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Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. 183871

February 18, 2010

LOURDES D. RUBRICO, JEAN RUBRICO APRUEBO, and MARY JOY RUBRICO


CARBONEL, Petitioners,
vs.
GLORIA MACAPAGAL-ARROYO, GEN. HERMOGENES ESPERON, P/DIR. GEN. AVELINO
RAZON, MAJ. DARWIN SY a.k.a. DARWIN REYES, JIMMY SANTANA, RUBEN ALFARO,
CAPT. ANGELO CUARESMA, a certain JONATHAN, P/SUPT. EDGAR B. ROQUERO,
ARSENIO C. GOMEZ, and OFFICE OF THE OMBUDSMAN, Respondents.
DECISION
VELASCO, JR., J.:
In this petition for review under Rule 45 of the Rules of Court in relation to Section 19 1 of the Rule on
the Writ of Amparo2 (Amparo Rule), Lourdes D. Rubrico, Jean Rubrico Apruebo, and Mary Joy Rubrico
Carbonel assail and seek to set aside the Decision 3 of the Court of Appeals (CA) dated July 31, 2008 in
CA-G.R. SP No. 00003, a petition commenced under the Amparo Rule.
The petition for the writ of amparo dated October 25, 2007 was originally filed before this Court. After
issuing the desired writ and directing the respondents to file a verified written return, the Court referred
the petition to the CA for summary hearing and appropriate action. The petition and its attachments
contained, in substance, the following allegations:
1. On April 3, 2007, armed men belonging to the 301st Air Intelligence and Security Squadron (AISS,
for short) based in Fernando Air Base in Lipa City abducted Lourdes D. Rubrico (Lourdes), then
attending a Lenten pabasa in Bagong Bayan, Dasmarias, Cavite, and brought to, and detained at, the
air base without charges. Following a week of relentless interrogation - conducted alternately by hooded
individuals - and what amounts to verbal abuse and mental harassment, Lourdes, chair of the Ugnayan
ng Maralita para sa Gawa Adhikan, was released at Dasmarias, Cavite, her hometown, but only after
being made to sign a statement that she would be a military asset.
After Lourdes release, the harassment, coming in the form of being tailed on at least two occasions at
different places, i.e., Dasmarias, Cavite and Baclaran in Pasay City, by motorcycle-riding men in
bonnets, continued;
2. During the time Lourdes was missing, P/Sr. Insp. Arsenio Gomez (P/Insp. Gomez), then sub-station
commander of Bagong Bayan, Dasmarias, Cavite, kept sending text messages to Lourdes daughter,
Mary Joy R. Carbonel (Mary Joy), bringing her to beaches and asking her questions about Karapatan,

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an alliance of human rights organizations. He, however, failed to make an investigation even after
Lourdes disappearance had been made known to him;
3. A week after Lourdes release, another daughter, Jean R. Apruebo (Jean), was constrained to leave
their house because of the presence of men watching them;
4. Lourdes has filed with the Office of the Ombudsman a criminal complaint for kidnapping and
arbitrary detention and administrative complaint for gross abuse of authority and grave misconduct
against Capt. Angelo Cuaresma (Cuaresma), Ruben Alfaro (Alfaro), Jimmy Santana (Santana) and a
certain Jonathan, c/o Headquarters 301st AISS, Fernando Air Base and Maj. Sy/Reyes with address at
No. 09 Amsterdam Ext., Merville Subd., Paraaque City, but nothing has happened; and the threats and
harassment incidents have been reported to the Dasmarias municipal and Cavite provincial police
stations, but nothing eventful resulted from their respective investigations.
Two of the four witnesses to Lourdes abduction went into hiding after being visited by government
agents in civilian clothes; and
5. Karapatan conducted an investigation on the incidents. The investigation would indicate that men
belonging to the Armed Forces of the Philippines (AFP), namely Capt. Cuaresma of the Philippine Air
Force (PAF), Alfaro, Santana, Jonathan and Maj. Darwin Sy/Reyes, led the abduction of Lourdes; that
unknown to the abductors, Lourdes was able to pilfer a "mission order" which was addressed to CA
Ruben Alfaro and signed by Capt. Cuaresma of the PAF.
The petition prayed that a writ of amparo issue, ordering the individual respondents to desist from
performing any threatening act against the security of the petitioners and for the Office of the
Ombudsman (OMB) to immediately file an information for kidnapping qualified with the aggravating
circumstance of gender of the offended party. It also prayed for damages and for respondents to produce
documents submitted to any of them on the case of Lourdes.
Before the CA, respondents President Gloria Macapagal-Arroyo, Gen. Hermogenes Esperon, then
Armed Forces of the Philippines (AFP) Chief of Staff, Police Director-General (P/Dir. Gen.) Avelino
Razon, then Philippine National Police (PNP) Chief, Police Superintendent (P/Supt.) Roquero of the
Cavite Police Provincial Office, Police Inspector (P/Insp.) Gomez, now retired, and the OMB
(answering respondents, collectively) filed, through the Office of the Solicitor General (OSG), a joint
return on the writ specifically denying the material inculpatory averments against them. The OSG also
denied the allegations against the following impleaded persons, namely: Cuaresma, Alfaro, Santana,
Jonathan, and Sy/Reyes, for lack of knowledge or information sufficient to form a belief as to the
allegations truth. And by way of general affirmative defenses, answering respondents interposed the
following defenses: (1) the President may not be sued during her incumbency; and (2) the petition is
incomplete, as it fails to indicate the matters required by Sec. 5(d) and (e) of the Amparo Rule.4
Attached to the return were the affidavits of the following, among other public officials, containing their
respective affirmative defenses and/or statements of what they had undertaken or committed to
undertake regarding the claimed disappearance of Lourdes and the harassments made to bear on her and
her daughters:

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1. Gen. Esperon attested that, pursuant to a directive of then Secretary of National Defense (SND)
Gilberto C. Teodoro, Jr., he ordered the Commanding General of the PAF, with information to all
concerned units, to conduct an investigation to establish the circumstances behind the disappearance and
the reappearance of Lourdes insofar as the involvement of alleged personnel/unit is concerned. The
Provost Marshall General and the Office of the Judge Advocate General (JAGO), AFP, also undertook a
parallel action.
Gen. Esperon manifested his resolve to provide the CA with material results of the investigation; to
continue with the probe on the alleged abduction of Lourdes and to bring those responsible, including
military personnel, to the bar of justice when warranted by the findings and the competent evidence that
may be gathered in the investigation process by those mandated to look into the matter;5
2. P/Dir. Gen. Razon - stated that an investigation he immediately ordered upon receiving a copy of the
petition is on-going vis--vis Lourdes abduction, and that a background verification with the PNP
Personnel Accounting and Information System disclosed that the names Santana, Alfaro, Cuaresma and
one Jonathan do not appear in the police personnel records, although the PNP files carry the name of
Darwin Reyes Y. Muga.
Per the initial investigation report of the Dasmarias municipal police station, P/Dir. Gen. Razon
disclosed, Lourdes was abducted by six armed men in the afternoon of April 3, 2007 and dragged aboard
a Toyota Revo with plate number XRR 428, which plate was issued for a Mitsubishi van to AK Cottage
Industry with address at 9 Amsterdam St., Merville Subd., Paraaque City. The person residing in the
apartment on that given address is one Darius/Erwin See @ Darius Reyes allegedly working, per the
latters house helper, in Camp Aguinaldo.
P/Dir. Gen. Razon, however, bemoaned the fact that Mrs. Rubrico never contacted nor coordinated with
the local police or other investigating units of the PNP after her release, although she is in the best
position to establish the identity of her abductors and/or provide positive description through composite
sketching. Nonetheless, he manifested that the PNP is ready to assist and protect the petitioners and the
key witnesses from threats, harassments and intimidation from whatever source and, at the same time, to
assist the Court in the implementation of its orders.61avvphi1
3. P/Supt. Roquero stated conducting, upon receipt of Lourdes complaint, an investigation and
submitting the corresponding report to the PNP Calabarzon, observing that neither Lourdes nor her
relatives provided the police with relevant information;
4. P/Insp. Gomez alleged that Lourdes, her kin and witnesses refused to cooperate with the
investigating Cavite PNP; and
5. Overall Deputy Ombudsman Orlando Casimiro - alleged that cases for violation of Articles 267 and
124, or kidnapping and arbitrary detention, respectively, have been filed with, and are under preliminary
investigation by the OMB against those believed to be involved in Lourdes kidnapping; that upon
receipt of the petition for a writ of amparo, proper coordination was made with the Office of the Deputy
Ombudsman for the Military and other Law Enforcement Offices (MOLEO) where the subject criminal
and administrative complaints were filed.

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Commenting on the return, petitioners pointed out that the return was no more than a general denial of
averments in the petition. They, thus, pleaded to be allowed to present evidence ex parte against the
President, Santana, Alfaro, Capt. Cuaresma, Darwin Sy, and Jonathan. And with leave of court, they also
asked to serve notice of the petition through publication, owing to their failure to secure the current
address of the latter five and thus submit, as the CA required, proof of service of the petition on them.
The hearing started on November 13, 2007. 7 In that setting, petitioners counsel prayed for the issuance
of a temporary protection order (TPO) against the answering respondents on the basis of the allegations
in the petition. At the hearing of November 20, 2007, the CA granted petitioners motion that the petition
and writ be served by the courts process server on Darwin Sy/Reyes, Santana, Alfaro, Capt. Cuaresma,
and Jonathan.
The legal skirmishes that followed over the propriety of excluding President Arroyo from the petition,
petitioners motions for service by publication, and the issuance of a TPO are not of decisive pertinence
in this recital. The bottom line is that, by separate resolutions, the CA dropped the President as
respondent in the case; denied the motion for a TPO for the courts want of authority to issue it in the
tenor sought by petitioners; and effectively denied the motion for notice by publication owing to
petitioners failure to submit the affidavit required under Sec. 17, Rule 14 of the Rules of Court.8
After due proceedings, the CA rendered, on July 31, 2008, its partial judgment, subject of this review,
disposing of the petition but only insofar as the answering respondents were concerned. The fallo of the
CA decision reads as follows:
WHEREFORE, premises considered, partial judgment is hereby rendered DISMISSING the instant
petition with respect to respondent Gen. Hermogenes Esperon, P/Dir. Gen. Avelino Razon, Supt. Edgar
B. Roquero, P/Sr. Insp. Arsenio C. Gomez (ret.) and the Office of the Ombudsman.
Nevertheless, in order that petitioners complaint will not end up as another unsolved case, the heads of
the Armed Forces of the Philippines and the Philippine National Police are directed to ensure that the
investigations already commenced are diligently pursued to bring the perpetrators to justice. The Chief
of Staff of the Armed Forces of the Philippines and P/Dir. Gen. Avelino Razon are directed to regularly
update petitioners and this Court on the status of their investigation.
SO ORDERED.
In this recourse, petitioners formulate the issue for resolution in the following wise:
WHETHER OR NOT the [CA] committed reversible error in dismissing [their] Petition and dropping
President Gloria Macapagal Arroyo as party respondent.
Petitioners first take issue on the Presidents purported lack of immunity from suit during her term of
office. The 1987 Constitution, so they claim, has removed such immunity heretofore enjoyed by the
chief executive under the 1935 and 1973 Constitutions.
Petitioners are mistaken. The presidential immunity from suit remains preserved under our system of

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government, albeit not expressly reserved in the present constitution. Addressing a concern of his comembers in the 1986 Constitutional Commission on the absence of an express provision on the matter,
Fr. Joaquin Bernas, S.J. observed that it was already understood in jurisprudence that the President may
not be sued during his or her tenure.9 The Court subsequently made it abundantly clear in David v.
Macapagal-Arroyo, a case likewise resolved under the umbrella of the 1987 Constitution, that indeed
the President enjoys immunity during her incumbency, and why this must be so:
Settled is the doctrine that the President, during his tenure of office or actual incumbency, may not be
sued in any civil or criminal case, and there is no need to provide for it in the Constitution or law. It will
degrade the dignity of the high office of the President, the Head of State, if he can be dragged into court
litigations while serving as such. Furthermore, it is important that he be freed from any form of
harassment, hindrance or distraction to enable him to fully attend to the performance of his official
duties and functions. Unlike the legislative and judicial branch, only one constitutes the executive
branch and anything which impairs his usefulness in the discharge of the many great and important
duties imposed upon him by the Constitution necessarily impairs the operation of the Government. 10 x x
x
And lest it be overlooked, the petition is simply bereft of any allegation as to what specific presidential
act or omission violated or threatened to violate petitioners protected rights.
This brings us to the correctness of the assailed dismissal of the petition with respect to Gen. Esperon,
P/Dir. Gen. Razon, P/Supt. Roquero, P/Insp. Gomez, and the OMB.
None of the four individual respondents immediately referred to above has been implicated as being
connected to, let alone as being behind, the alleged abduction and harassment of petitioner Lourdes.
Their names were not even mentioned in Lourdes Sinumpaang Salaysay11 of April 2007. The same goes
for the respectiveSinumpaang Salaysay and/or Karagdagang Sinumpaang Salaysay of Jean12 and Mary
Joy.13
As explained by the CA, Gen. Esperon and P/Dir. Gen. Razon were included in the case on the theory
that they, as commanders, were responsible for the unlawful acts allegedly committed by their
subordinates against petitioners. To the appellate court, "the privilege of the writ of amparo must be
denied as against Gen. Esperon and P/Dir. Gen. Razon for the simple reason that petitioners have not
presented evidence showing that those who allegedly abducted and illegally detained Lourdes and later
threatened her and her family were, in fact, members of the military or the police force." The two
generals, the CAs holding broadly hinted, would have been accountable for the abduction and threats if
the actual malefactors were members of the AFP or PNP.
As regards the three other answering respondents, they were impleaded because they allegedly had not
exerted the required extraordinary diligence in investigating and satisfactorily resolving Lourdes
disappearance or bringing to justice the actual perpetrators of what amounted to a criminal act, albeit
there were allegations against P/Insp. Gomez of acts constituting threats against Mary Joy.
While in a qualified sense tenable, the dismissal by the CA of the case as against Gen. Esperon and
P/Dir. Gen. Razon is incorrect if viewed against the backdrop of the stated rationale underpinning the

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assailed decision vis--vis the two generals, i.e., command responsibility. The Court assumes the latter
stance owing to the fact that command responsibility, as a concept defined, developed, and applied under
international law, has little, if at all, bearing in amparo proceedings.
The evolution of the command responsibility doctrine finds its context in the development of laws of
war and armed combats. According to Fr. Bernas, "command responsibility," in its simplest terms,
means the "responsibility of commanders for crimes committed by subordinate members of the armed
forces or other persons subject to their control in international wars or domestic conflict." 14 In this sense,
command responsibility is properly a form of criminal complicity. The Hague Conventions of 1907
adopted the doctrine of command responsibility,15 foreshadowing the present-day precept of holding a
superior accountable for the atrocities committed by his subordinates should he be remiss in his duty of
control over them. As then formulated, command responsibility is "an omission mode of individual
criminal liability," whereby the superior is made responsible for crimes committed by his subordinates
for failing to prevent or punish the perpetrators16 (as opposed to crimes he ordered).
The doctrine has recently been codified in the Rome Statute17 of the International Criminal Court (ICC)
to which the Philippines is signatory. Sec. 28 of the Statute imposes individual responsibility on military
commanders for crimes committed by forces under their control. The country is, however, not yet
formally bound by the terms and provisions embodied in this treaty-statute, since the Senate has yet to
extend concurrence in its ratification.18
While there are several pending bills on command responsibility,19 there is still no Philippine law that
provides for criminal liability under that doctrine.20
It may plausibly be contended that command responsibility, as legal basis to hold military/police
commanders liable for extra-legal killings, enforced disappearances, or threats, may be made applicable
to this jurisdiction on the theory that the command responsibility doctrine now constitutes a principle of
international law or customary international law in accordance with the incorporation clause of the
Constitution.21 Still, it would be inappropriate to apply to these proceedings the doctrine of command
responsibility, as the CA seemed to have done, as a form of criminal complicity through omission, for
individual respondents criminal liability, if there be any, is beyond the reach of amparo. In other words,
the Court does not rule in such proceedings on any issue of criminal culpability, even if incidentally a
crime or an infraction of an administrative rule may have been committed. As the Court stressed in
Secretary of National Defense v. Manalo (Manalo), 22 the writ of amparo was conceived to provide
expeditious and effective procedural relief against violations or threats of violation of the basic rights to
life, liberty, and security of persons; the corresponding amparo suit, however, "is not an action to
determine criminal guilt requiring proof beyond reasonable doubt x x x or administrative liability
requiring substantial evidence that will require full and exhaustive proceedings." 23 Of the same tenor,
and by way of expounding on the nature and role of amparo, is what the Court said in Razon v. Tagitis:
It does not determine guilt nor pinpoint criminal culpability for the disappearance [threats thereof or
extra-judicial killings]; it determines responsibility, or at least accountability, for the enforced
disappearance [threats thereof or extra-judicial killings] for purposes of imposing the appropriate
remedies to address the disappearance [or extra-judicial killings].
xxxx
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As the law now stands, extra-judicial killings and enforced disappearances in this jurisdiction are not
crimes penalized separately from the component criminal acts undertaken to carry out these killings and
enforced disappearances and are now penalized under the Revised Penal Code and special laws. The
simple reason is that the Legislature has not spoken on the matter; the determination of what acts are
criminal x x x are matters of substantive law that only the Legislature has the power to enact.24 x x x
If command responsibility were to be invoked and applied to these proceedings, it should, at most, be
only to determine the author who, at the first instance, is accountable for, and has the duty to address, the
disappearance and harassments complained of, so as to enable the Court to devise remedial measures
that may be appropriate under the premises to protect rights covered by the writ of amparo. As intimated
earlier, however, the determination should not be pursued to fix criminal liability on respondents
preparatory to criminal prosecution, or as a prelude to administrative disciplinary proceedings under
existing administrative issuances, if there be any.
Petitioners, as the CA has declared, have not adduced substantial evidence pointing to government
involvement in the disappearance of Lourdes. To a concrete point, petitioners have not shown that the
actual perpetrators of the abduction and the harassments that followed formally or informally formed
part of either the military or the police chain of command. A preliminary police investigation report,
however, would tend to show a link, however hazy, between the license plate (XRR 428) of the vehicle
allegedly used in the abduction of Lourdes and the address of Darwin Reyes/Sy, who was alleged to be
working in Camp Aguinaldo.25 Then, too, there were affidavits and testimonies on events that transpired
which, if taken together, logically point to military involvement in the alleged disappearance of Lourdes,
such as, but not limited to, her abduction in broad daylight, her being forcibly dragged to a vehicle
blindfolded and then being brought to a place where the sounds of planes taking off and landing could
be heard. Mention may also be made of the fact that Lourdes was asked about her membership in the
Communist Party and of being released when she agreed to become an "asset."
Still and all, the identities and links to the AFP or the PNP of the alleged abductors, namely Cuaresma,
Alfaro, Santana, Jonathan, and Sy/Reyes, have yet to be established.
Based on the separate sworn statements of Maj. Paul Ciano 26 and Technical Sergeant John N.
Romano,27officer-in-charge and a staff of the 301st AISS, respectively, none of the alleged abductors of
Lourdes belonged to the 301st AISS based in San Fernando Air Base. Neither were they members of any
unit of the Philippine Air Force, per the certification 28 of Col. Raul Dimatactac, Air Force Adjutant. And
as stated in the challenged CA decision, a verification with the Personnel Accounting and Information
System of the PNP yielded the information that, except for a certain Darwin Reyes y Muga, the other
alleged abductors, i.e., Cuaresma, Alfaro, Santana and Jonathan, were not members of the PNP.
Petitioners, when given the opportunity to identify Police Officer 1 Darwin Reyes y Muga, made no
effort to confirm if he was the same Maj. Darwin Reyes a.k.a. Darwin Sy they were implicating in
Lourdes abduction.
Petitioners, to be sure, have not successfully controverted answering respondents documentary
evidence, adduced to debunk the formers allegations directly linking Lourdes abductors and tormentors
to the military or the police establishment. We note, in fact, that Lourdes, when queried on crossexamination, expressed the belief that Sy/Reyes was an NBI agent. 29 The Court is, of course, aware of
what was referred to in Razon30 as the "evidentiary difficulties" presented by the nature of, and
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encountered by petitioners in, enforced disappearance cases. But it is precisely for this reason that the
Court should take care too that no wrong message is sent, lest one conclude that any kind or degree of
evidence, even the outlandish, would suffice to secure amparo remedies and protection.
Sec. 17, as complemented by Sec. 18 of the Amparo Rule, expressly prescribes the minimum evidentiary
substantiation requirement and norm to support a cause of action under the Rule, thus:
Sec. 17. Burden of Proof and Standard of Diligence Required.The parties shall establish their claims
by substantial evidence.
xxxx
Sec. 18. Judgment.x x x If the allegations in the petition are proven by substantial evidence, the court
shall grant the privilege of the writ and such reliefs as may be proper and appropriate; otherwise, the
privilege shall be denied. (Emphasis added.)
Substantial evidence is more than a mere imputation of wrongdoing or violation that would warrant a
finding of liability against the person charged; 31 it is more than a scintilla of evidence. It means such
amount of relevant evidence which a reasonable mind might accept as adequate to support a conclusion,
even if other equally reasonable minds might opine otherwise. 32 Per the CAs evaluation of their
evidence, consisting of the testimonies and affidavits of the three Rubrico women and five other
individuals, petitioners have not satisfactorily hurdled the evidentiary bar required of and assigned to
them under the Amparo Rule. In a very real sense, the burden of evidence never even shifted to
answering respondents. The Court finds no compelling reason to disturb the appellate courts
determination of the answering respondents role in the alleged enforced disappearance of petitioner
Lourdes and the threats to her familys security.
Notwithstanding the foregoing findings, the Court notes that both Gen. Esperon and P/Dir. Gen. Razon,
per their separate affidavits, lost no time, upon their receipt of the order to make a return on the writ, in
issuing directives to the concerned units in their respective commands for a thorough probe of the case
and in providing the investigators the necessary support. As of this date, however, the investigations
have yet to be concluded with some definite findings and recommendation.
As regards P/Supt. Romero and P/Insp. Gomez, the Court is more than satisfied that they have no direct
or indirect hand in the alleged enforced disappearance of Lourdes and the threats against her daughters.
As police officers, though, theirs was the duty to thoroughly investigate the abduction of Lourdes, a duty
that would include looking into the cause, manner, and like details of the disappearance; identifying
witnesses and obtaining statements from them; and following evidentiary leads, such as the Toyota Revo
vehicle with plate number XRR 428, and securing and preserving evidence related to the abduction and
the threats that may aid in the prosecution of the person/s responsible. As we said in Manalo,33 the right
to security, as a guarantee of protection by the government, is breached by the superficial and onesidedhence, ineffectiveinvestigation by the military or the police of reported cases under their
jurisdiction. As found by the CA, the local police stations concerned, including P/Supt. Roquero and
P/Insp. Gomez, did conduct a preliminary fact-finding on petitioners complaint. They could not,
however, make any headway, owing to what was perceived to be the refusal of Lourdes, her family, and

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her witnesses to cooperate. Petitioners counsel, Atty. Rex J.M.A. Fernandez, provided a plausible
explanation for his clients and their witnesses attitude, "[They] do not trust the government agencies to
protect them."34 The difficulty arising from a situation where the party whose complicity in extra-judicial
killing or enforced disappearance, as the case may be, is alleged to be the same party who investigates it
is understandable, though.
The seeming reluctance on the part of the Rubricos or their witnesses to cooperate ought not to pose a
hindrance to the police in pursuing, on its own initiative, the investigation in question to its natural end.
To repeat what the Court said in Manalo, the right to security of persons is a guarantee of the protection
of ones right by the government. And this protection includes conducting effective investigations of
extra-legal killings, enforced disappearances, or threats of the same kind. The nature and importance of
an investigation are captured in theVelasquez Rodriguez case,35 in which the Inter-American Court of
Human Rights pronounced:
[The duty to investigate] must be undertaken in a serious manner and not as a mere formality
preordained to be ineffective. An investigation must have an objective and be assumed by the State as its
own legal duty, not a step taken by private interests that depends upon the initiative of the victim
or his family or upon offer of proof, without an effective search for the truth by the government.
(Emphasis added.)
This brings us to Mary Joys charge of having been harassed by respondent P/Insp. Gomez. With the
view we take of this incident, there is nothing concrete to support the charge, save for Mary Joys bare
allegations of harassment. We cite with approval the following self-explanatory excerpt from the
appealed CA decision:
In fact, during her cross-examination, when asked what specific act or threat P/Sr. Gomez (ret)
committed against her or her mother and sister, Mary Joy replied "None "36
Similarly, there appears to be no basis for petitioners allegations about the OMB failing to act on their
complaint against those who allegedly abducted and illegally detained Lourdes. Contrary to petitioners
contention, the OMB has taken the necessary appropriate action on said complaint. As culled from the
affidavit37 of the Deputy Overall Ombudsman and the joint affidavits 38 of the designated investigators,
all dated November 7, 2007, the OMB had, on the basis of said complaint, commenced criminal 39 and
administrative40 proceedings, docketed as OMB-P-C-07-0602-E and OMB-P-A 07-567-E, respectively,
against Cuaresma, Alfaro, Santana, Jonathan, and Sy/Reyes. The requisite orders for the submission of
counter-affidavits and verified position papers had been sent out.
The privilege of the writ of amparo, to reiterate, is a remedy available to victims of extra-judicial
killings and enforced disappearances or threats of similar nature, regardless of whether the perpetrator of
the unlawful act or omission is a public official or employee or a private individual.
At this juncture, it bears to state that petitioners have not provided the CA with the correct addresses of
respondents Cuaresma, Alfaro, Santana, Jonathan, and Sy/Reyes. The mailed envelopes containing the
petition for a writ of amparo individually addressed to each of them have all been returned unopened.
And petitioners motion interposed before the appellate court for notice or service via publication has not

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been accompanied by supporting affidavits as required by the Rules of Court. Accordingly, the appealed
CA partial judgmentdisposing of the underlying petition for a writ of amparo without (1)
pronouncement as to the accountability, or lack of it, of the four non-answering respondents or (2)
outright dismissal of the same petition as to themhews to the prescription of Sec. 20 of the Amparo
Rule on archiving and reviving cases.41 Parenthetically, petitioners have also not furnished this Court
with sufficient data as to where the afore-named respondents may be served a copy of their petition for
review.
Apart from the foregoing considerations, the petition did not allege ultimate facts as would link the
OMB in any manner to the violation or threat of violation of the petitioners rights to life, liberty, or
personal security.
The privilege of the writ of amparo is envisioned basically to protect and guarantee the rights to life,
liberty, and security of persons, free from fears and threats that vitiate the quality of this life. 42 It is an
extraordinary writ conceptualized and adopted in light of and in response to the prevalence of extra-legal
killings and enforced disappearances.43 Accordingly, the remedy ought to be resorted to and granted
judiciously, lest the ideal sought by the Amparo Rule be diluted and undermined by the indiscriminate
filing of amparo petitions for purposes less than the desire to secure amparo reliefs and protection and/or
on the basis of unsubstantiated allegations.
In their petition for a writ of amparo, petitioners asked, as their main prayer, that the Court order the
impleaded respondents "to immediately desist from doing any acts that would threaten or seem to
threaten the security of the Petitioners and to desist from approaching Petitioners, x x x their residences
and offices where they are working under pain of contempt of [this] Court." Petitioners, however, failed
to adduce the threshold substantive evidence to establish the predicate facts to support their cause of
action, i.e., the adverted harassments and threats to their life, liberty, or security, against responding
respondents, as responsible for the disappearance and harassments complained of. This is not to say,
however, that petitioners allegation on the fact of the abduction incident or harassment is necessarily
contrived. The reality on the ground, however, is that the military or police connection has not been
adequately proved either by identifying the malefactors as components of the AFP or PNP; or in case
identification is not possible, by showing that they acted with the direct or indirect acquiescence of the
government. For this reason, the Court is unable to ascribe the authorship of and responsibility for the
alleged enforced disappearance of Lourdes and the harassment and threats on her daughters to individual
respondents. To this extent, the dismissal of the case against them is correct and must, accordingly, be
sustained.
Prescinding from the above considerations, the Court distinctly notes that the appealed decision
veritably extended the privilege of the writ of amparo to petitioners when it granted what to us are
amparo reliefs. Consider: the appellate court decreed, and rightly so, that the police and the military take
specific measures for the protection of petitioners right or threatened right to liberty or security. The
protection came in the form of directives specifically to Gen. Esperon and P/Dir. Gen. Razon, requiring
each of them (1) to ensure that the investigations already commenced by the AFP and PNP units,
respectively, under them on the complaints of Lourdes and her daughters are being pursued with urgency
to bring to justice the perpetrators of the acts complained of; and (2) to submit to the CA, copy furnished
the petitioners, a regular report on the progress and status of the investigations. The directives obviously
go to Gen. Esperon in his capacity as head of the AFP and, in a sense, chief guarantor of order and

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10

security in the country. On the other hand, P/Dir. Gen. Razon is called upon to perform a duty pertaining
to the PNP, a crime-preventing, investigatory, and arresting institution.
As the CA, however, formulated its directives, no definitive time frame was set in its decision for the
completion of the investigation and the reportorial requirements. It also failed to consider Gen. Esperon
and P/Dir. Gen. Razons imminent compulsory retirement from the military and police services,
respectively. Accordingly, the CA directives, as hereinafter redefined and amplified to fully enforce the
amparo remedies, are hereby given to, and shall be directly enforceable against, whoever sits as the
commanding general of the AFP and the PNP.
At this stage, two postulates and their implications need highlighting for a proper disposition of this
case.
First, a criminal complaint for kidnapping and, alternatively, for arbitrary detention rooted in the same
acts and incidents leading to the filing of the subject amparo petition has been instituted with the OMB,
docketed as OMB-P-C-O7-0602-E. The usual initial steps to determine the existence of a prima facie
case against the five (5) impleaded individuals suspected to be actually involved in the detention of
Lourdes have been set in motion. It must be pointed out, though, that the filing 44 of the OMB complaint
came before the effectivity of the Amparo Rule on October 24, 2007.
Second, Sec. 2245 of the Amparo Rule proscribes the filing of an amparo petition should a criminal
action have, in the meanwhile, been commenced. The succeeding Sec. 23, 46 on the other hand, provides
that when the criminal suit is filed subsequent to a petition for amparo, the petition shall be consolidated
with the criminal action where the Amparo Rule shall nonetheless govern the disposition of the relief
under the Rule. Under the terms of said Sec. 22, the present petition ought to have been dismissed at the
outset. But as things stand, the outright dismissal of the petition by force of that section is no longer
technically feasible in light of the interplay of the following factual mix: (1) the Court has, pursuant to
Sec. 647 of the Rule, already issued ex parte the writ of amparo; (2) the CA, after a summary hearing, has
dismissed the petition, but not on the basis of Sec. 22; and (3) the complaint in OMB-P-C-O7-0602-E
named as respondents only those believed to be the actual abductors of Lourdes, while the instant
petition impleaded, in addition, those tasked to investigate the kidnapping and detention incidents and
their superiors at the top. Yet, the acts and/or omissions subject of the criminal complaint and the amparo
petition are so linked as to call for the consolidation of both proceedings to obviate the mischief inherent
in a multiplicity-of-suits situation.
Given the above perspective and to fully apply the beneficial nature of the writ of amparo as an
inexpensive and effective tool to protect certain rights violated or threatened to be violated, the Court
hereby adjusts to a degree the literal application of Secs. 22 and 23 of the Amparo Rule to fittingly
address the situation obtaining under the premises. 48 Towards this end, two things are at once indicated:
(1) the consolidation of the probe and fact-finding aspects of the instant petition with the investigation of
the criminal complaint before the OMB; and (2) the incorporation in the same criminal complaint of the
allegations in this petition bearing on the threats to the right to security. Withal, the OMB should be
furnished copies of the investigation reports to aid that body in its own investigation and eventual
resolution of OMB-P-C-O7-0602-E. Then, too, the OMB shall be given easy access to all pertinent
documents and evidence, if any, adduced before the CA. Necessarily, Lourdes, as complainant in OMBP-C-O7-0602-E, should be allowed, if so minded, to amend her basic criminal complaint if the
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11

consolidation of cases is to be fully effective.


WHEREFORE, the Court PARTIALLY GRANTS this petition for review and makes a decision:
(1) Affirming the dropping of President Gloria Macapagal-Arroyo from the petition for a writ of
amparo;
(2) Affirming the dismissal of the amparo case as against Gen. Hermogenes Esperon, and P/Dir. Gen.
Avelino Razon, insofar as it tended, under the command responsibility principle, to attach accountability
and responsibility to them, as then AFP Chief of Staff and then PNP Chief, for the alleged enforced
disappearance of Lourdes and the ensuing harassments allegedly committed against petitioners. The
dismissal of the petition with respect to the OMB is also affirmed for failure of the petition to allege
ultimate facts as to make out a case against that body for the enforced disappearance of Lourdes and the
threats and harassment that followed; and
(3) Directing the incumbent Chief of Staff, AFP, or his successor, and the incumbent Director-General of
the PNP, or his successor, to ensure that the investigations already commenced by their respective units
on the alleged abduction of Lourdes Rubrico and the alleged harassments and threats she and her
daughters were made to endure are pursued with extraordinary diligence as required by Sec. 17 49 of the
Amparo Rule. They shall order their subordinate officials, in particular, to do the following:
(a) Determine based on records, past and present, the identities and locations of respondents Maj.
Darwin Sy, a.k.a. Darwin Reyes, Jimmy Santana, Ruben Alfaro, Capt. Angelo Cuaresma, and one
Jonathan; and submit certifications of this determination to the OMB with copy furnished to petitioners,
the CA, and this Court;
(b) Pursue with extraordinary diligence the evidentiary leads relating to Maj. Darwin Sy and the Toyota
Revo vehicle with Plate No. XRR 428; and
(c) Prepare, with the assistance of petitioners and/or witnesses, cartographic sketches of respondents
Maj. Sy/Reyes, Jimmy Santana, Ruben Alfaro, Capt. Angelo Cuaresma, and a certain Jonathan to aid in
positively identifying and locating them.
The investigations shall be completed not later than six (6) months from receipt of this Decision; and
within thirty (30) days after completion of the investigations, the Chief of Staff of the AFP and the
Director-General of the PNP shall submit a full report of the results of the investigations to the Court,
the CA, the OMB, and petitioners.
This case is accordingly referred back to the CA for the purpose of monitoring the investigations and the
actions of the AFP and the PNP.
Subject to the foregoing modifications, the Court AFFIRMS the partial judgment dated July 31, 2008 of
the CA.
SO ORDERED.

SPECIAL ISSUES

12

PRESBITERO J. VELASCO, JR.

Republic of the Philippines


SUPREME COURT
Manila
EN BANC
G.R. Nos. 184461-62

SPECIAL ISSUES

May 31, 2011

13

LT. COL. ROGELIO BOAC, LT. COL. FELIPE ANOTADO AND LT. FRANCIS MIRABELLE
SAMSON,Petitioners,
vs.
ERLINDA T. CADAPAN AND CONCEPCION E. EMPEO, Respondents.
x - - - - - - - - - - - - - - - - - - - - - - -x
G.R. No. 184495
ERLINDA T. CADAPAN AND CONCEPCION E. EMPEO, Petitioners,
vs.
GEN. HERMOGENES ESPERON, P/DIR.GEN. AVELINO RAZON, (RET.) GEN. ROMEO
TOLENTINO, (RET.) GEN. JOVITO PALPARAN, LT. COL. ROGELIO BOAC, LT. COL.
FELIPE ANOTADO, ET AL., Respondents.
x - - - - - - - - - - - - - - - - - - - - - - -x
G.R. No. 187109
ERLINDA T. CADAPAN AND CONCEPCION E. EMPEO, Petitioners,
vs.
GLORIA MACAPAGAL-ARROYO, GEN. HERMOGENES ESPERON, P/DIR.GEN. AVELINO
RAZON, (RET.) GEN. ROMEO TOLENTINO, (RET.) GEN. JOVITO PALPARAN, LT. COL.
ROGELIO BOAC, LT. COL. FELIPE ANOTADO, DONALD CAIGAS, A.K.A. ALAN OR
ALVIN, ARNEL ENRIQUEZ AND LT. FRANCIS MIRABELLE SAMSON, Respondents.
DECISION
CARPIO MORALES, J.:
At 2:00 a.m. of June 26, 2006, armed men abducted Sherlyn Cadapan (Sherlyn), Karen Empeo (Karen)
and Manuel Merino (Merino) from a house in San Miguel, Hagonoy, Bulacan. The three were herded
onto a jeep bearing license plate RTF 597 that sped towards an undisclosed location.
Having thereafter heard nothing from Sherlyn, Karen and Merino, their respective families scoured
nearby police precincts and military camps in the hope of finding them but the same yielded nothing.
On July 17, 2006, spouses Asher and Erlinda Cadapan and Concepcion Empeo filed a petition for
habeas corpus1 before the Court, docketed as G.R. No. 173228, impleading then Generals Romeo
Tolentino and Jovito Palparan (Gen. Palparan), Lt. Col. Rogelio Boac (Lt. Col. Boac), Arnel Enriquez
and Lt. Francis Mirabelle Samson (Lt. Mirabelle) as respondents. By Resolution of July 19, 2006, 2 the
Court issued a writ of habeas corpus, returnable to the Presiding Justice of the Court of Appeals.
The habeas corpus petition was docketed at the appellate court as CA-G.R. SP No. 95303.

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14

By Return of the Writ dated July 21, 2006, 3 the respondents in the habeas corpus petition denied that
Sherlyn, Karen and Merino are in the custody of the military. To the Return were attached affidavits
from the respondents, except Enriquez, who all attested that they do not know Sherlyn, Karen and
Merino; that they had inquired from their subordinates about the reported abduction and disappearance
of the three but their inquiry yielded nothing; and that the military does not own nor possess a stainless
steel jeep with plate number RTF 597. Also appended to the Return was a certification from the Land
Transportation Office (LTO) that plate number RTF 597 had not yet been manufactured as of July 26,
2006.
Trial thereupon ensued at the appellate court.
Witness Wilfredo Ramos, owner of the house where the three were abducted, recounted that on June 26,
2006, while he was inside his house in Hagonoy, he witnessed armed men wearing bonnets abduct
Sherlyn and Karen from his house and also abduct Merino on their way out; and that tied and
blindfolded, the three were boarded on a jeep and taken towards Iba in Hagonoy.4
Witness Alberto Ramirez (Ramirez) recalled that on June 28, 2006, while he was sleeping in his house,
he was awakened by Merino who, in the company of a group of unidentified armed men, repaired to his
house; that onboard a stainless jeep bearing plate number RTF 597, he (Ramirez) was taken to a place in
Mercado, Hagonoy and was asked by one Enriquez if he knew "Sierra," "Tanya," "Vincent" and "Lisa";
and that Enriquez described the appearance of two ladies which matched those of Sherlyn and Karen,
whom he was familiar with as the two had previously slept in his house.5
Another witness, Oscar Leuterio, who was himself previously abducted by armed men and detained for
five months, testified that when he was detained in Fort Magsaysay in Nueva Ecija, he saw two women
fitting the descriptions of Sherlyn and Karen, and also saw Merino, his kumpare.6
Lt. Col. Boac, the then commander of Task Force Malolos, a special operations team tasked to neutralize
the intelligence network of communists and other armed groups, declared that he conducted an inquiry
on the abduction of Sherlyn, Karen and Merino but his subordinates denied knowledge thereof.7
While he denied having received any order from Gen. Palparan to investigate the disappearance of
Sherlyn, Karen and Merino, his assistance in locating the missing persons was sought by the mayor of
Hagonoy.
Major Dominador Dingle, the then division adjutant of the Philippine Armys 7th Infantry Division in
Fort Magsaysay, denied that a certain Arnel Enriquez is a member of his infantry as in fact his name did
not appear in the roster of troops.8
Roberto Se, a supervisor of the Equipment, Plate Number and Supply Units of the LTO, denied that his
office manufactured and issued a plate number bearing number RTF 597.9
On rebuttal, Lt. Mirabelle, Lt. Col. Boac and Gen. Palparan took the witness stand as hostile witnesses.
Lt. Mirabelle testified that she did not receive any report on the abduction of Sherlyn, Karen and Merino

SPECIAL ISSUES

15

nor any order to investigate the matter. And she denied knowing anything about the abduction of
Ramirez nor who were Ka Tanya or Ka Lisa.10
Gen. Palparan testified that during a debate in a televised program, he mentioned the names of Ka Lisa
and Ka Tanya as the ones involved in revolutionary tax activities; and that he ordered Lt. Col. Boac to
conduct an investigation on the disappearance of Sherlyn, Karen and Merino. 11 When pressed to
elaborate, he stated: "I said that I got the report that it stated that it was Ka Tanya and Ka Lisa that, I
mean, that incident happened in Hagonoy, Bulacan was the abduction of Ka Lisa and Ka Tanya, Your
Honor, and another one. That was the report coming from the people in the area."12
By Decision of March 29, 2007,13 the Court of Appeals dismissed the habeas corpus petition in this wise:
As Sherlyn Cadapan, Karen Empeo and Manuel Merino are indeed missing, the present petition for
habeas corpus is not the appropriate remedy since the main office or function of the habeas corpus is to
inquire into the legality of ones detention which presupposes that respondents have actual custody of
the persons subject of the petition. The reason therefor is that the courts have limited powers, means and
resources to conduct an investigation. x x x.
It being the situation, the proper remedy is not a habeas corpus proceeding but criminal proceedings by
initiating criminal suit for abduction or kidnapping as a crime punishable by law. In the case of Martinez
v. Mendoza, supra, the Supreme Court restated the doctrine that habeas corpus may not be used as a
means of obtaining evidence on the whereabouts of a person, or as a means of finding out who has
specifically abducted or caused the disappearance of a certain person. (emphasis and underscoring
supplied)
Thus the appellate court disposed:
WHEREFORE, the petition for habeas corpus is hereby DISMISSED, there being no strong evidence
that the missing persons are in the custody of the respondents.
The Court, however, further resolves to refer the case to the Commission on Human Rights, the National
Bureau of Investigation and the Philippine National Police for separate investigations and appropriate
actions as may be warranted by their findings and to furnish the Court with their separate reports on the
outcome of their investigations and the actions taken thereon.
Let copies of this decision be furnished the Commission on Human Rights, the National Bureau of
Investigation and the Philippine National Police for their appropriate actions.
SO ORDERED. (emphasis and underscoring supplied)
Petitioners in CA-G.R. SP No. 95303 moved for a reconsideration of the appellate courts decision. They
also moved to present newly discovered evidence consisting of the testimonies of Adoracion Paulino,
Sherlyns mother-in-law who was allegedly threatened by soldiers; and Raymond Manalo who allegedly
met Sherlyn, Karen and Merino in the course of his detention at a military camp.

SPECIAL ISSUES

16

During the pendency of the motion for reconsideration in CA-G.R. SP No. 95303, Erlinda Cadapan and
Concepcion Empeo filed before this Court a Petition for Writ of Amparo 14 With Prayers for Inspection
of Place and Production of Documents dated October 24, 2007, docketed as G.R. No. 179994. The
petition impleaded the same respondents in the habeas corpus petition, with the addition of then
President Gloria Macapagal-Arroyo, then Armed Forces of the Phil. (AFP) Chief of Staff Hermogenes
Esperon Jr., then Phil. National Police (PNP) Chief Gen. Avelino Razon (Gen. Razon), Lt. Col. Felipe
Anotado (Lt. Col. Anotado) and Donald Caigas.
Then President Arroyo was eventually dropped as respondent in light of her immunity from suit while in
office.
Petitioners in G.R. No. 179994 also prayed that they be allowed to inspect the detention areas of the
following places:
1. 7th Infantry Division at Fort Magsaysay, Laur, Nueva Ecija
2. 24th Infantry Batallion at Limay, Bataan
3. Army Detachment inside Valmocina Farm, Pinaod, San Ildefonso, Bulacan
4. Camp Tecson, San Miguel, Bulacan
5. The Resthouse of Donald Caigas alias Allan or Alvin of the 24th Infantry Batallion at Barangay
Banog, Bolinao, Pangasinan
6. 56th Infantry Batallion Headquarters at Iba, Hagonoy, Bulacan
7. Army Detachment at Barangay Mercado, Hagonoy, Bulacan
8. Beach House [at] Iba, Zambales used as a safehouse with a retired military personnel as a caretaker;
By Resolution of October 25, 2007, the Court issued in G.R. No. 179994 a writ of amparo returnable to
the Special Former Eleventh Division of the appellate court, and ordered the consolidation of the amparo
petition with the pending habeas corpus petition.
Docketed as CA-G.R. SP No. 002, respondents in the amparo case, through the Solicitor General, filed
their Return of the Writ on November 6, 2007. 15 In the Return, Gen. Palparan, Lt. Col. Boac and Lt.
Mirabelle reiterated their earlier narrations in the habeas corpus case.
Gen. Hermogenes Esperon Jr. stated in the Return that he immediately caused to investigate and verify
the identities of the missing persons and was aware of the earlier decision of the appellate court ordering
the police, the Commission on Human Rights and the National Bureau of Investigation to take further
action on the matter.16
Lt. Col. Felipe Anotado, the then battalion commander of the 24th Infantry Battalion based in Balanga
SPECIAL ISSUES

17

City, Bataan, denied any involvement in the abduction. While the 24th Infantry Battalion detachment
was reported to be a detention site of the missing persons, Lt. Col. Anotado claimed that he found no
untoward incident when he visited said detachment. He also claimed that there was no report of the
death of Merino per his inquiry with the local police.17
Police Director General Avelino Razon narrated that he ordered the compilation of pertinent records,
papers and other documents of the PNP on the abduction of the three, and that the police exhausted all
possible actions available under the circumstances.18
In addition to the witnesses already presented in the habeas corpus case, petitioners called on Adoracion
Paulino and Raymond Manalo to testify during the trial.
Adoracion Paulino recalled that her daughter-in-law Sherlyn showed up at home on April 11, 2007,
accompanied by two men and three women whom she believed were soldiers. She averred that she did
not report the incident to the police nor inform Sherlyns mother about the visit.19
Raymond Manalo (Manalo) claimed that he met the three abducted persons when he was illegally
detained by military men in Camp Tecson in San Miguel, Bulacan. His group was later taken to a camp
in Limay, Bataan. He recalled that Lt. Col. Anotado was the one who interrogated him while in
detention.20
In his Sinumpaang Salaysay,21 Manalo recounted:
xxxx
59. Saan ka dinala mula sa Sapang?
Pagkalipas ng humigit kumulang 3 buwan sa Sapang, dinala ako sa Camp Tecson sa ilalim ng 24th IB.
xxxx
Sa loob ng barracks ko nakilala si Sherlyn Cadapan, isang estudyante ng UP.
Ipinapalinis din sa akin ang loob ng barracks. Sa isang kwarto sa loob ng barracks, may nakita akong
babae na nakakadena[.] Noong una, pinagbawalan akong makipag-usap sa kanya. Sa ikatlo o ikaapat na
araw, nakausap ko yung babaeng nagngangalang Sherlyn. Binigyan ko siya ng pagkain. Sinabi niya sa
akin na dinukot si[ya] sa Hagonoy, Bulacan at matindi ang tortyur na dinaranas niya. Sabi niya gusto
niyang umuwi at makasama ang kanyang magulang. Umiiyak siya. Sabi niya sa akin ang buong
pangalan niya ay Sherlyn Cadapan, mula sa Laguna. Sa araw tinatanggal ang kanyang kadena at
inuutusan si Sherlyn na maglaba.
x x x x.
61. Sino ang mga nakilala mo sa Camp Tecson?

SPECIAL ISSUES

18

Dito sa Camp Tecson naming nakilala si Allan Alvin (maya-maya nalaman naming na siya pala si
Donald Caigas), ng 24th IB, na tinatawag na master o commander ng kanyang mga tauhan.
Pagkalipas ng 2 araw matapos dalhin si Reynaldo sa Camp Tecson dumating sina Karen Empeo at
Manuel Merino na mga bihag din. Inilagay si Karen at Manuel sa kwarto ni Allan[.] Kami naman ni
Reynaldo ay nasa katabing kwarto, kasama si Sherlyn.
xxxx
62. x x x x
Kaming mga lalake (ako, si Reynaldo at si Manuel) ay ginawang utusan, habang sina Sherlyn at Karen
ay ginawang labandera.
Si Sherlyn ang pinahirapan nina Mickey, Donald at Billy. Sabi ni Sherlyn sa akin na siyay ginahasa.
xxxx
63. x x x x
xxxx
Kaming lima (ako, si Reynaldo, si Sherlyn, si Karen at si [Merino]) ang dinala sa Limay. Sinakay ako, si
Reynaldo, si Sherlyn at si [Merino] sa isang stainless na jeep. Si Karen ay isinakay sa itim na sasakyan
ni Donald Caigas. x x x x
xxxx
66. Saan pa kayo dinala mula sa Limay, Bataan?
Mula sa Limay, kaming 5 (ako, si Reynaldo, si Sherlyn, Si Karen at si Manuel) ay dinala sa isang
safehouse sa Zambales, tabi ng dagat. x x x x (underscoring supplied; italics and emphasis in the
original)
On rebuttal, Lt. Col. Anotado and Col. Eduardo Boyles Davalan were called to the witness stand.
Lt. Col. Anotado denied seeing or meeting Manalo. He posited that Manalo recognized him because he
was very active in conducting lectures in Bataan and even appeared on television regarding an incident
involving the 24th Infantry Batallion. He contended that it was impossible for Manalo, Sherlyn, Karen
and Merino to be detained in the Limay detachment which had no detention area.
Col. Eduardo Boyles Davalan, the then chief of staff of the First Scout Ranger Regiment in Camp
Tecson, testified that the camp is not a detention facility, nor does it conduct military operations as it
only serves as a training facility for scout rangers. He averred that his regiment does not have any

SPECIAL ISSUES

19

command relation with either the 7th Infantry Division or the 24th Infantry Battalion.22
By Decision of September 17, 2008,23 the appellate court granted the Motion for Reconsideration in CAG.R. SP No. 95303 (the habeas corpus case) and ordered the immediate release of Sherlyn, Karen and
Merino in CA-G.R. SP No. 00002 (the amparo case). Thus it disposed:
WHEREFORE, in CA-G.R. SP NO. 95303 (Habeas Corpus case), the Motion for Reconsideration is
GRANTED.
Accordingly, in both CA-G.R. SP NO. 95303 (Habeas Corpus case) and in CA-G.R. SP NO. 00002
(Amparo case), the respondents are thereby ordered to immediately RELEASE, or cause the release,
from detention the persons of Sher[lyn] Cadapan, Karen Empeo and Manuel Merino.
Respondent Director General Avelino Razon is hereby ordered to resume [the] PNPs unfinished
investigation so that the truth will be fully ascertained and appropriate charges filed against those truly
responsible.
SO ORDERED.
In reconsidering its earlier Decision in the habeas corpus case, the appellate court relied heavily on the
testimony of Manalo in this wise:
With the additional testimony of Raymond Manalo, the petitioners have been able to convincingly prove
the fact of their detention by some elements in the military. His testimony is a first hand account that
military and civilian personnel under the 7th Infantry Division were responsible for the abduction of
Sherlyn Cadapan, Karen Empeo and Manuel Merino. He also confirmed the claim of Oscar Leuterio
that the latter was detained in Fort Magsaysay. It was there where he (Leuterio) saw Manuel Merino.
His testimony that Leuterio saw Manuel Merino in Fort Magsaysay may be hearsay but not with respect
to his meeting with, and talking to, the three desaparecidos. His testimony on those points was no
hearsay. Raymond Manalo saw the three with his very own eyes as they were detained and tortured
together. In fact, he claimed to be a witness to the burning of Manuel Merino. In the absence of
confirmatory proof, however, the Court will presume that he is still alive.
The testimony of Raymond Manalo can no longer be ignored and brushed aside. His narration and those
of the earlier witnesses, taken together, constitute more than substantial evidence warranting an order
that the three be released from detention if they are not being held for a lawful cause. They may be
moved from place to place but still they are considered under detention and custody of the respondents.
His testimony was clear, consistent and convincing. x x x.
xxxx
The additional testimonies of Lt. Col. Felipe Anotado and Col. Eduardo Boyles Davalan were of no help
either. Again, their averments were the same negative ones which cannot prevail over those of Raymond

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20

Manalo. Indeed, Camp Tecson has been utilized as a training camp for army scout rangers. Even
Raymond Manalo noticed it but the camps use for purposes other than training cannot be discounted.
xxxx
In view of the foregoing, there is now a clear and credible evidence that the three missing persons,
[Sherlyn, Karen and Merino], are being detained in military camps and bases under the 7th Infantry
Division. Being not held for a lawful cause, they should be immediately released from detention. (italic
in the original; emphasis and underscoring supplied)
Meanwhile, in the amparo case, the appellate court deemed it a superfluity to issue any inspection order
or production order in light of the release order. As it earlier ruled in the habeas corpus case, it found that
the three detainees right to life, liberty and security was being violated, hence, the need to immediately
release them, or cause their release. The appellate court went on to direct the PNP to proceed further
with its investigation since there were enough leads as indicated in the records to ascertain the truth and
file the appropriate charges against those responsible for the abduction and detention of the three.
Lt. Col. Rogelio Boac, et al. challenged before this Court, via petition for review, the September 17,
2008 Decision of the appellate court. This was docketed as G.R. Nos. 184461-62, the first abovecaptioned case- subject of the present Decision.
Erlinda Cadapan and Concepcion Empeo, on the other hand, filed their own petition for review also
challenging the same September 17, 2008 Decision of the appellate court only insofar as the amparo
aspect is concerned.Their petition, docketed as G.R. No. 179994, was redocketed as G.R. No. 184495,
the second above-captioned case.
By Resolution of June 15, 2010, the Court ordered the consolidation of G.R. No. 184495 with G.R. Nos.
1844461-62.24
Meanwhile, Erlinda Cadapan and Concepcion Empeo filed before the appellate court a Motion to Cite
Respondents in Contempt of Court for failure of the respondents in the amparo and habeas corpus cases
to comply with the directive of the appellate court to immediately release the three missing persons. By
Resolution of March 5, 2009,25 the appellate court denied the motion, ratiocinating thus:
While the Court, in the dispositive portion, ordered the respondents "to immediately RELEASE, or
cause the release, from detention the persons of Sherlyn Cadapan, Karen Empeo and Manuel Merino,"
the decision is not ipso facto executory. The use of the term "immediately" does not mean that that it is
automatically executory. There is nothing in the Rule on the Writ of Amparo which states that a decision
rendered is immediately executory. x x x.
Neither did the decision become final and executory considering that both parties questioned the
Decision/Resolution before the Supreme Court. x x x.
Besides, the Court has no basis. The petitioners did not file a motion for execution pending appeal under
Section 2 of Rule 39. There being no motion, the Court could not have issued, and did not issue, a writ

SPECIAL ISSUES

21

of execution. x x x. (underscoring supplied)


Via a petition for certiorari filed on March 30, 2009 before this Court, Erlinda Cadapan and Concepcion
Empeo challenged the appellate courts March 5, 2009 Resolution denying their motion to cite
respondents in contempt. The petition was docketed as G.R. No. 187109, the last above-captioned case
subject of the present Decision.
Only Lt. Col. Anotado and Lt. Mirabelle remained of the original respondents in the amparo and habeas
corpus cases as the other respondents had retired from government service.26 The AFP has denied that
Arnel Enriquez was a member of the Philippine Army. 27 The whereabouts of Donald Caigas remain
unknown.28
In G.R. Nos. 184461-62, petitioners posit as follows:
I
THE COURT OF APPEALS GROSSLY MISAPPRECIATED THE VALUE OF THE TESTIMONY
OF RAYMOND MANALO.
II
THE PETITION[S] FOR HABEAS CORPUS AND WRIT OF AMPARO SHOULD BE DISMISSED
BECAUSE RESPONDENTS FAILED TO PROVE BY THE REQUIRED QUANTUM OF EVIDENCE
THAT PETITIONERS HAVE SHERLYN CADAPAN, KAREN EMPEO AND MANUEL MERINO
ARE IN THEIR CUSTODY.
III
PETITIONERS DENIALS PER SE SHOULD NOT HAVE BEEN TAKEN AGAINST THEM
BECAUSE THEY DID NOT REALLY HAVE ANY INVOLVEMENT IN THE ALLEGED
ABDUCTION; MOREOVER, THE SUPPOSED INCONSISTENCIES IN THEIR TESTIMONIES
ARE ON POINTS IRRELEVANT TO THE PETITION.
IV
THE DISPOSITIVE PORTION OF THE ASSAILED DECISION IS VAGUE AND INCONGRUENT
WITH THE FINDINGS OF THE COURT OF APPEALS.
V
THE COURT OF APPEALS IGNORED AND FAILED TO RULE UPON THE FATAL
PROCEDURAL INFIRMITIES IN THE PETITION FOR WRIT OF AMPARO.29
In G.R. No. 184495, petitioners posit as follows:

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5. The Court of Appeals erred in not granting the Interim Relief for Inspection of Places;
6. The Court of Appeals erred in not granting the Interim Relief for Production of Documents;
7. The Court of Appeals erred in not finding that the Police Director Gen. Avelino Razon did not make
extraordinary diligence in investigating the enforced disappearance of the aggrieved parties
8. The Court of Appeals erred in not finding that this was not the command coming from the highest
echelon of powers of the Armed Forces of the Philippines, Philippine Army and the Seventh Infantry
Division of the Philippine Army to enforcibly disappear [sic] the aggrieved parties
9. The Court of Appeals erred in dropping President Gloria Macapagal Arroyo as party respondent in
this case;
10. The Court of Appeals erred in not finding that President Gloria Macapagal Arroyo had command
responsibility in the enforced disappearance and continued detention of the three aggrieved parties
11. The Court of Appeals erred in not finding that the Armed Forces Chief of Staff then Hermogenes
Esperon and the Present Chief of Staff as having command responsibility in the enforced disappearance
and continued detention of the three aggrieved parties30
In G.R. No. 187109, petitioners raise the following issues:
[1] Whether the decision in the Court of Appeals has become final and executory[.]
[2] Whetherthere is a need to file a motion for execution in a Habeas Corpus decision or in an Amparo
decision[.]
[3] Whetheran appeal can stay the decision of a Habeas Corpus [case] [or] an Amparo case[.]31
Essentially, the consolidated petitions present three primary issues, viz: a) whether the testimony of
Raymond Manalo is credible; b) whether the chief of the AFP, the commanding general of the Philippine
Army, as well as the heads of the concerned units had command responsibility over the abduction and
detention of Sherlyn, Karen and Merino; and c) whether there is a need to file a motion for execution to
cause the release of the aggrieved parties.
G.R. Nos. 184461-62
Petitioners Lt. Col. Boac, et al. contend that the appellate court erred in giving full credence to the
testimony of Manalo who could not even accurately describe the structures of Camp Tecson where he
claimed to have been detained along with Sherlyn, Karen and Merino. They underscore that Camp
Tecson is not under the jurisdiction of the 24th Infantry Batallion and that Manalos testimony is
incredible and full of inconsistencies.32
In Secretary of National Defense v. Manalo, 33 an original petition for Prohibition, Injunction and
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Temporary Restraining Order which was treated as a petition under the Amparo Rule, said Rule having
taken effect during the pendency of the petition, the Court ruled on the truthfulness and veracity of the
personal account of Manalo which included his encounter with Sherlyn, Kara and Merino while on
detention. Thus it held:
We affirm the factual findings of the appellate court, largely based on respondent Raymond Manalos
affidavit and testimony, viz:
x x x x.
We reject the claim of petitioners that respondent Raymond Manalos statements were not corroborated
by other independent and credible pieces of evidence. Raymonds affidavit and testimony were
corroborated by the affidavit of respondent Reynaldo Manalo. The testimony and medical reports
prepared by forensic specialist Dr. Molino, and the pictures of the scars left by the physical injuries
inflicted on respondents, also corroborate respondents accounts of the torture they endured while in
detention. Respondent Raymond Manalos familiarity with the facilities in Fort Magsaysay such as the
"DTU," as shown in his testimony and confirmed by Lt. Col. Jimenez to be the "Division Training Unit,"
firms up respondents story that they were detained for some time in said military facility. (citations
omitted; emphasis and underscoring supplied)
On Manalos having allegedly encountered Sherlyn, Karen and Merino while on detention, the Court in
the immediately cited case synthesized his tale as follows:
The next day, Raymonds chains were removed and he was ordered to clean outside the barracks. It was
then he learned that he was in a detachment of the Rangers. There were many soldiers, hundreds of them
were training. He was also ordered to clean inside the barracks. In one of the rooms therein, he met
Sherlyn Cadapan from Laguna. She told him that she was a student of the University of the Philippines
and was abducted in Hagonoy, Bulacan. She confided that she had been subjected to severe torture and
raped. She was crying and longing to go home and be with her parents. During the day, her chains were
removed and she was made to do the laundry.
After a week, Reynaldo was also brought to Camp Tecson. Two days from his arrival, two other
captives, Karen Empeo and Manuel Merino, arrived. Karen and Manuel were put in the room with
"Allan" whose name they later came to know as Donald Caigas, called "master" or "commander" by his
men in the 24th Infantry Battalion. Raymond and Reynaldo were put in the adjoining room. At times,
Raymond and Reynaldo were threatened, and Reynaldo was beaten up. In the daytime, their chains were
removed, but were put back on at night. They were threatened that if they escaped, their families would
all be killed.
On or about October 6, 2006, Hilario arrived in Camp Tecson. He told the detainees that they should be
thankful they were still alive and should continue along their "renewed life." Before the hearing of
November 6 or 8, 2006, respondents were brought to their parents to instruct them not to attend the
hearing. However, their parents had already left for Manila. Respondents were brought back to Camp
Tecson. They stayed in that camp from September 2006 to November 2006, and Raymond was
instructed to continue using the name "Oscar" and holding himself out as a military trainee. He got

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acquainted with soldiers of the 24th Infantry Battalion whose names and descriptions he stated in his
affidavit.
On November 22, 2006, respondents, along with Sherlyn, Karen, and Manuel, were transferred to a
camp of the 24th Infantry Battalion in Limay, Bataan. There were many huts in the camp. They stayed in
that camp until May 8, 2007. Some soldiers of the battalion stayed with them. While there, battalion
soldiers whom Raymond knew as "Mar" and "Billy" beat him up and hit him in the stomach with their
guns. Sherlyn and Karen also suffered enormous torture in the camp. They were all made to clean, cook,
and help in raising livestock.
Raymond recalled that when "Operation Lubog" was launched, Caigas and some other soldiers brought
him and Manuel with them to take and kill all sympathizers of the NPA. They were brought to Barangay
Bayan-bayanan, Bataan where he witnessed the killing of an old man doing kaingin. The soldiers said he
was killed because he had a son who was a member of the NPA and he coddled NPA members in his
house. Another time, in another "Operation Lubog," Raymond was brought to Barangay Orion in a
house where NPA men stayed. When they arrived, only the old man of the house who was sick was
there. They spared him and killed only his son right before Raymonds eyes.
From Limay, Raymond, Reynaldo, Sherlyn, Karen, and Manuel were transferred to Zambales, in a
safehouse near the sea. Caigas and some of his men stayed with them. A retired army soldier was in
charge of the house. Like in Limay, the five detainees were made to do errands and chores. They stayed
in Zambales from May 8 or 9, 2007 until June 2007.
In June 2007, Caigas brought the five back to the camp in Limay. Raymond, Reynaldo, and Manuel
were tasked to bring food to detainees brought to the camp. Raymond narrated what he witnessed and
experienced in the camp, viz:
x x x x.34 (emphasis and underscoring supplied)
The Court takes judicial notice of its Decision in the just cited Secretary of National Defense v. Manalo35
which assessed the account of Manalo to be a candid and forthright narrative of his and his brother
Reynaldos abduction by the military in 2006; and of the corroborative testimonies, in the same case, of
Manalos brother Reynaldo and a forensic specialist, as well as Manalos graphic description of the
detention area. There is thus no compelling reason for the Court, in the present case, to disturb its
appreciation in Manalos testimony. The outright denial of petitioners Lt. Col. Boac, et al. thus crumbles.
Petitioners go on to point out that the assailed Decision of the appellate court is "vague and incongruent
with [its] findings" for, so they contend, while the appellate court referred to the perpetrators as
"misguided and self-righteous civilian and military elements of the 7th Infantry Division," it failed to
identify who these perpetrators are. Moreover, petitioners assert that Donald Caigas and Arnel Enriquez
are not members of the AFP. They furthermore point out that their co-petitioners Generals Esperon,
Tolentino and Palparan have already retired from the service and thus have no more control of any
military camp or base in the country.36
There is nothing vague and/or incongruent about the categorical order of the appellate court for

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petitioners to release Sherlyn, Karen and Merino. In its discourse, the appellate court merely referred to
"a few misguided self-righteous people who resort to the extrajudicial process of neutralizing those who
disagree with the countrys democratic system of government." Nowhere did it specifically refer to the
members of the 7th Infantry Division as the "misguided self-righteous" ones.
Petitioners finally point out that the parents of Sherlyn and Karen do not have the requisite standing to
file the amparo petition on behalf of Merino. They call attention to the fact that in the amparo petition,
the parents of Sherlyn and Karen merely indicated that they were "concerned with Manuel Merino" as
basis for filing the petition on his behalf.37
Section 2 of the Rule on the Writ of Amparo38 provides:
The petition may be filed by the aggrieved party or by any qualified person or entity in the following
order:
(a) Any member of the immediate family, namely: the spouse, children and parents of the aggrieved
party;
(b) Any ascendant, descendant or collateral relative of the aggrieved party within the fourth civil degree
of consanguinity or affinity, in default of those mentioned in the preceding paragraph; or
(c) Any concerned citizen, organization, association or institution, if there is no known member of the
immediate family or relative of the aggrieved party.
Indeed, the parents of Sherlyn and Karen failed to allege that there were no known members of the
immediate family or relatives of Merino. The exclusive and successive order mandated by the abovequoted provision must be followed. The order of priority is not without reason"to prevent the
indiscriminate and groundless filing of petitions for amparo which may even prejudice the right to life,
liberty or security of the aggrieved party."39
The Court notes that the parents of Sherlyn and Karen also filed the petition for habeas corpus on
Merinos behalf. No objection was raised therein for, in a habeas corpus proceeding, any person may
apply for the writ on behalf of the aggrieved party.40
It is thus only with respect to the amparo petition that the parents of Sherlyn and Karen are precluded
from filing the application on Merinos behalf as they are not authorized parties under the Rule.
G.R. No. 184495
Preliminarily, the Court finds the appellate courts dismissal of the petitions against then President
Arroyo well-taken, owing to her immunity from suit at the time the habeas corpus and amparo petitions
were filed.41
Settled is the doctrine that the President, during his tenure of office or actual incumbency, may not be
sued in any civil or criminal case, and there is no need to provide for it in the Constitution or law. It will

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26

degrade the dignity of the high office of the President, the Head of State, if he can be dragged into court
litigations while serving as such. Furthermore, it is important that he be freed from any form of
harassment, hindrance or distraction to enable him to fully attend to the performance of his official
duties and functions. Unlike the legislative and judicial branch, only one constitutes the executive
branch and anything which impairs his usefulness in the discharge of the many great and important
duties imposed upon him by the Constitution necessarily impairs the operation of the Government. x x x
42

Parenthetically, the petitions are bereft of any allegation that then President Arroyo permitted, condoned
or performed any wrongdoing against the three missing persons.
On the issue of whether a military commander may be held liable for the acts of his subordinates in an
amparo proceeding, a brief discussion of the concept of command responsibility and its application
insofar as amparo cases already decided by the Court is in order.
Rubrico v. Macapagal Arroyo43 expounded on the concept of command responsibility as follows:
The evolution of the command responsibility doctrine finds its context in the development of laws of
war and armed combats. According to Fr. Bernas, "command responsibility," in its simplest terms,
means the "responsibility of commanders for crimes committed by subordinate members of the armed
forces or other persons subject to their control in international wars or domestic conflict." In this sense,
command responsibility is properly a form of criminal complicity. The Hague Conventions of 1907
adopted the doctrine of command responsibility, foreshadowing the present-day precept of holding a
superior accountable for the atrocities committed by his subordinates should he be remiss in his duty of
control over them. As then formulated, command responsibility is "an omission mode of individual
criminal liability," whereby the superior is made responsible for crimes committed by his subordinates
for failing to prevent or punish the perpetrators (as opposed to crimes he ordered). (citations omitted;
emphasis in the original; underscoring supplied)44
It bears stressing that command responsibility is properly a form of criminal complicity,45 and thus a
substantive rule that points to criminal or administrative liability.
An amparo proceeding is not criminal in nature nor does it ascertain the criminal liability of individuals
or entities involved. Neither does it partake of a civil or administrative suit. 46 Rather, it is a remedial
measure designed to direct specified courses of action to government agencies to safeguard the
constitutional right to life, liberty and security of aggrieved individuals.47
Thus Razon Jr. v. Tagitis 48 enlightens:
[An amparo proceeding] does nor determine guilt nor pinpoint criminal culpability for the disappearance
[threats thereof or extrajudicial killings]; it determines responsibility, or at least accountability, for the
enforced disappearancefor purposes of imposing the appropriate remedies to address the
disappearance49 (emphasis and underscoring supplied)
Further, Tagitis defines what constitutes "responsibility" and "accountability," viz:

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x x x. Responsibility refers to the extent the actors have been established by substantial evidence to
have participated in whatever way, by action or omission, in an enforced disappearance, as a measure of
the remedies this Court shall craft, among them, the directive to file the appropriate criminal and civil
cases against the responsible parties in the proper courts. Accountability, on the other hand, refers to the
measure of remedies that should be addressed to those who exhibited involvement in the enforced
disappearance without bringing the level of their complicity to the level of responsibility defined above;
or who are imputed with knowledge relating to the enforced disappearance and who carry the burden of
disclosure; or those who carry, but have failed to discharge, the burden of extraordinary diligence in the
investigation of the enforced disappearance. In all these cases, the issuance of the Writ of Amparo is
justified by our primary goal of addressing the disappearance, so that the life of the victim is preserved
and his liberty and security are restored.50 (emphasis in the original; underscoring supplied)
Rubrico categorically denies the application of command responsibility in amparo cases to determine
criminal liability.51 The Court maintains its adherence to this pronouncement as far as amparo cases are
concerned.
Rubrico, however, recognizes a preliminary yet limited application of command responsibility in
amparo cases to instances of determining the responsible or accountable individuals or entities that are
duty-bound to abate any transgression on the life, liberty or security of the aggrieved party.
If command responsibility were to be invoked and applied to these proceedings, it should, at most, be
only to determine the author who, at the first instance, is accountable for, and has the duty to address, the
disappearance and harassments complained of, so as to enable the Court to devise remedial measures
that may be appropriate under the premises to protect rights covered by the writ of amparo. As intimated
earlier, however, the determination should not be pursued to fix criminal liability on respondents
preparatory to criminal prosecution, or as a prelude to administrative disciplinary proceedings under
existing administrative issuances, if there be any.52 (emphasis and underscoring supplied)
In other words, command responsibility may be loosely applied in amparo cases in order to identify
those accountable individuals that have the power to effectively implement whatever processes an
amparo court would issue.53 In such application, the amparo court does not impute criminal
responsibility but merely pinpoint the superiors it considers to be in the best position to protect the rights
of the aggrieved party.
Such identification of the responsible and accountable superiors may well be a preliminary
determination of criminal liability which, of course, is still subject to further investigation by the
appropriate government agency.
Relatedly, the legislature came up with Republic Act No. 985154 (RA 9851) to include command
responsibility as a form of criminal complicity in crimes against international humanitarian law,
genocide and other crimes.55 RA 9851 is thus the substantive law that definitively imputes criminal
liability to those superiors who, despite their position, still fail to take all necessary and reasonable
measures within their power to prevent or repress the commission of illegal acts or to submit these
matters to the competent authorities for investigation and prosecution.

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28

The Court finds that the appellate court erred when it did not specifically name the respondents that it
found to be responsible for the abduction and continued detention of Sherlyn, Karen and Merino. For,
from the records, it appears that the responsible and accountable individuals are Lt. Col. Anotado, Lt.
Mirabelle, Gen. Palparan, Lt. Col. Boac, Arnel Enriquez and Donald Caigas. They should thus be made
to comply with the September 17, 2008 Decision of the appellate court to IMMEDIATELY RELEASE
Sherlyn, Karen and Merino.
The petitions against Generals Esperon, Razon and Tolentino should be dismissed for lack of merit as
there is no showing that they were even remotely accountable and responsible for the abduction and
continued detention of Sherlyn, Karen and Merino.
G.R. No. 187109.
Contrary to the ruling of the appellate court, there is no need to file a motion for execution for an
amparo or habeas corpus decision. Since the right to life, liberty and security of a person is at stake, the
proceedings should not be delayed and execution of any decision thereon must be expedited as soon as
possible since any form of delay, even for a day, may jeopardize the very rights that these writs seek to
immediately protect.
The Solicitor Generals argument that the Rules of Court supplement the Rule on the Writ of Amparo is
misplaced. The Rules of Court only find suppletory application in an amparo proceeding if the Rules
strengthen, rather than weaken, the procedural efficacy of the writ. As it is, the Rule dispenses with
dilatory motions in view of the urgency in securing the life, liberty or security of the aggrieved party.
Suffice it to state that a motion for execution is inconsistent with the extraordinary and expeditious
remedy being offered by an amparo proceeding.
In fine, the appellate court erred in ruling that its directive to immediately release Sherlyn, Karen and
Merino was not automatically executory. For that would defeat the very purpose of having summary
proceedings56 in amparo petitions. Summary proceedings, it bears emphasis, are immediately executory
without prejudice to further appeals that may be taken therefrom.57
WHEREFORE, in light of the foregoing discussions, the Court renders the following judgment:
1. The Petitions in G.R. Nos. 184461-62 and G.R. No. 184495 are DISMISSED. The Decision of the
Court of Appeals dated September 17, 2008 is AFFIRMED with modification in that respondents in
G.R. No. 184495, namely Lt. Col. Felipe Anotado, Lt. Francis Mirabelle Samson, Gen. Jovito Palparan,
Lt. Col. Rogelio Boac, Arnel Enriquez and Donald Caigas are ordered to immediately release Sherlyn
Cadapan, Karen Empeo and Manuel Merino from detention.
The petitions against Generals Esperon, Razon and Tolentino are DISMISSED.
2. The petition in G.R. No. 187109 is GRANTED. The named respondents are directed to forthwith
comply with the September 17, 2008 Decision of the appellate court. Owing to the retirement and/or
reassignment to other places of assignment of some of the respondents herein and in G.R. No. 184495,
the incumbent commanding general of the 7th Infantry Division and the incumbent battalion commander

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of the 24th Infantry Battalion, both of the Philippine Army, are enjoined to fully ensure the release of
Sherlyn Cadapan, Karen Empeo and Manuel Merino from detention.1awphi1
Respondents Lt. Col. Felipe Anotado, Lt. Francis Mirabelle Samson, Gen. Jovito Palparan, Lt. Col.
Rogelio Boac, Arnel Enriquez and Donald Caigas shall remain personally impleaded in the petitions to
answer for any responsibilities and/or accountabilities they may have incurred during their
incumbencies.
Let copies of this Decision and the records of these cases be furnished the Department of Justice (DOJ),
the Philippine National Police (PNP) and the Armed Forces of the Philippines (AFP) for further
investigation to determine the respective criminal and administrative liabilities of respondents.
All the present petitions are REMANDED to the Court of Appeals for appropriate action, directed at
monitoring of the DOJ, PNP and AFP investigations and the validation of their results.
SO ORDERED.
CONCHITA CARPIO MORALES
Associate Justice

Republic of the Philippines


SUPREME COURT
Manila
EN BANC
G.R. No. 191805

November 15, 2011

IN THE MATTER OF THE PETITION FOR THE WRIT OF AMPARO AND HABEAS DATA IN
FAVOR OF NORIEL H. RODRIGUEZ, NORIEL H. RODRIGUEZ, Petitioner,
vs.
GLORIA MACAPAGAL-ARROYO, GEN. VICTOR S. IBRADO, PDG JESUS AME VERSOZA,
LT. GEN. DELFIN BANGIT, MAJ. GEN. NESTOR Z. OCHOA, P/CSUPT. AMETO G.
TOLENTINO, P/SSUPT. JUDE W. SANTOS, COL. REMIGIO M. DE VERA, an officer named

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30

MATUTINA, LT. COL. MINA, CALOG, GEORGE PALACPAC under the name "HARRY,"
ANTONIO CRUZ, ALDWIN "BONG" PASICOLAN and VINCENT CALLAGAN,Respondents.
x------------------------x
G.R. No. 193160
IN THE MATTER OF THE PETITION FOR THE WRIT OF AMPARO AND HABEAS DATA IN
FAVOR OF NORIEL 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,
vs.
NORIEL H. RODRIGUEZ, Respondent.
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).1Both 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 petitioners 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 Macapagal-Arroyo on account of her

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presidential immunity from suit. Similarly, the petition is DISMISSED with respect to respondents
Calog and George Palacpac or Harry for lack of merit.
Petitioners 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 Peoples 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

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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 thepapag 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

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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. Ramils 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 told him that he would finally see his mother. 16
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

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34

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 Rodriguezs 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 Rodriguezs 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,

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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 2009.1wphi1
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
Agents 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
2010,41alleging 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 17th Infantry Battalion at Masin,
Alcala, Cagayan, Brigade Commander Col. de Vera and Battalion Commander Lt. Col. Mina alleged

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that Rodriguez had become one of their assets, as evidenced by the Summary on the Surrender of Noriel
Rodriguez and the latters 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
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 Wilmas 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 petitioners 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 partyrespondent, 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, 1st Lt. Matutina, Lt. Col. Mina,
Cruz, Pasicolan and Callagan filed a Petition for Review on Certiorari, seeking the reversal of the 12

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37

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 peoples 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 persons 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

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38

(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.

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(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. Sanchez68 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 data proceedings, 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 exhibited involvement in the enforced disappearance without bringing the level of their
complicity to the level of responsibility defined above; or who are imputed with knowledge relating to
the enforced disappearance and who carry the burden of disclosure; or those who carry, but have failed
to discharge, the burden of extraordinary diligence in the investigation of the enforced disappearance. In

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all these cases, the issuance of the Writ of Amparo is justified by our primary goal of addressing the
disappearance, so that the life of the victim is preserved and his liberty and security are restored. 70
(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 Rodriguezs
right to life, liberty and security committed by the 17th Infantry 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 latters 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 [Estradas] 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:
"x x x

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

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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 unofficial
conduct.74 (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 presidents 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:

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"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 term.76 (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 responsibility in amparo proceedings
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
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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. Garciaand 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.
xxx

xxx

xxx

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.81 (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 Carpio-Morales 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 ones 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.

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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.http://www.lawphil.net/judjuris/juri2010/feb2010/gr_183871_2010.html - fnt20cm Such limited
treatment, however, is merely in keeping with the statutes 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 high-ranking 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 ponencias hesitant application of the doctrine itself is replete with implications abhorrent
to the rationale behind the Rule on the Writ of Amparo.82 (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

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45

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

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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
officials 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 commanderin-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 Rodriguezs 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 Courts 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

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other pieces of adduced evidence. Thus, even hearsay evidence can be admitted if it satisfies this basic
minimum test.95 (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 Rodriguezs 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.
Rodriguezs 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 1st 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 Rodriguezs abduction was corroborated by Carlos in his Sinumpaang
Salaysay dated 16 September 2009,99 wherein he recounted in detail the circumstances surrounding the
victims 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 17th 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

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- 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
- hip area/lumbar area101
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 illtreatment 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 pinpoint 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 compatible with the alleged date of infliction (sic).103 (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 17th 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 his Sinumpaang 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,
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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 2009104 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) sa kaligtasan ng aming buong
pamilya, lalo na kay Noriel; xxx105
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, hinang-hina 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; xxx107
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

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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
CPP-NPA. However, in the same Return, respondents state that petitioner agreed to become a double
agent for the military and wanted to re-enter the CPP-NPA, so that he could get information regarding
the movement directly from the source. If petitioner was tired of life in the wilderness and desired to
become an ordinary citizen again, it defies logic that he would agree to become an undercover agent and
work alongside soldiers in the mountains or the wilderness he dreads to locate the hideout of his
alleged NPA comrades.108 (Emphasis supplied.)
Furthermore, the appellate court also properly ruled that aside from the abduction, detention and torture
of Rodriguez, respondents, specifically 1st Lt. Matutina, had violated and threatened the formers 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 petitioners
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 petitioners right to security guaranteed by the fundamental law.109 (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, Rodriguezs 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
Rodriguezs rights to life, liberty and security.

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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
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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.115 (Emphasis supplied)
In the instant case, this Court rules that respondents in G.R. No. 191805 are responsible or accountable
for the violation of Rodriguezs 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 Ramirezs 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 petitioners 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 petitioners 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 petitioners right to life, liberty and security by
members of the 17th Infantry Battalion, 17th Infantry Division, Philippine Army.116 (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 Rodriguezs 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
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53

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, 1st Lt. Ryan Matutina,
and Lt. Col. Laurence Mina. The Ombudsman and the DOJ are ordered to submit to this Court the
results of their action within a period of six months from receipt of this Decision.
In the event that herein respondents no longer occupy their respective posts, the directives mandated in
this Decision and in the Court of Appeals are enforceable against the incumbent officials holding the
relevant positions. Failure to comply with the foregoing shall constitute contempt of court.
SO ORDERED.
MARIA LOURDES P. A. SERENO
Associate Justice

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54

Republic of the Philippines


SUPREME COURT
Manila
EN BANC
G.R. No. 186050

December 13, 2011

ARTHUR BALAO, WINSTON BALAO, NONETTE BALAO, JONILYN BALAO-STRUGAR


and BEVERLY LONGID, Petitioners,
vs.
GLORIA MACAPAGAL-ARROYO, EDUARDO ERMITA, GILBERTO TEODORO,
RONALDO PUNO, NORBERTO GONZALES, Gen. ALEXANDER YANO, Gen. JESUS
VERZOSA, Brig. Gen. REYNALDO MAPAGU, Lt. P/Dir. EDGARDO DOROMAL, Maj. Gen.
ISAGANI CACHUELA, Commanding Officer of the AFP-ISU based in Baguio City, PSS
EUGENE MARTIN and several JOHN DOES, Respondents.
x - - - - - - - - - - - - - - - - - - - - - - -x
G.R. No. 186059
PRESIDENT GLORIA MACAPAGAL-ARROYO, SECRETARY EDUARDO ERMITA,
SECRETARY GILBERTO TEODORO, SECRETARY RONALDO PUNO, SECRETARY
NORBERTO GONZALES, GEN. ALEXANDER YANO, P/DGEN. JESUS VERZOSA, BRIG
GEN. REYNALDO MAPAGU, MAJ. GEN. ISAGANI CACHUELA ANDPOL. SR. SUPT.
EUGENE MARTIN, Petitioners,
vs.
ARTHUR BALAO, WINSTON BALAO, NONETTE BALAO, JONILYN BALAO-STRUGAR
and BEVERLY LONGID, Respondents.
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55

DECISION
VILLARAMA, JR., J.:
Before us are consolidated appeals under Section 19 of the Rule on the Writ of Amparofrom the January
19, 2009 Judgment1 of the Regional Trial Court (RTC) of La Trinidad, Benguet, Branch 63, in Special
Proceeding No. 08-AMP-0001, entitled "In the Matter of the Petition for Issuance of Writ of Amparo in
favor of James Balao, Arthur Balao, et al. v. Gloria Macapagal-Arroyo, et al." The RTC granted the
petition for the writ of amparo but denied the prayer for issuance of inspection, production and witness
protection orders.
The Antecedents
On October 8, 2008, Arthur Balao, Winston Balao, Nonette Balao and Jonilyn Balao-Strugar, siblings of
James Balao, and Beverly Longid (petitioners), filed with the RTC of La Trinidad, Benguet a Petition for
the Issuance of a Writ of Amparo2 in favor of James Balao who was abducted by unidentified armed men
on September 17, 2008 in Tomay, La Trinidad, Benguet. Named respondents in the petition were then
President Gloria Macapagal-Arroyo, Executive Secretary Eduardo R. Ermita, Defense Secretary
Gilberto C. Teodoro, Jr.,Interior and Local Government Secretary Ronaldo V. Puno, National Security
Adviser (NSA) Norberto B. Gonzales, Armed Forces of the Philippines (AFP) Chief of Staff Gen.
Alexander B. Yano, Philippine National Police (PNP) Police Director General Jesus A. Verzosa,
Philippine Army (PA) Chief Brig. Gen. Reynaldo B. Mapagu, PNP Criminal Investigation and Detection
Group (PNP-CIDG) Chief Lt. P/Dir. Edgardo Doromal, Northern Luzon Command (NOLCOM)
Commander Maj. Gen. Isagani C. Cachuela, PNP-Cordillera Administrative Region Regional Director
Police Senior Supt. Eugene Gabriel Martin, the Commanding Officer of the AFP Intelligence Service
Unit (AFP-ISU) based in Baguio City and several John Does.
James M. Balao is a Psychology and Economics graduate of the University of the Philippines-Baguio
(UP-Baguio). In 1984, he was among those who founded the Cordillera Peoples Alliance (CPA), a
coalition of non-government organizations (NGOs) working for the cause of indigenous peoples in the
Cordillera Region. As head of CPAs education and research committee, James actively helped in the
training and organization of farmers. He was also the President of Oclupan Clan Association which
undertakes the registration and documentation of clan properties to protect their rights over ancestral
lands. In 1988, while working for the CPA, he was arrested on the charge of violation of the AntiSubversion Law but the case was eventually dismissed for lack of evidence.
The testimonies and statements of eyewitnesses established the following circumstances surrounding
Jamess disappearance:
On September 17, 2008, at around 8:30 in the morning, a man clad in black jacket, black shirt, black
visor and gray pants was standing infront of Saymors3 Store at Tomay, La Trinidad, Benguet. He had a
belt bag and a travelling bag which was placed on a bench. Vicky Bonel was at the time attending to the
said store owned by her brother-in-law while Aniceto G. Dawing, Jr. and his co-employee were
delivering bakery products thereat. A white van then arrived and stopped infront of the store. Five men
in civilian clothes who were carrying firearms alighted from the van and immediately approached the

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man poking their guns on him. They grabbed and handcuffed him. The man was asking why he was
being apprehended. One of the armed men addressed the people witnessing the incident, saying they
were policemen. Another warned that no one should interfere because the man was being arrested for
illegal drugs. Thereafter, they pushed the man inside the van. One of the armed men went back to the
store to get the mans travelling bag. Before leaving the place, one of the armed men was also heard
telling the driver of the van that they are going to proceed to Camp Dangwa (PNP Provincial
Headquarters in La Trinidad, Benguet). The van headed towards the direction of La Trinidad town
proper. The witnesses later identified the man as James Balao after seeing his photograph which
appeared in posters announcing him as missing.
The petition alleged that in May 2008, James reported surveillances on his person to his family,
particularly to his sister Nonette Balao (Nonette), and to CPA Chairperson Beverly Longid (Beverly).
James supposedly observed certain vehicles tailing him and suspiciously parked outside his residence,
one of which was a van with plate number USC 922. He also claimed to have received calls and
messages through his mobile phone informing him that he was under surveillance by the PNP Regional
Office and the AFP-ISU. To prove the surveillance, the informer gave the exact dates he visited his
family, clothes he wore, and dates and times he goes home or visits friends and relatives. Attached to the
petition were the affidavits4 of Nonette and Beverly attesting to Jamess reports of surveillance to his
family and to the CPA.
It was further alleged that on September 17, 2008, around 7:00 in the morning, James sent a text
message to Nonette informing her that he was about to leave his rented house in Fairview Central,
Baguio City and that he was going to their ancestral residence in Pico, La Trinidad, Benguet to do his
laundry. The travel time from Fairview, Baguio City to Pico usually takes only 20 to 45 minutes. Around
8:00 a.m., Nonette, after discovering that James never reached their parents house at Pico, started
contacting their friends and relatives to ask about Jamess whereabouts. No one, however, had any idea
where he was.
Thus, the Balao family, with the assistance of the CPA and other NGOs, tried to locate James. Teams
were formed to follow Jamess route from Fairview, Baguio City to Pico, La Trinidad and people along
the way were asked if they happened to see him. These searches, however, yielded negative results. One
of the teams also went to the office of the AFP-ISU (PA-ISU) in Navy Base and the office of the
Military Intelligence Group in Camp Allen, both in Baguio City, but the personnel in said offices denied
any knowledge on Jamess whereabouts. The family likewise went to Baguio Police Station 7 to report
Jamess disappearance. The report was duly entered on the blotter but there have been no developments
as of the filing of the petition. They also sought the help of the media to announce Jamess
disappearance and wrote several government agencies to inform them of his disappearance and enlist
their help in locating him.
Petitioners, moreover, enumerated in their petition several incidents of harassments and human rights
violations against CPA officers, staff and members.
Contending that there is no plain, speedy or adequate remedy for them to protect Jamess life, liberty and
security, petitioners prayed for the issuance of a writ of amparo ordering the respondents to disclose
where James is detained or confined, to release James, and to cease and desist from further inflicting
harm upon his person. They likewise prayed for (1) an inspection order for the inspection of at least 11
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military and police facilities which have been previously reported as detention centers for activists
abducted by military and police operatives; (2) a production order for all documents that contain
evidence relevant to the petition, particularly the Order of Battle List and any record or dossier
respondents have on James; and (3) a witness protection order.
Petitioners simultaneously filed an Urgent Ex-Parte Motion 5 for the immediate issuance of a writ of
amparo pursuant to Section 6 of the Rule on the Writ of Amparo.
On October 9, 2008, the Writ of Amparo 6 was issued directing respondents to file their verified return
together with their supporting affidavit within five days from receipt of the writ.
Respondents in their Joint Return7 stated: (1) that President Gloria Macapagal-Arroyo is immune from
suit and should thus be dropped as party-respondent; (2) that only Arthur Balao should be named
petitioner and the rest of the other petitioners dropped; (3) that there is no allegation of specific
wrongdoing against respondents that would show their knowledge, involvement or participation in the
abduction of James; (4) that Exec. Sec. Ermita, Sec. Teodoro, Sec. Puno, Sec. Gonzales, Gen. Yano,
Gen. Cachuela, Gen. Mapagu and Gen. Verzosa in their respective affidavits denied having such
participation or knowledge of Jamess abduction, set forth their actions taken in investigating the matter
and undertaking to continue exerting extraordinary diligence in securing the liberty of James and bring
all those responsible for his disappearance to the bar of justice, including military or police personnel
when warranted by the findings of the investigations; (5) that Supt. Martin already ordered an
investigation, came up with interviews of several witnesses, and held a dialogue with the Commander of
the Military Intelligence Group I (MIG1) and the Commanding Officer of the Internal Service UnitInternal Security Group, Philippine Army;and (6) that petitioners themselves did not cooperate with
police authorities in the investigation and neither did they ask the National Bureau of Investigation to
locate James.
Respondents contended that the petition failed to meet the requirement in the Rule on the Writ of
Amparo that claims must be established by substantial evidence considering that: (1) petitioners
allegations do not mention in anyway the manner, whether directly or indirectly, the alleged participation
of respondents in the purported abduction of James; (2) Nonette and Beverly do not have personal
knowledge of the circumstances surrounding the abduction of James, hence, their statements are hearsay
with no probative value; and (3) the allegations in the petition do not show the materiality and relevance
of the places sought to be searched/inspected and documents to be produced, specifically the
requirement that the prayer for an inspection order shall be supported by affidavits or testimonies of
witnesses having personal knowledge of the whereabouts of the aggrieved party.
Respondents further argued that it is the PNP as the law enforcement agency, and not the respondent
military and executive officials, which has the duty to investigate cases of missing persons. At most, the
AFP may inquire on the matters being alluded to them as may be ordered by the proper superior, which
is primarily done for possible court martial proceedings. Hence, their common denials of having any
knowledge, participation or authorization for the alleged disappearance of James Balao. Nonetheless,
respondents executed their affidavits to show the actions they have taken and reports submitted to them
by the proper authorities, as follows:
Executive Secretary Ermitastated that upon receipt of copy of the petition for a writ of amparo, he
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caused the issuance of a letter addressed to the PNP Chief and AFP Chief of Staff for the purpose of
inquiring and establishing the circumstances surrounding the alleged disappearance of James Balao, and
which letters also called for the submission of pertinent reports on the results of the investigation
conducted, if any.8
Secretary Teodoro declared that soon after the promulgation by this Court of the Rule on the Writ of
Amparo, he issued "Policy Directive on the Actions and Defenses Under the Amparo Rule" which
instructed members of the AFP to undertake specific measures even without waiting for the filing of an
amparo petition in court whenever any member of the AFP or any of its commands or units have been
reported or published as being involved in the alleged violation of an individuals right to life, liberty
and security or threat thereof, as a preparatory step in the filing of a verified return as required by A.M.
No. 07-9-12-SC. The AFP was therein also directed to immediately coordinate with the PNP, NBI, DOJ
and other government agencies in the attainment of the desired actions in the event a petition is filed.
Said policy directive was contained in his Memorandum dated October 31, 2007 to the Chief of Staff,
AFP, and there is no reason for him to doubt that the AFP will comply with it insofar as the present
petition for writ of amparo is concerned.9
Secretary Puno confirmed receipt of a copy of the petition and said he will write to the PNP Chief to call
for pertinent reports relative to the circumstances of the alleged "taking" of the person in whose favor
the writ ofamparo was sought. He undertook to make available any report he will receive from the PNP
on the matter.10
NSA Gonzales asserted that as a public officer, he is presumed to have performed his duties in
accordance with law, which presumption remains undisturbed amid gratuitous assumptions and
conclusions in the petition devoid of factual and legal basis. Upon receipt of a copy of the petition, he
caused to be issued letters/communications to the Director General of the National Intelligence
Coordinating Agency, the PNP Chief and the AFP Chief of Staff for the purpose of making active
inquiries and establishing the circumstances of the alleged disappearance insofar as the possible
involvement of military/police personnel is concerned. He undertook to provide the material results of
investigations conducted or to be conducted by the concerned agencies.11
General Yano narrated that prior to the receipt of a copy of the petition, he received a memorandum from
the Department of National Defense transmitting the letter of Bayan Muna Representative Teodoro A.
Casio inquiring about the alleged abduction of James Balao. On the basis of said memo, he directed by
radio message the NOLCOM Commander to conduct a thorough investigation on the matter and to
submit the result thereof to the AFP General Headquarters. This was also done in compliance with the
Policy Directive issued by Defense Secretary Teodoro. He reiterated his October 6, 2008 directive to the
PA Commanding General in another radio message dated October 16, 2008. He undertook to provide the
court with material results of the investigations conducted by the concerned units as soon as the same
are received by Higher Headquarters.12
Lt. Gen. Cachuela said that even prior to the receipt of a copy of the petition, he was already directed by
Higher Headquarters to conduct a thorough investigation on the alleged abduction of James Balao.
Acting on said directive, he in turn directed the 5th Infantry Division, PA to investigate the matter since
the place of the commission of the abduction is within its area of responsibility. He undertook to furnish
the court with a copy of the result of the investigation conducted or to be conducted, as soon as
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NOLCOM receives the same.13


BGen. Mapagu on his part declared that there is nothing in the allegations of the petition that would
show the involvement of the PA in the reported disappearance of James Balao. He claimed that he
immediately called the attention of the "concerned staff" to give some information regarding the case
and directed them to submit a report if they are able to obtain information.14
Pol. Dir. General Verzosa set forth the actions and steps taken by the PNP, particularly the PNP Regional
Office-Cordillera (PRO-COR) headed by PCSupt. Eugene Martin, being the lead PNP unit investigating
the case of James Balao.15
Pol. Chief Supt. Martin recounted that in the afternoon of September 17, 2008, CPA Chairperson
Beverly Longid called up and informed him of the disappearance of James. On September 20, 2008, he
was informed that James was allegedly missing and immediately ordered the Office of the Regional
Intelligence Division (RID) to send flash alarm to all lower units to look for and locate James Balao.
This was followed by a Memorandum with his picture and description. Upon his orders, Police Station 1
of the Baguio City Police Office (BCPO) immediately conducted inquiries at the boarding house of
James at Barangay Fairview, Baguio City. Likewise, he ordered the creation of Task Force Balao to fast
track the investigation of the case. He further instructed the RID to exert all efforts and supervise all
lower units to intensify their investigation and ascertain the whereabouts and other circumstances
surrounding the disappearance of James. Results of the investigations conducted were set forth in his
affidavit. He had constant coordination with the CPA leaders and Balao family who divulged the plate
numbers of vehicles allegedly observed by James prior to his disappearance as conducting surveillance
on his person. Upon verification with the Land Transportation Office, the said vehicles were found to be
registered under the following persons: TNH 787 Narciso Magno of #20 Darasa, Tanauan, Batangas;
and USC 922 G & S Transport Corp. On October 6, 2008, he received information regarding an
abduction incident in Tomay, La Trinidad whereupon he ordered the Provincial Director of Benguet to
conduct an in-depth investigation; said investigation disclosed that the person abducted was indeed
James. On October 8, 2008, Task Force Balao with the help of the CPA and Balao family were able to
convince two witnesses in the abduction incident in Tomay, La Trinidad, Benguet to shed light on the
incident; as a result, cartographic sketches of the suspects were made. In the morning of October 9,
2008, he presided over a dialogue which was attended by the Group Commander, MIG1 and
Commanding Officer of ISU, ISG and PA, for the coordinated efforts to locate James. In the afternoon
of the same day, he met with the family and relatives of James to inform them of initial efforts and
investigation of the case. The Task Force Balao was also able to secure the affidavits of witnesses
Aniceto Dawing and Vicky Bonel, and invited some members of the CPA who retrieved Jamess
personal belongings in Fairview, Baguio City and his companions prior to his disappearance on
September 17, 2008 to appear before the Task Force Balao for some clarifications but none of them
appeared. The case is still under follow-up and continuing investigation to know what really happened,
identify the abductors, determine the real motive for the abduction and file the necessary charges in
court against those responsible.16
Also attached to the Return are the more detailed reports (with attached affidavits of other witnesses)
dated October 14, 2008 and October 6, 2008 submitted by Task Force Balao Commander P/S Supt.
Fortunato B. Albas to the PNP Cordillera Regional Director. Pertinent portions of the two reports read:

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xxxx
2. Inquiries conducted from Mr. Zusimo Unarosa, a resident of Nr 126, Purok 3, Central Fairview,
Baguio City, claimed that on the 1st week of September 2008, he frequently observed two (2)
unidentified male persons aged 50-70 years old and about 51" to 55" in height, bringing boxes from
the house, the contents of which could not be determined. However, averred that these two (2) male
personalities are not familiar in the barangay. He further stated that he had never seen a van conducting
surveillance on the house and have not heard of any incident of kidnapping or abduction in the
community.
3. Mr[.] Anselmo Alukim, a neighbor, residing adjacent to the house of the subject, when interviewed,
averred that he observed some unidentified male and female persons visiting the said house.
4. Interview conducted on Mr[.] Danny Griba, a resident of said barangay averred that James Balao is
not a resident or occupant of the said house and claimed that he only saw the subject last summer and
stated there are five (5) unidentified persons occupying the said house. He further stated that three (3)
male persons aged 40 to 50 years old and a female aged between 20-30 years old goes out during day
time with several boxes and returns at about 6:00 PM to 7:00 PM on board a taxi cab again with some
boxes of undetermined contents.
5. Mrs[.] Corazon Addun, resident of Nr 114, Purok 3, Central Fairview, Baguio City averred that the
subject is not residing in the said place and saw him only once, sometime on April 2008. She further
narrated that a certain Uncle John aged 40 to 50 years old and a male person aged 20 to 30 are among
the occupants of said house. Accordingly, on September 21, 2008, Uncle John went to the house of Mrs.
Addun and over a cup of coffee told her that he will be going to Sagada, Mountain Province purposely
to locate a missing colleague who was sent there. Accordingly[,] he received a phone call that his
missing colleague (James Balao) did not reach the municipality and reported missing. After that short
talk, she never saw Uncle John again. Additionally, she did not notice any vehicle conducting
surveillance therein and any unusual incidents that transpired in said place.
xxxx
7. This office has likewise coordinated with MIG-1 and ISU, ISG, PA but both offices denied any
knowledge on the alleged abduction of James Balao.
8. It was found out that it was SPO4 Genero Rosal, residing within the vicinity, who followed-up the
incident because it was reported to him by his neighbors. That after he learned about [James abduction],
he contacted PDEA, La Trinidad PS, RID ad Intel BPPO to verify if they had an operation in Tomay, La
Trinidad but all of them answered negative.
x x x x17
xxxx
3. A photocopy of the photograph of James Balao was presented to the witnesses wherein they

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confirmed that the picture is the same person who was arrested and handcuffed. Another witness
divulged that prior to the arrest of the person in the picture/photograph, a red motorcycle with two (2)
male riders allegedly conducted surveillance along the highway about ten (10) meters away from the
place where the victim was picked-up. Minutes later, a white Mitsubishi Adventure arrived and took the
victim inside the car. The motorcycle riding in tandem followed the Mitsubushi Adventure en route to
Camp Dangwa, La Trinidad, Benguet. Another witness overheard one of the abductors instructing the
driver to quote "pare sa Camp Dangwa tayo."
4. Follow[-]up investigation resulted in the identification of a certain "KULOT" who also witnessed the
alleged abduction. However, he was hesitant to talk and instead pointed to the driver of the delivery van
of Helens Bread. At about 8:30 AM of October 9, 2008, Aniceto Dawing Jr[.] y Gano, the driver of the
delivery van of Helens Bread, surfaced and gave his statements on what he witnessed on the alleged
abduction.
5. On October 12, 2008, one Vicky Bonel y Felipe, 19 years old, single, native of Atok, Benguet,
resident of Tomay, LTB and store keeper of Saymor[s] Store appeared before the office of Benguet PPO
and gave her sworn statement on the alleged abduction. A cartographic sketch was made on the person
who identified himself as policeman. She further stated that it was when while she was tending her
brother-in-laws store, gun-wielding men, of about six or more, handcuffed and shove the victim inside
their vehicle. She recalled that she can recognize the abductors if she can see them again.
6. Another witness stated that she was preparing her merchandise in the waiting shed of Lower Tomay
when she noticed a parked motorcycle beside the elementary school at about 7:00 AM of September 17,
2008. The rider of the bike was suspiciously scouring the area and kept on calling someone from his
cellular phone before the abduction was made.
7. Baguio City Police Office conducted follow-up investigation and were able to secure affidavit of
Florence Luken y Mayames, 47 years old, married, and a resident of 135 Central Fairview averred that
James Balao together with a certain Uncle John about 65-75 years old, about 54" in height and a certain
Rene about 30-35 years old and stands 55", were her neighbors for almost one year. She further stated
that James Balao and company do not mingle with their neighbors and only one person is usually left
behind while James and Rene goes out at 6:00 or 7:00 AM and goes back at around 6:00 or 7:00 PM.
She further averred that she did not notice any van or any kind of vehicle parked along the roadside
infront of any residence not his neighbors nor any person or persons observing the occupants of the said
house. Accordingly, at around 1:00 PM of September 26, 2008, a closed van (Ca[n]ter) with unknown
plate number was seen parked infront of the said house and more or less (10) unidentified male
person[s] aging from 20-23 and an unidentified female entered the alleged rented house of James Balao
and took some table, chairs and cabinets then left immediately to unknown destination.
8. Mrs[.] Mina Cabati Serdan the owner of the house being rented by James Balao averred that
sometime May of 2007, a certain Mr[.] June, a realtor agent, recommended to her that a certain James
Balao will rent the house for one (1) year term with an agreed monthly rent of fifteen thousand pesos
(P15,000.00). She stated that James Balao had extended his stay for almost 4 months. On the last week
of August 2008, Mrs[.] Serdan called up James Balao through phone to inform him that she will
terminate his stay at the rented house on September 30, 2008. Mrs[.] Serdan further stated that
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[she]visited the rented house only twice and that was the only time she saw James Balao with an
unidentified companions.
That she only discovered that James Balao was missing when a certain Carol informed her that he was
missing. [Sh]e further stated that she visited her house and found out that the said occupants have
already left on September 26, 2008 and discovered that all personal belongings of the occupants have
already been taken out by the relatives.
xxxx
VI. ACTIONS TAKEN:
1. That a composite team "TASK FORCE BALAO" from this office and the Regional Headquarters
headed by [P/S SUPT] FORTUNATO BASCO ALBAS was formed.
2. That the composite team of investigators conducted ocular inspection on the area.
3. On October 8, 2008, two (2) witnesses namely: Marjore Domingo Hipolito and Jenny Lynn Malondon
Valdez gave their sworn statements and cartographic sketch of one of the abductors.
4. On the morning of October 9, 2008, a dialogue was presided by RD, PRO-COR and attended by the
Group Commander, MIG1 and Commanding Officer of ISU, SG, PA. Both commanders denied the
accusations against them.
5. In the afternoon of the same day, a meeting with the family and relatives of James Balao was again
presided by RD, PRO-COR wherein the results of the initial efforts and investigation were given to the
family. He also reported the surfacing of another two (2) witnesses who described the suspect who
handcuffed James Balao.
6. PRO-Cordillera wrote a letter to the Cordillera Peoples Alliance requesting them to present Uncle
John, Rene and his other companions who are then residing in the same boarding house including all his
companions on September 17, 2008 and prior to his disappearance.
REMARKS:
Case is still under follow-up investigation to identify the alleged abductors to determine the real motive
of the abduction and to file necessary charges against them in court.18
During the hearing, the affidavits and testimonies of the following witnesses were presented by
petitioners:
Aniceto Dawing19 testified that on September 17, 2008, around 8:00 in the morning, while he was
delivering bread at Saymors Store in Tomay, La Trinidad, Benguet, a white van stopped infront of them
and five armed men alighted. The armed men, who introduced themselves as policemen in Filipino, held
and pointed a gun at one male person. The armed men told the male person that he was being
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apprehended for illegal drugs. They then let the male person board the vehicle and informed him that
they will proceed to Camp Dangwa. Dawing admitted that he did not know that it was James whom he
saw that time and came to know only of his identity when he saw a poster bearing Jamess photograph.
On cross-examination, he stated that the white van did not have any markings that it was a police vehicle
and that the armed men were in civilian clothes and did not wear any police badges or identification
cards. He just assumed that they were policemen because of their posture and haircut and because they
introduced themselves as such.
Anvil Lumbag stated in his affidavit20 that he was also at Saymors Store in the morning of September
17, 2008 to buy chicken. He said that a ToyotaRevo stopped infront of the store from where four men
alighted. The men handcuffed a man who was standing infront of the store and uttered "Walang
makikialam, drugs kaso nito" while pointing a gun at the said man. Then, they forced the man to board
the Revo. Before the Revo fled, Lumbag heard one of the men say that they will be going to Camp
Dangwa. Lumbags affidavit, however, did not mention if it was James who was forcibly taken by the
armed men.
Beverly Longid21 testified that she got to know James when she was a member of the CPA youth
organization in her student days. Every time James will have an activity that is CPA-related, he would
coordinate with Beverly, she being the CPA chair. She also testified that prior to his disappearance, the
last time she talked with James was in July or August of 2008 when he reported surveillances on his
person by the PNP and the AFP. In her affidavit, she alleged that James reported to her several vehicles
tailing him, one of which was a green van with plate number USC 922, the same plate number she had
seen at the Intelligence Security Unit in Navy Base, Baguio City, and which was attached to a silver grey
van.
Beverly admitted that at the time of the alleged abduction, she was in Baguio City, at the Office of the
Cordillera Peoples Legal Center and that she only came to know that James was missing in the
afternoon of September 18, 2008. She also confirmed that they met with Pol. Supt. Martin to seek
assistance regarding Jamess disappearance.
Nonette Balao22 testified that she was at her bakeshop located in Km. 4, La Trinidad, Benguet in the
morning of September 17, 2008. At around 6:30 a.m., she received a text message from James saying
that he will be going home to their ancestral home to do some laundry. Thirty minutes later, she received
another text message from James saying that he was already leaving his place in Fairview, Baguio City.
When around 8:00 a.m. James had not yet arrived at their ancestral home, she got worried. She texted
him but failed to get a reply, so she tried to call him. His phone, however, had already been turned off.
She then called the CPA office to check if James was there. She was told that he was not there so she
went to Jamess house in Fairview at around 9:00 a.m. Jamess housemates, however, told her that he
left at 7:00 a.m.
Nonette also testified that they only reported Jamess disappearance to the police on September 20, 2008
because they thought that it was necessary that a person be missing for at least 48 hours before the
disappearance could be reported. They went to Sub-Station Police Precinct No. 1 in Baguio and to the
police precinct in La Trinidad to report the matter. They also went to Camp Dangwa to see if James was
there.

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Nonette claimed that she became worried because James never switched off his mobile phone and since
he already texted her that he was coming home, he could have texted again if there was a change of
plans. Also, James had told them since April 2008 that he had been under surveillance. She does not
know why James went to Tomay, La Trinidad.
Samuel Anongos stated in his affidavit23 that he is a member of the Education Commission of the CPA.
He claimed that when they conducted trainings and educational discussions on mining education in
Abra, members of the AFP harassed the community and committed various human rights violations. The
AFP also allegedly held community meetings where they said that the CPA is part of the New Peoples
Army. Attached to Anongoss affidavit is a copy of a paper that the AFP was allegedly distributing. It
shows the organizational structure of the Communist Party of the Philippines-New Peoples Army (CPPNPA) wherein CPA was identified as one of the organizations under the National Democratic Front
(NDF).24
RTC Ruling
On January 19, 2009, the RTC issued the assailed judgment, disposing as follows:
IN VIEW OF ALL THE FOREGOING, judgment is hereby rendered:
ISSUE a Writ of Amparo Ordering the respondents to (a) disclose where James Balao is detained or
confined, (b) to release James Balao considering his unlawful detention since his abduction and (c) to
cease and desist from further inflicting harm upon his person; and
DENY the issuance of INSPECTION ORDER, PRODUCTION ORDER and WITNESS PROTECTION
ORDER for failure of herein Petitioners to comply with the stringent provisions on the Rule on the Writ
of Amparo and substantiate the same.25
In denying respondents prayer that President Arroyo be dropped as party-respondent, the RTC held that
a petition for a writ of amparo is not "by any stretch of imagination a niggling[,] vexing or annoying
court case"26from which she should be shielded. The RTC ruled that said petition is nothing more than a
tool to aid the president to guarantee that laws on human rights are devotedly and staunchly carried out.
It added that those who complain against naming the president as party-respondent are only those who
"either do not understand what the Writ of Amparo is all about or who do not want to aid Her Excellency
in her duty to supervise and control the machinery of government."27
In upholding the standing of Jamess siblings and Beverly to file the petition, the RTC held that what
Section 2 of the Rule on the Writ of Amparorules out is the right to file similar petitions, meaning there
could be no successive petitions for the issuance of a writ of amparo for the same party.
The RTC further held that "more likely than not," the motive for Jamess disappearance is his
activist/political leanings and that Jamess case is one of an enforced disappearance as defined under the
Rule on the Writ of Amparo. In so ruling, the RTC considered (1) the several incidents of harassment
mentioned in Beverlys testimony and enumerated in the petition; and (2) the references in the petition to
the CPA as a front for the CPP-NPA.

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The RTC likewise ruled that the government unmistakably violated Jamess right to security of person. It
found the investigation conducted by respondents as very limited, superficial and one-sided. The police
and military thus miserably failed to conduct an effective investigation of Jamess abduction as revealed
by the investigation report of respondents own witnesses, Supt. Martin and P/S Supt. Fortunato Basco
Albas, the Commander of Task Force Balao. It further noted that respondents did not investigate the
military officials believed to be behind the abduction as said military officials were merely invited to a
dialogue and there was no investigation made in Camp Dangwa where the abductors were believed to
have taken James as narrated by the witnesses. Moreover, the RTC observed that despite the undertaking
of respondents to investigate the abduction and provide results thereof, four months have passed but
petitioners have not been furnished reports regarding the investigation.
As to the denial of the interim reliefs, the RTC stated that the stringent provisions of the rules were not
complied with and granting said reliefs might violate respondents constitutional rights and jeopardize
State security.
Both parties appealed to this Court.
The Consolidated Petitions
Petitioners, in G.R. No. 186050, question the RTCs denial of the interim reliefs.
Respondents, on the other hand, assail in their petition in G.R. No. 186059, the issuance of the writ of
amparo. They raise the following arguments:
I
THE TRIAL COURTS JUDGMENT ORDERING RESPONDENT-PETITIONERS TO: (A)
DISCLOSE WHERE JAMES BALAO IS DETAINED AND CONFINED; (B) TO RELEASE JAMES
BALAO CONSIDERING HIS UNLAWFUL DETENTION SINCE HIS "ABDUCTION" AND (C) TO
CEASE AND DESIST FROM FURTHER INFLICTING HARM UPON HIS PERSON IS BASED
PURELY ON CONJECTURES, SURMISES AND HEARSAY EVIDENCE; HENCE, IT MUST BE
SET ASIDE.
II
RESPONDENT-PETITIONERS HAD PROVEN THAT THEY OBSERVED EXTRAORDINARY
DILIGENCE AS REQUIRED BY APPLICABLE LAWS, RULES AND REGULATIONS IN THE
PERFORMANCE OF THEIR OFFICIAL DUTIES.
III
THE FACTUAL CIRCUMSTANCES AND THE EVIDENCE PRESENTED IN THE MANALO CASE
ARE TOTALLY DIFFERENT FROM THE CASE AT BAR; HENCE, THE TRIAL COURT GROSSLY
ERRED IN APPLYING THE RULING THEREIN TO THE CASE AT BAR.

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66

IV
THE TRIAL COURT CORRECTLY DENIED PETITIONER-RESPONDENTS PRAYER FOR THE
ISSUANCE OF AN INSPECTION ORDER, PRODUCTION ORDER AND A WITNESS
PROTECTION ORDER.28
Our Ruling
The Rule on the Writ of Amparo was promulgated on October 24, 2007 amidst rising incidence of
"extralegal killings" and "enforced disappearances." It was formulated in the exercise of this Courts
expanded rule-making power for the protection and enforcement of constitutional rights enshrined in the
1987 Constitution, albeit limited to these two situations. "Extralegal killings" refer to killings committed
without due process of law, i.e., without legal safeguards or judicial proceedings. 29 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 person outside the protection of law.30
Section 18 of the Amparo Rule provides:
SEC. 18. Judgment. - The court shall render judgment within ten (10) days from the time the petition is
submitted for decision. If the allegations in the petition are proven by substantial evidence, the court
shall grant the privilege of the writ and such reliefs as may be proper and appropriate; otherwise, the
privilege shall be denied. (Emphasis supplied.)
The threshold issue in this case is whether the totality of evidence satisfies the degree of proof required
by the Amparo Rule to establish an enforced disappearance.
In granting the privilege of the writ of amparo, the trial court ratiocinated:
On record is evidence pointing to the more likely than not motive for James Balaos disappearance his
activist/political leanings. This is shown by the several incidents relating to harassments of activists as
mentioned in the unrebutted testimony of Beverly Longid and the enumeration made in par. 48 (a) to
(cc) of the petition. There were also references in the petitions pars. 52 et. seq. to the CPA (of which
James Balao was an active staff) as a front organization of the Communist Party of the Philippines-New
Peoples Army. More likely than not he was not taken to parts unknown for reasons other than his
involvement in the CPA, that is, politically-motivated. The Court considers these facts enough
circumstances to establish substantial evidence of an enforced disappearance as defined under the Rule
on the Writ of Amparo. For after all, substantial evidence requires nothing greater than "more likely than
not" degree of proof.31 (Emphasis supplied.)
The trial court gave considerable weight to the discussion in the petition of briefing papers supposedly
obtained from the AFP (Oplan Bantay-Laya implemented since 2001) indicating that the anti-insurgency
campaign of the military under the administration of President Arroyo included targeting of identified

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67

legal organizations under the NDF, which included the CPA, and their members, as "enemies of the
state." The petition cited other documents confirming such "all-out war" policy which resulted in the
prevalence of extrajudicial killings: namely, the published reports of the Melo Commission and the
UNHRCs Special Rapporteur on Extrajudicial Summary or Arbitrary Executions, Mr. Philip Alston.
The petition also enumerated previously documented cases of extralegal killings of activists belonging
to militant groups, including CPA leaders and workers, almost all of which have been preceded by
surveillance by military or police agents and acts of harassment. Consequently, petitioners postulated
that the surveillance on James and his subsequent abduction are interconnected with the harassments,
surveillance, threats and political assassination of other members and officers of CPA which is his
organization.
We hold that such documented practice of targeting activists in the militarys counter-insurgency
program by itself does not fulfill the evidentiary standard provided in the Amparo Rule to establish an
enforced disappearance.
In the case of Roxas v. Macapagal-Arroyo,32 the Court noted that the similarity between the
circumstances attending a particular case of abduction with those surrounding previous instances of
enforced disappearances does not, necessarily, carry sufficient weight to prove that the government
orchestrated such abduction. Accordingly, the trial court in this case cannot simply infer government
involvement in the abduction of James from past similar incidents in which the victims also worked or
affiliated with the CPA and other left-leaning groups.
The petition further premised government complicity in the abduction of James on the very positions
held by the respondents, stating that -The abduction of James Balao can only be attributed to the Respondents who have command
responsibility of all the actions of their subordinates and who are the primary persons in the
implementation of the governments all out war policy.33 (Emphasis supplied.)
The Court in Rubrico v. Macapagal-Arroyo 34 had the occasion to expound on the doctrine of command
responsibility and why it has little bearing, if at all, in amparo proceedings.
The evolution of the command responsibility doctrine finds its context in the development of laws of
war and armed combats. According to Fr. Bernas, "command responsibility," in its simplest terms,
means the "responsibility of commanders for crimes committed by subordinate members of the armed
forces or other persons subject to their control in international wars or domestic conflict." In this sense,
command responsibility is properly a form of criminal complicity. The Hague Conventions of 1907
adopted the doctrine of command responsibility, foreshadowing the present-day precept of holding a
superior accountable for the atrocities committed by his subordinates should he be remiss in his duty of
control over them. As then formulated, command responsibility is "an omission mode of individual
criminal liability," whereby the superior is made responsible for crimes committed by his subordinates
for failing to prevent or punish the perpetrators (as opposed to crimes he ordered).
The doctrine has recently been codified in the Rome Statute of the International Criminal Court (ICC) to
which the Philippines is signatory. Sec. 28 of the Statute imposes individual responsibility on military

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68

commanders for crimes committed by forces under their control. The country is, however, not yet
formally bound by the terms and provisions embodied in this treaty-statute, since the Senate has yet to
extend concurrence in its ratification.
While there are several pending bills on command responsibility, there is still no Philippine law that
provides for criminal liability under that doctrine.
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. Still, it would be inappropriate to apply to these proceedings the doctrine of command
responsibility, as the CA seemed to have done, as a form of criminal complicity through omission, for
individual respondents criminal liability, if there be any, is beyond the reach of amparo. In other words,
the Court does not rule in such proceedings on any issue of criminal culpability, even if incidentally a
crime or an infraction of an administrative rule may have been committed. As the Court stressed in
Secretary of National Defense v. Manalo (Manalo), the writ of amparo was conceived to provide
expeditious and effective procedural relief against violations or threats of violation of the basic rights to
life, liberty, and security of persons; the corresponding amparo suit, however, "is not an action to
determine criminal guilt requiring proof beyond reasonable doubt x x x or administrative liability
requiring substantial evidence that will require full and exhaustive proceedings." Of the same tenor, and
by way of expounding on the nature and role of amparo, is what the Court said in Razon v. Tagitis:
It does not determine guilt nor pinpoint criminal culpability for the disappearance [threats thereof or
extrajudicial killings]; it determines responsibility, or at least accountability, for the enforced
disappearance [threats thereof or extrajudicial killings] for purposes of imposing the appropriate
remedies to address the disappearance [or extrajudicial killings].
xxxx
As the law now stands, extrajudicial killings and enforced disappearances in this jurisdiction are not
crimes penalized separately from the component criminal acts undertaken to carry out these killings and
enforced disappearances and are now penalized under the Revised Penal Code and special laws. The
simple reason is that the Legislature has not spoken on the matter; the determination of what acts are
criminal x x x are matters of substantive law that only the Legislature has the power to enact. x x x35
Subsequently, we have clarified that the inapplicability of the doctrine of command responsibility in an
amparo proceeding does not, by any measure, preclude impleading military or police commanders on
the ground that the complained acts in the petition were committed with their direct or indirect
acquiescence. Commanders may therefore be impleadednot actually on the basis of command
responsibilitybut rather on the ground of their responsibility, or at least accountability.36
In Razon, Jr. v. Tagitis,37 the Court defined responsibility and accountability as these terms are applied to
amparo proceedings, as follows:

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69

x x x Responsibility refers to the extent the actors have been established by substantial evidence to have
participated in whatever way, by action or omission, in an enforced disappearance, as a measure of the
remedies this Court shall craft, among them, the directive to file the appropriate criminal and civil cases
against the responsible parties in the proper courts. Accountability, on the other hand, refers to the
measure of remedies that should be addressed to those who exhibited involvement in the enforced
disappearance without bringing the level of their complicity to the level of responsibility defined above;
or who are imputed with knowledge relating to the enforced disappearance and who carry the burden of
disclosure; or those who carry, but have failed to discharge, the burden of extraordinary diligence in the
investigation of the enforced disappearance. x x x38(Emphasis supplied.)
Assessing the evidence on record, we find that the participation in any manner of military and police
authorities in the abduction of James has not been adequately proven. The identities of the abductors
have not been established, much less their link to any military or police unit. There is likewise no
concrete evidence indicating that James is being held or detained upon orders of or with acquiescence of
government agents. Consequently, the trial court erred in granting amparo reliefs by ordering the
respondent officials (1) to disclose where James Balao is detained or confined, (2) to release him from
such detention or confinement, and (3) to cease and desist from further inflicting harm upon his person.
Such pronouncement of responsibility on the part of public respondents cannot be made given the
insufficiency of evidence.39 However, we agree with the trial court in finding that the actions taken by
respondent officials are "very limited, superficial and one-sided." Its candid and forthright observations
on the efforts exerted by the respondents are borne by the evidence on record, thus:
x x x the violation of the right to security as protection by the government is unmistakable. The police
and the military miserably failed in conducting an effective investigation of James Balaos abduction as
revealed by the investigation report of respondents own witnesses Honorable Chief Superintendent
Eugene Martin and Honorable Senior Superintendent Fortunato Albas. The investigation was to use
the words in The Secretary of National Defense, et. al., v. Manalo et. al. "verylimited, superficial and
one-sided."
The actions taken were simply these: (a) organization of the "Task Force Balao"; (b) conduct of ocular
inspection at the place of abduction; (c) taking of sworn statements of civilian witnesses, whose
testimonies did not prove much as shown by the continued disappearance of James Balao; (d) dialogue
with implicated military officials as well as family members and friends of James Balao; and (e) writing
of letter to the CPA. The Court does not want to second-guess police protocols in investigation but
surely some things are amiss where the investigation DID NOT INVESTIGATE the military officials
believed to be behind the abduction as they were merely invited to a dialogue and where the
investigation DID NOT LEAD to Camp Dangwa where the abductors were supposed to have proceeded
as narrated by the witnesses. To the mind of this Court, there is a seeming prejudice in the process of
investigation to pin suspects who are not connected with the military establishments. By any measure,
this cannot be a thorough and good faith investigation but one that falls short of that required by the Writ
of Amparo.40
Respondents reiterate that they did their job the best they could and fault the petitioners instead for their
non-cooperation which caused delay in the investigation. They particularly blamed Beverly who failed
to attend the October 15, 2008 invitation to appear before the investigators and shed light on Jamess
disappearance.

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70

We are not persuaded.


First, the Task Force Balao had acknowledged the fact that Pol. Chief Supt. Martin was already in
constant coordination with the Balao family and CPA, and hence the investigators could have readily
obtained whatever information they needed from Beverly. Pol. Chief Supt. Martin even mentioned in his
affidavit that Task Force Balao was able to secure the testimonies of two eyewitnesses with the help of
Beverly and the Balao family, and that as a result cartographic sketches were made of some suspects. 41
Moreover, Beverly had explained during the cross-examination conducted by Associate Solicitor
Paderanga that she was at the time coordinating with national and local agencies even as the police
investigation was ongoing.42 There is nothing wrong with petitioners simultaneous recourse to other
legal avenues to gain public attention for a possible enforced disappearance case involving their very
own colleague. Respondents should even commend such initiative that will encourage those who may
have any information on the identities and whereabouts of Jamess abductors to help the PNP in its
investigation.
Assuming there was reluctance on the part of the Balao family and CPA to submit Jamess relatives or
colleagues for questioning by agents of the PNP and AFP, they cannot be faulted for such stance owing
to the militarys perception of their organization as a communist front: ergo, enemies of the State who
may be targeted for liquidation. But more important, such non-cooperation provides no excuse for
respondents incomplete and one-sided investigations. As we held in Rubrico v. Macapagal-Arroyo43 :
As regards P/Supt. Romero and P/Insp. Gomez, the Court is more than satisfied that they have no direct
or indirect hand in the alleged enforced disappearance of Lourdes and the threats against her daughters.
As police officers, though, theirs was the duty to thoroughly investigate the abduction of Lourdes, a duty
that would include looking into the cause, manner, and like details of the disappearance; identifying
witnesses and obtaining statements from them; and following evidentiary leads, such as the Toyota Revo
vehicle with plate number XRR 428, and securing and preserving evidence related to the abduction and
the threats that may aid in the prosecution of the person/s responsible. As we said in Manalo, the right to
security, as a guarantee of protection by the government, is breached by the superficial and one-sided
hence, ineffectiveinvestigation by the military or the police of reported cases under their jurisdiction.
As found by the CA, the local police stations concerned, including P/Supt. Roquero and P/Insp. Gomez,
did conduct a preliminary fact-finding on petitioners complaint. They could not, however, make any
headway, owing to what was perceived to be the refusal of Lourdes, her family, and her witnesses to
cooperate. Petitioners counsel, Atty. Rex J.M.A. Fernandez, provided a plausible explanation for his
clients and their witnesses attitude, "[They] do not trust the government agencies to protect them.The
difficulty arising from a situation where the party whose complicity in extrajudicial killing or enforced
disappearance, as the case may be, is alleged to be the same party who investigates it is understandable,
though.
The seeming reluctance on the part of the Rubricos or their witnesses to cooperate ought not to pose a
hindrance to the police in pursuing, on its own initiative, the investigation in question to its natural end.
To repeat what the Court said in Manalo, the right to security of persons is a guarantee of the protection
of ones right by the government. And this protection includes conducting effective investigations of
extra-legal killings, enforced disappearances, or threats of the same kind. The nature and importance of
an investigation are captured in theVelasquez Rodriguez case, in which the Inter-American Court of
Human Rights pronounced:

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"[The duty to investigate] must be undertaken in a serious manner and not as a mere formality
preordained to be ineffective. An investigation must have an objective and be assumed by the State as its
own legal duty, not a step taken by private interests that depends upon the initiative of the victim
or his family or upon offer of proof, without an effective search for the truth by the government." 44
(Emphasis supplied.)1avvphi1
Indeed, why zero in on Jamess own kin and colleagues when independent eyewitnesses already
provided firsthand accounts of the incident, as well as descriptions of the abductors? With the
cartographic sketches having been made from interviews and statements of witnesses, the police
investigators could have taken proper steps to establish the personal identities of said suspects and yet
this was not done, the police investigators not even lifting a finger to ascertain whether the cartographic
sketches would match with any enlisted personnel of AFP and PNP, or their civilian agents/assets. As to
the vehicles, the plate numbers of which have earlier been disclosed by James to his family and the CPA
as used in conducting surveillance on him prior to his abduction, the military merely denied having a
vehicle with such plate number on their property list despite the fact that the same plate number (USC
922) was sighted attached to a car which was parked at the PA-ISU compound in Navy Base, Baguio
City. As to the other plate number given by James (TNH 787), while the police investigators were able
to verify the name and address of the registered owner of the vehicle, there is no showing that said
owner had been investigated or that efforts had been made to locate the said vehicle. Respondents
insistence that the CPA produce the alleged companions of James in his rented residence for
investigation by the PNP team, while keeping silent as to why the police investigators had not actively
pursued those evidentiary leads provided by eyewitnessesand the Balao family, only reinforce the trial
courts observation that the investigators are seemingly intent on building up a case against other
persons so as to deflect any suspicion of military or police involvement in James Balaos disappearance.
In view of the foregoing evidentiary gaps, respondents clearly failed to discharge their burden of
extraordinary diligence in the investigation of Jamess abduction. Such ineffective investigation extant in
the records of this case prevents us from completely exonerating the respondents from allegations of
accountability for James disappearance. The reports submitted by the PNP Regional Office, Task Force
Balao and Baguio City Police Station do not contain meaningful results or details on the depth and
extent of the investigation made. In Razon, Jr. v. Tagitis, the Court observed that such reports of top
police officials indicating the personnel and units they directed to investigate can never constitute
exhaustive and meaningful investigation, or equal detailed investigative reports of the activities
undertaken to search for the victim.45 In the same case we stressed that the standard of diligence required
the duty of public officials and employees to observe extraordinary diligence called for extraordinary
measures expected in the protection of constitutional rights and in the consequent handling and
investigation of extra-judicial killings and enforced disappearance cases.
As to the matter of dropping President Arroyo as party-respondent, though not raised in the petitions, we
hold that the trial court clearly erred in holding that presidential immunity cannot be properly invoked in
an amparo proceeding. As president, then President Arroyo was enjoying immunity from suit when the
petition for a writ of amparo was filed. Moreover, the petition is bereft of any allegation as to what
specific presidential act or omission violated or threatened to violate petitioners protected rights.46
In order to effectively address thru the amparo remedy the violations of the constitutional rights to
liberty and security of James who remains missing to date, the Court deems it appropriate to refer this

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72

case back to the trial court for further investigation by the PNP and CIDG and monitoring of their
investigative activities that complies with the standard of diligence required by the Amparo Rule.
Section 24 of Republic Act No. 6975, otherwise known as the "PNP Law" 47 specifies the PNP as the
governmental office with the mandate to "[i]nvestigate and prevent crimes, effect the arrest of criminal
offenders, bring offenders to justice and assist in their prosecution." The trial court should further
validate the results of such investigations and actions through hearings it may deem necessary to
conduct.
Lastly, on the denial of the prayer for interim reliefs under the Amparo Rule.
An inspection order is an interim relief designed to give support or strengthen the claim of a petitioner in
an amparo petition, in order to aid the court before making a decision. 48 A basic requirement before an
amparo court may grant an inspection order is that the place to be inspected is reasonably determinable
from the allegations of the party seeking the order.49 In this case, the issuance of inspection order was
properly denied since the petitioners specified several military and police establishments based merely
on the allegation that the testimonies of victims and witnesses in previous incidents of similar
abductions involving activists disclosed that those premises were used as detention centers. In the same
vein, the prayer for issuance of a production order was predicated on petitioners bare allegation that it
obtained confidential information from an unidentified military source, that the name of James was
included in the so-called Order of Battle. Indeed, the trial court could not have sanctioned any "fishing
expedition" by precipitate issuance of inspection and production orders on the basis of insufficient
claims of one party.
Nonetheless, the trial court is not precluded, as further evidence warrants, to grant the above interim
reliefs to aid it in making a decision upon evaluation of the actions taken by the respondents under the
norm of extraordinary diligence.
WHEREFORE, the petitions in G.R. Nos. 186050 and 186059 are PARTLY GRANTED. The Judgment
dated January 19, 2009 of the Regional Trial Court of La Trinidad, Benguet, Branch 63, in Special
Proceeding No. 08-AMP-0001 is MODIFIED as follows:
1) REVERSING the grant of the privilege of the writ of amparo;
2) AFFIRMING the denial of the prayer for inspection and production orders, without prejudice to the
subsequent grant thereof, in the course of hearing and other developments in the investigations by the
Philippine National Police/Philippine National Police Criminal Investigation and Detection Group and
the Armed Forces of the Philippines;
3) ORDERING the incumbent Chief of Staff of the Armed Forces of the Philippines, or his successor,
and the incumbent Director General of the Philippine National Police, or his successor, to CONTINUE
the investigations and actions already commenced by the Philippine National Police Regional Office
Cordillera, Baguio City Police, Northern Luzon Command, Philippine National Police/Philippine
National Police Criminal Investigation and Detection Group, Philippine Army-Intelligence Service Unit
and other concerned units, and specifically take and continue to take the necessary steps:

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73

(a) to identify the persons described in the cartographic sketches submitted by Task Force Balao;
(b) to locate and search the vehicles bearing the plate numbers submitted by the petitioners and which
James Balao had reported to be conducting surveillance on his person prior to his abduction on
September 17, 2008, and investigate the registered owners or whoever the previous and present
possessors/transferees thereof; and to pursue any other leads relevant to the abduction of James Balao;
The incumbent Armed Forces of the Philippines Chief of Staff, Philippine National Police Director
General, or their successors, shall ensure that the investigations and actions of their respective units on
the abduction of James Balao are pursued with extraordinary diligence as required by Sec. 17 of the
Amparo Rule.
For purposes of these investigations, the Philippine National Police/Philippine National Police Criminal
Investigation and Detection Group shall periodically report the detailed results of its investigation to the
trial court for its consideration and action. On behalf of this Court, the trial court shall pass upon the
sufficiency of their investigative efforts. The Philippine National Police and the Philippine National
Police Criminal Investigation and Detection Group shall have six (6) months from notice hereof to
undertake their investigations. Within fifteen (15) days after completion of the investigations, the Chief
of Staff of the Armed Forces of the Philippines and the DirectorGeneral of the Philippine National
Police shall submit a full report of the results of the said investigations to the trial court. Within thirty
(30) days thereafter, the trial court shall submit its full reportto this Court.
These directives and those of the trial court made pursuant to this Decision shall be given to, and shall
be directly enforceable against, whoever may be the incumbent Armed Forces of the Philippines Chief
of Staff, Director General of the Philippine National Police and Chief of the Philippine National Police
Criminal Investigation and Detection Group and other concerned units, under pain of contempt from this
Court when the initiatives and efforts at disclosure and investigation constitute less than the
EXTRAORDINARY DILIGENCE that the Amparo Rule and the circumstances of the case demand;
and1awphi1
4) DROPPING former President Gloria Macapagal-Arroyo as party-respondent in the petition for writ of
amparo;
This case is hereby REMANDED to the Regional Trial Court of La Trinidad, Benguet, Branch 63 for
continuation of proceedings in Special Proceeding No. 08-AMP-0001 for the purposes of monitoring
compliance with the above directives and determining whether, in the light of any recent reports or
recommendations, there would already be sufficient evidence to hold any of the public respondents
responsible, or, at least, accountable. After making such determination, the trial court shall submit its
own report and recommendation to this Court for final action. The trial court will continue to have
jurisdiction over this case in order to accomplish its tasks under this decision;
Accordingly, the public respondents shall remain personally impleaded in this petition to answer for any
responsibilities and/or accountabilities they may have incurred during their incumbencies.
No pronouncement as to costs.

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74

SO ORDERED.
MARTIN S. VILLARAMA, JR.
Associate Justice

BALAO et al vs. GMA G.R. No. 186050 December 13, 2011


FACTS:
The siblings of James Balao, and Longid (petitioners), filed with the RTC of La Trinidad, Benguet a
Petition for the Issuance of a Writ of Amparo in favor of James Balao who was abducted by unidentified
armed men earlier. Named respondents in the petition were then President GMA, Exec Sec Eduardo
Ermita, Defense Sec Gilberto Teodoro, Jr., ILG Secretary Ronaldo Puno, National Security Adviser
(NSA) Norberto Gonzales, AFP Chief of Staff Gen. Alexander . Yano, PNP Police Director General
Jesus Verzosa, among others.
James M. Balao is a Psychology and Economics graduate of the UP-Baguio. In 1984, he was among
those who founded the Cordillera Peoples Alliance (CPA), a coalition of NGOs working for the cause of
indigenous peoples in the Cordillera Region.
According to witnesses testimony, James was abducted by unidentified men, saying they were
policemen and were arresting him for a drugs case and then made to ride a white van.
petitioners prayed for the issuance of a writ of amparo and likewise prayed for (1) an inspection order
for the inspection of at least 11 military and police facilities which have been previously reported as
detention centers for activists abducted by military and police operatives; (2) a production order for all
documents that contain evidence relevant to the petition, particularly the Order of Battle List and any
record or dossier respondents have on James; and (3) a witness protection order.
the RTC issued the assailed judgment, disposing as follows:
ISSUE a Writ of Amparo Ordering the respondents to (a) disclose where James is detained or confined,
(b) to release James considering his unlawful detention since his abduction and (c) to cease and desist
from further inflicting harm upon his person; and
DENY the issuance of INSPECTION ORDER, PRODUCTION ORDER and WITNESS PROTECTION
ORDER for failure of herein Petitioners to comply with the stringent provisions on the Rule on the Writ
of Amparo and substantiate the same
ISSUE:

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WON the totality of evidence satisfies the degree of proof required by the Amparo Rule to establish an
enforced disappearance.
HELD:
NO; The Rule on the Writ of Amparo was promulgated on October 24, 2007 amidst rising incidence of
extralegal killings and enforced disappearances. It was formulated in the exercise of this Courts
expanded rule-making power for the protection and enforcement of constitutional rights enshrined in the
1987 Constitution, albeit limited to these two situations. Extralegal killings refer to 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 person outside the protection of law.
**
The trial court gave considerable weight to the discussion in the petition of briefing papers supposedly
obtained from the AFP indicating that the anti-insurgency campaign of the military under the
administration of President Arroyo included targeting of identified legal organizations under the NDF,
which included the CPA, and their members, as enemies of the state.
We hold that such documented practice of targeting activists in the militarys counter-insurgency
program by itself does not fulfill the evidentiary standard provided in the Amparo Rule to establish an
enforced disappearance.
In the case of Roxas v. Macapagal-Arroyo, the Court noted that the similarity between the circumstances
attending a particular case of abduction with those surrounding previous instances of enforced
disappearances does not, necessarily, carry sufficient weight to prove that the government orchestrated
such abduction. Accordingly, the trial court in this case cannot simply infer government involvement in
the abduction of James from past similar incidents in which the victims also worked or affiliated with
the CPA and other left-leaning groups.
**
The petition further premised government complicity in the abduction of James on the very positions
held by the respondents. The Court in Rubrico v. Macapagal-Arroyo had the occasion to expound on the
doctrine of command responsibility and why it has little bearing, if at all, in amparo proceedings.
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. Still, it would be inappropriate to apply to these proceedings the doctrine of command
responsibility, as the CA seemed to have done, as a form of criminal complicity through omission, for
individual respondents criminal liability, if there be any, is beyond the reach of amparo. In other words,

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the Court does not rule in such proceedings on any issue of criminal culpability, even if incidentally a
crime or an infraction of an administrative rule may have been committed. As the Court stressed in
Secretary of National Defense v. Manalo (Manalo), the writ of amparo was conceived to provide
expeditious and effective procedural relief against violations or threats of violation of the basic rights to
life, liberty, and security of persons; the corresponding amparo suit, however, is not an action to
determine criminal guilt requiring proof beyond reasonable doubt x x x or administrative liability
requiring substantial evidence that will require full and exhaustive proceedings. Of the same tenor, and
by way of expounding on the nature and role of amparo, is what the Court said in Razon v. Tagitis:
It does not determine guilt nor pinpoint criminal culpability for the disappearance [threats thereof or
extrajudicial killings]; it determines responsibility, or at least accountability, for the enforced
disappearance [threats thereof or extrajudicial killings] for purposes of imposing the appropriate
remedies to address the disappearance [or extrajudicial killings].
xxxx
As the law now stands, extrajudicial killings and enforced disappearances in this jurisdiction are not
crimes penalized separately from the component criminal acts undertaken to carry out these killings and
enforced disappearances and are now penalized under the Revised Penal Code and special laws. The
simple reason is that the Legislature has not spoken on the matter; the determination of what acts are
criminal x x x are matters of substantive law that only the Legislature has the power to enact. x x x[
Assessing the evidence on record, we find that the participation in any manner of military and police
authorities in the abduction of James has not been adequately proven. The identities of the abductors
have not been established, much less their link to any military or police unit. There is likewise no
concrete evidence indicating that James is being held or detained upon orders of or with acquiescence of
government agents. Consequently, the trial court erred in granting amparo reliefs. Such pronouncement
of responsibility on the part of public respondents cannot be made given the insufficiency of evidence.
However, we agree with the trial court in finding that the actions taken by respondent officials are very
limited, superficial and one-sided. Its candid and forthright observations on the efforts exerted by the
respondents are borne by the evidence on record.
**
An inspection order is an interim relief designed to give support or strengthen the claim of a petitioner in
an amparo petition, in order to aid the court before making a decision. A basic requirement before an
amparo court may grant an inspection order is that the place to be inspected is reasonably determinable
from the allegations of the party seeking the order. In this case, the issuance of inspection order was
properly denied since the petitioners specified several military and police establishments based merely
on the allegation that the testimonies of victims and witnesses in previous incidents of similar
abductions involving activists disclosed that those premises were used as detention centers. In the same
vein, the prayer for issuance of a production order was predicated on petitioners bare allegation that it
obtained confidential information from an unidentified military source, that the name of James was
included in the so-called Order of Battle. Indeed, the trial court could not have sanctioned any fishing
expedition by precipitate issuance of inspection and production orders on the basis of insufficient
claims of one party.

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Republic of the Philippines


SUPREME COURT
Manila
EN BANC
G.R. No. 183533

September 25, 2012

IN THE MATTER OF THE PETITION FOR THE WRIT OF AMPARO AND THE WRIT OF

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HABEAS DATA IN FAVOR OF FRANCIS SAEZ, Petitioner,


vs.
GLORIA MACAPAGAL ARROYO, GEN. HERMOGENES ESPERON, P/DIR. GEN. AVELINO
RAZON, 22ND MICO, CAPT. LAWRENCE BANAAG, SGT. CASTILLO, CAPT. ROMMEL
GUTIERREZ, CAPT. JAKE OBLIGADO, CPL. ROMAN ITO QUINT ANA, PVT. JERICO
DUQUIL, CPL. ARIEL FONTANILLA, A CERTAIN CAPT. ALCA YDO, A CERTAIN FIRST
SERGEANT, PVT. ZALDY OSlO, A CERTAIN PFC. SONNY, A CERTAIN CPL. JAMES, A
CERTAIN JOEL, RODERICK CLANZA and JEFFREY GOMEZ, Respondents.
For action by the Court is the Motion for Reconsideration 1 dated September 26, 2010 filed by petitioner
Francis Saez of our Resolution2 dated August 31, 2010 denying the Petition for Review 3 he filed on July
21, 2008.
The Office of the Solicitor General (OSG) filed its Comment 4 thereon stating that it does not find cogent
grounds to warrant setting aside our decision.
Antecedent Facts
On March 6, 2008, the petitioner filed with the Court a petition to be granted the privilege of the writs of
amparo and habeas data with prayers for temporary protection order, inspection of place and production
of documents.5In the petition, he expressed his fear of being abducted and killed; hence, he sought that
he be placed in a sanctuary appointed by the Court. He likewise prayed for the military to cease from
further conducting surveillance and monitoring of his activities and for his name to be excluded from the
order of battle and other government records connecting him to the Communist Party of the Philippines
(CPP).
Without necessarily giving due course to the petition, the Court issued the writ of amparo commanding
the respondents to make a verified return, and referred the case to the Court of Appeals (CA) for hearing
and decision.The case before the CA was docketed as CA-G.R. SP No. 00024 WOA.
In the Return of the Writ, 6 the respondents denied the assignment in the units of Captains Lawrence
Banaag and Rommel Gutierrez and Corporal Ariel Fontanilla. The respondents also alleged that the
names and descriptions of "Capt. Alcaydo," "a certain First Sergeant," "Cpl. James," "Pfc. Sonny," and
"Joel" were insufficient to properly identify some of the persons sought to be included as among the
respondents in the petition.
On the other hand, respondents General Hermogenes Esperon, Jr. (Gen. Esperon), Capt. Jacob Thaddeus
Obligado, Pvt. Rizaldy A. Osio (Pvt. Osio), Pfc. Romanito C. Quintana, Jr. and Pfc. Jerico Duquil
submitted their affidavits.
The CA conducted hearings with an intent to clarify what actually transpired and to determine specific
acts which threatened the petitioners right to life, liberty or security.
During the hearings, the petitioner narrated that starting April 16, 2007, he noticed that he was always
being followed by a certain "Joel," a former colleague at Bayan Muna. "Joel" pretended peddling

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pandesal in the vicinity of the petitioners store. Three days before the petitioner was apprehended,
"Joel" approached and informed him of his marital status and current job as a baker in Calapan, Mindoro
Oriental. "Joel" inquired if the petitioner was still involved with ANAKPAWIS. When asked by the CA
justices during the hearing if the petitioner had gone home to Calapan after having filed the petition, he
answered in the negative explaining that he was afraid of Pvt. Osio who was always at the pier.
CA-G.R. SP No. 00024 WOA
On July 9, 2008, the CA rendered its Decision,7 denying on formal and substantial grounds the reliefs
prayed for in the petition and dropping former President Gloria Macapagal Arroyo as a respondent. The
CA ratiocinated:
There was no attempt at all to clarify how petitioner came to know about Zaldy Osios presence at their
pier if the former had not gone home since the petition was filed and what Zaldy Osio was doing there to
constitute violation or threat to violate petitioners right to life, liberty or security. This Court cannot just
grant the privilege of the writs without substantial evidence to establish petitioners entitlement thereto.
This Court cannot grant the privilege of the writs applied for on mere speculation or conjecture. This
Court is convinced that the Supreme Court did not intend it to be so when the rules on the writs of
Amparo and Habeas Data were adopted. It is the impression of this Court that the privilege of the writs
herein prayed for should be considered as extraordinary remedies available to address the specific
situations enumerated in the rules and no other.
xxxx
Not only did the petition and the supporting affidavit x x x fail to allege how the supposed threat or
violation of petitioners [right to] life, liberty and security is committed. Neither is there any narration of
any circumstances attendant to said supposed violation or threat to violatepetitioners right to life, liberty
or security to warrant entitlement to the privilege of the writs prayed for.
xxxx
A reading of the petition will show that the allegations therein do not comply with the aforestated
requirements of Section 6 Rule on the Writ of Habeas Data of the pertinent rule. The petition is bereft of
any allegation stating with specific definiteness as to how petitioners right to privacy was violated or
threatened to be violated. He did not include any allegation as to what recourses he availed of to obtain
the alleged documents from respondents. Neither did petitioner allege what specific documents he prays
for and from whom or [sic] from what particular office of the government he prays to obtain them. The
petition prays "to order respondents to produce any documents submitted to any of them in the matter of
any report on the case of FRANCIS SAEZ, including all military intelligence reports."
xxxx
Both the rules on the writs of Amparo and Habeas Data (Section 17, A.M. No. 07-9-12-SC and Section
16, A.M. No. 08-1-16-SC) provide that the parties shall establish their claims by substantial evidence.
Not only was petitioner unable to establish his entitlement to the privilege of the writs applied for, the

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exigency thereof was negated by his own admission that nothing happened between him and Joel after
July 21, 2007. The filing of the petition appears to have been precipitated by his fear that something
might happen to him, not because of any apparent violation or visible threat to violate his right to life,
liberty or security. Petitioner was, in fact, unable to establish likewise who among the respondents
committed specific acts defined under the rules on both writs to constitute violation or threat to violate
petitioners rights to life, liberty or security or his right to privacy thereof.
xxxx
x x x The ruling in David, et al. vs. Gloria Macapagal Arroyo, et al. (G.R. No. 171396, May 3, 2006, 489
SCRA 160, 224) is aptly instructive:
"Settled is the doctrine that the President, during his tenure of office or actual incumbency, may not be
sued in any civil or criminal case, and there is no need to provide for it in the Constitution or law. It will
degrade the dignity of the high office of the President, the Head of State, if he can be dragged into court
litigations while serving as such. Furthermore, it is important that he be freed from any form of
harassment, hindrance or distraction to enable him to fully attend to the performance of his official
duties and functions. x x x."
xxxx
IV. The petition lacks proper verification in violation of Section 12, 2004 Rules on Notarial Practice.8
On July 21, 2008, Petition for Review was filed assailing the foregoing CA decision with the following
issues submitted for resolution:
WHETHER OR NOT THE CA COMMITTED REVERSIBLE ERROR IN DISMISSING THE
PETITION AND DROPPING GLORIA MACAPAGAL ARROYO AS PARTY RESPONDENT.
WHETHER OR NOT THE NOTARIAL OFFICERS OMISSION OF REQUIRING FROM THE
PETITIONER IDENTIFICATION CARDS RELATIVE TO THE LATTERS EXECUTION OF THE
VERIFICATION AND CERTIFICATION OF NON-FORUM SHOPPING JUSTIFIES THE DENIAL
OF THE PETITION.
WHETHER OR NOT THE CA COMMITTED GROSS ABUSE OF DISCRETION WHEN IT FAILED
TO CONCLUDE FROM THE EVIDENCE OFFERED BY THE PETITIONER THE FACT THAT BY
BEING PLACED IN THE ORDER OF BATTLE LIST, THREATS AND VIOLATIONS TO THE
LATTERS LIFE, LIBERTY AND SECURITY WERE ACTUALLY COMMITTED BY THE
RESPONDENTS.9
Courts Resolution dated August 31, 2010
On August 31, 2010, the Court issued the Resolution 10 denying the petition for review for the following
reasons, viz:

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A careful perusal of the subject petition shows that the CA correctly found that the petition was bereft of
any allegation as to what particular acts or omission of respondents violated or threatened petitioners
right to life, liberty and security. His claim that he was incommunicado lacks credibility as he was given
a cellular phone and allowed to go back to Oriental Mindoro. The CA also correctly held that petitioner
failed to present substantial evidence that his right to life, liberty and security were violated, or how his
right to privacy was threatened by respondents. He did not specify the particular documents to be
secured, their location or what particular government office had custody thereof, and who has possession
or control of the same. He merely prayed that the respondents be ordered "to produce any documents
submitted to any of them in the matter of any report on the case of FRANCIS SAEZ, including all
military intelligence reports."
Petitioner assails the CA in failing to appreciate that in his Affidavit and Fact Sheet, he had specifically
detailed the violation of his right to privacy as he was placed in the Order of Battle and promised to have
his record cleared if he would cooperate and become a military asset. However, despite questions
propounded by the CA Associate Justices during the hearing, he still failed to enlighten the appellate
court as to what actually transpired to enable said court to determine whether his right to life, liberty or
security had actually been violated or threatened. Records bear out the unsubstantiated claims of
petitioner which justified the appellate courts dismissal of the petition.
As to petitioners argument that the CA erred in deleting the President as party-respondent, we find the
same also to be without merit. The Court has already made it clear in David v. Macapagal-Arroyo that
the President, during his or her tenure of office or actual incumbency, may not be sued in any civil or
criminal case, and there is no need to provide for it in the Constitution or law. It will degrade the dignity
of the high office of the President, the Head of State, if the President can be dragged into court
litigations while serving as such. Furthermore, it is important that the President be freed from any form
of harassment, hindrance or distraction to enable the President to fully attend to the performance of
official duties and functions.11 (Citation omitted)
Hence, the petitioner filed the instant motion for reconsideration.12
Petitioners Arguments
Contrary to the CAs findings, it had been shown by substantial evidence and even by the respondents
own admissions that the petitioners life, liberty and security were threatened. Military personnel, whom
the petitioner had named and described, knew where to get him and they can do so with ease. He also
became a military asset, but under duress, as the respondents had documents allegedly linking him to the
CPP and including him in the order of battle. The petitioner claims that the foregoing circumstances
were not denied by the respondents.
The petitioner likewise challenges the CAs finding that he was not rendered incommunicado as he was
even provided with a cellular phone. The petitioner argues that the phone was only given to him for the
purpose of communicating with the respondents matters relative to his infiltration activities of target
legal organizations.
The petitioner cites Secretary of National Defense v. Manalo, 13 which pronounced that "in the amparo

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context, it is more correct to say that the right to security is actually the freedom from threat". 14
According to the petitioner, his freedom from fear was undoubtedly violated, hence, to him pertains a
cause of action. Anent the quantum of proof required in a petition for the issuance of the writ of amparo,
mere substantial evidence is sufficient. The petition "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".15
Sadly, in the petitioners case, the court not only demanded a greater quantum of proof than what the
rules require, but it also accorded special preference for the respondents evidence.
The petitioner also cites a speech delivered in Siliman University by former Chief Justice Reynato Puno
who expressed that "the remedy of habeas data can be used by any citizen against any governmental
agency or register to find out what information is held about his or her person." The person can likewise
"request the rectification or even the destruction of erroneous data gathered and kept against him or her."
In the petitioners case, he specifically sought the production of the order of battle, which allegedly
included his name, and other records which supposedly contain erroneous data relative to his
involvement with the CPP.
OSGs Comment
In the respondents comment16 filed by the OSG, it is generally claimed that the petitioner advances no
cogent grounds to justify the reversal of the Courts Resolution dated August 31, 2010.
The Courts Disquisition
While the issuance of the writs sought by the petitioner cannot be granted, the Court nevertheless finds
ample grounds to modify the Resolution dated August 31, 2010.
The petition conforms to the
requirements of the Rules on the
Writs of Amparo and Habeas Data
Section 517 of A.M. No. 07-9-12-SC (Rule on the Writ of Amparo) and Section 618 of A.M. 08-1-16-SC
(Rule on the Writ of Habeas Data) provide for what the said petitions should contain.
In the present case, the Court notes that the petition for the issuance of the privilege of the writs of
amparo and habeas data is sufficient as to its contents. The petitioner made specific allegations relative
to his personal circumstances and those of the respondents. The petitioner likewise indicated particular
acts, which are allegedly violative of his rights and the participation of some of the respondents in their
commission. As to the pre-requisite conduct and result of an investigation prior to the filing of the
petition, it was explained that the petitioner expected no relief from the military, which he perceived as
his oppressors, hence, his request for assistance from a human rights organization, then a direct resort to
the court. Anent the documents sought to be the subject of the writ of habeas data prayed for, the Court
finds the requirement of specificity to have been satisfied. The documents subject of the petition include

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the order of battle, those linking the petitioner to the CPP and those he signed involuntarily, and military
intelligence reports making references to him. Although the exact locations and the custodians of the
documents were not identified, this does not render the petition insufficient. Section 6(d) of the Rule on
the Writ of Habeas Data is clear that the requirement of specificity arises only when the exact locations
and identities of the custodians are known. The Amparo Rule was not promulgated with the intent to
make it a token gesture of concern for constitutional rights. 19 Thus, despite the lack of certain contents,
which the Rules on the Writs of Amparo and Habeas Data generally require, for as long as their absence
under exceptional circumstances can be reasonably justified, a petition should not be susceptible to
outright dismissal.
From the foregoing, the Court holds that the allegations stated in the petition for the privilege of the
writs of amparo and habeas data filed conform to the rules. However, they are mere allegations, which
the Court cannot accept "hook, line and sinker", so to speak, and whether substantial evidence exist to
warrant the granting of the petition is a different matter altogether.
No substantial evidence exists to
prove the petitioners claims
The Court has ruled that in view of the recognition of the evidentiary difficulties attendant to the filing
of a petition for the privilege of the writs of amparo and habeas data, not only direct evidence, but
circumstantial evidence, indicia, and presumptions may be considered, so long as they lead to
conclusions consistent with the admissible evidence adduced.20
With the foregoing in mind, the Court still finds that the CA did not commit a reversible error in
declaring that no substantial evidence exist to compel the grant of the reliefs prayed for by the petitioner.
The Court took a second look on the evidence on record and finds no reason to reconsider the denial of
the issuance of the writs prayed for.
In the hearing before the CA, it was claimed that "Joel" once inquired from the petitioner if the latter
was still involved with ANAKPAWIS. By itself, such claim cannot establish with certainty that the
petitioner was being monitored. The encounter happened once and the petitioner, in his pleadings,
nowhere stated that subsequent to the time he was asked about his involvement with ANAKPAWIS, he
still noticed "Joel" conducting surveillance operations on him. He alleged that he was brought to the
camp of the 204th Infantry Brigade in Naujan, Oriental Mindoro but was sent home at 5:00 p.m. The
petitioner and the respondents have conflicting claims about what transpired thereafter. The petitioner
insisted that he was brought against his will and was asked to stay by the respondents in places under the
latters control. The respondents, on the other hand, averred that it was the petitioner who voluntarily
offered his service to be a military asset, but was rejected as the former still doubted his motives and
affiliations.
Section 19 of both the Rules on the Writ of Amparo and Habeas Data is explicit that questions of fact
and law can be raised before the Court in a petition for review on certiorari under Rule 45. As a rule
then, the Court is not bound by the factual findings made by the appellate court which rendered the
judgment in a petition for the issuance of the writs of amparo and habeas data. Be that as it may, in the
instant case, the Court agrees with the CA that the petitioner failed to discharge the burden of proof
imposed upon him by the rules to establish his claims. It cannot be overemphasized that Section 1 of
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both the Rules on the Writ of Amparo and Habeas Data expressly include in their coverage even
threatened violations against a persons right to life, liberty or security. Further, 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".21
It must be stressed, however, that such "threat" must find rational basis on the surrounding
circumstances of the case. In this case, the petition was mainly anchored on the alleged threats against
his life, liberty and security by reason of his inclusion in the militarys order of battle, the surveillance
and monitoring activities made on him, and the intimidation exerted upon him to compel him to be a
military asset. While as stated earlier, mere threats fall within the mantle of protection of the writs of
amparo and habeas data, in the petitioners case, the restraints and threats allegedly made allegations
lack corroborations, are not supported by independent and credible evidence, and thus stand on nebulous
grounds.
The Court is cognizant of the evidentiary difficulties attendant to a petition for the issuance of the writs.
Unlike, however, the unique nature of cases involving enforced disappearances or extra-judicial killings
that calls for flexibility in considering the gamut of evidence presented by the parties, this case sets a
different scenario and a significant portion of the petitioners testimony could have been easily
corroborated. In his Sinumpaang Salaysay22 dated March 5, 2008 and the Fact Sheet dated December 9,
200723 executed before the Alliance for the Advancement of Peoples Rights-Southern Tagalog
(KARAPATAN-ST), the petitioner stated that when he was invited and interrogated at the military camp
in Naujan, Oriental Mindoro, he brought with him his uncle Norberto Roxas, Barangay Captain Mario
Ilagan and two of his bodyguards, and Edwardo Estabillo five witnesses who can attest and easily
corroborate his statement but curiously, the petitioner did not present any piece of evidence, whether
documentary or testimonial, to buttress such claim nor did he give any reason for their nonpresentation.This could have made a difference in light of the denials made by the respondents as
regards the petitioners claims.
The existence of an order of battle and inclusion of the petitioners name in it is another allegation by the
petitioner that does not find support on the evidence adduced. The Court notes that such allegation was
categorically denied by respondent Gen. Avelino I. Razon, Jr. who, in his Affidavit dated March 31,
2008, stated that he "does not have knowledge about any Armed Forces of the Philippines (AFP) order
of battle which allegedly lists the petitioner as a member of the CPP." 24 This was also denied by Pvt.
Osio, who the petitioner identified as the one who told him that he was included in the order of battle. 25
The 2nd Infantry (Jungle Fighter) Division of the Philippine Army also conducted an investigation
pursuant to the directive of AFP Chief of Staff Gen. Esperon, 26 and it was shown that the persons
identified by the petitioners who allegedly committed the acts complained of were not connected or
assigned to the 2nd Infantry Division.27
Moreover, the evidence showed that the petitioners mobility was never curtailed. From the time he was
allegedly brought to Batangas in August of 2007 until the time he sought the assistance of
KARAPATAN-ST, there was no restraint upon the petitioner to go home, as in fact, he went home to
Mindoro on several instances. And while he may have been wary of Pvt. Osios presence at the pier,
there was no claim by the petitioner that he was threatened or prevented by Pvt. Osio from boarding any
vehicle that may transport him back home. The petitioner also admitted that he had a mobile phone;
hence, he had unhampered access to communication and can readily seek assistance from non-

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governmental organizations and even government agencies.


The respondents also belied the petitioners claim that they forced him to become a military informant
and instead, alleged that it was the petitioner who volunteered to be one. Thus, in his Sinumpaang
Salaysay28executed on March 25, 2008, Pvt. Osio admitted that he actually knew the petitioner way back
in 1998 when they were still students. He also stated that when he saw the petitioner again in 2007, the
latter manifested his intention to become a military informant in exchange for financial and other forms
of assistance.
The petitioner also harps on the alleged "monitoring" activities being conducted by a certain "Joel", e.g.,
the latters alleged act of following him, pretending to peddle pandesal and asking him about his
personal circumstances. Such allegation by the petitioner, however, is, at best, a conclusion on his part, a
mere impression that the petitioner had, based on his personal assessment of the circumstances. The
petitioner even admitted in his testimony before the CA that when he had a conversation with "Joel"
sometime in July 2007, the latter merely asked him whether he was still connected with ANAKPAWIS,
but he was not threatened "with anything" and no other incident occurred between them since then. 29
There is clearly nothing on record which shows that "Joel" committed overt acts that will unequivocally
lead to the conclusion arrived at by the petitioner, especially since the alleged acts committed by "Joel"
are susceptible of different interpretations.
Given that the totality of the evidence presented by the petitioner failed to support his claims, the reliefs
prayed for, therefore, cannot be granted. The liberality accorded to amparo and habeas data cases does
not mean that a claimant is dispensed with the onus of proving his case. "Indeed, even the liberal
standard of substantial evidence demands some adequate evidence."30
The President cannot be
automatically dropped as a
respondent pursuant to the doctrine
of command responsibility
In Noriel Rodriguez v. Gloria Macapagal Arroyo, et al.,31 the Court stated:
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;

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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.
The president, being the commander-in-chief of all armed forces, necessarily possesses control over the
military that qualifies him as a superior within the purview of the command responsibility doctrine.
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. 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). 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. Knowledge of the commission of irregularities, crimes or offenses is presumed when (a)
the acts are widespread within the government officials 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.
Meanwhile, as to the issue of failure to prevent or punish, it is important to note that as the commanderin-chief of the armed forces, the president has the power to effectively command, control and discipline
the military. (Citations omitted)
Pursuant to the doctrine of command responsibility, the President, as the Commander-in-Chief of the
AFP, can be held liable for affront against the petitioners rights to life, liberty and security as long as
substantial evidence exist to show that he or she had exhibited involvement in or can be imputed with
knowledge of the violations, or had failed to exercise necessary and reasonable diligence in conducting
the necessary investigations required under the rules.1wphi1
The Court also stresses that rule that the presidential immunity from suit exists only in concurrence with
the presidents incumbency.32
Conversely, this presidential privilege of immunity cannot be invoked by a non-sitting president even for
acts committed during his or her tenure. 33 Courts look with disfavor upon the presidential privilege of
immunity, especially when it impedes the search for truth or impairs the vindication of a right.34
The petitioner, however, is not exempted from the burden of proving by substantial evidence his
allegations against the President to make the latter liable for either acts or omissions violative of rights
against life, liberty and security. In the instant case, the petitioner merely included the Presidents name

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as a party respondent without any attempt at all to show the latters actual involvement in, or knowledge
of the alleged violations. Further, prior to the filing of the petition, there was no request or demand for
any investigation that was brought to the Presidents attention. Thus, while the President cannot be
completely dropped as a respondent in a petition for the privilege of the writs of amparo and habeas data
merely on the basis of the presidential immunity from suit, the petitioner in this case failed to establish
accountability of the President, as commander-in-chief, under the doctrine of command responsibility.
Compliance with technical rules of
procedure is ideal but it cannot be
accorded primacy
Among the grounds cited by the CA in denying the petition for the issuance of the writs of amparo and
habeas data was the defective verification which was attached to the petition. In Tagitis,35 supporting
affidavits required under Section 5(c) of the Rule on the Writ of Amparo were not submitted together
with the petition and it was ruled that the defect was fully cured when the petitioner and the witness
personally testified to prove the truth of their allegations in the hearings held before the CA. In the
instant case, the defective verification was not the sole reason for the CAs denial of the petition for the
issuance of the writs of amparo and habeas data. Nonetheless, it must be stressed that although rules of
procedure play an important rule in effectively administering justice, primacy should not be accorded to
them especially in the instant case where there was at least substantial compliance with the requirements
and where petitioner himself testified in the hearings to attest to the veracity of the claims which he
stated in his petition.
To conclude, compliance with technical rules of procedure is ideal but it cannot be accorded primacy. In
the proceedings before the CA, the petitioner himself testified to prove the veracity of his allegations
which he stated in the petition. Hence, the defect in the verification attached to the petition. Hence, the
defect in the verification attached to the petition was deemed cured.
WHEREFORE, premises considered, the petitioner's motion for reconsideration is DENIED WITH
FINALITY.
SO ORDERED.
BIENVENIDO L. REYES
Associate Justice

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88

Republic of the Philippines


SUPREME COURT
Manila
EN BANC
G.R. No. 184467

June 19, 2012

EDGARDO NAVIA,1 RUBEN DIO,2 and ANDREW BUISING, Petitioners,


vs.
VIRGINIA PARDICO, for and in behalf and in representation of BENHUR V. PARDICO
Respondent.
DECISION
DEL CASTILLO, J.:
For the protective writ of amparo to issue in enforced disappearance cases, allegation and proof that the
persons subject thereof are missing are not enough. It must also be shown by the required quantum of
proof that their disappearance was carried out by, "or with the authorization, support or acquiescence of,
[the government] or a political organization, followed by a refusal to acknowledge [the same or] give
information on the fate or whereabouts of [said missing] persons."3
This petition for review on certiorari4 filed in relation to Section 19 of A.M. No. 07-9-12-SC 5 challenges
the July 24, 2008 Decision6 of the Regional Trial Court (RTC), Branch 20, Malolos City which granted
the Petition for Writ of Amparo7 filed by herein respondent against the petitioners.
Factual Antecedents
On March 31, 2008, at around 8:30 p.m., a vehicle of Asian Land Strategies Corporation 8 (Asian Land)

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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 Lolitas 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 the Asian Land security department. Following their departments 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 Navias 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.

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Subsequently, petitioners received an invitation15 from the Malolos City Police Station requesting them
to appear thereat on April 17, 2008 relative to the complaint of Virginia Pardico (Virginia) about her
missing husband Ben. In compliance with the invitation, all three petitioners appeared at the Malolos
City Police Station. However, since Virginia was not present despite having received the same invitation,
the meeting was reset to April 22, 2008.16
On April 22, 2008, Virginia attended the investigation. Petitioners informed her that they released Ben
and that they have no information as to his present whereabouts. 17 They assured Virginia though that
they will cooperate and help in the investigation of her missing husband.18
Version of the Respondent
According to respondent, Bong and Ben were not merely invited. They were unlawfully arrested, shoved
into the Asian Land vehicle and brought to the security office for investigation. Upon seeing Ben at the
security office, Navia lividly grumbled "Ikaw na naman?" 19 and slapped him while he was still seated.
Ben begged for mercy, but his pleas were met with a flurry of punches coming from Navia hitting him
on different parts of his body.20 Navia then took hold of his gun, looked at Bong, and said, "Wala kang
nakita at wala kang narinig, papatayin ko na si Ben."21
Bong admitted that he and Ben attempted to take the lamp. He explained that the area where their house
is located is very dark and his father had long been asking the administrator of Grand Royale
Subdivision to install a lamp to illumine their area. But since nothing happened, he took it upon himself
to take a lamp from one of the posts in the subdivision and transfer it to a post near their house.
However, the lamp Bong got was no longer working. Thus, he reinstalled it on the post from which he
took it and no longer pursued his plan. 22
Later on, Lolita was instructed to sign an entry in the guards 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
Lolitas 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 latters 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 Bongs
release. Since it was dark and she has poor eyesight, Lolita took Buisings 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.

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In the course of the investigation on Bens 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
Amparo28before the RTC of Malolos City. Finding the petition sufficient in form and substance, the
amparo court issued an Order29 dated June 26, 2008 directing, among others, the issuance of a writ of
amparo and the production of the body of Ben before it on June 30, 2008. Thus:
WHEREFORE, conformably with Section 6 of the Supreme Court Resolution [in] A.M. No. 07-[9]-12SC, 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 nonextendible period of seventy-two (72) hours from service of the writ, a verified written return with
supporting affidavits which shall, among other things, contain the following:
a) The lawful defenses to show that the [petitioners] did not violate or threaten with violation the right to
life, liberty and security of the aggrieved party, through any act or omission;
b) The steps or actions taken by the [petitioners] to determine the fate or whereabouts of the aggrieved
party and the person or persons responsible for the threat, act or omission; and
c) All relevant information in the possession of the [petitioners] pertaining to the threat, act or omission
against the aggrieved party.
(4) GRANTING, motu proprio, a Temporary Protection Order prohibiting the [petitioners], or any
persons acting for and in their behalf, under pain of contempt, from threatening, harassing or inflicting
any harm to [respondent], his immediate family and any [member] of his household.
The Branch Sheriff is directed to immediately serve personally on the [petitioners], at their address
indicated in the petition, copies of the writ as well as this order, together with copies of the petition and
its annexes.30
A Writ of Amparo31 was accordingly issued and served on the petitioners on June 27, 2008. 32 On June
30, 2008, petitioners filed their Compliance33 praying for the denial of the petition for lack of merit.
A summary hearing was thereafter conducted. Petitioners presented the testimony of Buising, while

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Virginia submitted the sworn statements34 of Lolita and Enrique which the two affirmed on the witness
stand.
Ruling of the Regional Trial Court
On July 24, 2008, the trial court issued the challenged Decision35 granting the petition. It disposed as
follows:
WHEREFORE, the Court hereby grants the privilege of the writ of amparo, and deems it proper and
appropriate, as follows:
(a) To hereby direct the National Bureau of Investigation (NBI) to immediately conduct a deep and
thorough investigation of the [petitioners] Edgardo Navia, Ruben Dio and Andrew Buising in connection
with the circumstances surrounding the disappearance of [Benhur] Pardico, utilizing in the process, as
part of the investigation, the documents forming part of the records of this case;
(b) To hereby direct the NBI to extend to the family of [Benhur] Pardico and the witnesses who testified
in this case protection as it may deem necessary to secure their safety and security; and
(c) To hereby direct the Office of the Provincial Prosecutor of Bulacan to investigate the circumstances
concerning the legality of the arrest of [Benhur] Pardico by the [petitioners] in this case, utilizing in the
process, as part of said investigation, the pertinent documents and admissions forming part of the 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 HUSBANDS 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
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DISAPPEARANCE
PETITIONERS.39

OF

BENHUR

PARDICO

WAS AT THE

INSTANCE

OF

HEREIN

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 partys 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 Bens 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 Bens
disappearance.
Our Ruling
Virginias 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, Bens 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 Bens inherent and constitutionally enshrined right
to life, liberty and security. Article 641 of the International Covenant on Civil and Political Rights 42
recognizes every human beings inherent right to life, while Article 943 thereof ordains that everyone has
the right to liberty and security. The right to life must be protected by law while the right to liberty and
security cannot be impaired except on grounds provided by and in accordance with law. This
overarching command against deprivation of life, liberty and security without due process of law is also
embodied in our fundamental law.44
The pivotal question now that confronts us is whether Bens disappearance as alleged in Virginias
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

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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-SCs 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 Disappearances
definition of enforced disappearances, as "the arrest, detention, abduction or any other form of
deprivation of liberty by agents of the State or by persons or groups of persons acting with the
authorization, support or acquiescence of the State, followed by a refusal to acknowledge the deprivation
of liberty or by concealment of the fate or whereabouts of the disappeared person, which place such a
person outside the protection of the law."47
Not long thereafter, another significant development affecting A.M. No. 07-9-12-SC came about after
Congress enacted Republic Act (RA) No. 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-Arroyo49 where Justice Arturo D. Brion wrote in his Separate Opinion
that with the enactment of RA No. 9851, "the Rule on the Writ of Amparo is now a procedural law
anchored, not only on the constitutional rights to the rights to life, liberty and security, but on a concrete
statutory definition as well of what an enforced or involuntary disappearance is." 50 Therefore, A.M. No.
07-9-12-SCs 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;

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(c) that it be followed by the State or political organizations refusal to acknowledge or give information
on the fate or whereabouts of the person subject of the amparo petition; and,
(d) that the intention for such refusal is to remove subject person from the protection of the law for a
prolonged period of time.
As thus dissected, it is now clear that for the protective writ of amparo to issue, allegation and proof that
the persons subject thereof are missing are not enough. It must also be shown and proved by substantial
evidence that the disappearance was carried out by, or with the authorization, support or acquiescence
of, the State or a political organization, followed by a refusal to acknowledge the same or give
information on the fate or whereabouts of said missing persons, with the intention of removing them
from the protection of the law for a prolonged period of time. Simply put, the petitioner in an amparo
case has the burden of proving by substantial evidence the indispensable element of government
participation.
In the present case, we do not doubt Bongs 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.1wphi1
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
Bens disappearance. In fact, none of its agents, officials, or employees were impleaded or implicated in
Virginias 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 Bens 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. 07-9-12SC 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
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96

of a missing person.
WHEREFORE, the July 24, 2008 Decision of the Regional Trial Court, Branch 20, Malolos City, is
REVERSED and SET ASIDE. The Petition for Writ of Amparo filed by Virginia Pardico is hereby
DISMISSED.
SO ORDERED.
MARIANO C. DEL CASTILLO
Associate Justice

Republic of the Philippines


SUPREME COURT
Manila
EN BANC
G.R. Nos. 103501-03 February 17, 1997
LUIS A. TABUENA, petitioner,
vs.
HONORABLE SANDIGANBAYAN, and THE PEOPLE OF THE PHILIPPINES, respondents.
G.R. No. 103507 February 17, 1997
ADOLFO M. PERALTA, petitioner,
vs.
HON. SANDIGANBAYAN (First Division), and THE PEOPLE OF THE PHILIPPINES,
represented by the OFFICE OF THE SPECIAL PROSECUTOR, respondents.

FRANCISCO, J.:
Through their separate petitions for review, 1 Luis A. Tabuena and Adolfo M. Peralta (Tabuena and
Peralta, for short) appeal the Sandiganbayan decision dated October 12, 1990, 2 as well as the Resolution
dated December 20. 1991 3 denying reconsideration, convicting them of malversation under Article 217
of the Revised Penal Code. Tabuena and Peralta were found guilty beyond reasonable doubt Of having

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malversed the total amount of P55 Million of the Manila International Airport Authority (MIAA) funds
during their incumbency as General Manager and Acting Finance Services Manager, respectively, of
MIAA, and were thus meted the following sentence:
(1) In Criminal Case No. 11758, accused Luis A. Tabuena is sentenced to suffer the penalty of
imprisonment of seventeen (17) years and one (1) day of reclusion temporal as minimum to twenty (20)
years of reclusion temporal as maximum, and to pay a fine of TWENTY-FIVE MILLION PESOS
(P25,000,000.00), the amount malversed. He shall also reimburse the Manila International Airport
Authority the sum of TWENTY-FIVE MILLION PESOS (P25,000,000.00).
In addition, he shall suffer the penalty of perpetual special disqualification from public office,
(2) In Criminal Case No. 11759, accused Luis A. Tabuena is sentenced to suffer the penalty of
imprisonment of seventeen (17) years and one (1) day of reclusion temporal as minimum, and twenty
(20) years of reclusion temporal as maximum, and to pay a fine of TWENTY-FIVE MILLION PESOS
(P25,000,000.00), the amount malversed. He shall also reimburse the Manila International Airport
Authority the sum of TWENTY-FIVE MILLION PESOS (P25,000,000.00).
In addition, he shall suffer the penalty of perpetual special disqualification from public office.
(3) In Criminal Case No. 11760, accused Luis A. Tabuena and Adolfo M. Peralta are each sentenced to
suffer the penalty of imprisonment of seventeen (17) years and one (1) day of reclusion temporalas
minimum and twenty (20) years of reclusion temporal as maximum and for each of them to pay
separately a fine of FIVE MILLION PESOS (P5,000,000.00) the amount malversed. They shall also
reimburse jointly and severally the Manila International Airport Authority the sum of FIVE MILLION
PESOS (P5,000,000.00).
In addition, they shall both suffer the penalty of perpetual special disqualification from public office.
A co-accused of Tabuena and Peralta was Gerardo G. Dabao, then Assistant General Manager of MIAA,
has remained at large.
There were three (3) criminal cases filed (nos. 11758, 11759 and 11760) since the total amount of P55
Million was taken on three (3) separate dates of January, 1986. Tabuena appears as the principal accused
he being charged in all three (3) cases. The amended informations in criminal case nos. 11758, 11759
and 11760 respectively read:
That on or about the 16th day of January, 1986, and for sometime subsequent thereto, in the City of
Pasay, Philippines, and within the jurisdiction of this Honorable Court, accused Luis A. Tabuena and
Gerardo G. Dabao, both public officers, being then the General Manager and Assistant General
Manager, respectively, of the Manila International Airport Authority (MIAA), and accountable for public
funds belonging to the MIAA, they being the only ones authorized to make withdrawals against the cash
accounts of MIAA pursuant to its board resolutions, conspiring, confederating and confabulating with
each other, did then and there wilfully, unlawfully, feloniously, and with intent to defraud the
government, take and misappropriate the amount of TWENTY FIVE MILLION PESOS

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(P25,000,000.00) from MIAA funds by applying for the issuance of a manager's check for said amount
in the name of accused Luis A. Tabuena chargeable against MIAA's Savings Account No. 274-500-3543 in the PNB Extension Office at the Manila International Airport in Pasay City, purportedly as partial
payment to the Philippine National Construction Corporation (PNCC), the mechanics of which said
accused Tabuena would personally take care of, when both accused well knew that there was no
outstanding obligation of MIAA in favor of PNCC, and after the issuance of the above-mentioned
manager's check, accused Luis A. Tabuena encashed the same and thereafter both accused
misappropriated and converted the proceeds thereof to their personal use and benefit, to the damage and
prejudice of the government in the aforesaid amount.
CONTRARY TO LAW.
xxx xxx xxx
That on or about the 16th day of January, 1986, and for sometime subsequent thereto, in the City of
Pasay. Philippines and within the jurisdiction of this Honorable Court, accused Luis A. Tabuena and
Gerardo G. Dabao, both public officers, being then the General Manager and Assistant General
Manager, respectively, of the Manila International Airport Authority (MIAA), and accountable for public
funds belonging to the MIAA, they being the only ones authorized to make withdrawals against the cash
accounts of MIAA pursuant to its board resolutions, conspiring, confederating and confabulating with
each other, did then and there wilfully, unlawfully, feloniously, and with intent to defraud the
government, take and misappropriate the amount of TWENTY FIVE MILLION PESOS
(P25,000,000.00) from MIAA funds by applying for the issuance of a manager.s check for said amount
in the name of accused Luis A. Tabuena chargeable against MIAA's Savings Account No. 274-500-3543 in the PNB Extension Office at the Manila International Airport in Pasay City, purportedly as partial
payment to the Philippine National Construction Corporation (PNCC), the mechanics of which said
accused Tabuena would personally take care of, when both accused well knew that there was no
outstanding obligation of MIAA in favor of PNCC, and after the issuance of the above-mentioned
manager's check, accused Luis A. Tabuena encashed the same and thereafter both accused
misappropriated and converted the proceeds thereof to their personal use and benefit, to the damage and
prejudice of the government in the aforesaid amount.
CONTRARY TO LAW.
xxx xxx xxx
That on or about the 29th day of January, 1986, and for sometime subsequent thereto, in the City of
Pasay, Philippines, and within the jurisdiction of this Honorable Court, accused Luis A. Tabuena and
Adolfo M. Peralta, both public officers, being then the General Manager and Acting Manager, Financial
Services Department, respectively, of the Manila International Airport Authority (MIAA), and
accountable for public funds belonging to the MIAA, they being the only ones authorized to make
withdrawals against the cash accounts of MIAA pursuant to its board resolutions, conspiring,
confederating and confabulating with each other, did then and there wilfully, unlawfully, feloniously,
and with intent to defraud the government, take and misappropriate the amount of FIVE MILLION
PESOS (P5,000,000.00) from MIAA funds by applying for the issuance of a manager's check for said
amount in the name of accused Luis A. Tabuena chargeable against MIAA's Savings Account No. 274SPECIAL ISSUES

99

500- 354-3 in the PNB Extension Office at the Manila International Airport in Pasay City, purportedly as
partial payment to the Philippine National Construction Corporation (PNCC), the mechanics of which
said accused Tabuena would personally take care of, when both accused well knew that there was no
outstanding obligation of MIAA in favor of PNCC, and after the issuance of the above-mentioned
manager's check, accused Luis A. Tabuena encashed the same and thereafter both accused
misappropriated and converted the proceeds thereof to their personal use and benefit, to the damage and
prejudice of the government in the aforesaid amount.
CONTRARY TO LAW.
Gathered from the documentary and testimonial evidence are the following essential antecedents:
Then President Marcos instructed Tabuena over the phone to pay directly to the president's office and in
cash what the MIAA owes the Philippine National Construction Corporation (PNCC), to which Tabuena
replied, "Yes, sir, I will do it." About a week later, Tabuena received from Mrs. Fe Roa-Gimenez, then
private secretary of Marcos, a Presidential Memorandum dated January 8, 1986 (hereinafter referred to
as MARCOS Memorandum) reiterating in black and white such verbal instruction, to wit:
Office of the President
of the Philippines
Malacanang
January 8, 1986
MEMO TO: The General Manager
Manila International Airport Authority
You are hereby directed to pay immediately the Philippine National Construction Corporation, thru this
Office, the sum of FIFTY FIVE MILLION (P55,000,000.00) PESOS in cash as partial payment of
MIAA's account with said Company mentioned in a Memorandum of Minister Roberto Ongpin to this
Office dated January 7, 1985 and duly approved by this Office on February 4, 1985.
Your immediate compliance is appreciated.
(Sgd.) FERDINAND MARCOS. 4
The January 7, 1985 memorandum of then Minister of Trade and Industry Roberto Ongpin referred to in
the MARCOS Memorandum, reads in full:
MEMORANDUM
For: The President
From: Minister Roberto V. Ongpin

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100

Date: 7 January 1985


Subject: Approval of Supplemental Contracts and Request for Partial Deferment of Repayment of
PNCC's Advances for MIA DevelopmentProject
May I request your approval of the attached recommendations of Minister Jesus S. Hipolito for eight (8)
supplemental contracts pertaining to the MIA Development Project (MIADP) between the Bureau of Air
Transport (BAT) and Philippine National Construction Corporation (PNCC), formerly CDCP, as
follows:
1. Supplemental Contract No. 12
Package Contract No. 2 P11,106,600.95
2. Supplemental Contract No. 13
5,758,961.52
3. Supplemental Contract No. 14
Package Contract No. 2 4,586,610.80
4. Supplemental Contract No. 15
1,699,862.69
5. Supplemental Contract No. 16
Package Contract No. 2 233,561.22
6. Supplemental Contract No. 17
Package Contract No. 2 8,821,731.08
7. Supplemental Contract No. 18
Package Contract No. 2 6,110,115.75
8. Supplemental Contract No. 3
Package Contract No. II 16,617,655.49
(xerox copies only; original memo was submitted to the Office of the President on May 28, 1984)
In this connection, please be informed that Philippine National Construction Corporation (PNCC),
formerly CDCP, has accomplishment billings on the MIA Development Project aggregating P98.4
million, inclusive of accomplishments for the aforecited contracts. In accordance with contract
provisions, outstanding advances totalling P93.9 million are to be deducted from said billings which will
leave a net amount due to PNCC of only P4.5 million.
At the same time, PNCC has potential escalation claims amounting to P99 million in the following
stages of approval/evaluation:

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101

Approved by Price Escalation Committee


(PEC) but pended for lack of funds P1.9 million
Endorsed by project consultants and
currently being evaluated by PEC 30.7 million
Submitted by PNCC directly to PEC
and currently under evaluation 66.5 million

Total P99.1 million


There has been no funding allocation for any of the above escalation claims due to budgetary
constraints.
The MIA Project has been completed and operational as far back as 1982 and yet residual amounts due
to PNCC have not been paid, resulting in undue burden to PNCC due to additional cost of money to
service its obligations for this contract.
To allow PNCC to collect partially its billings, and in consideration of its pending escalation billings,
may we request for His Excellency's approval for a deferment of the repayment of PNCC's advances to
the extent of P30 million corresponding to about 30% of P99.1 million in escalation claims of PNCC, of
which P32.5 million has been officially recognized by MIADP consultants but could not be paid due to
lack of funding.
Our proposal will allow BAT to pay PNCC the amount of P34.5 million out of existing MIA Project
funds. This amount represents the excess of the gross billings of PNCC of P98.4 million over the
undeferred portion of the repayment of advances of P63.9 million.
(Sgd.) ROBERTO V. ONGPIN
Minister 5

In obedience to President Marcos' verbal instruction and memorandum, Tabuena, with the help of Dabao
and Peralta, caused the release of P55 Million of MIAA funds by means of three (3) withdrawals.
The first withdrawal was made on January 10, 1986 for P25 Million, following a letter of even date
signed by Tabuena and Dabao requesting the PNB extension office at the MIAA the depository
branch of MIAA funds, to issue a manager's check for said amount payable to Tabuena. The check was
encashed, however, at the PNB Villamor Branch. Dabao and the cashier of the PNB Villamor branch
counted the money after which, Tabuena took delivery thereof. The P25 Million in cash were then
placed in peerless boxes and duffle bags, loaded on a PNB armored car and delivered on the same day to
the office of Mrs. Gimenez located at Aguado Street fronting Malacanang. Mrs. Gimenez did not issue
any receipt for the money received

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102

Similar circumstances surrounded the second withdrawal/encashment and delivery of another P25
Million, made on January 16, 1986.
The third and last withdrawal was made on January 31, 1986 for P5 Million. Peralta was Tabuena's cosignatory to the letter- request for a manager's check for this amount. Peralta accompanied Tabuena to
the PNB Villamor branch as Tabuena requested him to do the counting of the P5 Million. After the
counting, the money was placed in two (2) peerless boxes which were loaded in the trunk of Tabuena's
car. Peralta did not go with Tabuena to deliver the money to Mrs. Gimenez' office at Aguado Street. It
was only upon delivery of the P5 Million that Mrs. Gimenez issued a receipt for all the amounts she
received from Tabuena. The receipt, dated January 30, 1986, reads:
Malacanang
Manila
January 30, 1986
RECEIVED FROM LOUIE TABUENA THE TOTAL AMOUNT OF FIFTY FIVE MILLION PESOS
(P55,000,000.00) as of the following dates:
Jan. 10 P 25,000,000.00
Jan. 16 25,000,000.00
Jan. 30 5,000,000.00
(Sgd.) Fe Roa-Gimenez
The disbursement of the P55 Million was, as described by Tabuena and Peralta themselves, "out of the
ordinary" and "not based on the normal procedure". Not only were there no vouchers prepared to
support the disbursement, the P55 Million was paid in cold cash. Also, no PNCC receipt for the P55
Million was presented. Defense witness Francis Monera, then Senior Assistant Vice President and
Corporate Comptroller of PNCC, even affirmed in court that there were no payments made to PNCC by
MIAA for the months of January to June of 1986.
The position of the prosecution was that there were no outstanding obligations in favor of PNCC at the
time of the disbursement of the P55 Million. On the other hand, the defense of Tabuena and Peralta, in
short, was that they acted in good faith. Tabuena claimed that he was merely complying with the
MARCOS Memorandum which ordered him to forward immediately to the Office of the President P55
Million in cash as partial payment of MIAA's obligations to PNCC, and that he (Tabuena) was of the
belief that MIAA indeed had liabilities to PNCC. Peralta for his part shared the same belief and so he
heeded the request of Tabuena, his superior, for him (Peralta) to help in the release of P5 Million.
With the rejection by the Sandiganbayan of their claim of good faith which ultimately led to their
conviction, Tabuena and Peralta now set forth a total of ten (10) errors 6 committed by the
Sandiganbayan for this Court's consideration. It appears, however, that at the core of their plea that we
acquit them are the following:

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103

1) the Sandiganbayan convicted them of a crime not charged in the amended informations, and
2) they acted in good faith.
Anent the first proposition, Tabuena and Peralta stress that they were being charged with intentional
malversation, as the amended informations commonly allege that:
. . . accused . . . conspiring, confederating and other, then and there wilfully, unlawfully, feloniously, and
with intent to defraud the government, take and misappropriated the amount of . . . .
But it would appear that they were convicted of malversation by negligence. In this connection, the
Court's attention is directed to p. 17 of the December 20, 1991 Resolution (denying Tabuena's and
Peralta's motion for reconsideration) wherein the Sandiganbayan said:
xxx xxx xxx
On the contrary, what the evidence shows is that accused Tabuena delivered the P55 Million to people
who were not entitled thereto, either as representatives of MIAA or of the PNCC.
It proves that Tabuena had deliberately consented or permitted through negligence or abandonment,
some other person to take such public funds. Having done so, Tabuena, by his own narration, has
categorically demonstrated that he is guilty of the misappropriation or malversation of P55 Million of
public funds. (Emphasis supplied.)
To support their theory that such variance is a reversible flaw, Tabuena and Peralta argue that:
1) While malversation may be committed intentionally or by negligence, both modes cannot be
committed at the same time.
2) The Sandiganbayan was without jurisdiction to convict them of malversation of negligence where the
amended informations charged them with intentional malversation. 7

3) Their conviction of a crime different from that charged violated their constitutional right to be
informed of the accusation. 8
We do not agree with Tabuena and Peralta on this point. Illuminative and controlling is "Cabello v.
Sandiganbayan" 9 where the Court passed upon similar protestations raised by therein accused-petitioner
Cabello whose conviction for the same crime of malversation was affirmed, in this wise:
. . . even on the putative assumption that the evidence against petitioner yielded a case of malversation
by negligence but the information was for intentional malversation, under the circumstances of this case
his conviction under the first mode of misappropriation would still be in order. Malversation is
committed either intentionally or by negligence. The dolo or the culpa present in the offense is only a
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104

modality in the perpetration of the felony. Even if the mode charged differs from the mode proved, the
same offense of malversation is involved and conviction thereof is proper. . . .
In Samson vs. Court of Appeals, et. al., we held that an accused charged with willful or intentional
falsification can validly be convicted of falsification through negligence, thus:
While a criminal negligent act is not a simple modality of a willful crime, as we held in Quizon
vs.Justice of the Peace of Bacolor. G.R. No. L-6641, July 28, 1995, but a distinct crime in our Penal
Code, designated as a quasi offense in our Penal Code, it may however be said that a conviction for the
former can be had under an information exclusively charging the commission of a willful offense, upon
the theory that the greater includes the lesser offense. This is the situation that obtains in the present
case. Appellant was charged with willful falsification but from the evidence submitted by the parties, the
Court of Appeals found that in effecting the falsification which made possible the cashing of the checks
in question, appellant did not act with criminal intent but merely failed to take proper and adequate
means to assure himself of the identity of the real claimants as an ordinary prudent man would do. In
other words, the information alleges acts which charge willful falsification but which turned out to be
not willful but negligent. This is a case covered by the rule when there is a variance between the
allegation and proof, and is similar to some of the cases decided by this Tribunal.
xxx xxx xxx
Moreover; Section 5, Rule 116, of the Rules of Court does not require that all the essential elements of
the offense charged in the information be proved, it being sufficient that some of said essential elements
or ingredients thereof be established to constitute the crime proved. . . .
The fact that the information does not allege that the falsification was committed with imprudence is of
no moment for here this deficiency appears supplied by the evidence submitted by appellant himself and
the result has proven beneficial to him. Certainly, having alleged that the falsification has been willful, it
would be incongruous to allege at the same time that it was committed with imprudence for a charge of
criminal intent is incompatible with the concept of negligence.
Subsequently, we ruled in People vs. Consigna, et. al., that the aforestated rationale and arguments also
apply to the felony of malversation, that is, that an accused charged with willful malversation, in an
information containing allegations similar to those involved in the present case, can be validly convicted
of the same offense of malversation through negligence where the evidence sustains the latter mode of
perpetrating the offense.
Going now to the defense of good faith, it is settled that this is a valid defense in a prosecution for
malversation for it would negate criminal intent on the part of the accused. Thus, in the two (2) vintage,
but significantmalversation cases of "US v. Catolico" 10 and "US v. Elvina," 11 the Court stressed that:
To constitute a crime, the act must, except in certain crimes made such by statute, be accompanied by a
criminal intent, or by such negligence or indifference to duty or to consequences as, in law, is equivalent
to criminal intent. The maxim is actus non facit reum, nisi mens sit rea a crime is not committed if
the mind of the person performing the act complained of is innocent.

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105

The rule was reiterated in "People v. Pacana,"


documents and estafa:

12

although this case involved falsification of public

Ordinarily, evil intent must unite with an unlawful act for there to be a crime. Actus non facit reum, nisi
mens sit rea. There can be no crime when the criminal mind is wanting.
American jurisprudence echoes the same principle. It adheres to the view that criminal intent in
embezzlement is not based on technical mistakes as to the legal effect of a transaction honestly entered
into, and there can be no embezzlement if the mind of the person doing the act is innocent or if there is
no wrongful purpose. 13 The accused may thus always introduce evidence to show he acted in good faith
and that he had no intention to convert. 14 And this, to our mind, Tabuena and Peralta had meritoriously
shown.
In so far as Tabuena is concerned, with the due presentation in evidence of the MARCOS Memorandum
we are swayed to give credit to his claim of having caused the disbursement of the P55 Million solely by
reason of such memorandum. From this premise flows the following reasons and/or considerations that
would buttress his innocence of the crime of malversation.
First. Tabuena had no other choice but to make the withdrawals, for that was what the MARCOS
Memorandum required him to do. He could not be faulted if he had to obey and strictly comply with the
presidential directive, and to argue otherwise is something easier said than done. Marcos was undeniably
Tabuena's superior the former being then the President of the Republic who unquestionably exercised
control over government agencies such as the MIAA and PNCC. 15 In other words, Marcos had a say in
matters involving inter-government agency affairs and transactions, such as for instance, directing
payment of liability of one entity to another and the manner in which it should be carried out. And as a
recipient of such kind of a directive coming from the highest official of the land no less, good faith
should be read on Tabuena's compliance, without hesitation nor any question, with the MARCOS
Memorandum. Tabuena therefore is entitled to the justifying circumstance of "Any person who acts in
obedience to an order issued by a superior for some lawful purpose." 16 The subordinate-superior
relationship between Tabuena and Marcos is clear. And so too, is the lawfulness of the order contained in
the MARCOS Memorandum, as it has for its purpose partial payment of the liability of one government
agency (MIAA) to another (PNCC). However, the unlawfulness of the MARCOS Memorandum was
being argued, on the observation, for instance, that the Ongpin Memo referred to in the presidential
directive reveals a liability of only about P34.5 Million. The Sandiganbayan in this connection said:
Exhibits "2" and "2-a" (pages 1 and 2 of the memorandum of Min. Ongpin to the President dated
January 7, 1985) were mainly:
a.) for the approval of eight Supplemental Contracts; and
b.) a request for partial deferment of payment by PNCC for advances made for the MIAA Development
Project, while at the same time recognizing some of the PNCC's escalation billings which would result
in making payable to PNCC the amount of P34.5 million out of existing MIAA Project funds.
Thus:

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106

"xxx xxx xxx


To allow PNCC to collect partially its billings, and in consideration of ifs pending escalation billings,
may we request for His Excellency's approval for a deferment of repayment of PNCC's advances to the
extent of P30 million corresponding to about 30% of P99.1 million in escalation claims of PNCC, of
which P32.6 million has been officially recognized by MIADP consultants but could not be paid due to
lack of funding.
Our proposal will allow BAT to pay PNCC the amount of P34.5 million out of existing MIA Project
funds. This amount represents the excess of the gross billings of PNCC of P98.4 million over the
undeferred portion of the repayment of advances of P63.9 million."
While Min. Ongpin may have, therefore recognized the escalation claims of the PNCC to MIAA to the
extent of P99.1 million (Exhibit 2a), a substantial portion thereof was still in the stages of evaluation and
approval, with only P32.6 million having been officially recognized by the MIADP consultants.
If any payments were, therefore, due under this memo for Min. Ongpin (upon which President Marcos'
Memo was based) they would only be for a sum of up to P34.5 million. 17

xxx xxx xxx


V. Pres. Marcos' order to Tabuena dated January 8, 1986 baseless.
Not only was Pres. Marcos' Memo (Exhibit "1") for Tabuena to pay P55 million irrelevant, but it was
actually baseless.
This is easy to see.
Exhibit "1" purports to refer itself to the Ongpin Memorandum (Exhibit "2", "2-a"); Exhibit "1",
however, speaks of P55 million to be paid to the PNCC while Exhibit "2" authorized only P34.5 million.
The order to withdraw the amount of P55 million exceeded the approved payment of P34.5 million by
P20.5 million. Min. Ongpin's Memo of January 7, 1985 could not therefore serve as a basis for the
President's order to withdraw P55 million. 18
Granting this to be true, it will not nevertheless affect Tabuena's goad faith so as to make him criminally
liable. What is more significant to consider is that the MARCOS Memorandum is patently legal (for on
its face it directs payment of an outstanding liability) and that Tabuena acted under the honest belief that
the P55 million was a due and demandable debt and that it was just a portion of a bigger liability to
PNCC. This belief is supported by defense witness Francis Monera who, on direct examination, testified
that:
ATTY ANDRES

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107

Q Can you please show us in this Exhibit "7" and "7-a" where it is indicated the receivables from MIA
as of December 31, 1985?
A As of December 31, 1985, the receivables from MIA is shown on page 2, marked as Exhibit "7-a", sir,
P102,475.392.35
xxx xxx xxx 19
ATTY. ANDRES
Q Can you tell us, Mr. Witness, what these obligations represent?
WITNESS
A These obligations represent receivables on the basis of our billings to MIA as contract-owner of the
project that the Philippine National Construction Corporation constructed. These are billings for
escalation mostly, sir.
Q What do you mean by escalation?
A Escalation is the component of our revenue billings to the contract-owner that are supposed to take
care of price increases, sir.
xxx xxx xxx 20
ATTY ANDRES
Q When you said these are accounts receivable, do I understand from you that these are due and
demandable?
A Yes, sir. 21
Thus, even if the order is illegal if it is patently legal and the subordinate is not aware of its illegality, the
subordinate is not liable, for then there would only be a mistake of fact committed in good faith. 22 Such
is the ruling in "Nassif v. People" 23 the facts of which, in brief, are as follows:
Accused was charged with falsification of commercial document. A mere employee of R.J. Campos, he
inserted in the commercial document alleged to have been falsified the word "sold" by order of his
principal. Had he known or suspected that his principal was committing an improper act of falsification,
he would be liable either as a co-principal or as an accomplice. However, there being no malice on his
part, he was exempted from criminal liability as he was a mere employee following the orders of his
principal. 24
Second. There is no denying that the disbursement, which Tabuena admitted as "out of the ordinary", did

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not comply with certain auditing rules and regulations such as those pointed out by the Sandiganbayan,
to wit:
a) [except for salaries and wages and for commutation of leaves] all disbursements above P1,000.00
should be made by check (Basic Guidelines for Internal Control dated January 31, 1977 issued by COA)
b) payment of all claims against the government had to be supported with complete documentation (Sec.
4, P.D. 1445, "State Auditing Code of the Philippines). In this connection, the Sandiganbayan observed
that:
There were no vouchers to authorize the disbursements in question. There were no bills to support the
disbursement. There were no certifications as to the availability of funds for an unquestionably
staggering sum of P55 Million. 25
c) failure to protest (Sec. 106, P.D. 1445)
But this deviation was inevitable under the circumstances Tabuena was in. He did not have the luxury of
time to observe all auditing procedures of disbursement considering the fact that the MARCOS
Memorandum enjoined his "immediate compliance" with the directive that he forward to the President's
Office the P55 Million in cash. Be that as it may, Tabuena surely cannot escape responsibility for such
omission. But since he was acting in good faith, his liability should only be administrative or civil in
nature, and not criminal. This follows the decision in "Villacorta v. People" 26 where the Court, in
acquitting therein accused municipal treasurer of Pandan, Catanduanes of malversation after finding that
he incurred a shortage in his cash accountability by reason of his payment in good faith to certain
government personnel of their legitimate wages leave allowances, etc., held that:
Nor can negligence approximating malice or fraud be attributed to petitioner. If he made wrong
payments, they were in Good faith mainly to government personnel, some of them working at the
provincial auditor's and the provincial treasurer's offices And if those payments ran counter to auditing
rules and regulations, they did not amount to a criminal offense and he should only be held
administratively or civilly liable.
Likewise controlling is "US v. Elvina" 27 where it was held that payments in good faith do not amount to
criminal appropriation, although they were made with insufficient vouchers or improper evidence. In
fact, the Dissenting Opinion's reference to certain provisions in the revised Manual on Certificate of
Settlement and Balances apparently made to underscore Tabuena's personal accountability, as agency
head, for MIAA funds would all the more support the view that Tabuena is vulnerable to civil
sanctions only Sections 29.2 and 295 expressly and solely speak of "civilly liable," describe the kind of
sanction imposable on a superior officer who performs his duties with "bad faith, malice or gross
negligence"' and on a subordinate officer or employee who commits "willful or negligent acts . . . which
are contrary to law, morals, public policy and good customs even if he acted under order or instructions
of his superiors."
Third. The Sandiganbayan made the finding that Tabuena had already converted and misappropriated the
P55 Million when he delivered the same to Mrs. Gimenez and not to the PNCC, proceeding from the

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following definitions/concepts of "conversion":


"Conversion", as necessary element of offense of embezzlement, being the fraudulent "appropriation to
one's own use' of another's property which does not necessarily mean to one's personal advantage but
every attempt by one person to dispose of the goods of another without right as if they were his own is
conversion to his own use." (Terry v. Water Improvement Dist. No. 5 of Tulsa County, 64 p, 2d 904, 906,
179 Okl. 106)
At p. 207, Words and Phrases,
Permanent Edition 9A.
Conversion is any interference subversive of the right of the owner of personal property to enjoy and
control it. The gist of conversion is the usurpation of the owner 's right of property, and not the actual
damages inflicted. Honesty of purpose is not a defense. (Ferrera v. Parks, 23 p. 883, 885 19 Or. 141)
At page 168, id.
xxx xxx xxx
The words "convert" and "misappropriate" connote an act of using or disposing of another's property as
if it were one's own. They presuppose that the thing has been devoted to a purpose or use different from
that agreed upon. To appropriate to one's own use includes not only conversion to one's personal
advantage but every attempt to dispose of the property of another without right.
People vs. Webber, 57 O.G.
p. 2933, 2937
By placing them at the disposal of private persons without due authorization or legal justification, he
became as guilty of malversation as if he had personally taken them and converted them to his own use.
People vs. Luntao, 50 O.G.
p. 1182, 1183 28
We do not agree. It must be stressed that the MARCOS Memorandum directed Tabuena "to pay
immediately the Philippine National Construction Corporation, thru this office the sum of FIFTY FIVE
MILLION. . .", and that was what Tabuena precisely did when he delivered the money to Mrs. Gimenez.
Such delivery, no doubt, is in effect delivery to the Office of the President inasmuch as Mrs. Gimenez
was Marcos' secretary then. Furthermore, Tabuena had reasonable ground to believe that the President
was entitled to receive the P55 Million since he was certainly aware that Marcos, as Chief Executive,
exercised supervision and control over government agencies. And the good faith of Tabuena in having
delivered the money to the President's office (thru Mrs. Gimenez), in strict compliance with the
MARCOS Memorandum, was not at all affected even if it later turned out that PNCC never received the
money. Thus, it has been said that:
Good faith in the payment of public funds relieves a public officer from the crime of malversation.

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xxx xxx xxx


Not every unauthorized payment of public funds is malversation. There is malversation only if the
public officer who has custody of public funds should appropriate the same, or shall take or
misappropriate or shall consent, or through abandonment or negligence shall permit any other person to
take such public funds. Where the payment of public funds has been made in good faith, and there is
reasonable ground to believe that the public officer to whom the fund had been paid was entitled thereto,
he is deemed to have acted in good faith, there is no criminal intent, and the payment, if it turns out that
it is unauthorized, renders him only civilly but not criminally liable. 29
Fourth. Even assuming that the real and sole purpose behind the MARCOS Memorandum was to
siphon-out public money for the personal benefit of those then in power, still, no criminal liability can be
imputed to Tabuena. There is no showing that Tabuena had anything to do whatsoever with the
execution of the MARCOS Memorandum. Nor is there proof that he profited from the felonious scheme.
In short, no conspiracy was established between Tabuena and the real embezzler/s of the P5 Million. In
the cases of "US v. Acebedo" 30 and "Ang v. Sandiganbayan", 31 both also involving the crime of
malversation, the accused therein were acquitted after the Court arrived at a similar finding of non-proof
of conspiracy. In "Acebedo", therein accused, as municipal president of Palo, Leyte, was prosecuted for
and found guilty by the lower court of malversation after being unable to turn over certain amounts to
the then justice of the peace. It appeared, however, that said amounts were actually collected by his
secretary Crisanto Urbina. The Court reversed Acebedo's conviction after finding that the sums were
converted by his secretary Urbina without the knowledge and participation of Acebedo. The Court said,
which we herein adopt:
No conspiracy between the appellant and his secretary has been shown in this case, nor did such
conspiracy appear in the case against Urbina. No guilty knowledge of the theft committed by the
secretary was shown on the part of the appellant in this case, nor does it appear that he in any way
participated in the fruits of the crime. If the secretary stole the money in question without the knowledge
or consent of the appellant and without negligence on his part, then certainly the latter can not be
convicted of embezzling the same money or any part thereof. 32
In "Ang", accused-petitioner, as MWSS bill collector, allowed part of his collection to be converted into
checks drawn in the name of one Marshall Lu, a non-customer of MWSS, but the checks were
subsequently dishonored. Ang was acquitted by this Court after giving credence to his assertion that the
conversion of his collections into checks were thru the machinations of one Lazaro Guinto, another
MWSS collector more senior to him. And we also adopt the Court's observation therein, that:
The petitioner's alleged negligence in allowing the senior collector to convert cash collections into
checks may be proof of poor judgment or too trusting a nature insofar as a superior officer is concerned
but there must be stronger evidence to show fraud, malice, or other indicia of deliberateness in the
conspiracy cooked up with Marshall Lu. The prosecution failed to show that the petitioner was privy to
the conspirational scheme. Much less is there any proof that he profited from the questioned acts. Any
suspicions of conspiracy, no matter how sincerely and strongly felt by the MWSS, must be converted
into evidence before conviction beyond reasonable doubt may be imposed. 33
The principles underlying all that has been said above in exculpation of Tabuena equally apply to Peralta
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in relation to the P5 Million for which he is being held accountable, i.e., he acted in good faith when he,
upon the directive of Tabuena, helped facilitate the withdrawal of P5 Million of the P55 Million of the
MIAA funds.
This is not a sheer case of blind and misguided obedience, but obedience in good faith of a duly
executed order. Indeed, compliance to a patently lawful order is rectitude far better than contumacious
disobedience. In the case at bench, the order emanated from the Office of the President and bears the
signature of the President himself, the highest official of the land. It carries with it the presumption that
it was regularly issued. And on its face, the memorandum is patently lawful for no law makes the
payment of an obligation illegal. This fact, coupled with the urgent tenor for its execution constrains one
to act swiftly without question. Obedientia est legis essentia. Besides, the case could not be detached
from the realities then prevailing As aptly observed by Mr Justice Cruz in his dissenting opinion:
We reject history in arbitrarily assuming that the people were free during the era and that the Judiciary
was independent and fearless. We know it was not: even the Supreme Court at that time was not free.
This is an undeniable fact that we can not just blink away. Insisting on the contrary would only make our
sincerity suspect and even provoke scorn for what can only be described as our incredible credulity. 34
But what appears to be a more compelling reason for their acquittal is the violation of the accused's basic
constitutional right to due process. "Respect for the Constitution", to borrow once again Mr. Justice
Cruz's words, "is more important than securing a conviction based on a violation of the rights of the
accused." 35 While going over the records, we were struck by the way the Sandiganbayan actively took
part in the questioning of a defense witness and of the accused themselves. Tabuena and Peralta may not
have raised this as an error, there is nevertheless no impediment for us to consider such matter as
additional basis for a reversal since the settled doctrine is that an appeal throws the whole case open to
review, and it becomes the duty of the appellate court to correct such errors as may be found in the
judgment appealed from whether they are made the subject of assignments of error or not. 36
Simply consider the volume of questions hurled by the Sandiganbayan. At the taking of the testimony of
Francis Monera. then Senior Assistant Vice President and Corporate Comptroller of PNCC, Atty. Andres
asked sixteen (16) questions on direct examination. Prosecutor Viernes only asked six (6) questions on
cross-examination in the course of which the court interjected a total of twenty-seven (27) questions
(more than four times Prosecutor Viernes' questions and even more than the combined total of direct and
cross-examination questions asked by the counsels) After the defense opted not to conduct any re-direct
examination, the court further asked a total of ten (10) questions. 37 The trend intensified during
Tabuena's turn on the witness stand. Questions from the court after Tabuena's cross-examination totalled
sixty-seven (67). 38 This is more than five times Prosecutor Viernes' questions on cross-examination (14),
and more than double the total of direct examination and cross-examination questions which is thirtyone (31) [17 direct examination questions by Atty. Andres plus 14 cross-examination questions by
Prosecutor Viernes]. In Peralta's case, the Justices, after his cross-examination, propounded a total of
forty-one (41) questions. 39
But more importantly, we note that the questions of the court were in the nature of cross examinations
characteristic of confrontation, probing and insinuation. 40 (The insinuating type was best exemplified in
one question addressed to Peralta, which will be underscored.) Thus we beg to quote in length from the
transcripts pertaining to witness Monera, Tabuena and Peralta. (Questions from the Court are marked
SPECIAL ISSUES

112

with asterisks and italicized for emphasis.)


(MONERA)
(As a background, what was elicited from his direct examination is that the PNCC had receivables from
MIAA totalling P102,475,392.35, and although such receivables were largely billings for escalation,
they were nonetheless all due and demandable. What follows are the cross-examination of Prosecutor
Viernes and the court questions).
CROSS-EXAMINATION BY PROS. VIERNES
Q You admit that as shown by these Exhibits "7" and "7- a", the items here represent mostly escalation
billings. Were those escalation billings properly transmitted to MIA authorities?
A I don't have the documents right now to show that they were transmitted, but I have a letter by our
President, Mr. Olaguer, dated July 6, 1988, following up for payment of the balance of our receivables
from MIA, sir.
*AJ AMORES
*Q This matter of escalation costs, is it not a matter for a conference between the MIA and the PNCC for
the determination as to the correct amount?
A I agree, your Honor. As far as we are concerned, our billings are what we deemed are valid receivables
And, in fact, we have been following up for payment.
*Q This determination of the escalation costs was it accepted as the correct figure by MIA ?
A I don't have any document as to the acceptance by MIA your Honor, but our company was able to get
a document or a letter by Minister Ongpin to President Marcos, dated January 7, 1985, with a marginal
note or approval by former President Marcos.
*PJ GARCHITORENA
*Q Basically, the letter of Mr. Ongpin is to what effect?
A The subject matter is approval of the supplementary contract and request for partial deferment of
payment for MIA Development Project, your Honor.
*Q It has nothing to do with the implementation of the escalation costs?
A The details show that most of the accounts refer to our escalations, your Honor.
*Q Does that indicate the computation for escalations were already billed or you do not have any proof

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of that
A Our subsidiary ledger was based on billings to MIA and this letter of Minister Ongpin appears to have
confirmed our billings to MIA, your Honor.
*AJ AMORES
*Q Were there partial payments made by MIA an these escalation billings?
A Based on records available as of today, the P102 million was reduced to about P56.7 million, if my
recollection is correct, your Honor.
*PJ GARCHITORENA
*Q Were the payments made before or after February 1986, since Mr. Olaguer is a new entrant to your
company?
WITNESS
A The payments were made after December 31, 1985 but I think the payments were made before the
entry of our President, your Honor. Actually, the payment was in the form of: assignments to State
Investment of about P23 million; and then there was P17.8 million application against advances made or
formerly given; and there were payments to PNCC of about P2.6 million and there was a payment for
application on withholding and contractual stock of about P1 million; that summed up to P44.4 million
all in all. And you deduct that from the P102 million, the remaining balance would be about P57 million.
*PJ GARCHITORENA
*Q What you are saying is that, for all the payments made on this P102 million, only P2 million had
been payments in cash ?
A Yes, your Honor.
*Q The rest had been adjustments of accounts, assignments of accounts, or offsetting of accounts?
A Yes, your Honor.
*Q This is as of December 31, 1985?
A The P102 million was as of December 31, 1985, your Honor, but the balances is as of August 1987.
*Q We are talking now about the P44 million, more or less, by which the basic account has been
reduced. These reductions, whether by adjustment or assignment or actual delivery of cash, were made
after December 31, 1985?

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114

WITNESS
A Yes, your Honor.
*Q And your records indicate when these adjustments and payments were made?
A Yes, your Honor.
*AJ AMORES
*Q You said there were partial payments before of these escalation billings. Do we get it from you that
there was an admission of these escalation costs as computed by you by MIA, since there was already
partial payments?
A Yes, your Honor.
*Q How were these payments made before February 1986, in case or check, if there were payments
made?
A The P44 million payments was in the form of assignments, your Honor.
*PJ GARCHITORENA
*Q The question of the Court is, before December 31, 1985, were there any liquidations made by MIA
against these escalation billings?
A I have not reviewed the details of the record, your Honor. But the ledger card indicates that there were
collections on page 2 of the Exhibit earlier presented. It will indicate that there were collections shown
by credits indicated on the credit side of the ledger.
*AJ AMORES
*Q Your ledger does not indicate the manner of giving credit to the MIA with respect to the escalation
billings. Was the payment in cash or just credit of some sort before December 31, 1985?
A Before December 31, 1985, the reference of the ledger are official receipts and I suppose these were
payments in cash, your Honor.
*Q Do you know how the manner of this payment in cash was made by MIA?
A I do not know, your Honor.
*PJ GARCHITORENA

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115

*Q But your records will indicate that?


A The records will indicate that, your Honor.
*Q Except that you were not asked to bring them?
A Yes, your Honor.
*Q At all events, we are talking of settlement or partial liquidation prior to December 31, 1985?
A Yes, your Honor.
*PJ GARCHITORENA
*Q Subsequent thereto, we are talking merely of about P44 million?
A Yes, your Honor, as subsequent settlements.
*Q After December 31, 1985?
A Yes, your Honor.
*Q And they have liquidated that, as you described it, by way of assignments, adjustments, by offsets
and by P2 million of cash payment?
A Yes, your Honor.
*AJ AMORES
*Q Your standard operating procedure before December 31, 1985 in connection with or in case of cash
payment, was the payment in cash or check?
A I would venture to say it was by check, your Honor.
*Q Which is the safest way to do it?
A Yes, your Honor.
"PJ GARCHITORENA
*Q And the business way?
A Yes, your Honor.

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116

PJ GARCHITORENA
Continue.
PROS VIERNES
Q You mentioned earlier about the letter of former Minister Ongpin to the former President Marcos, did
you say that letter concurs with the escalation billings reflected in Exhibits "7" and "7-a"?
WITNESS
A The Company or the management is of the opinion that this letter, a copy of which we were able to
get, is a confirmation of the acceptance of our billings, sir.
Q This letter of Minister Ongpin is dated January 7, 1985, whereas the entries of escalation billings as
appearing in Exhibit "7" are dated June 30, 1985, would you still insist that the letter of January 1985
confirms the escalation billings as of June 1985?
A The entries started June 30 in the ledger card. And as of December 31, 1985, it stood at P102 million
after payments were made as shown on the credit side of the ledger. I suppose hat the earlier amount,
before the payment was made, was bigger and therefore I would venture to say that the letter of January
7, 1985 contains an amount that is part of the original contract account. What are indicated in the ledger
are escalation billings.
*PJ GARCHITORENA
*Q We are talking about the letter of Minister Ongpin?
A The letter of Minister Ongpin refers to escalation billings, sir.
*Q As of what date?
A The letter is dated January 7, 1985, your Honor.
PJ GARCHITORENA
Continue.
PROS. VIERNES
Q In accordance with this letter marked Exhibit "7" and "7-a", there were credits made in favor of MIA
in July and November until December 1985. These were properly credited to the account of MIA?
WITNESS

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117

A Yes, sir.
Q In 1986. from your records as appearing in Exhibit "7-a", there were no payments made to PNCC by
MIA for the months of January to June 1986?
A Yes, sir.
Q And neither was the amount of P22 million remitted to PNCC by MIA?
A Yes, sir.
PROS VIERNES
That will be all, your Honor.
PJ GARCHITORENA
Redirect?
ATTY ANDRES
No redirect, your Honor.
*PJ GARCHITORENA
Questions from the Court.
*AJ AMORES
*Q From your records, for the month of January 1986, there was no payment of this escalation account
by MIA?
WITNESS
A Yes, your Honor. But on page 2 of Exhibit "7" there appears an assignment of P23 million, that was on
September 25, 1986.
*Q But that is already under the present administration?
A After February 1986, your Honor.
*Q But before February, in January 1986, there was no payment whatsoever by MIA to PNCC?
A Per record there is none appearing, your Honor.

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118

*PJ GARCHITORENA
*Q The earliest payment, whether by delivery of cash equivalent or of adjustment of account, or by
assignment, or by offsets, when did these payments begin?
A Per ledger card, there were payments in 1985, prior to December 31, 1985, your Honor.
*Q After December 31, 1985?
A There appears also P23 million as credit, that is a form of settlement, your Honor.
*Q This is as of September 25?
A Yes, your Honor. There were subsequent settlements P23 million is just part of the P44 million.
*Q And what you are saying is that, PNCC passed the account to State Investment. In other words, State
Investment bought the credit of MIA?
A Yes, your Honor.
*Q And the amount of credit or receivables sold by PNCC to State Investment is P23 million?
A Yes, your Honor.
*Q Is there a payback agreement?
A I have a copy of the assignment to State Investment but I have not yet reviewed the same, your Honor.
*AJ AMORES
*Q As of now, is this obligation of MIA, now NAIA, paid to PNCC?
A There is still a balance of receivables from MIA as evidenced by a collection letter by our President
dated July 6, 1988, your Honor. The amount indicated in the letter is P55 million.
PJ GARCHITORENA
Any clarifications you would like to make Mr. Estebal?
ATTY ESTEBAL
None, your Honor.
PJ GARCHITORENA

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119

Mr. Viernes?
PROS VIERNES
No more, your Honor.
PJ GARCHITORENA
The witness is excused. Thank you very much Mr. Monera. . . . 41
(TABUENA)
(In his direct examination, he testified that he caused the preparation of the checks totalling P55 Million
pursuant to the MARCOS Memorandum and that he thereafter delivered said amount in cash on the
three (3) dates as alleged in the information to Marcos' private secretary Mrs. Jimenez at her office at
Aguado Street, who thereafter issued a receipt. Tabuena also denied having used the money for his own
personal use.)
CROSS-EXAMINATION BY PROS. VIERNES
Q The amount of P55 million as covered by the three (3) checks Mr. Tabuena, were delivered on how
many occasions?
A Three times, sir.
Q And so, on the first two deliveries, you did not ask for a receipt from Mrs. Gimenez?
A Yes, sir.
Q It was only on January 30, 1986 that this receipt Exhibit "3" was issued by Mrs. Gimenez?
A Yes, sir.
*PJ GARCHITORENA
*Q So January 30 is the date of the last delivery?
A I remember it was on the 31st of January, your Honor What happened is that, I did not notice the date
placed by Mrs. Gimenez.
Q Are you telling us that this Exhibit "3" was incorrectly dated
A Yes, your Honor.

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120

*Q Because the third delivery was on January 31st and yet the receipt was dated January 30?
A Yes, your Honor.
*Q When was Exhibit "3" delivered actually by Mrs. Gimenez?
A January 31st, your Honor.
PJ GARCHITORENA
Continue.
PROS VIERNES
Q You did not go to Malacaang on January 30, 1986?
A Yes, sir, I did not.
Q Do you know at whose instance this Exhibit "3" was prepared?
A I asked for it, sir.
Q You asked for it on January 31, 1986 when you made the last delivery?
A Yes, sir.
Q Did you see this Exhibit "3" prepared in the Office of Mrs. Gimenez?
A Yes, sir.
Q This receipt was typewritten in Malacaang stationery. Did you see who typed this receipt?
A No, sir. What happened is that, she went to her room and when she came out she gave me that receipt.
*PJ GARCHITORENA
Q What you are saying is, you do not know who typed that receipt?
WITNESS
A Yes, your Honor.
*Q Are you making an assumption that she typed that receipt?

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121

A Yes, your Honor, because she knows how to type.


*Q Your assumption is that she typed it herself?
A Yes, your Honor.
PJ GARCHITORENA
Proceed.
PROS. VIERNES
Q This receipt was prepared on January 31, although it is dated January 30?
A Yes, sir, because I was there on January 31st.
Q In what particular place did Mrs. Gimenez sign this Exhibit "3"?
A In her office at Aguado, sir.
Q Did you actually see Mrs. Gimenez signing this receipt Exhibit "3"?
A No, sir, I did not. She was inside her room.
Q So, she was in her room and when she came out of the room, she handed this receipt to you already
typed and signed?
A Yes, sir.
*AJ HERMOSISIMA
*Q So, how did you know this was the signature of Mrs. Gimenez?
WITNESS
A Because I know her signature, your Honor. I have been receiving letters from her also and when she
requests for something from me. Her writing is familiar to me.
So, when the Presiding Justice asked you as to how you knew that this was the signature of Mrs.
Gimenez and you answered that you saw Mrs. Gimenez signed it, you were not exactly truthful?
A What I mean is, I did not see her sign because she went to her room and when she came out, she gave
me that receipt, your Honor.

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122

PJ GARCHITORENA
That is why you have to wait for the question to be finished and listen to it carefully. Because when I
asked you, you said you saw her signed it. Be careful Mr. Tabuena.
WITNESS
Yes, your Honor.
PJ GARCHITORENA
Continue.
PROS VIERNES
Was there another person inside the office of Mrs. Gimenez when she gave you this receipt Exhibit "3"?
A Nobody, sir.
Q I noticed in this receipt that the last delivery of the sum of P55 million was made on January 30. Do
we understand from you that this date January 30 is erroneous?
A Yes, sir, that January 30 is erroneous. I noticed it only afterwards. This should be January 31st, sir.
PROS VIERNES
That will be all, your Honor.
PJ GARCHITORENA
Redirect?
ATTY. ANDRES
No redirect, your Honor.
*PJ GARCHITORENA
Questions from the Court.
*AJ HERMOSISIMA
*Q Why did you not ask for a receipt on the first and second deliveries?

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123

A Because I know that the delivery was not complete yet, your Honor.
*PJ GARCHITORENA
*Q So you know that the total amount to be delivered was P55 million')
A Yes, your Honor.
PJ GARCHITORENA
Response by Mr. Peralta to the testimony of Mr. Tabuena.
ATTY. ESTEBAL
We are adopting the testimony of Mr. Tabuena and we will also present the accused, your Honor.
*AJ DEL ROSARIO
"Q From whom did you receive the President's memorandum marked Exhibit "1"? Or more precisely,
who handed you this memorandum?
A Mrs. Fe Roa Gimenez, your Honor.
Q Did you ask Mrs, Fe Gimenez for what purpose the money was being asked?
A The money was in payment for the debt of the MIA Authority to PNCC, your Honor.
*Q If it was for the payment of such obligation why was there no voucher prepared to cover such
payment? In other words, why was the delivery of the money not covered by any voucher?
A The instruction to me was to give it to the Office of the President, your Honor.
*PJ GARCHITORENA
*Q Be that as it may, why was there no voucher to cover this particular disbursement?
A I was just told to bring it to the Office of the President, your Honor.
*AJ DEL ROSARIO
*Q Was that normal procedure for you to pay in cash to the Office of the President for obligations of the
MIAA in payment of its obligation to another entity?
WITNESS

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124

A No, your Honor, I was just following the Order to me of the President.
*PJ GARCHITORENA
*Q So the Order was out of the ordinary?
A Yes, your Honor.
*AJ DEL ROSARIO
Did you file any written protest with the manner with which such payment was being ordered?
A No, your Honor.
*Q Why not?
A Because with that instruction of the President to me, I followed, your Honor.
*Q Before receiving this memorandum Exhibit "1", did the former President Marcos discuss this maitter
with you?
A Yes, your Honor.
*Q When was that?
A He called me up earlier, a week before that, that he wants to me pay what I owe the PNCC directly to
his office in cash, your Honor.
*PJ GARCHITORENA
*Q By "I OWE ", you mean the MIAA?
WITNESS
A Yes, your Honor.
*AJ DEL ROSARIO
*Q And what did you say in this discussion you had with him?
A I just said, "Yes, sir, I will do it/"
*Q Were you the one who asked for a memorandum to be signed by him?

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125

A No, your Honor.


*Q After receiving that verbal instruction for you to pay MIAA's obligation with PNCC, did you not on
your own accord already prepare the necessary papers and documents for the payment of that
obligation?
A He told me verbally in the telephone that the Order for the payment of that obligation is forthcoming,
your Honor. I will receive it.
*Q Is this the first time you received such a memorandum from the President?
A Yes, your Honor.
*Q And was that the last time also that you received such a memorandum?
A Yes, your Honor.
*Q Did you not inquire, if not from the President, at least from Mrs. Gimenez why this procedure has to
be followed instead of the regular procedure?
A No, sir.
*AJ DEL ROSARIO
*Q Why did you not ask?
A I was just ordered to do this thing, your Honor.
*AJ HERMOSISIMA
*Q You said there was an "I OWE YOU"?
A Yes, your Honor.
*Q Where is that "I OWE YOU" now?
A All I know is that we owe PNCC the amount of P99.1 million, your Honor. MIAA owes PNCC that
amount.
*Q Was this payment covered by receipt from the PNCC?
A It was not covered, your Honor.
*Q So the obligation of MIAA to PNCC was not, for the record, cancelled by virtue of that payment?

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126

A Based on the order to me by the former President Marcos ordering me to pay that amount to his office
and then the mechanics will come after, your Honor.
*Q Is the PNCC a private corporation or government entity?
A I think it is partly government, your Honor.
*PJ GARCHITORENA
*Q That is the former CDCP?
A Yes, your Honor.
*AJ HERMOSISIMA
*Q Why were you not made to pay directly, to the PNCC considering that you are the Manager of MIA
at that time and the PNCC is a separate corporation, not an adjunct of Malacaang?
WITNESS
A I was just basing it from the Order of Malacanang to pay PNCC through the Office of the President,
your Honor.
*Q Do you know the President or Chairman of the Board of PNCC?
A Yes, your Honor.
"Q How was the obligation of MIAA to PNCC incurred. Was it through the President or Chairman of the
Board?
A PNCC was the one that constructed the MIA, your Honor.
*Q Was the obligation incurred through the President or Chairman of the Board or President of the
PNCC? In other words, who signed the contract between PNCC and MIAA?
A Actually, we inherited this obligation, your Honor. The one who signed for this was the former
Director of BAT which is General Singzon. Then when the MIA Authority was formed, all the
obligations of BAT were transferred to MIAA. So the accountabilities of BAT were transferred to MIAA
and we are the ones that are going to pay, your Honor.
*Q Why did you agree to pay to Malacaang when your obligation was with the PNCC?
A I was ordered by the President to do that, your Honor.

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127

*Q You agreed to the order of the President notwithstanding the fact that this was not the regular course
or Malacaang was not the creditor?
A I saw nothing wrong with that because that is coming, from the President, your Honor.
*Q The amount was not a joke, amounting to P55 million, and you agreed to deliver money in this
amount through a mere receipt from the private secretary?
A I was ordered by the President, your Honor.
*PJ GARCHITORENA
*Q There is no question and it can be a matter of judicial knowledge that you have been with the MIA
for sometime?
A Yes, your Honor.
*Q Prior to 1986?
A Yes, your Honor.
*Q Can you tell us when you became the Manager of MIA?
A I became Manager of MIA way back, late 1968, your Honor.
*Q Long before the MIA was constituted as an independent authority?
A Yes, your Honor.
*PJ GARCHITORENA
*Q And by 1986, you have been running the MIA for 18 years?
WITNESS
A Yes, your Honor.
*Q And prior to your Joining the MIA, did you ever work for the government?
A No, your Honor.
*Q So, is it correct for us to say that your joining the MIA in 1968 as its Manager was your first
employment ,with the government?

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128

A Yes, your Honor.


*Q While you were Manager of MIA, did you have other subsequent concurrent positions in the
government also?
A I was also the Chairman of the Games and Amusement Board, your Honor.
*Q But you were not the executive or operating officer of the Games and Amusement Board?
A I was, your Honor.
*Q As Chairman you were running the Games and Amusement Board?
A Yes, your Honor.
*Q What else, what other government positions did you occupy that time?
A I was also Commissioner of the Game Fowl Commission, your Honor.
*PJ GARCHITORENA
*Q That is the cockfighting?
WITNESS
A Yes, your Honor.
*Q Here, you were just a member of the Board?
A Yes, your Honor.
*Q So you were not running the commission?
A Yes, your Honor.
*Q Any other entity?
A No more, your Honor.
*Q As far as you can recall, besides being the Manager of the MIA and later the MIAA for
approximately 18 years, you also ran the Games and Amusement Board as its executive officer?
A Yes, your Honor.

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129

*Q And you were a commissioner only of the Came Fowl Commission?


A Yes, your Honor.
*Q Who was running the commission at that time?
A I forgot his name, but he retired already, your Honor.
*Q All of us who joined the government, sooner or later, meet with our Resident COA representative?
A Yes, your Honor.
*PJ GARCHITORENA
*Q And one of our unfortunate experience (sic) is when the COA Representative comes to us and says:
"Chairman or Manager, this cannot be". And we learn later on that COA has reasons for its procedure
and we learn to adopt to them?
WITNESS
A Yes, your Honor.
*Q As a matter of fact, sometimes we consider it inefficient, sometimes we consider it foolish, but we
know there is reason in this apparent madness of the COA and so we comply?
A Yes, your Honor.
*Q And more than anything else the COA is ever anxious for proper documentation and proper
supporting papers?
A Yes, your Honor.
*Q Sometimes, regardless of the amount?
A Yes, your Honor.
*Q Now, you have P55 million which you were ordered to deliver in cash, not to the creditor of the
particular credit, and to be delivered in armored cars to be acknowledged only by a receipt of a personal
secretary. After almost 18 years in the government service and having had that much time in dealing
with COA people, did it not occur to you to call a COA representative and say, "What will I do here?"
A I did not, your Honor.
*PJ GARCHITORENA

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130

*Q Did you not think that at least out of prudence, you should have asked the COA for some guidance
on this matter so that you will do it properly?
WITNESS
A What I was going to do is, after those things I was going to tell that delivery ordered by the President
to the COA, your Honor.
*Q That is true, but what happened here is that you and Mr. Dabao or you and Mr. Peralta signed
requests for issuance of Manager's checks and you were accommodated by the PNB Office at Nichols
without any internal documentation to justify your request for Manager's checks?
A Yes, your Honor.
*Q Of course we had no intimation at that time that Mr. Marcos will win the elections but even then, the
Daily Express, which was considered to be a newspaper friendly to the Marcoses at that time, would
occasionally come with so-called expose, is that not so?
A Yes, your Honor.
*Q And worst, you had the so-called mosquito press that would always come out with the real or
imagined scandal in the government and place it in the headline, do you recall that?
A Yes, your Honor.
*PJ GARCHITORENA
Under these circumstances, did you not entertain some apprehension that some disloyal employees
might leak you out and banner headline it in some mosquito publications like the Malaya at that time?
WITNESS
A No, your Honor.
*PJ GARCHITORENA
I bring this up because we are trying to find out different areas of fear. We are in the government and we
in the government fear the COA and we also fear the press. We might get dragged into press releases on
the most innocent thing. You believe that?
A Yes, your Honor.
*Q And usually our best defense is that these activities are properly documented?

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131

A Yes, your Honor.


*Q In this particular instance, your witnesses have told us about three (3) different trips from Nichols to
Aguado usually late in the day almost in movie style fashion. I mean, the money being loaded in the
trunk of your official car and then you had a back-up truck following your car?
A Yes, your Honor.
*Q Is that not quite a fearful experience to you ?
A I did not think of that at that time, your Honor.
*PJ GARCHITORENA
"Q You did not think it fearful to be driving along Roxas Boulevard with P25 million in the trunk of
your car?
WITNESS
A We have security at that time your Honor.
ATTY. ANDRES
Your Honor, the P25 million was in the armored car; only P5 million was in the trunk of his car.
*PJ GARCHITORENA
Thank you for the correction. Even P1 million only. How much more with P5 million inside the trunk of
your car, was that not a nervous experience?
A As I have said, your Honor, I never thought of that.
PJ GARCHITORENA
Thank you very much, Mr. Tabuena. You are excused. . . . 42
(PERALTA)
(He testified on direct examination that he co-signed with Tabuena a memorandum request for the
issuance of the Manager's Check for P5 Million upon order of Tabuena and that he [Peralta] was aware
that MIAA had an existing obligation with PNCC in the amount of around P27 Million. He affirmed
having accompanied Tabuena at the PNB Villamor Branch to withdraw the P5 Million, but denied
having misappropriated for his own benefit said amount or any portion thereof.)

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CROSS-EXAMINATION BY PROS VIERNES


Q Will you please tell the Honorable Court why was it necessary for you to co-sign with Mr. Tabuena
the request for issuance of Manager's check in the amount of P5 million?
A At that time I was the Acting Financial Services Manager of MIAA, sir, and all withdrawals of funds
should have my signature because I was one of the signatories at that time.
Q As Acting Financial Services Manager of MIAA, you always co-sign with Mr. Tabuena in similar
requests for the issuance of Manager's checks by the PNB?
A That is the only occasion I signed, sir.
Q Did you say you were ordered by Mr. Tabuena to sign the request?
A Yes, sir, and I think the order is part of the exhibits and based on that order, I co-signed in the request
for the issuance of Manager's check in favor of Mr. Luis Tabuena.
PROS VIERNES
Q Was there a separate written order for you to co-sign with Mr. Tabuena?
WITNESS
A Yes, sir, an order was given to me by Mr. Tabuena.
*PJ GARCHITORENA
Was that marked in evidence?
WITNESS
Yes, your Honor.
*PJ GARCHITORENA
What exhibit?
WITNESS
I have here a copy, your Honor. This was the order and it was marked as exhibit "N".
PROS VIERNES

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133

It was marked as Exhibit "M", your Honor.


Q How did you know there was an existing liability of MIAA in favor of PNCC at that time?
A Because prior to this memorandum of Mr. Tabuena, we prepared the financial statement of MIAA as
of December 31, 1985 and it came to my attention that there was an existing liability of around
P27,999,000.00, your Honor.
Q When was that Financial Statement prepared?
A I prepared it around January 22 or 24, something like that, of 1986, sir.
Q Is it your usual practice to prepare the Financial Statement after the end of the year within three (3)
weeks after the end of the year?
A Yes, sir, it was a normal procedure for the MIAA to prepare the Financial Statement on or before the
4th Friday of the month because there will be a Board of Directors Meeting and the Financial Statement
of the prior month will be presented and discussed during the meeting.
*PJ GARCHITORENA
*Q This matter of preparing Financial Statement was not an annual activity but a monthly activity?
A Yes, your Honor.
*Q This Financial Statement you prepared in January of 1986 recapitulated the financial condition as of
the end of the year?
A Yes, your Honor.
PJ GARCHITORENA
Continue.
PROS VIERNES
Q You made mention of a request for Escalation Clause by former Minister Ongpin. Did you personally
see that request?
A When this order coming from Mr. Tabuena was shown to me, I was shown a copy, sir. I have no file
because I just read it.
Q It was Mr. Tabuena who showed you the letter of Minister Ongpin?

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A Yes, sir.
*PJ GARCHITORENA
And that will be Exhibit?
ATTY. ANDRES
Exhibit "2" and "2-A", your Honor.
PROS VIERNES
Q You also stated that you were with Mr. Tabuena when you withdrew the amount of P5 million from
the PNB Extension Office at Villamor?
A Yes, sir.
Q Why was it necessary for you to go with him on that occasion?
A Mr. Tabuena requested me to do the counting by million, sir. So what I did was to bundle count the P5
million and it was placed in two (2) peerless boxes.
Q Did you actually participate in the counting of the money by bundles?
A Yes, sir.
Q Bundles of how much per bundle?
A If I remember right, the bundles consisted of P100s and P50s, sir.
Q No P20s and P10s?
A Yes, sir, I think it was only P100s and P50s.
*PJ GARCHITORENA
*Q If there were other denominations, you can not recall?
A Yes, your Honor.
PROS VIERNES
Q In how many boxes were those bills placed?

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135

A The P5 million were placed in two (2) peerless boxes,


Q And you also went with Mr. Tabuena to Aguado?
A No, sir, I was left behind at Nichols. After it was placed at the trunk of the car of Mr. Tabuena, I was
left behind and I went back to my office at MIA.
Q But the fact is that, this P5 million was withdrawn at passed 5:00 o'clock in the afternoon?
A I started counting it I think at around 4:30, sir. It was after office hours. But then I was there at around
4:00 o'clock and we started counting at around 4:30 p.m. because they have to place it in a room, which
is the office of the Manager at that time.
Q And Mr. Tabuena left for Malacaang after 5:00 o'clock in the afternoon of that date?
A Yes, sir. After we have counted the money, it was placed in the peerless boxes and Mr. Tabuena left for
Malacanang.
PROS VIERNES
Q And you yourself, returned to your office at MIA?
WITNESS
A Yes, sir.
Q Until what time do you hold office at the MIA?
A Usually I over-stayed for one (1) or two (2) hours just to finish the paper works in the office, sir.
Q So, even if it was already after 5:00 o'clock in the afternoon, you still went back to your office at
MIA?
A Yes, sir.
PROS VIERNES
That will be all, your Honor.
PJ GARCHITORENA
Redirect?
ATTY. ESTEBAL

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136

No redirect, your Honor.


*PJ GARCHITORENA
Questions from the Court.
*AJ DEL ROSARIO
*Q Did you not consider it as odd that your obligation with the PNCC had to be paid in cash?
WITNESS
A Based on the order of President Marcos that we should pay in cash, it was not based on the normal
procedure, your Honor.
*Q And, as Acting Financial Services Manager, you were aware that all disbursements should be
covered by vouchers?
A Yes, your Honor, the payments should be covered by vouchers. But then, inasmuch as what we did
was to prepare a request to the PNB, then this can be covered by Journal Voucher also.
*Q Was such payment of P5 million covered by a Journal Voucher?
A Yes, your Honor.
*Q Did you present that Journal Voucher here in Court?
A We have a copy, your Honor.
*Q Do you have a copy or an excerpt of that Journal Voucher presented in Court to show that payment?
A We have a copy of the Journal Voucher, your Honor.
*Q Was this payment of P5 million ever recorded in a cashbook or other accounting books of MIAA ?
A The payment of P5 million was recorded in a Journal Voucher, your Honor.
*PJ GARCHITORENA
*Q In other words, the recording was made directly to the Journal?
WITNESS
A Yes, your Honor.

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137

*Q There are no other separate documents as part of the application for Manager's Check?
A Yes, your Honor, there was none.
*AJ DEL ROSARIO
*Q After the payment was made, did your office receive any receipt from PNCC?
A I was shown a receipt by Mr. Tabuena, the receipt given by Mrs. Fe Roa Gimenez, your Honor.
Inasmuch as the payment should be made through the Office of the president, I accepted the receipt
given by Mrs. Fe Gimenez to Mr. Tabuena.
*Q After receiving that receipt, did you prepare the necessary supporting documents, vouchers, and use
that receipt as a supporting document to the voucher?
A Your Honor, a Journal Voucher was prepared for that.
*Q How about a disbursement voucher?
A Inasmuch as this was a request for Manager's check, no disbursement voucher was prepared, your
Honor.
*AJ DEL ROSARIO
*Q Since the payment was made on January 31, I986, and that was very close to the election held in
that year, did you not entertain any doubt that the amounts were being used for some other purpose?
ATTY. ESTEBAL
With due respect to the Honorable Justice, we are objecting to the question on the ground that it is
improper.
*AJ DEL ROSARIO
I will withdraw the question.
*PJ GARCHITORENA
What is the ground for impropriety?
ATTY. ESTEBAL
This is not covered in the direct examination, and secondly, I don't think there was any basis, your
Honor.

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138

*PJ GARCHITORENA
Considering the withdrawal of the question, just make the objection on record.
*AJ HERMOSISIMA
*Q As a Certified Public Accountant and Financial Manager of the MIAA, did you not consider it proper
that a check be issued only after it is covered by a disbursement voucher duly approved by the proper
authorities ?
A Your Honor, what we did was to send a request for a Manager's check to the PNB based on the request
of Mr. Tabuena and the order of Mr. Tabuena was based on the Order of President Marcos.
*PJ GARCHITORENA
*Q In your capacity as Financial Services Manager of the MIAA, did you not think it proper to have this
transaction covered by a disbursement voucher?
WITNESS
A Based on my experience, payments out of cash can be made through cash vouchers, or even though
Journal Vouchers, or even through credit memo, your Honor.
*AJ HERMOSISIMA
*Q This was an obligation of the MIAA to the PNCC. Why did you allow a disbursement by means of
check in favor of Mr. Luis Tabuena, your own manager?
A We based the payment on the order of Mr. Tabuena because that was the order of President Marcos to
pay PNCC through the Office of the President and it should be paid in cash, your Honor.
*Q You are supposed to pay only on legal orders. Did you consider that legal?
ATTY. ESTEBAL
With due respect to the Honorable Justice, the question calls for a conclusion of the witness.
*PJ GARCHITORENA
Considering that tire witness is an expert, witness may answer.
WITNESS
A The order of president Marcos was legal at that time because the order was to pay PNCC the amount

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139

of P5 million through the Office of the President and it should be paid in cash, your Honor. And at that
time, I know for a fact also that there was an existing P.D. wherein the President of the Republic of the
Philippines can transfer funds from one office to another and the PNCC is a quasi government entity at
that time.
*AJ HERMOSISIMA
*Q Are you saying that this transaction was made on the basis of that P.D. which you referred to?
A I am not aware of the motive of the President, but then since he is the President of the Philippines, his
order was to pay the PNCC through the Office of the President, your Honor.
*Q As Financial Manager, why did you allow a payment in cash when ordinarily payment of an
obligation of MIAA is supposed to be paid in check?
A I caused the payment through the name of Mr. Tabuena because that was the order of Mr. Tabuena and
also he received an order coming from the President of the Philippines at that time, your Honor.
*PJ GARCHITORENA
*Q Mr. Peralta, are not Journal Vouchers merely entries in the Journals to correct certain statements of
accounts earlier made in the same journal?
In other words, really what you are telling us is that, a Journal Voucher is to explain a transaction was
otherwise not recorded.
WITNESS
A Yes, your Honor.
*Q Therefore, when you said that a Journal Voucher here is proper, you are saying it is proper only
because of the exceptional nature of the transactions?
A Yes, your Honor.
*Q In other words, as an Accountant, you would not normally authorize such a movement of money
unless it is properly documented?
ATTY. ESTEBAL
With due respect to the Honorable Presiding Justice, I think the question is misleading because what the
witness stated is. . .
*PJ GARCHITORENA

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140

Be careful in your objection because the witness understands the language you are speaking, and
therefore, you might be coaching him.
ATTY. ESTEBAL
No, your Honor. I am also an accountant that is why I could say that. . .
*PJ GARCHITORENA
Please be simple in your objection.
ATTY. ESTEBAL
The question is misleading on the ground that what the witness stated earlier is that the Journal Voucher
in this particular case was supported, your Honor.
*PJ GARCHITORENA
Overruled, may answer.
WITNESS
A The transaction was fully documented since we have the order of the General Manager at that time
and the order of President Marcos, your Honor.
*Q Are you saying the Order of the General Manager is an adequate basis for the movement of money?
A Yes, your Honor, because at that time we have also a recorded liability of P27 million.
*Q we are not talking of whether or not there was a liability. What we are saying is, is the order of the
General Manager by itself adequate with no other supporting papers, to justify the movement of funds?
A Yes, your Honor. The order of Mr. Luis Tabuena was based on our existing liability of
P27,931,000.00, inasmuch as we have that liability and I was shown the order of President Marcos to
pay P5 million through the Office of the President, I considered the order of Mr. Luis Tabuena, the order
of President Marcos and also the existing liability of P27 million sufficient to pay the amount of P5
million. Inasmuch as there is also an escalation clause of P99.1 million, the payment of P5 million is
fully covered by those existing documents.
*PJ GARCHITORENA
You keep flooding us with details we are not asking for. We are not asking you whether or not there was
valid obligation. We are not asking you about the escalation clause. We are asking you whether or not
this particular order of Mr. Tabuena is an adequate basis to justify the movement of funds?

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141

WITNESS
When we pay, your Honor, we always look for the necessary documents and at that time I know for a
fact that there was this existing liability.
*PJ GARCHITORENA
When we ask questions and when we answer them, we must listen to the question being asked and not to
whatever you wanted to say. I know you are trying to protect yourself. We are aware of your statement
that there are all of these memoranda.
*Q By your disbursement of such amount, you are saying that the order of Mr. Tabuena by itself is
adequate?
WITNESS
A As far as I am concerned, your Honor, inasmuch as we have a liability and I was shown the Order of
President Marcos to pay PNCC through his office, I feel that the order of the General Manager, the order
of President Marcos, and also the memorandum of Minister Ongpin are sufficient to cause the payment
of P5 million.
*PJ GARCHITORENA
*Q This Presidential Decree which authorizes the President to transfer funds from one department to
another, is this not the one that refers to the realignment of funds insofar as the Appropriation Act is
concerned?
WITNESS
A Because at that time, your Honor, I have knowledge that the President is authorized through a
Presidential Decree to transfer government funds from one office to another.
*PJ GARCHITORENA
*Q Under the Appropriation Act. Are payments of debts of the MIAA covered by the Appropriation Act?
A I think the liability was duly recorded and appropriations to pay the amount is. . . . (interrupted)
*PJ GARCHITORENA
*Q Tell me honestly, is your answer responsive to the question or are you just throwing words at us in
the hope that we will forget what the question is?
A No, your Honor.

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142

*Q Are you telling us that the debts incurred by MIAA ate covered by the Appropriations Act so that the
payment of this debt would be in the same level as the realignment of funds authorized the President? Or
are you telling as you did not read the Decree?
A I was aware of that Decree, your Honor.
*PJ GARCHITORENA
Mr. Estebal, will you include in your memorandum what are the Decrees authorizing this movement of
funds?
ATTY. ESTEBAL
Yes, your Honor.
*PJ GARCHITORENA
*Q It is true that President Marcos was the President, but he was not an officer of the MIAA, was he?
A No, your Honor.
*Q In fact, for purposes of internal control, you have different officers and different officials in any
company either government or private, which are supposed to check and balance each other, is it not?
A Yes, your Honor.
*Q So that when disbursements of funds are made, they are made by authority of not only one person
alone so that nobody will restrain him?
A Yes, your Honor.
*Q These checks and balances exist in an entity so that no one person can dispose of funds in any way
he likes?
A Yes, your Honor.
*Q And in fact, the purpose for having two (2) signatories to documents and negotiable documents is for
the same purpose?
A Yes, your Honor.
*PJ GARCHITORENA
*Q In other words, the co-signatories counter check each other?

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143

WITNESS
A Yes, your Honor.
*Q In your case, you would be the counter check for Mr. Tabuena?
A Yes, your Honor.
*Q In the other words, even if Mr. Tabuena is the Manager, you as Financial Services Manager and as
counter signatory are in a position to tell Mr. Tabuena, "I am sorry, you are my superior but this
disbursement is not proper and, therefore, I will not sign it"., if in your opinion the disbursement is not
proper?
A Yes, your Honor.
*Q Therefore, as a co-signatory, you expected to exercise your judgment as to the propriety of a
particular transactions?
A Yes, your Honor.
*Q And this is something you know by the nature of your position and because you are a Certified
Public Accountant?
A Yes, your Honor.
*AJ DEL ROSARIO
*Q You admit that the payment of P5 million and P50 million were unusual in the manner with which
they were disposed?
A Yes, your Honor.
*Q Did you submit a written protest to the manner in which such amount was being disposed of?
A A written protest was not made, your Honor, but I called the attention of Mr. Tabuena that since this
payment was upon the order of President Marcos, then I think as President he can do things which are
not ordinary.
*Q If you did not prepare a written protest, did you at least prepare a memorandum for the record that
this was an extra-ordinary transaction?
A I called the attention of Mr. Tabuena that this was an extra-ordinary transaction and no written note,
your Honor.

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144

PJ GARCHITORENA
Thank you very much Mr. Peralta, you are excused. . . . 43
This Court has acknowledged the right of a trial judge to question witnesses with a view to satisfying his
mind upon any material point which presents itself during the trial of a case over which he presides. 44
But not only should his examination be limited to asking "clarificatory" questions, 45 the right should be
sparingly and judiciously used; for the rule is that the court should stay out of it as much as possible,
neither interfering nor intervening in the conduct of the trial. 46 Here, these limitations were not
observed. Hardly in fact can one avoid the impression that the Sandiganbayan had allied itself with, or to
be more precise, had taken the cudgels for the prosecution in proving the case against Tabuena and
Peralta when the Justices cross-examined the witnesses, their cross- examinations supplementing those
made by Prosecutor Viernes and far exceeding the latter's questions in length. The "cold neutrality of an
impartial judge" requirement of due process was certainly denied Tabuena and Peralta when the court,
with its overzealousness, assumed the dual role of magistrate and advocate. In this connection, the
observation made in the Dissenting Opinion to the effect that the majority of this Court was "unduly
disturbed" with the number of court questions alone, is quite inaccurate. A substantial portion of the TSN
was incorporated in the majority opinion not to focus on "numbers" alone, but more importantly to show
that the court questions were in the interest of the prosecution and which thus depart from that common
standard of fairness and impartiality. In fact, it is very difficult to be, upon review of the records,
confronted with "numbers" without necessarily realizing the partiality of the Court. In "US v. De Sisto"
(2 Cir., 1961, 289 F 2d 833), for example, a new trial was required because the trial judge, as in this
case, indulged in extensive questioning of defendant and his witnesses, and the reviewing court also had
to amplify on "numbers" to bolster this. It was pointed out in the "De Sisto" case that the judge asked
3,115 questions of all witnesses, the prosecutor asked but 1,381, defense counsel 3,330. The judge's
questions to the defendant De Sisto totalled 306, the prosecutor's 347, and the defense counsel's, 201.
After referring to these figures, the court stated:
. . . It is indeed an impressive proportion, but no such mathematical computation is of itself
determinative. However, taking all this in conjunction with the long and vigorous examination of the
defendant himself by the judge, and the repeated belittling by the judge of defendant's efforts to establish
the time that Fine left the pier, we fear that in its zeal for arriving at the facts the court here conveyed to
the jury too strong an impression of the court's belief in the defendant's probable guilt to permit the jury
freely to perform its own function of independent determination of the facts. . . .
The majority believes that the interference by the Sandiganbayan Justices was just too excessive that it
cannot be justified under the norm applied to a jury trial, or even under the standard employed in a nonjury trial where the judge is admittedly given more leeway in propounding questions to clarify points
and to elicit additional relevant evidence. At the risk of being repetitious, we will amplify on this via
some specific examples. Based on the evidence on record, and on the admission of Tabuena himself, the
P55 million was delivered to the President's Office thru Mrs. Gimenez, in obedience to the Presidential
directive. One Sandiganbayan Justice, however, hurled the following questions to Peralta:
AJ DEL ROSARIO
Q: Since the payment was made on January 31, 1986, and that was very close to the election held in that
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145

year, did you not entertain any doubt that the amounts were being used for some other purposes?
ATTY. ESTEBAL
With due respect to the Honorable Justice, We are objecting to the question on the ground that it is
improper.
AJ DEL ROSARIO
I will withdraw the question.
PJ GARCHITORENA
What is the ground for impropriety?
ATTY. ESTEBAL
This is not covered in the direct examination, and secondly, I don't think there was any basis, Your
Honor.
PJ GARCHITORENA
Considering the withdrawal of the question, just make the objection on record.
Nothing from the preceding questions of counsels or of the court would serve as basis for this question.
How then, can this be considered even relevant? What is the connection between the payment made to
the President's office and the then forthcoming presidential "snap election"? In another instance,
consider the following questions of Presiding Justice Garchitorena:
*PJ GARCHITORENA
*Q Mr. Peralta, are not Journal Vouchers merely entries in the Journals to correct certain statements of
accounts earlier made in the same journal?
xxx xxx xxx
*Q In other words, really what you are telling us is that, a Journal Voucher is to explain a transaction
was otherwise not recorded.
xxx xxx xxx
*Q Therefore, when you said that a Journal Voucher here is proper, you are saying it is proper only
because of the exceptional nature of the transactions?

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146

xxx xxx xxx


*Q In other words, as an Accountant, you would not normally authorize such a movement of money
unless it is properly documented?
ATTY. ESTEBAL
With due respect to the Honorable Presiding Justice, I think the question is misleading because what the
witness stated is . . .
*PJ GARCHITORENA
Be careful in your objection because the witness understands the language you are speaking, and
therefore, you might be coaching him.
ATTY. ESTEBAL
No, your Honor. I am also an accountant that is why I could say that . . .
*PJ GARCHITORENA
Please be simple in your objection.
ATTY. ESTEBAL
The question is misleading on the ground that what the witness stated earlier is that the Journal Voucher
in this particular case was supported, your Honor.
*PJ GARCHITORENA
Overruled may answer.
WITNESS
A The transaction was fully documented since we have the order of the General Manager at that time
and the order of President Marcos, your Honor.
*Q Are you saying the Order of the General Manager is an adequate basis for the movement of money?
*Q We are not talking of whether or not there was a liability. What we are saying is, is the order of the
General Manager by itself adequate with no other supporting papers, to justify the movement of funds?
*PJ GARCHITORENA

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147

You keep flooding us with details we are not asking for. We are not asking you whether or not there was
valid obligation. We are not asking you about the escalation clause. We are asking you whether or not
this particular order of Mr. Tabuena is an adequate basis to justify the movement of funds?
*PJ GARCHITORENA
When we ask questions and when we answer them, we must listen to the question being asked and not to
whatever you wanted to say. I know you are trying to protect yourself. We are aware of your statement
that there are all of these memoranda.
*Q By your disbursement of such amount, you are saying that the order of Mr. Tabuena by itself is
adequate?
*PJ GARCHITORENA
*Q This Presidential Decree which authorizes the President to transfer funds from one department to
another, is this not the one that refers to the realignment of funds insofar as the Appropriation Act is
concerned?
*PJ GARCHITORENA
*Q Under the Appropriation Act. Are payments of debts of the MIAA covered by the Appropriation Act?
*PJ GARCHITORENA
*Q Tell me honestly, is your answer responsive to the question or are you just throwing words at us in
the hope that we will forget what the question is?
xxx xxx xxx
*Q Are you telling us that the debts incurred by MIAA are covered by the Appropriations Act so that the
payment of this debt would be in the same level as the realignment of funds authorized the President? Or
are you telling as you did not read the Decree?
*PJ GARCHITORENA
Mr. Estebal, will you include in your memorandum what are the Decrees authorizing this movement of
funds?
ATTY. ESTEBAL
Yes, your Honor.
*PJ GARCHITORENA

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148

*Q It is true that President Marcos was the President, but he was not an officer of the MIAA, was he?
*Q In fact, for purposes of internal control, you have different in officers and different officials in any
company either government or private, which are supposed to check and balance each other, is it not?
*Q So that when disbursements of funds are made, they are made by authority of not only one person
alone so that nobody will restrain him?
*Q These checks and balances exist in an entity so that no one person can dispose of funds in any way
he likes?
*Q And in fact, the purpose for having two (2) signatories to documents and negotiable documents is for
the same purpose?
*PJ GARCHITORENA
*Q In other words, the co-signatories counter check each other?
*Q In your case, you would be the counter check for Mr. Tabuena?
*Q In other words, even if Mr. Tabuena is the Manager, you as Financial Services Manager and as
counter signatory are in a position to tell Mr. Tabuena, "I am sorry, you are my superior but this
disbursement is not proper and, therefore, I will not sign it.", if in your opinion the disbursement is not
proper?
*Q Therefore, as co-signatory, you are expected to exercise your judgment as to the propriety of a
particular transaction ?
*Q And this is something you know by the nature of your position and because you are a Certified
Public Accountant? 47
How can these questions be considered clarificatory when they clearly border more on crossexamination questions? Thus, the Dissenting Opinion's focus on the distinction between the two kinds of
trial to justify the Sandiganbayan's active participation in the examination of petitioners Tabuena and
Peralta and witness Monera, with due respect, appears insignificant to this case. Let it, therefore, be
emphasized anew that:
A trial judge should not participate in the examination of witnesses as to create the impression that he is
allied with the prosecution. 48
We doubt not that the sole motive of the learned judge was to ascertain the truth of the transaction, but it
is never proper for a judge to discharge the duties of a prosecuting attorney. However anxious a judge
may be for the enforcement of the law, he should always remember that he is as much judge in behalf of
the defendant accused of crime, and whose liberty is in jeopardy, as he is judge in behalf of the state, for
the purpose of safeguarding the interests of society. 49
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149

Ordinarily it is not good practice for the presiding judge himself to examine witnesses at length. The
circumstances may be such in a given case as to justify the court in so doing. . . . This court, however,
has more than once said that the examination of witnesses is the more appropriate function of counsel,
and the instances are rare and the conditions exceptional which will justify the presiding judge in
conducting an extensive examination. It is always embarrassing for counsel to object to what he may
deem improper questions by the court. Then, in conducting a lengthy examination, it would be almost
impossible for the judge to preserve a judicial attitude. While he is not a mere figurehead or umpire in a
trial, and it is his duty to see that justice is done, he will usually not find it necessary to conduct such
examinations. The extent to which this shall be done must largely be a matter of discretion, to be
determined by the circumstances of each particular case, but in so doing he must not forget the function
of the judge and assume that of an advocate. . . 50
While it is true that the manner in which a witness shall be examined is largely in the discretion of the
trial judge, it must be understood that we have not adopted in this country the practice of making the
presiding judge the chief inquisitor. It is better to observe our time-honored custom of orderly judicial
procedure, even at the expense of occasional delays. . . . The judge is an important figure in the trial of a
cause, and while he has the right, and it is often his duty, to question witnesses to the end that justice
shall prevail, we can conceive of no other reason, for him to take the trial of the cause out of the hands
of counsel. 51
The examination of witnesses is the more appropriate function of counsel, and it is believed the
instances are rare and the conditions exceptional in a high degree which will justify the presiding judge
in entering upon and conducting an extended examination of a witness, and that the exercise of a sound
discretion will seldom deem such action necessary or advisable. 52
He [the judge] may properly intervene in a trial of a case to promote expedition, and prevent
unnecessary waste of time, or to clear up some obscurity, but he should bear in mind that his undue
interference, impatience, or participation in, the examination of witnesses, or a severe attitude on his part
toward witnesses, especially those who are excited or terrified by the unusual circumstances of a trial,
may tend to prevent the proper presentation of the cause, or the ascertainment of the truth in respect
thereto. 53
The impartiality of the judge his avoidance of the appearance of becoming the advocate of either one
side or the other of the pending controversy is a fundamental and essential rule of special importance in
criminal cases. . . 54
Our courts, while never unmindful of their primary duty to administer justice, without fear or favor, and
to dispose of these cases speedily and in as inexpensive a manner as is possible for the court and the
parties, should refrain from showing any semblance of one-sided or more or less partial attitude in order
not to create any false impression in the minds of the litigants. For obvious reasons, it is the bounden
duty of all to strive for the preservation of the people's faith in our courts. 55
Time and again this Court has declared that due process requires no less than the cold neutrality of an
impartial judge. Bolstering this requirement, we have added that the judge must not only be impartial but
must also appear to be impartial, to give added assurance to the parties that his decision will be just. The
parties are entitled to no less than this, as a minimum guaranty of due process. 56
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We are well aware of the fear entertained by some that this decision may set a dangerous precedent in
that those guilty of enriching themselves at the expense of the public would be able to escape criminal
liability by the mere expedient of invoking "good faith". It must never be forgotten, however, that we
render justice on a case to case basis, always in consideration of the evidence that is presented. Thus,
where the evidence warrants an acquittal, as in this case, we are mandated not only by the dictates of law
but likewise of conscience to grant the same. On the other hand, it does not follow that all those
similarly accused will necessarily be acquitted upon reliance on this case as a precedent. For the
decision in this case to be a precedent, the peculiar circumstances and the evidence that led to the
petitioner's acquittal must also be present in subsequent cases.
Furthermore, as between a mere apprehension of a "dangerous precedent" and an actual violation of
constitutionally enshrined rights, it is definitely the latter that merits our immediate attention. For the
most dangerous precedent arises when we allow ourselves to be carried away by such fears so that it
becomes lawful to sacrifice the rights of an accused to calm the fearful. In our eagerness to bring to
justice the malefactors of the Marcos regime, we must not succumb to the temptation to commit the
greatest injustice of visiting the sins of the wrongdoers upon an innocent.
WHEREFORE, in view of the foregoing, herein petitioners Luis A. Tabuena and Adolfo M. Peralta are
hereby ACQUITTED of the crime of malversation as defined and penalized under Article 217 of the
Revised Penal Code. The Sandiganbayan Decision of October 12, 1990 and the Resolution dated
December 20, 1991 are REVERSED and SET ASIDE.
SO ORDERED.
Narvasa, C.J., Vitug, Kapunan and Mendoza, JJ., cocnur.
Regalado, Bellosillo, and Torres, Jr., JJ., pro hac vice.
Hermosisima, Jr,., J., took no part.

Separate Opinions
DAVIDE, JR., J., dissenting:
Last 20 September 1996 in Regala v. Sandiganbayan, 1 this Court erected a barrier to the constitutionally
mandated task to recover ill-gotten wealth and in the punishment of those who dirtied their hands with it.
This the Court did by impliedly granting immunity from civil suit or liability under an expanded
interpretation of the lawyer-client privilege, lawyers who were alleged to have acted as co-conspirators
or dummies of certain parties in the acquisition of such wealth.
The acquittal decreed by the majority in the cases under consideration places another obstacle to such
recovery and punishment by granting immunity from any criminal liability those who were ordered by
then President Marcos to disburse government funds for alleged payment of obligations. This is the

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immediate impression anyone can get from the following sweeping pronouncement in the ponencia. 2
In the case at bench, the order emanated from the office of the President and bears the signature of the
President himself, the highest official of the land. It carries with it the presumption that it was regularly
issued. And on its face, the memorandum is patently lawful for no law makes the payment of an
obligation illegal. This fact, coupled with the urgent tenor for its execution constrains one to act swiftly
without question. Obedientia est legis essentia. . . .
What this suggests is that no one could disobey then President Marcos, a suggestion made more
eloquent with the quotation of the dissenting opinion of Mr. Justice Cruz in Development Bank of the
Philippines v.Pundogar. 3 That dissent cannot be used to justify the petitioners' "obedience," otherwise,
this Court would thus overturn the majority opinion in the said case and adopt the dissent as the new
rule.
Henceforth, all those similarly situated as the appellants or those who could simply provide any reason
for theircompelled obedience to Mr. Marcos can go scot-free. The meaning of EDSA and its message for
history would thus be obliterated. The acquittal then perpetuates a sad day for this Court a day of
mourning for those who fought against the dictatorship and of triumph and joy for the dictator's
collaborators, nominees, associates, and friends.
I cannot join the majority in these cases.
My analysis of the ponencia indicates that the acquittal is based on the following:
1. The accused-appellants merely acted in obedience to an order by a superior for some lawful purpose;
hence, they incur no criminal liability pursuant to Article 11(6) of the Revised Penal Code.
2. Even granting that the order was not for a lawful purpose, they acted in good faith.
3. Their basic constitutional right to due process was violated by the way the Sandiganbayan actively
took part in the questioning of a defense witness and of the accused themselves.
I
I shall first take up the third.
The ponencia admits that the appellants did not raise as an issue the Sandiganbayan's violation of their
right to due process; nevertheless, it ruled that such failure is not an impediment to the consideration of
the violation "as additional basis for a reversal since the settled doctrine is that an appeal throws the
whole case open to review, and it becomes the duty of the appellate court to correct such errors as may
be found in the judgment appealed from whether they are made the subject of assignments of error or
not. 4
I beg to disagree.

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First, there is no showing at all that the extensive participation by the Justices of the Sandiganbayan in
questioning the appellants and their witness indicated prejudgment of guilt, bias, hatred, or hostility
against the said appellants. On the contrary, the quoted portions of the questions propounded by the
Justices manifest nothing but a sincere desire to ferret out the facts to arrive at the truth which are crucial
in the determination of the innocence or guilt of the appellants. These Justices, as trial magistrates, have
only exercised one of the inherent rights of a judge in the exercise of judicial function. What this Court
stated eighty-three years ago inUnited States v. Hudieres 5 needs repeating:
It is very clear, however, from a review of the whole proceedings that the only object of the trial judge in
propounding these questions was to endeavor as far as possible to get at the truth as to the facts to which
the witnesses were testifying. The right of a trial judge to question the witnesses with a view to
satisfying his mind upon any material point which presents itself during the trial of a case over which he
presides is too well established to need discussion. The trial judges in this jurisdiction are judges of both
the law and the facts, and they would be negligent in the performance of their duties if they permitted a
miscarriage of justice as a result of a failure to propound a proper question to a witness which might
develop some material fact upon which the judgment of the case should turn. So in a case where a trial
judge sees that the degree of credit which he is to give the testimony of a given witness may have an
important bearing upon the outcome, there can be no question that in the exercise of a sound discretion
he may put such questions to the witness as will enable him to formulate a sound opinion as to the
ability or willingness of the witness to tell the truth. The questions asked by the trial judge in the case at
bar were in our opinion entirely proper, their only purpose being to clarify certain obscure phases of the
case; and while we are inclined to agree with counsel that some of the observations of the trial judge in
the course of his examination might well have been omitted, there is no reason whatever to believe that
the substantial rights of the defendants were in anywise prejudiced thereby.
That the appellants themselves did not find any impropriety in the conduct of the Justices, or that if they
did they find nothing therein to prejudice their right to due process is best proven by their failure to
assign it as error.
Second, even granting arguendo that the conduct of the Justices constituted such a violation, the
appellants are forever estopped from raising that issue on ground of waiver. This Court would risk an
accusation of undue partiality for the appellants were it to give them premium for their torpor and then
reward them with an acquittal. Such waiver is conclusively proven in these cases. From the quoted
portions of the testimonies of the witnesses for the appellants, it is clear that their counsel did not object
to, or manifest on record his misgivings on, the active participation of the Justices in the examination (or
cross-examination) of the witnesses. Nothing could have prevented the counsel for the appellants from
doing so. Then, too, as correctly pointed out in the ponencia, they made no assignment of error on the
matter.
In our jurisdiction, rights may be waived unless the waiver is contrary to law, public order, public policy,
morals, or good customs, or is prejudicial to a third person with a right recognized by law. 6
In People v. Donato, 7 this Court made the following statement on what rights may be waived:
As to what rights and privileges may be waived, the authority is settled:

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. . . the doctrine of waiver extends to rights and privileges of any character, and, since the word "waiver"
covers every conceivable right, it is the general rule that a person may waive any matter which affects
his property, and any alienable right or privilege of which he is the owner or which belongs to him or to
which he is legally entitled, whether secured by contract, conferred with statute, or guaranteed by
constitution, provided such rights and privileges rest in the individual, are intended for his sole benefit,
do not infringe on the rights of others, and further provided the waiver of the right or privilege is not
forbidden by law, and does not contravene public policy; and the principle is recognized that everyone
has a right to waive, and agree to waive, the advantage of a law or rule made solely for the benefit and
protection of the individual in his private capacity, if it can be dispensed with and relinquished without
infringing on any public right, and without detriment to the community at large. . . .
Although the general rule is that any right or privilege conferred by statute or guaranteed by constitution
may be waived, a waiver in derogation of a statutory right is not favored, and a waiver will be
inoperative and void if it infringes on the rights of others, or would be against public policy or morals
and the public interest may be waived.
While it has been stated generally that all personal rights conferred by statute andguaranteed by
constitution may be waived, it has also been said that constitutional provisions intended to protect
property may be waived, and even some of the constitutional rights created to secure personal liberty are
subjects of waiver. 8
In Commonwealth vs. Petrillo, 9 it was held:
Rights guaranteed to one accused of a crime fall naturally into two classes: (a) those in which the state,
as well as the accused, is interested; and (b) those which are personal to the accused, which are in the
nature of personal privileges. Those of the first class cannot be waived; those of the second may be.
It is "competent for a person to waive a right guaranteed by the Constitution, and to consent to action
which would be invalid if taken against his will. 10
This Court has recognized waivers of constitutional rights such as, for example, the right against
unreasonable searches and seizures; 11 the right to counsel and to remain silent; 12 and the right to be
heard. 13
Even the 1987 Constitution expressly recognizes a waiver of rights guaranteed by its Bill of Rights.
Section 12(1) of Article III thereof on the right to remain silent and to have a competent and independent
counsel, preferably of his own choice states:
. . . These rights cannot be waived except in writing and in the presence of counsel.
This provision merely particularizes the form and manner of the waiver; it, nevertheless, clearly suggests
that the other rights may be waived in some other form or manner provided such waiver will not offend
Article 6 of the Civil Code.
We hereby rule that the right to bail is another of the constitutional rights which can be waived. It is a

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right which is personal to the accused and whose waiver would not be contrary to law, public order,
public policy, morals, or good customs, or prejudicial to a third person with a right recognized by law.
In the cases below, the perceived violation, if at all it existed, was not of the absolute totality of due
process, but more appropriately of the right to an impartial trial, which is but an aspect of the guarantee
of due process. 14 I submit that the right to an impartial trial is waivable.
II
I also disagree with the view of the majority that all the requisites of the sixth justifying circumstance in
Article 11 of the Revised Penal Code are present. I submit that the 8 January 1986 Memorandum of
President Marcos can by no means be considered a "lawful" order to pay P55 million to the PNCC as
alleged partial payment of the MIAA's account to the former. The alleged basis of such Memorandum is
the 7 January 1985 Memorandum of Trade and Industry Minister Roberto Ongpin, which even confirms
the absence of any factual basis for the order of payment of P55 million:
In this connection, please be informed that Philippine National Construction Corporation (PNCC),
formerly CDCP, has accomplishment billings on the MIA Development Project aggregating P98.4
million, inclusive of accomplishments for the aforecited contracts. In accordance with contract
provisions, outstanding advances totalling P93.9 million are to be deducted from said billings which will
leave a net amount due to PNCC of only P4.5 million, thus:
At the same time, PNCC has potential escalation claims amounting to P99 million in the following states
of approved/evaluation:
Approved by Price Escalation Committee
(PEC) but pending for lack of funds P 1.9 million
Endorsed by project consultants and
currently being evaluated by PEC 30.7 million
Submitted by PNCC directly to PEC
and currently under evaluation 66.5 million

T o t a l P99.1 million
There has been no funding allocation for any of the above escalation claims due to budgetary
constraints.
The MIA Project has been completed and operational as far back as 1982 and yet residual amounts due
to PNCC have not been paid, resulting in undue burden to PNCC due to additional cost of money to
service its obligations for this contract.
To allow PNCC to collect partially its billings, and in consideration of its pending escalation billings,
may we request for His Excellency's approval for a deferment of the repayment of PNCC's advances to

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the extent of P30 million corresponding to about 30% of P99.1 million in escalation claims of PNCC, of
which P32.5 million has been officially recognized by MIADP consultants but could not be paid due to
lack of fundings.
Our proposal will allow BAT to pay PNCC the amount of P34.5 million out of existing MIA Project
funds. This amount represents the excess of the gross billings of PNCC of P98.4 million over the
undeferred portion of the repayment of advances of P63.9 million.
If Ongpin's memorandum is given full faith, it is clear that PNCC's "accomplishment billings" for work
accomplished, including accomplishments on the "supplemental contracts" (whose authority therefor
was just sought for), aggregated to P98.4 million. Since there were advances given to PNCC in the total
amount of P93.9 million, the net amount due the PNCC was only P4.5 million.
However, in view of the approval by then President Marcos of Ongpin's request "for a deferment of the
repayment of PNCC's advances to the extent of P30 million," only P63.9 million of PNCC's advances
was to be deducted from the accomplishment billings of P98.4 million. The net amount due thus became
P34.5 million. Hence, as pointed out by the Sandiganbayan, if any payments were due under Ongpin's
Memorandum they would only be for that amount (P34.5 million). The Order of then President Marcos
to withdraw has, therefore, exceeded by P20.5 million. Clearly, the order of payment of P55 million had
no factual and legal basis and was therefore unlawful.
III
Not an iota of good faith was shown in the conduct of the appellants.
Being responsible accountable officers of the MIAA, they were presumed to know that, in light of "the
undeferred portion of the repayment" of PNCC's advances in the amount of P63.9 million, the MIAA's
unpaid balance was only P34.5 million. They also ought to know the procedure to be followed in the
payment of contractual obligations. First and foremost there were the submission by the PNCC of its
claims with the required supporting documents and the approval of the claims by the appropriate
approving authority of MIAA. When then President Marcos ordered immediate payment, he should not
have been understood as to order suspension of the accepted budgeting, accounting, and auditing rules
on the matter. Parenthetically, it may be stated here that although President Marcos was a dictator, he
was reported to be, and even projected himself as, a "faithful" advocate of the rule of law. As a matter of
fact, he did not hesitate to issue a decree, letter of instruction, or any presidential issuance in anticipation
of any planned actions or activities to give the latter the facade or semblance of legality, wisdom, or
propriety. When he made the order to appellant Tabuena, President Marcos must only be understood to
order expeditious compliance with the requirements to facilitate immediate release of the money. There
was no way for Tabuena to entertain any fear that disobedience to the order because of its unlawfulness
or delay in the execution of the order due to compliance with the requirements would cause his head or
life. He offered no credible evidence for such fear. This Court should not provide one for him. That
Tabuena served Mr. Marcos until the end of the latter's regime and even beyond only proved a loyalty
not based on fear but on other considerations.
Moreover, the manner the appellant effected the withdrawal was most unusual, irregular, and anomalous.

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He has not shown any evidence that what he did was the usual practice in his office.
What happened in this case showed the appellants' complicity as principals by direct participation in the
malversation of the MIAA's funds. The appellants should, therefore, be thankful to the Sandiganbayan
for holding them liable therefor only through negligence.
I vote then to AFFIRM in toto the assailed decision.
Padilla, Melo and Panganiban, JJ., concur.
ROMERO, J., dissenting:
Obedience, rightly directed, is a virtue well-worth cultivating obedience of children to their elders;
obedience to lawful authority by citizens; obedience to the behests of what is highest and finest in one's
self.
Misguided, such as indiscriminate obeisance to questionable mandates, no matter if emanating from
authoritative figures whose slightest whisper and scribbled orders are law, this can lead man to perdition.
In government, a pliant bureaucracy that is disinclined to resist unethical, immoral, even downright
illegal directives from "above" is easily corrupted and can only bring disrepute to the entire system. In
this context, can subordinate public officials like herein petitioner escape criminal prosecution by the
simple expedient of claiming that they were merely following orders from a superior? This disquisition
will demonstrate that certain requisites are indispensable before anyone can claim immunity from penal
sanctions for seemingly justifiable acts.
This dissenting opinion will narrate the facts for the sake of accuracy for the ponencia seems to have
overlooked or glossed over vital circumstances which make the conclusion embodied herein irresistible.
Petitioners were charged with violation of Article 217 of the Revised Penal Code (the Code) for alleged
malversation of a total of P55 million from the public funds of the Manila International Airport
Authority (MIAA). The informations filed on three separate dates in 1986 accused them, as accountable
officers, of intentionally withdrawing said amount for the ostensible purpose of paying a non-existent
obligation of MIAA to the Philippine National Construction Corporation (PNCC), but which they
misappropriated and converted for their personal use and benefit.
In their defense, petitioners claimed they acted in good faith and in compliance with a verbal and later, a
written order from no less than former President Ferdinand E. Marcos. In a Presidential Memorandum
(the Marcos Memorandum) dated January 8, 1986, the latter allegedly commanded petitioner Tabuena,
in his capacity as General Manager of MIAA, "to pay immediately the Philippine National Construction
Corporation, thru this Office (Office of the President), the sum of FIFTY FIVE MILLION
(P55,000,000.00) PESOS in cash as partial payment of MIAA's account with said Company mentioned
in a Memorandum of (Trade and Industry) Minister Roberto Ongpin to this Office dated January 7, 1985
. . . ." 1 (The Ongpin Memorandum). On the assumption that MIAA indeed had a due and demandable
debt to PNCC for work done on the airport, Tabuena, with the help of Gerardo G. Dabao and Adolfo M.

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Peralta, MIAA Assistant General Manager and Financial Services Department Acting Manager,
respectively, made three withdrawals from the account of MIAA with the Philippine National Bank first,
on January 10, 1986 for P25 million, then on January 16, 1986 for another P25 million and lastly, on
January 31, 1986 for P5 million. The three manager's checks covering the withdrawals were all applied
for and issued in the name of Tabuena. Curiously, while the checks were issued by the MIA extension
office of PNB, they were encashed at the Villamor Air Base branch. Each time the cash was delivered
directly to the office of Marcos' private secretary, Fe Roa-Gimenez. The latter issued a receipt 2 signed
by her but only after the last delivery. No PNCC receipt was ever given to petitioners.
On October 22, 1990, the Sandiganbayan's First Division rendered a decision finding petitioners guilty.
Petitioners raise two issues, namely, that they were charged with intentional malversation (which they
labelled as malversation by direct appropriation) but were convicted of malversation by negligence, and
that they acted in good faith.
As regards the first argument, the variance between the crime charged and that proved by the
prosecution is immaterial, as stated by the ponente.
As regards the second issue, it is argued that good faith is a valid defense in malversation for it negates
criminal intent. Petitioners claim that when they committed the acts complained of, they were merely
following then President Marcos' oral and written directives. They rely on Article 11, paragraph 6 of the
Code which states, inter alia:
Art. 11. Justifying circumstances. The following do not incur any criminal liability:
xxx xxx xxx
6. Any person who acts in obedience to an order issued by a superior for some lawful purpose.
For an act to be justified under the abovequoted provision, therefore, three requisites must concur: (a) an
order must have been issued by a superior; (b) the order must be for a lawful purpose; and (c) the means
used by the subordinate in carrying out such order must itself be lawful. 3
In the case at bar, Tabuena was allegedly ordered by President Marcos to pay the PNCC from MIAA's
fund, thus ostensibly meeting the first requirement but not the others. For there is a qualification which
significantly changes the picture. The payment was to be in cash and immediately made through the
Office of the President. It is to be pointed out that it is one thing to be ordered to pay a due and
demandable obligation; it is another to make such payment to someone other than the lawful obligee and
worse, when the subordinate is forced to breach official channels to comply with the order.
It must be stressed that Tabuena and his co-accused, Peralta and Dabao, disregarded standard operating
procedures in following the President's order. As observed by the Sandiganbayan, "there were no
vouchers to authorize the disbursements in question. There were no bills to support the disbursement.
There were no certifications as to the availability of funds for an unquestionably staggering sum of P55
Million." Disbursement vouchers are specifically required under Sec. 4 (5) of Presidential Decree No.

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1445 (P.D. No. 1445), while the certificate of availability of funds is needed to comply with Sec. 47,
Title I-B, Bk. V of the Administrative Code of 1987 4 and Sec. 344 of the Local Government Code of
1991. 5 To compound the duplicity, the checks, issued by one branch of PNB were encashed in another
all made in cash instead of by crossed check payable to PNCC! Conspicuously, such cash outlay was
made without prior approval or authority of the Commission on Audit. 6 Finally, the last two payments
were made despite the non-issuance of a receipt for the first. In fact, the receipt given after the delivery
of the last installment was not even issued by the PNCC, the legal obligee and avowed recipient of the
money. Instead it emanated from the office of Roa-Gimenez, a complete stranger to the alleged contract
between MIAA and PNCC, who did not even indicate in what capacity she signed it. To compound the
mystery, the money was even delivered to her office, not in Malacaang, but at nearby Aguado Street.
The entire process, done with haste and with a total disregard of appropriate auditing requirements was,
in the words of petitioners themselves, an extraordinary transaction," 7 admittedly "out of the ordinary"
and "not based on normal procedure." 8
Disbursement of government funds, especially one as gargantuan as the one made by petitioners, is a
complex process, unlike the basic over-the-counter transaction that they purportedly made it to appear.
Far from being lawful, the payment of the alleged obligation of MIAA to PNCC through the Office of
the President may at best be labelled as irregular. "The term 'irregular expenditure' signifies an
expenditure incurred without adhering to established rules, regulations, procedural guidelines, policies,
principles or practices that have gained recognition in law. Irregular expenditures are incurred without
conforming with prescribed usages and rules of discipline. There is no observance of an established
pattern, course, mode of action, behavior, or conduct in the incurrence of an irregular expenditure. . . . ."
9

Specifically, disbursement of public funds must conform with the following principles:
(1) No money shall be paid out of the Treasury except in pursuance of an appropriation made by law.10
(2) No public money or property shall be appropriated, applied, paid, or employed, directly or indirectly,
for the use, benefit, or support of any sect, church, denomination, sectarian institution, or system of
religion, or of any priest, preacher, minister, or other religious teacher, or dignitary as such, except when
such priest, preacher, minister, or dignitary is assigned to the armed forces, or to any penal institution, or
government orphanage or leprosarium. 11
(3) All money collected on any tax levied for a special purpose shall be treated as a special fund and paid
out for such purpose only. If the purpose for which this special fund was created has been fulfilled or
abandoned, the balance, if any, shall be transferred to the general funds of the Government. 12
(4) All resources of the government shall be managed, expended or utilized in accordance with law and
regulations and safeguarded against loss or wastage through illegal or improper disposition to ensure
efficiency, economy and effectiveness in the operations of government. The responsibility to take care
such policy is faithfully adhered to rests directly with the chief or head of the government agency
concerned. 13
(5) Disbursement or disposition of government funds or property shall invariably bear the approval of

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the proper officials. 14


(6) Claims against government funds shall be supported with complete documentation. 15
(7) All laws and regulations applicable to financial transactions shall be faithfully adhered to. 16
(8) Generally accepted principles and practices of accounting as well as of sound management and fiscal
administration shall be observed, provided that they do not contravene existing laws and regulations. 17
Assuming arguendo that petitioners acted in good faith in following the President's order, undeniably,
they were negligent as found by the trial court. The instructions in the President's order should have
sufficed to put any accountable head of an office, Tabuena included, on guard. Why was he being
required to pay MIAA's obligation to the PNCC, if indeed there were any, and not directly to the latter
but through the Office of the President? Why was the entire transaction not coursed through proper
channels, viz., the accounting office? Why was such a huge disbursement to be made in cash, instead of
by crossed check, which is not only safer, faster, and more convenient, but in accord with auditing
requirements?
Obedience to a superior's order does not connote blind obedience. Being the general manager of such a
mammoth organization like the MIAA, he should, at the very least, have exercised ordinary prudence by
verifying with the proper official under him whether the agency had indeed an outstanding indebtedness
to the PNCC before ordering any payment to be made through official channels. Such routine measures
were cavalierly disregarded. The whole process seemed no different from a petty, personal transaction.
As evidence later revealed, PNCC's receivables from MIAA amounted to P102,475,392.35, the bulk of
which comprised escalation charges. From that time until Corazon C. Aquino assumed the Presidency, a
total of P44.4 million was paid, but only P2 million of this in cash; the rest was set off or compensated
against other debts, or assigned to other creditors. The financial records did not show that PNCC
received any sums of money from MIAA during the period January to June, 1986 when the block
payments were being made in quarter millions. Only on September 25, 1986, long after President
Marcos had gone, was an assignment of P23 million actually made by MIAA in favor of PNCC. 18
Even the Ongpin Memorandum, which is the basis of the Marcos Memorandum, failed to show where
the amount of P55 million cropped up. The former contained, inter alia, the following matters: (a) it
requested the President's approval of Minister Ongpin's recommendations "for eight (8) supplemental
contracts pertaining to the MIA Development Project (MIADP) between the Bureau of Air Transport
(BAT) and Philippine National Construction Corporation (PNCC), formerly CDCP, . . . ."; 19 (b) it
informed the President that PNCC had collectibles from MIAA only in the amount of P4.5 million,
which is the difference between the accomplishment billings on the MIADP totalling P98.4 million and
PNCC's advances of P93.9 million; and (c) it informed the President that PNCC had potential escalation
claims against MIAA in the amount of P99 million, "potential" because they have yet to be approved by
the Price Escalation Committee (PEC).
The only remaining piece of evidence which would show that MIAA owed PNCC anything as of the
date of the Marcos Memorandum is MIAA's balance sheet, 20 which indicates its liability to PNCC as of

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December 31, 1985 to be P27,931,000.00. 21 How can petitioners claim to have acted in good faith when
they withdrew the P55 million from MIAA's funds knowing fully well that the amount due PNCC was
only a little over half that amount, as shown by their own evidence?
The ponencia states that ". . . . the good faith of Tabuena . . . . was not at all affected even if it later
turned out that PNCC never received the money."
It is precisely our thesis that Tabuena did not act in good faith in complying with the President's orders
because of the reasons aforesatated, summarized as follows:
(a) The President's order was "out of the ordinary" and "not based on normal procedure," which would
have entailed making an "extraordinary transaction," as admitted by petitioners themselves. This proves
that they were, at the time they received the order, aware that paying MIAA's supposed P55 million
obligation to PNCC through the Office of the President in cash was questionable.
(b) As the head of MIAA, Tabuena should have been more cautious in disbursing the funds. He did not
even stop to think about the legality of the entire process even when he did not receive any kind of
receipt for the first two deliveries of money worth P50 million. When he did get a receipt, it was not an
official receipt from PNCC, the legal creditor, but from the President's private secretary. It must also be
noted that the cash was all delivered to Gimenez' office at Aguado St., not to her office at Malacaang.
(c) Tabuena breached official channels to procure the money. There were no vouchers nor bills to
authorize or support the disbursements. There was also no certificate of availability of funds. The
payment was made in cash without COA's approval, at a time when the ceiling for cash payments was
merely P5,000.00. As stated earlier, no official receipt from PNCC supported the payment. The entire
process was "done with haste and with a total disregard of appropriate auditing requirements."
As regards the payments to Roa-Gimenez, these were absolutely unwarranted because whatever
"authority" she claimed to have emanated, not from the creditor PNCC but from the President.
Petitioners were required by law to settle their indebtedness with PNCC directly, the party in whose
favor the obligation was constituted. 22 The only instance when such questionable payment could have
been valid was if it had redounded to PNCC's benefit, which was not proved at all in this case. 23 As
creditor, the PNCC was not even bound to accept payment, if any, from the President's private secretary,
the latter being a third person who had no interest whatsoever in the discharge of MIAA's obligation. 24
The ponencia states that the Marcos Memorandum was "patently lawful for no law makes the payment
of an obligation illegal."
This statement is premised on the existence of an established creditor-debtor relationship between the
payor and the payee. In this, case, however, the obligor was being made to pay to a party other than the
legal obligee when no novation of the obligation has taken place. How can such an arrangement be
possibly in accord with law?
The preceding established facts clearly show that petitioners were remiss in discharging their duties as
accountable officers. As correctly observed by the court a quo:

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. . .(T)he Ongpin Memorandum could not justify Pres. Marcos' memorandum of January 8, 1986; this in
turn could not justify Luis Tabuena's payment of P55 million to Fe Roa Gimenez.
. . . (T)he amount which could be payable by Tabuena in his capacity as head of the MIAA in January of
1986 could not be in excess of P27.931 million until other claims had been duly approved. This
approval, on the other hand, could not come from the President but from the Price Escalation Committee
(PEC) before which, according to the Ongpin Memorandum itself, these claims for escalation had been
submitted for approval.
The PEC was not shown to have approved these amounts as of the time Tabuena made any of the
withdrawals for P55 million.
xxx xxx xxx
Tabuena says he had properly accounted for the P55 million he had withdrawn from the MIAA's funds.
By this Tabuena means he gave the money to Fe Roa Gimenez, presumably in representation of Pres.
Ferdinand Marcos.
Neither Pres. Marcos, however, nor Fe Roa Gimenez was entitled to receive or issue acquittance for a
debt in favor of the PNCC. Tabuena's claim, therefore, that he delivered the P55 million to her is not
properly accounting for P55 million.
In fact, when we come right down to it, nobody has issued an acquittance in behalf of the PNCC for the
P55 million paid by Luis Tabuena. Since Tabuena says he was paying P55 million to the PNCC, it was
incumbent upon him to show a receipt from or in behalf of the PNCC. Tabuena has shown no receipt.
Tabuena was not authorized to part with government money without receipt
When Tabuena gave P55 million intended for the PNCC to Fe Roa Gimenez or to Pres. Marcos, Tabuena
was paying government funds to persons not entitled to receive those funds. He was, therefore, guilty of
malversation of those funds.
xxx xxx xxx
Tabuena says he has accounted for the money because he has told us where the money went. But to
account, in the more proper use of the term, injects a sense of responsibility for the disposition of funds
for which one is answerable.
So when one asks if Tabuena has accounted for the P55 million belonging to the MIAA, the question
really is whether accused Tabuena disposed of the sum in a responsible manner consistent with his duty.
The answer must be in the negative.
Payments must be delivered to payees. Payments intended for the PNCC must be delivered to the PNCC
or to someone authorized by the PNCC to accept payments for it. Neither Pres. Marcos nor Fe Roa
Gimenez are shown to have been authorized to accept money for the PNCC nor to deliver money to the

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PNCC (or to any creditor of the MIAA for that matter). In fact, though Pres. Marcos may have been the
Supreme Magistrate of the land and the chief enforcer of the law, the law neither authorized him to pay
for the MIAA nor to accept money for the PNCC.
Accused Tabuena's statement, therefore, that he had presented overwhelming evidence of the delivery of
the P55 million to Pres. Marcos' private secretary does not prove that he has accounted for that money,
that is, that he has properly disposed of that sum according to law.
On the contrary, what the evidence shows is that accused Tabuena delivered the P55 million to people
who were not entitled thereto, either as representatives of MIAA or of the PNCC.
It proves that Tabuena had deliberately consented or permitted through negligence or abandonment,
some other person to take such public funds. Having done so, Tabuena, by his own narration, has
categorically demonstrated that he is guilty of the misappropriation or malversation of P55 million of
public funds. 25
Time and again, this Court has deferred to the findings of fact of the trial court, owing to its enviable
position of having seen the physical evidence and observed the witnesses as they testified. We see no
reason to depart now from this policy.
Tabuena was also personally accountable for the funds in his custody, being the head of a government
agency such as MIAA and discharging fiscal functions as such. In this regard, the Manual on Certificate
of Settlement and Balances (Rev. 1993) (The Manual) states, inter alia:
TITLE IV. ACCOUNTABILITY, RESPONSIBILITY AND LIABILITY FOR GOVERNMENT FUNDS
AND
PROPERTY
Government officials and employees, in the discharge of fiscal functions, shall ensure that all
government resources are managed, expended and utilized in accordance with law, rules and
regulations and safeguarded against loss or wastage thru illegal or improper disposition.
In the implementation of the above functions, they shall be guided by the following provisions:
Sec. 26. ACCOUNTABILITY FOR GOVERNMENT FUNDS AND PROPERTY
26.1. Every officer of any government agency whose duties permit or require the possession or custody
of government funds or property shall be accountable therefor and for the safekeeping thereof in
conformity with law.
26.2 Every accountable officer shall be properly bonded in accordance with law.
Sec. 27. RESPONSIBILITY FOR GOVERNMENT FUNDS AND PROPERTY
The head of any agency of the government is immediately and primarily responsible for all government
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funds and property pertaining to his agency.


Persons entrusted with the possession or custody of the funds or property under the agency head shall be
immediately responsible to him without prejudice to the liability of either party to the government.
Sec. 28. SUPERVISION OVER ACCOUNTABLE OFFICERS
The head of any agency or instrumentality of the national government or any government-owned or
controlled corporation and any other self-governing board or commission of the government shall
exercise the diligence of good father of a family in supervising the accountable officers under his
control to prevent the incurrence of loss of government funds or property, otherwise he shall be jointly
and severally liable with the person primarily accountable therefor. . . .
Sec. 29. LIABILITY OF ACCOUNTABLE, SUPERIOR AND SUBORDINATE OFFICERS FOR
GOVERNMENT FUNDS
29.1 Every officer accountable for government funds shall be liable for alllosses resulting from the
unlawful deposit, use, or application thereof and for all losses attributable to negligence in the keeping
of the funds.
29.2 Liability of Superior Officers. A public officer shall not be civilly liable for acts done in the
performance of his official duties, unless there is a clear showing of bad faith, malice or gross
negligence.
xxx xxx xxx
29.5 Liability of Subordinate Officers. No subordinate officer or employee shall be civilly liable for
acts done by him in good faith in the performance of his duties. However, he shall be liable for willful
or negligent acts done by him which are contrary to law, morals, public policy and good customs even if
he acted under order or instructions of his superiors.
Sec. 30. LIABILITY FOR UNLAWFUL/ILLEGAL EXPENDITURES OR USES OF GOVERNMENT
FUNDS
30.1.1 Expenditures of government funds or uses of government property in violation of law or
regulations shall be a personal liability of the official or employee found to be directly responsible
therefor.
30.1.2 Every expenditure or obligation authorized or incurred in violation of law or of the annual
budgetary measure shall be void. Every payment made in violation thereof shall be illegal and every
official or employee authorizing or making such payment, or taking part therein, and every person
receiving such payment shall be jointly and severally liable for the full amount so paid or received.
(Emphasis supplied)
The ponente points out that our reference to the Manual supports the view that Tabuena was only civilly

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liable.
This is a misappreciation of the entire sense of the dissent. It must be borne in mind that said reference
was made after the conclusion was reached that Tabuena was indeed criminally liable for his acts. It is
hornbook knowledge that criminal liability carries with it the civil, specially when, as in this case, the
latter arose from the former. Hence, the statement: "Tabuena was also personally accountable for the
funds in his custody, . . . ."
Sections 29.2 and 29.5 of the Manual, which the ponente uses to illustrate his point, actually includes
exceptions to the grant of immunity from civil liability of a public officer for acts done in the
performance of his official duties: (a) The preceding statement itself says that the acts must be done "in
the performance of his official duties;" (b) Sec. 29.2 exempts him from civil liability, "unless there is a
clear showing of bad faith, malice or gross negligence;" and (c) Sec. 29.5 states that "he shall be liable
for willful or negligent acts done by him which are contrary to law, morals, public policy and good
customs even if he acted under order or instructions of his superiors." The quoted provisions have been
once more underscored herein.
The ponencia futher states that "(t)here is no showing that Tabuena has anything to do whatsoever with
the execution of the MARCOS Memorandum." But very clearly, the admitted facts show that it was
precisely Tabuena who implemented or executed the said Memorandum.
The ponencia cites Acebedo where the accused was acquitted after it was shown that it was actually the
latter's secretary who collected and converted the money. Tabuena's case is starkly different, for here it
was Tabuena himself who personally turned over the money to the President's secretary. It was done
with his full knowledge and consent, the obvious irregularity thereof notwithstanding.
In petitioner Peralta's case, we again yield to the factual findings of the trial court. It said:
. . . . The question is whether or not Peralta properly signed the third application for the issuance of a
Manager's Check drawn against the MIAA's savings account with the Villamor Office of the Philippine
National Bank.
At the time that accused Peralta signed the request for the issuance of a Manager's Check, he was the
Acting Financial Services Manager of the MIAA and all withdrawals of funds required is (sic) cosignature.
The reason for the designation of more than one co-signatory is not merely useless ceremony; it is to
serve as a counter check for the propriety of the disbursement.
While, indeed, accused Luis Tabuena was the highest official in the MIAA and had authority to disburse
its funds, this authority was not absolute. It had to be for properly subsisting obligations and the
disbursement had to be against funds existing for that purpose. This is one reason for the need for
supporting documentation before disbursements of funds are authorized. And this is the special need for
finance officers such as Adolfo Peralta, as Financial Services Manager, to be co-signatories (sic): to
ascertain the validity of the obligation and, in this particular instance, the existence of the balance to be

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covered by the manager's check the application for which had been presented for his co-signature.
In this case, Adolfo Peralta speaks of the existence of (the) P27.9 million liability in favor of the PNCC
as justification for his acts herein. True enough, for that amount was the liability as of December 31,
1985. As finance officer, however, he could not claim ignorance of the fact that as of January 29, 1986,
the date of the application for a manager's check which he signed, two previous manager's checks worth
P25 million each had already been applied for and the total amount of P50 million had already been
withdrawn . . . .
It was only two weeks after these two withdrawals when Peralta, as Finance Services Manager,
participated in the authorization for the disbursement of another P5 million. This last withdrawal brought
up the total of withdrawals to P55 million for the payment of a P27.9 million obligation.
Thus while it is true, as Adolfo Peralta claims, that there was a liability in favor of the PNCC, there was
no way Peralta could disclaim responsibility for the excessive withdrawals to the extent of P5 million
thereof allegedly to pay that liability. There was no way Peralta could justify his co-signing the
application for a manager's check for P5 million on January 29, 1986.
The ponente cites a dissenting opinion of Justice Isagani A. Cruz in Development Bank of the
Philippines v.Pandogar to uphold his ponencia. Need we remind our respected colleague that the
corroborative value of a dissenting opinion is minimal? Precisely, it supports a position contrary to, and
obviously unacceptable to the majority.
Petitioners were found guilty of malversation by negligence, which is possible even if the charge was for
intentional malversation. This does not negate, however, their criminal liability; it merely declares that
negligence takes the place of malice. Article 3 of the Code provides the rationale when it explicitly states
that "felonies are committed not only by means of deceit but also by means of fault."
The Sandiganbayan's finding that petitioners converted and misappropriated the P55 million cannot
simply be brushed aside upon petitioners' claim that the money was delivered in good faith to the Office
of the President under the mistaken assumption that the President was entitled to receive the same. They
rely on the case ofPeople v. Fabian, 26 which declared that "(g)ood faith in the payment of public funds
relieves a public officer from the crime of malversation." But the very same decision also cites Article
217 to the effect that malversation may be committed by an accountable public officer by negligence if
he permits any other person to take the public funds or property in his custody. It is immaterial if
petitioners actually converted or misappropriated MIAA's funds for their own benefit, for by their very
negligence, they allowed another person to appropriate the same.
The fact that no conspiracy was established between petitioners and the true embezzlers of the P55
million is likewise of no moment. The crime of malversation, as defined under Article 217 of the Code,
27
was consummated the moment petitioners deliberately turned over and allowed the President's private
secretary to take custody of public funds intended as payment of MIAA's obligations to the PNCC, if
obligation there was at all. That petitioner Tabuena who was then General Manager of MIAA personally
and knowingly participated in the misfeasance compounds the maleficence of it all. Rank may have its
privileges but certainly a blatant disregard of law and administrative rules is not one of them. It must be

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etched in the minds of public officials that the underside of privileges is responsibilities.
As accountable officers, petitioners clearly transgressed administrative and legal bounds. Even on the
pretext of obeying a superior's seemingly legitimate orders, their actuations can hardly be justified. To
rule otherwise would set an alarming precedent where all that public officials who have unlawfully
enriched themselves at the people's expense and those accused of graft and corruption would have to do
to exculpate themselves from any wrongdoing would be to invoke Article 11, paragraph 6 of the Code,
thus gaining instant immunity from criminal prosecution.
Government officials, particularly heads of their agencies who, by virtue of their exalted positions exude
power and authority but pay blind obeisance to orders of those higher up in the bureaucratic hierarchy
regardless of the illegality, impropriety or immorality of such orders, would do well to internalize this
prayer for national leaders delivered by former Senate President Jovito R. Salonga in Malacanang on
November 24, 1996:
xxx xxx xxx
When they begin to think of how much power they possess, help them to know the many things that are
beyond their power the change of seasons, sun and rain, moonlight and starlight and all the wonders
of Your creation;
When they are led to believe that they are exempt from public accountability, help them to know that
they are ultimately accountable to You, the God of truth and justice and mercy;
xxx xxx xxx
The ponencia makes the final observation that the limitations on the right of judges to ask questions
during the trial were not observed by respondent court; that the three Justices who heard the testimonies
asked 37 questions of witness Francis Monera, 67 of Tabuena, and 41 of Peralta more than what the
prosecutors and defense counsels propounded.
While such numbers unduly disturbed the ponente, it cannot be gainsaid that such action by the
members of the First Division of respondent Sandiganbayan was, under the circumstances, not only
necessary and called for, but likewise legally acceptable.
In the first place, even the ponente makes the observation that petitioners did not raise this matter as
error. In other words, they did not feel prejudiced by the respondent court's actuations; nor did they
construe the series of questions asked of them by the Justices as indicative of any unfairness or partiality
violative of their right to due process.
Then, too, it must be noted that there is a difference in the right of a judge in a non-jury system, like that
obtaining in the Philippines, to question witnesses or parties themselves, and that of a judge in a jury
trial. The bulk of jurisprudence used in the ponencia was decided in the United States, where the jury
system is extensively utilized in civil as well as in criminal trials. In this regard, "(i)t has been noted that
the opinion of the judge, on account of his position and the respect and confidence reposed in him and in

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his learning and assumed impartiality, is likely to have great weight with the jury, and such fact of
necessity requires impartial conduct on his part. The judge is a figure of overpowering influence, whose
every change in facial expression is noted, and whose every word is received attentively and acted upon
with alacrity and without question." 28
Thus, while a trial judge is expected to be circumspect in his choice of words lest they be construed as
signs of partiality, he "is not, however, required to remain silent and passive throughout a jury trial;" 29 he
should, instead, "conduct a trial in an orderly way with a view to eliciting the truth and to attaining
justice between the parties." 30
Inasmuch as it is the jury which has the burden of meting out justice, it is acceptable for a judge in a jury
trial to "ask any question which would be proper for the prosecutor or defense counsel to ask so long as
he does not depart from a standard of fairness and impartiality." 31 "Questions designed to clarify points
and to elicit additional relevant evidence, particularly in a non-jury trial, are not improper." 32
The numerous questions asked by the court a quo should have been scrutinized for any possible
influence it may have had in arriving at the assailed decision. The true test for the appropriateness or
inappropriateness of court queries is not their quantity but their quality, that is, whether the defendant
was prejudiced by such questioning. 33To repeat, petitioners did not feel prejudiced by the trial court's
actions; otherwise, they would have raised this issue in the instant petition.
The ponencia states that he is "well aware of the fear entertained by some that this decision may set a
dangerous precedent in that those guilty of enriching themselves at the expense of the public would be
able to escape criminal liability by the mere expedient of invoking "good faith." Our position has been
either misinterpreted or misread for we do not merely speak of "good faith." In fact, our main thrust is
that such a breed of people who enriched themselves at the expense of the public might handily use as
an excuse or a justifying circumstance to escape liability their having obeyed the "lawful orders" of their
superior under Article 11, paragraph 6 of the Revised Penal Code.
The ponente makes a plea towards the close of his decision, that we should not act impulsively in the
instant case. "In our eagerness to bring to justice the malefactors of the Marcos regime, we must not
succumb to the temptation to commit the greatest injustice of visiting the sins of the wrongdoers upon an
innocent."
In our opinion, precisely, Tabuena and Peralta are wrongdoers, guilty of acts punishable by law.
Needless to say, under our system of laws, they must be meted out the corresponding penalty. We draw
attention to the fact that nowhere in this dissent do we single out the so-called "malefactors of the
Marcos regime" alone. We addressed ourselves to all who commit venalities at the expense of the
people, as defined and punished by law but who try to justify their actions by invoking the very law
which they violated.
For the reasons stated above, I vote to affirm petitioners' conviction by respondent court.
Padilla, Melo and Panganiban, JJ., concur.

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PUNO, J., dissenting:


I join the Dissenting Opinion of Madam Justice Flerida Ruth Romero where I find both right and
righteousness happily intersecting each other. I am, however, constrained to write this brief dissent in
view of the impact of the majority decision to our criminal justice system which many perceive leaves
much to be desired.
IIt should be immediately stressed that petitioners were convicted of the crime of malversation by
negligence. The felony was committed by petitioners not by means of deceit (dolo) but by fault (culpa).
According to Article 3 of the Revised Penal Code, there is fault when the wrongful act results from
imprudence, negligence, lack of foresight, or lack of skill. Justice J.B.L. Reyes explains the difference
between a felony committed by deceit and that committed by fault in this wise: ". . . In intentional
crimes, the act itself is punished; in negligence or imprudence, what is principally penalized is the
mental attitude or condition behind the act, the dangerous recklessness, lack of care or foresight, the
imprudencia punible." 1
In light of this well-carved distinction, the long discourse of the majority decision hailing petitioners'
good faith or lack of intent to commit malversation is off-line. To justify the acquittal of petitioners, the
majority should strive to show that petitioners did not commit any imprudence, negligence, lack of
foresight or lack of skill in obeying the order of former President Marcos. This is nothing less than a
mission impossible for the totality of the evidence proves the utter carelessness of petitioners in the
discharge of their duty as public officials. The evidence and their interstices are adequately examined in
the dissent of Madame Justice Romero and they need not be belabored.
For the same reason, the majority cannot rely on the doctrine of mistake of fact as ground to acquit
petitioners. It found as a fact that ". . . Tabuena acted under the honest belief that the P55 million was a
due and demandable debt. . . ." This Court has never applied the doctrine of mistake of fact when
negligence can be imputed to the accused. In the old, familiar case of People vs. Ah Chong, 2 Mr. Justice
Carson explained that ignorance or mistake of fact, if such ignorance or mistake of fact is sufficient to
negative a particular intent which under the law is a necessary ingredient of the offense charge (e.g., in
larceny animus furendi, in murder, malice, etc.), cancels the presumption of intent and works an
acquittal, except in those cases where the circumstances demand conviction under the penal provisions
touching criminal negligence. Hence, Ah Chong was acquitted when he mistook his houseboy as a
robber and the evidence showed that his mistake of fact was not due to negligence. In the case at bar, the
negligence of the petitioners screams from page to page of the records of the case. Petitioners
themselves admitted that the payments they made were "out of the ordinary" and "not based on normal
procedure."
As aforestated, the cornerstone of the majority decision is its finding of good faith on the part of the
petitioners. Viewed from a more critical lens, however, the evidence cannot justify a finding of good
faith. The violations of auditing rules are too many yet the majority merely winks at them by ruling that
petitioner Tabuena ". . . did not have the luxury of time to observe all auditing procedures of
disbursement considering the fact that the Marcos Memorandum enjoined 'immediate compliance' with
the directive that he forward to the President's Office the P55 million in cash." With due respect, I am
disquieted by the mischiefs that will be mothered by this ruling. To begin with, the country was no
longer under martial rule in 1986 and petitioners were under no compulsion to violate our laws. It also
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ought to be obvious that the order for immediate compliance even if made by the former President
cannot be interpreted as a green signal by a subordinate official to disregard our laws. Indeed, no person,
not even the President can order the violation of our laws under any excuse whatsoever. The first and
foremost duty of the President is to uphold the sanctity of our laws. Thus, the Constitution requires the
President to take an oath or affirmation where he makes the solemn pledge to the people: "I do solemnly
swear (or affirm) that I will faithfully and conscientiously fulfill my duties as President of the
Philippines, preserve and defend its Constitution, execute its laws, do justice to every man, and
consecrate myself to the service of the Nation. . . . 3 To be sure, the need for petitioners to make an
immediate payment is really not that immediate. The facts show that former President Marcos first
called petitioner Tabuena by telephone and asked him to make the payment. One week after or on
January 8, 1986, the former President issued a written memorandum reiterating the order to pay.
Payments were made in three tranches the first on January 10, 1986, the second on January 16, 1986
and the third on January 31, 1986. Clearly then, it took petitioner one month to comply with the Order.
Given the personnel of petitioner Tabuena in his office, one month provides enough time to comply with
the rules. In any event, petitioners did not request former President Marcos for additional time to comply
with the rules if they felt in good faith that they needed more time. Petitioners short-circuited the rules
by themselves. Nothing in the Marcos Memorandum compelled them to disregard the rules. The
Memorandum merely stated "Your immediate compliance is appreciated". The language of the
Memorandum was as polite as it could be. I fail to discern any duress in the request as the majority did.
II
The determination of the degree of participation that should be allowed to a judge in the questioning of a
witness is a slippery slope in constitutional law. To a certain extent, I agree with the majority that some
of the questions propounded by the justices of the respondent Court crossed the limits of propriety. Be
that as it may, I am not prepared to conclude with certainty that the text and tone of the questions denied
petitioners the right to an impartial trial. Bias is a state of mind which easily eludes evidence. On the
basis of the evidence before us, we cannot hold that we have plumbed the depth of prejudice of the
justices and have unearthed their partiality. The more telling evidence against the petitioners are
documentary in nature. They are not derived from the answers elicited by questions from the justices
which the majority, sua sponte, examined and condemned as improper.
III
Finally, I can not but view with concern the probability that the majority decision will chill complaints
againsts graft pending before the respondent Court. From the majority decision, it is crystalline that
petitioners blindly obeyed the Marcos Memorandum despite its fatal and facial flaws. The majority even
quotes these inculpatory admissions of petitioner Tabuena, viz: 4
xxx xxx xxx
AJ del Rosario
xxx xxx xxx

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Q If it was for the payment of such obligation why was there no voucher to cover such payment? In
other words, why was the delivery of the money not covered by any voucher?
A The instruction to me was to give it to the Office of the President, your Honor.
PJ Garchitorena
Q Be that as it may, why was there no voucher to cover this particular disbursement?
A I was just told to bring it to the Office of the President, your Honor.
AJ del Rosario
Q Was that normal procedure for you to pay in cash to the Office of the President for obligations of the
MIAA in payment of its obligation to another entity?
A No, your Honor, I was just following the Order to me of the President.
PJ Garchitorena
Q So the Order was out of the ordinary?
A Yes, your Honor.
AJ del Rosario
Q Did you file any written protest with the manner with which such payment was being ordered?
A No, your Honor.
Q Why not?
A Because with that instruction of the President to me, I followed your Honor.
xxx xxx xxx
AJ Hermosisima
Q Why were you not made to pay directly to the PNCC considering that you are the manager of MIA at
that time and the PNCC is a separate corporation, not an adjunct of Malacanang?
A I was just basing it from the Order of the Malacanang to pay PNCC through the Office of the
President, your Honor.

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xxx xxx xxx


Q You agreed to the order of the President notwithstanding the fact that this was not the regular course
or Malacanang was not the creditor?
A I saw nothing wrong with that because that is coming from the President, your Honor.
In effect, petitioners' shocking submission is that the President is always right, a frightening echo of the
antedeluvian idea that the King can do no wrong. By allowing the petitioners to walk, the majority has
validated petitioners' belief that the President should always be obeyed as if the President is above and
beyond the law. I cannot accept this dangerous ruling even if I look at it through the eyes of faith. One of
the gospels in constitutional law is that the President is powerful but is not more paramount than the law.
And in criminal law, our catechism teaches us that it is loyalty to the law that saves, not loyalty to any
man. Let us not bid goodbye to these sacrosanct principles.
Padilla, Melo and Panganiban, JJ., concur.
PANGANIBAN, J., dissenting:
In the main, the majority ruled that Petitioners Luis Tabuena and Adolfo Peralta should be acquitted
because they were merely obeying the order of then President Ferdinand E. Marcos to deliver "thru this
Office, the sum of FIFTY FIVE MILLION (P55,000,000.00) PESOS in cash as partial payment of
MIAA's account" with the Philippine National Construction Company. In their Dissenting Opinions,
Justices Romero, Davide and Puno have shown how weak and unpersuasive this ruling is under
applicable Philippine laws and jurisprudence. I will not repeat their illuminative discussions. Let me just
stress three more points:
(1) The defense of "obedience to a superior's order" is already obsolete. Fifty years ago, the Nazi war
criminals tried to justify genocide against the Jews and their other crimes against humanity by alleging
they were merely following the orders of Adolf Hitler, their adored fuehrer. However, the International
Military Tribunal at Nuremberg in its Judgment dated October 1, 1946, 1 forcefully debunked this Nazi
argument and clearly ruled that "(t)he true test . . . is not the existence of the order but whether moral
choice was in fact possible."
In 1947, the United Nations General Assembly adopted a Resolution firmly entrenching the principle of
moral choice, inter alia, as follows: 2
The fact that a person acted pursuant to an order of his government or of a superior does not relieve him
from responsibility under international law, provided a moral choice was in fact possible to him.
In the Nuremberg trials, the defendants were military officers of the Third Reich who were duty-bound
to obeydirect orders on pain of court martial and death at a time when their country was at war.
Nonetheless, they were meted out death sentences by hanging or long-term imprisonments. In the
present case, the accused are civilian officials purportedly complying with a memorandum of the Chief
Executive when martial law had already been lifted and the nation was in fact just about to vote in the

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"snap" presidential election in 1986. The Sandiganbayan did not impose death but only imprisonment
ranging from seventeen years and one day to twenty years. Certainly a moral choice was not only
possible. It was in fact available to the accused. They could have opted to defy the illegal order, with no
risk of court martial or death. Or they could have resigned. They knew or should have known that the
P55 million was to be paid for a debt that was dubious 3 and in a manner that was irregular. That the
money was to be remitted in cold cash and delivered to the private secretary of the President, and not by
the normal crossed check to the alleged creditor, gave them a moral choice to refuse. That they opted to
cooperate compounded their guilt to a blatant conspiracy to defraud the public treasury.
(2) Resurrecting this internationally discredited Nazi defense will, I respectfully submit, set a dangerous
precedent in this country. Allowing the petitioners to walk deprives this Court of the moral authority to
convict any subaltern of the martial law dictator who was merely "following orders." This ludicrous
defense can be invoked in all criminal cases pending not only before this Court but more so before
inferior courts, which will have no legal option but to follow this Court's doctrine. 4
(3) Mercy and compassion are virtues which are cherished in every civilized society. But before they can
be invoked, there must first be justice. The Supreme Court's duty is to render justice. The power to
dispense pardon lies elsewhere. Verily, the Constitution ordains a final conviction by the courts before
the President can exercise his power to wipe away penalty. 5 Such is the legal and natural precedence and
order of things: justice first before mercy. And only he who sincerely repents his sin, restitutes for it, and
reforms his life deserves forgiveness and mercy.
I therefore vote to AFFIRM the assailed Sandiganbayan Decision onvicting the petitioners of
malversation.
Padilla, Melo and Panganiban, JJ., concur.
Footnotes
1 Taken under Section 7 of P.D. 1606, as amended (the Sandiganbayan Law), Section 1, Rule XIX of the
Revised Rules of the Sandiganbayan and Rule 45 of the Rules of Court. The petitions were ordered
consolidated by the Court in an En Banc Resolution dated October 1, 1992.
2 Promulgated on October 22, 1990; Rendered by the First Division then composed of Justices
Garchitorena (ponente), Hermosisima (now Associate Justice of this Court) and Del Rosario.
3 Promulgated on January 10, 1992.
4 Records, Vol. I, p. 26.
5 Records, Vol. I, pp. 119-120.
6 Tabuena avers that the Sandiganbayan:
"A

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Erred and committed reviewable error in ruling that petitioners withdrawal of the P55 Million was not
for a lawful purpose or for a lawful debt. In the process, the Sandiganbayan clearly ignored several
pieces or evidence submitted by petitioner, and instead misapprehended the full import of the Ongpin
Memorandum (Exh. "2", as attachment of Annex "I"), to which the Marcos order to pay referred (Exh.
"1", attachment to Annex "I"). In so concluding, the Sandiganbayan laid its conclusions open to review
as its judgment is in effect based on misapprehension of facts (Cruz vs. Sosing. L- 4875, November 27,
1953); and in ignoring several material pieces of evidence abused its discretion (Buyco vs. People, 51
OG 7927).
B
Erred and committed reviewable error in ruling that the Ongpin Memorandum (Exh. "2" and "2-A", See
Annex "I"), and the Marcos approval thereof (Exh. "1", id.) did not support the withdrawal and payment
of monies by petitioner. In so concluding, the Sandiganbayan again clearly misapprehended the Ongpin
and Marcos Memoranda, and the ledger of PNCC.
C
Erred and committed reviewable error in ruling that petitioner was in bad faith when he complied with
the presidential order to pay; in thus concluding the Sandiganbayan indulged in speculations and
conjectures (Joaquin vs. Navarro, 93 Phil. 257), or otherwise went beyond the issues (Evangelista vs.
Alco, L-11139, April 23, 1958); the Sandiganbayan also erred in not ruling that petitioner is entitled to
justifying circumstance under Par. 6, Art. II, and/or the exempting circumstance provided under Pars. 5
and 6 of Art. 12 of the Revised Penal Code.
D
Erred and committed reviewable error in ruling that petitioner was unable to account for the money. In
so doing, the Sandiganbayan contradicted the ruling in U.S. vs. Catolico 18 Phil. 504. It also erred in
holding petitioner accountable for acts not charged in the amended informations, and in so doing
convicted him without jurisdiction.
E
Erred and committed reviewable error in ruling that petitioner was not entitled to immunity as provided
by Sec. 17, Article VII of the 1973 Constitution. The Sandiganbayan therefore had no jurisdiction to try
the cases.
F
Erred and committed reviewable error in ruling that proof beyond reasonable doubt of petitioner's guilt
was submitted by the prosecution. In so doing, the Sandiganbayan wrongly shifted the burden of proof
and denied petitioner the benefits of the presumption of innocence, of Secs. 1 and 2, Rule 131, and the
absence of demand under the last paragraph of Art. 217 of the Revised Penal Code."

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Peralta for his part claim that:


"1. Respondent court grossly and seriously erred in convicting herein accused despite the absence of
proof that he allegedly converted the funds withdrawn to his own personal benefit as charged in the
information in glaring violation of his basic constitutional right to be presumed innocent.
"2. Respondent court likewise grossly and seriously erred in convicting herein accused for a crime not
charged in the information again in violation of another constitutional right, that is the right to be
informed of the accusation or right to due process.
3" Respondent court also grossly erred in convicting herein accused on the basis of mere assumptions,
conjectures and inferences devoid of factual basis in another serious and glaring violation of his right to
be presumed innocent until his guilt is established by proof beyond reasonable doubt.
4" Respondent court finally erred in refusing to recognize the applicability of the immunity provision
embodied in the Constitution and of the justifying circumstance of obedience to a lawful order as valid
defenses in this case."
7 Citing PNB v. Tugab, 66 Phil. 583 and People v. Pascua, 71 O.G. 2474.
8 Citing Tubb v. People, 101 Phil. 114.
9 197 SCRA 94.
10 18 Phil. 504.
11 24 Phil. 230.
12 47 Phil. 48.
13 Lewis v. People, 99 Colo. 102, 60 Pac. [2d] 1089; Lawyer v. State, 221 Ind. 101, 46 N.E. [2d] 592;
Stare v. Schmidt, 72 N. Dak. 719, 10 N.W. [2d] 868. Underhill's Criminal Evidence, 5th Ed., Book 3, p.
1421.
14 Federal Lindgren v. United States, 260 Fed. 772. Underhill. ibid.
15 Section 8, Article VII of the 1973 Constitution provides:
"The President shall have control of all ministries."
16 No. 6, Article II, Revised Penal Code.
17 Sandiganbayan Decision, pp. 37-38.

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175

18 Sandiganbayan Decision, p. 41.


19 TSN, March 17, 1989, p. 7; Vol. III, Records, p. 409.
20 TSN, March 17, 1989, p. 8; Vol. III, Records, p. 410.
21 TSN, March 17, 1989, p. 10; Vol. III, Records. p. 412.
22 Gregorio, Fundamentals of Criminal Law, 1988 8th Ed., p. 59.
23 78 Phil. 67.
24 Padilla, Revised Penal Code, Book One, Vol. I, 7th Ed. 1974., p. 248. See also: Aquino, The Revised
Penal Code, Vol. I, 1987 Ed., p. 207.
In the very words of the Court in the "Nassif' case:
"El mero acto de escribir un empleado de la categoria del recurrente, en el Exhibit B, la palabra "sold,"
por orden de su principal one le paga el sueldo, sin prueba alguna de dole o malicia de su parte. no crea
por si solo ninguna responsabilidad. Si antes de insertar dicha palabra en el referido documento, o al
tiempo de hacerlo, el recurrente hubiese sabido o sospechado de alguna manera que era para justificar un
acto Impropio de su principal, cosa one, por cierto, no se ha probado, ni puede desprenderse de la
decision impugnada, indudablemente podria hacersele responsable a dicho recurrente, de la falsificacion
cometida, si no come coautor, por lo menos come complice. Todo esto y la circunstancia justificativa
invocada por el recurrente, eximen a este de toda responsabilidad."
25 Decision, p. 45.
26 145 SCRA 435.
27 Supra.
28 Sandiganbayan Decision, p. 50.
29 People v. Fabian, No. 10790-CR, March 12, 1973. 69 O.G. 12150, No. 53.
30 18 Phil. 428.
31 197 SCRA 262.
32 Supra, p. 431.
33 Supra, p. 273.

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176

34 Development Bank of the Philippines v. Pundogar, 218 SCRA 118. 163.


35 People v. Exala, Dissenting Opinion, 221 SCRA 494, 503
36 People v. Olfindo, 47 Phil. 1, citing U.S. v. Abijan. 1 Phil. 83; People v. Borbano, 76 Phil. 703; Perez
v. Court of Appeals, 127 SCRA 636.
37 See TSN of March 17, 1989, Records, Vol. III, pp. 408-423.
38 See pp. 1-27 TSN of May 2, 1990, Records, Vol. III, pp. 439-465.
39 See pp. 32-53 of TSN, of May 2, 1990, Records, Vol. III, pp. 470-490.
40 Confrontation. Confrontation consists of confronting the witness with damaging facts which he
cannot deny and which are inconsistent with his evidence. It is a destructive technique, but when it fails
to destroy it may still succeed in weakening.
Probing. Probing consists of inquiring thoroughly into the details of the story to discover the flaws.
Insinuation. Insinuation consists of leading or forcing the witness by adding facts at one point and
modifying details at another, to give a version of his evidence which is more favorable to the other side.
The Technique of Advocacy, by John H. Munkman, on, 66-67; p. 75; pp. 91-92.
41 TSN, March 17, 1989, pp. 11-21; Records. Vol. III, pp. 413-423.
42 TSN, May 2, 1990, pp 11-27; Records, Vol. III. pp. 449-465.
43 TSN, May 2, 1990, pp. 35-53; Records, Vol. III, pp. 473-490.
44 US v. Hudieres, 27 Phil. 45; US v. Lim Kui, 35 Phil. 504; US v. Binayao, 35 Phil. 23.
45 People v. Opida, 142 SCRA 295.
46 York v. US 299 Fed. 778.
47 TSN, May 2, 1990, pp. 35-53; Records, Vol. III, pp. 473-490.
48 People v. Opida, supra.
49 Murphy v. State, 13 Ga. App. 431, 79 S.E. 228.
50 People v. Bernstein, 250 Ill. 63, 95 N.E. 50.
51 Dreyer v. Ershowsky, 156 App. Div. 27, 140 N.Y. Supp. 819.

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177

52 Dunn v. People, 172 III. 582, 50 N.E. 137.


53 Com. v. Myma, 278 Pa. 505, 123 Atl. 786.
54 Adler v. US, 104 C.C.A. 608, 108 Fed. 464.
55 Campaner v. Alano, CA-G.R. No. 2558-R, December 15, 1948.
56 People v. Opida, supra.
DAVIDE, JR., J., dissenting:
1 G.R. No. 105938.
2 Page 26.
3 218 SCRA 118, 163 [1993].
4 Citing People v. Olfindo, 47 Phil. 1 [1924], citing U.S. vs. Abijan, 1 Phil. 83 [1902]; People v.
Borbano, 76 Phil. 703 [1946]; Perez v. Court of Appeals, 127 SCRA 636 [1984].
5 27 Phil. 45, 47-48 [1914].
6 Article 6, Civil Code.
7 198 SCRA 130, 154-155 [1991].
8 Citing 92 C.J.S., 1066-1068 (italics supplied for emphasis).
9 Citing 16 A. 2d 50, 57, 340 Pa. 33, cited in note 71 C.J.S., 1068.
10 Citing ARTURO M. TOLENTINO, Civil Code of the Philippines, vol. 1, 1985 ed., 31-32, citing
Waxman v. United States, 12 Fed. 2nd, 775.
11 Citing People v. Malasugui, 63 Phil. 221 [1936]; de Garcia v. Locsin, 65 Phil. 689 [1938].
12 Citing People v. Royo, 114 SCRA 304 [1982]; Morales v. Enrile, 121 SCRA 538 [1983]; People v.
Colana, 126 SCRA 23 [1983]; People v. Sanchez, 132 SCRA 103 [1984]; People v. Galit, 135 SCRA
465 [1985]; People v. Quizon, 142 SCRA 362 [1986].
13 Citing Abriol v. Homeres, 84 Phil. 525 [1949]; People v. Dichoso, 96 SCRA 957 [1980].
14 JOAQUIN G. BERNAS, The Constitution of the Republic of the Philippines, vol. 1 [1987], 387.

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ROMERO, J., dissenting:


1 Exh. "1," Rollo, p. 231.
2 Exh. "3," ibid., p. 234.
3 Reyes, The Revised Penal Code, I, 1993, pp. 203-204; Kapunan and Faylona, Criminal Law, 1993, p.
82.
4 Sec. 607, Chapter 26, Title VII, The Administrative Code.
5 A new provision which was not in Batas Pambansa Blg. 337 (The Local Government Code of 1983).
6 COA Circular No. 91-350 dated March 4, 1991, increased the ceiling for cash payments from
P5,000.00 to P10,000.00. The Basic Guidelines for Internal Control, issued by the COA on January 31,
1977, set the ceiling even lower at P1,000.00.
7 TSN, May 2, 1990, p. 53.
8 Ibid., p. 17.
9 COA Circular No. 85-55-A, September 8, 1985.
10 Sec. 29 (1), Art. VI, 1987 Constitution (Sec. 18 [1], Art. VIII, 1973 Constitution).
11 Section 29 (2), ibid. (Section 18 [2], ibid.).
12 Section 29 (3), ibid. (new provision).
13 Section 1, Chapter I, Title I-B, Bk. V, The Administrative Code of 1987 (new).
14 Section 4 (5), P.D. 1445; Section 344, 1991 Local Government Code (new).
15 Section 4 (6) and Section 55 (4), ibid.; COA Circular 78-84, August 1, 1978; COA Circular 81-155.
16 Section 4 (7) and Section 55 (2), ibid.
17 Section 4 (8), ibid.
18 TSN, March 17, 1989, pp. 7-20.
19 Exhibit "2," Rollo, p. 232.
20 Exhibit "4," ibid., p. 235.

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21 Exhibit "4-a," id.


22 Art. 1240, Civil Code of the Philippines.
23 Art. 1241, par. 2, ibid.
24 Art. 1246, par. 1, id.
25 Rollo, pp. 385-387.
26 Supra.
27 Art. 217. Malversation of public funds or property. Presumption of malversation. Any public
officer who, by reason of the duties of his office, is accountable for public funds or property, shall
appropriate the same, or shall take or misappropriate or shall consent, or through abandonment or
negligence, shall permit any other person to take such public funds or property, wholly or partially, or
shall otherwise be guilty of the misappropriation or malversation of such funds or property, . . . .
(Emphasis supplied)
28 75 Am Jur 2d, Trial, Sec. 272, citing U.S. v. Candelaria-Gonzalez (CA5 Tex) 547 F2d 291.
29 Ibid.
30 Id., citing U.S. v. Slone (CA6 Ky) 833 F2d 595, 24 Fed Rules Evid Serv 339.
31 Id., citing Johnston v. Birmingham (Ala App) 338 So 2d 7.
32 Id., citing Eggert v. Mosler Safe Co. (Colo App) 730 P2d 895; Law Offices of Lawrence J Stockler,
PC v. Rose, 174 Mich App 14, 436 NW2d 70, app den 434 Mich 862, reconsideration den (Mich) 1990
Mich LEXIS 962, and reconsideration den (Mich) 1990 Mich LEXIS 963.
33 Id., citing U.S. v. Kelly (CA3 NJ) 329 F2d 314; Woodring v. U.S. (CA8 Mo) 311 F2d 417, cert den
373 US 913, 10 L Ed 2d 414, 83 S Ct 1304.
PUNO, J., dissenting:
1 Aquino, The Revised Penal Code, Vol. I, 1976 ed., p. 60.
2 15 Phil. 488, 493.
3 Section 5, Article VII of the Constitution.
4 See pp. 41-45 of majority decision.

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PANGANIBAN, J., dissenting:


1 41 AJIL 172, 221 (1947).
2 For the full text of the Resolution, please see Salonga and Yap, Public International Law, Third
Edition, p. 235-236.
3 Submitted before the Sandiganbayan was a Memorandum of then Minister of Trade Roberto Ongpin
dated January 7, 1985, stating that the MIAA had a total account of P98.4 million due the PNCC.
Subtracting however the "outstanding advances totalling P93.9 . . . will leave a net amount due to PNCC
of only P4.5 million," explained Mr. Ongpin. Even if the P30 million advances which Pres. Marcos is
claimed to have authorized PNCC to retain, is added to this "net amount due" of P4.5 million, the total
would run up to only P34.5 million still P20.5 million shy of the P55 million actually disbursed.
4 In Ty vs. Trampe, 250 SCRA 500, 521, December 1, 1995, judges were admonished to follow
"established laws, doctrines and precedents." Hence, "once a case has been decided one way, then
another case involving exactly the same point at issue should be decided in the same manner." Tay Chun
Suy vs. Court of Appeals, 229 SCRA 151, 163, January 7, 1994.
5 In People vs. Salle, Jr., 250 SCRA 581, December 4, 1995 this Court expressly held that Section 19,
Article VII of the present Constitution prohibits the presidential grant of pardon unless there is
"conviction by final judgment" of the accused.

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181

Republic of the Philippines


SUPREME COURT
Manila
EN BANC
G.R. No. 170165

August 15, 2006

B/GEN. (RET.) FRANCISCO V. GUDANI AND LT. COL. ALEXANDER F. BALUTAN


Petitioners,
vs.
LT./GEN. GENEROSO S. SENGA CORONA, AS CHIEF OF STAFF OF THE CARPIOMORALES, ARMED FORCES OF THE CALLEJO, SR., PHILIPPINES, COL. GILBERTO
AZCUNA, JOSE C. ROA AS THE PRE-TRIAL TINGA, INVESTIGATING OFFICER, THE
CHICO-NAZARIO, PROVOST MARSHALL GENERAL GARCIA, and OF THE ARMED
FORCES OF THE PHILIPPINES AND THE GENERAL COURT-MARTIAL,Respondents.
DECISION
TINGA, J.:
A most dangerous general proposition is foisted on the Court that soldiers who defy orders of their
superior officers are exempt
from the strictures of military law and discipline if such defiance is predicated on an act otherwise valid
under civilian law. Obedience and deference to the military chain of command and the President as
commander-in-chief are the cornerstones of a professional military in the firm cusp of civilian control.
These values of obedience and deference expected of military officers are content-neutral, beyond the
sway of the officers own sense of what is prudent or rash, or more elementally, of right or wrong. A
self-righteous military invites itself as the scoundrels activist solution to the "ills" of participatory
democracy.
Petitioners seek the annulment of a directive from President Gloria Macapagal-Arroyo 1 enjoining them
and other military officers from testifying before Congress without the Presidents consent. Petitioners
also pray for injunctive relief against a pending preliminary investigation against them, in preparation

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for possible court-martial proceedings, initiated within the military justice system in connection with
petitioners violation of the aforementioned directive.
The Court is cognizant that petitioners, in their defense, invoke weighty constitutional principles that
center on fundamental freedoms enshrined in the Bill of Rights. Although these concerns will not be
addressed to the satisfaction of petitioners, the Court recognizes these values as of paramount
importance to our civil society, even if not determinative of the resolution of this petition. Had the
relevant issue before us been the right of the Senate to compel the testimony of petitioners, the
constitutional questions raised by them would have come to fore. Such a scenario could have very well
been presented to the Court in such manner, without the petitioners having had to violate a direct order
from their commanding officer. Instead, the Court has to resolve whether petitioners may be subjected to
military discipline on account of their defiance of a direct order of the AFP Chief of Staff.
The solicited writs of certiorari and prohibition do not avail; the petition must be denied.
I.
The petitioners are high-ranking officers of the Armed Forces of the Philippines (AFP). Both petitioners,
Brigadier General Francisco Gudani (Gen. Gudani) and Lieutenant Colonel Alexander Balutan (Col.
Balutan), belonged to the Philippine Marines. At the time of the subject incidents, both Gen. Gudani and
Col. Balutan were assigned to the Philippine Military Academy (PMA) in Baguio City, the former as the
PMA Assistant Superintendent, and the latter as the Assistant Commandant of Cadets.2
On 22 September 2005, Senator Rodolfo Biazon (Sen. Biazon) invited several senior officers of the AFP
to appear at a public hearing before the Senate Committee on National Defense and Security (Senate
Committee) scheduled on 28 September 2005. The hearing was scheduled after topics concerning the
conduct of the 2004 elections emerged in the public eye, particularly allegations of massive cheating and
the surfacing of copies of an audio excerpt purportedly of a phone conversation between President
Gloria Macapagal Arroyo and an official of the Commission on Elections (COMELEC) widely reputed
as then COMELEC Commissioner Virgilio Garcillano. At the time of the 2004 elections, Gen. Gudani
had been designated as commander, and Col. Balutan a member, of "Joint Task Force Ranao" by the
AFP Southern Command. "Joint Task Force Ranao" was tasked with the maintenance of peace and order
during the 2004 elections in the provinces of Lanao del Norte and Lanao del Sur.3 `
Gen. Gudani, Col. Balutan, and AFP Chief of Staff Lieutenant General Generoso Senga (Gen. Senga)
were among the several AFP officers who received a letter invitation from Sen. Biazon to attend the 28
September 2005 hearing. On 23 September 2005, Gen. Senga replied through a letter to Sen. Biazon that
he would be unable to attend the hearing due to a previous commitment in Brunei, but he nonetheless
"directed other officers from the AFP who were invited to attend the hearing."4
On 26 September 2005, the Office of the Chief of Staff of the AFP issued a Memorandum addressed to
the Superintendent of the PMA Gen. Cristolito P. Baloing (Gen. Baloing). It was signed by Lt. Col.
Hernando DCA Iriberri in behalf of Gen. Senga. 5 Noting that Gen. Gudani and Col. Balutan had been
invited to attend the Senate Committee hearing on 28 September 2005, the Memorandum directed the

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two officers to attend the hearing. 6Conformably, Gen. Gudani and Col. Balutan filed their respective
requests for travel authority addressed to the PMA Superintendent.
On 27 September 2005, Gen. Senga wrote a letter to Sen. Biazon, requesting the postponement of the
hearing scheduled for the following day, since the AFP Chief of Staff was himself unable to attend said
hearing, and that some of the invited officers also could not attend as they were "attending to other
urgent operational matters." By this time, both Gen. Gudani and Col. Balutan had already departed
Baguio for Manila to attend the hearing.
Then on the evening of 27 September 2005, at around 10:10 p.m., a message was transmitted to the
PMA Superintendent from the office of Gen. Senga, stating as follows:
PER INSTRUCTION OF HER EXCELLENCY PGMA, NO AFP PERSONNEL SHALL APPEAR
BEFORE ANY CONGRESSIONAL OR SENATE HEARING WITHOUT HER APPROVAL. INFORM
BGEN FRANCISCO F GUDANI AFP AND LTC ALEXANDER BALUTAN PA (GSC)
ACCORDINGLY.7
The following day, Gen. Senga sent another letter to Sen. Biazon, this time informing the senator that
"no approval has been granted by the President to any AFP officer to appear" before the hearing
scheduled on that day. Nonetheless, both Gen. Gudani and Col. Balutan were present as the hearing
started, and they both testified as to the conduct of the 2004 elections.
The Office of the Solicitor General (OSG), representing the respondents before this Court, has offered
additional information surrounding the testimony of Gen. Gudani and Col. Balutan. The OSG manifests
that the couriers of the AFP Command Center had attempted to deliver the radio message to Gen.
Gudanis residence in a subdivision in Paraaque City late in the night of 27 September 2005, but they
were not permitted entry by the subdivision guards. The next day, 28 September 2005, shortly before the
start of the hearing, a copy of Gen. Sengas letter to Sen. Biazon sent earlier that day was handed at the
Senate by Commodore Amable B. Tolentino of the AFP Office for Legislative Affairs to Gen. Gudani,
who replied that he already had a copy. Further, Gen. Senga called Commodore Tolentino on the latters
cell phone and asked to talk to Gen. Gudani, but Gen. Gudani refused. In response, Gen. Senga
instructed Commodore Tolentino to inform Gen. Gudani that "it was an order," yet Gen. Gudani still
refused to take Gen. Sengas call.8
A few hours after Gen. Gudani and Col. Balutan had concluded their testimony, the office of Gen. Senga
issued a statement which noted that the two had appeared before the Senate Committee "in spite of the
fact that a guidance has been given that a Presidential approval should be sought prior to such an
appearance;" that such directive was "in keeping with the time[-]honored principle of the Chain of
Command;" and that the two officers "disobeyed a legal order, in violation of A[rticles of] W[ar] 65
(Willfully Disobeying Superior Officer), hence they will be subjected to General Court Martial
proceedings x x x" Both Gen. Gudani and Col. Balutan were likewise relieved of their assignments
then.9
On the very day of the hearing, 28 September 2005, President Gloria-Macapagal-Arroyo issued
Executive Order No. 464 (E.O. 464). The OSG notes that the E.O. "enjoined officials of the executive

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department including the military establishment from appearing in any legislative inquiry without her
approval."10 This Court subsequently ruled on the constitutionality of the said executive order in Senate
v. Ermita.11 The relevance of E.O. 464 andSenate to the present petition shall be discussed forthwith.
In the meantime, on 30 September 2005, petitioners were directed by General Senga, through Col.
Henry A. Galarpe of the AFP Provost Marshal General, to appear before the Office of the Provost
Marshal General (OPMG) on 3 October 2005 for investigation. During their appearance before Col.
Galarpe, both petitioners invoked their right to remain silent. 12 The following day, Gen. Gudani was
compulsorily retired from military service, having reached the age of 56.13
In an Investigation Report dated 6 October 2005, the OPMG recommended that petitioners be charged
with violation of Article of War 65, on willfully disobeying a superior officer, in relation to Article of
War 97, on conduct prejudicial to the good order and military discipline. 14 As recommended, the case
was referred to a Pre-Trial Investigation Officer (PTIO) preparatory to trial by the General Court Martial
(GCM).15 Consequently, on 24 October 2005, petitioners were separately served with Orders
respectively addressed to them and signed by respondent Col. Gilbert Jose C. Roa, the Pre-Trial
Investigating Officer of the PTIO. The Orders directed petitioners to appear in person before Col. Roa at
the Pre-Trial Investigation of the Charges for violation of Articles 65 16 and 9717 of Commonwealth Act
No. 408,18 and to submit their counter-affidavits and affidavits of witnesses at the Office of the Judge
Advocate General.19 The Orders were accompanied by respective charge sheets against petitioners,
accusing them of violating Articles of War 65 and 97.
It was from these premises that the present petition for certiorari and prohibition was filed, particularly
seeking that (1) the order of President Arroyo coursed through Gen. Senga preventing petitioners from
testifying before Congress without her prior approval be declared unconstitutional; (2) the charges stated
in the charge sheets against petitioners be quashed; and (3) Gen. Senga, Col. Galarpe, Col. Roa, and
their successors-in-interest or persons acting for and on their behalf or orders, be permanently enjoined
from proceeding against petitioners, as a consequence of their having testified before the Senate on 28
September 2005.20
Petitioners characterize the directive from President Arroyo requiring her prior approval before any AFP
personnel appear before Congress as a "gag order," which violates the principle of separation of powers
in government as it interferes with the investigation of the Senate Committee conducted in aid of
legislation. They also equate the "gag order" with culpable violation of the Constitution, particularly in
relation to the publics constitutional right to information and transparency in matters of public concern.
Plaintively, petitioners claim that "the Filipino people have every right to hear the [petitioners]
testimonies," and even if the "gag order" were unconstitutional, it still was tantamount to "the crime of
obstruction of justice." Petitioners further argue that there was no law prohibiting them from testifying
before the Senate, and in fact, they were appearing in obeisance to the authority of Congress to conduct
inquiries in aid of legislation.
Finally, it is stressed in the petition that Gen. Gudani was no longer subject to military jurisdiction on
account of his compulsory retirement on 4 October 2005. It is pointed out that Article 2, Title I of the
Articles of War defines persons subject to military law as "all officers and soldiers in the active service"
of the AFP.

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II.
We first proceed to define the proper litigable issues. Notably, the guilt or innocence of petitioners in
violating Articles 65 and 97 of the Articles of War is not an issue before this Court, especially
considering that per records, petitioners have not yet been subjected to court martial proceedings. Owing
to the absence of such proceedings, the correct inquiry should be limited to whether respondents could
properly initiate such proceedings preparatory to a formal court-martial, such as the aforementioned
preliminary investigation, on the basis of petitioners acts surrounding their testimony before the Senate
on 28 September 2005. Yet this Court, consistent with the principle that it is not a trier of facts at first
instance,21 is averse to making any authoritative findings of fact, for that function is first for the courtmartial court to fulfill.
Thus, we limit ourselves to those facts that are not controverted before the Court, having been
commonly alleged by petitioners and the OSG (for respondents). Petitioners were called by the Senate
Committee to testify in its 28 September 2005 hearing. Petitioners attended such hearing and testified
before the Committee, despite the fact that the day before, there was an order from Gen. Senga (which in
turn was sourced "per instruction" from President Arroyo) prohibiting them from testifying without the
prior approval of the President. Petitioners do not precisely admit before this Court that they had learned
of such order prior to their testimony, although the OSG asserts that at the very least, Gen. Gudani
already knew of such order before he testified.22 Yet while this fact may be ultimately material in the
court-martial proceedings, it is not determinative of this petition, which as stated earlier, does not proffer
as an issue whether petitioners are guilty of violating the Articles of War.
What the Court has to consider though is whether the violation of the aforementioned order of Gen.
Senga, which emanated from the President, could lead to any investigation for court-martial of
petitioners. It has to be acknowledged as a general principle 23 that AFP personnel of whatever rank are
liable under military law for violating a direct order of an officer superior in rank. Whether petitioners
did violate such an order is not for the Court to decide, but it will be necessary to assume, for the
purposes of this petition, that petitioners did so.
III.
Preliminarily, we must discuss the effect of E.O. 464 and the Courts ruling in Senate on the present
petition.Notably, it is not alleged that petitioners were in any way called to task for violating E.O.
464, but instead, they were charged for violating the direct order of Gen. Senga not to appear
before the Senate Committee, an order that stands independent of the executive order. Distinctions
are called for, since Section 2(b) of E.O. 464 listed "generals and flag officers of the Armed Forces of
the Philippines and such other officers who in the judgment of the Chief of Staff are covered by the
executive privilege," as among those public officials required in Section 3 of E.O. 464 "to secure prior
consent of the President prior to appearing before either House of Congress." The Court in Senate
declared both Section 2(b) and Section 3 void, 24 and the impression may have been left following Senate
that it settled as doctrine, that the President is prohibited from requiring military personnel from
attending congressional hearings without having first secured prior presidential consent. That impression
is wrong.
Senate turned on the nature of executive privilege, a presidential prerogative which is encumbered by
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significant limitations. Insofar as E.O. 464 compelled officials of the executive branch to seek prior
presidential approval before appearing before Congress, the notion of executive control also comes into
consideration.25 However, the ability of the President to require a military official to secure prior consent
before appearing before Congress pertains to a wholly different and independent specie of presidential
authoritythe commander-in-chief powers of the President. By tradition and jurisprudence, the
commander-in-chief powers of the President are not encumbered by the same degree of restriction as
that which may attach to executive privilege or executive control.
During the deliberations in Senate, the Court was very well aware of the pendency of this petition as
well as the issues raised herein. The decision in Senate was rendered with the comfort that the
nullification of portions of E.O. 464 would bear no impact on the present petition since petitioners
herein were not called to task for violating the executive order. Moreover, the Court was then cognizant
that Senate and this case would ultimately hinge on disparate legal issues. Relevantly, Senate purposely
did not touch upon or rule on the faculty of the President, under the aegis of the commander-in-chief
powers26 to require military officials from securing prior consent before appearing before Congress. The
pertinent factors in considering that question are markedly outside of those which did become relevant
in adjudicating the issues raised in Senate. It is in this petition that those factors come into play.
At this point, we wish to dispose of another peripheral issue before we strike at the heart of the matter.
General Gudani argues that he can no longer fall within the jurisdiction of the court-martial, considering
his retirement last 4 October 2005. He cites Article 2, Title I of Commonwealth Act No. 408, which
defines persons subject to military law as, among others, "all officers and soldiers in the active service of
the [AFP]," and points out that he is no longer in the active service.
This point was settled against Gen. Gudanis position in Abadilla v. Ramos,27 where the Court declared
that an officer whose name was dropped from the roll of officers cannot be considered to be outside the
jurisdiction of military authorities when military justice proceedings were initiated against him before
the termination of his service. Once jurisdiction has been acquired over the officer, it continues until his
case is terminated. Thus, the Court held:
The military authorities had jurisdiction over the person of Colonel Abadilla at the time of the alleged
offenses. This jurisdiction having been vested in the military authorities, it is retained up to the end of
the proceedings against Colonel Abadilla. Well-settled is the rule that jurisdiction once acquired is not
lost upon the instance of the parties but continues until the case is terminated.28
Citing Colonel Winthrops treatise on Military Law, the Court further stated:
We have gone through the treatise of Colonel Winthrop and We find the following passage which goes
against the contention of the petitioners, viz
3. Offenders in general Attaching of jurisdiction. It has further been held, and is now settled law, in
regard to military offenders in general, that if the military jurisdiction has once duly attached to them
previous to the date of the termination of their legal period of service, they may be brought to trial by
court-martial after that date, their discharge being meanwhile withheld. This principle has mostly been
applied to cases where the offense was committed just prior to the end of the term. In such cases the

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interests of discipline clearly forbid that the offender should go unpunished. It is held therefore that if
before the day on which his service legally terminates and his right to a discharge is complete,
proceedings with a view to trial are commenced against him as by arrest or the service of
charges, the military jurisdiction will fully attach and once attached may be continued by a
trial by court-martial ordered and held after the end of the term of the enlistment of the accused x
x x 29
Thus, military jurisdiction has fully attached to Gen. Gudani inasmuch as both the acts complained of
and the initiation of the proceedings against him occurred before he compulsorily retired on 4 October
2005. We see no reason to unsettle the Abadilla doctrine. The OSG also points out that under Section 28
of Presidential Decree No. 1638, as amended, "[a]n officer or enlisted man carried in the retired list [of
the Armed Forces of the Philippines] shall be subject to the Articles of War x x x" 30 To this citation,
petitioners do not offer any response, and in fact have excluded the matter of Gen. Gudanis retirement
as an issue in their subsequent memorandum.
IV.
We now turn to the central issues.
Petitioners wish to see annulled the "gag order" that required them to secure presidential consent prior to
their appearance before the Senate, claiming that it violates the constitutional right to information and
transparency in matters of public concern; or if not, is tantamount at least to the criminal acts of
obstruction of justice and grave coercion. However, the proper perspective from which to consider this
issue entails the examination of the basis and authority of the President to issue such an order in the first
place to members of the AFP and the determination of whether such an order is subject to any
limitations.
The vitality of the tenet that the President is the commander-in-chief of the Armed Forces is most crucial
to the democratic way of life, to civilian supremacy over the military, and to the general stability of our
representative system of government. The Constitution reposes final authority, control and supervision
of the AFP to the President, a civilian who is not a member of the armed forces, and whose duties as
commander-in-chief represent only a part of the organic duties imposed upon the office, the other
functions being clearly civil in nature. 31 Civilian supremacy over the military also countermands the
notion that the military may bypass civilian authorities, such as civil courts, on matters such as
conducting warrantless searches and seizures.32
Pursuant to the maintenance of civilian supremacy over the military, the Constitution has allocated
specific roles to the legislative and executive branches of government in relation to military affairs.
Military appropriations, as with all other appropriations, are determined by Congress, as is the power to
declare the existence of a state of war.33 Congress is also empowered to revoke a proclamation of martial
law or the suspension of the writ ofhabeas corpus.34 The approval of the Commission on Appointments
is also required before the President can promote military officers from the rank of colonel or naval
captain.35 Otherwise, on the particulars of civilian dominance and administration over the military, the
Constitution is silent, except for the commander-in-chief clause which is fertile in meaning and

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implication as to whatever inherent martial authority the President may possess.36


The commander-in-chief provision in the Constitution is denominated as Section 18, Article VII, which
begins with the simple declaration that "[t]he President shall be the Commander-in-Chief of all armed
forces of the Philippines x x x" 37 Outside explicit constitutional limitations, such as those found in
Section 5, Article XVI, the commander-in-chief clause vests on the President, as commander-in-chief,
absolute authority over the persons and actions of the members of the armed forces. Such authority
includes the ability of the President to restrict the travel, movement and speech of military officers,
activities which may otherwise be sanctioned under civilian law.
Reference to Kapunan, Jr. v. De Villa38 is useful in this regard. Lt. Col. Kapunan was ordered confined
under "house arrest" by then Chief of Staff (later President) Gen. Fidel Ramos. Kapunan was also
ordered, as a condition for his house arrest, that he may not issue any press statements or give any press
conference during his period of detention. The Court unanimously upheld such restrictions, noting:
[T]he Court is of the view that such is justified by the requirements of military discipline. It cannot be
gainsaid that certain liberties of persons in the military service, including the freedom of speech,
may be circumscribed by rules of military discipline. Thus, to a certain degree, individual rights
may be curtailed, because the effectiveness of the military in fulfilling its duties under the law
depends to a large extent on the maintenance of discipline within its ranks. Hence, lawful orders
must be followed without question and rules must be faithfully complied with, irrespective of a
soldier's personal views on the matter. It is from this viewpoint that the restrictions imposed on
petitioner Kapunan, an officer in the AFP, have to be considered.39
Any good soldier, or indeed any ROTC cadet, can attest to the fact that the military way of life
circumscribes several of the cherished freedoms of civilian life. It is part and parcel of the military
package. Those who cannot abide by these limitations normally do not pursue a military career and
instead find satisfaction in other fields; and in fact many of those discharged from the service are
inspired in their later careers precisely by their rebellion against the regimentation of military life.
Inability or unwillingness to cope with military discipline is not a stain on character, for the military
mode is a highly idiosyncratic path which persons are not generally conscripted into, but volunteer
themselves to be part of. But for those who do make the choice to be a soldier, significant concessions to
personal freedoms are expected. After all, if need be, the men and women of the armed forces may be
commanded upon to die for country, even against their personal inclinations.
It may be so that military culture is a remnant of a less democratic era, yet it has been fully integrated
into the democratic system of governance. The constitutional role of the armed forces is as protector of
the people and of the State.40 Towards this end, the military must insist upon a respect for duty and a
discipline without counterpart in civilian life.41 The laws and traditions governing that discipline have a
long history; but they are founded on unique military exigencies as powerful now as in the past. 42 In the
end, it must be borne in mind that the armed forces has a distinct subculture with unique needs, a
specialized society separate from civilian society. 43 In the elegant prose of the eminent British military
historian, John Keegan:
[Warriors who fight wars have] values and skills [which] are not those of politicians and diplomats.
They are those of a world apart, a very ancient world, which exists in parallel with the everyday world
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but does not belong to it. Both worlds change over time, and the warrior world adopts in step to the
civilian. It follows it, however, at a distance. The distance can never be closed, for the culture of the
warrior can never be that of civilization itself.44
Critical to military discipline is obeisance to the military chain of command. Willful disobedience of a
superior officer is punishable by court-martial under Article 65 of the Articles of War. 45 "An individual
soldier is not free to ignore the lawful orders or duties assigned by his immediate superiors. For there
would be an end of all discipline if the seaman and marines on board a ship of war [or soldiers deployed
in the field], on a distant service, were permitted to act upon their own opinion of their rights [or their
opinion of the
Presidents intent], and to throw off the authority of the commander whenever they supposed it to be
unlawfully exercised."46
Further traditional restrictions on members of the armed forces are those imposed on free speech and
mobility.1wphi1Kapunan is ample precedent in justifying that a soldier may be restrained by a superior
officer from speaking out on certain matters. As a general rule, the discretion of a military officer to
restrain the speech of a soldier under his/her command will be accorded deference, with minimal regard
if at all to the reason for such restraint. It is integral to military discipline that the soldiers speech be
with the consent and approval of the military commander.
The necessity of upholding the ability to restrain speech becomes even more imperative if the soldier
desires to speak freely on political matters. The Constitution requires that "[t]he armed forces shall be
insulated from partisan politics," and that [n]o member of the military shall engage directly or indirectly
in any partisan political activity, except to vote."47 Certainly, no constitutional provision or military
indoctrination will eliminate a soldiers ability to form a personal political opinion, yet it is vital that
such opinions be kept out of the public eye. For one, political belief is a potential source of discord
among people, and a military torn by political strife is incapable of fulfilling its constitutional function
as protectors of the people and of the State. For another, it is ruinous to military discipline to foment an
atmosphere that promotes an active dislike of or dissent against the President, the commander-in-chief of
the armed forces. Soldiers are constitutionally obliged to obey a President they may dislike or distrust.
This fundamental principle averts the country from going the way of banana republics.
Parenthetically, it must be said that the Court is well aware that our countrys recent past is marked by
regime changes wherein active military dissent from the chain of command formed a key, though not
exclusive, element. The Court is not blind to history, yet it is a judge not of history but of the
Constitution. The Constitution, and indeed our modern democratic order, frown in no uncertain terms on
a politicized military, informed as they are on the trauma of absolute martial rule. Our history might
imply that a political military is part of the natural order, but this view cannot be affirmed by the legal
order. The evolutionary path of our young democracy necessitates a reorientation from this view, reliant
as our socio-political culture has become on it. At the same time, evolution mandates a similar demand
that our system of governance be more responsive to the needs and aspirations of the citizenry, so as to
avoid an environment vulnerable to a military apparatus able at will to exert an undue influence in our
polity.
Of possibly less gravitas, but of equal importance, is the principle that mobility of travel is another
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necessary restriction on members of the military. A soldier cannot leave his/her post without the consent
of the commanding officer. The reasons are self-evident. The commanding officer has to be aware at all
times of the location of the troops under command, so as to be able to appropriately respond to any
exigencies. For the same reason, commanding officers have to be able to restrict the movement or travel
of their soldiers, if in their judgment, their presence at place of call of duty is necessary. At times, this
may lead to unsentimental, painful consequences, such as a soldier being denied permission to witness
the birth of his first-born, or to attend the funeral of a parent. Yet again, military life calls for
considerable personal sacrifices during the period of conscription, wherein the higher duty is not to self
but to country.
Indeed, the military practice is to require a soldier to obtain permission from the commanding officer
before he/she may leave his destination. A soldier who goes from the properly appointed place of duty or
absents from his/her command, guard, quarters, station, or camp without proper leave is subject to
punishment by court-martial.48 It is even clear from the record that petitioners had actually requested for
travel authority from the PMA in Baguio City to Manila, to attend the Senate Hearing. 49 Even petitioners
are well aware that it was necessary for them to obtain permission from their superiors before they could
travel to Manila to attend the Senate Hearing.
It is clear that the basic position of petitioners impinges on these fundamental principles we have
discussed. They seek to be exempted from military justice for having traveled to the Senate to testify
before the Senate Committee against the express orders of Gen. Senga, the AFP Chief of Staff. If
petitioners position is affirmed, a considerable exception would be carved from the unimpeachable right
of military officers to restrict the speech and movement of their juniors. The ruinous consequences to the
chain of command and military discipline simply cannot warrant the Courts imprimatur on petitioners
position.
V.
Still, it would be highly myopic on our part to resolve the issue solely on generalities surrounding
military discipline. After all, petitioners seek to impress on us that their acts are justified as they were
responding to an invitation from the Philippine Senate, a component of the legislative branch of
government. At the same time, the order for them not to testify ultimately came from the President, the
head of the executive branch of government and the commander-in-chief of the armed forces.
Thus, we have to consider the question: may the President prevent a member of the armed forces from
testifying before a legislative inquiry? We hold that the President has constitutional authority to do so,
by virtue of her power as commander-in-chief, and that as a consequence a military officer who defies
such injunction is liable under military justice. At the same time, we also hold that any chamber of
Congress which seeks the appearance before it of a military officer against the consent of the President
has adequate remedies under law to compel such attendance. Any military official whom Congress
summons to testify before it may be compelled to do so by the President. If the President is not so
inclined, the President may be commanded by judicial order to compel the attendance of the military
officer. Final judicial orders have the force of the law of the land which the President has the duty to
faithfully execute.50
Explication of these principles is in order.
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As earlier noted, we ruled in Senate that the President may not issue a blanket requirement of prior
consent on executive officials summoned by the legislature to attend a congressional hearing. In doing
so, the Court recognized the considerable limitations on executive privilege, and affirmed that the
privilege must be formally invoked on specified grounds. However, the ability of the President to
prevent military officers from testifying before Congress does not turn on executive privilege, but
on the Chief Executives power as commander-in-chief to control the actions and speech of
members of the armed forces. The Presidents prerogatives as commander-in-chief are not
hampered by the same limitations as in executive privilege.
Our ruling that the President could, as a general rule, require military officers to seek presidential
approval before appearing before Congress is based foremost on the notion that a contrary rule unduly
diminishes the prerogatives of the President as commander-in-chief. Congress holds significant control
over the armed forces in matters such as budget appropriations and the approval of higher-rank
promotions,51 yet it is on the President that the Constitution vests the title as commander-in-chief and all
the prerogatives and functions appertaining to the position. Again, the exigencies of military discipline
and the chain of command mandate that the Presidents ability to control the individual members of the
armed forces be accorded the utmost respect. Where a military officer is torn between obeying the
President and obeying the Senate, the Court will without hesitation affirm that the officer has to choose
the President. After all, the Constitution prescribes that it is the President, and not the Senate, who is the
commander-in-chief of the armed forces.52
At the same time, the refusal of the President to allow members of the military to appear before
Congress is still subject to judicial relief. The Constitution itself recognizes as one of the legislatures
functions is the conduct of inquiries in aid of legislation. 53 Inasmuch as it is ill-advised for Congress to
interfere with the Presidents power as commander-in-chief, it is similarly detrimental for the President
to unduly interfere with Congresss right to conduct legislative inquiries. The impasse did not come to
pass in this petition, since petitioners testified anyway despite the presidential prohibition. Yet the Court
is aware that with its pronouncement today that the President has the right to require prior consent from
members of the armed forces, the clash may soon loom or actualize.
We believe and hold that our constitutional and legal order sanctions a modality by which members of
the military may be compelled to attend legislative inquiries even if the President desires otherwise, a
modality which does not offend the Chief Executives prerogatives as commander-in-chief. The remedy
lies with the courts.
The fact that the executive branch is an equal, coordinate branch of government to the legislative creates
a wrinkle to any basic rule that persons summoned to testify before Congress must do so. There is
considerable interplay between the legislative and executive branches, informed by due deference and
respect as to their various constitutional functions. Reciprocal courtesy idealizes this relationship; hence,
it is only as a last resort that one branch seeks to compel the other to a particular mode of behavior. The
judiciary, the third coordinate branch of government, does not enjoy a similar dynamic with either the
legislative or executive branches. Whatever weakness inheres on judicial power due to its inability to
originate national policies and legislation, such is balanced by the fact that it is the branch empowered
by the Constitution to compel obeisance to its rulings by the other branches of government.
As evidenced by Arnault v. Nazareno54 and Bengzon v. Senate Blue Ribbon Committee,55 among others,
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the Court has not shirked from reviewing the exercise by Congress of its power of legislative inquiry. 56
Arnaultrecognized that the legislative power of inquiry and the process to enforce it, "is an essential and
appropriate auxiliary to the legislative function." 57 On the other hand, Bengzon acknowledged that the
power of both houses of Congress to conduct inquiries in aid of legislation is not "absolute or
unlimited", and its exercise is circumscribed by Section 21, Article VI of the Constitution. 58 From these
premises, the Court enjoined the Senate Blue Ribbon Committee from requiring the petitioners in
Bengzon from testifying and producing evidence before the committee, holding that the inquiry in
question did not involve any intended legislation.
Senate affirmed both the Arnault and Bengzon rulings. It elucidated on the constitutional scope and
limitations on the constitutional power of congressional inquiry. Thus:
As discussed in Arnault, the power of inquiry, "with process to enforce it," is grounded on the necessity
of information in the legislative process. If the information possessed by executive officials on the
operation of their offices is necessary for wise legislation on that subject, by parity of reasoning,
Congress has the right to that information and the power to compel the disclosure thereof.
As evidenced by the American experience during the so-called "McCarthy era", however, the right of
Congress to conduct inquirites in aid of legislation is, in theory, no less susceptible to abuse than
executive or judicial power. It may thus be subjected to judicial review pursuant to the Courts certiorari
powers under Section 1, Article VIII of the Constitution.
For one, as noted in Bengzon v. Senate Blue Ribbon Committee, the inquiry itself might not properly be
in aid of legislation, and thus beyond the constitutional power of Congress. Such inquiry could not usurp
judicial functions. Parenthetically, one possible way for Congress to avoid such result as occurred in
Bengzon is to indicate in its invitations to the public officials concerned, or to any person for that matter,
the possible needed statute which prompted the need for the inquiry. Given such statement in its
invitations, along with the usual indication of the subject of inquiry and the questions relative to and in
furtherance thereof, there would be less room for speculation on the part of the person invited on
whether the inquiry is in aid of legislation.
Section 21, Article VI likewise establishes critical safeguards that proscribe the legislative power of
inquiry. The provision requires that the inquiry be done in accordance with the Senate or Houses duly
published rules of procedure, necessarily implying the constitutional infirmity of an inquiry conducted
without duly published rules of procedure. Section 21 also mandates that the rights of persons appearing
in or affected by such inquiries be respected, an imposition that obligates Congress to adhere to the
guarantees in the Bill of Rights.
These abuses are, of course, remediable before the courts, upon the proper suit filed by the persons
affected, even if they belong to the executive branch. Nonetheless, there may be exceptional
circumstances wherein a clear pattern of abuse of the legislative power of inquiry might be
established, resulting in palpable violations of the rights guaranteed to members of the executive
department under the Bill of Rights. In such instances, depending on the particulars of each case,
attempts by the Executive Branch to forestall these abuses may be accorded judicial sanction59 .

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In Senate, the Court ruled that the President could not impose a blanket prohibition barring executive
officials from testifying before Congress without the Presidents consent notwithstanding the invocation
of executive privilege to justify such prohibition. The Court did not rule that the power to conduct
legislative inquiry ipso facto superseded the claim of executive privilege, acknowledging instead that the
viability of executive privilege stood on a case to case basis. Should neither branch yield to the other
branchs assertion, the constitutional recourse is to the courts, as the final arbiter if the dispute. It is only
the courts that can compel, with conclusiveness, attendance or non-attendance in legislative inquiries.
Following these principles, it is clear that if the President or the Chief of Staff refuses to allow a member
of the AFP to appear before Congress, the legislative body seeking such testimony may seek judicial
relief to compel the attendance. Such judicial action should be directed at the heads of the executive
branch or the armed forces, the persons who wield authority and control over the actions of the officers
concerned. The legislative purpose of such testimony, as well as any defenses against the same
whether grounded on executive privilege, national security or similar concerns would be accorded
due judicial evaluation. All the constitutional considerations pertinent to either branch of government
may be raised, assessed, and ultimately weighed against each other. And once the courts speak with
finality, both branches of government have no option but to comply with the decision of the courts,
whether the effect of the decision is to their liking or disfavor.
Courts are empowered, under the constitutional principle of judicial review, to arbitrate disputes
between the legislative and executive branches of government on the proper constitutional parameters of
power.60 This is the fair and workable solution implicit in the constitutional allocation of powers among
the three branches of government. The judicial filter helps assure that the particularities of each case
would ultimately govern, rather than any overarching principle unduly inclined towards one branch of
government at the expense of the other. The procedure may not move as expeditiously as some may
desire, yet it ensures thorough deliberation of all relevant and cognizable issues before one branch is
compelled to yield to the other. Moreover, judicial review does not preclude the legislative and executive
branches from negotiating a mutually acceptable solution to the impasse. After all, the two branches,
exercising as they do functions and responsibilities that are political in nature, are free to smooth over
the thorns in their relationship with a salve of their own choosing.
And if emphasis be needed, if the courts so rule, the duty falls on the shoulders of the President, as
commander-in-chief, to authorize the appearance of the military officers before Congress. Even if
the President has earlier disagreed with the notion of officers appearing before the legislature to
testify, the Chief Executive is nonetheless obliged to comply with the final orders of the courts.
Petitioners have presented several issues relating to the tenability or wisdom of the Presidents order on
them and other military officers not to testify before Congress without the Presidents consent. Yet these
issues ultimately detract from the main point that they testified before the Senate despite an order
from their commanding officer and their commander-in-chief for them not to do so, 61 in contravention of
the traditions of military discipline which we affirm today.1wphi1 The issues raised by petitioners
could have very well been raised and properly adjudicated if the proper procedure was observed.
Petitioners could have been appropriately allowed to testify before the Senate without having to
countermand their Commander-in-chief and superior officer under the setup we have prescribed.
We consider the other issues raised by petitioners unnecessary to the resolution of this petition.
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Petitioners may have been of the honest belief that they were defying a direct order of their Commanderin-Chief and Commanding General in obeisance to a paramount idea formed within their consciences,
which could not be lightly ignored. Still, the Court, in turn, is guided by the superlative principle that is
the Constitution, the embodiment of the national conscience. The Constitution simply does not permit
the infraction which petitioners have allegedly committed, and moreover, provides for an orderly
manner by which the same result could have been achieved without offending constitutional principles.
WHEREFORE, the petition is DENIED. No pronouncement as to costs.
SO ORDERED.
DANTE O. TINGA
Associate Justice

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