cruz y Faustino dated 29 May 2006 in (Exhibit “G”) states that he is a resident of Sitio Muzon, Brgy. Buhol na Mangga, San Ildefonso, Bulacan, the Chief of Brgy. Tanod and a CAFGU member based at Biak na Bato Detachment, San Miguel, Bulacan. He claims that he knew very well the brothers Raymond and Reynaldo Manalo in their barangay for having been the Tanod Chief for twenty (20) years. He alleged further that they are active supporters or sympathizers of the CPP/NPA and whose elder brother Rolando Manalo @ KA BESTRE is an NPA leader operating within the area. Being one of the accused, he claims that on 14 Feb 2006 he was helping in the construction of their concrete chapel in their place and he learned only about the incident which is the abduction of Raymond and Reynaldo Manalo when one of the Brgy. Kagawad in the person of Pablo Cunanan informed him about the matter. He claims further that he is truly innocent of the allegation against him as being one of the abductors and he considers everything fabricated in order to destroy his name that remains loyal to his service to the government as a CAA member. IV. DISCUSSION 5. Based on the foregoing statements of respondents in this particular case, the proof of linking them to the alleged abduction and disappearance of Raymond and Reynaldo Manalo that transpired on 14 February 2006 at Sitio Muzon, Brgy. Buhol na Mangga, San Ildefonso, Bulacan, is unsubstantiated. Their alleged involvement theretofore to that incident is considered doubtful, hence, no basis to indict them as charged in this investigation. Though there are previous grudges between each families (sic) in the past to quote: the killing of the father of Randy and Rudy Mendoza by @ KA BESTRE TN: Rolando Manalo, this will not suffice to establish a fact that they were the ones who did the abduction as a form of revenge. As it was also stated in the testimony of other accused claiming that the Manalos are active sympathizers/supporters of the CPP/NPA, this would not also mean, however, that in the first place, they were in connivance with the abductors. Being their neighbors and as members of CAFGU‟s, they ought to be vigilant in protecting their village from any intervention by the leftist group, hence inside their village, they were fully aware of the activities of Raymond and Reynaldo Manalo in so far as their connection with the CPP/NPA is concerned. V.

CONCLUSION

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

RECOMMENDATIONS

7. That CAAs Michael F. dela Cruz, Maximo F. Dela Cruz, Roman dela Cruz, Randy Mendoza, and two (2) civilians Maximo F. Dela Cruz and Rudy L. Mendoza be exonerated from the case. 8. Upon approval, this case can be dropped and closed.[69]

In this appeal under Rule 45, petitioners question the appellate court‟s assessment of the foregoing evidence and assail the December 26, 2007 Decision on the following grounds, viz: I. THE COURT OF APPEALS SERIOUSLY AND GRIEVOUSLY ERRED IN BELIEVING AND GIVING FULL FAITH AND CREDIT TO THE INCREDIBLE, UNCORROBORATED, CONTRADICTED, AND OBVIOUSLY SCRIPTED, REHEARSED AND SELF-SERVING AFFIDAVIT/TESTIMONY OF HEREIN RESPONDENT RAYMOND MANALO. II. THE COURT OF APPEALS SERIOUSLY AND GRIEVOUSLY ERRED IN REQUIRING RESPONDENTS (HEREIN PETITIONERS) TO: (A) FURNISH TO THE MANALO BROTHER(S) AND TO THE COURT OF APPEALS ALL OFFICIAL AND UNOFFICIAL REPORTS OF THE INVESTIGATION UNDERTAKEN IN CONNECTION WITH THEIR CASE, EXCEPT THOSE ALREADY IN FILE WITH THE COURT; (B) CONFIRM IN WRITING THE PRESENT PLACES OF OFFICIAL ASSIGNMENT OF M/SGT. HILARIO aka ROLLIE CASTILLO AND DONALD CAIGAS; AND (C) CAUSE TO BE PRODUCED TO THE COURT OF APPEALS ALL MEDICAL REPORTS, RECORDS AND CHARTS, AND REPORTS OF ANY TREATMENT GIVEN OR RECOMMENDED AND MEDICINES PRESCRIBED, IF ANY, TO THE MANALO BROTHERS, TO INCLUDE A LIST OF MEDICAL PERSONNEL (MILITARY AND CIVILIAN) WHO ATTENDED TO THEM FROM FEBRUARY 14, 2006 UNTIL AUGUST 12, 2007.[70]

The case at bar is the first decision on the application of the Rule on the Writ of Amparo (Amparo Rule). Let us hearken to its beginning. The adoption of the Amparo Rule surfaced as a recurring proposition in the recommendations that resulted from a two-day National Consultative Summit on Extrajudicial Killings and Enforced Disappearances sponsored by the Court on July 16-17, 2007. TheSummit was “envisioned to provide a broad and factbased perspective on the issue of extrajudicial killings and enforced disappearances,”[71] hence “representatives from all sides of the political and social spectrum, as well as all the stakeholders in the justice system” [72] participated in mapping out ways to resolve the crisis. On October 24, 2007, the Court promulgated the Amparo Rule “in light of the prevalence of extralegal killing and enforced disappearances.”[73] It was an exercise for the first time of the Court‟s expanded power to promulgate rules to protect our people‟s constitutional rights, which made its maiden appearance in the 1987 Constitution in response to the Filipino experience of the martial law regime.[74] As the Amparo Rule was intended to address the intractable problem of “extralegal killings” and “enforced disappearances,” its coverage, in its present form, is confined to these two instances or to threats thereof. “Extralegal killings” are “killings committed without due process of law, i.e., without legal safeguards or judicial proceedings.”[75] On the other hand, “enforced disappearances” are “attended by the following characteristics: an arrest, detention or abduction of a person by a government official or organized groups or private individuals acting with the direct or indirect acquiescence of the government; the refusal of the State to disclose the fate or whereabouts of the person concerned or a refusal to acknowledge the deprivation of liberty which places such persons outside the protection of law.”[76] The writ of amparo originated in Mexico. “Amparo” literally means “protection” in Spanish.[77] In 1837, de Tocqueville‟sDemocracy in America became available in Mexico and stirred great interest. Its description of the practice of judicial review in theU.S. appealed to many Mexican jurists.[78] One of them, Manuel Crescencio Rejón, drafted a constitutional provision for his native state, Yucatan,[79] which granted judges the power to protect all persons in the enjoyment of their constitutional and legal rights. This idea was incorporated into the national constitution in 1847, viz:

The federal courts shall protect any inhabitant of the Republic in the exercise and preservation of those rights granted to him by this Constitution and by laws enacted pursuant hereto, against attacks by the Legislative and Executive powers of the federal or state governments, limiting themselves to granting protection in the specific case in litigation, making no general declaration concerning the statute or regulation that motivated the violation.[80]

Since then, the protection has been an important part of Mexican constitutionalism.[81] If, after hearing, the judge determines that a constitutional right of the petitioner is being violated, he orders the official, or the official‟s superiors, to cease the violation and to take the necessary measures to restore the petitioner to the full enjoyment of the right in question. Amparo thus combines the principles of judicial review derived from the U.S. with the limitations on judicial power characteristic of the civil law tradition which prevails in Mexico. It enables courts to enforce the constitution by protecting individual rights in particular cases, but prevents them from using this power to make law for the entire nation.[82] The writ of amparo then spread throughout the Western Hemisphere, gradually evolving into various forms, in response to the particular needs of each country.[83] It became, in the words of a justice of the Mexican Federal Supreme Court, one piece ofMexico‟s self-attributed “task of conveying to the world‟s legal heritage that institution which, as a shield of human dignity, her own painful history conceived.”[84] What began as a protection against acts or omissions of public authorities in violation of constitutional rights later evolved for several purposes: (1) amparo libertad for the protection of personal freedom, equivalent to the habeas corpuswrit; (2) amparo contra leyes for the judicial review of the constitutionality of statutes; (3) amparo casacion for the judicial review of the constitutionality and legality of a judicial decision; (4) amparo administrativo for the judicial review of administrative actions; and (5) amparo agrario for the protection of peasants‟ rights derived from the agrarian reform process.[85] In Latin American countries, except Cuba, the writ of amparo has been constitutionally adopted to protect against human rights abuses especially committed in countries under military juntas. In general, these countries adopted an all-encompassing writ to protect the whole gamut of constitutional rights, including socio-economic rights.[86] Other countries like Colombia, Chile, Germany andSpain, however, have chosen to limit the

protection of the writ of amparo only to some constitutional guarantees or fundamental rights.[87] In the Philippines, while the 1987 Constitution does not explicitly provide for the writ of amparo, several of the above amparoprotections are guaranteed by our charter. The second paragraph of Article VIII, Section 1 of the 1987 Constitution, the Grave Abuse Clause, provides for the judicial power “to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government.” The Clause accords a similar general protection to human rights extended by the amparo contra leyes, amparo casacion, and amparo administrativo. Amparo libertad is comparable to the remedy of habeas corpus found in several provisions of the 1987 Constitution.[88] The Clause is an offspring of the U.S.common law tradition of judicial review, which finds its roots in the 1803 case of Marbury v. Madison.[89] While constitutional rights can be protected under the Grave Abuse Clause through remedies of injunction or prohibition under Rule 65 of the Rules of Court and a petition for habeas corpus under Rule 102,[90] these remedies may not be adequate to address the pestering problem of extralegal killings and enforced disappearances. However, with the swiftness required to resolve a petition for a writ of amparo through summary proceedings and the availability of appropriate interim and permanent reliefs under the AmparoRule, this hybrid writ of the common law and civil law traditions - borne out of the Latin American and Philippine experience of human rights abuses - offers a better remedy to extralegal killings and enforced disappearances and threats thereof. The remedy provides rapid judicial relief as it partakes of a summary proceeding that requires only substantial evidence to make the appropriate reliefs available to the petitioner; it is not an action to determine criminal guilt requiring proof beyond reasonable doubt, or liability for damages requiring preponderance of evidence, or administrative responsibility requiring substantial evidence that will require full and exhaustive proceedings.[91] The writ of amparo serves both preventive and curative roles in addressing the problem of extralegal killings and enforced disappearances. It is preventive in that it breaks the expectation of impunity in the commission of these offenses; it is curative in that it facilitates the subsequent punishment of perpetrators as it will

inevitably yield leads to subsequent investigation and action. In the long run, the goal of both the preventive and curative roles is to deter the further commission of extralegal killings and enforced disappearances. In the case at bar, respondents initially filed an action for “Prohibition, Injunction, and Temporary Restraining Order”[92] to stop petitioners and/or their officers and agents from depriving the respondents of their right to liberty and other basic rights on August 23, 2007,[93] prior to the promulgation of the Amparo Rule. They also sought ancillary remedies including Protective Custody Orders, Appointment of Commissioner, Inspection and Access Orders and other legal and equitable remedies under Article VIII, Section 5(5) of the 1987 Constitution and Rule 135, Section 6 of the Rules of Court. When the Amparo Rule came into effect on October 24, 2007, they moved to have their petition treated as an amparo petition as it would be more effective and suitable to the circumstances of the Manalo brothers‟ enforced disappearance. The Court granted their motion. With this backdrop, we now come to the arguments of the petitioner. Petitioners‟ first argument in disputing the Decision of the Court of Appeals states, viz: The Court of Appeals seriously and grievously erred in believing and giving full faith and credit to the incredible uncorroborated, contradicted, and obviously scripted, rehearsed and self-serving affidavit/testimony of herein respondent Raymond Manalo.[94]

In delving into the veracity of the evidence, we need to mine and refine the ore of petitioners‟ cause of action, to determine whether the evidence presented is metal-strong to satisfy the degree of proof required. Section 1 of the Rule on the Writ of Amparo provides for the following causes of action, viz: Section 1. Petition. – The petition for a writ of amparo is a remedy available to any person whose right to life, liberty and security is violated or threatened with violation by an unlawful act or omission of a public official or employee, or of a private individual or entity. The writ shall cover extralegal killings and enforced disappearances or threats thereof. (emphasis supplied)

Sections 17 and 18, on the other hand, provide for the degree of proof required, viz: Sec. 17. Burden of Proof and Standard of Diligence Required. – The parties shall establish their claims by substantial evidence. xxx

xxx

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Sec. 18. Judgment. – … If the allegations in the petition are proven by substantial evidence, the court shall grant the privilege of the writ and such reliefs as may be proper and appropriate; otherwise, the privilege shall be denied. (emphases supplied)

Substantial evidence has been defined as such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.[95] After careful perusal of the evidence presented, we affirm the findings of the Court of Appeals that respondents were abducted from their houses in Sito Muzon, Brgy. Buhol na Mangga, San Ildefonso, Bulacan on February 14, 2006 and were continuously detained until they escaped on August 13, 2007. The abduction, detention, torture, and escape of the respondents were narrated by respondent Raymond Manalo in a clear and convincing manner. His account is dotted with countless candid details of respondents‟ harrowing experience and tenacious will to escape, captured through his different senses and etched in his memory. A few examples are the following: “Sumilip ako sa isang haligi ng kamalig at nakita kong sinisilaban si Manuel.”[96] “(N)ilakasan ng mga sundalo ang tunog na galing sa istiryo ng sasakyan. Di nagtagal, narinig ko ang hiyaw o ungol ni Manuel.”[97] “May naiwang mga bakas ng dugo habang hinihila nila ang mga bangkay. Naamoy ko iyon nang nililinis ang bakas.”[98] “Tumigil ako sa may palaisdaan kung saan ginamit ko ang bato para tanggalin ang mga kadena.”[99] “Tinanong ko sa isang kapit-bahay kung paano ako makakakuha ng cell phone; sabi ko gusto kong i-text ang isang babae na nakatira sa malapit na lugar.”[100] We affirm the factual findings of the appellate court, largely based on respondent Raymond Manalo‟s affidavit and testimony,viz:

…the abduction was perpetrated by armed men who were sufficiently identified by the petitioners (herein respondents) to be military personnel and CAFGU auxiliaries. Raymond recalled that the six armed men who barged into his house through the rear door were military men based on their attire of fatigue pants and army boots, and the CAFGU auxiliaries, namely: Michael de la Cruz, Madning de la Cruz, Puti de la Cruz and Pula de la Cruz, all members of the CAFGU and residents of Muzon, San Ildefonso, Bulacan, and the brothers Randy Mendoza and Rudy Mendoza, also CAFGU members, served as lookouts during the abduction. Raymond was sure that three of the six military men were Ganata, who headed the abducting team, Hilario, who drove the van, and George. Subsequent incidents of their long captivity, as narrated by the petitioners, validated their assertion of the participation of the elements of the 7th Infantry Division, Philippine Army, and their CAFGU auxiliaries. We are convinced, too, that the reason for the abduction was the suspicion that the petitioners were either members or sympathizers of the NPA, considering that the abductors were looking for Ka Bestre, who turned out to be Rolando, the brother of petitioners. The efforts exerted by the Military Command to look into the abduction were, at best, merely superficial. The investigation of the Provost Marshall of the 7th Infantry Division focused on the one-sided version of the CAFGU auxiliaries involved. This one-sidedness might be due to the fact that the Provost Marshall could delve only into the participation of military personnel, but even then the Provost Marshall should have refrained from outrightly exculpating the CAFGU auxiliaries he perfunctorily investigated… Gen. Palparan‟s participation in the abduction was also established. At the very least, he was aware of the petitioners‟ captivity at the hands of men in uniform assigned to his command. In fact, he or any other officer tendered no controversion to the firm claim of Raymond that he (Gen. Palparan) met them in person in a safehouse in Bulacan and told them what he wanted them and their parents to do or not to be doing. Gen. Palparan‟s direct and personal role in the abduction might not have been shown but his knowledge of the dire situation of the petitioners during their long captivity at the hands of military personnel under his command bespoke of his indubitable command policy that unavoidably encouraged and not merely tolerated the abduction of civilians without due process of law and without probable cause. In the habeas proceedings, the Court, through the Former Special Sixth Division (Justices Buzon, chairman; Santiago-Lagman, Sr., member; and RomillaLontok, Jr., member/ponente.) found no clear and convincing evidence to establish that M/Sgt. Rizal Hilario had anything to do with the abduction or the detention. Hilario‟s involvement could not, indeed, be then established after Evangeline Francisco, who allegedly saw Hilario drive the van in which the petitioners were boarded and ferried following the abduction, did not testify. (See the decision of the habeas proceedings at rollo, p. 52)

However, in this case, Raymond attested that Hilario drove the white L300 van in which the petitioners were brought away from their houses on February 14, 2006. Raymond also attested that Hilario participated in subsequent incidents during the captivity of the petitioners, one of which was when Hilario fetched them from Fort Magsaysay on board a Revo and conveyed them to a detachment in Pinaud, San Ildefonso, Bulacan where they were detained for at least a week in a house of strong materials (Exhibit D, rollo, p. 205) and then Hilario (along with Efren) brought them to Sapang, San Miguel, Bulacan on board the Revo, to an unfinished house inside the compound of Kapitan where they were kept for more or less three months. (Exhibit D, rollo, p. 205) It was there where the petitioners came face to face with Gen. Palparan. Hilario and Efren also brought the petitioners one early morning to the house of the petitioners‟ parents, where only Raymond was presented to the parents to relay the message from Gen. Palparan not to join anymore rallies. On that occasion, Hilario warned the parents that they would not again see their sons should they join any rallies to denounce human rights violations. (Exhibit D, rollo, pp. 205-206) Hilario was also among four Master Sergeants (the others being Arman, Ganata and Cabalse) with whom Gen. Palparan conversed on the occasion when Gen. Palparan required Raymond to take the medicines for his health. (Exhibit D, rollo, p. 206) There were other occasions when the petitioners saw that Hilario had a direct hand in their torture. It is clear, therefore, that the participation of Hilario in the abduction and forced disappearance of the petitioners was established. The participation of other military personnel like Arman, Ganata, Cabalse and Caigas, among others, was similarly established. xxx

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As to the CAFGU auxiliaries, the habeas Court found them personally involved in the abduction. We also do, for, indeed, the evidence of their participation is overwhelming.[101]

We reject the claim of petitioners that respondent Raymond Manalo‟s statements were not corroborated by other independent and credible pieces of evidence.[102] Raymond‟s affidavit and testimony were corroborated by the affidavit of respondent Reynaldo Manalo. The testimony and medical reports prepared by forensic specialist Dr. Molino, and the pictures of the scars left by the physical injuries inflicted on respondents,[103] also corroborate respondents‟ accounts of the torture they endured while in detention. Respondent Raymond Manalo‟s familiarity with the facilities in Fort Magsaysay such as the “DTU,” as shown in his testimony and confirmed by Lt. Col. Jimenez to be the “Division Training Unit,”[104] firms up respondents‟ story that they were detained for some time in said military facility.

In Ortiz v. Guatemala,[105] a case decided by the Inter-American Commission on Human Rights, the Commission considered similar evidence, among others, in finding that complainant Sister Diana Ortiz was abducted and tortured by agents of the Guatemalan government. In this case, Sister Ortiz was kidnapped and tortured in early November 1989. The Commission‟s findings of fact were mostly based on the consistent and credible statements, written and oral, made by Sister Ortiz regarding her ordeal.[106] These statements were supported by her recognition of portions of the route they took when she was being driven out of the military installation where she was detained.[107] She was also examined by a medical doctor whose findings showed that the 111 circular second degree burns on her back and abrasions on her cheek coincided with her account of cigarette burning and torture she suffered while in detention.[108] With the secret nature of an enforced disappearance and the torture perpetrated on the victim during detention, it logically holds that much of the information and evidence of the ordeal will come from the victims themselves, and the veracity of their account will depend on their credibility and candidness in their written and/or oral statements. Their statements can be corroborated by other evidence such as physical evidence left by the torture they suffered or landmarks they can identify in the places where they were detained. Where powerful military officers are implicated, the hesitation of witnesses to surface and testify against them comes as no surprise. We now come to the right of the respondents to the privilege of the writ of amparo. There is no quarrel that the enforced disappearance of both respondents Raymond and Reynaldo Manalo has now passed as they have escaped from captivity and surfaced. But while respondents admit that they are no longer in detention and are physically free, they assert that they are not “free in every sense of the word”[109] as their “movements continue to be restricted for fear that people they have named in their Judicial Affidavits and testified against (in the case of Raymond) are still at large and have not been held accountable in any way. These people are directly connected to the Armed Forces of the Philippines and are, thus, in a position to threaten respondents’ rights to life, liberty and security.”[110] (emphasis supplied) Respondents claim that they are under threat of being once again abducted, kept captive or even killed, which constitute a direct violation of their right to security of person.[111]

Elaborating on the “right to security, in general,” respondents point out that this right is “often associated with liberty;” it is also seen as an “expansion of rights based on the prohibition against torture and cruel and unusual punishment.” Conceding that there is no right to security expressly mentioned in Article III of the 1987 Constitution, they submit that their rights “to be kept free from torture and from incommunicado detention and solitary detention places[112] fall under the general coverage of the right to security of person under the writ of Amparo.” They submit that the Court ought to give an expansive recognition of the right to security of person in view of the State Policy under Article II of the 1987 Constitution which enunciates that, “The State values the dignity of every human person and guarantees full respect for human rights.” Finally, to justify a liberal interpretation of the right to security of person, respondents cite the teaching in Moncupa v. Enrile[113] that “the right to liberty may be made more meaningful only if there is no undue restraint by the State on the exercise of that liberty”[114] such as a requirement to “report under unreasonable restrictions that amounted to a deprivation of liberty”[115] or being put under “monitoring and surveillance.”[116] In sum, respondents assert that their cause of action consists in the threat to their right to life and liberty, and a violation of their right to security. Let us put this right to security under the lens to determine if it has indeed been violated as respondents assert. Theright to security or the right to security of person finds a textual hook in Article III, Section 2 of the 1987 Constitution which provides, viz: Sec. 2. The right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable, and no search warrant or warrant of arrest shall issue except upon probable cause to be determined personally by the judge…

At the core of this guarantee is the immunity of one‟s person, including the extensions of his/her person – houses, papers, and effects – against government intrusion. Section 2 not only limits the state‟s power over a person‟s home and possessions, but more importantly, protects the privacy and sanctity of the person himself.[117] The purpose of this provision was enunciated by the Court in People v. CFI of Rizal, Branch IX, Quezon City, viz: [118]

The purpose of the constitutional guarantee against unreasonable searches and seizures is to prevent violations of private security in person and property and unlawful invasion of the security of the home by officers of the law acting under legislative or judicial sanction and to give remedy against such usurpation when attempted. (Adams v. New York, 192 U.S. 858; Alvero v. Dizon, 76 Phil. 637 [1946]). The right to privacy is an essential condition to the dignity and happiness and to the peace and security of every individual, whether it be of home or of persons and correspondence. (Tañada and Carreon, Political Law of the Philippines, Vol. 2, 139 [1962]). The constitutional inviolability of this great fundamental right against unreasonable searches and seizures must be deemed absolute as nothing is closer to a man’s soul than the serenity of his privacy and the assurance of his personal security. Any interference allowable can only be for the best causes and reasons.[119] (emphases supplied)

While the right to life under Article III, Section 1[120] guarantees essentially the right to be alive[121] - upon which the enjoyment of all other rights is preconditioned - the right to security of person is a guarantee of the secure quality of this life, viz: “The life to which each person has a right is not a life lived in fear that his person and property may be unreasonably violated by a powerful ruler. Rather, it is a life lived with the assurance that the government he established and consented to, will protect the security of his person and property. The ideal of security in life and property… pervades the whole history of man. It touches every aspect of man‟s existence.”[122] In a broad sense, the right to security of person “emanates in a person‟s legal and uninterrupted enjoyment of his life, his limbs, his body, his health, and his reputation. It includes the right to exist, and the right to enjoyment of life while existing, and it is invaded not only by a deprivation of life but also of those things which are necessary to the enjoyment of life according to the nature, temperament, and lawful desires of the individual.”[123] A closer look at the right to security of person would yield various permutations of the exercise of this right. First, the right to security of person is “freedom from fear.” In its “whereas” clauses, the Universal Declaration of Human Rights (UDHR) enunciates that “a world in which human beings shall enjoy freedom of speech and belief and freedom from fear and want has been proclaimed as the highest aspiration of the common people.” (emphasis supplied) Some scholars postulate that “freedom from fear” is not only an aspirational principle, but essentially an

individual international human right.[124] It is the “right to security of person” as the word “security” itself means “freedom from fear.”[125] Article 3 of the UDHR provides, viz: Everyone has the right to life, liberty and security of person.[126] (emphasis supplied)

In furtherance of this right declared in the UDHR, Article 9(1) of the International Covenant on Civil and Political Rights(ICCPR) also provides for the right to security of person, viz: 1. Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law. (emphasis supplied)

The Philippines is a signatory to both the UDHR and the ICCPR. In the context of Section 1 of the Amparo Rule, “freedom from fear” is the right and any threat to the rights to life, liberty or security is the actionable wrong. Fear is a state of mind, a reaction; threat is a stimulus, a cause of action. Fear caused by the same stimulus can range from being baseless to wellfounded as people react differently. The degree of fear can vary from one person to another with the variation of the prolificacy of their imagination, strength of character or past experience with the stimulus. Thus, in the amparo context, it is more correct to say that the “right to security” is actually the “freedom from threat.” Viewed in this light, the “threatened with violation” Clause in the latter part of Section 1 of the Amparo Rule is a form of violation of the right to security mentioned in the earlier part of the provision.[127] Second, the right to security of person is a guarantee of bodily and psychological integrity or security. Article III, Section II of the 1987 Constitution guarantees that, as a general rule, one‟s body cannot be searched or invaded without a search warrant.[128] Physical injuries inflicted in the context of extralegal killings and enforced disappearances constitute more than a search or invasion of the body. It may constitute dismemberment, physical disabilities, and painful physical intrusion. As the degree of physical injury increases, the danger to life itself escalates. Notably, in criminal law, physical injuries constitute a crime against persons because they are an affront to the bodily integrity or security of a person.[129]

Physical torture, force, and violence are a severe invasion of bodily integrity. When employed to vitiate the free will such as to force the victim to admit, reveal or fabricate incriminating information, it constitutes an invasion of both bodily and psychological integrity as the dignity of the human person includes the exercise of free will. Article III, Section 12 of the 1987 Constitution more specifically proscribes bodily and psychological invasion, viz: (2) No torture, force, violence, threat or intimidation, or any other means which vitiate the free will shall be used against him (any person under investigation for the commission of an offense). Secret detention places, solitary, incommunicado or other similar forms of detention are prohibited.

Parenthetically, under this provision, threat and intimidation that vitiate the free will - although not involving invasion of bodily integrity - nevertheless constitute a violation of the right to security in the sense of “freedom from threat” as aforediscussed. Article III, Section 12 guarantees freedom from dehumanizing abuses of persons under investigation for the commission of an offense. Victims of enforced disappearances who are not even under such investigation should all the more be protected from these degradations. An overture to an interpretation of the right to security of person as a right against torture was made by the European Court of Human Rights (ECHR) in the recent case of Popov v. Russia.[130] In this case, the claimant, who was lawfully detained, alleged that the state authorities had physically abused him in prison, thereby violating his right to security of person. Article 5(1) of the European Convention on Human Rights provides, viz: “Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law ...” (emphases supplied) Article 3, on the other hand, provides that “(n)o one shall be subjected to torture or to inhuman or degrading treatment or punishment.” Although the application failed on the facts as the alleged illtreatment was found baseless, the ECHR relied heavily on the concept of security in holding, viz: ...the applicant did not bring his allegations to the attention of domestic authorities at the time when they could reasonably have been expected to take

measures in order to ensure his security and to investigate the circumstances in question. xxx

xxx

xxx

... the authorities failed to ensure his security in custody or to comply with the procedural obligation under Art.3 to conduct an effective investigation into his allegations.[131] (emphasis supplied)

The U.N. Committee on the Elimination of Discrimination against Women has also made a statement that the protection of the bodily integrity of women may also be related to the right to security and liberty, viz: …gender-based violence which impairs or nullifies the enjoyment by women of human rights and fundamental freedoms under general international law or under specific human rights conventions is discrimination within the meaning of article 1 of the Convention (on the Elimination of All Forms of Discrimination Against Women). These rights and freedoms include . . . the right to liberty and security of person.[132]

Third, the right to security of person is a guarantee of protection of one’s rights by the government. In the context of the writ of amparo, this right is built into the guarantees of the right to life and liberty under Article III, Section 1 of the 1987 Constitution and the right to security of person (as freedom from threat and guarantee of bodily and psychological integrity) under Article III, Section 2. The right to security of person in this third sense is a corollary of the policy that the State “guarantees full respect for human rights” under Article II, Section 11 of the 1987 Constitution.[133] As the government is the chief guarantor of order and security, the Constitutional guarantee of the rights to life, liberty and security of person is rendered ineffective if government does not afford protection to these rights especially when they are under threat. Protection includes conducting effective investigations, organization of the government apparatus to extend protection to victims of extralegal killings or enforced disappearances (or threats thereof) and/or their families, and bringing offenders to the bar of justice. The Inter-American Court of Human Rights stressed the importance of investigation in the Velasquez Rodriguez Case,[134] viz: (The duty to investigate) must be undertaken in a serious manner and not as a mere formality preordained to be ineffective. An investigation must

have an objective and be assumed by the State as its own legal duty, not as a step taken by private interests that depends upon the initiative of the victim or his family or upon their offer of proof, without an effective search for the truth by the government.[135]

This third sense of the right to security of person as a guarantee of government protection has been interpreted by the United Nations‟ Human Rights Committee[136] in not a few cases involving Article 9[137] of the ICCPR. While the right to security of person appears in conjunction with the right to liberty under Article 9, the Committee has ruled that the right to security of person can exist independently of the right to liberty. In other words, there need not necessarily be a deprivation of liberty for the right to security of person to be invoked. In Delgado Paez v. Colombia,[138] a case involving death threats to a religion teacher at a secondary school in Leticia, Colombia, whose social views differed from those of the Apostolic Prefect of Leticia, the Committee held,viz: The first sentence of article 9 does not stand as a separate paragraph. Its location as a part of paragraph one could lead to the view that the right to security arises only in the context of arrest and detention. The travaux préparatoires indicate that the discussions of the first sentence did indeed focus on matters dealt with in the other provisions of article 9. The Universal Declaration of Human Rights, in article 3, refers to the right to life, the right to liberty and the right to security of the person. These elements have been dealt with in separate clauses in the Covenant. Although in the Covenant the only reference to the right of security of person is to be found in article 9, there is no evidence that it was intended to narrow the concept of the right to security only to situations of formal deprivation of liberty. At the same time, States parties have undertaken to guarantee the rights enshrined in the Covenant. It cannot be the case that, as a matter of law, States can ignore known threats to the life of persons under their jurisdiction, just because that he or she is not arrested or otherwise detained. States parties are under an obligation to take reasonable and appropriate measures to protect them. An interpretation of article 9 which would allow a State party to ignore threats to the personal security of non-detained persons within its jurisdiction would render totally ineffective the guarantees of the Covenant.[139] (emphasis supplied)

The Paez ruling was reiterated in Bwalya v. Zambia,[140] which involved a political activist and prisoner of conscience who continued to be intimidated, harassed, and restricted in his movements following his release from detention. In a catena of cases, the ruling of the Committee was of a similar import: Bahamonde v. Equatorial Guinea,[141] involving discrimination, intimidation and persecution of opponents of the ruling party in that

state; Tshishimbi v. Zaire,[142] involving the abduction of the complainant‟s husband who was a supporter of democratic reform in Zaire; Dias v. Angola,[143] involving the murder of the complainant‟s partner and the harassment he (complainant) suffered because of his investigation of the murder; and Chongwe v. Zambia,[144] involving an assassination attempt on the chairman of an opposition alliance. Similarly, the European Court of Human Rights (ECHR) has interpreted the “right to security” not only as prohibiting the State from arbitrarily depriving liberty, but imposing a positive duty on the State to afford protection of the right to liberty.[145] The ECHR interpreted the “right to security of person” under Article 5(1) of the European Convention of Human Rights in the leading case on disappearance of persons, Kurt v. Turkey.[146] In this case, the claimant‟s son had been arrested by state authorities and had not been seen since. The family‟s requests for information and investigation regarding his whereabouts proved futile. The claimant suggested that this was a violation of her son‟s right to security of person. The ECHR ruled, viz: ... any deprivation of liberty must not only have been effected in conformity with the substantive and procedural rules of national law but must equally be in keeping with the very purpose of Article 5, namely to protect the individual from arbitrariness... Having assumed control over that individual it is incumbent on the authorities to account for his or her whereabouts. For this reason, Article 5 must be seen as requiring the authorities to take effective measures to safeguard against the risk of disappearance and to conduct a prompt effective investigation into an arguable claim that a person has been taken into custody and has not been seen since.[147] (emphasis supplied)

Applying the foregoing concept of the right to security of person to the case at bar, we now determine whether there is a continuing violation of respondents‟ right to security. First, the violation of the right to security as freedom from threat to respondents’ life, liberty and security. While respondents were detained, they were threatened that if they escaped, their families, including them, would be killed. In Raymond‟s narration, he was tortured and poured with gasoline after he was caught the first time he attempted to

escape from FortMagsaysay. A call from a certain “Mam,” who wanted to see him before he was killed, spared him. This time, respondents have finally escaped. The condition of the threat to be killed has come to pass. It should be stressed that they are now free from captivity not because they were released by virtue of a lawful order or voluntarily freed by their abductors. It ought to be recalled that towards the end of their ordeal, sometime in June 2007 when respondents were detained in a camp in Limay,Bataan, respondents‟ captors even told them that they were still deciding whether they should be executed. Respondent Raymond Manalo attested in his affidavit, viz: Kinaumagahan, naka-kadena pa kami. Tinanggal ang mga kadena mga 3 o 4 na araw pagkalipas. Sinabi sa amin na kaya kami nakakadena ay dahil pinagdedesisyunan pa ng mga sundalo kung papatayin kami o hindi.[148]

The possibility of respondents being executed stared them in the eye while they were in detention. With their escape, this continuing threat to their life is apparent, moreso now that they have surfaced and implicated specific officers in the military not only in their own abduction and torture, but also in those of other persons known to have disappeared such as Sherlyn Cadapan, Karen Empeño, and Manuel Merino, among others. Understandably, since their escape, respondents have been under concealment and protection by private citizens because of the threat to their life, liberty and security. The threat vitiates their free will as they are forced to limit their movements or activities.[149] Precisely because respondents are being shielded from the perpetrators of their abduction, they cannot be expected to show evidence of overt acts of threat such as face-to-face intimidation or written threats to their life, liberty and security. Nonetheless, the circumstances of respondents‟ abduction, detention, torture and escape reasonably support a conclusion that there is an apparent threat that they will again be abducted, tortured, and this time, even executed. These constitute threats to their liberty, security, and life, actionable through a petition for a writ of amparo. Next, the violation of the right to security as protection by the government. Apart from the failure of military elements to provide protection to respondents by themselves perpetrating the abduction, detention, and torture, they

also miserably failed in conducting an effective investigation of respondents‟ abduction as revealed by the testimony and investigation report of petitioners‟ own witness, Lt. Col. Ruben Jimenez, Provost Marshall of the 7th Infantry Division. The one-day investigation conducted by Jimenez was very limited, superficial, and one-sided. He merely relied on the Sworn Statements of the six implicated members of the CAFGU and civilians whom he met in the investigation for the first time. He was present at the investigation when his subordinate Lingad was taking the sworn statements, but he did not propound a single question to ascertain the veracity of their statements or their credibility. He did not call for other witnesses to test the alibis given by the six implicated persons nor for the family or neighbors of the respondents. In his affidavit, petitioner Secretary of National Defense attested that in a Memorandum Directive dated October 31, 2007, he issued a policy directive addressed to the AFP Chief of Staff, that the AFP should adopt rules of action in the event the writ ofamparo is issued by a competent court against any members of the AFP, which should essentially include verification of the identity of the aggrieved party; recovery and preservation of relevant evidence; identification of witnesses and securing statements from them; determination of the cause, manner, location and time of death or disappearance; identification and apprehension of the person or persons involved in the death or disappearance; and bringing of the suspected offenders before a competent court.[150] Petitioner AFP Chief of Staff also submitted his own affidavit attesting that he received the above directive of respondent Secretary of National Defense and that acting on this directive, he immediately caused to be issued a directive to the units of the AFP for the purpose of establishing the circumstances of the alleged disappearance and the recent reappearance of the respondents, and undertook to provide results of the investigations to respondents.[151] To this day, however, almost a year after the policy directive was issued by petitioner Secretary of National Defense on October 31, 2007, respondents have not been furnished the results of the investigation which they now seek through the instant petition for a writ of amparo. Under these circumstances, there is substantial evidence to warrant the conclusion that there is a violation of respondents‟ right to security as a guarantee of protection by the government.

In sum, we conclude that respondents‟ right to security as “freedom from threat” is violated by the apparent threat to their life, liberty and security of person. Their right to security as a guarantee of protection by the government is likewise violated by the ineffective investigation and protection on the part of the military. Finally, we come to the reliefs granted by the Court of Appeals, which petitioners question. First, that petitioners furnish respondents all official and unofficial reports of the investigation undertaken in connection with their case, except those already in file with the court. Second, that petitioners confirm in writing the present places of official assignment of M/Sgt. Hilario aka Rollie Castillo and Donald Caigas. Third, that petitioners cause to be produced to the Court of Appeals all medical reports, records and charts, and reports of any treatment given or recommended and medicines prescribed, if any, to the Manalo brothers, to include a list of medical personnel (military and civilian) who attended to them from February 14, 2006 until August 12, 2007. With respect to the first and second reliefs, petitioners argue that the production order sought by respondents partakes of the characteristics of a search warrant. Thus, they claim that the requisites for the issuance of a search warrant must be complied with prior to the grant of the production order, namely: (1) the application must be under oath or affirmation; (2) the search warrant must particularly describe the place to be searched and the things to be seized; (3) there exists probable cause with one specific offense; and (4) the probable cause must be personally determined by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce.[152] In the case at bar, however, petitioners point out that other than the bare, self-serving and vague allegations made by respondent Raymond Manalo in his unverified declaration and affidavit, the documents respondents seek to be produced are only mentioned generally by name, with no other supporting details. They also argue that the relevancy of the documents to be produced must be apparent, but this is not true in the present case as the involvement of petitioners in the abduction has not been shown.

Petitioners‟ arguments do not hold water. The production order under the Amparo Rule should not be confused with a search warrant for law enforcement under Article III, Section 2 of the 1987 Constitution. This Constitutional provision is a protection of the people from the unreasonable intrusion of the government, not a protection of the government from the demand of the people such as respondents. Instead, the amparo production order may be likened to the production of documents or things under Section 1, Rule 27 of the Rules of Civil Procedure which provides in relevant part, viz: Section 1. Motion for production or inspection order. Upon motion of any party showing good cause therefor, the court in which an action is pending may (a) order any party to produce and permit the inspection and copying or photographing, by or on behalf of the moving party, of any designated documents, papers, books of accounts, letters, photographs, objects or tangible things, not privileged, which constitute or contain evidence material to any matter involved in the action and which are in his possession, custody or control…

In Material Distributors (Phil.) Inc. v. Judge Natividad,[153] the respondent judge, under authority of Rule 27, issued asubpoena duces tecum for the production and inspection of among others, the books and papers of Material Distributors (Phil.) Inc. The company questioned the issuance of the subpoena on the ground that it violated the search and seizure clause. The Court struck down the argument and held that the subpoena pertained to a civil procedure that “cannot be identified or confused with unreasonable searches prohibited by the Constitution…” Moreover, in his affidavit, petitioner AFP Chief of Staff himself undertook “to provide results of the investigations conducted or to be conducted by the concerned unit relative to the circumstances of the alleged disappearance of the persons in whose favor the Writ of Amparo has been sought for as soon as the same has been furnished Higher headquarters.” With respect to the second and third reliefs, petitioners assert that the disclosure of the present places of assignment of M/Sgt. Hilario aka Rollie Castillo and Donald Caigas, as well as the submission of a list of medical personnel, is

irrelevant, improper, immaterial, and unnecessary in the resolution of the petition for a writ of amparo. They add that it will unnecessarily compromise and jeopardize the exercise of official functions and duties of military officers and even unwittingly and unnecessarily expose them to threat of personal injury or even death. On the contrary, the disclosure of the present places of assignment of M/Sgt. Hilario aka Rollie Castillo and Donald Caigas, whom respondents both directly implicated as perpetrators behind their abduction and detention, is relevant in ensuring the safety of respondents by avoiding their areas of territorial jurisdiction. Such disclosure would also help ensure that these military officers can be served with notices and court processes in relation to any investigation and action for violation of the respondents‟ rights. The list of medical personnel is also relevant in securing information to create the medical history of respondents and make appropriate medical interventions, when applicable and necessary. In blatant violation of our hard-won guarantees to life, liberty and security, these rights are snuffed out from victims of extralegal killings and enforced disappearances. The writ of amparo is a tool that gives voice to preys of silent guns and prisoners behind secret walls. WHEREFORE, premises considered, the petition is DISMISSED. The Decision of the Court of Appeals dated December 26, 2007 is affirmed.

SO ORDERED.

REYNATO S. PUNO Chief Justice WE CONCUR:

LEONARDO A. QUISUMBING Associate Justice

CONSUELO YNARES-SANTIAGO Associate Justice

ANTONIO T. CARPIO Associate Justice

MA. ALICIA AUSTRIA-MARTINEZ Associate Justice

RENATO C. CORONA Associate Justice

CONCHITA CARPIO MORALES Associate Justice

ADOLFO S. AZCUNA Associate Justice

DANTE O. TINGA Associate Justice

MINITA V. CHICO-NAZARIO Associate Justice

PRESBITERO J. VELASCO, JR. ANTONIO EDUARDO B. NACHURA Associate Justice Associate Justice

RUBEN T. REYES Associate Justice

TERESITA J. LEONARDO-DE CASTRO Associate Justice

ARTURO D. BRION Associate Justice

CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution, I certify that the conclusions in the above decision had been reached in consultation before the case was assigned to the writer of the opinion of the Court.

REYNATO S. PUNO Chief Justice

[1]

Sec. 19 of the Rule on the Writ of Amparo provides for appeal, viz: Sec. 19. Appeal – Any party may appeal from the final judgment or order to the Supreme Court under Rule 45. The appeal may raise questions of fact or law or both. The period of appeal shall be five (5) working days from the date of notice of the adverse judgment. The appeal shall be given the same priority as in habeas corpus cases. [2] G.R. No. 179095 filed on August 23, 2007. [3] 1987 PHIL. CONST. Art. VIII, § 5(5) provides for the rule-making power of the Supreme Court, viz: Sec. 5. The Supreme Court shall have the following powers: (5) Promulgate rules concerning the protection and enforcement of constitutional rights… [4] 1987 PHIL. CONST. Art. III, § 1 provides in relevant part, viz: Sec. 1. No person shall be deprived of life, liberty…without due process of law… [5] CA rollo, pp. 26-27. [6] Section 26 of the Rule on the Writ of Amparo provides, viz: Sec. 26. Applicability to Pending Cases. – This Rule shall govern cases involving extralegal killings and enforced disappearances or threats thereof pending in the trial and appellate courts. [7] Section 18 of the Rule on the Writ of Amparo provides, viz: Sec. 18. Judgment. – The court shall render judgment within ten (10) days from the time the petition is submitted for decision. If the allegations in the petition are proven by substantial evidence, the court shall grant the privilege of the writ and such reliefs as may be proper and appropriate; otherwise, the privilege shall be denied. [8] CA rollo, pp. 86-87. [9] Id. at 1-6. [10] Id. at 82-83. [11] Exhibit D (Sinumpaang Salaysay para sa Hukuman ni Raymond Manalo), CA rollo, pp. 200-201; TSN, November 13, 2007, p. 47. [12] Exhibit D, CA rollo, pp. 200-201. [13] Id. at 201-202. [14] Id. [15] Id. at 202. [16] A Petition for Habeas Corpus was filed on May 12, 2006 in the Court of Appeals by the relatives of herein respondents. (CA-G.R. SP. No. 94431). The petition alleged that military personnel and CAFGU auxiliaries forcibly took petitioners from their homes in Bulacan on February 14, 2006. Impleaded as respondents were Lt. Gen. Hermogenes C. Esperon, then the Commanding General of the Philippine Army; Maj. Gen. Jovito Palparan, then the Commanding Officer, 7thInfantry Division, stationed in Luzon; M/Sgt. Rizal Hilario alias Rollie Castillo; and civilians Michael dela Cruz, Madning dela Cruz, Puti dela Cruz, Pula dela Cruz, Randy Mendoza and Rudy Mendoza, all CAFGU members. Respondents denied any involvement in the petitioners‟ abduction and disappearance. After hearing, the Court of Appeals rendered a decision on June 27, 2007, viz: WHEREFORE, in view of the foregoing, this Court holds that respondents Madning de la Cruz, Puti de la Cruz, Pula de la Cruz, Rudy Mendoza and CAFGU members Michael de la

Cruz and Randy Mendoza are illegally detaining Raymond and Reynaldo Manalo, and are hereby ordered to RELEASE said victims Raymond Manalo and Reynaldo Manalo within ten (10) days from receipt hereof; otherwise, they will be held in contempt of court. This is without prejudice to any penalty that may be imposed should they be found later by any other court of justice to be criminally, administratively, or civilly liable for any other act/s against the persons of aforenamed victims. (CA rollo, pp. 60-61) On July 18, 2007, the relatives of the petitioners appealed the decision to the Supreme Court. (G.R. No. 178614). Respondents filed a motion for reconsideration in the Court of Appeals. On August 13, 2007, the petitioners escaped from captivity. Consequently, they filed motions to withdraw the petition for habeas corpus in the CA and this Court as it had become moot and academic. (CA rollo, p. 101; rollo, pp. 54-55) [17] Exhibit D, CA rollo, pp. 200-201. [18] Id. at 203. [19] TSN, November 13, 2007, p. 29. [20] Exhibit D, CA rollo, p. 203. [21] Id. [22] “Daniel Mendiola; Oscar Leuterio; mag-asawang Teresa at Vergel; isang nagngangalang Mang Ipo at Ferdinand mula sa Nueva Ecija; isang taga-Bicol na ikinulong doon ng isa o dalawang araw lamang (siya‟y inilabas at hindi ko na nakitang muli); isang taga-Visayas (na ikinulong doon ng isa o dalawang araw; siya‟y inilabas at hindi ko na siya nakita); mga nagngangalang Abel, Jojo at isa pa mula sa Nueva Ecija (na tumagal doon ng isang araw at isang gabi, pagkatapos ay inilabas din); isang nagngangalang Bernard mula sa Hagonoy, Bulacan; ang apelyido ni Bernard ay tila Majas ngunit hindi ako sigurado sa apelyido niya. Nang dinala doon si Bernard, inilabas sina Mang Ipo at Ferdinand; dalawang lalaking may edad na, taga-Pinaud at dinukot sa poultry (tumagal lang sila ng mga isang araw at tapos inilabas at hindi ko na nakita uli).” (CA rollo, pp. 203-204) [23] Exhibit D, CA rollo, pp. 203-204. [24] Id. at 204. [25] Id. at 204-205. [26] Id. at 205. [27] Id.; TSN, November 13, 2007, pp. 36-38. [28] Exhibit D, CA rollo, p. 205. [29] Id. [30] Id. [31] Id. at 206. [32] TSN, November 13, 2007, p. 44; Exhibit F shows eights pictures of highest ranking officers of the AFP and PNP in their uniforms; Exhibit F-1 is the picture of Gen. Palparan identified by respondent Raymond Manalo, CA rollo, p. 214. [33] Exhibit D, CA rollo, p. 206. [34] Id. at 207. [35] Id. [36] Id. at 207-208. [37] Id. at 208. [38] Id. [39] Id. at 209. [40] Id. [41] Id. [42] Id. [43] Id. at 210-211. [44] Id. at 211. [45] Id. [46] Exhibit C (Sinumpaang Salaysay ni Reynaldo Manalo para sa Hukuman), CA rollo, pp. 196-197. [47] TSN, November 13, 2007, pp. 85-90; Exhibit G is the background of the case of Raymond and Reynaldo Manalo, CA rollo, p. 216; Exhibits G-1 to G-2 are the report proper for Reynaldo Manalo containing a narration of his ordeal and complaints, and Dr. Molino‟s physical findings, analysis and recommendations, CA rollo, pp. 217-218; Exhibit G-3 are the pictures taken of Reynaldo Manalo‟s scars, CA rollo, p. 219; Exhibits G-4 to G-5 are the report proper for Raymond Manalo with similar contents as Reynaldo‟s report, CA rollo, pp. 220-221; Exhibits G-6 to G-7 are the pictures of Raymond Manalo‟s scars, CA rollo, pp. 222-223.

[48]

CA rollo, pp. 112-113; rollo, pp. 94-95. CA rollo, pp. 122 and 171; rollo, pp. 28-29. [50] CA rollo, pp. 124-125; 177-178; rollo, pp. 29-31. [51] CA rollo, pp. 191-192; rollo, 106-107. [52] Id. at 107. [53] TSN, November 14, 2007, p. 25. [54] Id. at 84. [55] Id. at 36. [56] Id. at 40. [57] Id. at 41. [58] Id. at 92. [59] Id. at 46. [60] Id. at 44. [61] Id. at 46. [62] Id. at 80. [63] Id. at 28. [64] Id. at 50. [65] Id. at 55-56. [66] Id. at 57-61. [67] Id. at 61-63. [68] Id. at 63. [49]

[69]

Exhibit 3-C, CA rollo, pp. 238-240. Rollo, pp. 35-36. [71] Rule on the Writ of Amparo: The Rationale for the Writ of Amparo, p. 43. [72] Id. [73] Rule on the Writ of Amparo: Annotation, p. 47. [74] Id. Article VIII, § 5(5) of the 1987 Constitution provides for this rule-making power, viz: Sec. 5. The Supreme Court shall have the following powers: (5) Promulgate rules concerning the protection and enforcement of constitutional rights… [75] Rule on the Writ of Amparo: Annotation, p. 48. This is the manner the term is used in United Nations instruments. [76] Rule on the Writ of Amparo: Annotation, p. 48. This is the definition used in the Declaration on the Protection of All Persons from Enforced Disappearances. [77] Barker, R., “Constitutionalism in the Americas: A Bicentennial Perspective,” 49 University of Pittsburgh Law Review (Spring, 1988) 891, 906. [78] Id., citing Zamudio, F., “A Brief Introduction to the Mexican Writ of Amparo,” 9 California Western International Law Journal (1979) 306, 309. [79] “At the time it adopted Rejón‟s amparo, Yucatan had separated itself from Mexico. After a few months, the secession ended and the state resumed its place in the union.” (Barker, R.,supra at 906.) [80] Acta de Reformas, art. 25 (1847) (amending Constitution of 1824). [81] Acta de Reformas, art. 25 (1847) (amending Constitution of 1824); CONST. of 1857, arts. 101, 102 (Mex.); CONST. art. 107 (Mex.). [82] Barker, R., supra at 906-907. See also Provost, R. “Emergency Judicial Relief for Human Rights Violations in Canada and Argentina,” University of Miami Inter-American Law Review (Spring/Summer, 1992) 693, 701-702. [83] Rule on the Writ of Amparo: Annotation, p. 45. See Article 107 of the Constitution of Mexico; Article 28(15) of the Constitution of Ecuador; Article 77 of the Constitution of Paraguay; Article 43 of the Constitution of Argentina; Article 49 of the Constitution of Venezuela; Article 48 (3) of the Constitution of Costa Rica; and Article 19 of the Constitution of Bolivia. [84] Provost, R., supra at 698, citing Ramirez, F., “The International Expansion of the Mexican Amparo,” 1 InterAmerican Law Review (1959) 163, 166. [85] Rule on the Writ of Amparo: Annotation, p. 45; see also Zagaris, B., “The Amparo Process in Mexico,” 6 Mexico Law Journal (Spring 1998) 61, 66 and Provost, R., supra at 708-709. [86] Rule on the Writ of Amparo: Annotation, p. 45. [70]

[87]

Brewer-Carias, A., “The Latin American Amparo Proceeding and the Writ of Amparo in the Philippines,” Second Distinguished Lecture, Series of 2007, Supreme Court, Philippine Judicial Academy in coordination with the Philippine Association of Law Schools, March 7, 2008. [88] See 1987 PHIL. CONST. Art. III, §§ 13 & 15; Art. VII, § 18; Art. VIII, § 5(1). [89] 5 U.S. 137 (1803). See Gormley, K. “Judicial Review in the Americas: Comments on the United States and Mexico,” 45 Duquesne Law Review (Spring, 2007) 393. [90] Rule on the Writ of Amparo: Annotation, p. 47. [91] Deliberations of the Committee on the Revision of the Rules of Court, August 10, 2007; August 24, 2007; August 31, 2007; and September 20, 2008. [92] G.R. No. 179095. [93] CA rollo, p. 3. [94] Rollo, p. 35. [95] Ferancullo v. Ferancullo, Jr., A.C. No. 7214, November 30, 2006, 509 SCRA 1. [96] CA rollo, p. 210. [97] Id. [98] Id. [99] Id. at 203. [100] Id. at 211. [101] Rollo, pp. 74-76. [102] Id. at 40. [103] CA rollo, pp. 219, 222-224. [104] TSN, November 14, 2007, p. 66. [105] Case 10.526, Report No. 31/96, Inter-Am.C.H.R.,OEA/Ser.L/V/II.95 Doc. 7 rev. at 332 (1997). [106] Id. at par. 49. [107] Id. [108] Id. at par. 50. [109] Rollo, p. 182. [110] Id. [111] Id. at 183. [112] Respondents cite 1987 PHIL. CONST. Art. III, § 12(2) which provides, viz: (2) No torture, force, violence threat, intimidation, or any other means which vitiate the free will shall be used against him (any person under investigation for the commission of an offense). Secret detention places, solitary, incommunicado, or other similar forms of detention are prohibited. [113] 225 Phil. 191 (1986). [114] Rollo, pp. 182-183. [115] Id. at 183. [116] Id. [117] Bernas, THE 1987 CONSTITUTION OF THE REPUBLIC OF THE PHILIPPINES: A COMMENTARY (2003) 162. [118] No. L-41686, November 17, 1980, 101 SCRA 86. [119] Id. at 100-101. [120] 1987 PHIL. CONST. Art. III, § 1 provides, viz: Sec. 1. No person shall be deprived of life, liberty, or property without due process of law… [121] But see Bernas, supra at 110. “The constitutional protection of the right to life is not just a protection of the right to be alive or to the security of one‟s limb against physical harm.” [122] Separate Opinion of Chief Justice Reynato S. Puno in Republic v. Sandiganbayan, 454 Phil. 504 (2003). [123] Sandifer, D. and L. Scheman, THE FOUNDATION OF FREEDOM (1966), pp. 44-45. [124] Schmidt, C., “An International Human Right to Keep and Bear Arms,” 15 William and Mary Bill of Rights Journal (February, 2007) 983, 1004. [125] Id., citing Webster‟s Seventh New Collegiate Dictionary 780 (1971). [126] The U.N. Declaration on the Protection of All Persons from Enforced Disappearance also provides for the right to security under Article 2, viz: 2. Any act of enforced disappearance places the persons subjected thereto outside the protection of the law and inflicts severe suffering on them and their families. It constitutes a

violation of the rules of international law guaranteeing, inter alia, the right to recognition as a person before the law, the right to liberty and security of the person and the right not to be subjected to torture and other cruel, inhuman or degrading treatment or punishment. It also violates or constitutes a grave threat to the right to life. (emphasis supplied) Various international human rights conventions and declarations affirm the “right to security of person”, including the American Convention on Human Rights; European Convention on Human Rights; African Charter; Inter-American Convention on the Prevention, Punishment and Eradication of Violence Against Women; American Declaration of the Rights and Duties of Man, African Women‟s Protocol, and the U.N. Declaration on the Elimination of Violence against Women. [127] Section 1 of the Rule on the Writ of Amparo provides, 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. (emphasis supplied) [128] People v. Aruta, 351 Phil. 868 (1998). [129] Book Two, Title Eight, Crimes against Persons, of the Revised Penal Code consists of two chapters: Chapter One – Destruction of Life, and Chapter Two – Physical Injuries. [130] (App. No.26853/04), ECtHR Judgment of July 13, 2006. [131] Id. at pars.196-197. [132] General Recommendation No. 19 on Violence against Women of the Committee on the Elimination of Discrimination Against Women. Adoption of the Report, U.N. Committee on the Elimination of Discrimination against Women, 11th Sess., Agenda Item 7, at para. 8, U.N. Doc. CEDAW/C/1992/L.1/Add.15 (1992); see also Lai, S. and Ralph, R., “Female Sexual Autonomy and Human Rights,” 8 Harvard Human Rights Journal (Spring, 1995) 201, 207-208. [133] 1987 PHIL. CONST. Art. II, § 11, provides, viz: Sec. 11. The State values the dignity of every human person and guarantees full respect for human rights. [134] I/A Court H.R. Velásquez Rodríguez Case, Judgment of July 29, 1988, Series C No. 4. [135] Id. at par. 177. [136] Created under Article 28 of the ICCPR as the treaty-based body charged with the authoritative interpretation of the ICCPR. See Russell-Brown, S., “Out of the Crooked Timber of Humanity: The Conflict Between South Africa‟s Truth and Reconciliation Commission and International Human Rights Norms Regarding „Effective Remedies‟,” 26 Hastings International and Comparative Law Review (Winter 2003) 227. [137] The ICCPR provides in Article 9(1), viz: “1. Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law.” (emphasis supplied) [138] Communication No. 195/1985, U. N. Doc. CCPR/C/39/D/195/1985 (1990). [139] Id. at , par. 5.5. [140] Communication No. 314/1988, U.N. Doc. CCPR/C/48/D/314/1988 (1993). [141] Communication No. 468/1991, U.N. Doc. CCPR/C/49/D/468/1991 (1993). [142] Communication No. 542/1993, U.N. Doc. CCPR/C/53/D/542/1993 (1996). [143] Communication No. 711/1996, U.N. Doc. CCPR/C/68/D/711/1996 (2000). [144] Communication No. 821/1998, U.N. Doc. CCPR/C/70/D/821/1998 (2000). [145] Powell, R., “The Right to Security of Person in European Court of Human Rights Jurisprudence,” 6 European Human Rights Law Review (2007) 649, 652-653. [146] Kurt v. Turkey (1999) 27 E.H.R.R. 373. [147] Id. at pars. 122 and 123. [148] CA rollo, p. 210. [149] Rollo, p. 182 [150] Rollo, pp. 28-29. [151] Rollo, pp. 29-31. The directives issued by the petitioners are in line with Article 13 of the 1992 U.N. Declaration on Enforced Disappearances which states that, “any person having knowledge or legitimate interest who alleges that a person has been subjected to enforced disappearance has the right to complain to a competent and independent state authority and to have that complaint promptly, thoroughly and impartially investigated by the authority.”

[152] [153]

Rollo, pp. 44-45. 84 Phil. 127 (1949).

EN BANC DANIEL MASANGKAY TAPUZ, AURORA TAPUZ-

G.R. No. 182484

MADRIAGA, LIBERTY M. ASUNCION, LADYLYN BAMOS

Present:

MADRIAGA, EVERLY TAPUZ MADRIAGA, EXCEL TAPUZ, PUNO, C.J., IVAN TAPUZ AND MARIAN TIMBAS, QUISUMBING, Petitioners,

YNARESSANTIAGO, CARPIO,

- versus -

AUSTRIAMARTINEZ, HONORABLE JUDGE ELMO DEL ROSARIO, in his capacity as Presiding Judge of RTC Br. 5 Kalibo, SHERIFF NELSON DELA CRUZ, in his capacity as Sheriff of the RTC, THE PHILIPPINE NATIONAL POLICE stationed in BoracayIsland, represented by the PNP STATION COMMANDER, THE HONORABLE COURT OF APPEALS IN CEBU 18thDIVISION, SPOUSES GREGORIO SANSON & MA.LOURDES T. SANSON, Respondents.

CORONA, *

CARPIO MORALES, AZCUNA, TINGA, CHICONAZARIO, *

VELASCO, JR.,

*

NACHURA,

REYES, LEONARDO-DE CASTRO, and BRION, JJ.

Promulgated:

June 17, 2008 x------------------------------------------------------------------------------------------ x

RESOLUTION BRION, J.: Before us for the determination of sufficiency of form and substance (pursuant to Sections 1 and 4 of Rule 65 of the Revised Rules of Court; Sections 1 and 5 of the Rule on the Writ of Amparo;[1] and Sections 1 and 6 of the Rule on the Writ of Habeas Data[2]) is the petition for certiorari and for the issuance of the writs of amparo and habeas data filed by the above-named petitioners against the Honorable Judge Elmo del Rosario [in his capacity as presiding judge of RTC Br. 5, Kalibo], Sheriff Nelson de la Cruz [in his capacity as Sheriff of the RTC], the Philippine National Police stationed in Boracay Island, represented by the PNP Station Commander, the Honorable Court of Appeals in Cebu, 18th Division, and the spouses Gregorio Sanson and Ma. Lourdes T. Sanson, respondents.

The petition and its annexes disclose the following material antecedents: The private respondents spouses Gregorio Sanson and Ma. Lourdes T. Sanson (the “private respondents”), filed with the Fifth Municipal Circuit Trial Court of Buruanga-Malay, Aklan (the “MCTC”) a complaint[3] dated 24 April 2006 for forcible entry and damages with a prayer for the issuance of a writ of preliminary mandatory injunction against the petitioners Daniel Masangkay Tapuz, Aurora Tapuz-Madriaga, Liberty M. Asuncion, Ladylyn Bamos Madriaga, Everly Tapuz Madriaga, Excel Tapuz, Ivan Tapuz and Marian Timbas (the “petitioners”) and other John Does numbering about 120. The private respondents alleged in their complaint that: (1) they are the registered owners under TCT No. 35813 of a 1.0093hectare parcel of land located at Sitio Pinaungon, Balabag,Boracay, Malay, Aklan (the “disputed land”); (2) they were the disputed land’s prior possessors when the petitioners – armed with bolos and carrying suspected firearms and together with unidentified persons numbering 120 - entered the disputed land by force and intimidation, without the private respondents’ permission and against the objections of the private respondents’ security men, and built thereon a nipa and bamboo structure. In their Answer[4] dated 14 May 2006, the petitioners denied the material allegations of the complaint. They essentially claimed that: (1) they are the actual and prior possessors of the disputed land; (2) on the contrary, the private respondents are the intruders; and (3) the private respondents’ certificate of title to the disputed property is spurious. They asked for the dismissal of the complaint and interposed a counterclaim for damages. The MCTC, after due proceedings, rendered on 2 January 2007 a decision[5] in the private respondents’ favor. It found prior possession – the key issue in forcible entry cases - in the private respondents’ favor, thus: “The key that could unravel the answer to this question lies in the Amended Commissioner’s Report and Sketch found on pages 245 to 248 of the records and the evidence the parties have submitted. It is shown in the Amended Commissioner’s Report and Sketch that the land in question is enclosed by a concrete and cyclone wire perimeter fence in pink and green highlighter as shown in the Sketch Plan (p. 248). Said perimeter fence was constructed by the plaintiffs 14 years ago. The foregoing findings of the Commissioner in his report and sketch collaborated the claim of the plaintiffs that after they acquired the land in question on May 27, 1993 through a Deed of Sale (Annex ‘A’, Affidavit of Gregorio Sanson, p. 276, rec.), they caused the construction of the perimeter fence sometime in 1993 (Affidavit of Gregorio Sanson, pp. 271-275, rec.).

From the foregoing established facts, it could be safely inferred that the plaintiffs were in actual physical possession of the whole lot in question since 1993 when it was interrupted by the defendants (sic) when on January 4, 2005 claiming to (sic) the Heirs of Antonio Tapuz entered a portion of the land in question with view of inhabiting the same and building structures therein prompting plaintiff Gregorio Sanson to confront them before BSPU, Police Chief Inspector Jack L. Wanky and Barangay Captain Glenn Sacapaño. As a result of their confrontation, the parties signed an Agreement (Annex ‘D’, Complaint p. 20) wherein they agreed to vacate the disputed portion of the land in question and agreed not to build any structures thereon. The foregoing is the prevailing situation of the parties after the incident of January 4, 2005 when the plaintiff posted security guards, however, sometime on or about 6:30 A.M. of April 19, 2006, the defendants some with bolos and one carrying a sack suspected to contain firearms with other John Does numbering about 120 persons by force and intimidation forcibly entered the premises along the road and built a nipa and bamboo structure (Annex ‘E’, Complaint, p. 11) inside the lot in question which incident was promptly reported to the proper authorities as shown by plaintiffs’ Certification (Annex ‘F’, Complaint, p. 12) of the entry in the police blotter and on same date April 19, 2006, the plaintiffs filed a complaint with the Office of the Lupong Tagapamayapa of Barangay Balabag, Boracay Island, Malay, Aklan but no settlement was reached as shown in their Certificate to File Action (Annex ‘G’, Complaint, p. 13); hence the present action. Defendants’ (sic) contend in their answer that ‘prior to January 4, 2005, they were already occupants of the property, being indigenous settlers of the same, under claim of ownership by open continuous, adverse possession to the exclusion of other (sic)’. (Paragraph 4, Answer, p. 25). The contention is untenable. As adverted earlier, the land in question is enclosed by a perimeter fence constructed by the plaintiffs sometime in 1993 as noted by the Commissioner in his Report and reflected in his Sketch, thus, it is safe to conclude that the plaintiffs where (sic) in actual physical possession of the land in question from 1993 up to April 19, 2006 when they were ousted therefrom by the defendants by means of force. Applying by analogy the ruling of the Honorable Supreme Court in the case of Molina, et al. vs. De Bacud, 19 SCRA 956, if the land were in the possession of plaintiffs from 1993 to April 19, 2006, defendants’ claims to an older possession must be rejected as untenable because possession as a fact cannot be recognized at the same time in two different personalities. Defendants likewise contend that it was the plaintiffs who forcibly entered the land in question on April 18, 2006 at about 3:00 o’clock in the afternoon as shown in their Certification (Annex ‘D’, Defendants’ Position Paper, p. 135, rec.). The contention is untenable for being inconsistent with their allegations made to the commissioner who constituted (sic) the land in question that they built structures on the land in question only on April 19, 2006 (Par. D.4, Commissioner’s Amended Report, pp. 246 to 247), after there (sic) entry thereto on even date. Likewise, said contention is contradicted by the categorical statements of defendants’ witnesses, Rowena Onag, Apolsida Umambong, ArielGac, Darwin Alvarez and Edgardo Pinaranda, in their Joint Affidavit (pp. 143‘144, rec.) *sic+ categorically stated ‘that on or about April 19, 2006, a group of armed men entered the property of our said neighbors and built plastic roofed tents. These armed men threatened to drive our said neighbors away from their homes but they refused to leave and resisted the intruding armed men’. From the foregoing, it could be safely inferred that no incident of forcible entry happened on April 18, 2006 but it was only on April 19, 2006when the defendants overpowered by their numbers the security guards posted by the plaintiffs prior to the controversy. Likewise, defendants (sic) alleged burnt and other structures depicted in their pictures attached as annexes to their position paper were not noted and reflected in the amended report and sketch submitted by the Commissioner, hence, it could be safely inferred that these structures are built and (sic) situated outside the premises of the land in question, accordingly, they are irrelevant to the instant case and cannot be considered as evidence of their actual possession of the land in question prior to April 19, 2006[6].”

The petitioners appealed the MCTC decision to the Regional Trial Court (“RTC,” Branch 6 of Kalibo, Aklan) then presided over by Judge Niovady M. Marin (“Judge Marin”). On appeal, Judge Marin granted the private respondents’ motion for the issuance of a writ of preliminary mandatory injunctionthrough an Order dated 26 February 2007, with the issuance conditioned on the private respondents’ posting of a bond. The writ[7] – authorizing the immediate implementation of the MCTC decision – was actually issued by respondent Judge Elmo F. del Rosario (the “respondent Judge”) on 12 March 2007 after the private respondents had complied with the imposed condition. The petitioners moved to reconsider the issuance of the writ; the private respondents, on the other hand, filed a motion for demolition. The respondent Judge subsequently denied the petitioners’ Motion for Reconsideration and to Defer Enforcement of Preliminary Mandatory Injunction in an Order dated 17 May 2007[8]. Meanwhile, the petitioners opposed the motion for demolition.[9] The respondent Judge nevertheless issued via a Special Order[10] a writ of demolition to be implemented fifteen (15) days after the Sheriff’s written notice to the petitioners to voluntarily demolish their house/s to allow the private respondents to effectively take actual possession of the land. The petitioners thereafter filed on 2 August 2007 with the Court of Appeals, Cebu City, a Petition for Review[11] (under Rule 42 of the 1997 Rules of Civil Procedure) of the Permanent Mandatory Injunction and Order of Demolition of the RTC of Kalibo, Br. 6 in Civil Case No. 7990. Meanwhile, respondent Sheriff Nelson R. dela Cruz issued the Notice to Vacate and for Demolition on 19 March 2008.[12] It was against this factual backdrop that the petitioners filed the present petition last 29 April 2008. The petition contains and prays for three remedies, namely: a petition for certiorari under Rule 65 of the Revised Rules of Court; the issuance of a writ of habeas data under the Rule on the Writ of Habeas

Data; and finally, the issuance of the writ of amparo under the Rule on the Writ of Amparo. To support the petition and the remedies prayed for, the petitioners present factual positions diametrically opposed to theMCTC’s findings and legal reasons. Most importantly, the petitioners maintain their claims of prior possession of the disputed land and of intrusion into this land by the private respondents. The material factual allegations of the petition – bases as well of the petition for the issuance of the writ of amparo – read: “29. On April 29, 2006 at about 9:20 a.m. armed men sporting 12 gauge shot guns intruded into the property of the defendants [the land in dispute]. They were not in uniform. They fired their shotguns at the defendants. Later the following day at 2:00 a.m. two houses of the defendants were burned to ashes.

30. These armed men [without uniforms] removed the barbed wire fence put up by defendants to protect their property from intruders. Two of the armed men trained their shotguns at the defendants who resisted their intrusion. One of them who was identified as SAMUEL LONGNO y GEGANSO, 19 years old, single, and a resident of Binun-an, Batad, Iloilo, fired twice.

31. The armed men torched two houses of the defendants reducing them to ashes. [...]

32. These acts of TERRORISM and (heinous crime) of ARSON were reported by one of the HEIRS OF ANTONIO TAPUZ [...]. The terrorists trained their shotguns and fired at minors namely IVAN GAJISAN and MICHAEL MAGBANUA, who resisted their intrusion. Their act is a blatant violation of the law penalizing Acts of Violence against women and children, which is aggravated by the use of high-powered weapons.

[…]

34. That the threats to the life and security of the poor indigent and unlettered petitioners continue because the private respondents Sansonshave under their employ armed men and they are influential with the police authorities owing to their financial and political clout.

35. The actual prior occupancy, as well as the ownership of the lot in dispute by defendants and the atrocities of the terrorists [introduced into the property in dispute by the plaintiffs] are attested by witnesses who are persons not related to the defendants are therefore disinterested witnesses in the case namely: Rowena Onag, Apolsida Umambong, Ariel Gac, Darwin Alvarez and Edgardo Penarada. Likewise, the affidavit of Nemia T. Carmen is submitted to prove that the plaintiffs resorted to atrocious acts through hired men in their bid to unjustly evict the defendants.[13]”

The petitioners posit as well that the MCTC has no jurisdiction over the complaint for forcible entry that the private respondents filed below. Citing Section 33 of The Judiciary Reorganization Act of 1980, as amended by Republic Act No. 7691,[14] they maintain that the forcible entry case in fact involves issues of title to or possession of real property or an interest therein, with the assessed value of the property involved exceeding P20,000.00; thus, the case should be originally cognizable by the RTC. Accordingly, the petitioners reason out that the RTC - to where the MCTC decision was appealed – equally has no jurisdiction to rule on the case on appeal and could not have validly issued the assailed orders.

OUR RULING

We find the petitions for certiorari and issuance of a writ of habeas data fatally defective, both in substance and in form. The petition for the issuance of the writ of amparo, on the other hand, is fatally defective with respect to content and substance.

The Petition for Certiorari

We conclude, based on the outlined material antecedents that led to the petition, that the petition for certiorari to nullify the assailed RTC orders has been filed out of time. It is not lost on us that the petitioners have a pending petition with the Court of Appeals (the “CA petition”) for the review of the same RTC orders now assailed in the present petition, although the petitioners never disclosed in the body of the present petition the exact status of their pending CA petition. The CA petition, however, was filed with the Court of Appeals on 2 August 2007, which indicates to us that the assailed orders (or at the very least,

the latest of the interrelated assailed orders) were received on 1 August 2007 at the latest. The present petition, on the other hand, was filed on April 29, 2008 or more than eight months from the time the CA petition was filed. Thus, the present petition is separated in point of time from the assumed receipt of the assailed RTC orders by at least eight (8) months, i.e., beyond the reglementary period of sixty (60) days[15]from receipt of the assailed order or orders or from notice of the denial of a seasonably filed motion for reconsideration.

We note in this regard that the petitioners’ counsel stated in his attached “Certificate of Compliance with Circular #1-88 of the Supreme Court”[16] (“Certificate of Compliance”) that “in the meantime the RTC and the Sheriff issued a NOTICE TO VACATE AND FOR DEMOLITION not served to counsel but to the petitioners who sent photo copy of the same NOTICE to their counsel on April 18, 2008 by LBC.” To guard against any insidious argument that the present petition is timely filed because of this Notice to Vacate, we feel it best to declare now that the counting of the 60-day reglementary period under Rule 65 cannot start from the April 18, 2008 date cited by the petitioners’ counsel. The Notice to Vacate and for Demolition is not an order that exists independently from the RTC orders assailed in this petition and in the previously filed CA petition. It is merely a notice, made in compliance with one of the assailed orders, and is thus an administrative enforcement medium that has no life of its own separately from the assailed order on which it is based. It cannot therefore be the appropriate subject of an independent petition for certiorari under Rule 65 in the context of this case. The April 18, 2008 date cannot likewise be the material date for Rule 65 purposes as the above-mentioned Notice to Vacate is not even directly assailed in this petition, as the petition’s Prayer patently shows.[17]

Based on the same material antecedents, we find too that the petitioners have been guilty of willful and deliberate misrepresentation before this Court and, at the very least, of forum shopping.

By the petitioners’ own admissions, they filed a petition with the Court of Appeals (docketed as CA – G.R. SP No. 02859) for the review of the orders now

also assailed in this petition, but brought the present recourse to us, allegedly because “the CA did not act on the petition up to this date and for the petitioner (sic) to seek relief in the CA would be a waste of time and would render the case moot and academic since the CA refused to

resolve pending urgent motions and the Sheriff is determined to enforce a writ of demolition despite the defect of LACK OF JURISDICTION.”[18]

Interestingly, the petitioners’ counsel - while making this claim in the body of the petition - at the same time represented in his Certificate of Compliance[19] that: “x x x

(e) the petitioners went up to the Court of Appeals to question the WRIT OF PRELIMINARY INJUNCTION copy of the petition is attached (sic);

(f) the CA initially issued a resolution denying the PETITION because it held that the ORDER TO VACATE AND FOR DEMOLITION OF THE HOMES OF PETITIONERS is not capable of being the subject of a PETITION FOR RELIEF, copy of the resolution of the CA is attached hereto; (underscoring supplied)

(g) Petitioners filed a motion for reconsideration on August 7, 2007 but up to this date the same had not been resolved copy of the MR is attached(sic).

x x x”

The difference between the above representations on what transpired at the appellate court level is replete with significance regarding the petitioners’ intentions. We discern -- from the petitioners’ act of misrepresenting in the body of their petition that “the CA did not act on the petition up to this date” while stating the real Court of Appeals action in the Certification of Compliance -- the intent to hide the real state of the remedies the petitioners sought below in order to mislead us into action on the RTC orders without frontally considering the action that the Court of Appeals had already undertaken.

At the very least, the petitioners are obviously seeking to obtain from us, via the present petition, the same relief that it could not wait for from the Court of Appeals in CA-G.R. SP No. 02859. The petitioners’ act of seeking against the same parties the nullification of the same RTC orders before the appellate court and before us at the same time, although made through different mediums that are both improperly used, constitutes willful and deliberate forum shopping that can sufficiently serve as basis for the summary dismissal of the petition under the combined application of the fourth and penultimate paragraphs of Section 3, Rule 46; Section 5, Rule 7; Section 1, Rule 65; and Rule 56, all of the Revised Rules of Court. That a wrong remedy may have been used with the Court of Appeals and possibly with us will not save the petitioner from a forum-shopping violation where there is identity of parties, involving the same assailed interlocutory orders, with the recourses existing side by side at the same time.

To restate the prevailing rules, “forum shopping is the institution of two or more actions or proceedings involving the same parties for the same cause of action, either simultaneously or successively, on the supposition that one or the other court would make a favorable disposition. Forum shopping may be resorted to by any party against whom an adverse judgment or order has been issued in one forum, in an attempt to seek a favorable opinion in another, other than by appeal or a special civil action for certiorari. Forum shopping trifles with the courts, abuses their processes, degrades the administration of justice and congest court dockets. Willful and deliberate violation of the rule against it is a ground for summary dismissal of the case; it may also constitute direct contempt.”[20]

Additionally, the required verification and certification of non-forum shopping is defective as one (1) of the seven (7) petitioners - Ivan Tapuz - did not sign, in violation of Sections 4 and 5 of Rule 7; Section 3, Rule 46; Section 1, Rule 65; all in relation with Rule 56 of the Revised Rules of Court. Of those who signed, only five (5) exhibited their postal identification cards with the Notary Public.

In any event, we find the present petition for certiorari, on its face and on the basis of the supporting attachments, to be devoid of merit. The MCTC

correctly assumed jurisdiction over the private respondents’ complaint, which specifically alleged a cause for forcible entry and not – as petitioners may have misread or misappreciated – a case involving title to or possession of realty or an interest therein. Under Section 33, par. 2 of The Judiciary Reorganization Act, as amended by Republic Act (R.A.) No. 7691, exclusive jurisdiction over forcible entry and unlawful detainer cases lies with the Metropolitan Trial Courts, Municipal Trial Courts and Municipal Circuit Trial Courts. These first-level courts have had jurisdiction over these cases – called accion interdictal – even before the R.A. 7691 amendment, based on the issue of pure physical possession (as opposed to the right of possession). This jurisdiction is regardless of the assessed value of the property involved; the law established no distinctions based on the assessed value of the property forced into or unlawfully detained. Separately from accion interdictal are accion publiciana for the recovery of the right of possession as a plenary action, and accion reivindicacion for the recovery of ownership.[21] Apparently, these latter actions are the ones the petitioners refer to when they cite Section 33, par. 3, in relation with Section 19, par. 2 of The Judiciary Reorganization Act of 1980, as amended by Republic Act No. 7691, in which jurisdiction may either be with the first-level courts or the regional trial courts,depending on the assessed value of the realty subject of the litigation. As the complaint at the MCTC was patently for forcible entry, that court committed no jurisdictional error correctible by certiorari under the present petition.

In sum, the petition for certiorari should be dismissed for the cited formal deficiencies, for violation of the non-forum shopping rule, for having been filed out of time, and for substantive deficiencies.

The Writ of Amparo

To start off with the basics, the writ of amparo was originally conceived as a response to the extraordinary rise in the number of killings and enforced disappearances, and to the perceived lack of available and effective remedies to address these extraordinary concerns. It is intended to address violations of or

threats to the rights to life, liberty or security, as an extraordinary and independent remedy beyond those available under the prevailing Rules, or as a remedy supplemental to these Rules. What it is not, is a writ to protect concerns that are purely property or commercial. Neither is it a writ that we shall issue on amorphous and uncertain grounds. Consequently, the Rule on the Writ of Amparo – in line with the extraordinary character of the writ and the reasonable certainty that its issuance demands – requires that every petition for the issuance of the Pwrit must be supported by justifying allegations of fact, to wit:

“(a) The personal circumstances of the petitioner;

(b) The name and personal circumstances of the respondent responsible for the threat, act or omission, or, if the name is unknown or uncertain, the respondent may be described by an assumed appellation;

(c) The right to life, liberty and security of the aggrieved party violated or threatened with violation by an unlawful act or omission of the respondent, and how such threat or violation is committed with the attendant circumstances detailed in supporting affidavits;

(d) The investigation conducted, if any, specifying the names, personal circumstances, and addresses of the investigating authority or individuals, as well as the manner and conduct of the investigation, together with any report;

(e) The actions and recourses taken by the petitioner to determine the fate or whereabouts of the aggrieved party and the identity of the person responsible for the threat, act or omission; and

(f) The relief prayed for.

The petition may include a general prayer for other just and equitable reliefs.”[22]

The writ shall issue if the Court is preliminarily satisfied with the prima facie existence of the ultimate facts determinable from the supporting affidavits that detail the circumstances of how and to what extent a threat to or violation of the rights to life, liberty and security of the aggrieved party was or is being committed.

The issuance of the writ of amparo in the present case is anchored on the factual allegations heretofore quoted,[23] that are essentially repeated in paragraph 54 of the petition. These allegations are supported by the following documents:

“(a) Joint Affidavit dated 23 May 2006 of Rowena B. Onag, Apolsida Umambong, Ariel Gac, Darwin Alvarez andEdgardo Pinaranda, supporting the factual positions of the petitioners, id., petitioners’ prior possession, private respondents’ intrusion and the illegal acts committed by the private respondents and their security guards on 19 April 2006;

(b) Unsubscribed Affidavit of Nemia Carmen y Tapuz, alleging the illegal acts (firing of guns, etc.) committed by a security guard against minors – descendants of Antonio Tapuz;

(c) Unsubscribed Affidavit of Melanie Tapuz y Samindao, essentially corroborating Nemia’s affidavit;

(d) Certification dated 23 April 2006 issued by Police Officer Jackson Jauod regarding the incident of petitioners’ intrusion into the disputed land;

(e) Certification dated 27 April 2006 issued by Police Officer Allan R. Otis, narrating the altercation between theTapuz family and the security guards of the private respondents, including the gunpoking and shooting incident involving one of the security guards;

(f) Certification issued by Police Officer Christopher R. Mendoza, narrating that a house owned by Josiel Tapuz, Jr., rented by a certain Jorge Buenavente, was accidentally burned by a fire.”

On the whole, what is clear from these statements - both sworn and unsworn - is the overriding involvement of property issues as the petition traces its roots to questions of physical possession of the property disputed by the private parties. If at all, issues relating to the right to life or to liberty can hardly be discerned except to the extent that the occurrence of past violence has been alleged. The right to security, on the other hand, is alleged only to the extent of the threats and harassments implied from the presence of “armed men bare to the waist” and the alleged pointing and firing of weapons. Notably, none of the

supporting affidavits compellingly show that the threat to the rights to life, liberty and security of the petitioners is imminent or is continuing.

A closer look at the statements shows that at least two of them – the statements of Nemia Carreon y Tapuz and Melanie Tapuzare practically identical and unsworn. The Certification by Police Officer Jackson Jauod, on the other hand, simply narrates what had been reported by one Danny Tapuz y Masangkay, and even mentions that the burning of two residential houses was “accidental.”

As against these allegations are the cited MCTC factual findings in its decision in the forcible entry case which rejected all the petitioners’ factual claims. These findings are significantly complete and detailed, as they were made under a full-blown judicial process, i.e., after examination and evaluation of the contending parties’ positions, evidence and arguments and based on the report of a court-appointed commissioner.

We preliminarily examine these conflicting factual positions under the backdrop of a dispute (with incidents giving rise to allegations of violence or threat thereof) that was brought to and ruled upon by the MCTC; subsequently brought to the RTC on anappeal that is still pending; still much later brought to the appellate court without conclusive results; and then brought to us on interlocutory incidents involving a plea for the issuance of the writ of amparo that, if decided as the petitioners advocate, may render the pending RTC appeal moot.

Under these legal and factual situations, we are far from satisfied with the prima facie existence of the ultimate facts that would justify the issuance of a writ of amparo. Rather than acts of terrorism that pose a continuing threat to the persons of the petitioners, the violent incidents alleged appear to us to be purely property-related and focused on the disputed land. Thus, if the petitioners wish to seek redress and hold the alleged perpetrators criminally accountable, the remedy may lie more in the realm of ordinary criminal prosecution rather than on the use of the extraordinary remedy of the writ of amparo.

Nor do we believe it appropriate at this time to disturb the MCTC findings, as our action may carry the unintended effect, not only of reversing the MCTC ruling independently of the appeal to the RTC that is now in place, but also of nullifying the ongoing appeal process. Such effect, though unintended, will obviously wreak havoc on the orderly administration of justice, an overriding goal that the Rule on the Writ of Amparo does not intend to weaken or negate.

Separately from these considerations, we cannot fail but consider too at this point the indicators, clear and patent to us, that the petitioners’ present recourse via the remedy of the writ of amparo is a mere subterfuge to negate the assailed orders that the petitioners sought and failed to nullify before the appellate court because of the use of an improper remedial measure. We discern this from the petitioners’ misrepresentations pointed out above; from their obvious act of forum shopping; and from the recourse itself to the extraordinary remedies of the writs of certiorari and amparo based on grounds that are far from forthright and sufficiently compelling. To be sure, when recourses in the ordinary course of law fail because of deficient legal representation or the use of improper remedial measures, neither the writ of certiorari nor that of amparo - extraordinary though they may be - will suffice to serve as a curative substitute. The writ of amparo, particularly, should not issue when applied for as a substitute for the appeal or certiorari process, or when it will inordinately interfere with these processes – the situation obtaining in the present case.

While we say all these, we note too that the Rule on the Writ of Amparo provides for rules on the institution of separate actions,[24] for the effect of earlier-filed criminal actions,[25] and for the consolidation of petitions for the issuance of a writ of amparo with a subsequently filed criminal and civil action.[26] These rules were adopted to promote an orderly procedure for dealing with petitions for the issuance of the writ of amparo when the parties resort to other parallel recourses.

Where, as in this case, there is an ongoing civil process dealing directly with the possessory dispute and the reported acts of violence and harassment, we see no point in separately and directly intervening through a writ of amparo in the absence of any clearprima facie showing that the right to life, liberty or security – the personal concern that the writ is intended to protect - is immediately in danger or threatened, or that the danger or threat is continuing. We see no legal bar, however, to an application for the issuance of the writ, in a proper case, by motion in a pending case on appeal or on certiorari, applying by analogy the provisions on the co-existence of the writ with a separately filed criminal case.

The Writ of Habeas Data Section 6 of the Rule on the Writ of Habeas Data requires the following material allegations of ultimate facts in a petition for the issuance of a writ of habeas data:

“(a) The personal circumstances of the petitioner and the respondent; (b) The manner the right to privacy is violated or threatened and how it affects the right to life, liberty or security of the aggrieved party;

(c) The actions and recourses taken by the petitioner to secure the data or information;

(d) The location of the files, registers or databases, the government office, and the person in charge, in possession or in control of the data or information, if known;

(e) The reliefs prayed for, which may include the updating, rectification, suppression or destruction of the database or information or files kept by the respondent.

In case of threats, the relief may include a prayer for an order enjoining the act complained of; and

(f) Such other relevant reliefs as are just and equitable.”

Support for the habeas data aspect of the present petition only alleges that:

“1. * … + Similarly, a petition for a WRIT OF HABEAS DATA is prayed for so that the PNP may release the report on the burning of the homes of the petitioners and the acts of violence employed against them by the private respondents, furnishing the Court and the petitioners with copy of the same;

*…+

66. Petitioners apply for a WRIT OF HABEAS DATA commanding the Philippine National Police [PNP] to produce the police report pertaining to the burning of the houses of the petitioners in the land in dispute and likewise the investigation report if an investigation was conducted by the PNP.”

These allegations obviously lack what the Rule on Writ of Habeas Data requires as a minimum, thus rendering the petition fatally deficient. Specifically, we see no concrete allegations of unjustified or unlawful violation of the right to privacy related to the right to life, liberty or security. The petition likewise has not alleged, much less demonstrated, any need for information under the control of police authorities other than those it has already set forth as integral annexes. The necessity or justification for the issuance of the writ, based on the insufficiency of previous efforts made to secure information, has not also been shown. In sum, the prayer for the issuance of a writ of habeas data is nothing more than the “fishing expedition” that this Court - in the course of drafting the Rule on habeas data - had in mind in defining what the purpose of a writ of habeas data is not. In these lights, the outright denial of the petition for the issuance of the writ of habeas data is fully in order. WHEREFORE, premises considered, we hereby DISMISS the present petition OUTRIGHT for deficiencies of form and substance patent from its body and attachments. SO ORDERED. ARTURO D. BRION Associate Justice

WE CONCUR:

REYNATO S. PUNO Chief Justice

LEONARDO A. QUISUMBING

CONSUELO YNARES-SANTIAGO

Associate Justice

Associate Justice

ANTONIO T. CARPIO

MA. ALICIA AUSTRIA-MARTINEZ

Associate Justice

Associate Justice

RENATO C. CORONA

CONCHITA CARPIO MORALES

Associate Justice

Associate Justice

ADOLFO S. AZCUNA

DANTE O. TINGA

Associate Justice

Associate Justice

MINITA V. CHICO-NAZARIO

PRESBITERO J. VELASCO, JR.

Associate Justice

Associate Justice

ANTONIO EDUARDO B. NACHURA

RUBEN T. REYES

Associate Justice

Associate Justice

TERESITA J. LEONARDO-DE CASTRO Associate Justice

CERTIFICATION Pursuant to Section 13, Article VIII of the Constitution, it is hereby certified that the conclusions in the above Resolution were reached in consultation before the case was assigned to the writer of the opinion of the Court. REYNATO S. PUNO Chief Justice

* [1] [2] [3] [4] [5] [6] [7]

On official leave. A.M. No. 07-9-12-SC. A.M. No. 08-1-16-SC. Rollo, pp. 71-76. Id., pp. 87-102 Penned by Judge Raul C. Barrios, id., pp. 108-115 Id., pp. 111-113 Id., p. 191

[8] [9] [10] [11] [12] [13] [14]

[15] [16]

[17] [18] [19] [20] [21] [22] [23] [24]

[25]

Id., p. 44 Id., pp. 66-70 Id., p. 79 Id., pp. 117-150; dated and filed 2 August 2007. Id., p. 116. Id., pp. 11-12 Section 33. Jurisdiction of Metropolitan Trial Courts, Municipal Trial Courts and Municipal Circuit Trial Courts in Civil Cases. – Metropolitan Trial Courts, Municipal Trial Courts and Municipal Circuit Trial Courts shall exercise: […] (3) Exclusive original jurisdiction in all civil actions which involve title to, or possession of, real property, or any interest therein where the assessed value of the disputed property or interest therein does not exceed Twenty Thousand Pesos (P20,000.00) or, in civil actions in Metro Manila, where such assessed value does not exceed Fifty Thousand Pesos (P50,000.00) exclusive of interest, damages of whatever kind, attorney‟s fees, litigation expenses and costs: Provided, That in cases of land not declared for taxation purposes, the value of such property shall be determined by the assessed value of the adjacent lots. Under Section 4, Rules 65 of the Revised Rules of Court. Rollo, pp. 27-28; A separate substitute compliance for the required Statement of Material Dates in petitions for certiorari under the second paragraph of Section 3, Rule 46, in relations with Rules 56 and 65 of the Revised Rules of Court. Id.., p. 24. Id.,, p. 9, par. 23 of the Petition. Supra, at note 16. Spouses Julita dela Cruz v. Pedro Joaquin, G.R. No. 162788, July 28, 2005, 464 SCRA 576. Reyes v. Sta. Maria, No. L-33213, June 29, 1979, 91 SCRA 164. Section 5 of the Rule on the Writ of Amparo At pages 7-8 of this Resolution SEC. 21. Institution of Separate Actions. — This Rule shall not preclude the filing of separate criminal, civil or administrative actions. SEC. 22. Effect of Filing of a Criminal Action. – When a criminal action has been commenced, no separate petition for the writ shall be filed. The reliefs under the writ shall be available by motion in the criminal case. The procedure under this Rule shall govern the disposition of the reliefs available under the writ of amparo.

[26]

SEC. 23. Consolidation. – When a criminal action is filed subsequent to the filing of a petition for the writ, the latter shall be consolidated with the criminal action. When a criminal action and a separate civil action are filed subsequent to a petition for a writ of amparo, the latter shall be consolidated with the criminal action. After consolidation, the procedure under this Rule shall continue to apply to the disposition of the reliefs in the petition.

Republic of the Philippines Supreme Court Manila

EN BANC EDGARDO NAVIA,[1] RUBEN DIO,[2] and ANDREW BUISING, Petitioners,

G.R. No. 184467

Present:

- versus -

CARPIO, VELASCO, JR., LEONARDO-DE CASTRO, BRION, PERALTA, BERSAMIN, DEL CASTILLO, ABAD, VILLARAMA, JR., PEREZ, MENDOZA, SERENO, REYES, and PERLAS-BERNABE, JJ.

VIRGINIA PARDICO, for and in behalf and in representation of Promulgated: BENHUR V. PARDICO Respondent. June 19, 2012 x--------------------------------------------------------x

DECISION DEL CASTILLO, J.: For the protective writ of amparo to issue in enforced disappearance cases, allegation and proof that the persons subject thereof are missing are not enough. It must also be shown by the required quantum of proof that their disappearance was carried out by, “or with the authorization, support or acquiescence of, [the government] or a political organization, followed by a refusal to acknowledge [the same or] give information on the fate or whereabouts of [said missing] persons.”[3] This petition for review on certiorari[4] filed in relation to Section 19 of A.M. No. 07-9-12-SC[5] challenges the July 24, 2008 Decision[6] of the Regional Trial Court (RTC),

Branch 20, Malolos City which granted the Petition for Writ of Amparo[7] filed by herein respondent against the petitioners. Factual Antecedents On March 31, 2008, at around 8:30 p.m., a vehicle of Asian Land Strategies Corporation[8] (Asian Land) arrived at the house of Lolita M. Lapore (Lolita) located at 7A Lot 9, Block 54, Grand Royale Subdivision, Barangay Lugam, Malolos City. The arrival of the vehicle awakened Lolita‟s son, Enrique Lapore (Bong), and Benhur Pardico (Ben), who were then both staying in her house. When Lolita went out to investigate, she saw two uniformed guards disembarking from the vehicle. One of them immediately asked Lolita where they could find her son Bong. Before Lolita could answer, the guard saw Bong and told him that he and Ben should go with them to the security office of Asian Land because a complaint was lodged against them for theft of electric wires and lamps in the subdivision.[9] Shortly thereafter, Bong, Lolita and Ben were in the office of the security department of Asian Land also located in Grand Royale Subdivision.[10] The supervisor of the security guards, petitioner Edgardo Navia (Navia), also arrived thereat. As to what transpired next, the parties‟ respective versions diverge. Version of the Petitioners Petitioners alleged that they invited Bong and Ben to their office because they received a report from a certain Mrs. Emphasis, a resident of Grand Royale Subdivision, that she saw Bong and Ben removing a lamp from a post in said subdivision.[11] The reported unauthorized taking of the lamp was relayed thru radio to petitioners Ruben Dio (Dio) and Andrew Buising (Buising), who both work as security guards at theAsian Land security department. Following their department‟s standard operating procedure, Dio and Buising entered the report in their logbook and proceeded to the house of Mrs. Emphasis. It was there where Dio and Buising were able to confirm who the suspects were. They thus repaired to the house of Lolita where Bong and Ben were staying to invite the two suspects to their office. Bong and Ben voluntarily went with them. At the security office, Dio and Buising interviewed Bong and Ben. The suspects admitted that they took the lamp but clarified that they were only transferring it to a post nearer to the house of Lolita.[12] Soon, Navia arrived and Buising informed him that the

complainant was not keen in participating in the investigation. Since there was no complainant, Navia ordered the release of Bong and Ben. Bong then signed a statement to the effect that the guards released him without inflicting any harm or injury to him.[13] His mother Lolita also signed the logbook below an entry which states that she will never again harbor or entertain Ben in her house. Thereafter, Lolita and Bong left the security office. Ben was left behind as Navia was still talking to him about those who might be involved in the reported loss of electric wires and lamps within the subdivision. After a brief discussion though, Navia allowed Ben to leave. Ben also affixed his signature on the logbook to affirm the statements entered by the guards that he was released unharmed and without any injury.[14] Upon Navia‟s instructions, Dio and Buising went back to the house of Lolita to make her sign the logbook as witness that they indeed released Ben from their custody. Lolita asked Buising to read aloud that entry in the logbook where she was being asked to sign, to which Buising obliged. Not contented, Lolita put on her reading glasses and read the entry in the logbook herself before affixing her signature therein. After which, the guards left. Subsequently, petitioners received an invitation[15] from the Malolos City Police Station requesting them to appear thereat on April 17, 2008 relative to the complaint of Virginia Pardico (Virginia) about her missing husband Ben. In compliance with the invitation, all three petitioners appeared at the Malolos City Police Station. However, since Virginia was not present despite having received the same invitation, the meeting was reset to April 22, 2008.[16] On April 22, 2008, Virginia attended the investigation. Petitioners informed her that they released Ben and that they have no information as to his present whereabouts.[17] They assured Virginia though that they will cooperate and help in the investigation of her missing husband.[18] Version of the Respondent According to respondent, Bong and Ben were not merely invited. They were unlawfully arrested, shoved into the Asian Land vehicle and brought to the security office for investigation. Upon seeing Ben at the security office, Navia lividly grumbled “Ikaw na naman?”[19] and slapped him while he was still seated. Ben begged for mercy, but his pleas were met with a flurry of punches coming from Navia hitting him on different parts

of his body.[20] Navia then took hold of his gun, looked at Bong, and said, “Wala kang nakita at wala kang narinig, papatayin ko na si Ben.”[21] Bong admitted that he and Ben attempted to take the lamp. He explained that the area where their house is located is very dark and his father had long been asking the administrator of Grand Royale Subdivision to install a lamp to illumine their area. But since nothing happened, he took it upon himself to take a lamp from one of the posts in the subdivision and transfer it to a post near their house. However, the lamp Bong got was no longer working. Thus, he reinstalled it on the post from which he took it and no longer pursued his plan. [22] Later on, Lolita was instructed to sign an entry in the guard‟s logbook where she undertook not to allow Ben to stay in her house anymore.[23] Thereafter, Navia again asked Lolita to sign the logbook. Upon Lolita‟s inquiry as to why she had to sign again, Navia explained that they needed proof that they released her son Bong unharmed but that Ben had to stay as the latter‟s case will be forwarded to the barangay. Since she has poor eyesight, Lolita obligingly signed the logbook without reading it and then left with Bong.[24] At that juncture, Ben grabbed Bong and pleaded not to be left alone. However, since they were afraid of Navia, Lolita and Bong left the security office at once leaving Ben behind.[25] Moments after Lolita and Bong reached their house, Buising arrived and asked Lolita to sign the logbook again. Lolita asked Buising why she had to sign again when she already twice signed the logbook at the headquarters. Buising assured her that what she was about to sign only pertains to Bong‟s release. Since it was dark and she has poor eyesight, Lolita took Buising‟s word and signed the logbook without, again, reading what was written in it. [26] The following morning, Virginia went to the Asian Land security office to visit her husband Ben, but only to be told that petitioners had already released him together with Bong the night before. She then looked for Ben, asked around, and went to the barangay. Since she could not still find her husband, Virginia reported the matter to the police. In the course of the investigation on Ben‟s disappearance, it dawned upon Lolita that petitioners took advantage of her poor eyesight and naivete. They made her sign the logbook as a witness that they already released Ben when in truth and in fact she never witnessed his actual release. The last time she saw Ben was when she left him in petitioners‟ custody at the security office.[27]

Exasperated with the mysterious disappearance of her husband, Virginia filed a Petition for Writ of Amparo[28] before the RTC of Malolos City. Finding the petition sufficient in form and substance, the amparo court issued an Order[29] dated June 26, 2008 directing, among others, the issuance of a writ of amparo and the production of the body of Ben before it on June 30, 2008. Thus: WHEREFORE, conformably with Section 6 of the Supreme Court Resolution [in] A.M. No. 07-[9]-12-SC, also known as “The Rule On The Writ Of Amparo”, let a writ of amparo be issued, as follows: (1) ORDERING [petitioners] Edgardo Navia, Ruben Dio and Andrew Buising of the Asian Land Security Agency to produce before the Court the body of aggrieved party Benhur Pardico, on Monday, June 30, 2008, at 10:30 a.m.; (2) ORDERING the holding of a summary hearing of the petition on the aforementioned date and time, and DIRECTING the [petitioners] to personally appear thereat; (3) COMMANDING [petitioners] Edgardo Navia, Ruben Dio and Andrew Buising to file, within a non-extendible period of seventy-two (72) hours from service of the writ, a verified written return with supporting affidavits which shall, among other things, contain the following: a)

The lawful defenses to show that the [petitioners] did not violate or threaten with violation the right to life, liberty and security of the aggrieved party, through any act or omission;

b)

The steps or actions taken by the [petitioners] to determine the fate or whereabouts of the aggrieved party and the person or persons responsible for the threat, act or omission; and

c)

All relevant information in the possession of the [petitioners] pertaining to the threat, act or omission against the aggrieved party.

(4) GRANTING, motu proprio, a Temporary Protection Order prohibiting the [petitioners], or any persons acting for and in their behalf, under pain of contempt, from threatening, harassing or inflicting any harm to [respondent], his immediate family and any [member] of his household. The Branch Sheriff is directed to immediately serve personally on the [petitioners], at their address indicated in the petition, copies of the writ as well as this order, together with copies of the petition and its annexes.[30]

A Writ of Amparo[31] was accordingly issued and served on the petitioners on June 27, 2008.[32] On June 30, 2008, petitioners filed their Compliance[33] praying for the denial of the petition for lack of merit. A summary hearing was thereafter conducted. Petitioners presented the testimony of Buising, while Virginia submitted the sworn statements[34] of Lolita and Enrique which the two affirmed on the witness stand. Ruling of the Regional Trial Court On July 24, 2008, the trial court issued the challenged Decision[35] granting the petition. It disposed as follows: WHEREFORE, the Court hereby grants the privilege of the writ of amparo, and deems it proper and appropriate, as follows: (a) To hereby direct the National Bureau of Investigation (NBI) to immediately conduct a deep and thorough investigation of the [petitioners] Edgardo Navia, Ruben Dio and Andrew Buising in connection with the circumstances surrounding the disappearance of [Benhur] Pardico, utilizing in the process, as part of the investigation, the documents forming part of the records of this case; (b) To hereby direct the NBI to extend to the family of [Benhur] Pardico and the witnesses who testified in this case protection as it may deem necessary to secure their safety and security; and (c) To hereby direct the Office of the Provincial Prosecutor of Bulacan to investigate the circumstances concerning the legality of the arrest of [Benhur] Pardico by the [petitioners] in this case, utilizing in the process, as part of said investigation, the pertinent documents and admissions forming part of the record of this case, and take whatever course/s of action as may be warranted. Furnish immediately copies of this decision to the NBI, through the Office of Director Nestor Mantaring, and to the Provincial Prosecutor of Bulacan. SO ORDERED.[36]

Petitioners filed a Motion for Reconsideration[37] which was denied by the trial court in an Order[38] dated August 29, 2008. Hence, this petition raising the following issues for our consideration:

4.1. WHETHER X X X THE HONORABLE TRIAL COURT GRAVELY ERRED IN RULING THAT RESPONDENT IS ENTITLED TO THE PRIVILEGE OF THE WRIT OF AMPARO. 4.1.1. WHETHER X X X RESPONDENT WAS ABLE TO ESTABLISH THAT PETITIONERS HAVE COMMITTED OR ARE COMMITTING ACTS IN VIOLATION OF HER HUSBAND‟S RIGHT TO LIFE, LIBERTY, OR SECURITY. 4.1.2. WHETHER X X X RESPONDENT SUFFICIENTLY ESTABLISHED THE FACT OF THE DISAPPEARANCE OF BENHUR PARDICO. 4.1.3. WHETHER X X X RESPONDENT WAS ABLE TO ESTABLISH THAT THE ALLEGED DISAPPEARANCE OF BENHUR PARDICO WAS AT THE INSTANCE OF HEREIN PETITIONERS.[39]

Petitioners’ Arguments

Petitioners essentially assail the sufficiency of the amparo petition. They contend that the writ of amparo is available only in cases where the factual and legal bases of the violation or threatened violation of the aggrieved party‟s right to life, liberty and security are clear. Petitioners assert that in the case at bench, Virginia miserably failed to establish all these. First, the petition is wanting on its face as it failed to state with some degree of specificity the alleged unlawful act or omission of the petitioners constituting a violation of or a threat to Ben‟s right to life, liberty and security. And second, it cannot be deduced from the evidence Virginia adduced that Ben is missing; or that petitioners had a hand in his alleged disappearance. On the other hand, the entries in the logbook which bear the signatures of Ben and Lolita are eloquent proof that petitioners released Ben on March 31, 2008 at around 10:30 p.m. Petitioners thus posit that the trial court erred in issuing the writ and in holding them responsible for Ben‟s disappearance. Our Ruling Virginia‟s Petition for Writ of Amparo is fatally defective and must perforce be dismissed, but not for the reasons adverted to by the petitioners. A.M. No. 07-9-12-SC or The Rule on the Writ of Amparo was promulgated to arrest the rampant extralegal killings and enforced disappearances in the country. Its purpose is to provide an expeditious and effective relief “to any person whose right to life, liberty and security is violated or threatened with violation by an unlawful act or omission of a public official or employee, or of a private individual or entity.” [40]

Here, Ben‟s right to life, liberty and security is firmly settled as the parties do not dispute his identity as the same person summoned and questioned at petitioners‟ security office on the night of March 31, 2008. Such uncontroverted fact ipso facto established Ben‟s inherent and constitutionally enshrined right to life, liberty and security. Article 6[41] of the International Covenant on Civil and Political Rights[42] recognizes every human being‟s inherent right to life, while Article 9[43] thereof ordains that everyone has the right to liberty and security. The right to life must be protected by law while the right to liberty and security cannot be impaired except on grounds provided by and in accordance with law. This overarching command against deprivation of life, liberty and security without due process of law is also embodied in our fundamental law.[44] The pivotal question now that confronts us is whether Ben‟s disappearance as alleged in Virginia‟s petition and proved during the summary proceedings conducted before the court a quo, falls within the ambit of A.M. No. 07-9-12-SC and relevant laws. It does not. Section 1 of A.M. No. 07-9-12-SC provides: SECTION 1. Petition. – The petition for a writ of amparo is a remedy available to any person whose right to life, liberty and security is violated or threatened with violation by an unlawful act or omission of a public official or employee, or of a private individual or entity. The writ shall cover extralegal killings and enforced disappearances or threats thereof. (Emphasis ours.)

While Section 1 provides A.M. No. 07-9-12-SC‟s coverage, said Rules does not, however, define extralegal killings and enforced disappearances. This omission was intentional as the Committee on Revision of the Rules of Court which drafted A.M. No. 07-9-12-SC chose to allow it to evolve through time and jurisprudence and through substantive laws as may be promulgated by Congress.[45] Then, the budding jurisprudence on amparo blossomed in Razon, Jr. v. Tagitis[46] when this Court defined enforced disappearances. The Court in that case applied the generally accepted principles of international law and adopted the International Convention for the Protection of All Persons from Enforced Disappearance‟s definition of enforced disappearances, as “the arrest, detention, abduction or any other form of deprivation of libertyby agents of the State or by persons or groups of persons acting with the authorization, support or acquiescence of the State, followed by a refusal to acknowledge the deprivation of liberty

or by concealment of the fate or whereabouts of the disappeared person, which place such a person outside the protection of the law.”[47] Not long thereafter, another significant development affecting A.M. No. 07-9-12SC came about after Congress enacted Republic Act (RA) No. 9851[48] on December 11, 2009. Section 3(g) thereof defines enforced or involuntary disappearances as follows: (g) "Enforced or involuntary disappearance of persons" means the arrest, detention, or abduction of persons by, or with the authorization, support or acquiescence of, a State or a political organization followed by a refusal to acknowledge that deprivation of freedom or to give information on the fate or whereabouts of those persons, with the intention of removing from the protection of the law for a prolonged period of time.

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

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

(b) that it be carried out by, or with the authorization, support or acquiescence of, the State or a political organization; (c)

that it be followed by the State or political organization‟s refusal to acknowledge or give information on the fate or whereabouts of the person subject of theamparo petition; and,

(d) that the intention for such refusal is to remove subject person from the protection of the law for a prolonged period of time.

As thus dissected, it is now clear that for the protective writ of amparo to issue, allegation and proof that the persons subject thereof are missing are not enough. It must also be shown and proved by substantial evidence that the disappearance was carried out by, or with the authorization, support or acquiescence of, the State or a political organization, followed by a refusal to acknowledge the same or give information on the fate or whereabouts of said missing persons, with the intention of removing them from the protection of the law for a prolonged period of time. Simply put, the petitioner in an amparo case has the burden of proving by substantial evidence the indispensable element of government participation. In the present case, we do not doubt Bong‟s testimony that Navia had a menacing attitude towards Ben and that he slapped and inflicted fistic blows upon him. Given the circumstances and the pugnacious character of Navia at that time, his threatening statement, “Wala kang nakita at wala kang narinig, papatayin ko na si Ben,” cannot be taken lightly. It unambiguously showed his predisposition at that time. In addition, there is nothing on record which would support petitioners‟ assertion that they released Ben on the night of March 31, 2008 unscathed from their wrath. Lolita sufficiently explained how she was prodded into affixing her signatures in the logbook without reading the entries therein. And so far, the information petitioners volunteered are sketchy at best, like the alleged complaint of Mrs. Emphasis who was never identified or presented in court and whose complaint was never reduced in writing. But lest it be overlooked, in an amparo petition, proof of disappearance alone is not enough. It is likewise essential to establish that such disappearance was carried out with the direct or indirect authorization, support or acquiescence of the government. This indispensable element of State participation is not present in this case. The petition does not contain any allegation of State complicity, and none of the evidence presented tend to show that the government or any of its agents orchestrated Ben‟s disappearance. In fact, none of its agents, officials, or employees were impleaded or implicated in Virginia‟s amparo petition whether as responsible or accountable persons.[51] Thus, in the absence of an allegation or proof that the government or its agents had a hand in Ben‟s disappearance or that they failed to exercise extraordinary diligence in investigating his case, the Court will definitely not hold the government or its agents either as responsible or accountable persons. We are aware that under Section 1 of A.M. No. 07-9-12-SC a writ of amparo may lie against a private individual or entity. But even if the person sought to be held

accountable or responsible in an amparo petition is a private individual or entity, still, government involvement in the disappearance remains an indispensable element. Here, petitioners are mere security guards at Grand Royale Subdivision in Brgy. Lugam,Malolos City and their principal, the Asian Land, is a private entity. They do not work for the government and nothing has been presented that would link or connect them to some covert police, military or governmental operation. As discussed above, to fall within the ambit of A.M. No. 07-9-12-SC in relation to RA No. 9851, the disappearance must be attended by some governmental involvement. This hallmark of State participation differentiates an enforced disappearance case from an ordinary case of a missing person. WHEREFORE, the July 24, 2008 Decision of the Regional Trial Court, Branch 20, Malolos City, is REVERSED and SET ASIDE. The Petition for Writ of Amparo filed by Virginia Pardico is hereby DISMISSED. SO ORDERED.

MARIANO C. DEL CASTILLO Associate Justice

WE CONCUR:

ANTONIO T. CARPIO Senior Associate Justice

(On official leave) PRESBITERO J. VELASCO, JR. Associate Justice

ARTURO D. BRION

TERESITA J. LEONARDO-DE CASTRO Associate Justice

DIOSDADO M. PERALTA

Associate Justice

Associate Justice

LUCAS P. BERSAMIN Associate Justice

ROBERTO A. ABAD Associate Justice

MARTIN S. VILLARAMA, JR. Associate Justice

JOSE PORTUGAL PEREZ Associate Justice

(On leave) JOSE CATRAL MENDOZA Associate Justice

MARIA LOURDES P. A. SERENO Associate Justice

BIENVENIDO L. REYES Associate Justice

ESTELA M. PERLAS-BERNABE Associate Justice

CERTIFICATION I certify that the conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the opinion of the Court.

ANTONIO T. CARPIO Senior Associate Justice (Per Section 12, R.A. 296, The Judiciary Act of 1948, as amended)

Republic of the Philippines

Supreme Court Manila

EN BANC

IN THE MATTER OF THE PETITION FOR THE WRIT OF AMPARO AND HABEAS DATA IN FAVOR OF NORIEL H. RODRIGUEZ, NORIEL H. RODRIGUEZ, Petitioner,

- versus -

GLORIA MACAPAGALARROYO, GEN. VICTOR S. IBRADO, PDG JESUS AME VERSOZA, LT. GEN. DELFIN BANGIT, MAJ. GEN. NESTOR Z. OCHOA, P/CSUPT. AMETO G. TOLENTINO, P/SSUPT. JUDE W. SANTOS, COL. REMIGIO M. DE VERA, an officer named MATUTINA, LT. COL. MINA, CALOG, GEORGE PALACPAC under the name “HARRY,” ANTONIO CRUZ, ALDWIN “BONG” PASICOLAN and VINCENT CALLAGAN, Respondents. x - - - - - - - - - - - - - - - - - - - - - - - - -x

G.R. No. 191805

IN THE MATTER OF THE PETITION FOR THE WRIT OF AMPARO AND HABEAS DATA IN FAVOR OF NORIEL H. RODRIGUEZ, POLICE DIR. GEN. JESUS A. VERSOZA, P/SSUPT. JUDE W. SANTOS, BGEN. REMEGIO M. DE VERA, 1ST LT. RYAN S. MATUTINA, LT. COL. LAURENCE E. MINA, ANTONIO C. CRUZ, ALDWIN C. PASICOLAN and VICENTE A. CALLAGAN, Petitioners,

- versus -

G.R. No. 193160 Present: CORONA, C.J., CARPIO, VELASCO, JR., LEONARDO-DE CASTRO, BRION, PERALTA, BERSAMIN, DEL CASTILLO,* ABAD, VILLARAMA, JR., PEREZ, MENDOZA, SERENO, REYES, and PERLAS-BERNABE, JJ.

Promulgated: NORIEL H. RODRIGUEZ, Respondent.

November 15, 2011

x - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x DECISION SERENO, J.: Before this Court are two consolidated cases, namely, (1) Petition for Partial Review on Certiorari dated 20 April 2010 (G.R. No. 191805), and (2) Petition for Review on Certiorari dated 19 August 2010 (G.R. No. 193160).[1] Both Petitions assail the 12 April 2010 Decision of the Court of Appeals, the dispositive portion of which reads: WHEREFORE, the petition for writ of amparo and writ of habeas data is GRANTED.

Respondents Gen. Victor S. Ibrado, Lt. Gen. Delfin Bangit, Maj. Gen. Nestor Z. Ochoa, PCSupt. Ameto G. Tolentino, PSSupt. Jude W. Santos, Col. Remigio M. De Vera, Lt. Col. Laurence E. Mina and 1Lt. Ryan S. Matutina, or their replacements in their official posts if they have already vacated the same, are ORDERED to furnish this Court within five (5) days from notice of this decision, official or unofficial reports pertaining to petitioner – covering but not limited to intelligence reports, operation reports and provost marshal reports prior to, during and subsequent to September 6, 2009 – made by the 5th Infantry Division, Philippine Army, its branches and subsidiaries, including the 17th Infantry Battalion, Philippine Army. The above-named respondents are also DIRECTED to refrain from using the said reports in any transaction or operation of the military. Necessarily, the afore-named respondents are ORDERED to expunge from the records of the military all documents having any reference to petitioner. Likewise, the afore-named respondents, as well as respondents Police Director General Jesus Ame Versoza, Antonio Cruz, Aldwin Pasicolan and Vicente Callagan are DIRECTED to ensure that no further violation of petitioner‟s rights to life, liberty and security is committed against the latter or any member of his family. The petition is DISMISSED with respect to President Gloria MacapagalArroyo on account of her presidential immunity from suit. Similarly, the petition is DISMISSED with respect to respondents Calog and George Palacpac or Harry for lack of merit. Petitioner‟s prayer for issuance of a temporary protection order and inspection order is DENIED.

Noriel Rodriguez (Rodriguez) is petitioner in G.R. No. 191805 and respondent in G.R. No. 193160. He is a member of Alyansa Dagiti Mannalon Iti Cagayan (Kagimungan), a peasant organization affiliated with Kilusang Magbubukid ng Pilipinas (KMP). On the other hand, Gloria Macapagal-Arroyo (former President Arroyo), Police Director General (PDG.) Jesus A. Verzosa, Police Senior Superintendent (P/SSupt.) Jude W. Santos, Brigadier General (Brig. Gen.) Remegio M. De Vera, First Lieutenant (1st Lt.) Ryan S. Matutina, Lieutenant Colonel (Lt. Col.) Laurence E. Mina, Antonio C. Cruz (Cruz), Aldwin C. Pasicolan (Pasicolan) and Vicente A. Callagan (Callagan) are respondents in G.R. No. 191805 and petitioners in G.R. No. 193160. At the time the events relevant to the present Petitions occurred, former President Arroyo was the President of the Philippines. PDG. Verzosa, P/SSupt. Santos, Brig. Gen. De Vera, 1st Lt. Matutina and Lt. Col. Mina were

officers of the Philippine National Police (PNP). Cruz, Pasicolan and Callagan were Special Investigators of the Commission on Human Rights (CHR) in Region II. Antecedent Facts Rodriguez claims that the military tagged KMP as an enemy of the State under the Oplan Bantay Laya, making its members targets of extrajudicial killings and enforced disappearances.[2] On 6 September 2009, at 5:00 p.m., Rodriguez had just reached Barangay Tapel, Cagayan onboard a tricycle driven by Hermie Antonio Carlos (Carlos), when four men forcibly took him and forced him into a car. Inside the vehicle were several men in civilian clothes, one of whom was holding a .45 caliber pistol. Subsequently, three more persons arrived, and one of them carried a gun at his side. Two men boarded the car, while the others rode on the tricycle.[3] The men tied the hands of Rodriguez, ordered him to lie on his stomach, sat on his back and started punching him. The car travelled towards the direction of Sta. Teresita-Mission and moved around the area until about 2:00 a.m. During the drive, the men forced Rodriguez to confess to being a member of the New People‟s Army (NPA), but he remained silent. The car then entered a place that appeared to be a military camp. There were soldiers all over the area, and there was a banner with the word “Bravo” written on it. Rodriguez later on learned that the camp belonged to the 17th Infantry Battalion of the Philippine Army.[4] Rodriguez was brought to a canteen, where six men confronted him, ordering him to confess to his membership in the NPA. Due to his exhaustion, he unintentionally fell asleep. As a result, the men hit him on the head to wake him up. After the interrogation, two of the men guarded him, but did not allow him to sleep.[5] In the morning of 7 September 2009, the men tied the hands of Rodriguez, blindfolded him and made him board a vehicle. While they were in transit, the soldiers repeatedly hit him in the head and threatened to kill him. When the car stopped after about ten minutes, the soldiers brought him to a room, removed his blindfold, and forced him to confess to being a member of the NPA. During the interrogation, the soldiers repeatedly hit him on the head. Thereafter, he was detained inside the room for the entire day. The soldiers tied his stomach to

a papag, and gave him rice and viand. Fearing that the food might be poisoned, he refused to eat anything. He slept on the papag while being tied to it at the waist.[6] On 8 September 2009, the men forced Rodriguez into a vehicle, which brought them to Bugey and Mission. While passing houses along the way, the men asked him if his contacts lived in those houses. When he failed to answer, a soldier pointed a gun to his head and threatened to kill him and his family. Because he remained silent, the soldiers beat him and tied him up. The vehicle returned to the military camp at past 1:00 p.m., where he was again subjected to tactical interrogation about the location of an NPA camp and his alleged NPA comrades. He suffered incessant mauling every time he failed to answer.[7] At dawn on 9 September 2009, soldiers armed with rifles took Rodriguez and made him their guide on their way to an NPA camp in Birao. Accompanying them was a man named Harry, who, according to the soldiers, was an NPA member who had surrendered to the military. Harry pointed to Rodriguez and called him a member of the NPA. He also heard Harry tell the soldiers that the latter knew the area well and was acquainted with a man named Elvis. The soldiers loaded Rodriguez into a military truck and drove to Tabbak, Bugey. While he was walking with the soldiers, he noticed a soldier with the name tag “Matutina,” who appeared to be an official because the other soldiers addressed him as “sir.”[8] Upon reaching Birao on foot, the soldiers looked for and was able to locate a certain Elvis and told him that Rodriguez had identified his whereabouts location. The soldiers forced Rodriguez to convince Elvis to disclose the location of the NPA camp. They brought the two to the mountains, where both were threatened with death. When the soldiers punched Elvis, Rodriguez told them that he would reveal the location of the NPA camp if they let Elvis go home. They finally released Elvis around 3:00 p.m. that day. The soldiers and Rodriguez spent the next three nights in the mountains.[9] On 12 September 2009, the soldiers again hit Rodriguez and forced him to identify the location of the NPA camp. He was blindfolded and warned to get ready because they would beat him up again in the military camp. Upon arrival therein, they brought him to the same room where he had first been detained, and two soldiers mauled him again. They repeatedly punched and kicked him. In the afternoon, they let him rest and gave him an Alaxan tablet. Thereafter, he fell asleep due to over-fatigue and extreme body pain. The soldiers, however, hit him again. After giving him a pen and a piece of paper, they ordered him to write down

his request for rice from the people. When he refused, the soldiers maltreated him once more.[10] On 13 September 2009, the soldiers forced Rodriguez to sign documents declaring that he had surrendered in an encounter in Cumao, and

that the soldiers did not shoot him because he became a military asset in May. When he refused to sign the document, he received another beating. Thus, he was compelled to sign, but did so using a different signature to show that he was merely coerced.[11] The soldiers showed Rodriguez photographs of different persons and asked him if he knew the men appearing therein. When he told them that he did not recognize the individuals on the photos, the soldiers instructed him to write down the name of his school and organization, but he declined. The soldiers then wrote something on the paper, making it appear that he was the one who had written it, and forced him to sign the document. The soldiers took photographs of him while he was signing. Afterwards, the soldiers forced him down, held his hands, and sat on his feet. He did not only receive another beating, but was also electrocuted. The torture lasted for about an hour.[12] At 11:00 p.m. on 15 September 2009, the soldiers brought Rodriguez to a military operation in the mountains, where he saw Matutina again. They all spent the night there.[13] In the morning of 16 September 2009, the soldiers and Rodriguez started their descent. When they stopped, the soldiers took his photograph and asked him to name the location of the NPA camp. Thereafter, they all returned to the military camp. The soldiers asked him to take a bath and wear a white polo shirt handed to him. He was then brought to the Enrile Medical Center, where Dr. Juliet Ramil (Dr. Ramil) examined him.[14] When the doctor asked him why he had bruises and contusions, he lied and told her that he sustained them when he slipped, as he noticed a soldier observing him. Dr. Ramil‟s medical certificate indicated that he suffered from four hematomas in the epigastric area, chest and sternum.[15] Back at the camp, the soldiers let Rodriguez eat with several military officials and took pictures of him while he was eating with them. They also asked

him to point to a map in front of him and again took his photograph. Later, they [16] told him that he would finally see his mother. Rodriguez was brought to another military camp, where he was ordered to sign a piece of paper stating that he was a surrenderee and was never beaten up. Scared and desperate to end his ordeal, he signed the paper and was warned not to report anything to the media.[17] Around 6:00 a.m. on 17 September 2009, the soldiers instructed petitioner to take a bath. They gave him a pair of jeans and perfume. While he was having breakfast, the two soldiers guarding him repeatedly reminded him not to disclose to the media his experience in the camp and to say instead that he had surrendered to the military.[18] At 9:00 a.m. on the same day, the mother and the brother of Rodriguez arrived surrounded by several men. His mother, Wilma Rodriguez (Wilma), talked to Lt. Col. Mina. Rodriguez heard one of the soldiers tell Wilma that he had surrendered to the military and had long been its asset. His brother, Rodel Rodriguez (Rodel), informed him that the men accompanying them were from the CHR, namely, Pasicolan, Cruz and Callagan. Upon seeing Rodriguez, Cruz instructed him to lift up his shirt, and one of the CHR employees took photographs of his bruises.[19] A soldier tried to convince Wilma to let Rodriguez stay in the camp for another two weeks to supposedly prevent the NPA from taking revenge on him. Respondent Calog also approached Rodriguez and Rodel and asked them to become military assets. Rodel refused and insisted that they take Rodriguez home to Manila. Again, the soldiers reminded them to refrain from facing the media. The soldiers also told them that the latter will be taken to the Tuguegarao Airport and guarded until they reached home.[20] Rodriguez and his family missed their flight. Subsequently, the soldiers accompanied them to the CHR office, where Rodriguez was made to sign an affidavit stating that he was neither abducted nor tortured. Afraid and desperate to return home, he was forced to sign the document. Cruz advised him not to file a case against his abductors because they had already freed him. The CHR personnel then led him and his family to the CHR Toyota Tamaraw FX service vehicle. He noticed that a vehicle with soldiers on board followed them.[21]

The Tamaraw FX pulled over and respondent 1st Lt. Matutina boarded the vehicle. Upon reaching a mall in Isabela, Rodriguez, his family, Callagan, 1st Lt. Matutina and two other soldiers transferred to an orange Toyota Revo with plate number WTG 579. Upon reaching the boundary of Nueva Ecija and Nueva Viscaya, 1st Lt. Matutina alighted and called Rodriguez to a diner. A certain Alan approached Rodriguez and handed him a cellphone with a SIM card. The latter and his family then left and resumed their journey back home.[22] Rodriguez reached his house in Sta. Ana, Manila at 3:00 a.m. on 18 September 2010. Callagan and two soldiers went inside the house, and took photographs and a video footage thereof. The soldiers explained that the photos and videos would serve as evidence of the fact that Rodriguez and his family were able to arrive home safely. Despite Rodriguez‟s efforts to confront the soldiers about their acts, they still continued and only left thirty minutes later.[23] On 19 September 2009, Dr. Reginaldo Pamugas, a physician trained by the International Committee on Torture and Rehabilitation, examined Rodriguez and issued a Medical Certificate stating that the latter had been a victim of torture.[24] Around 7:00 a.m. on 3 November 2010, Rodriguez and his girlfriend, Aileen Hazel Robles, noticed that several suspicious-looking men followed them at the Metro Rail Transit (MRT), in the streets and on a jeepney.[25] On 7 December 2009, Rodriguez filed before this Court a Petition for the Writ of Amparo and Petition for the Writ of Habeas Data with Prayers for Protection Orders, Inspection of Place, and Production of Documents and Personal Properties dated 2 December 2009.[26] The petition was filed against former President Arroyo, Gen. Ibrado, PDG. Versoza, Lt. Gen. Bangit, Major General (Maj. Gen.) Nestor Z. Ochoa, P/CSupt. Tolentino, P/SSupt. Santos, Col. De Vera, 1st Lt. Matutina, Calog, George Palacpac (Palacpac), Cruz, Pasicolan and Callagan. The petition prayed for the following reliefs: a. The issuance of the writ of amparo ordering respondents to desist from violating Rodriguez‟s right to life, liberty and security. b. The issuance of an order to enjoin respondents from doing harm to or approaching Rodriguez, his family and his witnesses. c. Allowing the inspection of the detention areas of the Headquarters of Bravo Co., 5th Infantry Division, Maguing, Gonzaga, Cagayan and another place near where Rodriguez was brought.

d. Ordering respondents to produce documents submitted to them regarding any report on Rodriguez, including operation reports and

provost marshall reports of the 5th Infantry Division, the Special Operations Group of the Armed Forces of the Philippines (AFP), prior to, on and subsequent to 6 September 2009. e. Ordering records pertinent or in any way connected to Rodriguez, which are in the custody of respondents, to be expunged, disabused, and forever barred from being used.[27] On 15 December 2009, we granted the respective writs after finding that the petition sufficiently alleged that Rodriguez had been abducted, tortured and later released by members of the 17th Infantry Battalion of the Philippine Army.[28] We likewise ordered respondents therein to file a verified return on the writs on or before 22 December 2009 and to comment on the petition on or before 4 January 2010.[29] Finally, we directed the Court of Appeals to hear the petition on 4 January 2010 and decide on the case within 10 days after its submission for decision.[30] During the initial hearing on 4 January 2010, the Court of Appeals required the parties to submit affidavits and other pieces of evidence at the next scheduled hearing on 27 January 2010.[31] On 8 January 2010, respondents therein, through the Office of the Solicitor General (OSG), filed their Return of the Writ, which was likewise considered as their comment on the petition.[32] In their Return, respondents therein alleged that Rodriguez had surrendered to the military on 28 May 2009 after he had been put under surveillance and identified as “Ka Pepito” by former rebels.[33]According to his military handlers, Corporal (Cpl.) Rodel

B. Cabaccan and Cpl. Julius P. Navarro, Rodriguez was a former member of the NPA operating in Cagayan Valley.[34] Wanting to bolt from the NPA, he told Cpl. Cabaccan and Cpl. Navarro that he would help the military in exchange for his protection.[35] Upon his voluntary surrender on 28 May 2009, Rodriguez was made to sign an Oath of Loyalty and an Agent‟s Agreement/Contract, showing his willingness

to return to society and become a military asset.[36] Since then, he acted as a double agent, returning to the NPA to gather information.[37] However, he feared that his NPA comrades were beginning to suspect him of being an infiltrator.[38] Thus, with his knowledge and consent, the soldiers planned to stage a sham abduction to erase any suspicion about him being a double agent.[39] Hence, the abduction subject of the instant petition was conducted.[40] Meanwhile, Cruz, Pasicolan and Callagan filed a Consolidated Return of the Writ dated 15 January 2010,[41] alleging that they had exercised extraordinary diligence in locating Rodriguez, facilitating his safe turnover to his family and securing their journey back home to Manila. More specifically, they alleged that, on 16 September 2009, after Wilma sought their assistance in ascertaining the whereabouts of her son, Cruz made phone calls to the military and law enforcement agencies to determine his location.[42] Cruz was able to speak with Lt. Col. Mina, who confirmed that Rodriguez was in their custody.[43] This information was transmitted to CHR Regional Director Atty. Jimmy P. Baliga. He, in turn, ordered Cruz, Pasicolan and Callagan to accompany Wilma to the 17th Infantry Division.[44] When the CHR officers, along with Wilma and Rodel, arrived at the 17 Infantry Battalion at Masin, Alcala, Cagayan, Brigade Commander Col. de Vera and Battalion Commander Lt. Col. Mina alleged that Rodriguez had become one of their assets, as evidenced by the Summary on the Surrender of Noriel Rodriguez and the latter‟s Contract as Agent.[45] The CHR officers observed his casual and cordial demeanor with the soldiers.[46] In any case, Cruz asked him to raise his shirt to see if he had been subjected to any maltreatment. Cruz and Pasicolan did not see any traces of torture. Thereafter, Rodriguez was released to his family, and they were made to sign a certification to this effect. During the signing of the document, herein CHR officers did not witness any threat, intimidation or force employed against Rodriguez or his family. [47] th

During their journey back to the home of Rodriguez, the CHR officers observed that he was very much at ease with his military escorts, especially with 1st Lt. Matutina.[48] Neither was there any force or intimidation when the soldiers took pictures of his house, as the taking of photographs was performed with Wilma‟s consent.[49]

During the hearing on 27 January 2010, the parties agreed to file additional affidavits and position papers and to have the case considered submitted for decision after the filing of these pleadings.[50] On 12 April 2010, the Court of Appeals rendered its assailed Decision.[51] Subsequently, on 28 April 2010, respondents therein filed their Motion for Reconsideration.[52] Before the Court of Appeals could resolve this Motion for Reconsideration, Rodriguez filed the instant Petition for Partial Review on Certiorari (G.R. No. 191805), raising the following assignment of errors: a. The Court of Appeals erred in not granting the Interim Relief for temporary protection order. b. The Court of Appeals erred in saying: “(H)owever, given the nature of the writ of amparo, which has the effect of enjoining the commission by respondents of violation to petitioner‟s right to life, liberty and security, the safety of petitioner is ensured with the issuance of the writ, even in the absence of an order preventing respondent from approaching petitioner.” c. The Court of Appeals erred in not finding that respondent Gloria Macapagal Arroyo had command responsibility.[53]

On the other hand, respondents therein, in their Comment dated 30 July 2010, averred: a. The Court of Appeals properly dropped then President Gloria Macapagal Arroyo as a party-respondent, as she may not be sued in any case during her tenure of office or actual incumbency. b. Petitioner had not presented any adequate and competent evidence, much less substantial evidence, to establish his claim that public respondents had violated, were violating or threatening to violate his rights to life, liberty and

security, as well as his right to privacy. Hence, he was not entitled to the privilege of the writs of amparo and habeas data or to the corresponding interim reliefs (i.e. inspection order, production order and temporary protection order) provided under the rule on the writ of amparo and the rule on the writ of habeas data.[54]

On 19 August 2010, PDG. Verzosa, P/SSupt. Santos, BGen. De Vera, 1 st Lt. Matutina, Lt. Col. Mina, Cruz, Pasicolan and Callagan filed a Petition for Review on Certiorari, seeking the reversal of the 12 April 2010 Decision of the Court of Appeals.[55] They alleged that Rodriguez – Has not presented any adequate and competent evidence, must less substantial evidence, to establish his claim that petitioners have violated, are violating or threatening with violation his rights to life, liberty and security, as well as his right to privacy; hence, he is not entitled to the privilege of the writs of amparo and habeas data and their corresponding interim reliefs (i.e., inspection order, production order and temporary protection order) provided under the Rule on the Writ of Amparo and the Rule on the Writ of Habeas Data.[56]

In ascertaining whether the Court of Appeals committed reversible error in issuing its assailed Decision and Resolution, the following issues must be resolved: I.

Whether the interim reliefs prayed for by Rodriguez may be granted after the writs of amparo and habeas data have already been issued in his favor.

II.

Whether former President Arroyo should be dropped as a respondent on the basis of the presidential immunity from suit.

III.

Whether the doctrine of command responsibility can be used in amparo and habeas data cases.

IV.

Whether the rights to life, liberty and property of Rodriguez were violated or threatened by respondents in G.R. No. 191805.

At the outset, it must be emphasized that the writs of amparo and habeas data were promulgated to ensure the protection of the people‟s rights to life, liberty and security.[57] The rules on these writs were issued in light of the alarming prevalence of extrajudicial killings and enforced disappearances.[58] The Rule on the Writ of Amparo took effect on 24 October 2007,[59] and the Rule on the Writ of Habeas Data on 2 February 2008.[60]

The writ of amparo is an extraordinary and independent remedy that provides rapid judicial relief, as it partakes of a summary proceeding that requires only substantial evidence to make the appropriate interim and permanent reliefs available to the petitioner.[61]It is not an action to determine criminal guilt requiring proof beyond reasonable doubt, or liability for damages requiring preponderance of evidence, or administrative responsibility requiring substantial evidence that will require full and exhaustive proceedings.[62] Rather, it serves both preventive and curative roles in addressing the problem of extrajudicial killings and enforced disappearances.[63] It is preventive in that it breaks the expectation of impunity in the commission of these offenses, and it is curative in that it facilitates the subsequent punishment of perpetrators by inevitably leading to subsequent investigation and action.[64] Meanwhile, the writ of habeas data provides a judicial remedy to protect a person‟s right to control information regarding oneself, particularly in instances where such information is being collected through unlawful means in order to achieve unlawful ends.[65] As an independent and summary remedy to protect the right to privacy – especially the right to informational privacy[66] – the proceedings for the issuance of the writ of habeas data does not entail any finding of criminal, civil or administrative culpability. If the allegations in the petition are proven through substantial evidence, then the Court may (a) grant access to the database or information; (b) enjoin the act complained of; or (c) in case the database or information contains erroneous data or information, order its deletion, destruction or rectification.[67]

First issue: Grant of interim reliefs In the petition in G.R. No. 191805, Rodriguez prays for the issuance of a temporary protection order. It must be underscored that this interim relief is only available before final judgment. Section 14 of the Rule on the Writ of Amparo clearly provides: Interim Reliefs. – Upon filing of the petition or at anytime before final judgment, the court, justice or judge may grant any of the following reliefs: Temporary Protection Order. – The court, justice or judge, upon motion or motu proprio, may order that the petitioner or the aggrieved party and any

member of the immediate family be protected in a government agency or by an accredited person or private institution capable of keeping and securing their safety. If the petitioner is an organization, association or institution referred to in Section 3(c) of this Rule, the protection may be extended to the officers involved. The Supreme Court shall accredit the persons and private institutions that shall extend temporary protection to the petitioner or the aggrieved party and any member of the immediate family, in accordance with guidelines which it shall issue. The accredited persons and private institutions shall comply with the rules and conditions that may be imposed by the court, justice or judge. (a) Inspection Order. – The court, justice or judge, upon verified motion and after due hearing, may order any person in possession or control of a designated land or other property, to permit entry for the purpose of inspecting, measuring, surveying, or photographing the property or any relevant object or operation thereon. The motion shall state in detail the place or places to be inspected. It shall be supported by affidavits or testimonies of witnesses having personal knowledge of the enforced disappearance or whereabouts of the aggrieved party. If the motion is opposed on the ground of national security or of the privileged nature of the information, the court, justice or judge may conduct a hearing in chambers to determine the merit of the opposition. The movant must show that the inspection order is necessary to establish the right of the aggrieved party alleged to be threatened or violated. The inspection order shall specify the person or persons authorized to make the inspection and the date, time, place and manner of making the inspection and may prescribe other conditions to protect the constitutional rights of all parties. The order shall expire five (5) days after the date of its issuance, unless extended for justifiable reasons. (b) Production Order. – The court, justice, or judge, upon verified motion and after due hearing, may order any person in possession, custody or control of any designated documents, papers, books, accounts, letters, photographs, objects or tangible things, or objects in digitized or electronic form, which constitute or contain evidence relevant to the petition or the return, to produce and permit their inspection, copying or photographing by or on behalf of the movant.

The motion may be opposed on the ground of national security or of the privileged nature of the information, in which case the court, justice or judge may conduct a hearing in chambers to determine the merit of the opposition. The court, justice or judge shall prescribe other conditions to protect the constitutional rights of all the parties. (c) Witness Protection Order. – The court, justice or judge, upon motion or motu proprio, may refer the witnesses to the Department of Justice for admission to the Witness Protection, Security and Benefit Program, pursuant to Republic Act No. 6981. The court, justice or judge may also refer the witnesses to other government agencies, or to accredited persons or private institutions capable of keeping and securing their safety. (Emphasis supplied)

We held in Yano v. Sanchez[68] that “[t]hese provisional reliefs are intended to assist the court before it arrives at a judicious determination of the amparo petition.” Being interim reliefs, they can only be granted before a final adjudication of the case is made. In any case, it must be underscored that the privilege of the writ of amparo, once granted, necessarily entails the protection of the aggrieved party. Thus, since we grant petitioner the privilege of the writ of amparo, there is no need to issue a temporary protection order independently of the former. The order restricting respondents from going near Rodriguez is subsumed under the privilege of the writ. Second issue: Presidential immunity from suit It bears stressing that since there is no determination of administrative, civil or criminal liability in amparo and habeas dataproceedings, courts can only go as far as ascertaining responsibility or accountability for the enforced disappearance or extrajudicial killing. As we held in Razon v. Tagitis:[69] It does not determine guilt nor pinpoint criminal culpability for the disappearance; rather, it determines responsibility, or at least accountability, for the enforced disappearance for purposes of imposing the appropriate remedies to address the disappearance. Responsibility refers to the extent the actors have been established by substantial evidence to have participated in whatever way, by action or omission, in an enforced disappearance, as a measure of the remedies this Court shall craft, among them, the directive to file the appropriate criminal and civil cases against the responsible parties in the proper courts. Accountability,

on the other hand, refers to the measure of remedies that should be addressed to those who exhibitedinvolvement in the enforced disappearance without bringing the level of their complicity to the level of responsibility defined above; or who are imputed with knowledge relating to the enforced disappearance and who carry the burden of disclosure; or those who carry, but have failed to discharge, the burden of extraordinary diligence in the investigation of the enforced disappearance. In all these cases, the issuance of the Writ of Amparo is justified by our primary goal of addressing the disappearance, so that the life of the victim [70] is preserved and his liberty and security are restored. (Emphasis supplied.)

Thus, in the case at bar, the Court of Appeals, in its Decision[71] found respondents in G.R. No. 191805 – with the exception of Calog, Palacpac or Harry – to be accountable for the violations of Rodriguez‟s right to life, liberty and security committed by the 17thInfantry Battalion, 5th Infantry Division of the Philippine Army. [72] The Court of Appeals dismissed the petition with respect to former President Arroyo on account of her presidential immunity from suit. Rodriguez contends, though, that she should remain a respondent in this case to enable the courts to determine whether she is responsible or accountable therefor. In this regard, it must be clarified that the Court of Appeals‟ rationale for dropping her from the list of respondents no longer stands since her presidential immunity is limited only to her incumbency. In Estrada v. Desierto,[73] we clarified the doctrine that a non-sitting President does not enjoy immunity from suit, even for acts committed during the latter‟s tenure. We emphasize our ruling therein that courts should look with disfavor upon the presidential privilege of immunity, especially when it impedes the search for truth or impairs the vindication of a right, to wit: We reject [Estrada‟s] argument that he cannot be prosecuted for the reason that he must first be convicted in the impeachment proceedings. The impeachment trial of petitioner Estrada was aborted by the walkout of the prosecutors and by the events that led to his loss of the presidency. Indeed, on February 7, 2001, the Senate passed Senate Resolution No. 83 “Recognizing that the Impeachment Court is Functus Officio.” Since the Impeachment Court is now functus officio, it is untenable for petitioner to demand that he should first be impeached and then convicted before he can be prosecuted. The plea if granted, would put a perpetual bar against his prosecution. Such a submission has nothing to commend itself for it will place him in a better situation than a non-sitting President who has not been subjected to impeachment proceedings and yet can be the object of a criminal prosecution. To be sure, the debates in the Constitutional Commission make it clear that when impeachment proceedings have become moot due to the

resignation of the President, the proper criminal and civil cases may already be filed against him, viz: “xxx

xxx

xxx

Mr. Aquino. On another point, if an impeachment proceeding has been filed against the President, for example, and the President resigns before judgment of conviction has been rendered by the impeachment court or by the body, how does it affect the impeachment proceeding? Will it be necessarily dropped? Mr. Romulo. If we decide the purpose of impeachment to remove one from office, then his resignation would render the case moot and academic. However, as the provision says, the criminal and civil aspects of it may continue in the ordinary courts.” This is in accord with our ruling in In Re: Saturnino Bermudez that “incumbent Presidents are immune from suit or from being brought to court during the period of their incumbency and tenure” but not beyond. xxx We now come to the scope of immunity that can be claimed by petitioner as a non-sitting President. The cases filed against petitioner Estrada are criminal in character. They involve plunder, bribery and graft and corruption. By no stretch of the imagination can these crimes, especially plunder which carries the death penalty, be covered by the alleged mantle of immunity of a non-sitting president. Petitioner cannot cite any decision of this Court licensing the President to commit criminal acts and wrapping him with post-tenure immunity from liability. It will be anomalous to hold that immunity is an inoculation from liability for unlawful acts and omissions. The rule is that unlawful acts of public officials are not acts of the State and the officer who acts illegally is not acting as such but stands in the same footing as any other trespasser. Indeed, a critical reading of current literature on executive immunity will reveal a judicial disinclination to expand the privilege especially when it impedes the search for truth or impairs the vindication of a right. In the 1974 case of US v. Nixon, US President Richard Nixon, a sitting President, was subpoenaed to produce certain recordings and documents relating to his conversations with aids and advisers. Seven advisers of President Nixon's associates were facing charges of conspiracy to obstruct justice and other offenses which were committed in a burglary of the Democratic National Headquarters in Washington's Watergate Hotel during the 1972 presidential campaign. President Nixon himself was named an unindicted co-conspirator. President Nixon moved to quash the subpoena on the ground, among others, that the President was not subject to judicial process and that he should first be impeached and removed from office before he could be made amenable to judicial proceedings. The claim

was rejected by the US Supreme Court. It concluded that “when the ground for asserting privilege as to subpoenaed materials sought for use in a criminal trial is based only on the generalized interest in confidentiality, it cannot prevail over the fundamental demands of due process of law in the fair administration of criminal justice.” In the 1982 case of Nixon v. Fitzgerald, the US Supreme Court further held that the immunity of the President from civil damages covers only “official acts.” Recently, the US Supreme Court had the occasion to reiterate this doctrine in the case of Clinton v. Jones where it held that the US President's immunity from suits for money damages arising out of their official acts is inapplicable to [74] unofficial conduct. (Emphasis supplied)

Further, in our Resolution in Estrada v. Desierto,[75] we reiterated that the presidential immunity from suit exists only in concurrence with the president‟s incumbency: Petitioner stubbornly clings to the contention that he is entitled to absolute immunity from suit. His arguments are merely recycled and we need not prolong the longevity of the debate on the subject. In our Decision, we exhaustively traced the origin of executive immunity in our jurisdiction and its bends and turns up to the present time. We held that given the intent of the 1987 Constitution to breathe life to the policy that a public office is a public trust, the petitioner, as a non-sitting President, cannot claim executive immunity for his alleged criminal acts committed while a sitting President. Petitioner's rehashed arguments including their thinly disguised new spins are based on the rejected contention that he is still President, albeit, a President on leave. His stance that his immunity covers his entire term of office or until June 30, 2004 disregards the reality that he has relinquished the presidency and there is now a new de jure President. Petitioner goes a step further and avers that even a non-sitting President enjoys immunity from suit during his term of office. He buttresses his position with the deliberations of the Constitutional Commission, viz: “Mr. Suarez. Thank you. The last question is with reference to the Committee's omitting in the draft proposal the immunity provision for the President. I agree with Commissioner Nolledo that the Committee did very well in striking out this second sentence, at the very least, of the original provision on immunity from suit under the 1973 Constitution. But would the Committee members not agree to a restoration of at least the first sentence that the president shall be immune from suit during his tenure, considering that if we do not provide him that kind of an immunity, he might be spending all his time facing litigations, as the President-in-exile in Hawaii is now facing litigations almost daily?

Fr. Bernas: The reason for the omission is that we consider it understood in present jurisprudence that during his tenure he is immune from suit. Mr. Suarez: So there is no need to express it here. Fr. Bernas: There is no need. It was that way before. The only innovation made by the 1973 Constitution was to make that explicit and to add other things. Mr. Suarez: On the understanding, I will not press for any more query, madam President. I thank the Commissioner for the clarification.” Petitioner, however, fails to distinguish between term and tenure. The term means the time during which the officer may claim to hold the office as of right, and fixes the interval after which the several incumbents shall succeed one another. The tenure represents the term during which the incumbent actually holds office. The tenure may be shorter than the term for reasons within or beyond the power of the incumbent. From the deliberations, the intent of the framers is clear that the immunity of the president from suit is concurrent only with his tenure and not his [76] term. (Emphasis supplied)

Applying the foregoing rationale to the case at bar, it is clear that former President Arroyo cannot use the presidential immunity from suit to shield herself from judicial scrutiny that would assess whether, within the context of amparo proceedings, she was responsible or accountable for the abduction of Rodriguez. Third issue: Command in amparo proceedings

responsibility

To attribute responsibility or accountability to former President Arroyo, Rodriguez contends that the doctrine of command responsibility may be applied. As we explained in Rubrico v. Arroyo,[77] command responsibility pertains to the

“responsibility of commanders for crimes committed by subordinate members of the armed forces or other persons subject to their control in international wars or domestic conflict.”[78] Although originally used for ascertaining criminal complicity, the command responsibility doctrine has also found application in civil cases for human rights abuses.[79] In the United States, for example, command responsibility was used in Ford v. Garcia and Romagoza v. Garcia – civil actions filed under the Alien Tort Claims Act and the Torture Victim Protection Act.[80] This development in the use of command responsibility in civil proceedings shows that the application of this doctrine has been liberally extended even to cases not criminal in nature. Thus, it is our view that command responsibility may likewise find application in proceedings seeking the privilege of the writ of amparo. As we held in Rubrico: It may plausibly be contended that command responsibility, as legal basis to hold military/police commanders liable for extra-legal killings, enforced disappearances, or threats, may be made applicable to this jurisdiction on the theory that the command responsibility doctrine now constitutes a principle of international law or customary international law in accordance with the incorporation clause of the Constitution. … … … If command responsibility were to be invoked and applied to these proceedings, it should, at most, be only to determine the author who, at the first instance, is accountable for, and has the duty to address, the disappearance and harassments complained of, so as to enable the Court to devise remedial measures that may be appropriate under the premises to protect rights covered by the writ of amparo. As intimated earlier, however, the determination should not be pursued to fix criminal liability on respondents preparatory to criminal prosecution, or as a prelude to administrative disciplinary proceedings under [81] existing administrative issuances, if there be any. (Emphasis supplied.)

Precisely in the case at bar, the doctrine of command responsibility may be used to determine whether respondents are accountable for and have the duty to address the abduction of Rodriguez in order to enable the courts to devise remedial measures to protect his rights. Clearly, nothing precludes this Court from applying the doctrine of command responsibility in amparo proceedings to ascertain responsibility and accountability in extrajudicial killings and enforced disappearances. In this regard, the Separate Opinion of Justice Conchita CarpioMorales in Rubrico is worth noting, thus:

That proceedings under the Rule on the Writ of Amparo do not determine criminal, civil or administrative liability should not abate the applicability of the doctrine of command responsibility. Taking Secretary of National Defense v. Manalo and Razon v. Tagitis in proper context, they do not preclude the application of the doctrine of command responsibility to Amparo cases. Manalo was actually emphatic on the importance of the right to security of person and its contemporary signification as a guarantee of protection of one‟s rights by the government. It further stated that protection includes conducting effective investigations, organization of the government apparatus to extend protection to victims of extralegal killings or enforced disappearances, or threats thereof, and/or their families, and bringing offenders to the bar of justice. Tagitis, on the other hand, cannot be more categorical on the application, at least in principle, of the doctrine of command responsibility: Given their mandates, the PNP and PNP-CIDG officials and members were the ones who were remiss in their duties when the government completely failed to exercise the extraordinary diligence that the Amparo Rule requires. We hold these organizations accountable through their incumbent Chiefs who, under this Decision, shall carry the personal responsibility of seeing to it that extraordinary diligence, in the manner the Amparo Rule requires, is applied in addressing the enforced disappearance of Tagitis. Neither does Republic Act No. 9851 emasculate the applicability of the command responsibility doctrine to Amparo cases. The short title of the law is the “Philippine Act on Crimes Against International Humanitarian Law, Genocide, and Other Crimes Against Humanity.” Obviously, it should, as it did, only treat of superior responsibility as a ground for criminal responsibility for the crimes covered. Such limited treatment, however, is merely in keeping with the statute‟s purpose and not intended to rule out the application of the doctrine of command responsibility to other appropriate cases. Indeed, one can imagine the innumerable dangers of insulating highranking military and police officers from the coverage of reliefs available under the Rule on the Writ of Amparo. The explicit adoption of the doctrine of command responsibility in the present case will only bring Manalo and Tagitis to their logical conclusion. In fine, I submit that the Court should take this opportunity to state what the law ought to be if it truly wants to make the Writ of Amparo an effective remedy for victims of extralegal killings and enforced disappearances or threats

thereof. While there is a genuine dearth of evidence to hold respondents Gen. Hermogenes Esperon and P/Dir. Gen. Avelino Razon accountable under the command responsibility doctrine, the ponencia‟s hesitant application of the doctrine itself is replete with implications abhorrent to the rationale behind the [82] Rule on the Writ of Amparo. (Emphasis supplied.)

This Separate Opinion was reiterated in the recently decided case of Boac v. Cadapan,[83] likewise penned by Justice Carpio-Morales, wherein this Court ruled: Rubrico categorically denies the application of command responsibility in amparo cases to determine criminal liability. The Court maintains its adherence to this pronouncement as far as amparo cases are concerned. Rubrico, however, recognizes a preliminary yet limited application of command responsibility in amparo cases to instances of determining the responsible or accountable individuals or entities that are duty-bound to abate any transgression on the life, liberty or security of the aggrieved party. If command responsibility were to be invoked and applied to these proceedings, it should, at most, be only to determine the author who, at the first instance, is accountable for, and has the duty to address, the disappearance and harassments complained of, so as to enable the Court to devise remedial measures that may be appropriate under the premises to protect rights covered by the writ of amparo. As intimated earlier, however, the determination should not be pursued to fix criminal liability on respondents preparatory to criminal prosecution, or as a prelude to administrative disciplinary proceedings under existing administrative issuances, if there be any. In other words, command responsibility may be loosely applied in amparo cases in order to identify those accountable individuals that have the power to effectively implement whatever processes an amparo court would issue. In such application, the amparo court does not impute criminal responsibility but merely pinpoint the superiors it considers to be in the best position to protect the rights of the aggrieved party. Such identification of the responsible and accountable superiors may well be a preliminary determination of criminal liability which, of course, is still subject to further investigation by the appropriate government agency. (Emphasis supplied.)

As earlier pointed out, amparo proceedings determine (a) responsibility, or the extent the actors have been established by substantial evidence to

have participated in whatever way, by action or omission, in an enforced disappearance, and (b) accountability, or the measure of remedies that should be addressed to those (i) who exhibited involvement in the enforced disappearance without bringing the level of their complicity to the level of responsibility defined above; or (ii) who are imputed with knowledge relating to the enforced disappearance and who carry the burden of disclosure; or (iii) those who carry, but have failed to discharge, the burden of extraordinary diligence in the investigation of the enforced disappearance. Thus, although there is no determination of criminal, civil or administrative liabilities, the doctrine of command responsibility may nevertheless be applied to ascertain responsibility and accountability within these foregoing definitions. a. Command responsibility of the President Having established the applicability of the doctrine of command responsibility in amparo proceedings, it must now be resolved whether the president, as commander-in-chief of the military, can be held responsible or accountable for extrajudicial killings and enforced disappearances. We rule in the affirmative. To hold someone liable under the doctrine of command responsibility, the following elements must obtain: a.

the existence of a superior-subordinate relationship between the accused as superior and the perpetrator of the crime as his subordinate;

b.

the superior knew or had reason to know that the crime was about to be or had been committed; and

c.

the superior failed to take the necessary and reasonable measures to prevent the criminal acts or punish the perpetrators thereof. [84]

The president, being the commander-in-chief of all armed forces,[85] necessarily possesses control over the military that qualifies him as a superior within the purview of the command responsibility doctrine. [86] On the issue of knowledge, it must be pointed out that although international tribunals apply a strict standard of knowledge, i.e., actual knowledge, such may nonetheless be established through circumstantial evidence.[87] In the Philippines, a

more liberal view is adopted and superiors may be charged with constructive knowledge. This view is buttressed by the enactment of Executive Order No. 226, otherwise known as the Institutionalization of the Doctrine of „Command Responsibility‟ in all Government Offices, particularly at all Levels of Command in the Philippine National Police and other Law Enforcement Agencies (E.O. 226).[88] Under E.O. 226, a government official may be held liable for neglect of duty under the doctrine of command responsibility if he has knowledge that a crime or offense shall be committed, is being committed, or has been committed by his subordinates, or by others within his area of responsibility and, despite such knowledge, he did not take preventive or corrective action either before, during, or immediately after its commission.[89] Knowledge of the commission of irregularities, crimes or offenses is presumed when (a) the acts are widespread within the government official‟s area of jurisdiction; (b) the acts have been repeatedly or regularly committed within his area of responsibility; or (c) members of his immediate staff or office personnel are involved.[90] Meanwhile, as to the issue of failure to prevent or punish, it is important to note that as the commander-in-chief of the armed forces, the president has the power to effectively command, control and discipline the military.[91] b. Responsibility or accountability of former President Arroyo The next question that must be tackled is whether Rodriguez has proven through substantial evidence that former President Arroyo is responsible or accountable for his abduction. We rule in the negative. Rodriguez anchors his argument on a general allegation that on the basis of the “Melo Commission” and the “Alston Report,” respondents in G.R. No. 191805 already had knowledge of and information on, and should have known that a climate of enforced disappearances had been perpetrated on members of the NPA.[92] Without even attaching, or at the very least, quoting these reports, Rodriguez contends that the Melo Report points to rogue military men as the perpetrators. While the Alston Report states that there is a policy allowing enforced disappearances and pins the blame on the President, we do not automatically impute responsibility to former President Arroyo for each and every count of forcible disappearance.[93] Aside from Rodriguez‟s general averments, there is no piece of evidence that could establish her responsibility or accountability for his

abduction. Neither was there even a clear attempt to show that she should have known about the violation of his right to life, liberty or security, or that she had failed to investigate, punish or prevent it. Fourth issue: Responsibility or accountability of respondents in G.R. No. 191805 The doctrine of totality of evidence in amparo cases was first laid down in this Court‟s ruling in Razon,[94] to wit: The fair and proper rule, to our mind, is to consider all the pieces of evidence adduced in their totality, and to consider any evidence otherwise inadmissible under our usual rules to be admissible if it is consistent with the admissible evidence adduced. In other words, we reduce our rules to the most basic test of reason – i.e., to the relevance of the evidence to the issue at hand and its consistency with all other pieces of adduced evidence. Thus, even hearsay [95] evidence can be admitted if it satisfies this basic minimum test. (Emphasis supplied.)

In the case at bar, we find no reason to depart from the factual findings of the Court of Appeals, the same being supported by substantial evidence. A careful examination of the records of this case reveals that the totality of the evidence adduced by Rodriguez indubitably prove the responsibility and accountability of some respondents in G.R. No. 191805 for violating his right to life, liberty and security. a. The totality of evidence proved by substantial evidence the responsibility or accountability of respondents for the violation of or threat to Rodriguez’s right to life, liberty and security. After a careful examination of the records of these cases, we are convinced that the Court of Appeals correctly found sufficient evidence proving that the soldiers of the 17th Infantry Battalion, 5th Infantry Division of the military abducted Rodriguez on 6 September 2009, and detained and tortured him until 17 September 2009.

Rodriguez‟s Sinumpaang Salaysay dated 4 December 2009 was a meticulous and straightforward account of his horrific ordeal with the military, detailing the manner in which he was captured and maltreated on account of his suspected membership in the NPA.[96] His narration of his suffering included an exhaustive description of his physical surroundings, personal circumstances and perceived observations. He likewise positively identified respondents 1 st Lt. Matutina and Lt. Col. Mina to be present during his abduction, detention and torture, [97] and respondents Cruz, Pasicolan and Callagan as the CHR representatives who appeared during his release.[98] More particularly, the fact of Rodriguez‟s abduction was corroborated by Carlos in his Sinumpaang Salaysay dated 16 September 2009,[99] wherein he recounted in detail the circumstances surrounding the victim‟s capture. As regards the allegation of torture, the respective Certifications of Dr. Ramil and Dr. Pamugas validate the physical maltreatment Rodriguez suffered in the hands of the soldiers of the 17 th Infantry Battalion, 5th Infantry Division. According to the Certification dated 12 October 2009 executed by Dr. Ramil,[100] she examined Rodriguez in the Alfonso Ponce Enrile Memorial District Hospital on 16 September 2009 and arrived at the following findings: FACE - 10cm healed scar face right side - 2cm healed scar right eyebrow (lateral area) - 2cm healed scar right eye brow (median area) - 4cm x 2cm hematoma anterior chest at the sternal area right side - 3cm x 2cm hematoma sternal area left side - 6cm x 1cm hematoma from epigastric area to ant. chest left side - 6cm x 1cm hematoma from epigastric area to ant. chest right side - Multiple healed rashes (brownish discoloration) both forearm - Multiple healed rashes (brownish discoloration) - both leg arm [101] - hip area/lumbar area

Dr. Pamugas performed a separate medical examination of Rodriguez on 19 September 2009, the results of which confirmed that the injuries suffered by the latter were inflicted through torture. Dr. Pamugas thus issued a Medical Report dated 23 September 2009,[102] explicitly stating that Rodriguez had been tortured during his detention by the military, to wit: X. Interpretation of Findings

The above physical and psychological findings sustained by the subject are related to the torture and ill-treatment done to him. The multiple circular brown to dark brown spots found on both legs and arms were due to the insect bites that he sustained when he was forced to join twice in the military operations. The abrasions could also be due to the conditions related during military operations. The multiple pin-point blood spots found on his left ear is a result of an unknown object placed inside his left ear. The areas of tenderness he felt during the physical examination were due to the overwhelming punching and kicking on his body. The occasional difficulty of sleeping is a symptom experience (sic) by the subject as a result of the psychological trauma he encountered during his detention. XI. Conclusions and Recommendations The physical injuries and psychological trauma suffered by the subject are secondary to the torture and ill-treatment done to him while in detention for about 11 days. The physical injuries sustained by the subject, of which the age is [103] compatible with the alleged date of infliction (sic). (Emphasis supplied.)

In assessing the weight of the Certifications, the Court of Appeals correctly relied on the medical finding that the injuries suffered by Rodriguez matched his account of the maltreatment inflicted on him by the soldiers of the 17 th Infantry Battalion, 5th Infantry Division of the Philippine Army. Further, the kind of injuries he sustained showed that he could not have sustained them from merely falling, thus making respondents‟ claim highly implausible. Despite these medical findings that overwhelmingly supported and lent credibility to the allegations of Rodriguez in hisSinumpaang Salaysay, respondents in G.R. No. 191805 still stubbornly clung to their argument that he was neither abducted nor detained. Rather, they claimed that he was a double agent, whose relationship with the military was at all times congenial. This contention cannot be sustained, as it is far removed from ordinary human experience. If it were true that Rodriguez maintained amicable relations with the military, then he should have unhesitatingly assured his family on 17 September 2009 that he was among friends. Instead, he vigorously pleaded with them to get him out of the military facility. In fact, in the Sinumpaang Salaysay dated 4 December 2009[104] Wilma executed, she made the following averments: 18. Na nang Makita ko ang aking anak ay nakaramdam ako sa kanya ng awa dahil sa mukha syang pagod at malaki ang kanyang ipinayat.

19. Na niyakap ko sya at sa aming pagkakayakap ay binulungan nya ako na wag ko syang iiwan sa lugar na iyon; xxx

xxx

xxx

23. Na sinabihan ako ng mga sundalo na kung pwede daw ay maiwan muna ng dalawang linggo sa kampo ako at si Noriel para daw matrain pa si Noriel sa loob ng kampo; 24. Na hindi ako pumayag na maiwan ang aking anak; xxx

xxx

xxx

33. Na sa kasalukuhan, hanggang ngayon ay nag-aalala pa ako sa paa (sic) [105] sa kaligtasan ng aming buong pamilya, lalo na kay Noriel; xxx

Also, Rodel made the following supporting averments in his Sinumpaang Salaysay dated 3 December 2009:[106] 24. Na nang makita ko si Noriel, hindi sya makalakad ng diretso, hinanghina sya, malaki ang ipinayat at nanlalalim ang mga mata; 25. Na nang makita ko ang aking kapatid ay nakaramdam ako ng awa dahil nakilala ko syang masigla at masayahin; 26. Na ilang minuto lang ay binulugan nya ako ng “Kuya, ilabas mo ako dito, papatayin nila ako.” 27. Na sinabihan kami ni Lt. Col. Mina na baka pwedeng maiwan pa ng dalwang linggo ang aking kapatid sa kanila para raw ma-train sya.

28. Na hindi kami pumayag ng aking nanay; xxx

[107]

Moreover, the Court of Appeals likewise aptly pointed out the illogical, if not outrightly contradictory, contention of respondents in G.R. No. 191805 that while Rodriguez had complained of his exhaustion from his activities as a member of the CPP-NPA, he nevertheless willingly volunteered to return to his life in the NPA to become a double-agent for the military. The lower court ruled in this manner:

In the Return of the Writ, respondent AFP members alleged that petitioner confided to his military handler, Cpl. Navarro, that petitioner could no longer stand the hardships he experienced in the wilderness, and that he wanted to become an ordinary citizen again because of the empty promises of the CPPNPA. However, in the same Return, respondents state that petitioner agreed to become a double agent for the military and wanted to re-enter the CPP-NPA, so that he could get information regarding the movement directly from the source. If petitioner was tired of life in the wilderness and desired to become an ordinary citizen again, it defies logic that he would agree to become an undercover agent and work alongside soldiers in the mountains – or the wilderness he dreads – to [108] locate the hideout of his alleged NPA comrades. (Emphasis supplied.)

Furthermore, the appellate court also properly ruled that aside from the abduction, detention and torture of Rodriguez, respondents, specifically 1 st Lt. Matutina, had violated and threatened the former‟s right to security when they made a visual recording of his house, as well as the photos of his relatives, to wit: In the videos taken by the soldiers – one of whom was respondent Matutina – in the house of petitioner on September 18, 2009, the soldiers even went as far as taking videos of the photos of petitioner‟s relatives hung on the wall of the house, as well as videos of the innermost part of the house. This Court notes that 1Lt. Matutina, by taking the said videos, did not merely intend to make proofs of the safe arrival of petitioner and his family in their home. 1Lt. Matutina also desired to instill fear in the minds of petitioner and his family by showing them that the sanctity of their home, from then on, will not be free from the watchful eyes of the military, permanently captured through the medium of a seemingly innocuous cellhpone video camera. The Court cannot – and will not – condone such act, as it intrudes into the very core of petitioner‟s right to [109] security guaranteed by the fundamental law. (Emphasis supplied.)

Taken in their totality, the pieces of evidence adduced by Rodriguez, as well as the contradictory defenses presented by respondents in G.R. No. 191805, give credence to his claim that he had been abducted, detained and tortured by soldiers belonging to the 17th Infantry Battalion, 5th Infantry Division of the military. It must be pointed out, however, that as to respondents Cruz, Pasicolan and Callagan, there was no substantial evidence to show that they violated, or threatened with violation, Rodriguez‟s right to life, liberty and security. Despite the dearth of evidence to show the CHR officers‟ responsibility or accountability, this Court nonetheless emphasizes its criticism as regards their capacity to recognize torture or any similar form of abuse. The CHR, being constitutionally mandated to protect human rights and investigate violations thereof,[110] should ensure that its

officers are well-equipped to respond effectively to and address human rights violations. The actuations of respondents unmistakably showed their insufficient competence in facilitating and ensuring the safe release of Rodriguez after his ordeal. b. The failure to conduct a fair and effect investigation amounted to a violation of or threat to Rodriguez’s rights to life, liberty and security. The Rule on the Writ of Amparo explicitly states that the violation of or threat to the right to life, liberty and security may be caused by either an act or an omission of a public official.[111] Moreover, in the context of amparo

proceedings, responsibility may refer to the participation of the respondents, by action or omission, in enforced disappearance.[112]Accountability, on the other hand, may attach to respondents who are imputed with knowledge relating to the enforced disappearance and who carry the burden of disclosure; or those who carry, but have failed to discharge, the burden of extraordinary diligence in the investigation of the enforced disappearance.[113] In this regard, we emphasize our ruling in Secretary of National Defense v. Manalo[114] that the right to security of a person includes the positive obligation of the government to ensure the observance of the duty to investigate, viz: Third, the right to security of person is a guarantee of protection of one's rights by the government. In the context of the writ of Amparo, this right is built into the guarantees of the right to life and liberty under Article III, Section 1 of the 1987 Constitution and the right to security of person (as freedom from threat and guarantee of bodily and psychological integrity) under Article III, Section 2. The right to security of person in this third sense is a corollary of the policy that the State “guarantees full respect for human rights” under Article II, Section 11 of the 1987 Constitution. As the government is the chief guarantor of order and security, the Constitutional guarantee of the rights to life, liberty and security of person is rendered ineffective if government does not afford protection to these rights especially when they are under threat. Protection includes conducting effective investigations, organization of the government apparatus to extend protection to victims of extralegal killings or enforced disappearances (or threats thereof) and/or their families, and bringing offenders to the bar of justice. The

Inter-American Court of Human Rights stressed the importance of investigation in the Velasquez Rodriguez Case, viz: (The duty to investigate) must be undertaken in a serious manner and not as a mere formality preordained to be ineffective. An investigation must have an objective and be assumed by the State as its own legal duty, not as a step taken by private interests that depends upon the initiative of the victim or his family or upon their offer of proof, without an effective search for the truth by the government. xxx

xxx

xxx

Similarly, the European Court of Human Rights (ECHR) has interpreted the “right to security” not only as prohibiting the State from arbitrarily depriving liberty, but imposing a positive duty on the State to afford protection of the right to liberty. The ECHR interpreted the “right to security of person” under Article 5(1) of the European Convention of Human Rights in the leading case on disappearance of persons, Kurt v. Turkey. In this case, the claimant's son had been arrested by state authorities and had not been seen since. The family's requests for information and investigation regarding his whereabouts proved futile. The claimant suggested that this was a violation of her son's right to security of person. The ECHR ruled, viz: ... any deprivation of liberty must not only have been effected in conformity with the substantive and procedural rules of national law but must equally be in keeping with the very purpose of Article 5, namely to protect the individual from arbitrariness... Having assumed control over that individual it is incumbent on the authorities to account for his or her whereabouts. For this reason, Article 5 must be seen as requiring the authorities to take effective measures to safeguard against the risk of disappearance and to conduct a prompt effective investigation into an arguable claim that a person has been taken into custody and has not been [115] seen since. (Emphasis supplied)

In the instant case, this Court rules that respondents in G.R. No. 191805 are responsible or accountable for the violation of Rodriguez‟s right to life, liberty and security on account of their abject failure to conduct a fair and effective official investigation of his ordeal in the hands of the military. Respondents Gen. Ibrado, PDG. Verzosa, Lt. Gen. Bangit, Maj. Gen. Ochoa, Col. De Vera and Lt. Col. Mina only conducted a perfunctory investigation, exerting no efforts to take Ramirez‟s account of the events into consideration. Rather, these respondents solely relied on the reports and narration of the military. The ruling of the appellate court must be emphasized:

In this case, respondents Ibrado, Verzosa, Bangit, Tolentino, Santos, De Vera, and Mina are accountable, for while they were charged with the investigation of the subject incident, the investigation they conducted and/or relied on is superficial and one-sided. The records disclose that the military, in investigating the incident complained of, depended on the Comprehensive Report of Noriel Rodriguez @Pepito prepared by 1Lt. Johnny Calub for the Commanding Officer of the 501st Infantry Brigade, 5th Infantry Division, Philippine Army. Such report, however, is merely based on the narration of the military. No efforts were undertaken to solicit petitioner‟s version of the subject incident and no witnesses were questioned regarding the alleged abduction of petitioner. Respondent PDG Verzosa, as Chief of the PNP, is accountable because Section 24 of Republic Act No. 6975, otherwise known as the “PNP Law,” specifies the PNP as the governmental office with the mandate “to investigate and prevent crimes, effect the arrest of criminal offenders, bring offenders to justice and assist in their prosecution.” In this case, PDG Verzosa failed to order the police to conduct the necessary investigation to unmask the mystery surrounding petitioner‟s abduction and disappearance. Instead, PDG Verzosa disclaims accountability by merely stating that petitioner has no cause of action against him. Palpable, however, is the lack of any effort on the part of PDG Verzosa to effectively and aggressively investigate the violations of petitioner‟s right to life, liberty and security by members of the 17th Infantry Battalion, 17th Infantry [116] Division, Philippine Army. (Emphasis supplied.)

Clearly, the absence of a fair and effective official investigation into the claims of Rodriguez violated his right to security, for which respondents in G.R. No. 191805 must be held responsible or accountable. Nevertheless, it must be clarified that Rodriguez was unable to establish any responsibility or accountability on the part of respondents P/CSupt. Tolentino, P/SSupt. Santos, Calog and Palacpac. Respondent P/CSupt. Tolentino had already retired when the abduction and torture of Rodriguez was perpetrated, while P/SSupt. Santos had already been reassigned and transferred to the National Capital Regional Police Office six months before the subject incident occurred. Meanwhile, no sufficient allegations were maintained against respondents Calog and Palacpac. From all the foregoing, we rule that Rodriguez was successful in proving through substantial evidence that respondents Gen. Ibrado, PDG. Verzosa, Lt. Gen. Bangit, Maj. Gen. Ochoa, Brig. Gen. De Vera, 1st Lt. Matutina, and Lt. Col. Mina were responsible and accountable for the violation of Rodriguez‟s rights to life, liberty and security on the basis of (a) his abduction, detention and torture from 6

September to 17 September 2009, and (b) the lack of any fair and effective official investigation as to his allegations. Thus, the privilege of the writs of amparo and habeas data must be granted in his favor. As a result, there is no longer any need to issue a temporary protection order, as the privilege of these writs already has the effect of enjoining respondents in G.R. No. 191805 from violating his rights to life, liberty and security. It is also clear from the above discussion that despite (a) maintaining former President Arroyo in the list of respondents in G.R. No. 191805, and (b) allowing the application of the command responsibility doctrine to amparo and habeas data proceedings, Rodriguez failed to prove through substantial evidence that former President Arroyo was responsible or accountable for the violation of his rights to life, liberty and property. He likewise failed to prove through substantial evidence the accountability or responsibility of respondents Maj. Gen. Ochoa, Cruz, Pasicolan and Callagan. WHEREFORE, we resolve to GRANT the Petition for Partial Review in G.R. No. 191805 and DENY the Petition for Review in G.R. No. 193160. The Decision of the Court of Appeals is hereby AFFIRMED WITH MODIFICATION. The case is dismissed with respect to respondents former President Gloria Macapagal-Arroyo, P/CSupt. Ameto G. Tolentino, and P/SSupt. Jude W. Santos, Calog, George Palacpac, Antonio Cruz, Aldwin Pasicolan and Vicent Callagan for lack of merit. This Court directs the Office of the Ombudsman (Ombudsman) and the Department of Justice (DOJ) to take the appropriate action with respect to any possible liability or liabilities, within their respective legal competence, that may have been incurred by respondents Gen. Victor Ibrado, PDG. Jesus Verzosa, Lt. Gen. Delfin Bangit, Maj. Gen. Nestor Ochoa, Brig. Gen. Remegio De Vera, 1 st Lt. Ryan Matutina, and Lt. Col. Laurence Mina. The Ombudsman and the DOJ are ordered to submit to this Court the results of their action within a period of six months from receipt of this Decision. In the event that herein respondents no longer occupy their respective posts, the directives mandated in this Decision and in the Court of Appeals are enforceable against the incumbent officials holding the relevant positions. Failure to comply with the foregoing shall constitute contempt of court.

SO ORDERED.

MARIA LOURDES P. A. SERENO Associate Justice

WE CONCUR:

RENATO C. CORONA Chief Justice

ANTONIO T. CARPIO JR. Associate Justice

PRESBITERO J. VELASCO, Associate Justice

On official leave TERESITA J. LEONARDO-DE CASTRO

ARTURO D.

BRION Associate Justice

DIOSDADO M. PERALTA BERSAMIN Associate Justice

On official leave MARIANO C. DEL CASTILLO ABAD

Associate Justice

LUCAS P. Associate Justice

ROBERTO A.

Associate Justice

Associate Justice

MARTIN S. VILLARAMA, JR. JOSE PORTUGAL PEREZ Associate Justice

Associate Justice

JOSE CATRAL MENDOZA REYES Associate Justice

Associate Justice

BIENVENIDO L.

ESTELA M. PERLAS-BERNABE Associate Justice

CERTIFICATION Pursuant to Section 13, Article VIII of the Constitution, I certify that the conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the opinion of the Court.

RENATO C. CORONA Chief Justice



On Official leave. Resolution dated 28 June 2011, ordering the consolidation of G.R. Nos. 191805 and 193160. [2] Petition, CA rollo (G.R. No. 191805), p. 4. [3] Decision, rollo (G.R. No. 191805), p. 30. [4] Rollo (G.R. No. 191805), p. 31. [5] Id. [6] Rollo (G.R. No. 191805), pp. 31-32. [7] Id. at 32. [8] Id. at 32-33. [9] Id. at 33. [10] Id. at 34. [11] Id. [12] Rollo (G.R. No. 191805), pp. 34-35. [13] Id. [14] Rodriguez‟s Position Paper dated 8 February 2010, CA rollo (G.R. No. 191805), pp. 422, 433. [15] Rollo (G.R. No. 191805), pp. 35-36. [16] Id. at 36. [17] Id. [18] Id. [19] Id. at 36-37. [20] Id. at 37. [21] Id. at 37-38. [22] Id. at 38. [23] Id. [24] Exhibit “L” of Rodriguez‟s Position Paper dated 8 February 2010, p. 13, CA rollo (G.R. No. 191805), p. 427. [25] Karagdagang Salaysay dated 20 January 2010, rollo (G.R. No. 191805), p. 43. [26] Rollo (G.R. No. 191805), p. 5; rollo (G.R. No. 193160), p. 15. [27] CA rollo (G.R. No. 191805), pp. 10-11. [28] Id. at 43-50. [29] Id. [30] Id. [31] Id. at 65-67; rollo (G.R. No. 193160), p. 16. [32] Id. at 75-121. [33] Id. at 78-79. [34] Id. at 78. [35] Id. at 79. [36] Id. [37] Id. [38] CA rollo (G.R. No. 191805), p. 80. [39] Id. [40] Id. at 79-80. [41] Id. at 275. [42] Id. at 278-279. [43] Id. at 279. [44] Id. [45] Id. [46] CA rollo (G.R. No. 191805), p. 280. [47] Id. [48] Id. at 281. [49] Id. [1]

[50]

Id. at 412-414. Id. at 608. [52] Id. at 1066-1100. [53] Rollo (G.R. No. 191805), p. 6. [54] Id. at 127. [55] CA rollo (G.R. No. 191805), p. 608. [56] Petition (G.R. No. 193160), p. 29. [57] Castillo v. Cruz, G.R. No. 182165, 25 November 2009, 605 SCRA 628, 636. [58] Annotation to the Rule on the Writ of Amparo, pamphlet released by the Supreme Court, p. 49. [59] A.M. No. 07-9-12-SC. [60] A.M. No. 08-1-06-SC. [61] Secretary of National Defense v. Manalo, G.R. No. 180906, 7 October 2008, 568 SCRA 1, 42. [62] Id. [63] Id at 43. [64] Id. [65] Roxas v. Arroyo, G.R. No. 189155, 7 September 2010, 630 SCRA 211, 239. [66] Annotation to the Rule on the Writ of Habeas Data, pamphlet released by the Supreme Court, p. 23. [67] Section 16 of the Rule on the Writ of Habeas Data. [68] G.R. No. 186640, 11 February 2010, 612 SCRA 347, 362. [69] G.R. No. 182498, 3 December 2009, 606 SCRA 598. [70] Id. at 620-621. [71] Penned by Associate Justice Abdulwahid, H.S. and concurred in by Justices Pizarro, N.B., and Macalino, F.S., rollo (G.R. No. 191805), pp. 29-74. [72] CA Decision, pp. 37, 41 and 45; Id. at 65, 69 and 73. [73] G.R. Nos. 146710-15, 146738, 2 March 2001, 353 SCRA 452. [74] Id. at 521-523. [75] Resolution in G.R. Nos. 146710-15, 146738, 3 April 2001, 356 SCRA 108. [76] Id. at 149-150. [77] G.R. 183871, 18 February 2010, 613 SCRA 233. [78] Id. at 251. [79] HOECHERL, Cortney C., “Command Responsibility Doctrine: Formulation Through Ford v. Garcia and Romagoza v. Garcia,” available at http://www.law.upenn.edu/groups/jilp/11_Hoecherl_Cortney.pdf (accessed on 16 March 2011). [80] Id. [81] Id. at 252-254. [82] Id. at 273-275. [83] G.R. Nos. 184461-62, 184495, 187109, 31 May 2011. [84] Judge Bakone Justice Moloto, Command Responsibility in International Criminal Tribunals, Berkeley J. International Law Publicist, Vol. III, p. 18 (2009), citing Prosecutor v. Blaškić, Case No. IT-95-14-A, Judgment, ¶ 484 (29 July 2004); Prosecutor v. Aleksovski, Case No. IT-95-14/1-A, Judgment, Mar. 24, 2000. [85] CONSTITUTION, Article VII, Section 18. [86] Pacifico A. Agabin, Accountability of the President under the Command Responsibility Doctrine, p. 3. [87] Judge Bakone Justice Moloto, supra note 84, at 18. [88] 17 February 1995. [89] Section 1. [90] Section 2. [91] Gonzales v. Abaya, G.R. No. 164007, 10 August 2006, 498 SCRA 445. [92] Petition, p. 17, rollo, p. 19. [93] Id. [94] Supra, note 69. [95] Id. at 692. [96] CA rollo (G.R. No. 191805), pp. 14-23. [97] Id. at 17-23. [98] Id. at 21-23. [99] Id. at 42. [100] Id. at 24. [51]

[101]

Id. Id. at 25-29. [103] Id. at 29. [104] CA rollo (G.R. No. 191805), pp. 36-38. [105] Id. at 37-38. [106] Id. at 39-41. [107] Id. at 40. [108] Rollo (G.R. No. 191805), pp. 63-64. [109] Rollo (G.R. No. 191805), p. 67. [110] CONSTITUTION, Art. XIII, Sec. 18. [111] Sec. 1. [112] Supra, note 69. [113] Id. [114] Supra, note 61. [115] Id. at 57-61. [116] Rollo (G.R. No. 191805), pp. 66, 68. [102]

Republic of the Philippines Supreme Court Manila EN BANC

EDITA T. BURGOS, Petitioner,

- versus -

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,

G.R. No. 183711

Respondents. x-----------------------------------------x EDITA T. BURGOS, Petitioner,

G.R. No. 183712

- versus -

PRESIDENT GLORIA MACAPAGAL-ARROYO, GEN. HERMOGENES ESPERON, JR., LT. GEN. ROMEO P. TOLENTINO, MAJ. GEN. JUANITO GOMEZ, LT. COL. MELQUIADES FELICIANO, and LT. COL. NOEL CLEMENT, Respondents. x-----------------------------------------x EDITA T. BURGOS, Petitioner,

G.R. No. 183713 Present:

- versus -

CHIEF OF STAFF OF THE ARMED FORCES OF THE PHILIPPINES; GEN. HERMOGENES ESPERON, JR.; Commanding General of the Philippine Army, LT. GEN. ALEXANDER YANO; and Chief of the Philippine National Police, DIRECTOR GENERAL AVELINO RAZON, JR., Respondents.

CORONA, C.J., CARPIO, CARPIO MORALES, VELASCO, JR., NACHURA, LEONARDO-DE CASTRO, BRION, PERALTA, BERSAMIN, DEL CASTILLO, ABAD, VILLARAMA, JR., PEREZ, and  MENDOZA, JJ. Promulgated:

June 22, 2010

x-----------------------------------------------------------------------------------------x RESOLUTION

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 ofHabeas Corpus,[2] for Contempt[3] and for the Issuance of a Writ of Amparo[4] 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 decision[5] 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 56 IB went on retraining at the Headquarters of the First Scout Rangers Regiment (Camp Tecson) in Brgy. Tartaro, San Miguel, Bulacan starting November 28, th

2006. A “left-behind force” or a squad remained in the camp of the 56 th IB to secure the premises and equipment as it awaited the arrival of the 69 th IB, headed by Lt. Col. Edison Caga, which took over the 56 th 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 56 th IB returned. There was no formal turnover or inventory of equipment and vehicles when the 69 th 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 56 th 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 56 th 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 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 56 th 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 Burgosabduction 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 ofLipio‟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. 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. ARTURO D. BRION Associate Justice WE CONCUR:

RENATO C. CORONA Chief Justice

ANTONIO T. CARPIO Associate Justice

CONCHITA CARPIO MORALES Associate Justice

PRESBITERO J. VELASCO, JR. Associate Justice

ANTONIO EDUARDO B. NACHURA Associate Justice

TERESITA J. LEONARDO-DE CASTRO Associate Justice

DIOSDADO M. PERALTA Associate Justice

LUCAS P. BERSAMIN Associate Justice

MARIANO C. DEL CASTILLO Associate Justice

ROBERTO A. ABAD Associate Justice

MARTIN S. VILLARAMA, JR. Associate Justice

JOSE PORTUGAL PEREZ Associate Justice

(on leave) JOSE CATRAL MENDOZA Associate Justice

CERTIFICATION Pursuant to Section 13, Article VIII of the Constitution, it is hereby certified that the conclusions in the above Resolution had been reached in consultation before the case was assigned to the writer of the opinion of the Court.

RENATO C. CORONA Chief Justice



On leave. Rollo, pp. 71-119. [2] CA-G.R. SP No. 99839. [3] CA-G.R. SP No. 100230. [4] CA-G.R. SP No. 00008-WA. [5] The dispositive portion of the CA decision reads: [1]

WHEREFORE, based on all of the foregoing premises, judgment is hereby rendered as follows: 1. The Petition for Habeas Corpus in CA-G.R. SP No. 99839 and the Petition for Contempt in CA-G.R. SP No. 100230 are both DISMISSED.

2. The Petition for Amparo in CA-G.R. SP No. 00008-WA is PARTIALLY GRANTED. The privilege of the writ of amparo is granted as hereunder specified, viz: 1.

Respondents Lt. Gen. Alexander Yano and Dir. Gen. Avelino Razon, Jr., are hereby ORDERED to make available, and provide copies to petitioner, all documents and records in their possession relevant to the case of Jonas Joseph Burgos, subject to reasonable regulations consistent with the Constitution and existing laws;

2.

Respondent Commission on Human Rights, through its Chairperson, is DIRECTED to furnish petitioner documents not yet on file with this Court, pursuant to its undertaking before this Court during the hearing held on January 21, 2008;

3.

Respondent Dir. Gen. Avelino Razon, Jr. is hereby DIRECTED to continue with, and conduct, a full and thorough investigation of the case of Jonas Joseph Burgos and to cause the immediate filing of the appropriate charges against all those who may be found responsible therefor with the Department of Justice;

4.

Respondent Lt. Gen. Alexander Yano is likewise hereby DIRECTED to conduct a thorough investigation of the circumstances surrounding the loss of license plate no. TAB 194 and the possible involvement of any AFP personnel in the alleged abduction of Jonas Joseph Burgos;

5.

Respondents Lt. Gen. Yano and Dir. Gen. Razon are hereby REQUIRED to submit a compliance report to this Court, copy furnished the petitioner, within ten (10) days after completion of their respective organization.

Petitioner‟s Motion to Declare Respondents in Contempt is DENIED admission and ordered expunged from the records of this case. Respondents‟ Manifestation and Motion dated July 1, 2008 is NOTED. SO ORDERED. Rollo, pp. 96-97. [7] TSN, January 21, 2008, p. 21. [8] Id. at 21-22. In support of her petition for the Writ of Amparo, the petitioner attached a copy of the Newsbreak Article by Glenda M. Gloria dated December 10, 2007 which alleged among others: [6]

In his July 9, 2007 order to the National Bureau of Investigation, Velasco named three alleged ISAFP agents, including a woman, who allegedly took part in the abduction. The military has said that none of the names were on its roster, although an eyewitness account indeed points to one woman as part of the team. Incidentally, ISAFP has two key female agents. Citing information from contacts of the Burgos family, Velasco also said that two other vehicles served as backups to the Toyota Revo that drove Jonas out of the mall: a maroon Lancer with plate number WAM 155 and a Toyota Altis with plate number XBX 881. The latter turned out to be a staff car of General Tolentino, Army chief at the time, prompting him to raise a howl over what he claimed as planted information designed to discredit him. Velasco has since been sacked from the probe, and his order to the NBI is now gathering dust. [See Annex “B” of the petitioner‟s Petition for Review onCertiorari dated July 30, 2008; rollo, p. 125.] According to newspaper reports, State Prosecutor Velasco issued an Order asking the NBI to investigate T/Sgt. Jason Roxas (PA), Cpl. Maria Joana Francisco (PAF), M/Sgt. Aron Arroyo (PAF), and an alias T.L., all reportedly assigned with Military Intelligence Group 15 of the Isafp. Also ordered investigated were Lt. Col. Noel Clement, former commander of the 56th IB, and Army 1st Lt. Jaime Mendaros, reportedly assigned with the 56th IB. See Lira Dalagin-Fernandez, Gonzalez Eyes Relief of Velasco from Burgos Case, Philippine Daily Inquirer, (11

July 2007), available at http://newsinfo.inquirer.net/topstories/topstories/view/2007071176029/Gonzalez_eyes_relief_of_Velasco_from_ Burgos_case, (last visited on June 7, 2010); see also Thea Alberto, DoJ, Usig To Probe Patterns In “Erap 5,” Burgos Abductions, Philippine Daily Inquirer, (July 11, 2007), available athttp://newsinfo.inquirer.net/breakingnews/nation/view/2007071176084/DoJ%2C_Usig_to_probe_patterns_in_%9 1Erap_5%2C%92_Burgos_abductions (last visited on June 7, 2010). [9] Supra note 7, at 24. [10] Ibid. [11] Id. at 21. [12] TSN, August 30, 2007, p. 119. [13] Id. at 130-131. [14] Id. at 132. [15] CA rollo, pp. 424-427. [16] Id. at 407-412. [17] Ibid. [18] Ibid. [19] Id. at 413-419. [20] Id. at 420-422. [21] Id. at 108. [22] Id. at 110. [23] G.R. Nos. 171396, 171409, 171485, 171483, 171400, 171489, and 171424, May 3, 2006, 489 SCRA 160. [24] Supra note 10. [25] CONSTITUTION, Article XIII, Section 18.