Tapuz vs. Del Rosario, 554 SCRA 768, G.R. No.
182484 June 17, 2008 redress and hold the alleged perpetrators criminally accountable, the remedy may
Forum Shopping; Forum shopping trifles with the courts, abuses their processes,
degrades the administration of justice and congest court dockets. Willful and
deliberate violation of the rule against it is a ground for summary dismissal of the
case, it may also constitute direct contempt.To restate the prevailing rules, forum
shopping is the institution of two or more actions or proceedings involving the same
parties for the same cause of action, either simultaneously or successively, on the
supposition that one or the other court would make a favorable disposition. Forum
shopping may be resorted to by any party against whom an adverse judgment or
order has been issued in one forum, in an attempt to seek a favorable opinion in
another, other than by appeal or a special civil action for certiorari. Forum shopping
trifles with the courts, abuses their processes, degrades the administration of justice
and congest court dockets. Willful and deliberate violation of the rule against it is a
ground for summary dismissal of the case; it may also constitute direct contempt.
Additionally, the required verification and certification of non-forum shopping is
defective as one (1) of the seven (7) petitionersIvan Tapuzdid not sign, in
violation of Sections 4 and 5 of Rule 7; Section 3, Rule 46; Section 1, Rule 65; all in
relation with Rule 56 of the Revised Rules of Court. Of those who signed, only five (5)
exhibited their postal identification cards with the Notary Public.
Writ of Amparo; The Writ of Amparo, Explained.To start off with the basics, the writ
of amparo was originally conceived as a response to the extraordinary rise in the
number of killings and enforced disappearances, and to the perceived lack of
available and effective remedies to address these extraordinary concerns. It is
intended to address violations of or threats to the rights to life, liberty or security, as
an extraordinary and independent remedy beyond those available under the
prevailing Rules, or as a remedy supplemental to these Rules. What it is not, is a writ
to protect concerns that are purely property or commercial. Neither is it a writ that
we shall issue on amorphous and uncertain grounds. Consequently, the Rule on the
Writ of Amparoin line with the extraordinary character of the writ and the
reasonable certainty that its issuance demandsrequires that every petition for the
issuance of the writ must be supported by justifying allegations of fact.
Same; The writ shall issue if the Court is preliminary satisfied with the prima facie
existence of the ultimate facts determinable from the supporting affidavits that
detail the circumstances of how and to what extent a threat to or violation of the
rights to life, liberty and security of the aggrieved party was or is being committed.
The writ shall issue if the Court is preliminarily satisfied with the prima facie
existence of the ultimate facts determinable from the supporting affidavits that
detail the circumstances of how and to what extent a threat to or violation of the
rights to life, liberty and security of the aggrieved party was or is being committed.
The issuance of the writ of amparo in the present case is anchored on the factual
allegations heretofore quoted, that are essentially repeated in paragraph 54 of the
petition.
Same; If the petitioners wish to seek redress and hold the alleged perpetrators
criminally accountable, the remedy may lie more in the realm of ordinary criminal
prosecution rather than on the use of the extraordinary remedy of the writ of
amparo.Under these legal and factual situations, we are far from satisfied with the
prima facie existence of the ultimate facts that would justify the issuance of a writ of
amparo. Rather than acts of terrorism that pose a continuing threat to the persons of
the petitioners, the violent incidents alleged appear to us to be purely property-
related and focused on the disputed land. Thus, if the petitioners wish to seek
lie more in the realm of ordinary criminal prosecution rather than on the use of the
extraordinary remedy of the writ of amparo.
Same; The writ of amparo, particularly, should not issue when applied for as
substitute for the appeal or certiorari process, or when it will inordinately interfere
with these processesthe situation obtaining in the present case.Separately from
these considerations, we cannot fail but consider too at this point the indicators,
clear and patent to us, that the petitioners present recourse via the remedy of the
writ of amparo is a mere subterfuge to negate the assailed orders that the
petitioners sought and failed to nullify before the appellate court because of the use
of an improper remedial measure. We discern this from the petitioners
misrepresentations pointed out above; from their obvious act of forum shopping;
and from the recourse itself to the extraordinary remedies of the writs of certiorari
and amparo based on grounds that are far from forthright and sufficiently
compelling. To be sure, when recourses in the ordinary course of law fail because of
deficient legal representation or the use of improper remedial measures, neither the
writ of certiorari nor that of amparoextraordinary though they may bewill suffice
to serve as a curative substitute. The writ of amparo, particularly, should not issue
when applied for as a substitute for the appeal or certiorari process, or when it will
inordinately interfere with these processesthe situation obtaining in the present
case. While we say all these, we note too that the Rule on the Writ of Amparo
provides for rules on the institution of separate actions, for the effect of earlier-filed
criminal actions, and for the consolidation of petitions for the issuance of a writ of
amparo with a subsequently filed criminal and civil action. These rules were adopted
to promote an orderly procedure for dealing with petitions for the issuance of the
writ of amparo when the parties resort to other parallel recourses.
Writ of Habeas Data; Section 6 of the Rule of the Writ of Habeas Data requires the
following material allegations of ultimate facts in a petition for the issuance of a writ
of habeas data.Section 6 of the Rule on the Writ of Habeas Data requires the
following material allegations of ultimate facts in a petition for the issuance of a writ
of habeas data: (a) The personal circumstances of the petitioner and the
respondent; (b) The manner the right to privacy is violated or threatened and how it
affects the right to life, liberty or security of the aggrieved party; (c) The actions and
recourses taken by the petitioner to secure the data or information; (d) The location
of the files, registers or databases, the government office, and the person in charge,
in possession or in control of the data or information, if known; (e) The reliefs prayed
for, which may include the updating, rectification, suppression or destruction of the
database or information or files kept by the respondent. In case of threats, the relief
may include a prayer for an order enjoining the act complained of; and (f) Such
other relevant reliefs as are just and equitable.
Same; Allegations obviously lack what the Rule on Writ of Habeas Data requires as a
minimum, thus rendering the petition fatally deficient.These allegations obviously
lack what the Rule on Writ of Habeas Data requires as a minimum, thus rendering
the petition fatally deficient. Specifically, we see no concrete allegations of
unjustified or unlawful violation of the right to privacy related to the right to life,
liberty or security. The petition likewise has not alleged, much less demonstrated,
any need for information under the control of police authorities other than those it
has already set forth as integral annexes. The necessity or justification for the
issuance of the writ, based on the insufficiency of previous efforts made to secure
information, has not also been shown. In sum, the prayer for the issuance of a writ of
habeas data is nothing more than the fishing expedition that this Courtin the
course of drafting the Rule on habeas datahad in mind in defining what the
purpose of a writ of habeas data is not. In these lights, the outright denial of the
petition for the issuance of the writ of habeas data is fully in order. Tapuz vs. Del
Rosario, 554 SCRA 768, G.R. No. 182484 June 17, 2008
G.R. No. 182484 June 17, 2008
DANIEL MASANGKAY TAPUZ, AURORA TAPUZ-MADRIAGA, LIBERTY M.
ASUNCION, LADYLYN BAMOS MADRIAGA, EVERLY TAPUZ MADRIAGA, EXCEL
TAPUZ, IVAN TAPUZ AND MARIAN TIMBAS, petitioners,
vs.
HONORABLE JUDGE ELMO DEL ROSARIO, in his capacity as Presiding Judge
of RTC Br. 5 Kalibo, SHERIFF NELSON DELA CRUZ, in his capacity as Sheriff
of the RTC, THE PHILIPPINE NATIONAL POLICE stationed in Boracay Island,
represented by the PNP STATION COMMANDER, THE HONORABLE COURT OF
APPEALS IN CEBU 18th DIVISION, SPOUSES GREGORIO SANSON & MA.
LOURDES T. SANSON, respondents.
RESOLUTION
BRION, J.:
Before us for the determination of sufficiency of form and substance (pursuant to
Sections 1 and 4 of Rule 65 of the Revised Rules of Court; Sections 1 and 5 of
the Rule on the Writ of Amparo;1 and Sections 1 and 6 of the Rule on the Writ of
Habeas Data2) is the petition for certiorari and for the issuance of the writs of
amparo and habeas data filed by the above-named petitioners against the
Honorable Judge Elmo del Rosario [in his capacity as presiding judge of RTC Br. 5,
Kalibo], Sheriff Nelson de la Cruz [in his capacity as Sheriff of the RTC], the Philippine
National Police stationed in Boracay Island, represented by the PNP Station
Commander, the Honorable Court of Appeals in Cebu, 18th Division, and the spouses
Gregorio Sanson and Ma. Lourdes T. Sanson, respondents.
The petition and its annexes disclose the following material antecedents:
The private respondents spouses Gregorio Sanson and Ma. Lourdes T. Sanson (the
"private respondents"), filed with the Fifth Municipal Circuit Trial Court of Buruanga-
Malay, Aklan (the "MCTC") a complaint3 dated 24 April 2006 for forcible entry and
damages with a prayer for the issuance of a writ of preliminary mandatory injunction
against the petitioners Daniel Masangkay Tapuz, Aurora Tapuz-Madriaga, Liberty M.
Asuncion, Ladylyn Bamos Madriaga, Everly Tapuz Madriaga, Excel Tapuz, Ivan Tapuz
and Marian Timbas (the "petitioners") and other John Does numbering about 120.
The private respondents alleged in their complaint that: (1) they are the registered
owners under TCT No. 35813 of a 1.0093-hectare parcel of land located at Sitio
Pinaungon, Balabag, Boracay, Malay, Aklan (the "disputed land"); (2) they were the
disputed land's prior possessors when the petitioners - armed with bolos and
carrying suspected firearms and together with unidentified persons numbering 120 -
entered the disputed land by force and intimidation, without the private
respondents' permission and against the objections of the private respondents'
security men, and built thereon a nipa and bamboo structure.
In their Answer4 dated 14 May 2006, the petitioners denied the material allegations
of the complaint. They essentially claimed that: (1) they are the actual and prior
possessors of the disputed land; (2) on the contrary, the private respondents are the
intruders; and (3) the private respondents' certificate of title to the disputed
property is spurious. They asked for the dismissal of the complaint and interposed a
counterclaim for damages.
The MCTC, after due proceedings, rendered on 2 January 2007 a decision 5 in the
private respondents' favor. It found prior possession - the key issue in forcible entry
cases - in the private respondents' favor, thus:
"The key that could unravel the answer to this question lies in the Amended
Commissioner's Report and Sketch found on pages 245 to 248 of the
records and the evidence the parties have submitted. It is shown in the
Amended Commissioner's Report and Sketch that the land in question is
enclosed by a concrete and cyclone wire perimeter fence in pink and green
highlighter as shown in the Sketch Plan (p. 248). Said perimeter fence was
constructed by the plaintiffs 14 years ago. The foregoing findings of the
Commissioner in his report and sketch collaborated the claim of the
plaintiffs that after they acquired the land in question on May 27, 1993
through a Deed of Sale (Annex 'A', Affidavit of Gregorio Sanson, p. 276,
rec.), they caused the construction of the perimeter fence sometime in
1993 (Affidavit of Gregorio Sanson, pp. 271-275, rec.).
From the foregoing established facts, it could be safely inferred that the
plaintiffs were in actual physical possession of the whole lot in question
since 1993 when it was interrupted by the defendants (sic) when on
January 4, 2005 claiming to (sic) the Heirs of Antonio Tapuz entered a
portion of the land in question with view of inhabiting the same and
building structures therein prompting plaintiff Gregorio Sanson to confront
them before BSPU, Police Chief Inspector Jack L. Wanky and Barangay
Captain Glenn Sacapao. As a result of their confrontation, the parties
signed an Agreement (Annex 'D', Complaint p. 20) wherein they agreed to
vacate the disputed portion of the land in question and agreed not to build
any structures thereon.
The foregoing is the prevailing situation of the parties after the incident of
January 4, 2005 when the plaintiff posted security guards, however,
sometime on or about 6:30 A.M. of April 19, 2006, the defendants some
with bolos and one carrying a sack suspected to contain firearms with other
John Does numbering about 120 persons by force and intimidation forcibly
entered the premises along the road and built a nipa and bamboo structure
(Annex 'E', Complaint, p. 11) inside the lot in question which incident was
promptly reported to the proper authorities as shown by plaintiffs'
Certification (Annex 'F', Complaint, p. 12) of the entry in the police blotter
and on same date April 19, 2006, the plaintiffs filed a complaint with the
Office of the Lupong Tagapamayapa of Barangay Balabag, Boracay Island,
Malay, Aklan but no settlement was reached as shown in their Certificate to
File Action (Annex 'G', Complaint, p. 13); hence the present action.
Defendants' (sic) contend in their answer that 'prior to January 4, 2005,
they were already occupants of the property, being indigenous settlers of
the same, under claim of ownership by open continuous, adverse
possession to the exclusion of other (sic)'. (Paragraph 4, Answer, p. 25).
The contention is untenable. As adverted earlier, the land in question is
enclosed by a perimeter fence constructed by the plaintiffs sometime in
1993 as noted by the Commissioner in his Report and reflected in his
Sketch, thus, it is safe to conclude that the plaintiffs where (sic) in actual
physical possession of the land in question from 1993 up to April 19, 2006
when they were ousted therefrom by the defendants by means of force.
Applying by analogy the ruling of the Honorable Supreme Court in the case
of Molina, et al. vs. De Bacud, 19 SCRA 956, if the land were in the
possession of plaintiffs from 1993 to April 19, 2006, defendants' claims to
an older possession must be rejected as untenable because possession as a
fact cannot be recognized at the same time in two different personalities.
Defendants likewise contend that it was the plaintiffs who forcibly entered
the land in question on April 18, 2006 at about 3:00 o'clock in the afternoon
as shown in their Certification (Annex 'D', Defendants' Position Paper, p.
135, rec.).
The contention is untenable for being inconsistent with their allegations
made to the commissioner who constituted (sic) the land in question that
they built structures on the land in question only on April 19, 2006 (Par. D.4,
Commissioner's Amended Report, pp. 246 to 247), after there (sic) entry
thereto on even date.
Likewise, said contention is contradicted by the categorical statements of
defendants' witnesses, Rowena Onag, Apolsida Umambong, Ariel Gac,
Darwin Alvarez and Edgardo Pinaranda, in their Joint Affidavit (pp. 143-
'144, rec.) [sic] categorically stated 'that on or about April 19, 2006, a
group of armed men entered the property of our said neighbors and built
plastic roofed tents. These armed men threatened to drive our said
neighbors away from their homes but they refused to leave and resisted
the intruding armed men'.
From the foregoing, it could be safely inferred that no incident of forcible
entry happened on April 18, 2006 but it was only on April 19, 2006 when
the defendants overpowered by their numbers the security guards posted
by the plaintiffs prior to the controversy.
Likewise, defendants (sic) alleged burnt and other structures depicted in
their pictures attached as annexes to their position paper were not noted
and reflected in the amended report and sketch submitted by the
Commissioner, hence, it could be safely inferred that these structures are
built and (sic) situated outside the premises of the land in question,
accordingly, they are irrelevant to the instant case and cannot be
considered as evidence of their actual possession of the land in question
prior to April 19, 20066."
The petitioners appealed the MCTC decision to the Regional Trial Court ("RTC,"
Branch 6 of Kalibo, Aklan) then presided over by Judge Niovady M. Marin ("Judge
Marin").
On appeal, Judge Marin granted the private respondents' motion for the issuance of
a writ of preliminary mandatory injunction through an Order dated 26 February
2007, with the issuance conditioned on the private respondents' posting of a bond.
The writ7 - authorizing the immediate implementation of the MCTC decision - was
actually issued by respondent Judge Elmo F. del Rosario (the "respondent Judge") on
12 March 2007 after the private respondents had complied with the imposed
condition. The petitioners moved to reconsider the issuance of the writ; the private
respondents, on the other hand, filed a motion for demolition.
The respondent Judge subsequently denied the petitioners' Motion for
Reconsideration and to Defer Enforcement of Preliminary Mandatory Injunction in an
Order dated 17 May 20078.
Meanwhile, the petitioners opposed the motion for demolition.9 The respondent
Judge nevertheless issued via a Special Order 10 a writ of demolition to be
implemented fifteen (15) days after the Sheriff's written notice to the petitioners to
voluntarily demolish their house/s to allow the private respondents to effectively
take actual possession of the land.
The petitioners thereafter filed on 2 August 2007 with the Court of Appeals, Cebu
City, a Petition for Review11(under Rule 42 of the 1997 Rules of Civil Procedure) of
the Permanent Mandatory Injunction and Order of Demolition of the RTC of
Kalibo, Br. 6 in Civil Case No. 7990.
Meanwhile, respondent Sheriff Nelson R. dela Cruz issued the Notice to Vacate and
for Demolition on 19 March 2008.12
It was against this factual backdrop that the petitioners filed the present petition last
29 April 2008. The petition contains and prays for three remedies, namely: a petition
for certiorari under Rule 65 of the Revised Rules of Court; the issuance of a writ of
habeas data under the Rule on the Writ of Habeas Data; and finally, the issuance of
the writ of amparo under the Rule on the Writ of Amparo.
To support the petition and the remedies prayed for, the petitioners present factual
positions diametrically opposed to the MCTC's findings and legal reasons. Most
importantly, the petitioners maintain their claims of prior possession of the disputed
land and of intrusion into this land by the private respondents. The material factual
allegations of the petition - bases as well of the petition for the issuance of the writ
of amparo - read:
"29. On April 29, 2006 at about 9:20 a.m. armed men sporting 12 gauge
shot guns intruded into the property of the defendants [the land in
dispute]. They were not in uniform. They fired their shotguns at the
defendants. Later the following day at 2:00 a.m. two houses of the
defendants were burned to ashes.
 30. These armed men [without uniforms] removed the barbed wire fence
put up by defendants to protect their property from intruders. Two of the
armed men trained their shotguns at the defendants who resisted their
intrusion. One of them who was identified as SAMUEL LONGNO y GEGANSO,
19 years old, single, and a resident of Binun-an, Batad, Iloilo, fired twice.
31. The armed men torched two houses of the defendants reducing
them to ashes. [...]
32. These acts of TERRORISM and (heinous crime) of ARSON were
reported by one of the HEIRS OF ANTONIO TAPUZ [...]. The
terrorists trained their shotguns and fired at minors namely IVAN
GAJISAN and MICHAEL MAGBANUA, who resisted their intrusion.
Their act is a blatant violation of the law penalizing Acts of
Violence against women and children, which is aggravated by the
use of high-powered weapons.
[]
34. That the threats to the life and security of the poor indigent and
unlettered petitioners continue because the private respondents Sansons
have under their employ armed men and they are influential with the police
authorities owing to their financial and political clout.
35. The actual prior occupancy, as well as the ownership of the lot in
dispute by defendants and the atrocities of the terrorists [introduced into
the property in dispute by the plaintiffs] are attested by witnesses who are
persons not related to the defendants are therefore disinterested witnesses
in the case namely: Rowena Onag, Apolsida Umambong, Ariel Gac, Darwin
Alvarez and Edgardo Penarada. Likewise, the affidavit of Nemia T. Carmen is
submitted to prove that the plaintiffs resorted to atrocious acts through
hired men in their bid to unjustly evict the defendants.13"
The petitioners posit as well that the MCTC has no jurisdiction over the complaint for
forcible entry that the private respondents filed below. Citing Section 33 of The
Judiciary Reorganization Act of 1980, as amended by Republic Act No. 7691,14 they
maintain that the forcible entry case in fact involves issues of title to or possession
of real property or an interest therein, with the assessed value of the property
involved exceeding P20,000.00; thus, the case should be originally cognizable by the
RTC. Accordingly, the petitioners reason out that the RTC - to where the MCTC
decision was appealed - equally has no jurisdiction to rule on the case on appeal and
could not have validly issued the assailed orders.
OUR RULING
We find the petitions for certiorari and issuance of a writ of habeas data
fatally defective, both in substance and in form. The petition for the
issuance of the writ of amparo, on the other hand, is fatally defective with
respect to content and substance.
The Petition for Certiorari
We conclude, based on the outlined material antecedents that led to the petition,
that the petition for certiorari to nullify the assailed RTC orders has been filed out
of time. It is not lost on us that the petitioners have a pending petition with the
Court of Appeals (the "CA petition") for the review of the same RTC orders now
assailed in the present petition, although the petitioners never disclosed in the body
of the present petition the exact status of their pending CA petition. The CA petition,
however, was filed with the Court of Appeals on 2 August 2007, which indicates to
us that the assailed orders (or at the very least, the latest of the interrelated
assailed orders) were received on 1 August 2007 at the latest. The present
petition, on the other hand, was filed on April 29, 2008 or more than eight months
from the time the CA petition was filed. Thus, the present petition is separated in
point of time from the assumed receipt of the assailed RTC orders by at least eight
(8) months, i.e., beyond the reglementary period of sixty (60) days 15 from receipt of
the assailed order or orders or from notice of the denial of a seasonably filed motion
for reconsideration.
We note in this regard that the petitioners' counsel stated in his attached "Certificate
of Compliance with Circular #1-88 of the Supreme Court" 16 ("Certificate of
Compliance") that "in the meantime the RTC and the Sheriff issued a NOTICE TO
VACATE AND FOR DEMOLITION not served to counsel but to the petitioners who sent
photo copy of the same NOTICE to their counsel on April 18, 2008 by LBC." To guard
against any insidious argument that the present petition is timely filed because of
this Notice to Vacate, we feel it best to declare now that the counting of the 60-day
reglementary period under Rule 65 cannot start from the April 18, 2008 date cited
by the petitioners' counsel. The Notice to Vacate and for Demolition is not an order
that exists independently from the RTC orders assailed in this petition and in the
previously filed CA petition. It is merely a notice, made in compliance with one of the
assailed orders, and is thus an administrative enforcement medium that has no life
of its own separately from the assailed order on which it is based. It cannot therefore
be the appropriate subject of an independent petition for certiorari under Rule 65 in
the context of this case. The April 18, 2008 date cannot likewise be the material
date for Rule 65 purposes as the above-mentioned Notice to Vacate is not even
directly assailed in this petition, as the petition's Prayer patently shows. 17
Based on the same material antecedents, we find too that the petitioners have been
guilty of willful and deliberate misrepresentation before this Court and, at the very
least, of forum shopping.
By the petitioners' own admissions, they filed a petition with the Court of Appeals
(docketed as CA - G.R. SP No. 02859) for the review of the orders now also assailed
in this petition, but brought the present recourse to us, allegedly because "the CA
did not act on the petition up to this date and for the petitioner (sic) to seek relief in
the CA would be a waste of time and would render the case moot and academic
since the CA refused to resolve pending urgent motions and the Sheriff is
determined to enforce a writ of demolition despite the defect of LACK OF
JURISDICTION."18
Interestingly, the petitioners' counsel - while making this claim in the body of the
petition - at the same time represented in his Certificate of Compliance 19 that:
 "x x x
(e) the petitioners went up to the Court of Appeals to question the WRIT OF
PRELIMINARY INJUNCTION copy of the petition is attached (sic);
(f) the CA initially issued a resolution denying the PETITION
because it held that the ORDER TO VACATE AND FOR DEMOLITION
OF THE HOMES OF PETITIONERS is not capable of being the subject
of a PETITION FOR RELIEF, copy of the resolution of the CA is attached
hereto; (underscoring supplied)
(g) Petitioners filed a motion for reconsideration on August 7, 2007 but up
to this date the same had not been resolved copy of the MR is attached
(sic).
x x x"
The difference between the above representations on what transpired at the
appellate court level is replete with significance regarding the petitioners' intentions.
We discern -- from the petitioners' act of misrepresenting in the body of their
petition that "the CA did not act on the petition up to this date" while stating the real
Court of Appeals action in the Certification of Compliance -- the intent to hide the
real state of the remedies the petitioners sought below in order to mislead us into
action on the RTC orders without frontally considering the action that the Court of
Appeals had already undertaken.
At the very least, the petitioners are obviously seeking to obtain from us, via the
present petition, the same relief that it could not wait for from the Court of Appeals
in CA-G.R. SP No. 02859. The petitioners' act of seeking against the same parties the
nullification of the same RTC orders before the appellate court and before us at the
same time, although made through different mediums that are both improperly
used, constitutes willful and deliberate forum shopping that can sufficiently serve as
basis for the summary dismissal of the petition under the combined application of
the fourth and penultimate paragraphs of Section 3, Rule 46; Section 5, Rule 7;
Section 1, Rule 65; and Rule 56, all of the Revised Rules of Court. That a wrong
remedy may have been used with the Court of Appeals and possibly with us will not
save the petitioner from a forum-shopping violation where there is identity of
parties, involving the same assailed interlocutory orders, with the recourses existing
side by side at the same time.
To restate the prevailing rules, "forum shopping is the institution of two or more
actions or proceedings involving the same parties for the same cause of action,
either simultaneously or successively, on the supposition that one or the other court
would make a favorable disposition. Forum shopping may be resorted to by any
party against whom an adverse judgment or order has been issued in one forum, in
an attempt to seek a favorable opinion in another, other than by appeal or a special
civil action for certiorari. Forum shopping trifles with the courts, abuses their
processes, degrades the administration of justice and congest court dockets. Willful
and deliberate violation of the rule against it is a ground for summary dismissal of
the case; it may also constitute direct contempt." 20
Additionally, the required verification and certification of non-forum shopping is
defective as one (1) of the seven (7) petitioners - Ivan Tapuz - did not sign, in
violation of Sections 4 and 5 of Rule 7; Section 3, Rule 46; Section 1, Rule 65; all in
relation with Rule 56 of the Revised Rules of Court. Of those who signed, only five (5)
exhibited their postal identification cards with the Notary Public.
In any event, we find the present petition for certiorari, on its face and on the basis
of the supporting attachments, to be devoid of merit. The MCTC correctly assumed
jurisdiction over the private respondents' complaint, which specifically alleged a
cause for forcible entry and not - as petitioners may have misread or misappreciated
- a case involving title to or possession of realty or an interest therein. Under Section
33, par. 2 of The Judiciary Reorganization Act, as amended by Republic Act (R.A.) No.
7691, exclusive jurisdiction over forcible entry and unlawful detainer cases lies with
the Metropolitan Trial Courts, Municipal Trial Courts and Municipal Circuit Trial Courts.
These first-level courts have had jurisdiction over these cases - called accion
interdictal - even before the R.A. 7691 amendment, based on the issue of
pure physical possession (as opposed to the right of possession). This jurisdiction is
regardless of the assessed value of the property involved; the law established no
distinctions based on the assessed value of the property forced into or unlawfully
detained. Separately from accion interdictal are accion publiciana for the recovery of
the right of possession as a plenary action, and accion reivindicacion for the
recovery of ownership.21 Apparently, these latter actions are the ones the petitioners
refer to when they cite Section 33, par. 3, in relation with Section 19, par. 2 of The
Judiciary Reorganization Act of 1980, as amended by Republic Act No. 7691, in which
jurisdiction may either be with the first-level courts or the regional trial
courts, depending on the assessed value of the realty subject of the litigation. As the
complaint at the MCTC was patently for forcible entry, that court committed no
jurisdictional error correctible by certiorari under the present petition.
In sum, the petition for certiorari should be dismissed for the cited formal
deficiencies, for violation of the non-forum shopping rule, for having been
filed out of time, and for substantive deficiencies.
The Writ of Amparo
To start off with the basics, the writ of amparo was originally conceived as a
response to the extraordinary rise in the number of killings and enforced
disappearances, and to the perceived lack of available and effective remedies to
address these extraordinary concerns. It is intended to address violations of or
threats to the rights to life, liberty or security, as an extraordinary and independent
remedy beyond those available under the prevailing Rules, or as a remedy
supplemental to these Rules. What it is not, is a writ to protect concerns that
are purely property or commercial. Neither is it a writ that we shall issue
on amorphous and uncertain grounds. Consequently, the Rule on the Writ of
Amparo - in line with the extraordinary character of the writ and the reasonable
certainty that its issuance demands - requires that every petition for the issuance of
the Pwrit must be supported by justifying allegations of fact, to wit:
"(a) The personal circumstances of the petitioner;
 (b) The name and personal circumstances of the respondent responsible for
the threat, act or omission, or, if the name is unknown or uncertain, the
respondent may be described by an assumed appellation;
(c) The right to life, liberty and security of the aggrieved party
violated or threatened with violation by an unlawful act or
omission of the respondent, and how such threat or violation is
committed with the attendant circumstances detailed in
supporting affidavits;
(d) The investigation conducted, if any, specifying the names,
personal circumstances, and addresses of the investigating
authority or individuals, as well as the manner and conduct of the
investigation, together with any report;
(e) The actions and recourses taken by the petitioner to determine the fate
or whereabouts of the aggrieved party and the identity of the person
responsible for the threat, act or omission; and
(f) The relief prayed for.
The petition may include a general prayer for other just and equitable reliefs." 22
The writ shall issue if the Court is preliminarily satisfied with the prima facie
existence of the ultimate facts determinable from the supporting affidavits that
detail the circumstances of how and to what extent a threat to or violation of the
rights to life, liberty and security of the aggrieved party was or is being committed.
The issuance of the writ of amparo in the present case is anchored on the factual
allegations heretofore quoted,23 that are essentially repeated in paragraph 54 of the
petition. These allegations are supported by the following documents:
"(a) Joint Affidavit dated 23 May 2006 of Rowena B. Onag, Apolsida
Umambong, Ariel Gac, Darwin Alvarez and Edgardo Pinaranda, supporting
the factual positions of the petitioners, id., petitioners' prior possession,
private respondents' intrusion and the illegal acts committed by the private
respondents and their security guards on 19 April 2006;
(b) Unsubscribed Affidavit of Nemia Carmen y Tapuz, alleging the illegal
acts (firing of guns, etc.) committed by a security guard against minors -
descendants of Antonio Tapuz;
(c) Unsubscribed Affidavit of Melanie Tapuz y Samindao, essentially
corroborating Nemia's affidavit;
(d) Certification dated 23 April 2006 issued by Police Officer Jackson Jauod
regarding the incident of petitioners' intrusion into the disputed land;
(e) Certification dated 27 April 2006 issued by Police Officer Allan R. Otis,
narrating the altercation between the Tapuz family and the security guards
of the private respondents, including the gun-poking and shooting incident
involving one of the security guards;
(f) Certification issued by Police Officer Christopher R. Mendoza, narrating
that a house owned by Josiel Tapuz, Jr., rented by a certain Jorge
Buenavente, was accidentally burned by a fire."
On the whole, what is clear from these statements - both sworn and unsworn - is the
overriding involvement of property issues as the petition traces its roots to questions
of physical possession of the property disputed by the private parties. If at all, issues
relating to the right to life or to liberty can hardly be discerned except to the extent
that the occurrence of past violence has been alleged. The right to security, on the
other hand, is alleged only to the extent of the threats and harassments implied
from the presence of "armed men bare to the waist" and the alleged pointing and
firing of weapons. Notably, none of the supporting affidavits compellingly
show that the threat to the rights to life, liberty and security of the
petitioners is imminent or is continuing.
A closer look at the statements shows that at least two of them - the statements of
Nemia Carreon y Tapuz and Melanie Tapuz are practically identical and unsworn. The
Certification by Police Officer Jackson Jauod, on the other hand, simply narrates what
had been reported by one Danny Tapuz y Masangkay, and even mentions that the
burning of two residential houses was "accidental."
As against these allegations are the cited MCTC factual findings in its decision in the
forcible entry case which rejected all the petitioners' factual claims. These findings
are significantly complete and detailed, as they were made under a full-blown
judicial process, i.e., after examination and evaluation of the contending parties'
positions, evidence and arguments and based on the report of a court-appointed
commissioner.
We preliminarily examine these conflicting factual positions under the backdrop of a
dispute (with incidents giving rise to allegations of violence or threat thereof) that
was brought to and ruled upon by the MCTC; subsequently brought to the
RTC on an appeal that is still pending; still much later brought to the appellate
court without conclusive results; and then brought to us on interlocutory incidents
involving a plea for the issuance of the writ of amparo that, if decided as the
petitioners advocate, may render the pending RTC appeal moot.
Under these legal and factual situations, we are far from satisfied with the prima
facie existence of the ultimate facts that would justify the issuance of a writ of
amparo. Rather than acts of terrorism that pose a continuing threat to the persons of
the petitioners, the violent incidents alleged appear to us to be purely property-
related and focused on the disputed land. Thus, if the petitioners wish to seek
redress and hold the alleged perpetrators criminally accountable, the remedy may
lie more in the realm of ordinary criminal prosecution rather than on the use of the
extraordinary remedy of the writ of amparo.
Nor do we believe it appropriate at this time to disturb the MCTC findings, as our
action may carry the unintended effect, not only of reversing the MCTC ruling
independently of the appeal to the RTC that is now in place, but also of nullifying the
ongoing appeal process. Such effect, though unintended, will obviously wreak havoc
on the orderly administration of justice, an overriding goal that the Rule on the Writ
of Amparo does not intend to weaken or negate.
Separately from these considerations, we cannot fail but consider too at this point
the indicators, clear and patent to us, that the petitioners' present recourse via the
remedy of the writ of amparo is a mere subterfuge to negate the assailed orders
that the petitioners sought and failed to nullify before the appellate court because of
the use of an improper remedial measure. We discern this from the petitioners'
misrepresentations pointed out above; from their obvious act of forum shopping;
and from the recourse itself to the extraordinary remedies of the writs of certiorari
and amparo based on grounds that are far from forthright and sufficiently
compelling. To be sure, when recourses in the ordinary course of law fail because of
deficient legal representation or the use of improper remedial measures, neither the
writ of certiorari nor that of amparo - extraordinary though they may be - will suffice
to serve as a curative substitute. The writ of amparo, particularly, should not issue
when applied for as a substitute for the appeal or certiorari process, or when it will
inordinately interfere with these processes - the situation obtaining in the present
case.
While we say all these, we note too that the Rule on the Writ of Amparo provides for
rules on the institution of separate actions,24 for the effect of earlier-filed criminal
actions,25 and for the consolidation of petitions for the issuance of a writ of amparo
with a subsequently filed criminal and civil action.26 These rules were adopted to
promote an orderly procedure for dealing with petitions for the issuance of the writ
of amparo when the parties resort to other parallel recourses.
Where, as in this case, there is an ongoing civil process dealing directly with the
possessory dispute and the reported acts of violence and harassment, we see no
point in separately and directly intervening through a writ of amparo in the absence
of any clear prima facie showing that the right to life, liberty or security -
the personal concern that the writ is intended to protect - is immediately in danger
or threatened, or that the danger or threat is continuing. We see no legal bar,
however, to an application for the issuance of the writ, in a proper case, by motion
in a pending case on appeal or on certiorari, applying by analogy the provisions on
the co-existence of the writ with a separately filed criminal case.
The Writ of Habeas Data
Section 6 of the Rule on the Writ of Habeas Data requires the following material
allegations of ultimate facts in a petition for the issuance of a writ of habeas data:
"(a) The personal circumstances of the petitioner and the respondent;
(b) The manner the right to privacy is violated or threatened and
how it affects the right to life, liberty or security of the aggrieved
party;
(c) The actions and recourses taken by the petitioner to secure the
data or information;
(d) The location of the files, registers or databases, the
government office, and the person in charge, in possession or in
control of the data or information, if known;
(e) The reliefs prayed for, which may include the updating, rectification,
suppression or destruction of the database or information or files kept by
the respondent.
In case of threats, the relief may include a prayer for an order enjoining the
act complained of; and
(f) Such other relevant reliefs as are just and equitable."
Support for the habeas data aspect of the present petition only alleges that:
"1. [ ] Similarly, a petition for a WRIT OF HABEAS DATA is prayed for so
that the PNP may release the report on the burning of the homes of the
petitioners and the acts of violence employed against them by the private
respondents, furnishing the Court and the petitioners with copy of the
same;
[]
66. Petitioners apply for a WRIT OF HABEAS DATA commanding the
Philippine National Police [PNP] to produce the police report pertaining to
the burning of the houses of the petitioners in the land in dispute and
likewise the investigation report if an investigation was conducted by the
PNP."
These allegations obviously lack what the Rule on Writ of Habeas Data requires as a
minimum, thus rendering the petition fatally deficient. Specifically, we see no
concrete allegations of unjustified or unlawful violation of the right to privacy related
to the right to life, liberty or security. The petition likewise has not alleged, much
less demonstrated, any need for information under the control of police authorities
other than those it has already set forth as integral annexes. The necessity or
justification for the issuance of the writ, based on the insufficiency of previous
efforts made to secure information, has not also been shown. In sum, the prayer for
the issuance of a writ of habeas data is nothing more than the "fishing expedition"
that this Court - in the course of drafting the Rule on habeas data - had in mind in
defining what the purpose of a writ of habeas data is not. In these lights, the
outright denial of the petition for the issuance of the writ of habeas data is fully in
order.
WHEREFORE, premises considered, we hereby DISMISS the present
petition OUTRIGHT for deficiencies of form and substance patent from its body and
attachments.
SO ORDERED.
Canlas vs. Napico Homeowners Ass'n., I-XIII, Inc., 554 SCRA 208, G.R. No.
182795 June 5, 2008
Constitutional Law; Writ of Amparo; Petitioners claim to their dwelling, assuming
they still have any despite the final and executory judgment adverse to them, does
not constitute right to life, liberty and security; There is, therefore, no legal basis for
the issuance of the writ of amparo.The threatened demolition of a dwelling by
virtue of a final judgment of the court, which in this case was affirmed with finality
by this Court in G.R. Nos. 177448, 180768, 177701, 177038, is not included among
the enumeration of rights as stated in the above-quoted Section 1 for which the
remedy of a writ of amparo is made available. Their claim to their dwelling,
assuming they still have any despite the final and executory judgment adverse to
them, does not constitute right to life, liberty and security. There is, therefore, no
legal basis for the issuance of the writ of amparo.
Same; Same; No writ of amparo may be issued unless there is a clear allegation of
the supposed factual and legal basis of the right sought to be protected.The
factual and legal basis for petitioners claim to the land in question is not alleged in
the petition at all. The Court can only surmise that these rights and interest had
already been threshed out and settled in the four cases cited above. No writ of
amparo may be issued unless there is a clear allegation of the supposed factual and
legal basis of the right sought to be protected. Under Section 6 of the same rules,
the court shall issue the writ upon the filing of the petition, only if on its face, the
court ought to issue said writ. Canlas vs. Napico Homeowners Ass'n., I-XIII, Inc., 554
SCRA 208, G.R. No. 182795 June 5, 2008
G.R. No. 182795 June 5, 2008
ARMANDO Q. CANLAS, MIGUEL D. CAPISTRANO, MARRIETA PIA, petitioners,
vs.
NAPICO HOMEOWNERS ASSN., I XIII, INC., ET AL., respondents.
RESOLUTION
REYES, R.T., J.:
THE present petition filed on May 26, 2008 seeks the issuance of a Writ of
Amparo upon the following premise:
Petitioners were deprived of their liberty, freedom and/or rights to shelter
enshrined and embodied in our Constitution, as the result of these
nefarious activities of both the Private and Public Respondents. This ardent
request filed before this Honorable Supreme Court is the only solution to
this problem via this newly advocated principles incorporated in the Rules
the "RULE ON THE WRIT OF AMPARO."1
It appears that petitioners are settlers in a certain parcel of land situated in
Barangay Manggahan, Pasig City. Their dwellings/houses have either been
demolished as of the time of filing of the petition, or is about to be demolished
pursuant to a court judgment.
While they attempted to focus on issuance of what they claimed to be fraudulent
and spurious land titles, to wit:
Petitioners herein are desirous to help the government, the best way they
can, to unearth these so-called "syndicates" clothed with governmental
functions, in cahoots with the "squatting syndicates" - - - - the low so
defines. If only to give its proper meanings, the Government must be the
first one to cleans (sic) its ranks from these unscrupulous political
protges. If unabated would certainly ruin and/or destroy the efficacy of
the Torrens System of land registration in this Country. It is therefore the
ardent initiatives of the herein Petitioners, by way of the said prayer for the
issuance of the Writ of Amparo, that these unprincipled Land Officials
be summoned to answer their participation in the issuances of
these fraudulent and spurious titles, NOW, in the hands of the
Private Respondents. The Courts of Justice, including this
Honorable Supreme Court, are likewise being made to believe that
said titles in the possession of the Private Respondents were
issued untainted with frauds.2
what the petition ultimately seeks is the reversal of this Courts dismissal of petitions
in G.R. Nos. 177448, 180768, 177701, 177038, thus:
That, Petitioners herein knew before hand that: there can be no motion for
reconsideration for the second or third time to be filed before this
Honorable Supreme Court. As such therefore, Petitioners herein are aware
of the opinion that this present petition should not in any way be treated as
such motions fore reconsideration. Solely, this petition is only for the
possible issuance of the writ of amparo, although it might affect the
previous rulings of this Honorable Supreme Court in these cases, G.R. Nos.
177448, 180768, 177701 and 177038. Inherent in the powers of
the Supreme Court of the Philippines is to modify, reverse and set
aside, even its own previous decision, that can not be thwarted nor
influenced by any one, but, only on the basis of merits and
evidence. This is the purpose of this petition for the Writ of
Amparo.3
We dismiss the petition.
The Rule on the Writ of Amparo provides:
Section 1. Petition. The petition for a writ of amparo is a remedy available
to any person whose right to life, liberty and security is violated or
threatened with violation by an unlawful act or omission of a public official
or employee, or of a private individual or entity.
The writ shall cover extralegal killings and enforced disappearances or
threats thereof. (Emphasis supplied.)
The threatened demolition of a dwelling by virtue of a final judgment of the court,
which in this case was affirmed with finality by this Court in G.R. Nos. 177448,
180768, 177701, 177038, is not included among the enumeration of rights as stated
in the above-quoted Section 1 for which the remedy of a writ of amparo is made
available. Their claim to their dwelling, assuming they still have any despite the final
and executory judgment adverse to them, does not constitute right to life, liberty
and security. There is, therefore, no legal basis for the issuance of the writ of
amparo.

Besides, the factual and legal basis for petitioners claim to the land in question is
not alleged in the petition at all. The Court can only surmise that these rights and
interest had already been threshed out and settled in the four cases cited above.
No writ of amparo may be issued unless there is a clear allegation of the supposed
factual and legal basis of the right sought to be protected.

Under Section 6 of the same rules, the court shall issue the writ upon the filing of
the petition, only if on its face, the court ought to issue said writ.

Section 6. Issuance of the Writ. Upon the filing of the petition, the court,
justice or judge shall immediately order the issuance of the writ if on its
face it ought to issue. The clerk of court shall issue the writ under the seal
of the court; or in case of urgent necessity, the justice or the judge may
issue the writ under his or her own hand, and may deputize any officer or
person to serve it.

The writ shall also set the date and time for summary hearing of the
petition which shall not be later than seven (7) days from the date of its
issuance.

Considering that there is no legal basis for its issuance, as in this case, the writ will
not be issued and the petition will be dismissed outright.

This new remedy of writ of amparo which is made available by this Court is intended
for the protection of the highest possible rights of any person, which is his or her
right to life, liberty and security. The Court will not spare any time or effort on its
part in order to give priority to petitions of this nature. However, the Court will also
not waste its precious time and effort on matters not covered by the writ.

WHEREFORE, the petition is DISMISSED.

SO ORDERED.
Castillo vs. Cruz, 605 SCRA 628, G.R. No. 182165 November 25, 2009 ESGUERRA, "TISOY," and JOHN DOES, Petitioners,
vs.
Writ of Amparo; Writ of Habeas Data; The coverage of the writs is limited to the DR. AMANDA T. CRUZ, NIXON T. CRUZ, and FERDINAND T.
protection of rights to life, liberty and security; The writs cover not only actual but CRUZ, Respondents.
also threats of unlawful acts or omissions.The coverage of the writs is limited to
the protection of rights to life, liberty and security. And the writs cover not only
DECISION
actual but also threats of unlawful acts or omissions.

Same; Same; To be covered by the privilege of the writs, respondent must meet the CARPIO MORALES, J.:
threshold requirement that their right to life, liberty and security is violated or
threatened with an unlawful act or omission.To thus be covered by the privilege of
Petitioners1 , employees and members of the local police force of the City
the writs, respondents must meet the threshold requirement that their right to life,
Government of Malolos, challenge the March 28, 2008 Decision of the Regional Trial
liberty and security is violated or threatened with an unlawful act or omission.
Court (RTC) of Malolos, Branch 10 in a petition for issuance of writs of amparo
Evidently, the present controversy arose out of a property dispute between the
and habeas data instituted by respondents.
Provincial Government and respondents. Absent any considerable nexus between
the acts complained of and its effect on respondents right to life, liberty and
security, the Court will not delve on the propriety of petitioners entry into the The factual antecedents.
property.
Respondent Amanda Cruz (Amanda) who, along with her husband Francisco G. Cruz
Same; Same; Absent any evidence or even an allegation in the petition that there is
(Spouses Cruz), leased a parcel of land situated at Barrio Guinhawa, Malolos (the
undue and continuing restraint on their liberty and/or that there exists threat or
property), refused to vacate the property, despite demands by the lessor Provincial
intimidation that destroys the efficacy of their right to be secure in their persons, the
Government of Bulacan (the Province) which intended to utilize it for local projects.
issuance of the writ cannot be justified.Although respondents release from
confinement does not necessarily hinder supplication for the writ of amparo, absent
any evidence or even an allegation in the petition that there is undue and continuing The Province thus filed a complaint for unlawful detainer against the Spouses Cruz
restraint on their liberty, and/or that there exists threat or intimidation that destroys before the then Municipal Trial Court (MTC) of Bulacan, Bulacan.
the efficacy of their right to be secure in their persons, the issuance of the writ
cannot be justified. By Decision of September 5, 1997, the MTC rendered judgment against the Spouses
Cruz, which judgment, following its affirmance by the RTC, became final and
Same; Same; Petitions for writs of amparo and habeas data are extraordinary
executory.
remedies which cannot be used as tools to stall the execution of a final and
executory decision in a property dispute.It need not be underlined that
respondents petitions for writs of amparo and habeas data are extraordinary The finality of the decision in the ejectment case notwithstanding, the spouses Cruz
remedies which cannot be used as tools to stall the execution of a final and refused to vacate the property. They thereupon filed cases against the Province 2 and
executory decision in a property dispute. the judges who presided over the case.3 Those cases were dismissed except their
petition for annulment of judgment lodged before Branch 18 of the RTC of Malolos,
Same; Same; Validity of the arrest or the proceedings conducted thereafter is a and a civil case for injunction 833-M-2004 lodged before Branch 10 of the same
defense that may be set up by respondents during trial and not before a petition for RTC Malolos.
writs of amparo and habeas data.At all events, respondents filing of the petitions
for writs of amparo and habeas data should have been barred, for criminal
The Spouses Cruz sought in the case for injunction the issuance of a permanent writ
proceedings against them had commenced after they were arrested in flagrante
of injunction to prevent the execution of the final and executory judgment against
delicto and proceeded against in accordance with Section 6, Rule 112 of the Rules of
them.
Court. Validity of the arrest or the proceedings conducted thereafter is a defense
that may be set up by respondents during trial and not before a petition for writs of
amparo and habeas data. The reliefs afforded by the writs may, however, be made By Order of July 19, 2005, the RTC, finding merit in the Spouses Cruzes allegation
available to the aggrieved party by motion in the criminal proceedings. Castillo vs. that subsequent events changed the situation of the parties to justify a suspension
Cruz, 605 SCRA 628, G.R. No. 182165 November 25, 2009 of the execution of the final and executory judgment, issued a permanent writ of
injunction, the dispositive portion of which reads:
G.R. No. 182165 November 25, 2009

WHEREFORE, the foregoing petitioners Motion for Reconsideration of the Order

P/SUPT. FELIXBERTO CASTILLO, POLICE OFFICERS ROMEO BAGTAS, dated August 10, 2004 is hereby GRANTED. Order dated August 10, 2004 is
RUPERTO BORLONGAN, EDMUNDO DIONISIO, RONNIE MORALES, ARNOLD hereby RECONSIDERED and SET ASIDE. Further, the verified petition dated
TRIA, and GILBERTO PUNZALAN, ENGR. RICASOL P. MILLAN, ENGR. November 05, 2002 are hereby REINSTATED and MADE PERMANENT until the
REDENTOR S. DELA CRUZ, MR. ANASTACIO L. BORLONGAN, MR. ARTEMIO MTC-Bulacan, Bulacan finally resolves the pending motions of petitioners with the
same determines the metes and bounds of 400 sq. meters leased premises subject
matter of this case with immediate dispatch. Accordingly, REMAND the
determination of the issues raised by the petitioners on the issued writ of demolition
to the MTC of Bulacan, Bulacan.
SO ORDERED.4 (Emphasis in the original; underscoring supplied)
Finding that the fallo of the RTC July 19, 2005 Order treats, as a suspensive condition
for the lifting of the permanent injunction, the determination of the boundaries of
the property, the Province returned the issue for the consideration of the MTC. In a
Geodetic Engineers Report submitted to the MTC on August 31, 2007, the metes
and bounds of the property were indicated.
The MTC, by Order of January 2, 2008, approved the Report and ruled that the
permanent injunction which the RTC issued is ineffective. On motion of the Province,
the MTC, by Order of January 21, 2008, thus issued a Second Alias Writ of
Demolition.
On receiving notice of the January 2, 2008 MTC Order, the Spouses Cruz filed a
motion before Branch 10 of the RTC for the issuance of a temporary restraining order
(TRO) which it set for hearing on January 25, 2008 on which date, however, the
demolition had, earlier in the day, been implemented. Such notwithstanding, the
RTC issued a TRO.5 The Spouses Cruz, along with their sons-respondents Nixon and
Ferdinand, thereupon entered the property, placed several container vans and
purportedly represented themselves as owners of the property which was for lease.
On February 21, 2008, petitioners Police Superintendent Felixberto Castillo et al.,
who were deployed by the City Mayor in compliance with a memorandum issued by
Governor Joselito R. Mendoza instructing him to "protect, secure and maintain
the possession of the property," entered the property.
Amanda and her co-respondents refused to turn over the property, however.
Insisting that the RTC July 19, 2005 Order of Permanent Injunction enjoined the
Province from repossessing it, they shoved petitioners, forcing the latter to arrest
them and cause their indictment for direct assault, trespassing and other forms of
light threats.
Respondents later filed on March 3, 2008 a "Respectful Motion-Petition for Writ of
Amparo and Habeas Data," docketed as Special Civil Action No. 53-M-2008,
which was coincidentally raffled to Branch 10 of the RTC Malolos.
Respondents averred that despite the Permanent Injunction, petitioners unlawfully
entered the property with the use of heavy equipment, tore down the barbed wire
fences and tents,6 and arrested them when they resisted petitioners entry; and that
as early as in the evening of February 20, 2008, members of the Philippine National
Police had already camped in front of the property.
On the basis of respondents allegations in their petition and the supporting
affidavits, the RTC, by Order of March 4, 2008, issued writs of amparo and habeas
data.7
The RTC, crediting respondents version in this wise:
Petitioners have shown by preponderant evidence that the facts and circumstances
of the alleged offenses examined into on Writs of Amparo and Habeas Data that
there have been an on-going hearings on the verified Petition for Contempt,
docketed as Special Proceedings No. 306-M-2006, before this Court for alleged
violation by the respondents of the Preliminary Injunction Order dated July 16, 2005
[sic] in Sp. Civil Action No. 833-M-2002, hearings were held on January 25, 2008,
February 12 and 19, 2008, where the respondents prayed for an April 22, 2008
continuance, however, in the pitch darkness of February 20, 2008, police officers,
some personnel from the Engineering department, and some civilians proceeded
purposely to the Pinoy Compound, converged therein and with continuing threats of
bodily harm and danger and stone-throwing of the roofs of the homes thereat from
voices around its premises, on a pretext of an ordinary police operation when
enterviewed [sic] by the media then present, but at 8:00 a.m. to late in the
afternoon of February 21, 2008, zoomed in on the petitioners, subjecting them to
bodily harm, mental torture, degradation, and the debasement of a human being,
reminiscent of the martial law police brutality, sending chill in any ordinary citizen, 8
rendered judgment, by Decision of March 28, 2008, in favor of respondents,
disposing as follows:
"WHEREFORE, premises considered, the Commitment Orders and waivers in Crim.
Cases Nos. 08-77 for Direct assault; Crim. Case No. 08-77 for Other Forms of
Trespass; and Crim. Case No. 08-78 for Light Threats are hereby DECLARED illegal,
null and void, as petitioners were deprived of their substantial rights, induced by
duress or a well-founded fear of personal violence. Accordingly, the commitment
orders and waivers are hereby SET ASIDE. The temporary release of the petitioners
is declared ABSOLUTE.
Without any pronouncement as to costs.
SO ORDERED."9 (Emphasis in the original; underscoring supplied)
Hence, the present petition for review on certiorari, pursuant to Section 19 10 of The
Rule on the Writ of Amparo (A.M. No. 07-9-12-SC),11 which is essentially reproduced
in the Rule on the Writ of Habeas Data (A.M. No. 08-1-16-SC).12
In the main, petitioners fault the RTC for
giving due course and issuing writs of amparo and habeas data when from the
allegations of the petition, the same ought not to have been issued as (1) the
petition in [sic] insufficient in substance as the same involves property rights; and
(2) criminal cases had already been filed and pending with the Municipal Trial Court
in Cities, Branch 1, City of Malolos. (Underscoring supplied)
The petition is impressed with merit.
The Court is, under the Constitution, empowered to promulgate rules for the
protection and enforcement of constitutional rights.13 In view of the heightening
prevalence of extrajudicial killings and enforced disappearances, the Rule on the
Writ of Amparo was issued and took effect on October 24, 2007 which coincided with
the celebration of United Nations Day and affirmed the Courts commitment towards
internationalization of human rights. More than three months later or on February 2,
2008, the Rule on the Writ of Habeas Data was promulgated.
Section 1 of the Rule on the Writ of Amparo provides:
Section 1. Petition. The petition for a writ of amparo is a remedy available to any
person whose right to life, liberty and security is violated or threatened
with violation by an unlawful act or omission of a public official or employee,
or of a private individual or entity. The writ shall cover extralegal killings and
enforced disappearances or threats thereof. (Emphasis and underscoring supplied)
Section 1 of the Rule on the Writ of Habeas Data provides:
Section 1. Habeas Data. The writ of habeas data is a remedy available to any
person whose right to privacy in life, liberty or security is violated or threatened by
an unlawful act or omission of a public official or employee or of a private individual
or entity engaged in the gathering, collecting or storing of data or
information regarding the person, family, home and correspondence of the
aggrieved party. (Emphasis and underscoring supplied)
From the above-quoted provisions, the coverage of the writs is limited to the
protection of rights to life, liberty and security. And the writs cover not only actual
but also threats of unlawful acts or omissions.
Secretary of National Defense v. Manalo14 teaches:
As the Amparo Rule was intended to address the intractable problem of "extralegal
killings" and "enforced disappearances," its coverage, in its present form, is confined
to these two instances or to threats thereof. "Extralegal killings" are "killings
committed without due process of law, i.e., without legal safeguards or judicial
proceedings." On the other hand, "enforced disappearances" are "attended by the
following characteristics: an arrest, detention or abduction of a person by a
government official or organized groups or private individuals acting with the direct
or indirect acquiescence of the government; the refusal of the State to disclose the
fate or whereabouts of the person concerned or a refusal to acknowledge the
deprivation of liberty which places such persons outside the protection of
law.15 (Underscoring supplied, citations omitted)
To thus be covered by the privilege of the writs, respondents must meet the
threshold requirement that their right to life, liberty and security is violated or
threatened with an unlawful act or omission. Evidently, the present controversy
arose out of a property dispute between the Provincial Government and
respondents. Absent any considerable nexus between the acts complained of and its
effect on respondents right to life, liberty and security, the Court will not delve on
the propriety of petitioners entry into the property.
Apropos is the Courts ruling in Tapuz v. Del Rosario:16
To start off with the basics, the writ of amparo was originally conceived as a
response to the extraordinary rise in the number of killings and enforced
disappearances, and to the perceived lack of available and effective remedies to
address these extraordinary concerns. It is intended to address violations of or
threats to the rights to life, liberty or security, as an extraordinary and independent
remedy beyond those available under the prevailing Rules, or as a remedy
supplemental to these Rules. What it is not, is a writ to protect concerns that
are purely property or commercial. Neither is it a writ that we shall issue
on amorphous and uncertain grounds. Consequently, the Rule on the Writ of
Amparo in line with the extraordinary character of the writ and the reasonable
certainty that its issuance demands requires that every petition for the issuance of
the writ must be supported by justifying allegations of fact, to wit:
xxxx
The writ shall issue if the Court is preliminarily satisfied with the prima facie
existence of the ultimate facts determinable from the supporting affidavits that
detail the circumstances of how and to what extent a threat to or violation of the
rights to life, liberty and security of the aggrieved party was or is being
committed.17 (Emphasis and italics in the original, citation omitted)
Tapuz also arose out of a property dispute, albeit between private individuals, with
the petitioners therein branding as "acts of terrorism" the therein respondents
alleged entry into the disputed land with armed men in tow. The Court therein held:
On the whole, what is clear from these statements both sworn and unsworn is the
overriding involvement of property issues as the petition traces its roots to questions
of physical possession of the property disputed by the private parties. If at all, issues
relating to the right to life or to liberty can hardly be discerned except to the extent
that the occurrence of past violence has been alleged. The right to security, on the
other hand, is alleged only to the extent of the treats and harassments implied from
the presence of "armed men bare to the waist" and the alleged pointing and firing of
weapons. Notably, none of the supporting affidavits compellingly show that
the threat to the rights to life, liberty and security of the petitioners is
imminent or continuing.18(Emphasis in the original; underscoring supplied)
It bears emphasis that respondents petition did not show any actual violation,
imminent or continuing threat to their life, liberty and security. Bare allegations that
petitioners "in unison, conspiracy and in contempt of court, there and then willfully,
forcibly and feloniously with the use of force and intimidation entered and forcibly,
physically manhandled the petitioners (respondents) and arrested the herein
petitioners (respondents)"19 will not suffice to prove entitlement to the remedy of the
writ of amparo. No undue confinement or detention was present. In fact,
respondents were even able to post bail for the offenses a day after their arrest. 20
Although respondents release from confinement does not necessarily hinder
supplication for the writ of amparo, absent any evidence or even an allegation in the
petition that there is undue and continuing restraint on their liberty, and/or that
there exists threat or intimidation that destroys the efficacy of their right to be
secure in their persons, the issuance of the writ cannot be justified.
That respondents are merely seeking the protection of their property rights is its March 28, 2008 Decision is REVERSED and SET ASIDE. Special Civil Action No.
gathered from their Joint Affidavit, viz: 53-M-2008 is DISMISSED.

xxxx SO ORDERED.

11. Kami ay humarang at humiga sa harap ng mga heavy equipment na hawak CONCHITA CARPIO MORALES
hawak ang nasabing kautusan ng RTC Branch 10 (PERMANENT INJUNCTION at RTC Associate Justice
ORDERS DATED February 12, 17 at 19 2008) upang ipaglaban ang dignidad ng
kautusan ng korte, ipaglaban ang prinsipyo ng "SELF-HELP" at batas ukol sa
"PROPERTY RIGHTS", Wala kaming nagawa ipagtanggol ang aming karapatan sa lupa
na 45 years naming "IN POSSESSION." (Underscoring supplied)

Oddly, respondents also seek the issuance of a writ of habeas data when it is not
even alleged that petitioners are gathering, collecting or storing data or information
regarding their person, family, home and correspondence.

As for respondents assertion of past incidents21 wherein the Province allegedly

violated the Permanent Injunction order, these incidents were already raised in the
injunction proceedings on account of which respondents filed a case for criminal
contempt against petitioners.22

Before the filing of the petition for writs of amparo and habeas data, or on February
22, 2008, petitioners even instituted a petition for habeas corpus which was
considered moot and academic by Branch 14 of the Malolos RTC and was
accordingly denied by Order of April 8, 2008.

More. Respondent Amanda and one of her sons, Francisco Jr., likewise filed a petition
for writs of amparo and habeas data before the Sandiganbayan, they alleging the
commission of continuing threats by petitioners after the issuance of the writs by the
RTC, which petition was dismissed for insufficiency and forum shopping.

It thus appears that respondents are not without recourse and have in fact taken full
advantage of the legal system with the filing of civil, criminal and administrative
charges.231avvphi1

It need not be underlined that respondents petitions for writs of amparo and habeas
data are extraordinary remedies which cannot be used as tools to stall the execution
of a final and executory decision in a property dispute.

At all events, respondents filing of the petitions for writs of amparo and habeas data
should have been barred, for criminal proceedings against them had commenced
after they were arrested in flagrante delicto and proceeded against in accordance
with Section 6, Rule 11224 of the Rules of Court. Validity of the arrest or the
proceedings conducted thereafter is a defense that may be set up by respondents
during trial and not before a petition for writs of amparo and habeas data. The reliefs
afforded by the writs may, however, be made available to the aggrieved party by
motion in the criminal proceedings.25

WHEREFORE, the petition is GRANTED. The challenged March 4, 2008 Order of

Branch 10 of the Regional Trial Court of Malolos is DECLARED NULL AND VOID, and
Razon, Jr. vs. Tagitis, 606 SCRA 598, G.R. No. 182498 December 3, 2009
Writs of Amparo; Nature; Words and Phrases; The Writ of Amparoa protective
remedy against violations or threats of violation against the rights to life, liberty and
securitydoes 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 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.This Decision reflects the nature of
the Writ of Amparoa protective remedy against violations or threats of violation
against the rights to life, liberty and security. It embodies, as a remedy, the courts
directive to police agencies to undertake specified courses of action to address the
disappearance of an individual, in this case, Engr. Morced N. Tagitis. It does not
determine guilt nor pinpoint criminal culpability for the disappearance; rather, it
determines responsibility, or at least accountability, for the enforced disappearance
for purposes of imposing the appropriate remedies to address the disappearance.
Responsibility refers to the extent the actors have been established by substantial
evidence to have participated in whatever way, by action or omission, in an enforced
disappearance, as a measure of the remedies this Court shall craft, among them, the
directive to file the appropriate criminal and civil cases against the responsible
parties in the proper courts. Accountability, on the other hand, refers to the measure
of remedies that should be addressed to those who exhibited involvement in the
enforced disappearance without bringing the level of their complicity to the level of
responsibility defined above; or who are imputed with knowledge relating to the
enforced disappearance and who carry the burden of disclosure; or those who carry,
but have failed to discharge, the burden of extraordinary diligence in the
investigation of the enforced disappearance. In all these cases, the issuance of the
Writ of Amparo is justified by our primary goal of addressing the disappearance, so
that the life of the victim is preserved and his liberty and security are restored.
Same; Same; The Amparo Rule should be read, too, as a work in progress, as its
directions and finer points remain to evolve through time and jurisprudence and
through the substantive laws that Congress may promulgate.We highlight this
nature of a Writ of Amparo case at the outset to stress that the unique situations
that call for the issuance of the writ, as well as the considerations and measures
necessary to address these situations, may not at all be the same as the standard
measures and procedures in ordinary court actions and proceedings. In this sense,
the Rule on the Writ of Amparo (Amparo Rule) issued by this Court is unique. The
Amparo Rule should be read, too, as a work in progress, as its directions and finer
points remain to evolve through time and jurisprudence and through the substantive
laws that Congress may promulgate.
Same; Pleadings and Practice; While, as in any other initiatory pleading, the pleader
must of course state the ultimate facts constituting the cause of action, omitting the
evidentiary details, in an Amparo petition, however, this requirement must be read
in light of the nature and purpose of the proceeding, which addresses a situation of
uncertaintythe petitioner may not be able to describe with certainty how the
victim exactly disappeared, or who actually acted to kidnap, abduct or arrest him or
her, or where the victim is detained, because these information may purposely be
hidden or covered up by those who caused the disappearance.The framers of the
Amparo Rule never intended Section 5(c) to be complete in every detail in stating
the threatened or actual violation of a victims rights. As in any other initiatory
pleading, the pleader must of course state the ultimate facts constituting the cause
of action, omitting the evidentiary details. In an Amparo petition, however, this
requirement must be read in light of the nature and purpose of the proceeding,
which addresses a situation of uncertainty; the petitioner may not be able to
describe with certainty how the victim exactly disappeared, or who actually acted to
kidnap, abduct or arrest him or her, or where the victim is detained, because these
information may purposely be hidden or covered up by those who caused the
disappearance. In this type of situation, to require the level of specificity, detail and
precision that the petitioners apparently want to read into the Amparo Rule is to
make this Rule a token gesture of judicial concern for violations of the constitutional
rights to life, liberty and security. To read the Rules of Court requirement on
pleadings while addressing the unique Amparo situation, the test in reading the
petition should be to determine whether it contains the details available to the
petitioner under the circumstances, while presenting a cause of action showing a
violation of the victims rights to life, liberty and security through State or private
party action. The petition should likewise be read in its totality, rather than in terms
of its isolated component parts, to determine if the required elementsnamely, of
the disappearance, the State or private action, and the actual or threatened
violations of the rights to life, liberty or securityare present.
Same; Same; Where the petitioner has substantially complied with the requirement
by submitting a verified petition sufficiently detailing the facts relied upon, the strict
need for the sworn statement that an affidavit represents is essentially fulfilled.If a
defect can at all be attributed to the petition, this defect is its lack of supporting
affidavit, as required by Section 5(c) of the Amparo Rule. Owing to the summary
nature of the proceedings for the writ and to facilitate the resolution of the petition,
the Amparo Rule incorporated the requirement for supporting affidavits, with the
annotation that these can be used as the affiants direct testimony. This
requirement, however, should not be read as an absolute one that necessarily leads
to the dismissal of the petition if not strictly followed. Where, as in this case, the
petitioner has substantially complied with the requirement by submitting a verified
petition sufficiently detailing the facts relied upon, the strict need for the sworn
statement that an affidavit represents is essentially fulfilled. We note that the failure
to attach the required affidavits was fully cured when the respondent and her
witness (Mrs. Talbin) personally testified in the CA hearings held on January 7 and 17
and February 18, 2008 to swear to and flesh out the allegations of the petition. Thus,
even on this point, the petition cannot be faulted.
Same; Same; Section 5(e) is in the Amparo Rule to prevent the use of a petition
that otherwise is not supported by sufficient allegations to constitute a proper cause
of actionas a means to fish for evidence.These allegations, to our mind,
sufficiently specify that reports have been made to the police authorities, and that
investigations should have followed. That the petition did not state the manner and
results of the investigation that the Amparo Rule requires, but rather generally
stated the inaction of the police, their failure to perform their duty to investigate, or
at the very least, their reported failed efforts, should not be a reflection on the
completeness of the petition. To require the respondent to elaborately specify the
names, personal circumstances, and addresses of the investigating authority, as well
the manner and conduct of the investigation is an overly strict interpretation of
Section 5(d), given the respondents frustrations in securing an investigation with
meaningful results. Under these circumstances, we are more than satisfied that the
allegations of the petition on the investigations undertaken are sufficiently complete
for purposes of bringing the petition forward. Section 5(e) is in the Amparo Rule to
prevent the use of a petitionthat otherwise is not supported by sufficient
allegations to constitute a proper cause of actionas a means to fish for evidence.
The petitioners contend that the respondents petition did not specify what legally
available efforts were taken by the respondent, and that there was an undue
haste in the filing of the petition when, instead of cooperating with authorities, the
respondent immediately invoked the Courts intervention.
Same; Extralegal Killings and Enforced Disappearances; The phenomenon of
enforced disappearance arising from State action first attracted notice in Adolf
Hitlers Nact und Nebel Erlass or Night and Fog Decree of December 7, 1941; In the
mid-1970s, the phenomenon of enforced disappearances resurfaced, shocking and
outraging the world when individuals, numbering anywhere from 6,000 to 24,000,
were reported to have disappeared during the military regime in Argentina.The
phenomenon of enforced disappearance arising from State action first attracted
notice in Adolf Hitlers Nact und Nebel Erlass or Night and Fog Decree of December
7, 1941. The Third Reichs Night and Fog Program, a State policy, was directed at
persons in occupied territories endangering German security; they were
transported secretly to Germany where they disappeared without a trace. In order to
maximize the desired intimidating effect, the policy prohibited government officials
from providing information about the fate of these targeted persons. In the mid-
1970s, the phenomenon of enforced disappearances resurfaced, shocking and
outraging the world when individuals, numbering anywhere from 6,000 to 24,000,
were reported to have disappeared during the military regime in Argentina.
Enforced disappearances spread in Latin America, and the issue became an
international concern when the world noted its widespread and systematic use by
State security forces in that continent under Operation Condor and during the Dirty
War in the 1970s and 1980s. The escalation of the practice saw political activists
secretly arrested, tortured, and killed as part of governments counter-insurgency
campaigns. As this form of political brutality became routine elsewhere in the
continent, the Latin American media standardized the term disappearance to
describe the phenomenon. The victims of enforced disappearances were called the
desaparecidos, which literally means the disappeared ones. their nature and purpose, constitute State or private party violation of the
Same; Same; Three Different Kinds of Disappearance Cases.In general, there are
three different kinds of disappearance cases: 1) those of people arrested without
witnesses or without positive identification of the arresting agents and are never
found again; 2) those of prisoners who are usually arrested without an appropriate
warrant and held in complete isolation for weeks or months while their families are
unable to discover their whereabouts and the military authorities deny having them
in custody until they eventually reappear in one detention center or another; and 3)
those of victims of salvaging who have disappeared until their lifeless bodies are
later discovered.
Same; Same; Words and Phrases; Although the writ of amparo specifically covers
enforced disappearances, this concept is neither defined nor penalized in this
jurisdiction; 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 Amparo Rule expressly provides that the writ shall cover extralegal
killings and enforced disappearances or threats thereof. We note that although the
writ specifically covers enforced disappearances, this concept is neither defined
nor penalized in this jurisdiction. The records of the Supreme Court Committee on
the Revision of Rules (Committee) reveal that the drafters of the Amparo Rule
initially considered providing an elemental definition of the concept of enforced
disappearance: x x x In the end, the Committee took cognizance of several bills filed
in the House of Representatives and in the Senate on extrajudicial killings and
enforced disappearances, and resolved to do away with a clear textual definition of
these terms in the Rule. The Committee instead focused on the nature and scope of
the concerns within its power to address and provided the appropriate remedy
therefor, mindful that an elemental definition may intrude into the ongoing
legislative efforts. 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 and what the corresponding penalty these
criminal acts should carry are matters of substantive law that only the Legislature
has the power to enact under the countrys constitutional scheme and power
structure.
Same; Same; Supreme Court; Even without the benefit of directly applicable
substantive laws on extrajudicial killings and enforced disappearances, however, the
Supreme Court is not powerless to act under its own constitutional mandate to
promulgate rules concerning the protection and enforcement of constitutional
rights, pleading, practice and procedure in all courts, since extrajudicial killings and
enforced disappearances, by their nature and purpose, constitute State or private
party violation of the constitutional rights of individuals to life, liberty and security
the legal protection that the Court can provide can be very meaningful through the
procedures it sets in addressing extrajudicial killings and enforced disappearances.
Even without the benefit of directly applicable substantive laws on extrajudicial
killings and enforced disappearances, however, the Supreme Court is not powerless
to act under its own constitutional mandate to promulgate rules concerning the
protection and enforcement of constitutional rights, pleading, practice and
procedure in all courts, since extrajudicial killings and enforced disappearances, by
constitutional rights of individuals to life, liberty and security. Although the Courts
power is strictly procedural and as such does not diminish, increase or modify
substantive rights, the legal protection that the Court can provide can be very
meaningful through the procedures it sets in addressing extrajudicial killings and
enforced disappearances. The Court, through its procedural rules, can set the
procedural standards and thereby directly compel the public authorities to act on
actual or threatened violations of constitutional rights. To state the obvious, judicial
intervention can make a differenceeven if only procedurallyin a situation when
the very same investigating public authorities may have had a hand in the
threatened or actual violations of constitutional rights.
Same; Same; Same; The Courts intervention is in determining whether an enforced
disappearance has taken place and who is responsible or accountable for this
disappearance, and to define and impose the appropriate remedies to address it;
The burden for the public authorities to discharge in these situations, under the Rule
on the Writ of Amparo, is twofold: the first is to ensure that all efforts at disclosure
and investigation are undertaken under pain of indirect contempt from this Court
when governmental efforts are less than what the individual situations require; and,
the second is to address the disappearance, so that the life of the victim is
preserved and his or her liberty and security restored.Lest this Court intervention
be misunderstood, we clarify once again that we do not rule on any issue of criminal
culpability for the extrajudicial killing or enforced disappearance. This is an issue
that requires criminal action before our criminal courts based on our existing penal
laws. Our intervention is in determining whether an enforced disappearance has
taken place and who is responsible or accountable for this disappearance, and to
define and impose the appropriate remedies to address it. The burden for the public
authorities to discharge in these situations, under the Rule on the Writ of Amparo, is
twofold. The first is to ensure that all efforts at disclosure and investigation are
undertaken under pain of indirect contempt from this Court when governmental
efforts are less than what the individual situations require. The second is to address
the disappearance, so that the life of the victim is preserved and his or her liberty
and security restored. In these senses, our orders and directives relative to the writ
are continuing efforts that are not truly terminated until the extrajudicial killing or
enforced disappearance is fully addressed by the complete determination of the fate
and the whereabouts of the victim, by the production of the disappeared person and
the restoration of his or her liberty and security, and, in the proper case, by the
commencement of criminal action against the guilty parties.
Same; Same; International Law; From the International Law perspective, involuntary
or enforced disappearance is considered a flagrant violation of human rights.From
the International Law perspective, involuntary or enforced disappearance is
considered a flagrant violation of human rights. It does not only violate the right to
life, liberty and security of the desaparecido; it affects their families as well through
the denial of their right to information regarding the circumstances of the
disappeared family member. Thus, enforced disappearances have been said to be a
double form of torture, with doubly paralyzing impact for the victims, as they are
kept ignorant of their own fates, while family members are deprived of knowing the
whereabouts of their detained loved ones and suffer as well the serious economic
hardship and poverty that in most cases follow the disappearance of the household
breadwinner. The UN General Assembly first considered the issue of Disappeared
Persons in December 1978 under Resolution 33/173. The Resolution expressed the
General Assemblys deep concern arising from reports from various parts of the
world relating to enforced or involuntary disappearances, and requested the UN
Commission on Human Rights to consider the issue of enforced disappearances with
a view to making appropriate recommendations.
Same; Same; Same; Convention for the Protection of All Persons from Enforced
Disappearance (Convention); In 1992, in response to the reality that the insidious
practice of enforced disappearance had become a global phenomenon, the United
Nations General Assembly adopted the Declaration on the Protection of All Persons
from Enforced Disappearance, and fourteen years later (or on December 20, 2006),
the UN General Assembly adopted the International Convention for the Protection of
All Persons from Enforced Disappearance.In 1992, in response to the reality that
the insidious practice of enforced disappearance had become a global phenomenon,
the UN General Assembly adopted the Declaration on the Protection of All Persons
from Enforced Disappearance (Declaration). This Declaration, for the first time,
provided in its third preambular clause a working description of enforced
disappearance, as follows: Deeply concerned that in many countries, often in a
persistent manner, enforced disappearances occur, in the sense that persons are
arrested, detained or abducted against their will or otherwise deprived of their
liberty by officials of different branches or levels of Government, or by organized
groups or private individuals acting on behalf of, or with the support, direct or
indirect, consent or acquiescence of the Government, followed by a refusal to
disclose the fate or whereabouts of the persons concerned or a refusal to
acknowledge the deprivation of their liberty, which places such persons outside the
protection of the law. Fourteen years after (or on December 20, 2006), the UN
General Assembly adopted the International Convention for the Protection of All
Persons from Enforced Disappearance (Convention). The Convention was opened for
signature in Paris, France on February 6, 2007. Article 2 of the Convention defined
enforced disappearance as follows: For the purposes of this Convention, enforced
disappearance is considered to be the arrest, detention, abduction or any other
form of deprivation of liberty by agents of the State or by persons or groups of
persons acting with the authorization, support or acquiescence of the State, followed
by a refusal to acknowledge the deprivation of liberty or by concealment of the fate
or whereabouts of the disappeared person, which place such a person outside the
protection of the law.
Same; Same; Same; Same; The Convention is the first universal human rights
instrument to assert that there is a right not to be subject to enforced disappearance
and that this right is non-derogable.The Convention is the first universal human
rights instrument to assert that there is a right not to be subject to enforced
disappearance and that this right is non-derogable. It provides that no one shall be
subjected to enforced disappearance under any circumstances, be it a state of war,
internal political instability, or any other public emergency. It obliges State Parties to
codify enforced disappearance as an offense punishable with appropriate penalties
under their criminal law. It also recognizes the right of relatives of the disappeared
persons and of the society as a whole to know the truth on the fate and whereabouts
of the disappeared and on the progress and results of the investigation. Lastly, it
classifies enforced disappearance as a continuing offense, such that statutes of
limitations shall not apply until the fate and whereabouts of the victim are
established.
Same; Same; Same; Same; To date, the Philippines has neither signed nor ratified
the Convention, so that the country is not yet committed to enact any law penalizing
enforced disappearance as a crime.To date, the Philippines has neither signed nor
ratified the Convention, so that the country is not yet committed to enact any law
penalizing enforced disappearance as a crime. The absence of a specific penal law,
however, is not a stumbling block for action from this Court, as heretofore
mentioned; underlying every enforced disappearance is a violation of the
constitutional rights to life, liberty and security that the Supreme Court is mandated
by the Constitution to protect through its rule-making powers.
Same; Same; Same; Same; Separately from the Constitution (but still pursuant to its
terms), the Court is guided, in acting on Amparo cases, by the reality that the
Philippines is a member of the UN, bound by its Charter and by the various
conventions we signed and ratified, particularly the conventions touching on
humans rights.Separately from the Constitution (but still pursuant to its terms),
the Court is guided, in acting on Amparo cases, by the reality that the Philippines is
a member of the UN, bound by its Charter and by the various conventions we signed
and ratified, particularly the conventions touching on humans rights. Under the UN
Charter, the Philippines pledged to promote universal respect for, and observance
of, human rights and fundamental freedoms for all without distinctions as to race,
sex, language or religion. Although no universal agreement has been reached on
the precise extent of the human rights and fundamental freedoms guaranteed to
all by the Charter, it was the UN itself that issued the Declaration on enforced
disappearance, and this Declaration states: Any act of enforced disappearance is an
offence to dignity. It is condemned as a denial of the purposes of the Charter of the
United Nations and as a grave and flagrant violation of human rights and
fundamental freedoms proclaimed in the Universal Declaration of Human Rights and
reaffirmed and developed in international instruments in this field. As a matter of
human right and fundamental freedom and as a policy matter made in a UN
Declaration, the ban on enforced disappearance cannot but have its effects on the
country, given our own adherence to generally accepted principles of international
law as part of the law of the land.
Same; Same; Same; Same; The most widely accepted statement of sources of
international law today is Article 38(1) of the Statute of the International Court of
Justice, which provides that the Court shall apply international custom, as evidence
of a general practice accepted as law.The most widely accepted statement of
sources of international law today is Article 38(1) of the Statute of the International
Court of Justice, which provides that the Court shall apply international custom, as
evidence of a general practice accepted as law. The material sources of custom
include State practice, State legislation, international and national judicial decisions,
recitals in treaties and other international instruments, a pattern of treaties in the
same form, the practice of international organs, and resolutions relating to legal
questions in the UN General Assembly. Sometimes referred to as evidence of
international law, these sources identify the substance and content of the
obligations of States and are indicative of the State practice and opinio juris
requirements of international law.
Same; Same; Same; Same; Enforced disappearance as a State practice has been
repudiated by the international community so that the ban on it is now a generally
accepted principle of international law, which we should consider a part of the law of
the land, and which we should act upon to the extent already allowed under our laws
and the international conventions that bind us.While the Philippines is not yet
formally bound by the terms of the Convention on enforced disappearance (or by the
specific terms of the Rome Statute) and has not formally declared enforced
disappearance as a specific crime, the above recital shows that enforced
disappearance as a State practice has been repudiated by the international
community, so that the ban on it is now a generally accepted principle of
international law, which we should consider a part of the law of the land, and which
we should act upon to the extent already allowed under our laws and the
international conventions that bind us.
Same; Same; Past experiences in other jurisdictions relative to enforced
disappearances show that the evidentiary difficulties are generally threefold: first,
there may be a deliberate concealment of the identities of the direct perpetrators;
second, deliberate concealment of pertinent evidence of the disappearance is a
distinct possibility; and, third is the element of denial.These difficulties largely
arise because the State itselfthe party whose involvement is allegedinvestigates
enforced disappearances. Past experiences in other jurisdictions show that the
evidentiary difficulties are generally threefold. First, there may be a deliberate
concealment of the identities of the direct perpetrators. Experts note that abductors
are well organized, armed and usually members of the military or police forces.
Second, deliberate concealment of pertinent evidence of the disappearance is a
distinct possibility; the central piece of evidence in an enforced disappearancei.e.,
the corpus delicti or the victims bodyis usually concealed to effectively thwart the
start of any investigation or the progress of one that may have begun. The problem
for the victims family is the States virtual monopoly of access to pertinent
evidence. The Inter-American Court of Human Rights (IACHR) observed in the
landmark case of Velasquez Rodriguez that inherent to the practice of enforced
disappearance is the deliberate use of the States power to destroy the pertinent
evidence. The IACHR described the concealment as a clear attempt by the State to
commit the perfect crime. Third is the element of denial; in many cases, the State
authorities deliberately deny that the enforced disappearance ever occurred.
Deniability is central to the policy of enforced disappearances, as the absence of
any proven disappearance makes it easier to escape the application of legal
standards ensuring the victims human rights. Experience shows that government
officials typically respond to requests for information about desaparecidos by saying
that they are not aware of any disappearance, that the missing people may have
fled the country, or that their names have merely been invented.
Same; Same; Evidence; Burden of Proof; The characteristics of the Amparo Rule of
being summary and the use of substantial evidence as the required level of proof (in
contrast to the usual preponderance of evidence or proof beyond reasonable doubt
in court proceedings)reveal the clear intent of the framers to have the equivalent
of an administrative proceeding, albeit judicially conducted, in addressing Amparo
situations; In these proceedings, the Amparo petitioner needs only to properly
comply with the substance and form requirements of a Writ of Amparo petition, as
discussed above, and prove the allegations by substantial evidence, and once a
rebuttable case has been proven, the respondents must then respond and prove
their defenses based on the standard of diligence required.These characteristics
namely, of being summary and the use of substantial evidence as the required level
of proof (in contrast to the usual preponderance of evidence or proof beyond
reasonable doubt in court proceedings)reveal the clear intent of the framers of the
Amparo Rule to have the equivalent of an administrative proceeding, albeit judicially
conducted, in addressing Amparo situations. The standard of diligence required
the duty of public officials and employees to observe extraordinary diligencepoint,
too, to the extraordinary measures expected in the protection of constitutional rights
and in the consequent handling and investigation of extrajudicial killings and
enforced disappearance cases. Thus, in these proceedings, the Amparo petitioner
needs only to properly comply with the substance and form requirements of a Writ of
Amparo petition, as discussed above, and prove the allegations by substantial
evidence. Once a rebuttable case has been proven, the respondents must then
respond and prove their defenses based on the standard of diligence required. The
rebuttable case, of course, must show that an enforced disappearance took place
under circumstances showing a violation of the victims constitutional rights to life,
liberty or security, and the failure on the part of the investigating authorities to
appropriately respond.
Same; Same; Same; Quantum of Evidence; Substantial Evidence; Words and
Phrases; The landmark case of Ang Tibay v. Court of Industrial Relations, 69 Phil. 635
(1940), provided the Court its first opportunity to define the substantial evidence
required to arrive at a valid decision in administrative proceedings.The landmark
case of Ang Tibay v. Court of Industrial Relations provided the Court its first
opportunity to define the substantial evidence required to arrive at a valid decision
in administrative proceedings. To directly quote Ang Tibay: Substantial evidence is
more than a mere scintilla. It means such relevant evidence as a reasonable mind
might accept as adequate to support a conclusion. [citations omitted] The statute
provides that the rules of evidence prevailing in courts of law and equity shall not
be controlling. The obvious purpose of this and similar provisions is to free
administrative boards from the compulsion of technical rules so that the mere
admission of matter which would be deemed incompetent in judicial proceedings
would not invalidate the administrative order. [citations omitted] But this assurance
of a desirable flexibility in administrative procedure does not go so far as to justify
orders without a basis in evidence having rational probative force.
Same; Same; Same; Same; Same; The fair and proper rule 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 adducedwe reduce our rules to the most basic test of reason,
i.e., to the relevance of the evidence to the issue at hand and its consistency with all
other pieces of adduced evidence.Velasquez stresses the lesson that flexibility is
necessary under the unique circumstances that enforced disappearance cases pose
to the courts; to have an effective remedy, the standard of evidence must be
responsive to the evidentiary difficulties faced. On the one hand, we cannot be
arbitrary in the admission and appreciation of evidence, as arbitrariness entails
violation of rights and cannot be used as an effective counter-measure; we only
compound the problem if a wrong is addressed by the commission of another wrong.
On the other hand, we cannot be very strict in our evidentiary rules and cannot
consider evidence the way we do in the usual criminal and civil cases; precisely, the
proceedings before us are administrative in nature where, as a rule, technical rules
of evidence are not strictly observed. Thus, while we must follow the substantial
evidence rule, we must observe flexibility in considering the evidence we shall take
into account. The fair and proper rule, to our mind, is to consider all the pieces of
evidence adduced in their totality, and to consider any evidence otherwise
inadmissible under our usual rules to be admissible if it is consistent with the
admissible evidence adduced. In other words, we reduce our rules to the most basic
test of reasoni.e., to the relevance of the evidence to the issue at hand and its
consistency with all other pieces of adduced evidence. Thus, even hearsay evidence
can be admitted if it satisfies this basic minimum test.
Same; Same; Convention for the Protection of All Persons from Enforced
Disappearance; Elements of Enforced Disappearance.The Convention defines
enforced disappearance as the arrest, detention, abduction or any other form of
deprivation of liberty by agents of the State or by persons or groups of persons
acting with the authorization, support or acquiescence of the State, followed by a
refusal to acknowledge the deprivation of liberty or by concealment of the fate or
whereabouts of the disappeared person, which place such a person outside the
protection of the law. Under this definition, the elements that constitute enforced
disappearance are essentially fourfold: (a) arrest, detention, abduction or any form
of deprivation of liberty; (b) carried out by agents of the State or persons or groups
of persons acting with the authorization, support or acquiescence of the State; (c)
followed by a refusal to acknowledge the detention, or a concealment of the fate of
the disappeared person; and (d) placement of the disappeared person outside the
protection of the law.
Same; Same; Evidence; Witnesses; As a rule, minor inconsistencies indicate
truthfulness rather than prevarication and only tend to strengthen their probative
value, in contrast to testimonies from various witnesses dovetailing on every detail
the latter cannot but generate witnesses that the material circumstances they
testified to were integral parts of a well thought of and prefabricated story.Upon
deeper consideration of these inconsistencies, however, what appears clear to us is
that the petitioners never really steadfastly disputed or presented evidence to refute
the credibility of the respondent and her witness, Mrs. Talbin. The inconsistencies the
petitioners point out relate, more than anything else, to details that should not affect
the credibility of the respondent and Mrs. Talbin; the inconsistencies are not on
material points. We note, for example, that these witnesses are lay people in so far
as military and police matters are concerned, and confusion between the police and
the military is not unusual. As a rule, minor inconsistencies such as these indicate
truthfulness rather than prevarication and only tend to strengthen their probative
value, in contrast to testimonies from various witnesses dovetailing on every detail;
the latter cannot but generate suspicion that the material circumstances they
testified to were integral parts of a well thought of and prefabricated story. Based on
these considerations and the unique evidentiary situation in enforced disappearance
cases, we hold it duly established that Col. Kasim informed the respondent and her
friends, based on the informants letter, that Tagitis, reputedly a liaison for the JI and
who had been under surveillance since January 2007, was in good hands and
under custodial investigation for complicity with the JI after he was seen talking to
one Omar Patik and a certain Santos of Bulacan, a Balik Islam charged with
terrorism. The respondents and Mrs. Talbins testimonies cannot simply be defeated
by Col. Kasims plain denial and his claim that he had destroyed his informants
letter, the critical piece of evidence that supports or negates the parties conflicting
claims. Col. Kasims admitted destruction of this lettereffectively, a suppression of
this evidenceraises the presumption that the letter, if produced, would be proof of
what the respondent claimed. For brevity, we shall call the evidence of what Col.
Kasim reported to the respondent to be the Kasim evidence.
Same; Same; Same; The Amparo Rule was not promulgated with the intent to make
it a token gesture of concern for constitutional rights. It was promulgated to provide
effective and timely remedies, using and profiting from local and international
experiences in extrajudicial killings and enforced disappearances, as the situation
may requirethe Court has no choice but to meet the evidentiary difficulties
inherent in enforced disappearances with the flexibility that these difficulties
demand.To say that this piece of evidence is incompetent and inadmissible
evidence of what it substantively states is to acknowledgeas the petitioners
effectively suggestthat in the absence of any direct evidence, we should simply
dismiss the petition. To our mind, an immediate dismissal for this reason is no
different from a statement that the Amparo Ruledespite its termsis ineffective,
as it cannot allow for the special evidentiary difficulties that are unavoidably present
in Amparo situations, particularly in extrajudicial killings and enforced
disappearances. The Amparo Rule was not promulgated with this intent or with the
intent to make it a token gesture of concern for constitutional rights. It was
promulgated to provide effective and timely remedies, using and profiting from local
and international experiences in extrajudicial killings and enforced disappearances,
as the situation may require. Consequently, we have no choice but to meet the
evidentiary difficulties inherent in enforced disappearances with the flexibility that
these difficulties demand.
Same; Same; Same; In sum, none of the reports on record contains any meaningful
results or details on the depth and extent of the investigation madeto be sure,
reports of top police officials indicating the personnel and units they directed to
investigate can never constitute exhaustive and meaningful investigation, or equal
detailed investigative reports of the activities undertaken to search for the missing
subject; Indisputably, the police authorities from the very beginning failed to come
up to the extraordinary diligence that the Amparo Rule requires.As the CA found
through Task Force Tagitis, the investigation was at best haphazard since the
authorities were looking for a man whose picture they initially did not even secure.
The returns and reports made to the CA fared no better, as the CIDG efforts
themselves were confined to searching for custodial records of Tagitis in their
various departments and divisions. To point out the obvious, if the abduction of
Tagitis was a black operation because it was unrecorded or officially unauthorized,
no record of custody would ever appear in the CIDG records; Tagitis, too, would not
be detained in the usual police or CIDG detention places. In sum, none of the reports
on record contains any meaningful results or details on the depth and extent of the
investigation made. To be sure, reports of top police officials indicating the personnel
and units they directed to investigate can never constitute exhaustive and
meaningful investigation, or equal detailed investigative reports of the activities
undertaken to search for Tagitis. Indisputably, the police authorities from the very
beginning failed to come up to the extraordinary diligence that the Amparo Rule
requires.
Same; Same; Same; The consistent but unfounded denials and the haphazard
investigations cannot but point to the conclusion that there was government
complicity in the disappearance, for why would the government and its officials
engage in their chorus of concealment if the intent had not been to deny what they
already knew of the disappearance?Based on these considerations, we conclude
that Col. Kasims disclosure, made in an unguarded moment, unequivocally point to
some government complicity in the disappearance. The consistent but unfounded
denials and the haphazard investigations cannot but point to this conclusion. For
why would the government and its officials engage in their chorus of concealment if
the intent had not been to deny what they already knew of the disappearance?
Would not an in-depth and thorough investigation that at least credibly determined
the fate of Tagitis be a feather in the governments cap under the circumstances of
the disappearance? From this perspective, the evidence and developments,
particularly the Kasim evidence, already establish a concrete case of enforced
disappearance that the Amparo Rule covers. From the prism of the UN Declaration,
heretofore cited and quoted, the evidence at hand and the developments in this
case confirm the fact of the enforced disappearance and government complicity,
under a background of consistent and unfounded government denials and
haphazard handling. The disappearance as well effectively placed Tagitis outside the
protection of the lawa situation that will subsist unless this Court acts.
Same; Same; Same; The Court believes and so holds that the government in
general, through the Philippine National Police (PNP) and the Criminal Investigation
and Detention Group (PNP-CIDG), and in particular, the Chiefs of these organizations
together with Col. Kasim, should be held fully accountable for the enforced
disappearance of Tagitisthe Court holds 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 disappearnce of Tagitis.
Following the lead of this Turkish experienceadjusted to the Philippine legal setting
and the Amparo remedy this Court has established, as applied to the unique facts
and developments of this casewe believe and so hold that the government in
general, through the PNP and the PNP-CIDG, and in particular, the Chiefs of these
organizations together with Col. Kasim, should be held fully accountable for the
enforced disappearance of Tagitis. The PNP and CIDG are accountable because
Section 24 of Republic Act No. 6975, otherwise known as the PNP Law, specifies
the PNP as the governmental office with the mandate to investigate and prevent
crimes, effect the arrest of criminal offenders, bring offenders to justice and assist in
their prosecution. The PNP-CIDG, as Col. Jose Volpane Pante (then Chief of CIDG
Region 9) testified, is the investigative arm of the PNP and is mandated to
investigate and prosecute all cases involving violations of the Revised Penal Code,
particularly those considered as heinous crimes. Under the PNP organizational
structure, the PNP-CIDG is tasked to investigate all major crimes involving violations
of the Revised Penal Code and operates against organized crime groups, unless the
President assigns the case exclusively to the National Bureau of Investigation (NBI).
No indication exists in this case showing that the President ever directly intervened
by assigning the investigation of Tagitis disappearance exclusively to the NBI. Given
their mandates, the PNP and PNP-CIDG officials and members were the ones who
were remiss in their duties when the government completely failed to exercise the
extraordinary diligence that the Amparo Rule requires. We hold these organization
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.
Same; Same; Same; The Court holds Col. Kasim accountable for his failure to
disclose under oath information relating to the enforced disappearance, and for the
purpose of this accountability, he is impleaded as a party to this case.We hold Col.
Kasim accountable for his failure to disclose under oath information relating to the
enforced disappearance. For the purpose of this accountability, we order that Col.
Kasim be impleadead as a party to this case. The PNP is similarly held accountable
for the suppression of vital information that Col. Kasim could and did not provide,
and, as the entity with direct authority over Col. Kasim, is held with the same
obligation of disclosure that Col. Kasim carries. We shall deal with Col. Kasims
suppression of evidence under oath when we finally close this case under the
process outlined below. Razon, Jr. vs. Tagitis, 606 SCRA 598, G.R. No. 182498
December 3, 2009
G.R. No. 182498 December 3, 2009
GEN. AVELINO I. RAZON, JR., Chief, Philippine National Police (PNP); Police
Chief Superintendent RAUL CASTAEDA, Chief, Criminal Investigation and
Detection Group (CIDG); Police Senior Superintendent LEONARDO A.
ESPINA, Chief, Police Anti-Crime and Emergency Response (PACER); and
GEN. JOEL R. GOLTIAO, Regional Director of ARMM, PNP, Petitioners,
vs.
MARY JEAN B. TAGITIS, herein represented by ATTY. FELIPE P. ARCILLA, JR.,
Attorney-in-Fact, Respondent.
DECISION
BRION, J.:
We review in this petition for review on certiorari1 the decision dated March 7, 2008
of the Court of Appeals (CA) in C.A-G.R. AMPARO No. 00009.2 This CA decision
confirmed the enforced disappearance of Engineer Morced N. Tagitis (Tagitis) and
granted the Writ of Amparo at the petition of his wife, Mary Jean B. Tagitis
(respondent). The dispositive portion of the CA decision reads:
WHEREFORE, premises considered, petition is hereby GRANTED. The Court hereby
FINDS that this is an "enforced disappearance" within the meaning of the United
Nations instruments, as used in the Amparo Rules. The privileges of the writ of
amparo are hereby extended to Engr. Morced Tagitis.
Consequently: (1) respondent GEN. EDGARDO M. DOROMAL, Chief, Criminal
Investigation and Detention Group (CIDG) who should order COL. JOSE VOLPANE
PANTE, CIDG-9 Chief, Zamboanga City, to aid him; (2) respondent GEN. AVELINO I.
RAZON, Chief, PNP, who should order his men, namely: (a) respondent GEN. JOEL
GOLTIAO, Regional Director of ARMM PNP, (b) COL. AHIRON AJIRIM, both head of
TASK FORCE TAGITIS, and (c) respondent SR. SUPERINTENDENT LEONARDO A.
ESPINA, Chief, Police Anti-Crime and Emergency Response, to aid him as their
superior- are hereby DIRECTED to exert extraordinary diligence and efforts, not only
to protect the life, liberty and security of Engr. Morced Tagitis, but also to extend
the privileges of the writ of amparo to Engr. Morced Tagitis and his family, and to
submit a monthly report of their actions to this Court, as a way of PERIODIC REVIEW
to enable this Court to monitor the action of respondents.
This amparo case is hereby DISMISSED as to respondent LT. GEN. ALEXANDER YANO,
Commanding General, Philippine Army, and as to respondent GEN. RUBEN RAFAEL,
Chief Anti-Terror Task Force Comet, Zamboanga City, both being with the military,
which is a separate and distinct organization from the police and the CIDG, in terms
of operations, chain of command and budget.
This Decision reflects the nature of the Writ of Amparo a protective remedy against
violations or threats of violation against the rights to life, liberty and security. 3 It
embodies, as a remedy, the courts directive to police agencies to undertake
specified courses of action to address the disappearance of an individual, in this
case, Engr. Morced N. Tagitis. It does not determine guilt nor pinpoint criminal
culpability for the disappearance; rather, it determines responsibility, or at least
accountability, for the enforced disappearance for purposes of imposing the
appropriate remedies to address the disappearance. Responsibility refers to the
extent the actors have been established by substantial evidence to have
participated in whatever way, by action or omission, in an enforced disappearance,
as a measure of the remedies this Court shall craft, among them, the directive to file
the appropriate criminal and civil cases against the responsible parties in the proper
courts. Accountability, on the other hand, refers to the measure of remedies that
should be addressed to those who exhibited involvement in the enforced
disappearance without bringing the level of their complicity to the level of
responsibility defined above; or who are imputed with knowledge relating to the
enforced disappearance and who carry the burden of disclosure; or those who carry,
but have failed to discharge, the burden of extraordinary diligence in the
investigation of the enforced disappearance. In all these cases, the issuance of the
Writ of Amparo is justified by our primary goal of addressing the disappearance, so
that the life of the victim is preserved and his liberty and security are restored.
We highlight this nature of a Writ of Amparo case at the outset to stress that the
unique situations that call for the issuance of the writ, as well as the considerations
and measures necessary to address these situations, may not at all be the same as
the standard measures and procedures in ordinary court actions and proceedings. In
this sense, the Rule on the Writ of Amparo4 (Amparo Rule) issued by this Court is
unique. The Amparo Rule should be read, too, as a work in progress, as its directions
and finer points remain to evolve through time and jurisprudence and through the
substantive laws that Congress may promulgate.
THE FACTUAL ANTECEDENTS
The background facts, based on the petition and the records of the case, are
summarized below.
The established facts show that Tagitis, a consultant for the World Bank and the
Senior Honorary Counselor for the Islamic Development Bank (IDB) Scholarship
Programme, was last seen in Jolo, Sulu. Together with Arsimin Kunnong (Kunnong),
an IDB scholar, Tagitis arrived in Jolo by boat in the early morning of October 31,
2007 from a seminar in Zamboanga City. They immediately checked-in at ASY
Pension House. Tagitis asked Kunnong to buy him a boat ticket for his return trip the
following day to Zamboanga. When Kunnong returned from this errand, Tagitis was
no longer around.5 The receptionist related that Tagitis went out to buy food at
around 12:30 in the afternoon and even left his room key with the desk. 6 Kunnong
looked for Tagitis and even sent a text message to the latters Manila-based
secretary who did not know of Tagitis whereabouts and activities either; she advised
Kunnong to simply wait.7
On November 4, 2007, Kunnong and Muhammad Abdulnazeir N. Matli, a UP
professor of Muslim studies and Tagitis fellow student counselor at the IDB, reported
Tagitis disappearance to the Jolo Police Station.8 On November 7, 2007, Kunnong
executed a sworn affidavit attesting to what he knew of the circumstances
surrounding Tagitis disappearance.9
More than a month later (on December 28, 2007), the respondent filed a Petition for
the Writ of Amparo (petition) with the CA through her Attorney-in-Fact, Atty. Felipe P.
Arcilla.10 The petition was directed against Lt. Gen. Alexander Yano, Commanding
General, Philippine Army; Gen. Avelino I. Razon, Chief, Philippine National Police
(PNP); Gen. Edgardo M. Doromal, Chief, Criminal Investigation and Detention Group
(CIDG); Sr. Supt. Leonardo A. Espina, Chief, Police Anti-Crime and Emergency
Response; Gen. Joel Goltiao, Regional Director, ARMM-PNP; and Gen. Ruben Rafael,
Chief, Anti-Terror Task Force Comet [collectively referred to as petitioners]. After
reciting Tagitis personal circumstances and the facts outlined above, the petition
went on to state:
xxxx
7. Soon after the student left the room, Engr. Tagitis went out of the pension house
to take his early lunch but while out on the street, a couple of burly men believed to
be police intelligence operatives, forcibly took him and boarded the latter on a motor
vehicle then sped away without the knowledge of his student, Arsimin Kunnong;
8. As instructed, in the late afternoon of the same day, Kunnong returned to the
pension house, and was surprised to find out that subject Engr. Tagitis cannot [sic]
be contacted by phone and was not also around and his room was closed and
locked;
9. Kunnong requested for the key from the desk of the pension house who [sic]
assisted him to open the room of Engr. Tagitis, where they discovered that the
personal belongings of Engr. Tagitis, including cell phones, documents and other
personal belongings were all intact inside the room;
10. When Kunnong could not locate Engr. Tagitis, the former sought the help of
another IDB scholar and reported the matter to the local police agency;
11. Arsimin Kunnong including his friends and companions in Jolo, exerted efforts in
trying to locate the whereabouts of Engr. Tagitis and when he reported the matter to
the police authorities in Jolo, he was immediately given a ready answer that Engr.
Tagitis could have been abducted by the Abu Sayyaf group and other groups known
to be fighting against the government;
12. Being scared with [sic] these suggestions and insinuations of the police officers,
Kunnong reported the matter to the [respondent, wife of Engr. Tagitis] by phone and
other responsible officers and coordinators of the IDB Scholarship Programme in the
Philippines, who alerted the office of the Governor of ARMM who was then preparing
to attend the OIC meeting in Jeddah, Saudi Arabia;
13. [Respondent], on the other hand, approached some of her co-employees with
the Land Bank in Digos branch, Digos City, Davao del Sur who likewise sought help
from some of their friends in the military who could help them find/locate the
whereabouts of her husband;
14. All of these efforts of the [respondent] did not produce any positive results
except the information from persons in the military who do not want to be identified
that Engr. Tagitis is in the hands of the uniformed men;
15. According to reliable information received by the [respondent], subject Engr.
Tagitis is in the custody of police intelligence operatives, specifically with the CIDG,
PNP Zamboanga City, being held against his will in an earnest attempt of the police
to involve and connect Engr. Tagitis with the different terrorist groups;
xxxx
17. [Respondent] filed her complaint with the PNP Police Station in the ARMM in
Cotobato and in Jolo, as suggested by her friends, seeking their help to find her
husband, but [respondents] request and pleadings failed to produce any positive
results;
18. Instead of helping the [respondent], she [sic] was told of an intriguing tale by the
police that her husband, subject of the petition, was not missing but was with
another woman having good time somewhere, which is a clear indication of the
[petitioners] refusal to help and provide police assistance in locating her missing
husband;
19. The continued failure and refusal of the [petitioners] to release and/or turn-over
subject Engr. Tagitis to his family or even to provide truthful information to [the
respondent] of the subjects whereabouts, and/or allow [the respondent] to visit her
husband Engr. Morced Tagitis, caused so much sleepless nights and serious
anxieties;
20. Lately, [the respondent] was again advised by one of the [petitioners] to go to
the ARMM Police Headquarters again in Cotobato City and also to the different Police
Headquarters including [those] in Davao City, in Zamboanga City, in Jolo, and in
Camp Crame, Quezon City, and all these places have been visited by the
[respondent] in search for her husband, which entailed expenses for her trips to
these places thereby resorting her to borrowings and beggings [sic] for financial help
from friends and relatives only to try complying [sic] to the different suggestions of
these police officers, despite of which, her efforts produced no positive results up to
the present time;
21. In fact at times, some police officers, who [sympathized with] the sufferings
undergone by the [respondent], informed her that they are not the proper persons
that she should approach, but assured her not to worry because her husband is [sic]
in good hands;
22. The unexplained uncooperative behavior of the [petitioners] to the
[respondents] request for help and failure and refusal of the [petitioners] to extend
the needed help, support and assistance in locating the whereabouts of Engr. Tagitis
who had been declared missing since October 30, 2007 which is almost two (2)
months now, clearly indicates that the [petitioners] are actually in physical
possession and custody of [respondents] husband, Engr. Tagitis;
xxxx
25. [The respondent] has exhausted all administrative avenues and remedies but to
no avail, and under the circumstances, [the respondent] has no other plain, speedy
and adequate remedy to protect and get the release of subject Engr. Morced Tagitis
from the illegal clutches of the [petitioners], their intelligence operatives and the like
which are in total violation of the subjects human and constitutional rights, except
the issuance of a WRIT OF AMPARO. [Emphasis supplied]
On the same day the petition was filed, the CA immediately issued the Writ of
Amparo, set the case for hearing on January 7, 2008, and directed the petitioners to
file their verified return within seventy-two (72) hours from service of the writ. 11
In their verified Return filed during the hearing of January 27, 2008, the petitioners
denied any involvement in or knowledge of Tagitis alleged abduction. They argued
that the allegations of the petition were incomplete and did not constitute a cause of
action against them; were baseless, or at best speculative; and were merely based
on hearsay evidence. 12
The affidavit of PNP Chief Gen. Avelino I. Razon, attached to the Return, stated that:
he did not have any personal knowledge of, or any participation in, the alleged
disappearance; that he had been designated by President Gloria Macapagal Arroyo
as the head of a special body called TASK FORCE USIG, to address concerns about
extralegal killings and enforced disappearances; the Task Force, inter alia,
coordinated with the investigators and local police, held case conferences, rendered
legal advice in connection to these cases; and gave the following summary: 13
xxxx
4.
a) On November 5, 2007, the Regional Director, Police Regional Office
ARMM submitted a report on the alleged disappearance of one Engr.
Morced Tagitis. According to the said report, the victim checked-in at ASY
Pension House on October 30, 2007 at about 6:00 in the morning and then
roamed around Jolo, Sulu with an unidentified companion. It was only after
a few days when the said victim did not return that the matter was reported
to Jolo MPS. Afterwards, elements of Sulu PPO conducted a thorough
investigation to trace and locate the whereabouts of the said missing
person, but to no avail. The said PPO is still conducting investigation that
will lead to the immediate findings of the whereabouts of the person.
 b) Likewise, the Regional Chief, 9RCIDU submitted a Progress Report to the disappearance which presupposes a direct or indirect involvement of the
Director, CIDG. The said report stated among others that: subject person government.
attended an Education Development Seminar set on October 28, 2007
conducted at Ateneo de Zamboanga, Zamboanga City together with a Prof.
That herein [petitioner] searched all divisions and departments for a person named
Matli. On October 30, 2007, at around 5:00 oclock in the morning, Engr.
Engr. Morced N. Tagitis, who was allegedly abducted or illegally detained by covert
Tagitis reportedly arrived at Jolo Sulu wharf aboard M/V Bounty Cruise, he
CIDG-PNP Intelligence Operatives since October 30, 2007 and after a diligent and
was then billeted at ASY Pension House. At about 6:15 oclock in the
thorough research records show that no such person is being detained in CIDG or
morning of the same date, he instructed his student to purchase a fast craft
any of its department or divisions.
ticket bound for Zamboanga City and will depart from Jolo, Sulu on October
31, 2007. That on or about 10:00 oclock in the morning, Engr. Tagitis left
the premises of ASY Pension House as stated by the cashier of the said That nevertheless, in order to determine the circumstances surrounding Engr.
pension house. Later in the afternoon, the student instructed to purchase Morced Tagitis [sic] alleged enforced disappearance, the undersigned had
the ticket arrived at the pension house and waited for Engr. Tagitis, but the undertaken immediate investigation and will pursue investigations up to its full
latter did not return. On its part, the elements of 9RCIDU is now conducting completion in order to aid in the prosecution of the person or persons responsible
a continuous case build up and information gathering to locate the therefore.
whereabouts of Engr. Tagitis.
Likewise attached to the Return of the Writ was PNP-PACER 15 Chief PS Supt. Leonardo
c) That the Director, CIDG directed the conduct of the search in all divisions A. Espinas affidavit which alleged that:16
of the CIDG to find Engr. Tagitis who was allegedly abducted or illegally
detained by covert CIDG-PNP Intelligence Operatives since October 30,
xxxx
2007, but after diligent and thorough search, records show that no such
person is being detained in CIDG or any of its department or divisions.
That, I and our men and women in PACER vehemently deny any participation in the
alleged abduction or illegally [sic] detention of ENGR. MORCED N. TAGITS on October
5. On this particular case, the Philippine National Police exhausted all possible
30, 2007. As a matter of fact, nowhere in the writ was mentioned that the alleged
efforts, steps and actions available under the circumstances and continuously
abduction was perpetrated by elements of PACER nor was there any indication that
search and investigate [sic] the instant case. This immense mandate, however,
the alleged abduction or illegal detention of ENGR. TAGITIS was undertaken jointly
necessitates the indispensable role of the citizenry, as the PNP cannot stand alone
by our men and by the alleged covert CIDG-PNP intelligence operatives alleged to
without the cooperation of the victims and witnesses to identify the perpetrators to
have abducted or illegally detained ENGR. TAGITIS.
bring them before the bar of justice and secure their conviction in court.

That I was shocked when I learned that I was implicated in the alleged
The petitioner PNP-CIDG Chief, Gen. Edgardo M. Doromal, submitted as well his
disappearance of ENGR. MORCED in my capacity as the chief PACER [sic] considering
affidavit, also attached to the Return of the Writ, attesting that upon receipt of the
that our office, the Police Anti-Crime and Emergency Response (PACER), a special
Writ of Amparo, he caused the following:14
task force created for the purpose of neutralizing or eradicating kidnap-for-ransom
groups which until now continue to be one of the menace of our society is a
xxxx respondent in kidnapping or illegal detention case. Simply put, our task is to go after
kidnappers and charge them in court and to abduct or illegally detain or kidnap
anyone is anathema to our mission.
That immediately upon receipt on December 29, 2007 of the Resolution of the
Honorable Special Fourth Division of the Court of Appeals, I immediately directed the
Investigation Division of this Group [CIDG] to conduct urgent investigation on the That right after I learned of the receipt of the WRIT OF AMPARO, I directed the Chief
alleged enforced disappearance of Engineer Morced Tagitis. of PACER Mindanao Oriental (PACER-MOR) to conduct pro-active measures to
investigate, locate/search the subject, identify and apprehend the persons
responsible, to recover and preserve evidence related to the disappearance of
That based on record, Engr. Morced N. Tagitis attended an Education Development
ENGR. MORCED TAGITIS, which may aid in the prosecution of the person or persons
Seminar on October 28, 2007 at Ateneo de Zamboanga at Zamboanga City together
responsible, to identify witnesses and obtain statements from them concerning the
with Prof. Abdulnasser Matli. On October 30, 2007, at around six oclock in the
disappearance and to determine the cause, manner, location and time of
morning he arrived at Jolo, Sulu. He was assisted by his student identified as Arsimin
disappearance as well as any pattern or practice that may have brought about the
Kunnong of the Islamic Development Bank who was also one of the participants of
disappearance.
the said seminar. He checked in at ASY pension house located [sic] Kakuyagan,
Patikul, Sulu on October 30, 2007 with [sic] unidentified companion. At around six
oclock in the morning of even date, Engr. Tagitis instructed his student to purchase That I further directed the chief of PACER-MOR, Police Superintendent JOSE
a fast craft ticket for Zamboanga City. In the afternoon of the same date, Kunnong ARNALDO BRIONES JR., to submit a written report regarding the disappearance of
arrived at the pension house carrying the ticket he purchased for Engr. Tagitis, but ENGR. MORCED.
the latter was nowhere to be found anymore. Kunnong immediately informed Prof.
Abdulnasser Matli who reported the incident to the police. The CIDG is not involved
That in compliance with my directive, the chief of PACER-MOR sent through fax his
in the disappearance of Engr. Morced Tagitis to make out a case of an enforced
written report.
That the investigation and measures being undertaken to locate/search the subject
in coordination with Police Regional Office, Autonomous Region of Muslim Mindanao
(PRO-ARMM) and Jolo Police Provincial Office (PPO) and other AFP and PNP
units/agencies in the area are ongoing with the instruction not to leave any stone
unturned so to speak in the investigation until the perpetrators in the instant case
are brought to the bar of justice.
That I have exercised EXTRAORDINARY DILIGENCE in dealing with the WRIT OF
AMPARO just issued.
Finally, the PNP PRO ARMM Regional Director PC Supt. Joel R. Goltiao (Gen. Goltiao),
also submitted his affidavit detailing the actions that he had taken upon receipt of
the report on Tagitis disappearance, viz: 17
xxxx
3) For the record:
1. I am the Regional Director of Police Regional Office ARMM now and during the
time of the incident;
xxxx
4. It is my duty to look into and take appropriate measures on any cases of reported
enforced disappearances and when they are being alluded to my office;
5. On November 5, 2007, the Provincial Director of Sulu Police Provincial Office
reported to me through Radio Message Cite No. SPNP3-1105-07-2007 that on
November 4, 2007 at around 3:30 p.m., a certain Abdulnasser Matli, an employee of
Islamic Development Bank, appeared before the Office of the Chief of Police, Jolo
Police Station, and reported the disappearance of Engr. Morced Tagitis, scholarship
coordinator of Islamic Development Bank, Manila;
6. There was no report that Engr. Tagibis was last seen in the company of or taken by
any member of the Philippine National Police but rather he just disappeared from
ASY Pension House situated at Kakuyagan Village, Village, Patikul, Sulu, on October
30, 2007, without any trace of forcible abduction or arrest;
7. The last known instance of communication with him was when Arsimin Kunnong, a
student scholar, was requested by him to purchase a vessel ticket at the Office of
Weezam Express, however, when the student returned back to ASY Pension House,
he no longer found Engr. Tagitis there and when he immediately inquired at the
information counter regarding his whereabouts [sic], the person in charge in the
counter informed him that Engr. Tagitis had left the premises on October 30, 2007
around 1 oclock p.m. and never returned back to his room;
8. Immediately after learning the incident, I called and directed the Provincial
Director of Sulu Police Provincial Office and other units through phone call and text
messages to conduct investigation [sic] to determine the whereabouts of the
aggrieved party and the person or persons responsible for the threat, act or
omission, to recover and preserve evidence related to the disappearance of Engr.
Tagitis, to identify witnesses and obtain statements from them concerning his
disappearance, to determine the cause and manner of his disappearance, to identify
and apprehend the person or persons involved in the disappearance so that they
shall be brought before a competent court;
9. Thereafter, through my Chief of the Regional Investigation and Detection
Management Division, I have caused the following directives:
a) Radio Message Cite No. RIDMD-1122-07-358 dated November 22, 2007
directing PD Sulu PPO to conduct joint investigation with CIDG and CIDU
ARMM on the matter;
b) Radio Message Cite No. RIDMD-1128-07-361 dated November 28, 2007
directing PD Sulu PPO to expedite compliance to my previous directive;
c) Memorandum dated December 14, 2007 addressed to PD Sulu PPO
reiterating our series of directives for investigation and directing him to
undertake exhaustive coordination efforts with the owner of ASY Pension
House and student scholars of IDB in order to secure corroborative
statements regarding the disappearance and whereabouts of said
personality;
d) Memorandum dated December 24, 2007 addressed to PD Sulu PPO
directing him to maximize efforts to establish clues on the whereabouts of
Engr. Tagitis by seeking the cooperation of Prof. Abdulnasser Matli and
Arsimin Kunnong and/or whenever necessary, for them to voluntarily
submit for polygraph examination with the NBI so as to expunge all clouds
of doubt that they may somehow have knowledge or idea to his
disappearance;
e) Memorandum dated December 27, 2007 addressed to the Regional
Chief, Criminal Investigation and Detection Group, Police Regional Office 9,
Zamboanga City, requesting assistance to investigate the cause and
unknown disappearance of Engr. Tagitis considering that it is within their
area of operational jurisdiction;
f) Memorandum from Chief, Intelligence Division, PRO ARMM dated
December 30, 2007 addressed to PD Sulu PPO requiring them to submit
complete investigation report regarding the case of Engr. Tagitis;
10. In compliance to our directives, PD Sulu PPO has exerted his [sic] efforts to
conduct investigation [sic] on the matter to determine the whereabouts of Engr.
Tagitis and the circumstances related to his disappearance and submitted the
following:
a) Progress Report dated November 6, 2007 through Radio Message Cite
No. SPNP3-1106-10-2007;
b) Radio Message Cite No. SPIDMS-1205-47-07 informing this office that
they are still monitoring the whereabouts of Engr. Tagitis;
c) Investigation Report dated December 31, 2007 from the Chief of Police,
Jolo Police Station, Sulu PPO;
11. This incident was properly reported to the PNP Higher Headquarters as shown in
the following:
a) Memorandum dated November 6, 2007 addressed to the Chief, PNP
informing him of the facts of the disappearance and the action being taken
by our office;
b) Memorandum dated November 6, 2007 addressed to the Director,
Directorate for Investigation and Detection Management, NHQ PNP;
c) Memorandum dated December 30, 2007 addressed to the Director,
DIDM;
4) In spite of our exhaustive efforts, the whereabouts of Engr. Tagitis cannot be
determined but our office is continuously intensifying the conduct of information
gathering, monitoring and coordination for the immediate solution of the case.
Since the disappearance of Tagistis was practically admitted and taking note of
favorable actions so far taken on the disappearance, the CA directed Gen. Goltiao
as the officer in command of the area of disappearance to form TASK FORCE
TAGITIS.18
Task Force Tagitis
On January 11, 2008, Gen. Goltiao designated PS Supt. Ahiron Ajirim (PS Supt.
Ajirim) to head TASK FORCE TAGITIS.19 The CA subsequently set three hearings to
monitor whether TASK FORCE TAGITIS was exerting "extraordinary efforts" in
handling the disappearance of Tagitis.20 As planned, (1) the first hearing would be to
mobilize the CIDG, Zamboanga City; (2) the second hearing would be to mobilize
intelligence with Abu Sayyaf and ARMM; and (3) the third hearing would be to
mobilize the Chief of Police of Jolo, Sulu and the Chief of Police of Zamboanga City
and other police operatives.21
In the hearing on January 17, 2008, TASK FORCE TAGITIS submitted to the CA an
intelligence report from PSL Usman S. Pingay, the Chief of Police of the Jolo Police
Station, stating a possible motive for Tagitis disappearance.22 The intelligence report
was apparently based on the sworn affidavit dated January 4, 2008 of Muhammad
Abdulnazeir N. Matli (Prof. Matli), Professor of Islamic Studies at the University of the
Philippines and an Honorary Student Counselor of the IDB Scholarship Program in
the Philippines, who told the Provincial Governor of Sulu that: 23
[Based] on reliable information from the Office of Muslim Affairs in Manila, Tagitis has
reportedly taken and carried away more or less Five Million Pesos (P5,000,000.00)
deposited and entrusted to his [personal] bank accounts by the Central Office of
IDB, Jeddah, Kingdom of Saudi Arabia, which [was] intended for the IDB
Scholarship Fund.
In the same hearing, PS Supt. Ajirim testified that since the CIDG was alleged to be
responsible, he personally went to the CIDG office in Zamboanga City to conduct an
ocular inspection/investigation, particularly of their detention cells. 24 PS Supt. Ajirim
stated that the CIDG, while helping TASK FORCE TAGITIS investigate the
disappearance of Tagitis, persistently denied any knowledge or complicity in any
abduction.25 He further testified that prior to the hearing, he had already mobilized
and given specific instructions to their supporting units to perform their respective
tasks; that they even talked to, but failed to get any lead from the respondent in
Jolo.26 In his submitted investigation report dated January 16, 2008, PS Supt. Ajirim
concluded:27
9. Gleaned from the undersigned inspection and observation at the Headquarters 9
RCIDU and the documents at hand, it is my own initial conclusion that the 9RCIDU
and other PNP units in the area had no participation neither [sic] something to do
with [sic] mysterious disappearance of Engr. Morced Tagitis last October 30, 2007.
Since doubt has been raised regarding the emolument on the Islamic Development
Bank Scholar program of IDB that was reportedly deposited in the personal account
of Engr. Tagitis by the IDB central office in Jeddah, Kingdom of Saudi Arabia.
Secondly, it could might [sic] be done by resentment or sour grape among students
who are applying for the scholar [sic] and were denied which was allegedly
conducted/screened by the subject being the coordinator of said program.
20. It is also premature to conclude but it does or it may and [sic] presumed that the
motive behind the disappearance of the subject might be due to the funds he
maliciously spent for his personal interest and wanted to elude responsibilities from
the institution where he belong as well as to the Islamic student scholars should the
statement of Prof. Matli be true or there might be a professional jealousy among
them.
xxxx
It is recommended that the Writ of Amparo filed against the respondents be dropped
and dismissed considering on [sic] the police and military actions in the area
particularly the CIDG are exerting their efforts and religiously doing their tasked [sic]
in the conduct of its intelligence monitoring and investigation for the early resolution
of this instant case. But rest assured, our office, in coordination with other law-
enforcement agencies in the area, are continuously and religiously conducting our
investigation for the resolution of this case.
On February 4, 2008, the CA issued an ALARM WARNING that Task Force Tagitis did
not appear to be exerting extraordinary efforts in resolving Tagitis disappearance on
the following grounds:28
(1) This Court FOUND that it was only as late as January 28, 2008, after the
hearing, that GEN. JOEL GOLTIAO and COL. AHIRON AJIRIM had requested
for clear photographs when it should have been standard operating
procedure in kidnappings or disappearances that the first agenda was for
the police to secure clear pictures of the missing person, Engr. Morced
Tagitis, for dissemination to all parts of the country and to neighboring
countries. It had been three (3) months since GEN. JOEL GOLTIAO admitted
having been informed on November 5, 2007 of the alleged abduction of
Engr. Morced Tagitis by alleged bad elements of the CIDG. It had been more
than one (1) month since the Writ of Amparo had been issued on December
28, 2007. It had been three (3) weeks when battle formation was ordered
through Task Force Tagitis, on January 17, 2008. It was only on January 28,
2008 when the Task Force Tagitis requested for clear and recent
photographs of the missing person, Engr. Morced Tagitis, despite the Task
Force Tagitis claim that they already had an "all points bulletin", since
November 5, 2007, on the missing person, Engr. Morced Tagitis. How could
 the police look for someone who disappeared if no clear photograph had
been disseminated?
(2) Furthermore, Task Force Tagitis COL. AHIROM AJIRIM informed this Court
that P/Supt KASIM was designated as Col. Ahirom Ajirims replacement in
the latters official designated post. Yet, P/Supt KASIMs subpoena was
returned to this Court unserved. Since this Court was made to understand
that it was P/Supt KASIM who was the petitioners unofficial source of the
military intelligence information that Engr. Morced Tagitis was abducted by
bad elements of the CIDG (par. 15 of the Petition), the close contact
between P/Supt KASIM and Col. Ahirom Ajirim of TASK FORCE TAGITIS
should have ensured the appearance of Col. KASIM in response to this
courts subpoena and COL. KASIM could have confirmed the military
intelligence information that bad elements of the CIDG had abducted Engr.
Morced Tagitis.
Testimonies for the Respondent
On January 7, 2008, the respondent, Mary Jean B. Tagitis, testified on direct
examination that she went to Jolo and Zamboanga in her efforts to locate her
husband. She said that a friend from Zamboanga holding a high position in the
military (whom she did not then identify) gave her information that allowed her to
"specify" her allegations, "particularly paragraph 15 of the petition." 29 This friend
also told her that her husband "[was] in good hands." 30 The respondent also testified
that she sought the assistance of her former boss in Davao City, Land Bank Bajada
Branch Manager Rudy Salvador, who told her that "PNP CIDG is holding [her
husband], Engineer Morced Tagitis." 31 The respondent recounted that she went to
Camp Katitipan in Davao City where she met Col. Julasirim Ahadin Kasim (Col.
Kasim/Sr. Supt Kasim) who read to her and her friends (who were then with her) a
"highly confidential report" that contained the "alleged activities of Engineer Tagitis"
and informed her that her husband was abducted because "he is under custodial
investigation" for being a liaison for "J.I. or Jemaah Islamiah." 32
On January 17, 2008, the respondent on cross-examination testified that she is
Tagitis second wife, and they have been married for thirteen years; Tagitis was
divorced from his first wife.33 She last communicated with her husband on October
29, 2007 at around 7:31 p.m. through text messaging; Tagitis was then on his way to
Jolo, Sulu, from Zamboanga City.34
them the contents of the "highly confidential report" at Camp Katitipan, Davao City.
The respondent further narrated that the report indicated that her husband met with
people belonging to a terrorist group and that he was under custodial investigation.
She then told Col. Kasim that her husband was a diabetic taking maintenance
medication, and asked that the Colonel relay to the persons holding him the need to
give him his medication.38
On February 11, 2008, TASK FORCE TAGITIS submitted two narrative
reports,39 signed by the respondent, detailing her efforts to locate her husband
which led to her meetings with Col. Ancanan of the Philippine Army and Col. Kasim
of the PNP. In her narrative report concerning her meeting with Col. Ancanan, the
respondent recounted, viz:40
On November 11, 2007, we went to Zamboanga City with my friend Mrs. Marydel
Talbin. Our flight from Davao City is 9:00 oclock in the morning; we arrived at
Zamboanga Airport at around 10:00 oclock. We [were] fetched by the two staffs of
Col. Ancanan. We immediately proceed [sic] to West Mindanao Command
(WESTMINCOM).
On that same day, we had private conversation with Col. Ancanan. He interviewed
me and got information about the personal background of Engr. Morced N. Tagitis.
After he gathered all information, he revealed to us the contents of text messages
they got from the cellular phone of the subject Engr. Tagitis. One of the very
important text messages of Engr. Tagitis sent to his daughter Zaynah Tagitis was
that she was not allowed to answer any telephone calls in his condominium unit.
While we were there he did not tell us any information of the whereabouts of Engr.
Tagitis. After the said meeting with Col. Ancanan, he treated us as guests to the city.
His two staffs accompanied us to the mall to purchase our plane ticket going back to
Davao City on November 12, 2007.
When we arrived in Davao City on November 12, 2007 at 9:00 in the morning, Col.
Ancanan and I were discussing some points through phone calls. He assured me that
my husband is alive and hes last looked [sic] in Talipapao, Jolo, Sulu. Yet I did not
believe his given statements of the whereabouts of my husband, because I
contacted some of my friends who have access to the groups of MILF, MNLF and
ASG. I called up Col. Ancanan several times begging to tell me the exact location of
my husband and who held him but he refused.

The respondent narrated that she learned of her husbands disappearance on

While I was in Jolo, Sulu on November 30, 2007, I called him up again because the
October 30, 2007 when her stepdaughter, Zaynah Tagitis (Zaynah), informed her
PNP, Jolo did not give me any information of the whereabouts of my husband. Col.
that she had not heard from her father since the time they arranged to meet in
Ancanan told me that "Sana ngayon alam mo na kung saan ang kinalalagyan ng
Manila on October 31, 2007.35 The respondent explained that it took her a few days
asawa mo." When I was in Zamboanga, I was thinking of dropping by the office of
(or on November 5, 2007) to personally ask Kunnong to report her husbands
Col. Ancanan, but I was hesitant to pay him a visit for the reason that the Chief of
disappearance to the Jolo Police Station, since she had the impression that her
Police of Jolo told me not to contact any AFP officials and he promised me that he
husband could not communicate with her because his cellular phones battery did
can solve the case of my husband (Engr. Tagitis) within nine days.
not have enough power, and that he would call her when he had fully-charged his
cellular phones battery.36
I appreciate the effort of Col. Ancanan on trying to solve the case of my husband
Engr. Morced Tagitis, yet failed to do so.
The respondent also identified the high-ranking military friend, who gave her the
information found in paragraph 15 of her petition, as Lt. Col. Pedro L. Ancanan, Jr
(Col. Ancanan). She met him in Camp Karingal, Zamboanga through her boss. 37 She The respondent also narrated her encounter with Col. Kasim, as follows: 41
also testified that she was with three other people, namely, Mrs. Marydel Martin
Talbin and her two friends from Mati City, Davao Oriental, when Col. Kasim read to
On November 7, 2007, I went to Land Bank of the Philippines, Bajada Branch, Davao
City to meet Mr. Rudy Salvador. I told him that my husband, Engineer Morced Tagitis
was presumed to be abducted in Jolo, Sulu on October 30, 2007. I asked him a favor
to contact his connections in the military in Jolo, Sulu where the abduction of Engr.
Tagitis took place. Mr. Salvador immediately called up Camp Katitipan located in
Davao City looking for high-ranking official who can help me gather reliable
information behind the abduction of subject Engineer Tagitis.
On that same day, Mr. Salvador and my friend, Anna Mendoza, Executive Secretary,
accompanied me to Camp Katitipan to meet Col. Kasim. Mr. Salvador introduced me
to Col. Kasim and we had a short conversation. And he assured me that hell do the
best he can to help me find my husband.
After a few weeks, Mr. Salvador called me up informing me up informing me that I
am to go to Camp Katitipan to meet Col. Kasim for he has an urgent, confidential
information to reveal.
On November 24, 2007, we went back to Camp Katitipan with my three friends. That
was the time that Col. Kasim read to us the confidential report that Engr. Tagitis was
allegedly connected [with] different terrorist [groups], one of which he mentioned in
the report was OMAR PATIK and a certain SANTOS - a Balik Islam.
It is also said that Engr. Tagitis is carrying boxes of medicines for the injured
terrorists as a supplier. These are the two information that I can still remember. It
was written in a long bond paper with PNP Letterhead. It was not shown to us, yet
Col. Kasim was the one who read it for us.
He asked a favor to me that "Please dont quote my Name! Because this is a raw
report." He assured me that my husband is alive and he is in the custody of the
military for custodial investigation. I told him to please take care of my husband
because he has aliments and he recently took insulin for he is a diabetic patient.
In my petition for writ of amparo, I emphasized the information that I got from
Kasim.
On February 11, 2008, the respondent presented Mrs. Marydel Martin Talbin (Mrs.
Talbin) to corroborate her testimony regarding her efforts to locate her husband, in
relation particularly with the information she received from Col. Kasim. Mrs. Talbin
testified that she was with the respondent when she went to Zamboanga to see Col.
Ancanan, and to Davao City at Camp Katitipan to meet Col. Kasim. 42
In Zamboanga, Mrs. Talbin recounted that they met with Col. Ancanan, who told
them that there was a report and that he showed them a series of text messages
from Tagitis cellular phone, which showed that Tagitis and his daughter would meet
in Manila on October 30, 2007.43
She further narrated that sometime on November 24, 2007, she went with the
respondent together with two other companions, namely, Salvacion Serrano and
Mini Leong, to Camp Katitipan to talk to Col. Kasim. 44 The respondent asked Col.
Kasim if he knew the exact location of Engr. Tagitis. Col. Kasim told them that Tagitis
was in good hands, although he was not certain whether he was with the PNP or with
the Armed Forces of the Philippines (AFP). She further recounted that based on the
report Col. Kasim read in their presence, Tagitis was under custodial investigation
because he was being charged with terrorism; Tagitis in fact had been under
surveillance since January 2007 up to the time he was abducted when he was seen
talking to Omar Patik and a certain Santos of Bulacan, a "Balik Islam" charged with
terrorism. Col. Kasim also told them that he could not give a copy of the report
because it was a "raw report."45 She also related that the Col. Kasim did not tell
them exactly where Tagitis was being kept, although he mentioned Talipapao,
Sulu.Prof., lalabas din yan."50 Prof. Matli also emphasized that despite what his
January 4, 2008 affidavit indicated,51 he never told PS Supt. Pingay, or made any
accusation, that Tagitis took away money entrusted to him.52 Prof. Matli confirmed,
however, that that he had received an e-mail report53 from Nuraya Lackian of the
Office of Muslim Affairs in Manila that the IDB was seeking assistance of the office in
locating the funds of IDB scholars deposited in Tagitis personal account. 54
On cross-examination by the respondents counsel, Prof. Matli testified that his
January 4, 2008 affidavit was already prepared when PS Supt. Pingay asked him to
sign it.55 Prof Matli clarified that although he read the affidavit before signing it, he
"was not so much aware of [its] contents." 56
On February 11, 2008, the petitioners presented Col. Kasim to rebut material
portions of the respondents testimony, particularly the allegation that he had stated
that Tagitis was in the custody of either the military or the PNP. 57 Col. Kasim
categorically denied the statements made by the respondent in her narrative report,
specifically: (1) that Tagitis was seen carrying boxes of medicines as supplier for the
injured terrorists; (2) that Tagitis was under the custody of the military, since he
merely said to the respondent that "your husband is in good hands" and is "probably
taken cared of by his armed abductors;" and (3) that Tagitis was under custodial
investigation by the military, the PNP or the CIDG Zamboanga City. 58 Col. Kasim
emphasized that the "informal letter" he received from his informant in Sulu did not
indicate that Tagitis was in the custody of the CIDG.59 He also stressed that the
information he provided to the respondent was merely a "raw report" sourced from
"barangay intelligence" that still needed confirmation and "follow-up" as to its
veracity.60
On cross-examination, Col. Kasim testified that the information he gave the
respondent was given to him by his informant, who was a "civilian asset," through a
letter which he considered as "unofficial."61 Col. Kasim stressed that the letter was
only meant for his "consumption" and not for reading by others.62 He testified further
that he destroyed the letter right after he read it to the respondent and her
companions because "it was not important to him" and also because the information
it contained had no importance in relation with the abduction of Tagitis. 63He
explained that he did not keep the letter because it did not contain any information
regarding the whereabouts of Tagitis and the person(s) responsible for his
abduction.64
In the same hearing on February 11, 2008, the petitioners also presented Police
Senior Superintendent Jose Volpane Pante (Col. Pante), Chief of the CIDG-9, to
disprove the respondents allegation that Tagitis was in the custody of CIDG-
Zamboanga City.65 Col. Pante clarified that the CIDG was the "investigative arm" of
the PNP, and that the CIDG "investigates and prosecutes all cases involving
violations in the Revised Penal Code particularly those considered as heinous
crimes."66 Col. Pante further testified that the allegation that 9 RCIDU personnel were
involved in the disappearance of Tagitis was baseless, since they did not conduct
any operation in Jolo, Sulu before or after Tagitis reported disappearance. 67 Col.
Pante added that the four (4) personnel assigned to the Sulu CIDT had no capability
to conduct any "operation," since they were only assigned to investigate matters
and to monitor the terrorism situation.68 He denied that his office conducted any In this Rule 45 appeal questioning the CAs March 7, 2008 decision, the petitioners
surveillance on Tagitis prior to the latters disappearance.69 Col. Pante further mainly dispute the sufficiency in form and substance of the Amparo petition filed
testified that his investigation of Tagitis disappearance was unsuccessful; the before the CA; the sufficiency of the legal remedies the respondent took before
investigation was "still facing a blank wall" on the whereabouts of Tagitis. 70 petitioning for the writ; the finding that the rights to life, liberty and security of
Tagitis had been violated; the sufficiency of evidence supporting the conclusion that
Tagitis was abducted; the conclusion that the CIDG Zamboanga was responsible for
THE CA RULING
the abduction; and, generally, the ruling that the respondent discharged the burden
of proving the allegations of the petition by substantial evidence.74
On March 7, 2008, the CA issued its decision71 confirming that the disappearance of
Tagitis was an "enforced disappearance" under the United Nations (UN) Declaration
THE COURTS RULING
on the Protection of All Persons from Enforced Disappearances.72 The CA ruled that
when military intelligence pinpointed the investigative arm of the PNP (CIDG) to be
involved in the abduction, the missing-person case qualified as an enforced We do not find the petition meritorious.
disappearance. The conclusion that the CIDG was involved was based on the
respondents testimony, corroborated by her companion, Mrs. Talbin. The CA noted
Sufficiency in Form and Substance
that the information that the CIDG, as the police intelligence arm, was involved in
Tagitis abduction came from no less than the military an independent agency of
government. The CA thus greatly relied on the "raw report" from Col. Kasims asset, In questioning the sufficiency in form and substance of the respondents Amparo
pointing to the CIDGs involvement in Tagitis abduction. The CA held that "raw petition, the petitioners contend that the petition violated Section 5(c), (d), and (e)
reports" from an "asset" carried "great weight" in the intelligence world. It also of the Amparo Rule. Specifically, the petitioners allege that the respondent failed to:
labeled as "suspect" Col. Kasims subsequent and belated retraction of his
statement that the military, the police, or the CIDG was involved in the abduction of
1) allege any act or omission the petitioners committed in violation of
Tagitis.
Tagitis rights to life, liberty and security;

The CA characterized as "too farfetched and unbelievable" and "a bedlam of

2) allege in a complete manner how Tagitis was abducted, the persons
speculation" police theories painting the disappearance as "intentional" on the part
responsible for his disappearance, and the respondents source of
of Tagitis. He had no previous brushes with the law or any record of overstepping the
information;
bounds of any trust regarding money entrusted to him; no student of the IDB
scholarship program ever came forward to complain that he or she did not get his or
her stipend. The CA also found no basis for the police theory that Tagitis was "trying 3) allege that the abduction was committed at the petitioners instructions
to escape from the clutches of his second wife," on the basis of the respondents or with their consent;
testimony that Tagitis was a Muslim who could have many wives under the Muslim
faith, and that there was "no issue" at all when the latter divorced his first wife in
4) implead the members of CIDG regional office in Zamboanga alleged to
order to marry the second. Finally, the CA also ruled out kidnapping for ransom by
have custody over her husband;
the Abu Sayyaf or by the ARMM paramilitary as the cause for Tagitis disappearance,
since the respondent, the police and the military noted that there was no
acknowledgement of Tagitis abduction or demand for payment of ransom the 5) attach the affidavits of witnesses to support her accusations;
usual modus operandi of these terrorist groups.
6) allege any action or inaction attributable to the petitioners in the
Based on these considerations, the CA thus extended the privilege of the writ to performance of their duties in the investigation of Tagitis disappearance;
Tagitis and his family, and directed the CIDG Chief, Col. Jose Volpane Pante, PNP and
Chief Avelino I. Razon, Task Force Tagitis heads Gen. Joel Goltiao and Col. Ahiron
Ajirim, and PACER Chief Sr. Supt. Leonardo A. Espina to exert extraordinary diligence
7) specify what legally available efforts she took to determine the fate or
and efforts to protect the life, liberty and security of Tagitis, with the obligation to
whereabouts of her husband.
provide monthly reports of their actions to the CA. At the same time, the CA
dismissed the petition against the then respondents from the military, Lt. Gen
Alexander Yano and Gen. Ruben Rafael, based on the finding that it was PNP-CIDG, A petition for the Writ of Amparo shall be signed and verified and shall allege,
not the military, that was involved. among others (in terms of the portions the petitioners cite): 75

On March 31, 2008, the petitioners moved to reconsider the CA decision, but the CA
denied the motion in its Resolution of April 9, 2008. 73
THE PETITION
(c) The right to life, liberty and security of the aggrieved party violated or
threatened with violation by an unlawful act or omission of the
respondent, and how such threat or violation is committed with the
attendant circumstances detailed in supporting affidavits;
(d) The investigation conducted, if any, specifying the names, personal
circumstances, and addresses of the investigating authority or individuals,
as well as the manner and conduct of the investigation, together with any
report;
(e) The actions and recourses taken by the petitioner to determine the fate or
whereabouts of the aggrieved party and the identity of the person responsible for
the threat, act or omission; and
The framers of the Amparo Rule never intended Section 5(c) to be complete in every
detail in stating the threatened or actual violation of a victims rights. As in any
other initiatory pleading, the pleader must of course state the ultimate facts
constituting the cause of action, omitting the evidentiary details. 76 In an Amparo
petition, however, this requirement must be read in light of the nature and purpose
of the proceeding, which addresses a situation of uncertainty; the petitioner may not
be able to describe with certainty how the victim exactly disappeared, or who
actually acted to kidnap, abduct or arrest him or her, or where the victim is
detained, because these information may purposely be hidden or covered up by
those who caused the disappearance. In this type of situation, to require the level of
specificity, detail and precision that the petitioners apparently want to read into the
Amparo Rule is to make this Rule a token gesture of judicial concern for violations of
the constitutional rights to life, liberty and security.
To read the Rules of Court requirement on pleadings while addressing the unique
Amparo situation, the test in reading the petition should be to determine whether it
contains the details available to the petitioner under the circumstances, while
presenting a cause of action showing a violation of the victims rights to life, liberty
and security through State or private party action. The petition should likewise be
read in its totality, rather than in terms of its isolated component parts, to determine
if the required elements namely, of the disappearance, the State or private action,
and the actual or threatened violations of the rights to life, liberty or security are
present.
If a defect can at all be attributed to the petition, this defect is its lack of supporting
affidavit, as required by Section 5(c) of the Amparo Rule. Owing to the summary
nature of the proceedings for the writ and to facilitate the resolution of the petition,
the Amparo Rule incorporated the requirement for supporting affidavits, with the
annotation that these can be used as the affiants direct testimony. 78 This
requirement, however, should not be read as an absolute one that necessarily leads
to the dismissal of the petition if not strictly followed. Where, as in this case, the
petitioner has substantially complied with the requirement by submitting a verified
petition sufficiently detailing the facts relied upon, the strict need for the sworn
statement that an affidavit represents is essentially fulfilled. We note that the failure
to attach the required affidavits was fully cured when the respondent and her
witness (Mrs. Talbin) personally testified in the CA hearings held on January 7 and 17
and February 18, 2008 to swear to and flesh out the allegations of the petition. Thus,
even on this point, the petition cannot be faulted.
Section 5(d) of the Amparo Rule requires that prior investigation of an alleged
disappearance must have been made, specifying the manner and results of the
investigation. Effectively, this requirement seeks to establish at the earliest
opportunity the level of diligence the public authorities undertook in relation with
the reported disappearance.79
We reject the petitioners argument that the respondents petition did not comply
with the Section 5(d) requirements of the Amparo Rule, as the petition specifies in its
paragraph 11 that Kunnong and his companions immediately reported Tagitis
disappearance to the police authorities in Jolo, Sulu as soon as they were relatively
certain that he indeed had disappeared. The police, however, gave them the "ready
answer" that Tagitis could have been abducted by the Abu Sayyaf group or other
anti-government groups. The respondent also alleged in paragraphs 17 and 18 of
her petition that she filed a "complaint" with the PNP Police Station in Cotobato and
in Jolo, but she was told of "an intriguing tale" by the police that her husband was
having "a good time with another woman." The disappearance was alleged to have
been reported, too, to no less than the Governor of the ARMM, followed by the
respondents personal inquiries that yielded the factual bases for her petition. 80

In the present case, the petition amply recites in its paragraphs 4 to 11 the
These allegations, to our mind, sufficiently specify that reports have been made to
circumstances under which Tagitis suddenly dropped out of sight after engaging in
the police authorities, and that investigations should have followed. That the petition
normal activities, and thereafter was nowhere to be found despite efforts to locate
did not state the manner and results of the investigation that the Amparo Rule
him. The petition alleged, too, under its paragraph 7, in relation to paragraphs 15
requires, but rather generally stated the inaction of the police, their failure to
and 16, that according to reliable information, police operatives were the
perform their duty to investigate, or at the very least, their reported failed efforts,
perpetrators of the abduction. It also clearly alleged how Tagitis rights to life, liberty
should not be a reflection on the completeness of the petition. To require the
and security were violated when he was "forcibly taken and boarded on a motor
respondent to elaborately specify the names, personal circumstances, and
vehicle by a couple of burly men believed to be police intelligence operatives," and
addresses of the investigating authority, as well the manner and conduct of the
then taken "into custody by the respondents police intelligence operatives since
investigation is an overly strict interpretation of Section 5(d), given the respondents
October 30, 2007, specifically by the CIDG, PNP Zamboanga City, x x x held against
frustrations in securing an investigation with meaningful results. Under these
his will in an earnest attempt of the police to involve and connect [him] with
circumstances, we are more than satisfied that the allegations of the petition on the
different terrorist groups."77
investigations undertaken are sufficiently complete for purposes of bringing the
petition forward.
These allegations, in our view, properly pleaded ultimate facts within the pleaders
knowledge about Tagitis disappearance, the participation by agents of the State in
Section 5(e) is in the Amparo Rule to prevent the use of a petition that otherwise is
this disappearance, the failure of the State to release Tagitis or to provide sufficient
not supported by sufficient allegations to constitute a proper cause of action as a
information about his whereabouts, as well as the actual violation of his right to
means to "fish" for evidence.81 The petitioners contend that the respondents
liberty. Thus, the petition cannot be faulted for any failure in its statement of a cause
petition did not specify what "legally available efforts were taken by the
of action.
respondent," and that there was an "undue haste" in the filing of the petition when,
instead of cooperating with authorities, the respondent immediately invoked the
Courts intervention.
We do not see the respondents petition as the petitioners view it.
Section 5(e) merely requires that the Amparo petitioner (the respondent in the
present case) allege "the actions and recourses taken to determine the fate or
whereabouts of the aggrieved party and the identity of the person responsible for
the threat, act or omission." The following allegations of the respondents petition
duly outlined the actions she had taken and the frustrations she encountered, thus
compelling her to file her petition.
xxxx
7. Soon after the student left the room, Engr. Tagitis went out of the pension house
to take his early lunch but while out on the street, a couple of burly men believed to
be police intelligence operatives, forcibly took him and boarded the latter on a motor
vehicle then sped away without the knowledge of his student, Arsimin Kunnong;
xxxx
10. When Kunnong could not locate Engr. Tagitis, the former sought the help of
another IDB scholar and reported the matter to the local police agency;
11. Arsimin Kunnong, including his friends and companions in Jolo, exerted efforts in
trying to locate the whereabouts of Engr. Tagitis and when he reported the matter to
the police authorities in Jolo, he was immediately given a ready answer that Engr.
Tagitis could [have been] abducted by the Abu Sayyaf group and other groups
known to be fighting against the government;
12. Being scared with these suggestions and insinuations of the police officers,
Kunnong reported the matter to the [respondent](wife of Engr. Tagitis) by phone and
other responsible officers and coordinators of the IDB Scholarship Programme in the
Philippines who alerted the office of the Governor of ARMM who was then preparing
to attend the OIC meeting in Jeddah, Saudi Arabia;
13. [The respondent], on the other hand, approached some of her co-employees
with the Land Bank in Digos branch, Digos City, Davao del Sur, who likewise sought
help from some of their friends in the military who could help them find/locate the
whereabouts of her husband;
xxxx
15. According to reliable information received by the [respondent], subject Engr.
Tagitis is in the custody of police intelligence operatives, specifically with the CIDG,
PNP Zamboanga City, being held against his will in an earnest attempt of the police
to involve and connect Engr. Tagitis with the different terrorist groups;
xxxx
17. [The respondent] filed her complaint with the PNP Police Station at the ARMM in
Cotobato and in Jolo, as suggested by her friends, seeking their help to find her
husband, but [the respondents] request and pleadings failed to produce any
positive results
xxxx
20. Lately, [respondent] was again advised by one of the [petitioners] to go to the
ARMM Police Headquarters again in Cotobato City and also to the different Police
Headquarters including the police headquarters in Davao City, in Zamboanga City, in
Jolo, and in Camp Crame, Quezon City, and all these places have been visited by the
[respondent] in search for her husband, which entailed expenses for her trips to
these places thereby resorting her to borrowings and beggings [sic] for financial help
from friends and relatives only to try complying to the different suggestions of these
police officers, despite of which, her efforts produced no positive results up to the
present time;
xxxx
25. [The respondent] has exhausted all administrative avenues and remedies but to
no avail, and under the circumstances, [respondent] has no other plain, speedy and
adequate remedy to protect and get the release of subject Engr. Morced Tagitis from
the illegal clutches of [the petitioners], their intelligence operatives and the like
which are in total violation of the subjects human and constitutional rights, except
the issuance of a WRIT OF AMPARO.
Based on these considerations, we rule that the respondents petition for the Writ of
Amparo is sufficient in form and substance and that the Court of Appeals had every
reason to proceed with its consideration of the case.
The Desaparecidos
The present case is one of first impression in the use and application of the Rule on
the Writ of Amparo in an enforced disappearance situation. For a deeper
appreciation of the application of this Rule to an enforced disappearance situation, a
brief look at the historical context of the writ and enforced disappearances would be
very helpful.
The phenomenon of enforced disappearance arising from State action first attracted
notice in Adolf Hitlers Nact und Nebel Erlass or Night and Fog Decree of December
7, 1941.82 The Third Reichs Night and Fog Program, a State policy, was directed at
persons in occupied territories "endangering German security"; they were
transported secretly to Germany where they disappeared without a trace. In order to
maximize the desired intimidating effect, the policy prohibited government officials
from providing information about the fate of these targeted persons. 83
In the mid-1970s, the phenomenon of enforced disappearances resurfaced, shocking
and outraging the world when individuals, numbering anywhere from 6,000 to
24,000, were reported to have "disappeared" during the military regime in
Argentina. Enforced disappearances spread in Latin America, and the issue became
an international concern when the world noted its widespread and systematic use by
State security forces in that continent under Operation Condor 84 and during the Dirty
War85 in the 1970s and 1980s. The escalation of the practice saw political activists
secretly arrested, tortured, and killed as part of governments counter-insurgency
campaigns. As this form of political brutality became routine elsewhere in the
continent, the Latin American media standardized the term "disappearance" to
describe the phenomenon. The victims of enforced disappearances were called the
"desaparecidos,"86 which literally means the "disappeared ones." 87 In general, there
are three different kinds of "disappearance" cases:
1) those of people arrested without witnesses or without positive
identification of the arresting agents and are never found again;
2) those of prisoners who are usually arrested without an appropriate
warrant and held in complete isolation for weeks or months while their
families are unable to discover their whereabouts and the military
authorities deny having them in custody until they eventually reappear in
one detention center or another; and
3) those of victims of "salvaging" who have disappeared until their lifeless
bodies are later discovered.88
In the Philippines, enforced disappearances generally fall within the first two
categories,89 and 855 cases were recorded during the period of martial law from
1972 until 1986. Of this number, 595 remained missing, 132 surfaced alive and 127
were found dead. During former President Corazon C. Aquinos term, 820 people
were reported to have disappeared and of these, 612 cases were documented. Of
this number, 407 remain missing, 108 surfaced alive and 97 were found dead. The
number of enforced disappearances dropped during former President Fidel V. Ramos
term when only 87 cases were reported, while the three-year term of former
President Joseph E. Estrada yielded 58 reported cases. KARAPATAN, a local non-
governmental organization, reports that as of March 31, 2008, the records show that
there were a total of 193 victims of enforced disappearance under incumbent
President Gloria M. Arroyos administration. The Commission on Human Rights
records show a total of 636 verified cases of enforced disappearances from 1985 to
1993. Of this number, 406 remained missing, 92 surfaced alive, 62 were found dead,
and 76 still have undetermined status.90 Currently, the United Nations Working
Group on Enforced or Involuntary Disappearance91 reports 619 outstanding cases of
enforced or involuntary disappearances covering the period December 1, 2007 to
November 30, 2008.92
Enforced Disappearances
Under Philippine Law
The Amparo Rule expressly provides that the "writ shall cover extralegal killings and
enforced disappearances or threats thereof."93 We note that although the writ
specifically covers "enforced disappearances," this concept is neither defined nor
penalized in this jurisdiction. The records of the Supreme Court Committee on the
Revision of Rules (Committee) reveal that the drafters of the Amparo Rule initially
considered providing an elemental definition of the concept of enforced
disappearance:94
JUSTICE MARTINEZ: I believe that first and foremost we should come up or formulate
a specific definition [for] extrajudicial killings and enforced disappearances. From
that definition, then we can proceed to formulate the rules, definite rules concerning
the same.
CHIEF JUSTICE PUNO: As things stand, there is no law penalizing extrajudicial
killings and enforced disappearances so initially also we have to [come up with]
the nature of these extrajudicial killings and enforced disappearances [to be covered
by the Rule] because our concept of killings and disappearances will define the
jurisdiction of the courts. So well have to agree among ourselves about the nature
of killings and disappearances for instance, in other jurisdictions, the rules only
cover state actors. That is an element incorporated in their concept of extrajudicial
killings and enforced disappearances. In other jurisdictions, the concept includes
acts and omissions not only of state actors but also of non state actors. Well, more
specifically in the case of the Philippines for instance, should these rules include the
killings, the disappearances which may be authored by let us say, the NPAs or the
leftist organizations and others. So, again we need to define the nature of the
extrajudicial killings and enforced disappearances that will be covered by these
rules. [Emphasis supplied] 95
In the end, the Committee took cognizance of several bills filed in the House of
Representatives96 and in the Senate97 on extrajudicial killings and enforced
disappearances, and resolved to do away with a clear textual definition of these
terms in the Rule. The Committee instead focused on the nature and scope of the
concerns within its power to address and provided the appropriate remedy therefor,
mindful that an elemental definition may intrude into the ongoing legislative
efforts.98
As the law now stands, extra-judicial killings and enforced disappearances in this
jurisdiction are not crimes penalized separately from the component criminal acts
undertaken to carry out these killings and enforced disappearances and are now
penalized under the Revised Penal Code and special laws.99 The simple reason is that
the Legislature has not spoken on the matter; the determination of what acts are
criminal and what the corresponding penalty these criminal acts should carry are
matters of substantive law that only the Legislature has the power to enact under
the countrys constitutional scheme and power structure.
Even without the benefit of directly applicable substantive laws on extra-judicial
killings and enforced disappearances, however, the Supreme Court is not powerless
to act under its own constitutional mandate to promulgate "rules concerning the
protection and enforcement of constitutional rights, pleading, practice and
procedure in all courts,"100 since extrajudicial killings and enforced disappearances,
by their nature and purpose, constitute State or private party violation of the
constitutional rights of individuals to life, liberty and security. Although the Courts
power is strictly procedural and as such does not diminish, increase or modify
substantive rights, the legal protection that the Court can provide can be very
meaningful through the procedures it sets in addressing extrajudicial killings and
enforced disappearances. The Court, through its procedural rules, can set the
procedural standards and thereby directly compel the public authorities to act on
actual or threatened violations of constitutional rights. To state the obvious, judicial
intervention can make a difference even if only procedurally in a situation when
the very same investigating public authorities may have had a hand in the
threatened or actual violations of constitutional rights.
Lest this Court intervention be misunderstood, we clarify once again that we do not
rule on any issue of criminal culpability for the extrajudicial killing or enforced
disappearance. This is an issue that requires criminal action before our criminal
courts based on our existing penal laws. Our intervention is in determining whether
an enforced disappearance has taken place and who is responsible or accountable
for this disappearance, and to define and impose the appropriate remedies to
address it. The burden for the public authorities to discharge in these situations,
under the Rule on the Writ of Amparo, is twofold. The first is to ensure that all efforts
at disclosure and investigation are undertaken under pain of indirect contempt from
this Court when governmental efforts are less than what the individual situations
require. The second is to address the disappearance, so that the life of the victim is
preserved and his or her liberty and security restored. In these senses, our orders
and directives relative to the writ are continuing efforts that are not truly terminated
until the extrajudicial killing or enforced disappearance is fully addressed by the
complete determination of the fate and the whereabouts of the victim, by the
production of the disappeared person and the restoration of his or her liberty and
security, and, in the proper case, by the commencement of criminal action against
the guilty parties.
Enforced Disappearance
Under International Law
From the International Law perspective, involuntary or enforced disappearance is
considered a flagrant violation of human rights.101 It does not only violate the right to
life, liberty and security of the desaparecido; it affects their families as well through
the denial of their right to information regarding the circumstances of the
disappeared family member. Thus, enforced disappearances have been said to be "a
double form of torture," with "doubly paralyzing impact for the victims," as they "are
kept ignorant of their own fates, while family members are deprived of knowing the
whereabouts of their detained loved ones" and suffer as well the serious economic
hardship and poverty that in most cases follow the disappearance of the household
breadwinner.102
The UN General Assembly first considered the issue of "Disappeared Persons" in
December 1978 under Resolution 33/173. The Resolution expressed the General
Assemblys deep concern arising from "reports from various parts of the world
relating to enforced or involuntary disappearances," and requested the "UN
Commission on Human Rights to consider the issue of enforced disappearances with
a view to making appropriate recommendations." 103
In 1992, in response to the reality that the insidious practice of enforced
disappearance had become a global phenomenon, the UN General Assembly
adopted the Declaration on the Protection of All Persons from Enforced
Disappearance (Declaration).104 This Declaration, for the first time, provided in its
third preambular clause a working description of enforced disappearance, as follows:
Deeply concerned that in many countries, often in a persistent manner, enforced
disappearances occur, in the sense that persons are arrested, detained or abducted
against their will or otherwise deprived of their liberty by officials of different
branches or levels of Government, or by organized groups or private individuals
acting on behalf of, or with the support, direct or indirect, consent or acquiescence
of the Government, followed by a refusal to disclose the fate or whereabouts of the
persons concerned or a refusal to acknowledge the deprivation of their liberty, which
places such persons outside the protection of the law. [Emphasis supplied]
Fourteen years after (or on December 20, 2006), the UN General Assembly adopted
the International Convention for the Protection of All Persons from Enforced
Disappearance (Convention).105 The Convention was opened for signature in Paris,
France on February 6, 2007.106 Article 2 of the Convention defined enforced
disappearance as follows:
For the purposes of this Convention, "enforced disappearance" is considered to be
the arrest, detention, abduction or any other form of deprivation of liberty by agents
of the State or by persons or groups of persons acting with the authorization,
support or acquiescence of the State, followed by a refusal to acknowledge the
deprivation of liberty or by concealment of the fate or whereabouts of the
disappeared person, which place such a person outside the protection of the law.
[Emphasis supplied]
The Convention is the first universal human rights instrument to assert that there is
a right not to be subject to enforced disappearance107 and that this right is non-
derogable.108 It provides that no one shall be subjected to enforced disappearance
under any circumstances, be it a state of war, internal political instability, or any
other public emergency. It obliges State Parties to codify enforced disappearance as
an offense punishable with appropriate penalties under their criminal law.109 It also
recognizes the right of relatives of the disappeared persons and of the society as a
whole to know the truth on the fate and whereabouts of the disappeared and on the
progress and results of the investigation.110 Lastly, it classifies enforced
disappearance as a continuing offense, such that statutes of limitations shall not
apply until the fate and whereabouts of the victim are established.111
Binding Effect of UN
Action on the Philippines
To date, the Philippines has neither signed nor ratified the Convention, so that the
country is not yet committed to enact any law penalizing enforced disappearance as
a crime. The absence of a specific penal law, however, is not a stumbling block for
action from this Court, as heretofore mentioned; underlying every enforced
disappearance is a violation of the constitutional rights to life, liberty and security
that the Supreme Court is mandated by the Constitution to protect through its rule-
making powers.
Separately from the Constitution (but still pursuant to its terms), the Court is guided,
in acting on Amparo cases, by the reality that the Philippines is a member of the UN,
bound by its Charter and by the various conventions we signed and ratified,
particularly the conventions touching on humans rights. Under the UN Charter, the
Philippines pledged to "promote universal respect for, and observance of, human
rights and fundamental freedoms for all without distinctions as to race, sex,
language or religion."112 Although no universal agreement has been reached on the
precise extent of the "human rights and fundamental freedoms" guaranteed to all by
the Charter,113 it was the UN itself that issued the Declaration on enforced
disappearance, and this Declaration states:114
Any act of enforced disappearance is an offence to dignity. It is condemned as
a denial of the purposes of the Charter of the United Nations and as a grave and
flagrant violation of human rights and fundamental freedoms proclaimed in the
Universal Declaration of Human Rights and reaffirmed and developed in
international instruments in this field. [Emphasis supplied]
As a matter of human right and fundamental freedom and as a policy matter made
in a UN Declaration, the ban on enforced disappearance cannot but have its effects
on the country, given our own adherence to "generally accepted principles of
international law as part of the law of the land." 115
In the recent case of Pharmaceutical and Health Care Association of the Philippines
v. Duque III,116 we held that:
Under the 1987 Constitution, international law can become part of the sphere of
domestic law either by transformation or incorporation. The transformation
method requires that an international law be transformed into a domestic law
through a constitutional mechanism such as local legislation. The incorporation
method applies when, by mere constitutional declaration, international law
is deemed to have the force of domestic law. [Emphasis supplied]
We characterized "generally accepted principles of international law" as norms of
general or customary international law that are binding on all states. We held
further:117
[G]enerally accepted principles of international law, by virtue of the incorporation
clause of the Constitution, form part of the laws of the land even if they do not
derive from treaty obligations. The classical formulation in international law sees
those customary rules accepted as binding result from the combination [of] two
elements: the established, widespread, and consistent practice on the part of States;
and a psychological element known as the opinion juris sive necessitates (opinion
as to law or necessity). Implicit in the latter element is a belief that the practice in
question is rendered obligatory by the existence of a rule of law requiring it.
[Emphasis in the original]
The most widely accepted statement of sources of international law today is Article
38(1) of the Statute of the International Court of Justice, which provides that the
Court shall apply "international custom, as evidence of a general practice accepted
as law."118 The material sources of custom include State practice, State legislation,
international and national judicial decisions, recitals in treaties and other
international instruments, a pattern of treaties in the same form, the practice of
international organs, and resolutions relating to legal questions in the UN General
Assembly.119 Sometimes referred to as "evidence" of international law,120 these
sources identify the substance and content of the obligations of States and are
indicative of the "State practice" and "opinio juris" requirements of international
law.121 We note the following in these respects:
First, barely two years from the adoption of the Declaration, the Organization of
American States (OAS) General Assembly adopted the Inter-American Convention on
Enforced Disappearance of Persons in June 1994.122 State parties undertook under
this Convention "not to practice, permit, or tolerate the forced disappearance of
persons, even in states of emergency or suspension of individual
guarantees."123 One of the key provisions includes the States obligation to enact the
crime of forced disappearance in their respective national criminal laws and to
establish jurisdiction over such cases when the crime was committed within their
jurisdiction, when the victim is a national of that State, and "when the alleged
criminal is within its territory and it does not proceed to extradite him," which can be
interpreted as establishing universal jurisdiction among the parties to the Inter-
American Convention.124 At present, Colombia, Guatemala, Paraguay, Peru and
Venezuela have enacted separate laws in accordance with the Inter-American
Convention and have defined activities involving enforced disappearance to be
criminal.1251avvphi1
Second, in Europe, the European Convention on Human Rights has no explicit
provision dealing with the protection against enforced disappearance. The European
Court of Human Rights (ECHR), however, has applied the Convention in a way that
provides ample protection for the underlying rights affected by enforced
disappearance through the Conventions Article 2 on the right to life; Article 3 on the
prohibition of torture; Article 5 on the right to liberty and security; Article 6,
paragraph 1 on the right to a fair trial; and Article 13 on the right to an effective
remedy. A leading example demonstrating the protection afforded by the European
Convention is Kurt v. Turkey,126 where the ECHR found a violation of the right to
liberty and security of the disappeared person when the applicants son disappeared
after being taken into custody by Turkish forces in the Kurdish village of Agilli in
November 1993. It further found the applicant (the disappeared persons mother) to
be a victim of a violation of Article 3, as a result of the silence of the authorities and
the inadequate character of the investigations undertaken. The ECHR also saw the
lack of any meaningful investigation by the State as a violation of Article 13. 127
Third, in the United States, the status of the prohibition on enforced disappearance
as part of customary international law is recognized in the most recent edition of
Restatement of the Law: The Third,128 which provides that "[a] State violates
international law if, as a matter of State policy, it practices, encourages, or
condones (3) the murder or causing the disappearance of individuals." 129 We
significantly note that in a related matter that finds close identification with enforced
disappearance the matter of torture the United States Court of Appeals for the
Second Circuit Court held in Filartiga v. Pena-Irala 130 that the prohibition on torture
had attained the status of customary international law. The court further elaborated
on the significance of UN declarations, as follows:
These U.N. declarations are significant because they specify with great precision the
obligations of member nations under the Charter. Since their adoption, "(m)embers
can no longer contend that they do not know what human rights they promised in
the Charter to promote." Moreover, a U.N. Declaration is, according to one
authoritative definition, "a formal and solemn instrument, suitable for rare occasions
when principles of great and lasting importance are being enunciated." Accordingly,
it has been observed that the Universal Declaration of Human Rights "no longer fits
into the dichotomy of binding treaty against non-binding pronouncement,' but is
rather an authoritative statement of the international community." Thus, a
Declaration creates an expectation of adherence, and "insofar as the expectation is
gradually justified by State practice, a declaration may by custom become
recognized as laying down rules binding upon the States." Indeed, several
commentators have concluded that the Universal Declaration has become, in toto, a
part of binding, customary international law. [Citations omitted]
Fourth, in interpreting Article 2 (right to an effective domestic remedy) of the
International Convention on Civil and Political Rights (ICCPR), to which the
Philippines is both a signatory and a State Party, the UN Human Rights Committee,
under the Office of the High Commissioner for Human Rights, has stated that the act
of enforced disappearance violates Articles 6 (right to life), 7 (prohibition on torture,
cruel, inhuman or degrading treatment or punishment) and 9 (right to liberty and
security of the person) of the ICCPR, and the act may also amount to a crime against
humanity.131
Fifth, Article 7, paragraph 1 of the 1998 Rome Statute establishing the International
Criminal Court (ICC) also covers enforced disappearances insofar as they are defined
as crimes against humanity,132 i.e., crimes "committed as part of a widespread or
systematic attack against any civilian population, with knowledge of the attack."
While more than 100 countries have ratified the Rome Statute,133 the Philippines is
still merely a signatory and has not yet ratified it. We note that Article 7(1) of the
Rome Statute has been incorporated in the statutes of other international and hybrid
tribunals, including Sierra Leone Special Court, the Special Panels for Serious Crimes
in Timor-Leste, and the Extraordinary Chambers in the Courts of Cambodia. 134 In
addition, the implementing legislation of State Parties to the Rome Statute of the ICC
has given rise to a number of national criminal provisions also covering enforced
disappearance.135
While the Philippines is not yet formally bound by the terms of the Convention on
enforced disappearance (or by the specific terms of the Rome Statute) and has not
formally declared enforced disappearance as a specific crime, the above recital
shows that enforced disappearance as a State practice has been repudiated by the
international community, so that the ban on it is now a generally accepted principle
of international law, which we should consider a part of the law of the land, and
which we should act upon to the extent already allowed under our laws and the
international conventions that bind us.
The following civil or political rights under the Universal Declaration of Human
Rights, the ICCPR and the International Convention on Economic, Social and Cultural
Rights (ICESR) may be infringed in the course of a disappearance: 136
1) the right to recognition as a person before the law;
2) the right to liberty and security of the person;
3) the right not to be subjected to torture and other cruel, inhuman or
degrading treatment or punishment;
4) the right to life, when the disappeared person is killed;
5) the right to an identity;
6) the right to a fair trial and to judicial guarantees;
7) the right to an effective remedy, including reparation and compensation;
8) the right to know the truth regarding the circumstances of a
disappearance.
9) the right to protection and assistance to the family;
10) the right to an adequate standard of living;
11) the right to health; and
12) the right to education [Emphasis supplied]
Article 2 of the ICCPR, which binds the Philippines as a state party, provides:
Article 2
3. Each State Party to the present Covenant undertakes:
(a) To ensure that any person whose rights or freedoms as herein
recognized are violated shall have an effective remedy, notwithstanding
that the violation has been committed by persons acting in an official
capacity;
(b) To ensure that any person claiming such a remedy shall have his right
thereto determined by competent judicial, administrative or legislative
authorities, or by any other competent authority provided for by the legal
system of the State, and to develop the possibilities of judicial remedy;
(c) To ensure that the competent authorities shall enforce such remedies
when granted. [Emphasis supplied]
In General Comment No. 31, the UN Human Rights Committee opined that the right
to an effective remedy under Article 2 of the ICCPR includes the obligation of the
State to investigate ICCPR violations promptly, thoroughly, and effectively, viz: 137
15. Article 2, paragraph 3, requires that in addition to effective protection of
Covenant rights, States Parties must ensure that individuals also have accessible
and effective remedies to vindicate those rights The Committee attaches
importance to States Parties' establishing appropriate judicial and administrative
mechanisms for addressing claims of rights violations under domestic law
Administrative mechanisms are particularly required to give effect to the general
obligation to investigate allegations of violations promptly, thoroughly and
effectively through independent and impartial bodies. A failure by a State Party to
investigate allegations of violations could in and of itself give rise to a separate
breach of the Covenant. Cessation of an ongoing violation is an essential element of
the right to an effective remedy. [Emphasis supplied]
The UN Human Rights Committee further stated in the same General Comment No.
31 that failure to investigate as well as failure to bring to justice the perpetrators of
ICCPR violations could in and of itself give rise to a separate breach of the Covenant,
thus:138
18. Where the investigations referred to in paragraph 15 reveal violations of certain
Covenant rights, States Parties must ensure that those responsible are brought to
justice. As with failure to investigate, failure to bring to justice perpetrators of such
violations could in and of itself give rise to a separate breach of the Covenant. These
obligations arise notably in respect of those violations recognized as criminal under
either domestic or international law, such as torture and similar cruel, inhuman and
degrading treatment (article 7), summary and arbitrary killing (article 6) and
enforced disappearance (articles 7 and 9 and, frequently, 6). Indeed, the problem of
impunity for these violations, a matter of sustained concern by the Committee, may
well be an important contributing element in the recurrence of the violations. When
committed as part of a widespread or systematic attack on a civilian population,
these violations of the Covenant are crimes against humanity (see Rome Statute of
the International Criminal Court, article 7). [Emphasis supplied]
In Secretary of National Defense v. Manalo, 139 this Court, in ruling that the right to
security of persons is a guarantee of the protection of ones right by the
government, held that:
The right to security of person in this third sense is a corollary of the policy that the These difficulties largely arise because the State itself the party whose
State "guarantees full respect for human rights" under Article II, Section 11 of the involvement is alleged investigates enforced disappearances. Past experiences in
1987 Constitution. As the government is the chief guarantor of order and security, other jurisdictions show that the evidentiary difficulties are generally threefold.
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
First, there may be a deliberate concealment of the identities of the direct
especially when they are under threat. Protection includes conducting effective
perpetrators.141 Experts note that abductors are well organized, armed and usually
investigations, organization of the government apparatus to extend
members of the military or police forces, thus:
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 The victim is generally arrested by the security forces or by persons acting under
investigation in the Velasquez Rodriguez Case, viz: some form of governmental authority. In many countries the units that plan,
implement and execute the program are generally specialized, highly-secret bodies
within the armed or security forces. They are generally directed through a separate,
(The duty to investigate) must be undertaken in a serious manner and not as a mere
clandestine chain of command, but they have the necessary credentials to avoid or
formality preordained to be ineffective. An investigation must have an objective and
prevent any interference by the "legal" police forces. These authorities take their
be assumed by the State as its own legal duty, not as a step taken by private
victims to secret detention centers where they subject them to interrogation and
interests that depends upon the initiative of the victim or his family or upon their
torture without fear of judicial or other controls.142
offer of proof, without an effective search for the truth by the government.
[Emphasis supplied]
In addition, there are usually no witnesses to the crime; if there are, these witnesses
are usually afraid to speak out publicly or to testify on the disappearance out of fear
Manalo significantly cited Kurt v. Turkey,140 where the ECHR interpreted the "right to
for their own lives.143 We have had occasion to note this difficulty in Secretary of
security" not only as a prohibition on the State against arbitrary deprivation of
Defense v. Manalo144 when we acknowledged that "where powerful military officers
liberty, but also as the imposition of a positive duty to afford protection to the right
are implicated, the hesitation of witnesses to surface and testify against them
to liberty. The Court notably quoted the following ECHR ruling:
comes as no surprise."

[A]ny deprivation of liberty must not only have been effected in conformity with the
Second, deliberate concealment of pertinent evidence of the disappearance is a
substantive and procedural rules of national law but must equally be in keeping with
distinct possibility; the central piece of evidence in an enforced disappearance i.e.,
the very purpose of Article 5, namely to protect the individual from arbitrariness...
the corpus delicti or the victims body is usually concealed to effectively thwart the
Having assumed control over that individual, it is incumbent on the authorities to
start of any investigation or the progress of one that may have begun. 145 The
account for his or her whereabouts. For this reason, Article 5 must be seen as
problem for the victims family is the States virtual monopoly of access to pertinent
requiring the authorities to take effective measures to safeguard against the risk of
evidence. The Inter-American Court of Human Rights (IACHR) observed in the
disappearance and to conduct a prompt effective investigation into an arguable
landmark case of Velasquez Rodriguez146 that inherent to the practice of enforced
claim that a person has been taken into custody and has not been seen since.
disappearance is the deliberate use of the States power to destroy the pertinent
[Emphasis supplied]
evidence. The IACHR described the concealment as a clear attempt by the State to
commit the perfect crime.147
These rulings effectively serve as the backdrop for the Rule on the Writ of Amparo,
which the Court made effective on October 24, 2007. Although the Amparo Rule still
Third is the element of denial; in many cases, the State authorities deliberately deny
has gaps waiting to be filled through substantive law, as evidenced primarily by the
that the enforced disappearance ever occurred. 148 "Deniability" is central to the
lack of a concrete definition of "enforced disappearance," the materials cited above,
policy of enforced disappearances, as the absence of any proven disappearance
among others, provide ample guidance and standards on how, through the medium
makes it easier to escape the application of legal standards ensuring the victims
of the Amparo Rule, the Court can provide remedies and protect the constitutional
human rights.149 Experience shows that government officials typically respond to
rights to life, liberty and security that underlie every enforced disappearance.
requests for information about desaparecidos by saying that they are not aware of
any disappearance, that the missing people may have fled the country, or that their
Evidentiary Difficulties Posed names have merely been invented.150
by the Unique Nature of an
Enforced Disappearance
These considerations are alive in our minds, as these are the difficulties we confront,
in one form or another, in our consideration of this case.
Before going into the issue of whether the respondent has discharged the burden of
proving the allegations of the petition for the Writ of Amparo by the degree of proof
Evidence and Burden of Proof in
required by the Amparo Rule, we shall discuss briefly the unique evidentiary
Enforced Disappearances Cases
difficulties presented by enforced disappearance cases; these difficulties form part
of the setting that the implementation of the Amparo Rule shall encounter.
Sections 13, 17 and 18 of the Amparo Rule define the nature of
an Amparo proceeding and the degree and burden of proof the parties to the case
carry, as follows:
Section 13. Summary Hearing. The hearing on the petition shall be summary.
However, the court, justice or judge may call for a preliminary conference to simplify
the issues and determine the possibility of obtaining stipulations and admissions
from the parties.
xxxx
and equity shall not be controlling. The obvious purpose of this and similar
provisions is to free administrative boards from the compulsion of technical rules so
that the mere admission of matter which would be deemed incompetent in judicial
proceedings would not invalidate the administrative order. [citations omitted] But
this assurance of a desirable flexibility in administrative procedure does not go so
far as to justify orders without a basis in evidence having rational probative force.
[Emphasis supplied]

Section 17. Burden of Proof and Standard of Diligence Required. The parties shall
In Secretary of Defense v. Manalo,152 which was the Courts first petition for a Writ of
establish their claims by substantial evidence.
Amparo, we recognized that the full and exhaustive proceedings that the substantial
evidence standard regularly requires do not need to apply due to the summary
The respondent who is a private individual must prove that ordinary diligence as nature of Amparo proceedings. We said:
required by applicable laws, rules and regulations was observed in the performance
of duty.
The remedy [of the writ of amparo] provides rapid judicial relief as it partakes of a
summary proceeding that requires only substantial evidence to make the
The respondent who is a public official or employee must prove that extraordinary appropriate reliefs available to the petitioner; it is not an action to determine
diligence as required by applicable laws, rules and regulations was observed in the criminal guilt requiring proof beyond reasonable doubt, or liability for damages
performance of duty. requiring preponderance of evidence, or administrative responsibility requiring
substantial evidence that will require full and exhaustive proceedings. [Emphasis
supplied]
The respondent public official or employee cannot invoke the presumption that
official duty has been regularly performed or evade responsibility or liability.
Not to be forgotten in considering the evidentiary aspects of Amparo petitions are
the unique difficulties presented by the nature of enforced disappearances,
Section 18. Judgment. If the allegations in the petition are proven by
heretofore discussed, which difficulties this Court must frontally meet if the Amparo
substantial evidence, the court shall grant the privilege of the writ and such
Rule is to be given a chance to achieve its objectives. These evidentiary difficulties
reliefs as may be proper and appropriate; otherwise, the privilege shall be denied.
compel the Court to adopt standards appropriate and responsive to the
[Emphasis supplied]
circumstances, without transgressing the due process requirements that underlie
every proceeding.
These characteristics namely, of being summary and the use of substantial
evidence as the required level of proof (in contrast to the usual preponderance of
In the seminal case of Velasquez Rodriguez,153 the IACHR faced with a lack of direct
evidence or proof beyond reasonable doubt in court proceedings) reveal the clear
evidence that the government of Honduras was involved in Velasquez Rodriguez
intent of the framers of the Amparo Rule to have the equivalent of an administrative
disappearance adopted a relaxed and informal evidentiary standard, and
proceeding, albeit judicially conducted, in addressing Amparo situations. The
established the rule that presumes governmental responsibility for a disappearance
standard of diligence required the duty of public officials and employees to
if it can be proven that the government carries out a general practice of enforced
observe extraordinary diligence point, too, to the extraordinary measures expected
disappearances and the specific case can be linked to that practice. 154 The IACHR
in the protection of constitutional rights and in the consequent handling and
took note of the realistic fact that enforced disappearances could be proven only
investigation of extra-judicial killings and enforced disappearance cases.
through circumstantial or indirect evidence or by logical inference; otherwise, it was
impossible to prove that an individual had been made to disappear. It held:
Thus, in these proceedings, the Amparo petitioner needs only to properly comply
with the substance and form requirements of a Writ of Amparo petition, as discussed
130. The practice of international and domestic courts shows that direct evidence,
above, and prove the allegations by substantial evidence. Once a rebuttable case
whether testimonial or documentary, is not the only type of evidence that may be
has been proven, the respondents must then respond and prove their defenses
legitimately considered in reaching a decision. Circumstantial evidence, indicia, and
based on the standard of diligence required. The rebuttable case, of course, must
presumptions may be considered, so long as they lead to conclusions consistent
show that an enforced disappearance took place under circumstances showing a
with the facts.
violation of the victims constitutional rights to life, liberty or security, and the failure
on the part of the investigating authorities to appropriately respond.
131. Circumstantial or presumptive evidence is especially important in allegations of
disappearances, because this type of repression is characterized by an attempt to
The landmark case of Ang Tibay v. Court of Industrial Relations 151 provided the Court
suppress all information about the kidnapping or the whereabouts and fate of the
its first opportunity to define the substantial evidence required to arrive at a valid
victim. [Emphasis supplied]
decision in administrative proceedings. To directly quote Ang Tibay:

In concluding that the disappearance of Manfredo Velsquez (Manfredo) was carried

Substantial evidence is more than a mere scintilla. It means such relevant evidence
out by agents who acted under cover of public authority, the IACHR relied on
as a reasonable mind might accept as adequate to support a conclusion. [citations
circumstantial evidence including the hearsay testimony of Zenaida Velsquez, the
omitted] The statute provides that the rules of evidence prevailing in courts of law
victims sister, who described Manfredos kidnapping on the basis of conversations
she had with witnesses who saw Manfredo kidnapped by men in civilian clothes in (a) arrest, detention, abduction or any form of deprivation of liberty;
broad daylight. She also told the Court that a former Honduran military official had
announced that Manfredo was kidnapped by a special military squadron acting
(b) carried out by agents of the State or persons or groups of persons
under orders of the Chief of the Armed Forces.155 The IACHR likewise considered the
acting with the authorization, support or acquiescence of the State;
hearsay testimony of a second witness who asserted that he had been told by a
Honduran military officer about the disappearance, and a third witness who testified
that he had spoken in prison to a man who identified himself as Manfredo. 156 (c) followed by a refusal to acknowledge the detention, or a concealment of
the fate of the disappeared person; and
Velasquez stresses the lesson that flexibility is necessary under the unique
circumstances that enforced disappearance cases pose to the courts; to have an (d) placement of the disappeared person outside the protection of the law.
effective remedy, the standard of evidence must be responsive to the evidentiary [Emphasis supplied]
difficulties faced. On the one hand, we cannot be arbitrary in the admission and
appreciation of evidence, as arbitrariness entails violation of rights and cannot be
We find no direct evidence indicating how the victim actually disappeared. The direct
used as an effective counter-measure; we only compound the problem if a wrong is
evidence at hand only shows that Tagitis went out of the ASY Pension House after
addressed by the commission of another wrong. On the other hand, we cannot be
depositing his room key with the hotel desk and was never seen nor heard of again.
very strict in our evidentiary rules and cannot consider evidence the way we do in
The undisputed conclusion, however, from all concerned the petitioner, Tagitis
the usual criminal and civil cases; precisely, the proceedings before us are
colleagues and even the police authorities is that Tagistis disappeared under
administrative in nature where, as a rule, technical rules of evidence are not strictly
mysterious circumstances and was never seen again. The respondent injected the
observed. Thus, while we must follow the substantial evidence rule, we must
causal element in her petition and testimony, as we shall discuss below.
observe flexibility in considering the evidence we shall take into account.

We likewise find no direct evidence showing that operatives of PNP CIDG Zamboanga
The fair and proper rule, to our mind, is to consider all the pieces of evidence
abducted or arrested Tagitis. If at all, only the respondents allegation that Tagistis
adduced in their totality, and to consider any evidence otherwise inadmissible under
was under CIDG Zamboanga custody stands on record, but it is not supported by
our usual rules to be admissible if it is consistent with the admissible evidence
any other evidence, direct or circumstantial.
adduced. In other words, we reduce our rules to the most basic test of reason i.e.,
to the relevance of the evidence to the issue at hand and its consistency with all
other pieces of adduced evidence. Thus, even hearsay evidence can be admitted if it In her direct testimony, the respondent pointed to two sources of information as her
satisfies this basic minimum test. bases for her allegation that Tagistis had been placed under government custody (in
contrast with CIDG Zamboanga custody). The first was an unnamed friend in
Zamboanga (later identified as Col. Ancanan), who occupied a high position in the
We note in this regard that the use of flexibility in the consideration of evidence is
military and who allegedly mentioned that Tagitis was in good hands. Nothing came
not at all novel in the Philippine legal system. In child abuse cases, Section 28 of the
out of this claim, as both the respondent herself and her witness, Mrs. Talbin, failed
Rule on Examination of a Child Witness157 is expressly recognized as an exception to
to establish that Col. Ancanan gave them any information that Tagitis was in
the hearsay rule. This Rule allows the admission of the hearsay testimony of a child
government custody. Col. Ancanan, for his part, admitted the meeting with the
describing any act or attempted act of sexual abuse in any criminal or non-criminal
respondent but denied giving her any information about the disappearance.
proceeding, subject to certain prerequisites and the right of cross-examination by
the adverse party. The admission of the statement is determined by the court in
light of specified subjective and objective considerations that provide sufficient The more specific and productive source of information was Col. Kasim, whom the
indicia of reliability of the child witness.158 These requisites for admission find their respondent, together with her witness Mrs. Talbin, met in Camp Katitipan in Davao
counterpart in the present case under the above-described conditions for the City. To quote the relevant portions of the respondents testimony:
exercise of flexibility in the consideration of evidence, including hearsay evidence, in
extrajudicial killings and enforced disappearance cases.
Q: Were you able to speak to other military officials regarding the whereabouts of
your husband particularly those in charge of any records or investigation?
Assessment of the Evidence
A: I went to Camp Katitipan in Davao City. Then one military officer, Col. Casim, told
The threshold question for our resolution is: was there an enforced disappearance me that my husband is being abducted [sic] because he is under custodial
within the meaning of this term under the UN Declaration we have cited? investigation because he is allegedly "parang liason ng J.I.", sir.

The Convention defines enforced disappearance as "the arrest, detention, abduction Q: What is J.I.?
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
A: Jemaah Islamiah, sir.
State, followed by a refusal to acknowledge the deprivation of liberty or by
concealment of the fate or whereabouts of the disappeared person, which place
such a person outside the protection of the law."159 Under this definition, the Q: Was there any information that was read to you during one of those visits of yours
elements that constitute enforced disappearance are essentially fourfold: 160 in that Camp?
A: Col. Casim did not furnish me a copy of his report because he said those reports Q: When you were told that your husband is in good hands, what was your reaction
are highly confidential, sir. and what did you do?

Q: Was it read to you then even though you were not furnished a copy?
A: Yes, sir. In front of us, my friends.
Q: And what was the content of that highly confidential report?
A: Those alleged activities of Engineer Tagitis, sir.161 [Emphasis supplied]
She confirmed this testimony in her cross-examination:
Q: You also mentioned that you went to Camp Katitipan in Davao City?
A: Yes, maam.
A: May binasa kasi sya that my husband has a parang meeting with other people na
parang mga terorista na mga tao. Tapos at the end of the report is [sic] under
custodial investigation. So I told him "Colonel, my husband is sick. He is diabetic at
nagmemaintain yun ng gamot. Pakisabi lang sa naghohold sa asawa ko na bigyan
siya ng gamot, maam."163
xxxx
Q: You mentioned that you received information that Engineer Tagitis is being held
by the CIDG in Zamboanga, did you go to CIDG Zamboanga to verify that
information?
A: I did not go to CIDG Zamboanga. I went to Camp Karingal instead. Enough na yun
na effort ko because I know that they would deny it, maam. 164

On February 11, 2008, the respondent presented Mrs. Talbin to corroborate her
Q: And a certain Col. Kasim told you that your husband was abducted and under
testimony that her husband was abducted and held under custodial investigation by
custodial investigation?
the PNP-CIDG Zamboanga City, viz:

A: Yes, maam.
Q: You said that you went to Camp Katitipan in Davao City sometime November 24,
2007, who was with you when you went there?
Q: And you mentioned that he showed you a report?
A: Mary Jean Tagitis, sir.
A: Yes, maam.
Q: Only the two of you?
Q: Were you able to read the contents of that report?
A: No. We have some other companions. We were four at that time, sir.
A: He did not furnish me a copy of those [sic] report because those [sic] were highly
confidential. That is a military report, maam.
Q: Who were they?

Q: But you were able to read the contents?

A: Salvacion Serrano, Mini Leong, Mrs. Tagitis and me, sir.

A: No. But he read it in front of us, my friends, maam.

Q: Were you able to talk, see some other officials at Camp Katitipan during that
time?
Q: How many were you when you went to see Col. Kasim?
A: Col. Kasim (PS Supt. Julasirim Ahadin Kasim) only, sir.
A: There were three of us, maam.
Q: Were you able to talk to him?
Q: Who were your companions?
A: Yes, sir.
A: Mrs. Talbin, tapos yung dalawang friends nya from Mati City, Davao Oriental,
maam.162
Q: The four of you?

xxxx
A: Yes, sir.
Q: What information did you get from Col. Kasim during that time?
A: The first time we met with [him] I asked him if he knew of the exact location, if he
can furnish us the location of Engr. Tagitis. And he was reading this report. He told us
that Engr. Tagitis is in good hands. He is with the military, but he is not certain
whether he is with the AFP or PNP. He has this serious case. He was charged of
terrorism because he was under surveillance from January 2007 up to the time that
he was abducted. He told us that he was under custodial investigation. As Ive said
earlier, he was seen under surveillance from January. He was seen talking to Omar
Patik, a certain Santos of Bulacan who is also a Balik Islam and charged with
terrorism. He was seen carrying boxes of medicines. Then we asked him how long
will he be in custodial investigation. He said until we can get some information. But
he also told us that he cannot give us that report because it was a raw report. It was
not official, sir.
Q: You said that he was reading a report, was that report in document form, in a
piece of paper or was it in the computer or what?
A: As far as I can see it, sir, it is written in white bond paper. I dont know if it was
computerized but Im certain that it was typewritten. Im not sure if it used
computer, fax or what, sir.
Q: When he was reading it to you, was he reading it line by line or he was reading in
a summary form?
A: Sometimes he was glancing to the report and talking to us, sir. 165
xxxx
Q: Were you informed as to the place where he was being kept during that time?
A: He did not tell us where he [Tagitis] was being kept. But he mentioned this
Talipapao, Sulu, sir.
Q: After that incident, what did you do if any?
A: We just left and as Ive mentioned, we just waited because that raw information
that he was reading to us [sic] after the custodial investigation, Engineer Tagitis will
be released. [Emphasis supplied]166
Col. Kasim never denied that he met with the respondent and her friends, and that
he provided them information based on the input of an unnamed asset. He simply
claimed in his testimony that the "informal letter" he received from his informant in
Sulu did not indicate that Tagitis was in the custody of the CIDG. He also stressed
that the information he provided the respondent was merely a "raw report" from
"barangay intelligence" that still needed confirmation and "follow up" as to its
veracity.167
To be sure, the respondents and Mrs. Talbins testimonies were far from perfect, as
the petitioners pointed out. The respondent mistakenly characterized Col. Kasim as
a "military officer" who told her that "her husband is being abducted because he is
under custodial investigation because he is allegedly parang liason ng J.I." The
petitioners also noted that "Mrs. Talbins testimony imputing certain statements to
Sr. Supt. Kasim that Engr. Tagitis is with the military, but he is not certain whether it
is the PNP or AFP is not worthy of belief, since Sr. Supt. Kasim is a high ranking
police officer who would certainly know that the PNP is not part of the military."
Upon deeper consideration of these inconsistencies, however, what appears clear to
us is that the petitioners never really steadfastly disputed or presented evidence to
refute the credibility of the respondent and her witness, Mrs. Talbin. The
inconsistencies the petitioners point out relate, more than anything else, to details
that should not affect the credibility of the respondent and Mrs. Talbin; the
inconsistencies are not on material points. 168 We note, for example, that these
witnesses are lay people in so far as military and police matters are concerned, and
confusion between the police and the military is not unusual. As a rule, minor
inconsistencies such as these indicate truthfulness rather than prevarication 169and
only tend to strengthen their probative value, in contrast to testimonies from various
witnesses dovetailing on every detail; the latter cannot but generate suspicion that
the material circumstances they testified to were integral parts of a well thought of
and prefabricated story.170
Based on these considerations and the unique evidentiary situation in enforced
disappearance cases, we hold it duly established that Col. Kasim informed the
respondent and her friends, based on the informants letter, that Tagitis, reputedly a
liaison for the JI and who had been under surveillance since January 2007, was "in
good hands" and under custodial investigation for complicity with the JI after he was
seen talking to one Omar Patik and a certain "Santos" of Bulacan, a "Balik Islam"
charged with terrorism. The respondents and Mrs. Talbins testimonies cannot
simply be defeated by Col. Kasims plain denial and his claim that he had destroyed
his informants letter, the critical piece of evidence that supports or negates the
parties conflicting claims. Col. Kasims admitted destruction of this letter
effectively, a suppression of this evidence raises the presumption that the letter, if
produced, would be proof of what the respondent claimed. 171 For brevity, we shall
call the evidence of what Col. Kasim reported to the respondent to be the "Kasim
evidence."
Given this evidence, our next step is to decide whether we can accept this evidence,
in lieu of direct evidence, as proof that the disappearance of Tagitis was due to
action with government participation, knowledge or consent and that he was held
for custodial investigation. We note in this regard that Col. Kasim was never quoted
to have said that the custodial investigation was by the CIDG Zamboanga. The
Kasim evidence only implies government intervention through the use of the term
"custodial investigation," and does not at all point to CIDG Zamboanga as Tagitis
custodian.
Strictly speaking, we are faced here with a classic case of hearsay evidence i.e.,
evidence whose probative value is not based on the personal knowledge of the
witnesses (the respondent, Mrs. Talbin and Col. Kasim himself) but on the knowledge
of some other person not on the witness stand (the informant). 172
To say that this piece of evidence is incompetent and inadmissible evidence of what
it substantively states is to acknowledge as the petitioners effectively suggest
that in the absence of any direct evidence, we should simply dismiss the petition. To
our mind, an immediate dismissal for this reason is no different from a statement
that the Amparo Rule despite its terms is ineffective, as it cannot allow for the
special evidentiary difficulties that are unavoidably present in Amparo situations,
particularly in extrajudicial killings and enforced disappearances. The Amparo Rule
was not promulgated with this intent or with the intent to make it a token gesture of
concern for constitutional rights. It was promulgated to provide effective and timely
remedies, using and profiting from local and international experiences in
extrajudicial killings and enforced disappearances, as the situation may require.
Consequently, we have no choice but to meet the evidentiary difficulties inherent in
enforced disappearances with the flexibility that these difficulties demand.1avvphi1
To give full meaning to our Constitution and the rights it protects, we hold that, as in
Velasquez, we should at least take a close look at the available evidence to
determine the correct import of every piece of evidence even of those usually
considered inadmissible under the general rules of evidence taking into account
the surrounding circumstances and the test of reason that we can use as basic
minimum admissibility requirement. In the present case, we should at least
determine whether the Kasim evidence before us is relevant and meaningful to the
disappearance of Tagistis and reasonably consistent with other evidence in the case.
The evidence about Tagitis personal circumstances surrounded him with an air of
mystery. He was reputedly a consultant of the World Bank and a Senior Honorary
Counselor for the IDB who attended a seminar in Zamboanga and thereafter
proceded to Jolo for an overnight stay, indicated by his request to Kunnong for the
purchase of a return ticket to Zamboanga the day after he arrived in Jolo. Nothing in
the records indicates the purpose of his overnight sojourn in Jolo. A colleague in the
IDB, Prof. Matli, early on informed the Jolo police that Tagitis may have taken funds
given to him in trust for IDB scholars. Prof Matli later on stated that he never
accused Tagitis of taking away money held in trust, although he confirmed that the
IDB was seeking assistance in locating funds of IDB scholars deposited in Tagitis
personal account. Other than these pieces of evidence, no other information exists
in the records relating to the personal circumstances of Tagitis.
The actual disappearance of Tagitis is as murky as his personal circumstances. While
the Amparo petition recited that he was taken away by "burly men believed to be
police intelligence operatives," no evidence whatsoever was introduced to support
this allegation. Thus, the available direct evidence is that Tagitis was last seen at
12.30 p.m. of October 30, 2007 the day he arrived in Jolo and was never seen
again.
The Kasim evidence assumes critical materiality given the dearth of direct evidence
on the above aspects of the case, as it supplies the gaps that were never looked into
and clarified by police investigation. It is the evidence, too, that colors a simple
missing person report into an enforced disappearance case, as it injects the element
of participation by agents of the State and thus brings into question how the State
reacted to the disappearance.
Denials on the part of the police authorities, and frustration on the part of the
respondent, characterize the attempts to locate Tagitis. Initially in Jolo, the police
informed Kunnong that Tagitis could have been taken by the Abu Sayyaf or other
groups fighting the government. No evidence was ever offered on whether there was
active Jolo police investigation and how and why the Jolo police arrived at this
conclusion. The respondents own inquiry in Jolo yielded the answer that he was not
missing but was with another woman somewhere. Again, no evidence exists that this
explanation was arrived at based on an investigation. As already related above, the
inquiry with Col. Ancanan in Zamboanga yielded ambivalent results not useful for
evidentiary purposes. Thus, it was only the inquiry from Col. Kasim that yielded
positive results. Col. Kasims story, however, confirmed only the fact of his custodial
investigation (and, impliedly, his arrest or abduction), without identifying his
abductor/s or the party holding him in custody. The more significant part of Col.
Kasims story is that the abduction came after Tagitis was seen talking with Omar
Patik and a certain Santos of Bulacan, a "Balik Islam" charged with terrorism. Mrs.
Talbin mentioned, too, that Tagitis was being held at Talipapao, Sulu. None of the
police agencies participating in the investigation ever pursued these leads. Notably,
Task Force Tagitis to which this information was relayed did not appear to have lifted
a finger to pursue these aspects of the case.
More denials were manifested in the Returns on the writ to the CA made by the
petitioners. Then PNP Chief Gen. Avelino I. Razon merely reported the directives he
sent to the ARMM Regional Director and the Regional Chief of the CIDG on Tagitis,
and these reports merely reiterated the open-ended initial report of the
disappearance. The CIDG directed a search in all of its divisions with negative
results. These, to the PNP Chief, constituted the exhaustion "of all possible efforts."
PNP-CIDG Chief General Edgardo M. Doromal, for his part, also reported negative
results after searching "all divisions and departments [of the CIDG] for a person
named Engr. Morced N. Tagitis . . . and after a diligent and thorough research,
records show that no such person is being detained in the CIDG or any of its
department or divisions." PNP-PACER Chief PS Supt. Leonardo A. Espina and PNP PRO
ARMM Regional Director PC Superintendent Joel R. Goltiao did no better in their
affidavits-returns, as they essentially reported the results of their directives to their
units to search for Tagitis.
The extent to which the police authorities acted was fully tested when the CA
constituted Task Force Tagitis, with specific directives on what to do. The negative
results reflected in the Returns on the writ were again replicated during the three
hearings the CA scheduled. Aside from the previously mentioned "retraction" that
Prof. Matli made to correct his accusation that Tagitis took money held in trust for
students, PS Supt. Ajirim reiterated in his testimony that the CIDG consistently
denied any knowledge or complicity in any abduction and said that there was no
basis to conclude that the CIDG or any police unit had anything to do with the
disappearance of Tagitis; he likewise considered it premature to conclude that Tagitis
simply ran away with the money in his custody. As already noted above, the Task
Force notably did not pursue any investigation about the personal circumstances of
Tagitis, his background in relation to the IDB and the background and activities of
this Bank itself, and the reported sighting of Tagistis with terrorists and his alleged
custody in Talipapao, Sulu. No attempt appears to have ever been made to look into
the alleged IDB funds that Tagitis held in trust, or to tap any of the "assets" who are
indispensable in investigations of this nature. These omissions and negative results
were aggravated by the CA findings that it was only as late as January 28, 2008 or
three months after the disappearance that the police authorities requested for clear
pictures of Tagitis. Col. Kasim could not attend the trial because his subpoena was
not served, despite the fact that he was designated as Ajirims replacement in the
latters last post. Thus, Col. Kasim was not then questioned. No investigation even
an internal one appeared to have been made to inquire into the identity of Col.
Kasims "asset" and what he indeed wrote.
We glean from all these pieces of evidence and developments a consistency in the
governments denial of any complicity in the disappearance of Tagitis, disrupted only
by the report made by Col. Kasim to the respondent at Camp Katitipan. Even Col.
Kasim, however, eventually denied that he ever made the disclosure that Tagitis was
under custodial investigation for complicity in terrorism. Another distinctive trait that
runs through these developments is the governments dismissive approach to the
disappearance, starting from the initial response by the Jolo police to Kunnongs
initial reports of the disappearance, to the responses made to the respondent when
she herself reported and inquired about her husbands disappearance, and even at
Task Force Tagitis itself.
As the CA found through Task Force Tagitis, the investigation was at best haphazard
since the authorities were looking for a man whose picture they initially did not even
secure. The returns and reports made to the CA fared no better, as the CIDG efforts
themselves were confined to searching for custodial records of Tagitis in their
various departments and divisions. To point out the obvious, if the abduction of
Tagitis was a "black" operation because it was unrecorded or officially unauthorized,
no record of custody would ever appear in the CIDG records; Tagitis, too, would not
be detained in the usual police or CIDG detention places. In sum, none of the reports
on record contains any meaningful results or details on the depth and extent of the
investigation made. To be sure, reports of top police officials indicating the personnel
and units they directed to investigate can never constitute exhaustive and
meaningful investigation, or equal detailed investigative reports of the activities
undertaken to search for Tagitis. Indisputably, the police authorities from the very
beginning failed to come up to the extraordinary diligence that the Amparo Rule
requires.
CONCLUSIONS AND THE AMPARO REMEDY
Based on these considerations, we conclude that Col. Kasims disclosure, made in an
unguarded moment, unequivocally point to some government complicity in the
disappearance. The consistent but unfounded denials and the haphazard
investigations cannot but point to this conclusion. For why would the government
and its officials engage in their chorus of concealment if the intent had not been to
deny what they already knew of the disappearance? Would not an in-depth and
thorough investigation that at least credibly determined the fate of Tagitis be a
feather in the governments cap under the circumstances of the disappearance?
From this perspective, the evidence and developments, particularly the Kasim
evidence, already establish a concrete case of enforced disappearance that the
Amparo Rule covers. From the prism of the UN Declaration, heretofore cited and
quoted,173 the evidence at hand and the developments in this case confirm the fact
of the enforced disappearance and government complicity, under a background of
consistent and unfounded government denials and haphazard handling. The
disappearance as well effectively placed Tagitis outside the protection of the law a
situation that will subsist unless this Court acts.
This kind of fact situation and the conclusion reached are not without precedent in
international enforced disappearance rulings. While the facts are not exactly the
same, the facts of this case run very close to those of Timurtas v. Turkey, 174 a case
decided by ECHR. The European tribunal in that case acted on the basis of the
photocopy of a "post-operation report" in finding that Abdulvahap Timurtas
(Abdulvahap) was abducted and later detained by agents (gendarmes) of the
government of Turkey. The victim's father in this case brought a claim against Turkey
for numerous violations of the European Convention, including the right to life
(Article 2) and the rights to liberty and security of a person (Article 5). The applicant
contended that on August 14, 1993, gendarmes apprehended his son, Abdulvahap
for being a leader of the Kurdish Workers Party (PKK) in the Silopi region. The
petition was filed in southeast Turkey nearly six and one half years after the
apprehension. According to the father, gendarmes first detained Abdulvahap and
then transferred him to another detainment facility. Although there was no
eyewitness evidence of the apprehension or subsequent detainment, the applicant
presented evidence corroborating his version of events, including a photocopy of a
post-operation report signed by the commander of gendarme operations in Silopi,
Turkey. The report included a description of Abdulvahap's arrest and the result of a
subsequent interrogation during detention where he was accused of being a leader
of the PKK in the Silopi region. On this basis, Turkey was held responsible for
Abdulvahaps enforced disappearance.
Following the lead of this Turkish experience - adjusted to the Philippine legal setting
and the Amparo remedy this Court has established, as applied to the unique facts
and developments of this case we believe and so hold that the government in
general, through the PNP and the PNP-CIDG, and in particular, the Chiefs of these
organizations together with Col. Kasim, should be held fully accountable for the
enforced disappearance of Tagitis.
The PNP and CIDG are accountable because Section 24 of Republic Act No. 6975,
otherwise known as the "PNP Law,"175 specifies the PNP as the governmental office
with the mandate "to investigate and prevent crimes, effect the arrest of criminal
offenders, bring offenders to justice and assist in their prosecution." The PNP-CIDG,
as Col. Jose Volpane Pante (then Chief of CIDG Region 9) testified, is the
"investigative arm" of the PNP and is mandated to "investigate and prosecute all
cases involving violations of the Revised Penal Code, particularly those considered
as heinous crimes."176 Under the PNP organizational structure, the PNP-CIDG is
tasked to investigate all major crimes involving violations of the Revised Penal Code
and operates against organized crime groups, unless the President assigns the case
exclusively to the National Bureau of Investigation (NBI). 177 No indication exists in
this case showing that the President ever directly intervened by assigning the
investigation of Tagitis disappearance exclusively to the NBI.
Given their mandates, the PNP and PNP-CIDG officials and members were the ones
who were remiss in their duties when the government completely failed to exercise
the extral'>To fully enforce the Amparo remedy, we refer this case back to the CA
for appropriate proceedings directed at the monitoring of the PNP and the PNP-CIDG
investigations and actions, and the validation of their results through hearings the
CA may deem appropriate to conduct. For purposes of these investigations, the
PNP/PNP-CIDG shall initially present to the CA a plan of action for further
investigation, periodically reporting the detailed results of its investigation to the CA
for its consideration and action. On behalf of this Court, the CA shall pass upon: the
need for the PNP and the PNP-CIDG to make disclosures of matters known to them
as indicated in this Decision and as further CA hearings may indicate; the
petitioners submissions; the sufficiency of their investigative efforts; and submit to
this Court a quarterly report containing its actions and recommendations, copy
furnished the petitioners and the respondent, with the first report due at the end of
the first quarter counted from the finality of this Decision. The PNP and the PNP-CIDG
shall have one (1) full year to undertake their investigation. The CA shall submit its
full report for the consideration of this Court at the end of the 4th quarter counted
from the finality of this Decision.
WHEREFORE, premises considered, we DENY the petitioners petition for review on
certiorari for lack of merit, and AFFIRM the decision of the Court of Appeals dated
March 7, 2008 under the following terms:
a. Recognition that the disappearance of Engineer Morced N. Tagitis is an
enforced disappearance covered by the Rule on the Writ of Amparo;
b. Without any specific pronouncement on exact authorship and
responsibility, declaring the government (through the PNP and the PNP-
 CIDG) and Colonel Julasirim Ahadin Kasim accountable for the enforced ARTURO D. BRION
disappearance of Engineer Morced N. Tagitis; Associate Justice

c. Confirmation of the validity of the Writ of Amparo the Court of Appeals

issued;

d. Holding the PNP, through the PNP Chief, and the PNP-CIDG, through its
Chief, directly responsible for the disclosure of material facts known to the
government and to their offices regarding the disappearance of Engineer
Morced N. Tagitis, and for the conduct of proper investigations using
extraordinary diligence, with the obligation to show investigation results
acceptable to this Court;

e. Ordering Colonel Julasirim Ahadin Kasim impleaded in this case and

holding him accountable with the obligation to disclose information known
to him and to his "assets" in relation with the enforced disappearance of
Engineer Morced N. Tagitis;

f. Referring this case back to the Court of Appeals for appropriate

proceedings directed at the monitoring of the PNP and PNP-CIDG
investigations, actions and the validation of their results; the PNP and the
PNP-CIDG shall initially present to the Court of Appeals a plan of action for
further investigation, periodically reporting their results to the Court of
Appeals for consideration and action;

g. Requiring the Court of Appeals to submit to this Court a quarterly report

with its recommendations, copy furnished the incumbent PNP and PNP-
CIDG Chiefs as petitioners and the respondent, with the first report due at
the end of the first quarter counted from the finality of this Decision;

h. The PNP and the PNP-CIDG shall have one (1) full year to undertake their
investigations; the Court of Appeals shall submit its full report for the
consideration of this Court at the end of the 4th quarter counted from the
finality of this Decision;

These directives and those of the Court of Appeals made pursuant to this Decision
shall be given to, and shall be directly enforceable against, whoever may be the
incumbent Chiefs of the Philippine National Police and its Criminal Investigation and
Detection Group, under pain of contempt from this Court when the initiatives and
efforts at disclosure and investigation constitute less than the extraordinary
diligence that the Rule on the Writ of Amparo and the circumstances of this case
demand. Given the unique nature of Amparo cases and their varying attendant
circumstances, these directives particularly, the referral back to and monitoring by
the CA are specific to this case and are not standard remedies that can be applied
to every Amparo situation.

The dismissal of the Amparo petition with respect to General Alexander Yano,
Commanding General, Philippine Army, and General Ruben Rafael, Chief, Anti-
Terrorism Task Force Comet, Zamboanga City, is hereby AFFIRMED.

SO ORDERED.
Roxas vs. Macapagal-Arroyo, 630 SCRA 211, G.R. No. 189155 September 7,
2010
Writ of Amparo; Doctrine of Command Responsibility; The doctrine of command
responsibility is a rule of substantive law that establishes liability and by this
account, cannot be a proper legal basis to implead a party-respondent in an amparo
petition; The doctrine is used to pinpoint liability.It must be stated at the outset
that the use by the petitioner of the doctrine of command responsibility as the
justification in impleading the public respondents in her amparo petition, is legally
inaccurate, if not incorrect. The doctrine of command responsibility is a rule of
substantive law that establishes liability and, by this account, cannot be a proper
legal basis to implead a party-respondent in an amparo petition. The case of Rubrico
v. Arroyo (613 SCRA 233 [2010]), which was the first to examine command
responsibility in the context of an amparo proceeding, observed that the doctrine is
used to pinpoint liability.
Same; Same; The doctrine is more aptly invoked in a full-blown criminal or
administrative case rather than in a summary amparo proceeding; The writ of
amparo is a protective remedy aimed at providing judicial relief consisting of the
appropriate remedial measures and directives that may be crafted by the court, in
order to address specific violations or threats of violation of the constitutional rights
to life, liberty or security.Since the application of command responsibility
presupposes an imputation of individual liability, it is more aptly invoked in a full-
blown criminal or administrative case rather than in a summary amparo proceeding.
The obvious reason lies in the nature of the writ itself: The writ of amparo is a
protective remedy aimed at providing judicial relief consisting of the appropriate
remedial measures and directives that may be crafted by the court, in order to
address specific violations or threats of violation of the constitutional rights to life,
liberty or security. While the principal objective of its proceedings is the initial
determination of whether an enforced disappearance, extralegal killing or threats
thereof had transpiredthe writ does not, by so doing, fix liability for such
disappearance, killing or threats, whether that may be criminal, civil or
administrative under the applicable substantive law.
Same; Same; 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 be impleadednot
actually on the basis of command responsibilitybut rather on the ground of their
responsibility, or at least accountability.It must be clarified, however, that the
inapplicability of the doctrine of command responsibility in an amparo proceeding
does not, by any measure, preclude impleading military or police commanders on
the ground that the complained acts in the petition were committed with their direct
or indirect acquiescence. In which case, commanders may be impleadednot
actually on the basis of command responsibilitybut rather on the ground of their
responsibility, or at least accountability. In Razon v. Tagitis (606 SCRA 598 [2009]),
the distinct, but interrelated concepts of responsibility and accountability were given
special and unique significations in relation to an amparo proceeding.
Same; Same; In Amparo proceedings, the weight that may be accorded to parallel
circumstances as evidence of military involvement depends largely on the
availability or non-availability of other pieces of evidence that has the potential of
directly proving the identity and affiliation of the perpetrators; Direct evidence of
identity when obtainable must be preferred over mere circumstantial evidence
based on patterns and similarity.In Amparo proceedings, the weight that may be
accorded to parallel circumstances as evidence of military involvement depends
largely on the availability or non-availability of other pieces of evidence that has the
potential of directly proving the identity and affiliation of the perpetrators. Direct
evidence of identity, when obtainable, must be preferred over mere circumstantial
evidence based on patterns and similarity, because the former indubitably offers
greater certainty as to the true identity and affiliation of the perpetrators. An
amparo court cannot simply leave to remote and hazy inference what it could
otherwise clearly and directly ascertain.
Same; Same; An order directing the public respondents to return the personal
belongings of the petitioner is already equivalent to a conclusive pronouncement of
liability.To the mind of this Court, the prayer of the petitioner for the return of her
belongings is doomed to fail regardless of whether there is sufficient evidence to
hold public respondents responsible for the abduction of the petitioner. In the first
place, an order directing the public respondents to return the personal belongings of
the petitioner is already equivalent to a conclusive pronouncement of liability. The
order itself is a substantial relief that can only be granted once the liability of the
public respondents has been fixed in a full and exhaustive proceeding. As already
discussed above, matters of liability are not determinable in a mere summary
amparo proceeding.
Same; Same; Section 1 of the Amparo Rule, which defines the scope and extent of
the writ, clearly excludes the protection of property rights.But perhaps the more
fundamental reason in denying the prayer of the petitioner, lies with the fact that a
persons right to be restituted of his property is already subsumed under the general
rubric of property rightswhich are no longer protected by the writ of amparo.
Section 1 of the Amparo Rule, which defines the scope and extent of the writ,
clearly excludes the protection of property rights.
Same; Same; Inspection Order; 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.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. While the Amparo Rule does not require that the place to be inspected be
identified with clarity and precision, it is, nevertheless, a minimum for the issuance
of an inspection order that the supporting allegations of a party be sufficient in itself,
so as to make a prima facie case. This, as was shown above, petitioner failed to do.
Same; Same; Same; An inspection order cannot issue on the basis of allegations that
are, in themselves, unreliable and doubtful.Since the very estimates and
observations of the petitioner are not strong enough to make out a prima facie case
that she was detained in Fort Magsaysay, an inspection of the military camp cannot
be ordered. An inspection order cannot issue on the basis of allegations that are, in
themselves, unreliable and doubtful.
Writ of Habeas Data; The writ of habeas data was conceptualized as a judicial
remedy enforcing the right to privacy, most especially the right to informational
privacy of individuals. The writ operates to protect a persons right to control
information regarding himself, particularly in the instances where such information is
being collected through unlawful means in order to achieve unlawful ends.The writ
of habeas data was conceptualized as a judicial remedy enforcing the right to
privacy, most especially the right to informational privacy of individuals. The writ
operates to protect a persons right to control information regarding himself,
particularly in the instances where such information is being collected through
unlawful means in order to achieve unlawful ends. Needless to state, an
indispensable requirement before the privilege of the writ may be extended is the
showing, at least by substantial evidence, of an actual or threatened violation of the
right to privacy in life, liberty or security of the victim. This, in the case at bench, the
petitioner failed to do. Roxas vs. Macapagal-Arroyo, 630 SCRA 211, G.R. No. 189155
September 7, 2010
G.R. No. 189155 September 7, 2010
IN THE MATTER OF THE PETITION FOR THE WRIT OF AMPARO AND THE
WRIT OF HABEAS DATA IN FAVOR OF MELISSA C. ROXAS, MELISSA C.
ROXAS, Petitioner,
vs.
GLORIA MACAPAGAL-ARROYO, GILBERT TEODORO, GEN. VICTOR S. IBRADO,
P/DIR. GEN. JESUS AME VERZOSA, LT. GEN. DELFIN N. BANGIT, PC/SUPT.
LEON NILO A. DELA CRUZ, MAJ. GEN. RALPH VILLANUEVA, PS/SUPT. RUDY
GAMIDO LACADIN, AND CERTAIN PERSONS WHO GO BY THE NAME[S] DEX,
RC AND ROSE, Respondents.
DECISION
PEREZ, J.:
At bench is a Petition For Review on Certiorari1 assailing the Decision2 dated 26
August 2009 of the Court of Appeals in CA-G.R. SP No. 00036-WRA a petition that
was commenced jointly under the Rules on the Writ of Amparo (Amparo Rule) and
Habeas Data (Habeas Data Rule). In its decision, the Court of Appeals extended to
the petitioner, Melissa C. Roxas, the privilege of the writs of amparo and habeas
data but denied the latters prayers for an inspection order, production order and
return of specified personal belongings. The fallo of the decision reads:
WHEREFORE, the Petition is PARTIALLY MERITORIOUS. This Court hereby grants
Petitioner the privilege of the Writ of Amparo and Habeas Data.
Accordingly, Respondents are enjoined to refrain from distributing or causing the
distribution to the public of any records in whatever form, reports, documents or
similar papers relative to Petitioners Melissa C. Roxas, and/or Melissa Roxas; alleged
ties to the CPP-NPA or pertinently related to the complained incident. Petitioners
prayers for an inspection order, production order and for the return of the specified
personal belongings are denied for lack of merit. Although there is no evidence that
Respondents are responsible for the abduction, detention or torture of the Petitioner,
said Respondents pursuant to their legally mandated duties are, nonetheless,
ordered to continue/complete the investigation of this incident with the end in view
of prosecuting those who are responsible. Respondents are also ordered to provide
protection to the Petitioner and her family while in the Philippines against any and
all forms of harassment, intimidation and coercion as may be relevant to the grant
of these reliefs.3
We begin with the petitioners allegations.
Petitioner is an American citizen of Filipino descent. 4 While in the United States,
petitioner enrolled in an exposure program to the Philippines with the group Bagong
Alyansang Makabayan-United States of America (BAYAN-USA) of which she is a
member.5 During the course of her immersion, petitioner toured various provinces
and towns of Central Luzon and, in April of 2009, she volunteered to join members
of BAYAN-Tarlac6 in conducting an initial health survey in La Paz, Tarlac for a future
medical mission.7
In pursuit of her volunteer work, petitioner brought her passport, wallet with Fifteen
Thousand Pesos (P15,000.00) in cash, journal, digital camera with memory card,
laptop computer, external hard disk, IPOD,8 wristwatch, sphygmomanometer,
stethoscope and medicines.9
After doing survey work on 19 May 2009, petitioner and her companions, Juanito
Carabeo (Carabeo) and John Edward Jandoc (Jandoc), decided to rest in the house of
one Mr. Jesus Paolo (Mr. Paolo) in Sitio Bagong Sikat, Barangay Kapanikian, La Paz,
Tarlac.10 At around 1:30 in the afternoon, however, petitioner, her companions and
Mr. Paolo were startled by the loud sounds of someone banging at the front door and
a voice demanding that they open up.11
Suddenly, fifteen (15) heavily armed men forcibly opened the door, barged inside
and ordered petitioner and her companions to lie on the ground face down. 12 The
armed men were all in civilian clothes and, with the exception of their leader, were
also wearing bonnets to conceal their faces.13
Petitioner tried to protest the intrusion, but five (5) of the armed men ganged up on
her and tied her hands.14 At this juncture, petitioner saw the other armed men
herding Carabeo and Jandoc, already blindfolded and taped at their mouths, to a
nearby blue van. Petitioner started to shout her name.15 Against her vigorous
resistance, the armed men dragged petitioner towards the vanbruising her arms,
legs and knees.16 Once inside the van, but before she can be blindfolded, petitioner
was able to see the face of one of the armed men sitting beside her. 17The van then
sped away.
After about an hour of traveling, the van stopped. 18 Petitioner, Carabeo and Jandoc
were ordered to alight.19After she was informed that she is being detained for being
a member of the Communist Party of the Philippines-New Peoples Army (CPP-NPA),
petitioner was separated from her companions and was escorted to a room that she
believed was a jail cell from the sound of its metal doors.20 From there, she could
hear the sounds of gunfire, the noise of planes taking off and landing and some
construction bustle.21 She inferred that she was taken to the military camp of Fort
Magsaysay in Laur, Nueva Ecija.22
What followed was five (5) straight days of interrogation coupled with torture. 23 The
thrust of the interrogations was to convince petitioner to abandon her communist
beliefs in favor of returning to "the fold."24 The torture, on the other hand, consisted
of taunting, choking, boxing and suffocating the petitioner. 25
Throughout the entirety of her ordeal, petitioner was made to suffer in blindfolds
even in her sleep.26 Petitioner was only relieved of her blindfolds when she was
allowed to take a bath, during which she became acquainted with a woman named
"Rose" who bathed her.27 There were also a few times when she cheated her
blindfold and was able to peek at her surroundings. 28
Despite being deprived of sight, however, petitioner was still able to learn the
names of three of her interrogators who introduced themselves to her as "Dex,"
"James" and "RC."29 "RC" even told petitioner that those who tortured her came from
the "Special Operations Group," and that she was abducted because her name is
included in the "Order of Battle." 30
On 25 May 2009, petitioner was finally released and returned to her uncles house in
Quezon City.31 Before being released, however, the abductors gave petitioner a
cellular phone with a SIM32 card, a slip of paper containing an e-mail address with
password,33 a plastic bag containing biscuits and books,34 the handcuffs used on her,
a blouse and a pair of shoes.35 Petitioner was also sternly warned not to report the
incident to the group Karapatan or something untoward will happen to her and her
family.36
Sometime after her release, petitioner continued to receive calls from RC via the
cellular phone given to her.37Out of apprehension that she was being monitored and
also fearing for the safety of her family, petitioner threw away the cellular phone
with a SIM card.
Seeking sanctuary against the threat of future harm as well as the suppression of
any existing government files or records linking her to the communist movement,
petitioner filed a Petition for the Writs of Amparo and Habeas Data before this Court
on 1 June 2009.38 Petitioner impleaded public officials occupying the uppermost
echelons of the military and police hierarchy as respondents, on the belief that it
was government agents who were behind her abduction and torture. Petitioner
likewise included in her suit "Rose," "Dex" and "RC."39
The Amparo and Habeas Data petition prays that: (1) respondents be enjoined from
harming or even approaching petitioner and her family; (2) an order be issued
allowing the inspection of detention areas in the 7th Infantry Division, Fort
Magsaysay, Laur, Nueva Ecija; (3) respondents be ordered to produce documents
relating to any report on the case of petitioner including, but not limited to,
intelligence report and operation reports of the 7th Infantry Division, the Special
Operations Group of the Armed Forces of the Philippines (AFP) and its subsidiaries or
branch/es prior to, during and subsequent to 19 May 2009; (4) respondents be
ordered to expunge from the records of the respondents any document pertinent or
connected to Melissa C. Roxas, Melissa Roxas or any name which sounds the same;
and (5) respondents be ordered to return to petitioner her journal, digital camera
with memory card, laptop computer, external hard disk, IPOD, wristwatch,
sphygmomanometer, stethoscope, medicines and her P15,000.00 cash.40
In a Resolution dated 9 June 2009, this Court issued the desired writs and referred
the case to the Court of Appeals for hearing, reception of evidence and appropriate
action.41 The Resolution also directed the respondents to file their verified written
return.42
On 18 June 2009, the Office of the Solicitor General (OSG), filed a Return of the
Writs43 on behalf of the public officials impleaded as respondents.
We now turn to the defenses interposed by the public respondents.
The public respondents label petitioners alleged abduction and torture as "stage
managed."44 In support of their accusation, the public respondents principally rely on
the statement of Mr. Paolo, as contained in the Special Report 45 of the La Paz Police
Station. In the Special Report, Mr. Paolo disclosed that, prior to the purported
abduction, petitioner and her companions instructed him and his two sons to avoid
leaving the house.46 From this statement, the public respondents drew the distinct
possibility that, except for those already inside Mr. Paolos house, nobody else has
any way of knowing where petitioner and her companions were at the time they
were supposedly abducted.47 This can only mean, the public respondents concluded,
that if ever there was any "abduction" it must necessarily have been planned by, or
done with the consent of, the petitioner and her companions themselves. 48
Public respondents also cited the Medical Certificate49 of the petitioner, as actually
belying her claims that she was subjected to serious torture for five (5) days. The
public respondents noted that while the petitioner alleges that she was choked and
boxed by her abductorsinflictions that could have easily produced remarkable
bruisesher Medical Certificate only shows abrasions in her wrists and knee caps. 50
For the public respondents, the above anomalies put in question the very
authenticity of petitioners alleged abduction and torture, more so any military or
police involvement therein. Hence, public respondents conclude that the claims of
abduction and torture was no more than a charade fabricated by the petitioner to
put the government in bad light, and at the same time, bring great media mileage to
her and the group that she represents.51
Nevertheless, even assuming the abduction and torture to be genuine, the public
respondents insist on the dismissal of the Amparo and Habeas Data petition based
on the following grounds: (a) as against respondent President Gloria Macapagal-
Arroyo, in particular, because of her immunity from suit,52 and (b) as against all of
the public respondents, in general, in view of the absence of any specific allegation
in the petition that they had participated in, or at least authorized, the commission
of such atrocities.53
Finally, the public respondents posit that they had not been remiss in their duty to
ascertain the truth behind the allegations of the petitioner.54 In both the police and
military arms of the government machinery, inquiries were set-up in the following
manner:
Police Action
Police authorities first learned of the purported abduction around 4:30 oclock in the
afternoon of 19 May 2009, when Barangay Captain Michael M. Manuel came to the
La Paz Municipal Police Station to report the presence of heavily armed men
somewhere in Barangay Kapanikian.55 Acting on the report, the police station
launched an initial investigation.56
The initial investigation revolved around the statement of Mr. Paolo, who informed
the investigators of an abduction incident involving three (3) personslater
identified as petitioner Melissa Roxas, Juanito Carabeo and John Edward Jandocwho
were all staying in his house.57 Mr. Paolo disclosed that the abduction occurred
around 1:30 oclock in the afternoon, and was perpetrated by about eight (8) heavily
armed men who forced their way inside his house.58 Other witnesses to the
abduction also confirmed that the armed men used a dark blue van with an
unknown plate number and two (2) Honda XRM motorcycles with no plate
numbers.59
At 5:00 oclock in the afternoon of 19 May 2009, the investigators sent a Flash
Message to the different police stations surrounding La Paz, Tarlac, in an effort to
track and locate the van and motorcycles of the suspects. Unfortunately, the effort
yielded negative results.60
On 20 May 2009, the results of the initial investigation were included in a Special
Report61 that was transmitted to the Tarlac Police Provincial Office, headed by public
respondent P/S Supt. Rudy Lacadin (Supt. Lacadin). Public respondent Supt. Lacadin,
in turn, informed the Regional Police Office of Region 3 about the abduction. 62 Follow-
up investigations were, at the same time, pursued.63
On 26 May 2009, public respondent PC/Supt. Leon Nilo Dela Cruz, as Director of the
Regional Police Office for Region 3, caused the creation of Special Investigation Task
GroupCAROJAN (Task Group CAROJAN) to conduct an in-depth investigation on the
abduction of the petitioner, Carabeo and Jandoc.64
Task Group CAROJAN started its inquiry by making a series of background
examinations on the victims of the purported abduction, in order to reveal the
motive behind the abduction and, ultimately, the identity of the perpetrators. 65 Task
Group CAROJAN also maintained liaisons with Karapatan and the Alliance for
Advancement of Peoples Rightsorganizations trusted by petitionerin the hopes
of obtaining the latters participation in the ongoing investigations.66 Unfortunately,
the letters sent by the investigators requesting for the availability of the petitioner
for inquiries were left unheeded.67
The progress of the investigations conducted by Task Group CAROJAN had been
detailed in the reports68 that it submitted to public respondent General Jesus Ame
Verzosa, the Chief of the Philippine National Police. However, as of their latest report
dated 29 June 2009, Task Group CAROJAN is still unable to make a definitive finding
as to the true identity and affiliation of the abductorsa fact that task group
CAROJAN attributes to the refusal of the petitioner, or any of her fellow victims, to
cooperate in their investigative efforts.69
Military Action
Public respondent Gilbert Teodoro, the Secretary of National Defense, first came to
know about the alleged abduction and torture of the petitioner upon receipt of the
Resolution of this Court directing him and the other respondents to file their
return.70 Immediately thereafter, he issued a Memorandum Directive 71 addressed to
the Chief of Staff of the AFP, ordering the latter, among others, to conduct an inquiry
to determine the validity of the accusation of military involvement in the
abduction.72
Acting pursuant to the Memorandum Directive, public respondent General Victor S.
Ibrado, the AFP Chief of Staff, sent an AFP Radio Message73 addressed to public
respondent Lieutenant General Delfin N. Bangit (Lt. Gen. Bangit), the Commanding
General of the Army, relaying the order to cause an investigation on the abduction
of the petitioner.74
For his part, and taking cue from the allegations in the amparo petition, public
respondent Lt. Gen. Bangit instructed public respondent Major General Ralph A.
Villanueva (Maj. Gen. Villanueva), the Commander of the 7th Infantry Division of the
Army based in Fort Magsaysay, to set in motion an investigation regarding the
possible involvement of any personnel assigned at the camp in the purported
abduction of the petitioner.75 In turn, public respondent Maj. Gen. Villanueva tapped
the Office of the Provost Marshal (OPV) of the 7th Infantry Division, to conduct the
investigation.76
On 23 June 2009, the OPV of the 7th Infantry Division released an Investigation
Report77 detailing the results of its inquiry. In substance, the report described
petitioners allegations as "opinionated" and thereby cleared the military from any
involvement in her alleged abduction and torture. 78
The Decision of the Court of Appeals
In its Decision,79 the Court of Appeals gave due weight and consideration to the
petitioners version that she was indeed abducted and then subjected to torture for
five (5) straight days. The appellate court noted the sincerity and resolve by which
the petitioner affirmed the contents of her affidavits in open court, and was thereby
convinced that the latter was telling the truth.80
On the other hand, the Court of Appeals disregarded the argument of the public
respondents that the abduction of the petitioner was "stage managed," as it is
merely based on an unfounded speculation that only the latter and her companions
knew where they were staying at the time they were forcibly taken. 81 The Court of
Appeals further stressed that the Medical Certificate of the petitioner can only affirm
the existence of a true abduction, as its findings are reflective of the very injuries
the latter claims to have sustained during her harrowing ordeal, particularly when
she was handcuffed and then dragged by her abductors onto their van. 82
The Court of Appeals also recognized the existence of an ongoing threat against the
security of the petitioner, as manifested in the attempts of "RC" to contact and
monitor her, even after she was released.83 This threat, according to the Court of
Appeals, is all the more compounded by the failure of the police authorities to
identify the material perpetrators who are still at large. 84 Thus, the appellate court
extended to the petitioner the privilege of the writ of amparo by directing the public
respondents to afford protection to the former, as well as continuing, under the norm
of extraordinary diligence, their existing investigations involving the abduction. 85
The Court of Appeals likewise observed a transgression of the right to informational
privacy of the petitioner, noting the existence of "records of investigations" that
concerns the petitioner as a suspected member of the CPP-NPA. 86 The appellate
court derived the existence of such records from a photograph and video file
presented in a press conference by party-list representatives Jovito Palparan
(Palparan) and Pastor Alcover (Alcover), which allegedly show the petitioner
participating in rebel exercises. Representative Alcover also revealed that the
photograph and video came from a female CPP-NPA member who wanted out of the
organization. According to the Court of Appeals, the proliferation of the photograph
and video, as well as any form of media, insinuating that petitioner is part of the
CPP-NPA does not only constitute a violation of the right to privacy of the petitioner
but also puts further strain on her already volatile security. 87 To this end, the
appellate court granted the privilege of the writ of habeas data mandating the public
respondents to refrain from distributing to the public any records, in whatever form,
relative to petitioners alleged ties with the CPP-NPA or pertinently related to her
abduction and torture.88
The foregoing notwithstanding, however, the Court of Appeals was not convinced
that the military or any other person acting under the acquiescence of the
government, were responsible for the abduction and torture of the petitioner. 89 The
appellate court stressed that, judging by her own statements, the petitioner merely
"believed" that the military was behind her abduction. 90 Thus, the Court of Appeals
absolved the public respondents from any complicity in the abduction and torture of
petitioner.91 The petition was likewise dismissed as against public respondent
President Gloria Macapagal-Arroyo, in view of her immunity from suit. 92
Accordingly, the petitioners prayers for the return of her personal belongings were
denied.93 Petitioners prayers for an inspection order and production order also met
the same fate.94
Hence, this appeal by the petitioner.
AMPARO
A.
Petitioner first contends that the Court of Appeals erred in absolving the public
respondents from any responsibility in her abduction and torture. 95 Corollary to this,
petitioner also finds fault on the part of Court of Appeals in denying her prayer for
the return of her personal belongings.96
Petitioner insists that the manner by which her abduction and torture was carried
out, as well as the sounds of construction, gun-fire and airplanes that she heard
while in detention, as these were detailed in her two affidavits and affirmed by her in
open court, are already sufficient evidence to prove government involvement. 97
Proceeding from such assumption, petitioner invokes the doctrine of command
responsibility to implicate the high-ranking civilian and military authorities she
impleaded as respondents in her amparo petition.98 Thus, petitioner seeks from this
Court a pronouncement holding the respondents as complicit in her abduction and
torture, as well as liable for the return of her belongings. 99
Command Responsibility in Amparo Proceedings
It must be stated at the outset that the use by the petitioner of the doctrine of
command responsibility as the justification in impleading the public respondents in
her amparo petition, is legally inaccurate, if not incorrect. The doctrine of command
responsibility is a rule of substantive law that establishes liability and, by this
account, cannot be a proper legal basis to implead a party-respondent in an amparo
petition.100
The case of Rubrico v. Arroyo,101 which was the first to examine command
responsibility in the context of an amparo proceeding, observed that the doctrine is
used to pinpoint liability. Rubrico notes that:102
The evolution of the command responsibility doctrine finds its context in the
development of laws of war and armed combats. According to Fr. Bernas, "command
responsibility," in its simplest terms, means the "responsibility of commanders for
crimes committed by subordinate members of the armed forces or other persons
subject to their control in international wars or domestic conflict." 103 In this sense,
command responsibility is properly a form of criminal complicity. The Hague
Conventions of 1907 adopted the doctrine of command
responsibility,104 foreshadowing the present-day precept of holding a superior
accountable for the atrocities committed by his subordinates should he be remiss in
his duty of control over them. As then formulated, command responsibility is "an
omission mode of individual criminal liability," whereby the superior is made
responsible for crimes committed by his subordinates for failing to prevent or
punish the perpetrators105 (as opposed to crimes he ordered). (Emphasis in the
orginal, underscoring supplied)
Since the application of command responsibility presupposes an imputation of
individual liability, it is more aptly invoked in a full-blown criminal or administrative
case rather than in a summary amparo proceeding. The obvious reason lies in the
nature of the writ itself:
The writ of amparo is a protective remedy aimed at providing judicial relief
consisting of the appropriate remedial measures and directives that may be crafted
by the court, in order to address specific violations or threats of violation of the
constitutional rights to life, liberty or security. 106 While the principal objective of its
proceedings is the initial determination of whether an enforced disappearance,
extralegal killing or threats thereof had transpiredthe writ does not, by so doing,
fix liability for such disappearance, killing or threats, whether that may be criminal,
civil or administrative under the applicable substantive law.107 The rationale
underpinning this peculiar nature of an amparo writ has been, in turn, clearly set
forth in the landmark case of The Secretary of National Defense v. Manalo: 108
x x x The remedy provides rapid judicial relief as it partakes of a summary
proceeding that requires only substantial evidence to make the appropriate reliefs
available to the petitioner; it is not an action to determine criminal guilt requiring
proof beyond reasonable doubt, or liability for damages requiring preponderance of
evidence, or administrative responsibility requiring substantial evidence that will
require full and exhaustive proceedings.109(Emphasis supplied)
It must be clarified, however, that the inapplicability of the doctrine of command
responsibility in an amparo proceeding does not, by any measure, preclude
impleading military or police commanders on the ground that the complained acts in
the petition were committed with their direct or indirect acquiescence. In which
case, commanders may be impleadednot actually on the basis of command
responsibilitybut rather on the ground of their responsibility, or at least
accountability. In Razon v. Tagitis,110 the distinct, but interrelated concepts of
responsibility and accountability were given special and unique significations in
relation to an amparo proceeding, to wit:
x x x Responsibility refers to the extent the actors have been established by
substantial evidence to have participated in whatever way, by action or omission, in
an enforced disappearance, as a measure of the remedies this Court shall craft,
among them, the directive to file the appropriate criminal and civil cases against the
responsible parties in the proper courts. Accountability, on the other hand, refers
to the measure of remedies that should be addressed to those who exhibited
involvement in the enforced disappearance without bringing the level of their
complicity to the level of responsibility defined above; or who are imputed with
knowledge relating to the enforced disappearance and who carry the burden of
disclosure; or those who carry, but have failed to discharge, the burden of
extraordinary diligence in the investigation of the enforced disappearance.
Responsibility of Public Respondents
At any rate, it is clear from the records of the case that the intent of the petitioner in
impleading the public respondents is to ascribe some form of responsibility on their
part, based on her assumption that they, in one way or the other, had condoned her
abduction and torture.111
To establish such assumption, petitioner attempted to show that it was government
agents who were behind her ordeal. Thus, the petitioner calls attention to the
circumstances surrounding her abduction and torturei.e., the forcible taking in
broad daylight; use of vehicles with no license plates; utilization of blindfolds;
conducting interrogations to elicit communist inclinations; and the infliction of
physical abusewhich, according to her, is consistent with the way enforced
disappearances are being practiced by the military or other state forces. 112
Moreover, petitioner also claims that she was held inside the military camp Fort
Magsaysaya conclusion that she was able to infer from the travel time required to
reach the place where she was actually detained, and also from the sounds of
construction, gun-fire and airplanes she heard while thereat. 113
We are not impressed. The totality of the evidence presented by the petitioner does
not inspire reasonable conclusion that her abductors were military or police
personnel and that she was detained at Fort Magsaysay.
First. The similarity between the circumstances attending a particular case of
abduction with those surrounding previous instances of enforced disappearances
does not, necessarily, carry sufficient weight to prove that the government
orchestrated such abduction. We opine that insofar as the present case is
concerned, the perceived similarity cannot stand as substantial evidence of the
involvement of the government.
In amparo proceedings, the weight that may be accorded to parallel circumstances
as evidence of military involvement depends largely on the availability or non-
availability of other pieces of evidence that has the potential of directly proving the
identity and affiliation of the perpetrators. Direct evidence of identity, when
obtainable, must be preferred over mere circumstantial evidence based on patterns
and similarity, because the former indubitably offers greater certainty as to the true
identity and affiliation of the perpetrators. An amparo court cannot simply leave to
remote and hazy inference what it could otherwise clearly and directly ascertain.
In the case at bench, petitioner was, in fact, able to include in her Offer of
Exhibits,114 the cartographic sketches115 of several of her abductors whose faces she
managed to see. To the mind of this Court, these cartographic sketches have the
undeniable potential of giving the greatest certainty as to the true identity and
affiliation of petitioners abductors. Unfortunately for the petitioner, this potential
has not been realized in view of the fact that the faces described in such sketches
remain unidentified, much less have been shown to be that of any military or police
personnel. Bluntly stated, the abductors were not proven to be part of either the
military or the police chain of command.
Second. The claim of the petitioner that she was taken to Fort Magsaysay was not
adequately established by her mere estimate of the time it took to reach the place
where she was detained and by the sounds that she heard while thereat. Like the
Court of Appeals, We are not inclined to take the estimate and observations of the
petitioner as accurate on its facenot only because they were made mostly while
she was in blindfolds, but also in view of the fact that she was a mere sojourner in
the Philippines, whose familiarity with Fort Magsaysay and the travel time required
to reach it is in itself doubtful.116 With nothing else but obscure observations to
support it, petitioners claim that she was taken to Fort Magsaysay remains a mere
speculation.
In sum, the petitioner was not able to establish to a concrete point that her
abductors were actually affiliated, whether formally or informally, with the military or
the police organizations. Neither does the evidence at hand prove that petitioner
was indeed taken to the military camp Fort Magsaysay to the exclusion of other
places. These evidentiary gaps, in turn, make it virtually impossible to determine
whether the abduction and torture of the petitioner was in fact committed with the
acquiescence of the public respondents. On account of this insufficiency in evidence,
a pronouncement of responsibility on the part of the public respondents, therefore,
cannot be made.
Prayer for the Return of Personal Belongings
This brings Us to the prayer of the petitioner for the return of her personal
belongings.
In its decision, the Court of Appeals denied the above prayer of the petitioner by
reason of the failure of the latter to prove that the public respondents were involved
in her abduction and torture.117 We agree with the conclusion of the Court of
Appeals, but not entirely with the reason used to support it. To the mind of this
Court, the prayer of the petitioner for the return of her belongings is doomed to fail
regardless of whether there is sufficient evidence to hold public respondents
responsible for the abduction of the petitioner.
In the first place, an order directing the public respondents to return the personal
belongings of the petitioner is already equivalent to a conclusive pronouncement of
liability. The order itself is a substantial relief that can only be granted once the
liability of the public respondents has been fixed in a full and exhaustive proceeding.
As already discussed above, matters of liability are not determinable in a mere
summary amparo proceeding.118
But perhaps the more fundamental reason in denying the prayer of the petitioner,
lies with the fact that a persons right to be restituted of his property is already
subsumed under the general rubric of property rightswhich are no longer
protected by the writ of amparo.119 Section 1 of the Amparo Rule,120 which defines
the scope and extent of the writ, clearly excludes the protection of property rights.
B.
The next error raised by the petitioner is the denial by the Court of Appeals of her
prayer for an inspection of the detention areas of Fort Magsaysay. 121
Considering the dearth of evidence concretely pointing to any military involvement
in petitioners ordeal, this Court finds no error on the part of the Court of Appeals in
denying an inspection of the military camp at Fort Magsaysay. We agree with the
appellate court that a contrary stance would be equivalent to sanctioning a "fishing
expedition," which was never intended by the Amparo Rule in providing for the
interim relief of inspection order.122 Contrary to the explicit position123 espoused by
the petitioner, the Amparo Rule does not allow a "fishing expedition" for evidence.
An inspection order is an interim relief designed to give support or strengthen the
claim of a petitioner in an amparo petition, in order to aid the court before making a
decision.124 A basic requirement before an amparo court may grant an inspection
order is that the place to be inspected is reasonably determinable from the
allegations of the party seeking the order. While the Amparo Rule does not require
that the place to be inspected be identified with clarity and precision, it is,
nevertheless, a minimum for the issuance of an inspection order that the supporting
allegations of a party be sufficient in itself, so as to make a prima facie case. This, as
was shown above, petitioner failed to do.
Since the very estimates and observations of the petitioner are not strong enough to
make out a prima facie case that she was detained in Fort Magsaysay, an inspection
of the military camp cannot be ordered. An inspection order cannot issue on the
basis of allegations that are, in themselves, unreliable and doubtful.
HABEAS DATA
As earlier intimated, the Court of Appeals granted to the petitioner the privilege of
the writ of habeas data, by enjoining the public respondents from "distributing or
causing the distribution to the public any records in whatever form, reports,
documents or similar papers" relative to the petitioners "alleged ties with the CPP-
NPA or pertinently related to her abduction and torture." Though not raised as an
issue in this appeal, this Court is constrained to pass upon and review this particular
ruling of the Court of Appeals in order to rectify, what appears to Us, an error
infecting the grant.
For the proper appreciation of the rationale used by the Court of Appeals in granting
the privilege of the writ of habeas data, We quote hereunder the relevant
portion125 of its decision:
Under these premises, Petitioner prayed that all the records, intelligence reports and
reports on the investigations conducted on Melissa C. Roxas or Melissa Roxas be
produced and eventually expunged from the records. Petitioner claimed to be
included in the Governments Order of Battle under Oplan Bantay Laya which listed
political opponents against whom false criminal charges were filed based on made
up and perjured information.
Pending resolution of this petition and before Petitioner could testify before Us, Ex-
army general Jovito Palaparan, Bantay party-list, and Pastor Alcover of the Alliance
for Nationalism and Democracy party-list held a press conference where they
revealed that they received an information from a female NPA rebel who wanted out
of the organization, that Petitioner was a communist rebel. Alcover claimed that said
information reached them thru a letter with photo of Petitioner holding firearms at
an NPA training camp and a video CD of the training exercises.
Clearly, and notwithstanding Petitioners denial that she was the person in said
video, there were records of other investigations on Melissa C. Roxas or Melissa
Roxas which violate her right to privacy. Without a doubt, reports of such nature
have reasonable connections, one way or another, to petitioners abduction where
she claimed she had been subjected to cruelties and dehumanizing acts which
nearly caused her life precisely due to allegation of her alleged membership in the
CPP-NPA. And if said report or similar reports are to be continuously made available
to the public, Petitioners security and privacy will certainly be in danger of being
violated or transgressed by persons who have strong sentiments or aversion against
members of this group. The unregulated dissemination of said unverified video CD
or reports of Petitioners alleged ties with the CPP-NPA indiscriminately made
available for public consumption without evidence of its authenticity or veracity
certainly violates Petitioners right to privacy which must be protected by this Court.
We, thus, deem it necessary to grant Petitioner the privilege of the Writ of Habeas
Data. (Emphasis supplied).
The writ of habeas data was conceptualized as a judicial remedy enforcing the right
to privacy, most especially the right to informational privacy of individuals. 126 The
writ operates to protect a persons right to control information regarding himself,
particularly in the instances where such information is being collected through
unlawful means in order to achieve unlawful ends.
Needless to state, an indispensable requirement before the privilege of the writ may
be extended is the showing, at least by substantial evidence, of an actual or
threatened violation of the right to privacy in life, liberty or security of the
victim.127 This, in the case at bench, the petitioner failed to do.
The main problem behind the ruling of the Court of Appeals is that there is actually
no evidence on record that shows that any of the public respondents had violated or
threatened the right to privacy of the petitioner. The act ascribed by the Court of
Appeals to the public respondents that would have violated or threatened the right
to privacy of the petitioner, i.e., keeping records of investigations and other reports
about the petitioners ties with the CPP-NPA, was not adequately proven
considering that the origin of such records were virtually unexplained and its
existence, clearly, only inferred by the appellate court from the video and
photograph released by Representatives Palparan and Alcover in their press
conference. No evidence on record even shows that any of the public respondents
had access to such video or photograph.
In view of the above considerations, the directive by the Court of Appeals enjoining
the public respondents from "distributing or causing the distribution to the public
any records in whatever form, reports, documents or similar papers" relative to the
petitioners "alleged ties with the CPP-NPA," appears to be devoid of any legal basis.
The public respondents cannot be ordered to refrain from distributing something
that, in the first place, it was not proven to have.
Verily, until such time that any of the public respondents were found to be actually
responsible for the abduction and torture of the petitioner, any inference regarding
the existence of reports being kept in violation of the petitioners right to privacy
becomes farfetched, and premature.
For these reasons, this Court must, at least in the meantime, strike down the grant
of the privilege of the writ of habeas data.
DISPOSITION OF THE CASE
Our review of the evidence of the petitioner, while telling of its innate insufficiency
to impute any form of responsibility on the part of the public respondents, revealed
two important things that can guide Us to a proper disposition of this case. One, that
further investigation with the use of extraordinary diligence must be made in order
to identify the perpetrators behind the abduction and torture of the petitioner; and
two, that the Commission on Human Rights (CHR), pursuant to its Constitutional
mandate to "investigate all forms of human rights violations involving civil and
political rights and to provide appropriate legal measures for the protection of
human rights,"128must be tapped in order to fill certain investigative and remedial
voids.
Further Investigation Must Be Undertaken
Ironic as it seems, but part and parcel of the reason why the petitioner was not able
to adduce substantial evidence proving her allegations of government complicity in
her abduction and torture, may be attributed to the incomplete and one-sided
investigations conducted by the government itself. This "awkward" situation,
wherein the very persons alleged to be involved in an enforced disappearance or
extralegal killing are, at the same time, the very ones tasked by law to investigate
the matter, is a unique characteristic of these proceedings and is the main source of
the "evidentiary difficulties" faced by any petitioner in any amparo case. 129
Cognizant of this situation, however, the Amparo Rule placed a potent safeguard
requiring the "respondent who is a public official or employee" to prove that no less
than "extraordinary diligence as required by applicable laws, rules and regulations
was observed in the performance of duty."130 Thus, unless and until any of the public
respondents is able to show to the satisfaction of the amparo court that
extraordinary diligence has been observed in their investigations, they cannot shed
the allegations of responsibility despite the prevailing scarcity of evidence to that
effect.
With this in mind, We note that extraordinary diligence, as required by the Amparo
Rule, was not fully observed in the conduct of the police and military investigations
in the case at bar.
A perusal of the investigation reports submitted by Task Group CAROJAN shows
modest effort on the part of the police investigators to identify the perpetrators of
the abduction. To be sure, said reports are replete with background checks on the
victims of the abduction, but are, at the same time, comparatively silent as to other
concrete steps the investigators have been taking to ascertain the authors of the
crime. Although conducting a background investigation on the victims is a logical
first step in exposing the motive behind the abductionits necessity is clearly
outweighed by the need to identify the perpetrators, especially in light of the fact
that the petitioner, who was no longer in captivity, already came up with allegations
about the motive of her captors.
Instead, Task Group CAROJAN placed the fate of their investigations solely on the
cooperation or non-cooperation of the petitionerwho, they claim, was less than
enthusiastic in participating in their investigative efforts.131 While it may be
conceded that the participation of the petitioner would have facilitated the progress
of Task Group CAROJANs investigation, this Court believes that the formers
reticence to cooperate is hardly an excuse for Task Group CAROJAN not to explore
other means or avenues from which they could obtain relevant leads. 132 Indeed,
while the allegations of government complicity by the petitioner cannot, by
themselves, hold up as adequate evidence before a court of lawthey are,
nonetheless, a vital source of valuable investigative leads that must be pursued and
verified, if only to comply with the high standard of diligence required by the Amparo
Rule in the conduct of investigations.
Assuming the non-cooperation of the petitioner, Task Group CAROJANs reports still
failed to explain why it never considered seeking the assistance of Mr. Jesus Paolo
who, along with the victims, is a central witness to the abduction. The reports of
Task Group CAROJAN is silent in any attempt to obtain from Mr. Paolo, a cartographic
sketch of the abductors or, at the very least, of the one who, by petitioners account,
was not wearing any mask.1avvphi1
The recollection of Mr. Paolo could have served as a comparative material to the
sketches included in petitioners offer of exhibits that, it may be pointed out, were
prepared under the direction of, and first submitted to, the CHR pursuant to the
latters independent investigation on the abduction and torture of the
petitioner.133 But as mentioned earlier, the CHR sketches remain to be unidentified
as of this date.
In light of these considerations, We agree with the Court of Appeals that further
investigation under the norm of extraordinary diligence should be undertaken. This
Court simply cannot write finis to this case, on the basis of an incomplete
investigation conducted by the police and the military. In a very real sense, the right
to security of the petitioner is continuously put in jeopardy because of the deficient
investigation that directly contributes to the delay in bringing the real perpetrators
before the bar of justice.
To add teeth to the appellate courts directive, however, We find it fitting, nay,
necessary to shift the primary task of conducting further investigations on the
abduction and torture of the petitioner upon the CHR.134 We note that the CHR,
unlike the police or the military, seems to enjoy the trust and confidence of the
petitioneras evidenced by her attendance and participation in the hearings already
conducted by the commission.135 Certainly, it would be reasonable to assume from
such cooperation that the investigations of the CHR have advanced, or at the very
least, bears the most promise of advancing farther, in terms of locating the
perpetrators of the abduction, and is thus, vital for a final resolution of this petition.
From this perspective, We also deem it just and appropriate to relegate the task of
affording interim protection to the petitioner, also to the CHR.
Hence, We modify the directive of the Court of the Appeals for further investigation,
as follows
1.) Appointing the CHR as the lead agency tasked with conducting further
investigation regarding the abduction and torture of the petitioner.
Accordingly, the CHR shall, under the norm of extraordinary diligence, take
or continue to take the necessary steps: (a) to identify the persons
described in the cartographic sketches submitted by the petitioner, as well
as their whereabouts; and (b) to pursue any other leads relevant to
petitioners abduction and torture.
2.) Directing the incumbent Chief of the Philippine National Police (PNP), or
his successor, and the incumbent Chief of Staff of the AFP, or his successor,
to extend assistance to the ongoing investigation of the CHR, including but
not limited to furnishing the latter a copy of its personnel records circa the
time of the petitioners abduction and torture, subject to reasonable
regulations consistent with the Constitution and existing laws.
3.) Further directing the incumbent Chief of the PNP, or his successor, to
furnish to this Court, the Court of Appeals, and the petitioner or her
representative, a copy of the reports of its investigations and their
recommendations, other than those that are already part of the records of
this case, within ninety (90) days from receipt of this decision.
4.) Further directing the CHR to (a) furnish to the Court of Appeals within
ninety (90) days from receipt of this decision, a copy of the reports on its
investigation and its corresponding recommendations; and to (b) provide or
continue to provide protection to the petitioner during her stay or visit to
the Philippines, until such time as may hereinafter be determined by this
Court.
Accordingly, this case must be referred back to the Court of Appeals, for the
purposes of monitoring compliance with the above directives and determining
whether, in light of any recent reports or recommendations, there would already be
sufficient evidence to hold any of the public respondents responsible or, at least,
accountable. After making such determination, the Court of Appeals shall submit its
own report with recommendation to this Court for final action. The Court of Appeals
will continue to have jurisdiction over this case in order to accomplish its tasks under
this decision.
WHEREFORE, the instant petition is PARTIALLY MERITORIOUS. We hereby render
a decision:
1.) AFFIRMING the denial of the petitioners prayer for the return of her
personal belongings;
2.) AFFIRMING the denial of the petitioners prayer for an inspection of the
detention areas of Fort Magsaysay.
3.) REVERSING the grant of the privilege of habeas data, without prejudice,
however, to any modification that this Court may make on the basis of the
investigation reports and recommendations submitted to it under this
decision.
4.) MODIFYING the directive that further investigation must be undertaken,
as follows
a. APPOINTING the Commission on Human Rights as the lead
agency tasked with conducting further investigation regarding the
abduction and torture of the petitioner. Accordingly, the
Commission on Human Rights shall, under the norm of
extraordinary diligence, take or continue to take the necessary
steps: (a) to identify the persons described in the cartographic
sketches submitted by the petitioner, as well as their
whereabouts; and (b) to pursue any other leads relevant to
petitioners abduction and torture.
b. DIRECTING the incumbent Chief of the Philippine National Police,
or his successor, and the incumbent Chief of Staff of the Armed
Forces of the Philippines, or his successor, to extend assistance to
the ongoing investigation of the Commission on Human Rights,
including but not limited to furnishing the latter a copy of its
personnel records circa the time of the petitioners abduction and
 torture, subject to reasonable regulations consistent with the
Constitution and existing laws.

c. Further DIRECTING the incumbent Chief of the Philippine

National Police, or his successor, to furnish to this Court, the Court
of Appeals, and the petitioner or her representative, a copy of the
reports of its investigations and their recommendations, other
than those that are already part of the records of this case, within
ninety (90) days from receipt of this decision.

d. Further DIRECTING the Commission on Human Rights (a) to

furnish to the Court of Appeals within ninety (90) days from receipt
of this decision, a copy of the reports on its investigation and its
corresponding recommendations; and (b) to provide or continue to
provide protection to the petitioner during her stay or visit to the
Philippines, until such time as may hereinafter be determined by
this Court.

5.) REFERRING BACK the instant case to the Court of Appeals for the
following purposes:

a. To MONITOR the investigations and actions taken by the PNP,

AFP, and the CHR;

b. To DETERMINE whether, in light of the reports and

recommendations of the CHR, the abduction and torture of the
petitioner was committed by persons acting under any of the
public respondents; and on the basis of this determination

c. To SUBMIT to this Court within ten (10) days from receipt of the
report and recommendation of the Commission on Human Rights
its own report, which shall include a recommendation either for
the DISMISSAL of the petition as against the public respondents
who were found not responsible and/or accountable, or for the
APPROPRIATE REMEDIAL MEASURES, AS MAY BE ALLOWED BY THE
AMPARO AND HABEAS DATA RULES, TO BE UNDERTAKEN as
against those found responsible and/or accountable.

Accordingly, the public respondents shall remain personally impleaded in this

petition to answer for any responsibilities and/or accountabilities they may have
incurred during their incumbencies.

Other findings of the Court of Appeals in its Decision dated 26 August 2009 in CA-
G.R. SP No. 00036-WRA that are not contrary to this decision are AFFIRMED.

SO ORDERED.

JOSE PORTUGAL PEREZ

Associate Justice
Burgos vs. Esperon Jr., 715 SCRA 208, G.R. No. 183713 February 4, 2014
Constitutional Law; Writ of Amparo; Enforced Disappearances; As the Supreme Court
held in Razon, Jr. vs. Tagitis, 606 SCRA 598 (2009), the writ of amparo merely
embodies the Courts directives to police agencies to undertake specified courses of
action to address the enforced disappearance of an individual.We note and
conclude, based on the developments highlighted above, that the beneficial purpose
of the Writ of Amparo has been served in the present case. As we held in Razon, Jr. v.
Tagitis, 606 SCRA 598 (2009), the writ merely embodies the Courts directives to
police agencies to undertake specified courses of action to address the enforced
disappearance of an individual. The Writ of Amparo serves both a preventive and a
curative role. It is curative as it facilitates the subsequent punishment of
perpetrators through the investigation and remedial action that it directs. The focus
is on procedural curative remedies rather than on the tracking of a specific criminal
or the resolution of administrative liabilities. The unique nature of Amparo
proceedings has led us to define terms or concepts specific to what the proceedings
seek to achieve. In Razon Jr. v. Tagitis, we defined what the terms responsibility
and accountability signify in an Amparo case. We said: 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.
Same; Same; Same; The Supreme Court emphasized that its role in a writ of amparo
proceeding is merely to determine whether an enforced disappearance has taken
place; to determine who is responsible or accountable; and to define and impose the
appropriate remedies to address the disappearance.As a final note, we emphasize
that our ROLE in a writ of Amparo proceeding is merely to determine whether an
enforced disappearance has taken place; to determine who is responsible or
accountable; and to define and impose the appropriate remedies to address the
disappearance. As shown above, the beneficial purpose of the Writ of Amparo has
been served in the present case with the CAs final determination of the persons
responsible and accountable for the enforced disappearance of Jonas and the
commencement of criminal action against Lt. Baliaga. At this stage, criminal,
investigation and prosecution proceedings are already beyond the reach of the Writ
of Amparo proceeding now before us. Burgos vs. Esperon Jr., 715 SCRA 208, G.R. No.
183713 February 4, 2014
G.R. No. 183711 July 5, 2011
EDITA T. BURGOS, Petitioner,
vs.
PRESIDENT GLORIA MACAPAGAL-ARROYO, GEN. HERMOGENES ESPERON,
JR., LT. GEN. ROMEO P. TOLENTINO, MAJ. GEN. JUANITO GOMEZ, MAJ. GEN.
DELFIN BANGIT, LT. COL. NOEL CLEMENT, LT. COL. MELQUIADES FELICIANO,
DIRECTOR GENERAL OSCAR CALDERON, Respondents.
x - - - - - - - - - - - - - - - - - - - - - - -x
G.R. No. 183712
EDITA T. BURGOS, Petitioner,
vs.
PRESIDENT GLORIA MACAPAGAL ARROYO, GEN. HERMOGENES ESPERON,
JR., LT. GEN. ROMEO P. TOLENTINO, MAJ. GEN. JUANITO GOMEZ, LT. COL.
MELQUIADES FELICIANO, LT. COL. NOEL CLEMENT, Respondents.
x - - - - - - - - - - - - - - - - - - - - - - -x
G.R. No. 183713
EDITA T. BURGOS, Petitioner,
vs.
CHIEF OF STAFF OF THE ARMED FORCES OF THE PHILIPPINES, GEN.
HERMOGENES ESPERON, JR., Commanding General of the Philippine Army,
LT. GEN. ALEXANDER YANO; Chief of the Philippine National Police,
DIRECTOR GENERAL AVELINO RAZON, JR., Respondents.
RESOLUTION
BRION, J.:
We review,1 in light of the latest developments in this case, the decision 2 dated July
17, 2008 of the Court of Appeals (CA) in the consolidated petitions for Habeas
Corpus,3 Contempt4 and Writ of Amparo5 filed by Edita T. Burgos (petitioner). The
assailed CA decision dismissed the petition for the issuance of the Writ of Habeas
Corpus; denied the petitioners motion to declare the respondents in Contempt; and
partially granted the privilege of the Writ of Amparo.6
On June 22, 2010, we issued a Resolution7 referring the present case to the
Commission on Human Rights (CHR), as the Courts directly commissioned agency
tasked with the continuation of the investigation of Jonas Joseph T. Burgos
abduction and the gathering of evidence, with the obligation to report its factual
findings and recommendations to this Court. We found the referral necessary as the
investigation by the PNP-CIDG, by the AFP Provost Marshal, and even by the CHR
had been less than complete; for one, there were very significant lapses in the
handling of the investigation. In particular, we highlighted the PNP-CIDGs failure to
identify the cartographic sketches of two (one male and one female) of the five
abductors of Jonas, based on their interview of eyewitnesses to the abduction. 8 We
held:
Considering the findings of the CA and our review of the records of the present case,
we conclude that the PNP and the AFP have so far failed to conduct an exhaustive
and meaningful investigation into the disappearance of Jonas Burgos, and to
exercise the extraordinary diligence (in the performance of their duties) that the
Rule on the Writ of Amparo requires. Because of these investigative shortcomings,
we cannot rule on the case until a more meaningful investigation, using
extraordinary diligence, is undertaken.
From the records, we note that there are very significant lapses in the
handling of the investigation - among them the PNP-CIDGs failure to identify the
cartographic sketches of two (one male and one female) of the five abductors of
Jonas based on their interview of eyewitnesses to the abduction. This lapse is based
on the information provided to the petitioner by no less than State Prosecutor
Emmanuel Velasco of the DOJ who identified the persons who were possibly involved
in the abduction, namely: T/Sgt. Jason Roxas (Philippine Army), Cpl. Maria Joana
Francisco (Philippine Air Force), M/Sgt. Aron Arroyo (Philippine Air Force), and an
alias T.L., all reportedly assigned with Military Intelligence Group 15 of Intelligence
Service of the AFP. No search and certification were ever made on whether these
persons were AFP personnel or in other branches of the service, such as the
Philippine Air Force. As testified to by the petitioner, no significant follow through
was also made by the PNP-CIDG in ascertaining the identities of the cartographic
sketches of two of the abductors despite the evidentiary leads provided by State
Prosecutor Velasco of the DOJ. Notably, the PNP-CIDG, as the lead investigating
agency in the present case, did not appear to have lifted a finger to pursue these
aspects of the case.
We note, too, that no independent investigation appeared to have been made by the
PNP-CIDG to inquire into the veracity of Lipios and Manuels claims that Jonas was
abducted by a certain @KA DANTE and a certain @KA ENSO of the CPP/NPA guerilla
unit RYG. The records do not indicate whether the PNP-CIDG conducted a follow-up
investigation to determine the identities and whereabouts of @KA Dante and @KA
ENSO. These omissions were aggravated by the CA finding that the PNP has yet to
refer any case for preliminary investigation to the DOJ despite its representation
before the CA that it had forwarded all pertinent and relevant documents to the DOJ
for the filing of appropriate charges against @KA DANTE and @KA ENSO.
While significant leads have been provided to investigators, the investigations by
the PNP-CIDG, the AFP Provost Marshal, and even the Commission on Human Rights
(CHR) have been less than complete. The PNP-CIDGs investigation particularly
leaves much to be desired in terms of the extraordinary diligence that the Rule on
the Writ of Amparo requires.
Following the CHRs legal mandate, we gave the Commission the following specific
directives:9
(a) ascertaining the identities of the persons appearing in the cartographic
sketches of the two alleged abductors as well as their whereabouts;
(b) determining based on records, past and present, the identities and
locations of the persons identified by State Prosecutor Velasco alleged to be
involved in the abduction of Jonas, namely: T/Sgt. Jason Roxas (Philippine
Army); Cpl. Maria Joana Francisco (Philippine Air Force), M/Sgt. Aron Arroyo
(Philippine Air Force), and an alias T.L., all reportedly assigned with Military
Intelligence Group 15 of Intelligence Service of the AFP; further proceedings
and investigations, as may be necessary, should be made to pursue the
lead allegedly provided by State Prosecutor Velasco on the identities of the
possible abductors;
(c) inquiring into the veracity of Lipios and Manuels claims that Jonas was
abducted by a certain @KA DANTE and @KA ENSO of the CPP/NPA guerilla
unit RYG;
(d) determining based on records, past and present, as well as further
investigation, the identities and whereabouts of @KA DANTE and @KA
ENSO; and
(e) undertaking all measures, in the investigation of the Burgos abduction,
that may be necessary to live up to the extraordinary measures we require
in addressing an enforced disappearance under the Rule on the Writ
of Amparo.
In this same Resolution, we also affirmed the CAs dismissal of the petitions for
Contempt and for the issuance of a Writ of Amparo with respect to President
Macapagal-Arroyo, as she is entitled as President to immunity from suit. 10
On March 15, 2011, the CHR submitted to the Court its Investigation Report on the
Enforced Disappearance of Jonas Burgos (CHR Report), in compliance with our June
22, 2010 Resolution.11 In this Report, the CHR recounted the investigations
undertaken, whose pertinent details we quote below:
On June 26, 2010, the CHR issued Resolution CHR IV No. A2010-100 to intensify the
investigation of the case of the Burgos enforced disappearance; and for this
purpose, created a Special Investigation Teamheaded by Commissioner Jose
Manuel S. Mamauag.
xxx
In compliance with the directive mentioned in the above-quoted En Banc Resolution
of the Supreme Court, the Team conducted field investigations by: (1) interviewing
a) civilian authorities involved in the first investigation of the instant case; b)
military men under detention for alleged violations of Articles of War; c) Security
Officers of Ever Gotesco Mall, Commonwealth Avenue, Quezon City; d) two (2) of the
three (3) CIDG witnesses; e) two (2) eyewitnesses who described to the police
sketch artist two (2) faces of a male and female abductors of Jonas Burgos; f) Rebel-
Returnees (RRs); g) officers and men in the military and police service; h) local
officials and other government functionaries; and i) ordinary citizens; (2) inquiring
into the veracity of CIDG witnesses Lipios and Manuels claims that Jonas was
abducted by a certain @KA DANTE and @KA ENSO of the CPP/NPA guerilla unit RYG;
(3) securing case records from the prosecution service and courts of law; (4) visiting
military and police units. Offices, camps, detention centers, and jails and requesting
copies of documents and records in their possession that are relevant to the instant
case; (5) searching for and interviewing witnesses and informants; and (6) pursuing
leads provided by them.
S. Emails "Star-Struck"
38. Pursuing the lead mentioned in the anonymous e-mail, which was attached to
the Burgos petition as Exhibit "J", "that the team leader (T.L.) in the Jonas Burgos
abduction was a certain Army Captain, (promotable to Major), a good looking guy
(tisoy), and a potential showbiz personality known otherwise as Captain Star-struck,"
the Team requested the CHR Clearance Section, Legal Division for any information
leading to T.L. or to all Philippine Army applicants for CHR clearance whose ranks are
Captains or Majors promoted during the years 2007 to 2009.
39. Sometime in November 2010, the Team was able to track down one CHR
clearance-applicant who most likely possesses and/or matches the information
provided in the said lead. But when his photo/picture was presented to the
eyewitnesses, they failed to identify him.
40. Undaunted with the negative identification, the Team suspected that the "team
leader" might not have participated in the actual abduction inside Hapag Kainan
Restaurant, the scene of the crime, but most probably was in one of the "three cars"
allegedly used during the operation while giving orders or commanding the actual
abductors.
41. In relation to the above suspicion, the Team has theorized that officers below the
rank of Captain might have perpetrated the actual abduction.
42. The Team explored this possibility and focused its attention on the officers of the
7th ID, PA, namely: Lt. Vicente O. Dagdag, Jr., the S-4 of 65 IB who executed an
affidavit relative to the alleged stolen Plate No. TAB-194; 2Lt. Rey B. Dequito of 56th
IB, the witness against Edmond Dag-Uamn for the alleged crime of murder; and 1Lt.
Usmalik Tayaban, the Team Leader with the 56th IB who issued a Custody Receipt in
connection with the Petition for Habeas Corpus filed in Angeles City relative to the
2006 Emerito Lipio abduction case against the police and military personnel.
T. Face-book account
43. Google search of the names of the above mentioned individuals yielded negative
result except for 1Lt. Usmalik Tayaban, whose name was connected to a social
networking site, the Face-book account of PMA BATCH SANGHAYA 2000.
44. In the Facebook account Sanghaya, the contents of which is categorized as
"PUBLIC" or open to public viewing, it appears that "Malik" Tayaban is a graduate of
the Philippine Military Academy (PMA) Batch Sanghaya of 2000. Other leads were
also discovered, such as the following: vernacular description of "tisoy" which was
mentioned by one of the users in the "comment portion" of the account which
incidentally was also mentioned in the anonymous e-mail as the "team leader" (T.L.);
the picture of a man sporting a "back-pack", which was also mentioned by witness
Elsa. Per Elsas account, the person in the cartographic sketch was wearing a "back-
pack."
45. Aware of the intricacies of the above-mentioned leads, the Team caused the
reproduction of all pictures in the Facebook account for future reference; and
requested the NBI (Burgos) Team for a copy of the PMA Sanghaya Batch 2000 Year
Book, also for future reference.
U. The PMA Year Book
46. Through the efforts of the NBI (Burgos) Team, the Team was able to get the PMA
Year Book of Sanghaya Batch 2000 and the location of one important eyewitness in
the abduction.
V. JEFFREY CABINTOY
47. On December 1, 2010, the Team together with the NBI Team were able to locate
Jeffrey Cabintoy (Jeffrey), one of the two (2) eyewitnesses who provided the police
cartographic artist with the description of two (2) principal abductors of Jonas
Burgos. Jeffrey narrated in details (sic) the circumstances that happened before and
during the abduction.
48. On December 7, 2010, the Team and Jeffrey went to the place of incident at Ever
Gotesco Mall, Quezon City to refresh his memory and re-enact what transpired. In
the afternoon of the same date, the Team invited Jeffrey to the CHR Central Office in
Quezon City, where he was shown for identification twenty (20) copies of colored
photographs/pictures of men and the almost two hundred forty-four (244)
photographs/pictures stored in the computer and lifted from the profiles of the
Philippine Military Academy Year Book of Batch Sanghaya 2000.
49. Jeffrey pointed to a man in the two (2) colored group pictures/photographs, that
he identified as among the 8-man group who abducted Jonas Burgos. For record and
identification purposes, the Team encircled the face that Jeffrey identified in the two
pictures; then he affixed his signature on each picture. Also, while leafing through
the pictures of the PMA graduates in the Year Book of Sanghaya 2000 Batch, the
witness identified a picture, with a bold and all-capitalized name HARRY AGAGEN
BALIAGA JR and the words Agawa, Besao, Mt. Province printed there under the
capitalized words PHILIPPINE ARMY written on the upper portion, as the same person
he pointed out in the two group pictures just mentioned above. Immediately
thereafter, the Team caused the production of the photo identified by Jeffrey and
asked him to affix his signature, which he also did.
50. After examining each of these pictures, Jeffrey declared that it dawned on him
that based on his recollection of faces involved in the abduction of Jonas Burgos, he
now remembers the face of a man, other than the two (2) faces whose description
he already provided before to a police sketch artist, who was part of the 8-man
group of abductors. And he also confirms it now that the person he is referring to
was indeed seen by him as one of those who abducted Jonas Burgos at Hapag
Kainan Restaurant of Ever Gotesco Mall, Commonwealth Avenue, Quezon City.
51. When asked how certain he was of the person he identified, considering that the
printed copy of the photo lifted from the Face-book Sanghaya Account was taken
sometime in the year 2010; while the picture appearing in the computer was lifted
from the PMA Sanghaya 2000 Batch Year Book, Jeffrey replied "Ang taong ito ay
aking natatandaan sa kadahilanan na nuong una siya ay nakaupo na katabi sa
bandang kaliwa nang taong dumukot at natapos silang mag usap lumapit sa akin at
pilit akong pinipigilan na wag daw makialam at ang sabi nya sa akin ay "WAG KA
DITONG MAKIALAM KASI ANG TAONG ITO AY MATAGAL NA NAMING SINUSUBAYBAYAN
DAHIL SA DROGA" kahit pa halos nagmamakaawa na nang tulong ang taong
dinukot; at matapos nuon ay sapilitan na nilang binitbit sa labas ang biktima." ( I
remember this man for the reason that at first he was seated at the left side of the
person abducted; and after they talked, he approached me and was preventing me
forcefully saying not to interfere and he said to me: "DONT YOU INTERFERE HERE
SINCE WE HAVE BEEN DOING SOME SURVEILLANCE ON THIS MAN FOR SOME TIME
ALREADY BECAUSE OF DRUGS" despite that the man was already pleading for help,
and after that, they forcibly dragged the victim outside.)
52. When asked if he could identify the picture of Jonas Burgos, Jeffrey affirmed that
the person in the picture is the person referred to by him as the victim of abduction
and his name is Jonas Burgos. He further stated that he learned of the victims name
when he saw his picture flashed on TV and hear his name. When asked if he is
willing to execute an affidavit on the facts that he has just provided, he answered
yes and at that juncture the Team assisted him in the preparation of his
"Sinumpaang Salaysay" based on his personal knowledge and in a language known
to him. After which, the Team asked Jeffrey to read, examine and determine whether
all the information he just provided are reflected in his "Sinumpaang Salaysay" and
Jeffrey answered yes. Thereafter, Jeffrey affixed his signature after being sworn to
before a lady CHR lawyer and a duly commissioned Notary Public for and in Quezon
City.
W. Daguman confirmed Tayabans and Baliagas actual affiliation with the military
and their assignment at the 56th Infantry Battalion, 7th ID
53. On December 10, 2010, the Team went to the Bulacan Provincial Jail to visit
Edmond Dag-Uman and asked him to identify his former Company Commander at
the 56th IB, 71 ID, Lt. Usmalik Tayaban and to identify the pictures.
54. Edmond Dag-uman identified the encircled in the picture as LT. HARRY A.
BALIAGA, JR., and the man with a receding hair as LT. USMALIK TAYABAN, his former
Company Commander.
55. When asked if he was willing to reduce in writing his precious statements and
those that just mentioned, he replied "BAKA MAPAHAMAK AKO NYAN! (That might
endanger me!). Following a lengthy discussion on the pros and cons of executing a
sworn statement and the assurance of the Team to exclude his statements that are
critical to the military establishment, it dawned on Dag-uman that his statement
would be of help to the Commission in bringing his case to the proper authorities for
review and appropriate action, that he eventually expressed his willingness to do so.
56. After which the Team immediately went to a "Computer Caf" nearby to encode
the "Salaysay", then the printed copy was presented to him for his determination
whether he is in full accord with the contents therein. Edmond spent about thirty
(30) minutes reading it and changed the word "Charlie" to "Bravo" and then affixed
his initial on it. He also signed the "Sinumpaang Salaysay" after being sworn to
before a team member authorized to administer oath.
X. Second visit to ELSA AGASANG and her Supplemental Sworn Statement
57. On January 26, 2011, the Team along with witness Jeffrey went to Bicol to meet
witness Elsa. The aim was to help Elsa recall the faces of those she saw in the
abduction by showing to her recently-acquired pictures of suspects.
58. For the first time they would re-unite, after almost four years since that fateful
day of April 28, 2007, when both of them had the experience of witnessing an
abduction incident, which rendered them jobless and unsafe.
59. The Team told Jeffrey to sit in front of Elsa without introducing him to her. After
about half an hour into the conversation, she expressed disbelief when she realized
that she was facing in person he co-worker that she knew very well.
60. On January 29, 2011, Elsa executed her Karagdagang Sinumpaang Salaysay
affirming her Salaysay given before PCI Lino DL Banaag at the CIDU, Quezon City
Police District Office, Camp Karingal, Quezon City; and corroborating the material
allegations contained in the Sinumpaang Salaysay of Jeffrey.
On the basis of the evidence it had gathered, the CHR submitted the following
findings:12
Based on the facts developed by evidence obtaining in this case, the CHR finds that
the enforced disappearance of Jonas Joseph T. Burgos had transpired; and that his
constitutional rights to life liberty and security were violated by the Government
have been fully determined.
Jeffrey Cabintoy and Elsa Agasang have witnessed on that fateful day of April 28,
2007 the forcible abduction of Jonas Burgos by a group of about seven (7) men and
a woman from the extension portion of Hapag Kainan Restaurant, located at the
ground floor of Ever Gotesco Mall, Commonwealth Avenue, Quezon City.
xxxx
The eyewitnesses mentioned above were Jeffrey Cabintoy (Jeffrey) and Elsa Agasang
(Elsa), who at the time of the abduction were working as busboy and Trainee-
Supervisor, respectively, at Hapag Kainan Restaurant.
In his Sinumpaang Salaysay, Jeffrey had a clear recollection of the face of HARRY
AGAGEN BALIAGA, JR. as one of the principal abductors, apart from the faces of the
two abductors in the cartographic sketches that he described to the police, after he
was shown by the Team the pictures in the PMA Year Book of Batch Sanghaya 2000
and group pictures of men taken some years thereafter.
The same group of pictures were shown to detained former 56th IB Army trooper
Edmond M. Dag-uman (Dag-uman), who also positively identified Lt. Harry Baliaga,
Jr. Dagumans Sinumpaang Salaysay states that he came to know Lt. Baliaga as a
Company Commander in the 56th IB while he was still in the military service (with
Serial No. 800693, from 1997 to 2002) also with the 56th IB but under 1Lt. Usmalik
Tayaban, the Commander of Bravo Company. When he was arrested and brought to
the 56th IB Camp in April 2005, he did not see Lt. Baliaga anymore at the said camp.
The similar reaction that the pictures elicited from both Jeffrey and Daguman did not
pass unnoticed by the Team. Both men always look pensive, probably because of the
pathetic plight they are in right now. It came as a surprise therefore to the Team
when they could hardly hide their smile upon seeing the face of Baliaga, as if they
know the man very well.
Moreover, when the Team asked how Jeffrey how certain was he that it was indeed
Baliaga that he saw as among those who actually participated in Jonas abduction,
Jeffrey was able to give a graphic description and spontaneously, to boot, the blow
by blow account of the incident, including the initial positioning of the actors,
specially Baliaga, who even approached, talked to, and prevented him from
interfering in their criminal act.
A Rebel-returnee (RR) named Maria Vita Lozada y Villegas @KA MY, has identified
the face of the female in the cartographic sketch as a certain Lt. Fernando. While
Lozada refuses to include her identification of Lt. Fernando in her Sinumpaang
Salaysay for fear of a backlash, she told the Team that she was certain it was Lt.
Fernando in the cartographic sketch since both of them were involved in counter-
insurgency operations at the 56th IB, while she was under the care of the battalion
from March 2006 until she left the 56th IB Headquarters in October 2007. Lozadas
involvement in counter-insurgency operations together with Lt. Fernando was among
the facts gathered by the CHR Regional Office 3 Investigators, whose investigation
into the enforced disappearance of Jonas Joseph Burgos was documented by way of
an After Mission Report dated August 13, 2008.
Most if not all the actual abductors would have been identified had it not been for
what is otherwise called as evidentiary difficulties shamelessly put up by some
police and military elites. The deliberate refusal of TJAG Roa to provide the CHR with
the requested documents does not only defy the Supreme Court directive to the AFP
but ipso facto created a disputable presumption that AFP personnel were responsible
for the abduction and that their superiors would be found accountable, if not
responsible, for the crime committed. This observation finds support in the
disputable presumption "That evidence willfully suppressed would be adverse if
produced." (Paragraph (e), Section 3, Rule 131 on Burden of Proof and Presumptions,
Revised Rules on Evidence of the Rules of Court of the Philippines).
In saying that the requested document is irrelevant, the Team has deemed that the
requested documents and profiles would help ascertain the true identities of the
cartographic sketches of two abductors because a certain Virgilio Eustaquio has
claimed that one of the intelligence operatives involved in the 2007 ERAP 5 case fits
the description of his abductor.
As regards the PNP CIDG, the positive identification of former 56th IB officer Lt.
HARRY A. BALIAGA, JR. as one of the principal abductors has effectively crushed the
theory of the CIDG witnesses that the NPAs abducted Jonas. Baliagas true identity
and affiliation with the military have been established by overwhelming evidence
corroborated by detained former Army trooper Dag-uman.
For lack of material time, the Commission will continue to investigate the enforced
disappearance of Jonas Burgos as an independent body and pursuant to its mandate
under the 1987 Constitution. Of particular importance are the identities and
locations of the persons appearing in the cartographic sketches; the allegations that
CIDG Witnesses Emerito G. Lipio and Meliza Concepcion-Reyes are AFP enlisted
personnel and the alleged participation of Delfin De Guzman @ Ka Baste in the
abduction of Jonas Burgos whose case for Murder and Attempted Murder was
dismissed by the court for failure of the lone witness, an army man of the 56th IB to
testify against him.
Interview with Virgilio Eustaquio, Chairman of the Union Masses for Democracy and
Justice (UMDJ), revealed that the male abductor of Jonas Burgos appearing in the
cartographic sketch was among the raiders who abducted him and four others,
identified as Jim Cabauatan, Jose Curament, Ruben Dionisio and Dennis Ibona
otherwise known as ERAP FIVE.
Unfortunately, and as already pointed out above, The Judge Advocate General (TJAG)
turned down the request of the Team for a profile of the operatives in the so-called
"Erap 5" abduction on the ground of relevancy and branded the request as a fishing
expedition per its Disposition Form dated September 21, 2010.
Efforts to contact Virgilio Eustaquio to secure his affidavit proved futile, as his
present whereabouts cannot be determined. And due to lack of material time, the
Commission decided to pursue the same and determine the whereabouts of the
other members of the "Erap 5" on its own time and authority as an independent
body.
Based on the above-cited findings, the CHR submitted the following
recommendations for the Courts consideration, viz:13
i. To DIRECT the Department of Justice (DOJ), subject to certain
requirements, to immediately admit witnesses Jeffrey T. Cabintoy and Elsa
B. Agasang to the Witness Protection, Security and Benefit Program under
Republic Act No. 6981;
ii. To DIRECT the Department of Justice (DOJ) to commence the filing of
Criminal Charges for Kidnapping/Enforced Disappearance and/or Arbitrary
Detention against 1LT. HARRY AGAGEN BALIAGA, JR. of the Philippine Army,
as Principal by Direct Participation in the abduction of Jonas Joseph T.
Burgos on April 28, 2007 from Ever Gotesco Mall, Commonwealth Avenue,
Quezon City;
iii. To DIRECT the Department of Justice to cause the filing of Obstruction of
Justice against Emerito Lipio y Gonzales; Marlon Manuel y de Leon; and
Meliza Concepcion-Reyes for giving false or fabricated information to the
CIDG and for their willful refusal to cooperate with the CHR Team in the
investigation of the herein enforced disappearance;
iv. To DIRECT Cavite Provincial Prosecutor Emmanuel Velasco to appear
before the Supreme Court and to divulge his source/informant as the same
does not fall under the privilege communication rule;
v. To DIRECT the PNP-CIDG RC, NCRCIDU, Atty. Joel Napoleon M. Coronel, to
explain his Memorandum to the CIDG-CIDD stating that "the witnesses were
reportedly turned over by the Bulacan PPO and Philippine Army to the CIDG
for investigation," considering that said witnesses were not under police
or military custody at the time of the supposed turn-over in the evening of
August 22, 2007 and to identify the PNP officer who directed the CIDG
operatives to fetch Emerito G. Lipio in Bulacan and the two other CIDG
witnesses for tactical interrogation;
vi. To REQUIRE General Roa of the Judge Advocate General Office, AFP, and
the Deputy Chief of Staff for Personnel, JI, AFP, to explain their failure
and/or refusal to provide the CHR with copies of documents relevant to the
case of Jonas T. Burgos, particularly the following: (a) Profile and Summary
of Information and pictures of T/Sgt. Jason Roxas (Philippine Army) and
three (3) other enlisted personnel mentioned in paragraph (1) of the
dispositive portion of the Supreme Court En Banc Resolution issued on 22
June 2010 in the instant consolidated cases, including a certain 2Lt.
Fernando, a lady officer involved in the counter-insurgency operations of
the 56th IB in 2006 to 2007; (b) copies of the records of the 2007 ERAP 5
incident in Kamuning, Quezon City and the complete list of the intelligence
operatives involved in that said covert military operation, including their
respective Summary of Information and individual pictures; and (c)
complete list of the officers, women and men assigned at the 56th and 69th
Infantry Battalion and the 7th Infantry Division from January 1, 2004 to June
30, 2007 with their respective profiles, Summary of Information and
pictures; including the list of captured rebels and rebels who surrendered to
the said camps and their corresponding pictures and copies of their Tactical
Interrogation Reports and the cases filed against them, if any;
vii. To DIRECT the PNP-CIDG to comply with its mandate under paragraph
(3) of the dispositive portion of the Supreme Court En Banc Resolution
promulgated on 22 June 2010 in the instant consolidated cases;
viii. To DIRECT Harry A. Baliaga, Jr., the Philippine Armys 56th Infantry
Battalion in Bulacan and 7th Infantry Division at Fort Magsaysay in Laur,
Nueva Ecija to produce the living body of the victim Jonas Joseph T. Burgos
before this Court;
ix. To DIRECT the Department of Justice to review and determine the
probable liability/accountability of the officers and enlisted personnel
concerned of the Philippine Armys 56th IB and the 7th ID, relative to the
torture and/or other forms of ill-treatment of Edmond M. Dag-uman, while
he was in detention at Fort Magsaysay sometime in October 2005, as part
of the collateral discoveries in the conduct of this investigation;
x. To DIRECT the Department of Justice to review the case filed against
Edmond Dag-uman alias DELFIN DE GUZMAN with the Regional Trial Court
Branch 10 in Malolos City docketed as Criminal Case Nos. 1844-M-2005 and
186-M-2006; and the legal basis, if any, for his continued detention at the
Bulacan Provincial Jail in Malolos City; and
xi. To DIRECT the Department of Interior and Local Government (DILG) to
study the probable liability of Adelio A. Asuncion, former Jail Warden of
Bulacan Provincial Jail for his failure to account the records of the inmates
more specifically the records of turn-over Edmond Dag-uman from the 7th
ID.
Pursuant to our June 22, 2010, the CHR furnished the petitioner with the copy of its
report, which the petitioner apparently relied upon in filing a criminal complaint
against Lt. Harry A. Baliaga, Jr. and other members of the military. 14
OUR RULING
A. Amparo
After reviewing the evidence in the present case, the CA findings and our findings in
our June 22, 2010 Resolution heretofore mentioned, including the recent CHR
findings that Lt. Harry A. Baliaga, Jr., (Lt. Baliaga) of the 56th Infantry Battalion, 7th
Infantry Division, Philippine Army is one of the abductors of Jonas, we resolve to hold
in abeyance our ruling on the merits in the Amparo aspect of the present case and
refer this case back to the CA in order to allow Lt. Baliaga and the present Amparo
respondents to file their respective Comments on the CHR Report within a non-
extendible period of fifteen (15) days from receipt of this Resolution. The CA shall
continue with the hearing of the Amparo petition in light of the evidence previously
submitted, the proceedings it already conducted and the subsequent developments
in this case, particularly the CHR Report. Thereafter, the CA shall rule on the merits
of the Amparo petition. For this purpose, we order that Lt. Baliaga be impleaded as a
party to the Amparo petition (CA-G.R. SP No. 00008-WA). This directive to implead
Lt. Baliaga is without prejudice to similar directives we may issue with respect to
others whose identities and participation may be disclosed in future investigations.
We also note that Office of the Judge Advocate General (TJAG) failed and/or refused
to provide the CHR with copies of documents relevant to the case of Jonas, and
thereby disobeyed our June 22, 2010 Resolution. To recall, we issued a Resolution
declaring the CHR as the Courts directly commissioned agency tasked with the
continuation of the investigation of Jonas abduction and the gathering of evidence,
with the obligation to report its factual findings and recommendations to this Court.
In this same Resolution, we required the then incumbent Chiefs of the AFP and the
PNP to make available and to provide copies to the CHR, of all documents and
records in their possession and as the CHR may require, relevant to the case of
Jonas, subject to reasonable regulations consistent with the Constitution and existing
laws.
In its March 15, 2011 Report, the CHR recommended, for the Courts consideration: 15
vi. To REQUIRE General Roa of the Judge Advocate General Office, AFP, and the
Deputy Chief of Staff for Personnel, JI, AFP, to explain their failure and/or refusal to
provide the CHR with copies of documents relevant to the case of Jonas T. Burgos,
particularly the following: (a) Profile and Summary of Information and pictures of
T/Sgt. Jason Roxas (Philippine Army) and three (3) other enlisted personnel
mentioned in paragraph (1) of the dispositive portion of the Supreme Court En Banc
Resolution issued on 22 June 2010 in the instant consolidated cases, including a
certain 2Lt. Fernando, a lady officer involved in the counter-insurgency operations of
the 56th IB in 2006 to 2007; (b) copies of the records of the 2007 ERAP 5 incident in
Kamuning, Quezon City and the complete list of the intelligence operatives involved
in that said covert military operation, including their respective Summary of
Information and individual pictures; and (c) complete list of the officers, women and
men assigned at the 56th and 69th Infantry Battalion and the 7th Infantry Division
from January 1, 2004 to June 30, 2007 with their respective profiles, Summary of
Information and pictures; including the list of captured rebels and rebels who
surrendered to the said camps and their corresponding pictures and copies of their
Tactical Interrogation Reports and the cases filed against them, if any.
Section 16 of the Rule on the Writ of Amparo provides that any person who
otherwise disobeys or resists a lawful process or order of the court may be punished
for contempt, viz:
SEC. 16. Contempt. The court, justice or judge may order the respondent who
refuses to make a return, or who makes a false return, or any person who otherwise
disobeys or resists a lawful process or order of the court to be punished for
contempt. The contemnor may be imprisoned or imposed a fine
Acting on the CHRs recommendation and based on the above considerations, we
resolve to require General Roa of TJAG, AFP, and the Deputy Chief of Staff for
Personnel, JI, AFP, at the time of our June 22, 2010 Resolution, and then incumbent
Chief of Staff, AFP,16 to show cause and explain, within a non-extendible period of
fifteen (15) days from receipt of this Resolution, why they should not be held in
contempt of this Court for defying our June 22, 2010 Resolution.
B. Habeas Corpus
In light of the new evidence obtained by the CHR, particularly the Cabintoy evidence
that positively identified Lt. Baliaga as one of the direct perpetrators in the
abduction of Jonas and in the interest of justice, we resolve to set aside the CAs
dismissal of the habeas corpus petition and issue anew the writ of habeas corpus
returnable to the Presiding Justice of the CA who shall immediately refer the writ to
the same CA division that decided the habeas corpus petition (CA-GR SP No. 99839).
For this purpose, we also order that Lt. Baliaga be impleaded as a party to the
habeas corpus petition and require him together with the incumbent Chief of Staff,
AFP; the incumbent Commanding General, Philippine Army; and the Commanding
Officer of the 56th IB at the time of the disappearance of Jonas, Lt. Col. Feliciano to
produce the person of Jonas and to show cause why he should not be released from
detention.
The CA shall rule on the merits of the habeas corpus petition in light of the evidence
previously submitted to it, the proceedings already conducted, and the subsequent
developments in this case (particularly the CHR report) as proven by evidence
properly adduced before it. The Court of Appeals and the parties may require
Prosecutor Emmanuel Velasco, Jeffrey Cabintoy, Edmund Dag-uman, Melissa
Concepcion Reyes, Emerito Lipio and Marlon Manuel to testify in this case.
C. Petition for Contempt
In dismissing the petition, the CA held:17
Undoubtedly, the accusation against respondents is criminal in nature. In view
thereof, the rules in criminal prosecution and corollary recognition of respondents
constitutional rights inevitably come into play. As held in People v. Godoy:
In proceedings for criminal contempt, the defendant is presumed innocent and the
burden is on the prosecution to prove the charges beyond reasonable doubt.
Hence, assuming that there is circumstantial evidence to support petitioners
allegations, said circumstantial evidence falls short of the quantum of evidence that
is required to establish the guilt of an accused in a criminal proceeding, which is
proof beyond reasonable doubt.
The pertinent provision of the Rules of Court on contempt, in relation to a Habeas
Corpus proceeding, is Section 16, Rule 102, which provides:
Sec. 16. Penalty for refusing to issue writ, or for disobeying the same. - A clerk of a
court who refuses to issue the writ after allowance thereof and demand therefor, or
a person to whom a writ is directed, who neglects or refuses to obey or make
return of the same according to the command thereof, or makes false return
thereof, or who, upon demand made by or on behalf of the prisoner, refuses to
deliver to the person demanding, within six (6) hours after the demand therefor, a
true copy of the warrant or order of commitment, shall forfeit to the party aggrieved
the sum of one thousand pesos, to be recovered in a proper action, and may also
be punished by the court or judge as for contempt. [emphasis supplied]
In Montenegro v. Montenegro,18 we explained the types and nature of contempt, as
follows:
Contempt of court involves the doing of an act, or the failure to do an act, in such a
manner as to create an affront to the court and the sovereign dignity with which it is
clothed. It is defined as "disobedience to the court by acting in opposition to its
authority, justice and dignity."7 The power to punish contempt is inherent in all
courts, because it is essential to the preservation of order in judicial proceedings,
and to the enforcement of judgments, orders and mandates of the courts; and,
consequently, to the due administration of justice.
xxx
Contempt, whether direct or indirect, may be civil or criminal depending on the
nature and effect of the contemptuous act. Criminal contempt is "conduct directed
against the authority and dignity of the court or a judge acting judicially; it is an act
obstructing the administration of justice which tends to bring the court into
disrepute or disrespect." On the other hand, civil contempt is the failure to do
something ordered to be done by a court or a judge for the benefit of the opposing
party therein and is therefore, an offense against the party in whose behalf the
violated order was made. If the purpose is to punish, then it is criminal in nature; but
if to compensate, then it is civil. [emphasis supplied]
We agree with the CA that indirect contempt is the appropriate characterization of
the charge filed by the petitioner against the respondents and that the charge is
criminal in nature. Evidently, the charge of filing a false return constitutes improper
conduct that serves no other purpose but to mislead, impede and obstruct the
administration of justice by the Court. In People v. Godoy, 19 which the CA cited, we
specifically held that under paragraph (d) of Section 3, Rule 71 of the Rules of Court,
any improper conduct tending, directly or indirectly, to impede, obstruct or degrade
the administration of justice constitutes criminal contempt.
A criminal contempt proceeding has been characterized as sui generis as it partakes
some of the elements of both a civil and criminal proceeding, without completely
falling under either proceeding. Its identification with a criminal proceeding is in the
use of the principles and rules applicable to criminal cases, to the extent that
criminal procedure is consistent with the summary nature of a contempt proceeding.
We have consistently held and established that the strict rules that govern criminal
prosecutions apply to a prosecution for criminal contempt; that the accused is
afforded many of the protections provided in regular criminal cases; and that
proceedings under statutes governing them are to be strictly construed. 20
Contempt, too, is not presumed. In proceedings for criminal contempt, the
defendant is presumed innocent and the burden is on the prosecution to prove the
charges beyond reasonable doubt.21 The presumption of innocence can be overcome
only by proof of guilt beyond reasonable doubt, which means proof to the
satisfaction of the court and keeping in mind the presumption of innocence that
precludes every reasonable hypothesis except that for which it is given. It is not
sufficient for the proof to establish a probability, even though strong, that the fact
charged is more likely true than the contrary. It must establish the truth of the fact
to a reasonable certainty and moral certainty a certainty that convinces and
satisfies the reason and conscience of those who are to act upon it. 22
For the petitioner to succeed in her petition to declare the respondents in contempt
for filing false returns in the habeas corpus proceedings before the CA, she has the
burden of proving beyond reasonable doubt that the respondents had custody of
Jonas. As the CA did, we find that the pieces of evidence on record as of the time of
the CA proceedings were merely circumstantial and did not provide a direct link
between the respondents and the abduction of Jonas; the evidence did not prove
beyond reasonable doubt that the respondents had a hand in the abduction of Jonas,
and consequently, had custody of him at the time they filed their returns to the Writ
of habeas corpus denying custody of Jonas.
However, the subsequent developments in this case, specifically, the investigative
findings presented to us by the CHR pointing to Lt. Baliaga as one of the abductors
of Jonas, have given a twist to our otherwise clear conclusion. Investigations will
continue, consistent with the nature of Amparo proceedings to be alive until a
definitive result is achieved, and these investigations may yet yield additional
evidence affecting the conclusion the CA made. For this reason, we can only
conclude that the CAs dismissal of the contempt charge should be provisional, i.e.,
without prejudice to the re-filing of the charge in the future should the petitioner find
this step warranted by the evidence in the proceedings related to Jonass
disappearance, including the criminal prosecutions that may transpire.
To adjust to the extraordinary nature of Amparo and habeas corpus proceedings and
to directly identify the parties bound by these proceedings who have the continuing
obligation to comply with our directives, the AFP Chief of Staff, the Commanding
General of the Philippine Army, the Director General of the PNP, the Chief of the PNP-
CIDG and the TJAG shall be named as parties to this case without need of naming
their current incumbents, separately from the then incumbent officials that the
petitioner named in her original Amparo and habeas corpus petitions, for possible
responsibility and accountability.
In light of the dismissal of the petitions against President Gloria Macapagal-Arroyo
who is no the longer the President of the Republic of the Philippines, she should now
be dropped as a party-respondent in these petitions.
WHEREFORE, in the interest of justice and for the foregoing reasons, we RESOLVE to:
I. IN G.R. NO. 183711 (HABEAS CORPUS PETITION, CA-G.R. SP No. 99839)
a. ISSUE a Writ of Habeas Corpus anew, returnable to the Presiding Justice
of the Court of Appeals who shall immediately refer the writ to the same
Division that decided the habeas corpus petition;
b. ORDER Lt. Harry A. Baliaga, Jr. impleaded in CA-G.R. SP No. 99839 and
G.R. No. 183711, and REQUIRE him, together with the incumbent Chief of
Staff, Armed Forces of the
Philippines; the incumbent Commanding General, Philippine Army; and the
Commanding Officer of the 56th IB, 7th Infantry Division, Philippine Army at
the time of the disappearance of Jonas Joseph T. Burgos, Lt. Col. Melquiades
Feliciano, to produce the person of Jonas Joseph T. Burgos under the terms
the Court of Appeals shall prescribe, and to show cause why Jonas Joseph T.
Burgos should not be released from detention;
c. REFER back the petition for habeas corpus to the same Division of the
Court of Appeals which shall continue to hear this case after the required
Returns shall have been filed and render a new decision within thirty (30)
days after the case is submitted for decision; and
d. ORDER the Chief of Staff of the Armed Forces of the Philippines and the
Commanding General of the Philippine Army to be impleaded as parties,
separate from the original respondents impleaded in the petition, and the
dropping or deletion of President Gloria Macapagal-Arroyo as party-
respondent.
II. IN G.R. NO. 183712 (CONTEMPT OF COURT CHARGE, CA-G.R. SP No. 100230)
e. AFFIRM the dismissal of the petitioners petition for Contempt in CA-G.R.
SP No. 100230, without prejudice to the re-filing of the contempt charge as
may be warranted by the results of the subsequent CHR investigation this
Court has ordered; and
 f. ORDER the dropping or deletion of former President Gloria Macapagal-
Arroyo as party-respondent, in light of the unconditional dismissal of the
contempt charge against her.
III. IN G.R. NO. 183713 (WRIT OF AMPARO PETITION, CA-G.R. SP No. 00008-WA)
j. ORDER the Chief of Staff of the Armed Forces of the Philippines and the
Commanding General of the Philippine Army to be impleaded as parties, in
representation of their respective organizations, separately from the
original respondents impleaded in the petition; and the dropping of
President Gloria Macapagal-Arroyo as party-respondent;

k. REFER witnesses Jeffrey T. Cabintoy and Elsa B. Agasang to the

g. ORDER Lt. Harry A. Baliaga, Jr., impleaded in CA-G.R. SP No. 00008-WA
Department of Justice for admission to the Witness Protection Security and
and G.R. No. 183713, without prejudice to similar directives we may issue
Benefit Program, subject to the requirements of Republic Act No. 6981; and
with respect to others whose identities and participation may be disclosed
in future investigations and proceedings;
l. NOTE the criminal complaint filed by the petitioner with the DOJ which
the latter may investigate and act upon on its own pursuant to Section 21
h. DIRECT Lt. Harry A. Baliaga, Jr., and the present Amparo respondents to
of the Rule on the Writ of Amparo.
file their Comments on the CHR report with the Court of Appeals, within a
non-extendible period of fifteen (15) days from receipt of this
Resolution.1avvphil SO ORDERED.

i. REQUIRE General Roa of the Office of the Judge Advocate General, AFP; ARTURO D. BRION
the Deputy Chief of Staff for Personnel, JI, AFP, at the time of our June 22, Associate Justice
2010 Resolution; and then Chief of Staff, AFP, Gen. Ricardo David, (a) to
show cause and explain to this Court, within a non-extendible period of
fifteen (15) days from receipt of this Resolution, why they should not be
held in contempt of this Court for their defiance of our June 22, 2010
Resolution; and (b) to submit to this Court, within a non-extendible period
of fifteen (15) days from receipt of this Resolution, a copy of the documents
requested by the CHR, particularly:

1) The profile and Summary of Information and pictures of T/Sgt.

Jason Roxas (Philippine Army); Cpl. Maria Joana Francisco
(Philippine Air Force); M/Sgt. Aron Arroyo (Philippine Air Force); an
alias T.L. - all reportedly assigned with Military Intelligence Group
15 of Intelligence Service of the Armed Forces of the Philippines -
and 2Lt. Fernando, a lady officer involved in the counter-
insurgency operations of the 56th IB in 2006 to 2007;

2) Copies of the records of the 2007 ERAP 5 incident in Kamuning,

Quezon City and the complete list of the intelligence operatives
involved in that said covert military operation, including their
respective Summary of Information and individual pictures; and

3) Complete list of the officers, women and men assigned at the

56th and 69th Infantry Battalion and the 7th Infantry Division from
January 1, 2004 to June 30, 2007 with their respective profiles,
Summary of Information and pictures; including the list of
captured rebels and rebels who surrendered to the said camps and
their corresponding pictures and copies of their Tactical
Interrogation Reports and the cases filed against them, if any.

These documents shall be released exclusively to this Court for our

examination to determine their relevance to the present case and the
advisability of their public disclosure.
Dolot vs. Paje, 703 SCRA 650, G.R. No. 199199 August 27, 2013
Remedial Law; Civil Procedure; Courts; Jurisdiction; None is more well-settled than
the rule that jurisdiction, which is the power and authority of the court to hear, try
and decide a case, is conferred by law.None is more well-settled than the rule that
jurisdiction, which is the power and authority of the court to hear, try and decide a
case, is conferred by law. It may either be over the nature of the action, over the
subject matter, over the person of the defendants or over the issues framed in the
pleadings. By virtue of Batas Pambansa (B.P.) Blg. 129 or the Judiciary
Reorganization Act of 1980, jurisdiction over special civil actions for certiorari,
prohibition and mandamus is vested in the RTC. Particularly, Section 21(1) thereof
provides that the RTCs shall exercise original jurisdiction in the issuance of writs of
certiorari, prohibition, mandamus, quo warranto, habeas corpus and injunction which
may be enforced in any part of their respective regions.
Same; Same; Same; Same; The Supreme Court does not have the power to confer
jurisdiction on any court or tribunal as the allocation of jurisdiction is lodged solely in
Congress.A.O. No. 7 and Admin. Circular No. 23-2008 was issued pursuant to
Section 18 of B.P. Blg. 129, which gave the Court authority to define the territory
over which a branch of the RTC shall exercise its authority. These administrative
orders and circulars issued by the Court merely provide for the venue where an
action may be filed. The Court does not have the power to confer jurisdiction on any
court or tribunal as the allocation of jurisdiction is lodged solely in Congress. It also
cannot be delegated to another office or agency of the Government. Section 18 of
B.P. Blg. 129, in fact, explicitly states that the territory thus defined shall be deemed
to be the territorial area of the branch concerned for purposes of determining the
venue of all suits, proceedings or actions.
Same; Special Civil Actions; Continuing Mandamus; The concept of continuing
mandamus was first introduced in Metropolitan Manila Development Authority v.
Concerned Residents of Manila Bay, 574 SCRA 661 (2008); Similar to the procedure
under Rule 65 of the Rules of Court for special civil actions for certiorari, prohibition
and mandamus, Section 4, Rule 8 of the Rules of Procedure for Environmental Cases
(A.M. No. 09-6-8-SC) requires that the petition filed should be sufficient in form and
substance before a court may take further action; otherwise, the court may dismiss
the petition outright.The concept of continuing mandamus was first introduced in
Metropolitan Manila Development Authority v. Concerned Residents of Manila Bay,
574 SCRA 661 (2008). Now cast in stone under Rule 8 of the Rules, the writ of
continuing mandamus enjoys a distinct procedure than that of ordinary civil actions
for the enforcement/violation of environmental laws, which are covered by Part II
(Civil Procedure). Similar to the procedure under Rule 65 of the Rules of Court for
special civil actions for certiorari, prohibition and mandamus, Section 4, Rule 8 of the
Rules requires that the petition filed should be sufficient in form and substance
before a court may take further action; otherwise, the court may dismiss the petition
outright. Courts must be cautioned, however, that the determination to give due
course to the petition or dismiss it outright is an exercise of discretion that must be
applied in a reasonable manner in consonance with the spirit of the law and always
with the view in mind of seeing to it that justice is served.
Same; Same; Same; On matters of form, the petition for continuing mandamus must
be verified and must contain supporting evidence as well as a sworn certification of
non-forum shopping. It is also necessary that the petitioner must be one who is
aggrieved by an act or omission of the government agency, instrumentality or its
officer concerned. Sufficiency of substance, on the other hand, necessitates that the
petition must contain substantive allegations specifically constituting an actionable
neglect or omission and must establish, at the very least, a prima facie basis for the
issuance of the writ.On matters of form, the petition must be verified and must
contain supporting evidence as well as a sworn certification of non-forum shopping.
It is also necessary that the petitioner must be one who is aggrieved by an act or
omission of the government agency, instrumentality or its officer concerned.
Sufficiency of substance, on the other hand, necessitates that the petition must
contain substantive allegations specifically constituting an actionable neglect or
omission and must establish, at the very least, a prima facie basis for the issuance
of the writ, viz.: (1) an agency or instrumentality of government or its officer
unlawfully neglects the performance of an act or unlawfully excludes another from
the use or enjoyment of a right; (2) the act to be performed by the government
agency, instrumentality or its officer is specifically enjoined by law as a duty; (3)
such duty results from an office, trust or station in connection with the enforcement
or violation of an environmental law, rule or regulation or a right therein; and (4)
there is no other plain, speedy and adequate remedy in the course of law.
Same; Same; Same; The writ of continuing mandamus is a special civil action that
may be availed of to compel the performance of an act specifically enjoined by
law. The petition should mainly involve an environmental and other related law,
rule or regulation or a right therein.The writ of continuing mandamus is a special
civil action that may be availed of to compel the performance of an act specifically
enjoined by law. The petition should mainly involve an environmental and other
related law, rule or regulation or a right therein. The RTCs mistaken notion on the
need for a final judgment, decree or order is apparently based on the definition of
the writ of continuing mandamus under Section 4, Rule 1 of the Rules, to wit: (c)
Continuing mandamus is a writ issued by a court in an environmental case directing
any agency or instrumentality of the government or officer thereof to perform an act
or series of acts decreed by final judgment which shall remain effective until
judgment is fully satisfied.
Same; Same; Same; A writ of continuing mandamus is, in essence, a command of
continuing compliance with a final judgment as it permits the court to retain
jurisdiction after judgment in order to ensure the successful implementation of the
reliefs mandated under the courts decision.Under the Rules, after the court has
rendered a judgment in conformity with Rule 8, Section 7 and such judgment has
become final, the issuing court still retains jurisdiction over the case to ensure that
the government agency concerned is performing its tasks as mandated by law and
to monitor the effective performance of said tasks. It is only upon full satisfaction of
the final judgment, order or decision that a final return of the writ shall be made to
the court and if the court finds that the judgment has been fully implemented, the
satisfaction of judgment shall be entered in the court docket. A writ of continuing
mandamus is, in essence, a command of continuing compliance with a final
judgment as it permits the court to retain jurisdiction after judgment in order to
ensure the successful implementation of the reliefs mandated under the courts
decision.
Same; Same; Same; Failure to furnish a copy of the petition to the respondents is not
a fatal defect such that the case should be dismissed.Failure to furnish a copy of
the petition to the respondents is not a fatal defect such that the case should be
dismissed. The RTC could have just required the petitioners to furnish a copy of the
petition to the respondents. It should be remembered that courts are not enslaved
by technicalities, and they have the prerogative to relax compliance with procedural
rules of even the most mandatory character, mindful of the duty to reconcile both
the need to speedily put an end to litigation and the parties right to an opportunity
to be heard. Dolot vs. Paje, 703 SCRA 650, G.R. No. 199199 August 27, 2013
G.R. No. 199199 August 27, 2013
MARICRIS D. DOLOT, CHAIRMAN OF THE BAGONG ALYANSANG MAKABAYAN-
SORSOGON, PETITIONER
vs.
HON. RAMON PAJE, IN HIS CAPACITY AS THE SECRETARY OF THE
DEPARTMENT OF ENVIRONMENT AND NATURAL RESOURCES, REYNULFO A.
JUAN, REGIONAL DIRECTOR, MINES AND GEOSCIENCES BUREAU, DENR,
HON. RAUL R. LEE, GOVERNOR, PROVINCE OF SORSOGON, ANTONIO C.
OCAMPO, JR., VICTORIA A. AJERO, ALFREDO M. AGUILAR, AND JUAN M.
AGUILAR, ANTONES ENTERPRISES, GLOBAL SUMMIT MINES DEV'T CORP.,
AND TR ORE, RESPONDENTS.
DECISION
REYES, J.:
This is a petition for review on certiorari1 under Rule 45 of the Rules of Court
assailing the Order2 dated September 16, 2011 and Resolution3 dated October 18,
2011 issued by the Regional Trial Court (RTC) of Sorsogon, Branch 53. The assailed
issuances dismissed Civil Case No. 2011-8338 for Continuing Mandamus, Damages
and Attorneys Fees with Prayer for the Issuance of a Temporary Environment
Protection Order.
Antecedent Facts
On September 15, 2011, petitioner Maricris D. Dolot (Dolot), together with the parish
priest of the Holy Infant Jesus Parish and the officers of Alyansa Laban sa Mina sa
Matnog (petitioners), filed a petition for continuing mandamus, damages and
attorneys fees with the RTC of Sorsogon, docketed as Civil Case No. 2011-
8338.4 The petition contained the following pertinent allegations: (1) sometime in
2009, they protested the iron ore mining operations being conducted by Antones
Enterprises, Global Summit Mines Development Corporation and TR Ore in
Barangays Balocawe and Bon-ot Daco, located in the Municipality of Matnog, to no
avail; (2) Matnog is located in the southern tip of Luzon and there is a need to
protect, preserve and maintain the geological foundation of the municipality; (3)
Matnog is susceptible to flooding and landslides, and confronted with the
environmental dangers of flood hazard, liquefaction, ground settlement, ground
subsidence and landslide hazard; (4) after investigation, they learned that the
mining operators did not have the required permit to operate; (5) Sorsogon
Governor Raul Lee and his predecessor Sally Lee issued to the operators a small-
scale mining permit, which they did not have authority to issue; (6) the
representatives of the Presidential Management Staff and the Department of
Environment and Natural Resources (DENR), despite knowledge, did not do anything
to protect the interest of the people of Matnog;5 and (7) the respondents violated
Republic Act (R.A.) No. 7076 or the Peoples Small-Scale Mining Act of 1991, R.A. No.
7942 or the Philippine Mining Act of 1995, and the Local Government Code. 6 Thus,
they prayed for the following reliefs: (1) the issuance of a writ commanding the
respondents to immediately stop the mining operations in the Municipality of
Matnog; (2) the issuance of a temporary environment protection order or TEPO; (3)
the creation of an inter-agency group to undertake the rehabilitation of the mining
site; (4) award of damages; and (5) return of the iron ore, among others. 7
The case was referred by the Executive Judge to the RTC of Sorsogon, Branch 53
being the designated environmental court.8 In the Order9 dated September 16, 2011,
the case was summarily dismissed for lack of jurisdiction.
The petitioners filed a motion for reconsideration but it was denied in the
Resolution10 dated October 18, 2011. Aside from sustaining the dismissal of the case
for lack of jurisdiction, the RTC11 further ruled that: (1) there was no final court
decree, order or decision yet that the public officials allegedly failed to act on, which
is a condition for the issuance of the writ of continuing mandamus; (2) the case was
prematurely filed as the petitioners therein failed to exhaust their administrative
remedies; and (3) they also failed to attach judicial affidavits and furnish a copy of
the complaint to the government or appropriate agency, as required by the rules. 12
Petitioner Dolot went straight to this Court on pure questions of law.
Issues
The main issue in this case is whether the RTC-Branch 53 has jurisdiction to resolve
Civil Case No. 2011-8338. The other issue is whether the petition is dismissible on
the grounds that: (1) there is no final court decree, order or decision that the public
officials allegedly failed to act on; (2) the case was prematurely filed for failure to
exhaust administrative remedies; and (3) the petitioners failed to attach judicial
affidavits and furnish a copy of the complaint to the government or appropriate
agency.
Ruling of the Court
Jurisdiction and Venue
In dismissing the petition for lack of jurisdiction, the RTC, in its Order dated
September 16, 2011, apparently relied on SC Administrative Order (A.O.) No. 7
defining the territorial areas of the Regional Trial Courts in Regions 1 to 12, and
Administrative Circular (Admin. Circular) No. 23-2008,13 designating the
environmental courts "to try and decide violations of environmental laws x x x
committed within their respective territorial jurisdictions." 14 Thus, it ruled that its
territorial jurisdiction was limited within the boundaries of Sorsogon City and the
neighboring municipalities of Donsol, Pilar, Castilla, Casiguran and Juban and that it
was "bereft of jurisdiction to entertain, hear and decide [the] case, as such authority
rests before another co-equal court."15
Such reasoning is plainly erroneous. The RTC cannot solely rely on SC A.O. No. 7 and
Admin. Circular No. 23-2008 and confine itself within its four corners in determining
whether it had jurisdiction over the action filed by the petitioners.
None is more well-settled than the rule that jurisdiction, which is the power and
authority of the court to hear, try and decide a case, is conferred by law. 16 It may
either be over the nature of the action, over the subject matter, over the person of
the defendants or over the issues framed in the pleadings.17 By virtue of Batas
Pambansa (B.P.) Blg. 129 or the Judiciary Reorganization Act of 1980, jurisdiction
over special civil actions for certiorari, prohibition and mandamus is vested in the
RTC. Particularly, Section 21(1) thereof provides that the RTCs shall exercise original
jurisdiction
in the issuance of writs of certiorari, prohibition, mandamus, quo warranto, habeas
corpus and injunction which may be enforced in any part of their respective regions.
(Emphasis ours)
A.O. No. 7 and Admin. Circular No. 23-2008 was issued pursuant to Section 18 of B.P.
Blg. 129, which gave the Court authority to define the territory over which a branch
of the RTC shall exercise its authority. These administrative orders and circulars
issued by the Court merely provide for the venue where an action may be filed. The
Court does not have the power to confer jurisdiction on any court or tribunal as the
allocation of jurisdiction is lodged solely in Congress.18 It also cannot be delegated to
another office or agency of the Government.19 Section 18 of B.P. Blg. 129, in fact,
explicitly states that the territory thus defined shall be deemed to be the territorial
area of the branch concerned for purposes of determining the venue of all suits,
proceedings or actions. It was also clarified in Office of the Court Administrator v.
Judge Matas20 that
Administrative Order No. 3 [defining the territorial jurisdiction of the Regional Trial
Courts in the National Capital Judicial Region] and, in like manner, Circular Nos. 13
and 19, did not per se confer jurisdiction on the covered regional trial courts or its
branches, such that non-observance thereof would nullify their judicial acts. The
administrative order merely defines the limits of the administrative area within
which a branch of the court may exercise its authority pursuant to the jurisdiction
conferred by Batas Pambansa Blg. 129.21
The RTC need not be reminded that venue relates only to the place of trial or the
geographical location in which an action or proceeding should be brought and does
not equate to the jurisdiction of the court. It is intended to accord convenience to
the parties, as it relates to the place of trial, and does not restrict their access to the
courts.22 Consequently, the RTCs motu proprio dismissal of Civil Case No. 2011-8338
on the ground of lack of jurisdiction is patently incorrect.
At most, the error committed by the petitioners in filing the case with the RTC of
Sorsogon was that of improper venue. A.M. No. 09-6-8-SC or the Rules of Procedure
for Environmental Cases (Rules) specifically states that a special civil action for
continuing mandamus shall be filed with the "[RTC] exercising jurisdiction over the
territory where the actionable neglect or omission occurred x x x." 23 In this case, it
appears that the alleged actionable neglect or omission occurred in the Municipality
of Matnog and as such, the petition should have been filed in the RTC of Irosin. 24 But
even then, it does not warrant the outright dismissal of the petition by the RTC as
venue may be waived.25 Moreover, the action filed by the petitioners is not criminal
in nature where venue is an essential element of jurisdiction.26 In Gomez-Castillo v.
Commission on Elections,27 the Court even expressed that what the RTC should have
done under the circumstances was to transfer the case (an election protest) to the
proper branch. Similarly, it would serve the higher interest of justice 28 if the Court
orders the transfer of Civil Case No. 2011 8338 to the RTC of Irosin for proper and
speedy resolution, with the RTC applying the Rules in its disposition of the case.
At this juncture, the Court affirms the continuing applicability of Admin. Circular No.
23-2008 constituting the different "green courts" in the country and setting the
administrative guidelines in the raffle and disposition of environmental cases. While
the designation and guidelines were made in 2008, the same should operate in
conjunction with the Rules.
A.M. No. 09-6-8-SC: Rules of Procedure for Environmental Cases
In its Resolution dated October 18, 2011, which resolved the petitioners motion for
reconsideration of the order of dismissal, the RTC further ruled that the petition was
dismissible on the following grounds: (1) there is no final court decree, order or
decision yet that the public officials allegedly failed to act on; (2) the case was
prematurely filed for failure to exhaust administrative remedies; and (3) there was
failure to attach judicial affidavits and furnish a copy of the complaint to the
government or appropriate agency.29 The respondents, and even the Office of the
Solicitor General, in behalf of the public respondents, all concur with the view of the
RTC.
The concept of continuing mandamus was first introduced in Metropolitan Manila
Development Authority v. Concerned Residents of Manila Bay.30 Now cast in stone
under Rule 8 of the Rules, the writ of continuing mandamus enjoys a distinct
procedure than that of ordinary civil actions for the enforcement/violation of
environmental laws, which are covered by Part II (Civil Procedure). Similar to the
procedure under Rule 65 of the Rules of Court for special civil actions for certiorari,
prohibition and mandamus, Section 4, Rule 8 of the Rules requires that the petition
filed should be sufficient in form and substance before a court may take further
action; otherwise, the court may dismiss the petition outright. Courts must be
cautioned, however, that the determination to give due course to the petition or
dismiss it outright is an exercise of discretion that must be applied in a reasonable
manner in consonance with the spirit of the law and always with the view in mind of
seeing to it that justice is served.31
Sufficiency in form and substance refers to the contents of the petition filed under
Rule 8, Section 1:
When any agency or instrumentality of the government or officer thereof unlawfully
neglects the performance of an act which the law specifically enjoins as a duty
resulting from an office, trust or station in connection with the enforcement or
violation of an environmental law rule or regulation or a right therein, or unlawfully
excludes another from the use or enjoyment of such right and there is no other
plain, speedy and adequate remedy in the ordinary course of law, the person
aggrieved thereby may file a verified petition in the proper court, alleging the facts
with certainty, attaching thereto supporting evidence, specifying that the petition
concerns an environmental law, rule or regulation, and praying that judgment be
rendered commanding the respondent to do an act or series of acts until the
judgment is fully satisfied, and to pay damages sustained by the petitioner by
reason of the malicious neglect to perform the duties of the respondent, under the
law, rules or regulations. The petition shall also contain a sworn certification of non-
forum shopping.1wphi1
On matters of form, the petition must be verified and must contain supporting
evidence as well as a sworn certification of non-forum shopping. It is also necessary
that the petitioner must be one who is aggrieved by an act or omission of the
government agency, instrumentality or its officer concerned. Sufficiency of
substance, on the other hand, necessitates that the petition must contain
substantive allegations specifically constituting an actionable neglect or omission
and must establish, at the very least, a prima facie basis for the issuance of the writ,
viz: (1) an agency or instrumentality of government or its officer unlawfully neglects
the performance of an act or unlawfully excludes another from the use or enjoyment
of a right; (2) the act to be performed by the government agency, instrumentality or
its officer is specifically enjoined by law as a duty; (3) such duty results from an
office, trust or station in connection with the enforcement or violation of an
environmental law, rule or regulation or a right therein; and (4) there is no other
plain, speedy and adequate remedy in the course of law. 32
The writ of continuing mandamus is a special civil action that may be availed of "to
compel the performance of an act specifically enjoined by law." 33 The petition should
mainly involve an environmental and other related law, rule or regulation or a right
therein. The RTCs mistaken notion on the need for a final judgment, decree or order
is apparently based on the definition of the writ of continuing mandamus under
Section 4, Rule 1 of the Rules, to wit:
(c) Continuing mandamus is a writ issued by a court in an environmental case
directing any agency or instrumentality of the government or officer thereof to
perform an act or series of acts decreed by final judgment which shall remain
effective until judgment is fully satisfied. (Emphasis ours)
The final court decree, order or decision erroneously alluded to by the RTC actually
pertains to the judgment or decree that a court would eventually render in an
environmental case for continuing mandamus and which judgment or decree shall
subsequently become final.
Indeed, as pointed out by the respondents, the Panel has jurisdiction over mining
disputes.36 But the petition filed below does not involve a mining dispute. What was
being protested are the alleged negative environmental impact of the small-scale
mining operation being conducted by Antones Enterprises, Global Summit Mines
Development Corporation and TR Ore in the Municipality of Matnog; the authority of
the Governor of Sorsogon to issue mining permits in favor of these entities; and the
perceived indifference of the DENR and local government officials over the issue.
Resolution of these matters does not entail the technical knowledge and expertise of
the members of the Panel but requires an exercise of judicial function. Thus, in
Olympic Mines and Development Corp. v. Platinum Group Metals Corporation, 37 the
Court stated
Arbitration before the Panel of Arbitrators is proper only when there is a
disagreement between the parties as to some provisions of the contract between
them, which needs the interpretation and the application of that particular
knowledge and expertise possessed by members of that Panel. It is not proper when
one of the parties repudiates the existence or validity of such contract or agreement
on the ground of fraud or oppression as in this case. The validity of the contract
cannot be subject of arbitration proceedings. Allegations of fraud and duress in the
execution of a contract are matters within the jurisdiction of the ordinary courts of
law. These questions are legal in nature and require the application and
interpretation of laws and jurisprudence which is necessarily a judicial
function.38 (Emphasis supplied in the former and ours in the latter)
Consequently, resort to the Panel would be completely useless and unnecessary.
The Court also finds that the RTC erred in ruling that the petition is infirm for failure
to attach judicial affidavits. As previously stated, Rule 8 requires that the petition
should be verified, contain supporting evidence and must be accompanied by a
sworn certification of non-forum shopping. There is nothing in Rule 8 that compels
the inclusion of judicial affidavits, albeit not prohibited. It is only if the evidence of
the petitioner would consist of testimony of witnesses that it would be the time that
judicial affidavits (affidavits of witnesses in the question and answer form) must be
attached to the petition/complaint.39

Finally, failure to furnish a copy of the petition to the respondents is not a fatal
Under the Rules, after the court has rendered a judgment in conformity with Rule 8,
defect such that the case should be dismissed. The RTC could have just required the
Section 7 and such judgment has become final, the issuing court still retains
petitioners to furnish a copy of the petition to the respondents. It should be
jurisdiction over the case to ensure that the government agency concerned is
remembered that "courts are not enslaved by technicalities, and they have the
performing its tasks as mandated by law and to monitor the effective performance
prerogative to relax compliance with procedural rules of even the most mandatory
of said tasks. It is only upon full satisfaction of the final judgment, order or decision
character, mindful of the duty to reconcile both the need to speedily put an end to
that a final return of the writ shall be made to the court and if the court finds that
litigation and the parties right to an opportunity to be heard." 40
the judgment has been fully implemented, the satisfaction of judgment shall be
entered in the court docket.34 A writ of continuing mandamus is, in essence, a
command of continuing compliance with a final judgment as it "permits the court to WHEREFORE, the petition is GRANTED. The Order dated September 16, 2011 and
retain jurisdiction after judgment in order to ensure the successful implementation Resolution dated October 18, 2011 issued by the Regional Trial Court of Sorsogon,
of the reliefs mandated under the courts decision." 35 Branch 53, dismissing Civil Case No. 2011-8338 are NULLIFIED AND SET ASIDE. The
Executive Judge of the Regional Trial Court of Sorsogon is DIRECTED to transfer the
case to the Regional Trial Court of Irosin, Branch 55, for further proceedings with
The Court, likewise, cannot sustain the argument that the petitioners should have
dispatch. Petitioner Maricris D. Dolot is also ORDERED to furnish the respondents
first filed a case with the Panel of Arbitrators (Panel), which has jurisdiction over
with a copy of the petition and its annexes within ten (10) days from receipt of this
mining disputes under R.A. No. 7942.
Decision and to submit its Compliance with the RTC of Irosin.
SO ORDERED.

BIENVENIDO L. REYES
Associate Justice
Paje vs. Casio, 749 SCRA 39, G.R. No. 207366 February 3, 2015
Remedial Law; Special Civil Actions; Writ of Kalikasan; The Rules on the Writ of
Kalikasan, which is Part III of the Rules of Procedure for Environmental Cases (RPEC),
was issued by the Court pursuant to its power to promulgate rules for the protection
and enforcement of constitutional rights, in particular, the individuals right to a
balanced and healthful ecology.The Rules on the Writ of Kalikasan, which is Part III
of the Rules of Procedure for Environmental Cases, was issued by the Court pursuant
to its power to promulgate rules for the protection and enforcement of constitutional
rights, in particular, the individuals right to a balanced and healthful ecology.
Section 1 of Rule 7 provides: Section 1. Nature of the writ.The writ is a remedy
available to a natural or juridical person, entity authorized by law, peoples
organization, nongovernmental organization, or any public interest group accredited
by or registered with any government agency, on behalf of persons whose
constitutional right to a balanced and healthful ecology is violated, or threatened
with violation by an unlawful act or omission of a public official or employee, or
private individual or entity, involving environmental damage of such magnitude as
to prejudice the life, health or property of inhabitants in two or more cities or
provinces.
Same; Same; Same; The writ of kalikasan is categorized as a special civil action and
was, thus, conceptualized as an extraordinary remedy, which aims to provide judicial
relief from threatened or actual violation/s of the constitutional right to a balanced
and healthful ecology of a magnitude or degree of damage that transcends political
and territorial boundaries.The writ is categorized as a special civil action and was,
thus, conceptualized as an extraordinary remedy, which aims to provide judicial
relief from threatened or actual violation/s of the constitutional right to a balanced
and healthful ecology of a magnitude or degree of damage that transcends political
and territorial boundaries. It is intended to provide a stronger defense for
environmental rights through judicial efforts where institutional arrangements of
enforcement, implementation and legislation have fallen short and seeks to
address the potentially exponential nature of large-scale ecological threats. Under
Section 1 of Rule 7, the following requisites must be present to avail of this
extraordinary remedy: (1) there is an actual or threatened violation of the
constitutional right to a balanced and healthful ecology; (2) the actual or threatened
violation arises from an unlawful act or omission of a public official or employee, or
private individual or entity; and (3) the actual or threatened violation involves or will
lead to an environmental damage of such magnitude as to prejudice the life, health
or property of inhabitants in two or more cities or provinces. Expectedly, the Rules
do not define the exact nature or degree of environmental damage but only that it
must be sufficiently grave, in terms of the territorial scope of such damage, so as to
call for the grant of this extraordinary remedy. The gravity of environmental damage
sufficient to grant the writ is, thus, to be decided on a case-to-case basis.
Same; Same; Same; The writ of kalikasan is principally predicated on an actual or
threatened violation of the constitutional right to a balanced and healthful ecology,
which involves environmental damage of a magnitude that transcends political and
territorial boundaries.As earlier noted, the writ of kalikasan is principally
predicated on an actual or threatened violation of the constitutional right to a
balanced and healthful ecology, which involves environmental damage of a
magnitude that transcends political and territorial boundaries. A party, therefore,
who invokes the writ based on alleged defects or irregularities in the issuance of an
ECC must not only allege and prove such defects or irregularities, but must also
provide a causal link or, at least, a reasonable connection between the defects or
irregularities in the issuance of an ECC and the actual or threatened violation of the
constitutional right to a balanced and healthful ecology of the magnitude
contemplated under the Rules. Otherwise, the petition should be dismissed outright
and the action refiled before the proper forum with due regard to the doctrine of
exhaustion of administrative remedies. This must be so if we are to preserve the
noble and laudable purposes of the writ against those who seek to abuse it.
Same; Same; Same; Exhaustion of Administrative Remedies; Due to the extreme
urgency of the matter at hand, the present case is an exception to the doctrine of
exhaustion of administrative remedies.Be that as it may, we shall resolve both the
issues proper in a writ of kalikasan case and those which are not, commingled as it
were here, because of the exceptional character of this case. We take judicial notice
of the looming power crisis that our nation faces. Thus, the resolution of all the
issues in this case is of utmost urgency and necessity in order to finally determine
the fate of the project center of this controversy. If we were to resolve only the
issues proper in a writ of kalikasan case and dismiss those not proper therefor, that
will leave such unresolved issues open to another round of protracted litigation. In
any case, we find the records sufficient to resolve all the issues presented herein.
We also rule that, due to the extreme urgency of the matter at hand, the present
case is an exception to the doctrine of exhaustion of administrative remedies. As we
have often ruled, in exceptional cases, we can suspend the rules of procedure in
order to achieve substantial justice, and to address urgent and paramount State
interests vital to the life of our nation.
Same; Same; Same; The Rules on the Writ of Kalikasan allow the parties to raise, on
appeal, questions of fact and, thus, constitutes an exception to Rule 45 of the
Rules of Court because of the extraordinary nature of the circumstances
surrounding the issuance of a writ of kalikasan.It is worth noting that the Rules on
the Writ of Kalikasan allow the parties to raise, on appeal, questions of fact and,
thus, constitutes an exception to Rule 45 of the Rules of Court because of the
extraordinary nature of the circumstances surrounding the issuance of a writ of
kalikasan. Thus, we shall review both questions of law and fact in resolving the
issues presented in this case.
Same; Same; Same; The Supreme Court (SC) sustains the appellate courts findings
that the Casio Group failed to establish the alleged grave environmental damage
which will be caused by the construction and operation of the power plant.In
upholding the evidence and arguments of RP Energy, relative to the lack of proof as
to the alleged significant environmental damage that will be caused by the project,
the appellate court relied mainly on the testimonies of experts, which we find to be
in accord with judicial precedents. Thus, we ruled in one case: Although courts are
not ordinarily bound by testimonies of experts, they may place whatever weight
they choose upon such testimonies in accordance with the facts of the case. The
relative weight and sufficiency of expert testimony is peculiarly within the province
of the trial court to decide, considering the ability and character of the witness, his
actions upon the witness stand, the weight and process of the reasoning by which he
has supported his opinion, his possible bias in favor of the side for whom he testifies,
the fact that he is a paid witness, the relative opportunities for study and
observation of the matters about which he testifies, and any other matters which
serve to illuminate his statements. The opinion of the expert may not be arbitrarily
rejected; it is to be considered by the court in view of all the facts and circumstances
in the case and when common knowledge utterly fails, the expert opinion may be
given controlling effects. (20 Am. Jur., 1056-1058) The problem of the credibility of
the expert witness and the evaluation of his testimony is left to the discretion of the
trial court whose ruling thereupon is not reviewable in the absence of an abuse of
that discretion. Hence, we sustain the appellate courts findings that the Casio
Group failed to establish the alleged grave environmental damage which will be
caused by the construction and operation of the power plant.
Same; Same; Same; The Rules of Procedure for Environmental Cases liberally
provide the courts with means and methods to obtain sufficient information in order
to adequately protect or safeguard the right to a healthful and balanced ecology.
The Rules of Procedure for Environmental Cases liberally provide the courts with
means and methods to obtain sufficient information in order to adequately protect
or safeguard the right to a healthful and balanced ecology. In Section 6(l) of Rule 3
(Pre-Trial), when there is a failure to settle, the judge shall, among others, determine
the necessity of engaging the services of a qualified expert as a friend of the court
(amicus curiae). While, in Section 12 of Rule 7 (Writ of Kalikasan), a party may avail
of discovery measures: (1) ocular inspection and (2) production or inspection of
documents or things. The liberality of the Rules in gathering and even compelling
information, specifically with regard to the Writ of Kalikasan, is explained in this
wise: [T]he writ of kalikasan was refashioned as a tool to bridge the gap between
allegation and proof by providing a remedy for would-be environmental litigants to
compel the production of information within the custody of the government. The writ
would effectively serve as a remedy for the enforcement of the right to information
about the environment. The scope of the fact-finding power could be: (1) anything
related to the issuance, grant of a government permit issued or information
controlled by the government or private entity and (2) [i]nformation contained in
documents such as environmental compliance certificate (ECC) and other
government records. In addition, the [w]rit may also be employed to compel the
production of information, subject to constitutional limitations. This function is
analogous to a discovery measure, and may be availed of upon application for the
writ.
Same; Same; Same; In environmental cases, the power to appoint friends of the
court in order to shed light on matters requiring special technical expertise as well
as the power to order ocular inspections and production of documents or things
evince the main thrust of, and the spirit behind, the Rules to allow the court
sufficient leeway in acquiring the necessary information to rule on the issues
presented for its resolution, to the end that the right to a healthful and balanced
ecology may be adequately protected.In environmental cases, the power to
appoint friends of the court in order to shed light on matters requiring special
technical expertise as well as the power to order ocular inspections and production
of documents or things evince the main thrust of, and the spirit behind, the Rules to
allow the court sufficient leeway in acquiring the necessary information to rule on
the issues presented for its resolution, to the end that the right to a healthful and
balanced ecology may be adequately protected. To draw a parallel, in the protection
of the constitutional rights of an accused, when life or liberty is at stake, the
testimonies of witnesses may be compelled as an attribute of the Due Process
Clause. Here, where the right to a healthful and balanced ecology of a substantial
magnitude is at stake, should we not tread the path of caution and prudence by
compelling the testimonies of these alleged experts?
Procedural Rules and Technicalities; A court has the power to suspend its rules of
procedure in order to attain substantial justice so that it has the discretion, in
exceptional cases, to take into consideration matters not originally within the scope
of the issues raised in the pleadings or set during the preliminary conference, in
order to prevent a miscarriage of justice.A court has the power to suspend its rules
of procedure in order to attain substantial justice so that it has the discretion, in
exceptional cases, to take into consideration matters not originally within the scope
of the issues raised in the pleadings or set during the preliminary conference, in
order to prevent a miscarriage of justice. In the case at bar, the importance of the
signature cannot be seriously doubted because it goes into the consent and
commitment of the project proponent to comply with the conditions of the ECC,
which is vital to the protection of the right to a balanced and healthful ecology of
those who may be affected by the project.
Environmental Compliance Certificate; The laws governing the Environmental
Compliance Certificate (ECC), i.e., Presidential Decree No. (PD) 1151 and PD 1586,
do not specifically state that the lack of signature in the Statement of Accountability
has the effect of invalidating the ECC.The laws governing the ECC, i.e., Presidential
Decree No. (PD) 1151 and PD 1586, do not specifically state that the lack of
signature in the Statement of Accountability has the effect of invalidating the ECC.
Unlike in wills or donations, where failure to comply with the specific form prescribed
by law leads to its nullity, the applicable laws here are silent with respect to the
necessity of a signature in the Statement of Accountability and the effect of the lack
thereof. This is, of course, understandable because the Statement of Accountability
is a mere offshoot of the rule-making powers of the DENR relative to the
implementation of PD 1151 and PD 1586. To determine, therefore, the effect of the
lack of signature, we must look at the significance thereof under the Environmental
Impact Assessment (EIA) Rules of the DENR and the surrounding circumstances of
this case.
Same; While the signature is necessary for the validity of the Environmental
Compliance Certificate (ECC), the particular circumstances of this case show that the
Department of Environment and Natural Resources (DENR) and Redondo Peninsula
Energy, Inc. (RP Energy) were not properly apprised of the issue of lack of signature
in order for them to present controverting evidence and arguments on this point, as
the matter only developed during the course of the proceedings upon clarificatory
questions from the appellate court.In sum, we rule that the appellate court erred
when it invalidated the ECC on the ground of lack of signature of Mr. Aboitiz in the
ECCs Statement of Accountability relative to the copy of the ECC submitted by RP
Energy to the appellate court. While the signature is necessary for the validity of the
ECC, the particular circumstances of this case show that the DENR and RP Energy
were not properly apprised of the issue of lack of signature in order for them to
present controverting evidence and arguments on this point, as the matter only
developed during the course of the proceedings upon clarificatory questions from
the appellate court. Consequently, RP Energy cannot be faulted for submitting the
certified true copy of the ECC only after it learned that the ECC had been invalidated
on the ground of lack of signature in the January 30, 2013 Decision of the appellate
court.
License and Permit, Distinguished.The IPRA Law and its implementing rules do
not define the terms license and permit so that resort to their plain or ordinary
meaning in relation to the intendment of the law is appropriate. A license has been
defined as a governmental permission to perform a particular act (such as getting
married), conduct a particular business or occupation, operate machinery or vehicles
after proving capacity and ability to do so safely, or use property for a certain
purpose while a permit has been defined as a license or other document given
by an authorized public official or agency (building inspector, department of motor
vehicles) to allow a person or business to perform certain acts.
Remedial Law; Special Civil Actions; Writ of Kalikasan; Ancestral Domain; Even if the
indigenous community does not actually reside on the proposed lease site, the
government agency would still be required to obtain the Certificate of Non-Overlap
(CNO) precisely to rule out the possibility that the proposed lease site encroaches
upon an ancestral domain.Even if the indigenous community does not actually
reside on the proposed lease site, the government agency would still be required to
obtain the CNO precisely to rule out the possibility that the proposed lease site
encroaches upon an ancestral domain. The reason for this is that an ancestral
domain does not only cover the lands actually occupied by an indigenous
community, but all areas where they have a claim of ownership, through time
immemorial use, such as hunting, burial or worship grounds and to which they have
traditional access for their subsistence and other traditional activities.
Same; Same; Same; Same; That the project site was formerly used as the firing
range of the U.S. Armed Forces does not preclude the possibility that a present or
future claim of ancestral domain may be made over the aforesaid site.That the
project site was formerly used as the firing range of the U.S. Armed Forces does not
preclude the possibility that a present or future claim of ancestral domain may be
made over the aforesaid site. The concept of an ancestral domain indicates that,
even if the use of an area was interrupted by the occupation of foreign forces, it may
still be validly claimed to be an ancestral domain.
Subic Bay Metropolitan Authority; Jurisdiction; The Supreme Court (SC) finds that the
power to approve or disapprove projects within the Subic Special Economic Zone
(SSEZ) is one such power over which the Subic Bay Metropolitan Authoritys
(SBMAs) authority prevails over the Local Government Units (LGUs) autonomy.In environmental damage of such magnitude as to prejudice the life, health or property
the case at bar, we find that the power to approve or disapprove projects within the
SSEZ is one such power over which the SBMAs authority prevails over the LGUs
autonomy. Hence, there is no need for the SBMA to secure the approval of the
concerned sanggunians prior to the implementation of the subject project. This
interpretation is based on the broad grant of powers to the SBMA over all
administrative matters relating to the SSEZ under Section 13 of RA 7227, as
aforediscussed. Equally important, under Section 14, other than those involving
defense and security, the SBMAs decision prevails in case of conflict between the
SBMA and the LGUs in all matters concerning the SSEZ.
Remedial Law; Special Civil Actions; Writ of Kalikasan; In exceptional cases, a writ of
kalikasan may be availed of to challenge defects in the Environmental Compliance
Certificate (ECC).In general, the proper procedure to question a defect in an ECC is
to follow the appeal process provided in DAO 2003-30 and the Revised Manual. After
complying with the proper administrative appeal process, recourse may be made to
the courts in accordance with the doctrine of exhaustion of administrative remedies.
However, as earlier discussed, in exceptional cases, a writ of kalikasan may be
availed of to challenge defects in the ECC provided that (1) the defects are causally
linked or reasonably connected to an environmental damage of the nature and
magnitude contemplated under the Rules on Writ of Kalikasan, and (2) the case does
not violate, or
falls under an exception to, the doctrine of exhaustion of administrative remedies
and/or primary jurisdiction.
Velasco, Jr.,J., Concurring Opinion:
Remedial Law; Special Civil Actions; Writ of Kalikasan; View that the special civil
action for a writ of kalikasan under Rule 7 of the Rules of Procedure for
Environmental Cases (RPEC for brevity) is, I submit, the best available and proper
remedy for petitioners Casio, et al.The special civil action for a writ of kalikasan
under Rule 7 of the Rules of Procedure for Environmental Cases (RPEC for brevity) is,
I submit, the best available and proper remedy for petitioners Casino, et al. As
distinguished from other available remedies in the ordinary rules of court, the writ of
kalikasan is designed for a narrow but special purpose: to accord a stronger
protection for environmental rights, aiming, among others, to provide a speedy and
effective resolution of a case involving the violation of ones constitutional right to a
healthful and balanced ecology. As a matter of fact, by explicit directive from the
Court, the RPEC are SPECIAL RULES crafted precisely to govern environmental cases.
On the other hand, the remedies that can contribute to the protection of
communities and their environment alluded to in Justice Leonens dissent clearly
form part of the Rules of Court which by express provision of the special rules for
environmental cases shall apply in a suppletory manner under Section 2 of Rule
22. Suppletory means supplying deficiencies. It is apparent that there is no
vacuum in the special rules on the legal remedy on unlawful acts or omission
concerning environmental damage since precisely Rule 7 on the writ of kalikasan
encompasses all conceivable situations of this nature.
Same; Same; Same; View on the Requisites for the Proper Availment of the Kalikasan
Writ.Availment of the kalikasan writ would, therefore, be proper if the following
requisites concur in a given case: 1. that there is an actual or threatened violation of
the constitutional right to a balanced and healthful ecology; 2. the actual or
threatened violation is due to an unlawful act or omission of a public official or
employee, or private individual or entity; 3. the situation in the ground involves an
of inhabitants in two or more cities or provinces.
Same; Same; Same; View that in proceedings involving enforcement or violation of
environmental laws, where arbitrariness or caprice is ascribed to a public official, the
sharper weapon to correct the wrong would be a suit for the issuance of the
kalikasan writ.Anent Justice Leonens argument that there are other remedies
that can contribute to the protection of communities and their environment other
than Rule 7 of RPEC, doubtless referring to a Rule 65 petition, allow me to state in
disagreement that there are instances when the act or omission of a public official or
employee complained of will ultimately result in the infringement of the basic right
to a healthful and balanced ecology. And said unlawful act or omission would
invariably constitute grave abuse of discretion which, ordinarily, could be addressed
by the corrective hand of certiorari under Rule 65. In those cases, a petition for writ
of kalikasan would still be the superior remedy as in the present controversy, crafted
as it were precisely to address and meet head-on such situations. Put a bit
differently, in proceedings involving enforcement or violation of environmental laws,
where arbitrariness or caprice is ascribed to a public official, the sharper weapon to
correct the wrong would be a suit for the issuance of the kalikasan writ.
Same; Same; Same; View that the advent of A.M. No. 09-6-8-SC to be sure brought
about significant changes in the procedural rules that apply to environmental cases.
The advent of A.M. No. 09-6-8-SC to be sure brought about significant changes in
the procedural rules that apply to environmental cases. The differences on eight (8)
areas between a Rule 65 certiorari petition and Rule 7 kalikasan petition may be
stated as follows: 1. Subject matter. Since its subject matter is any unlawful act or
omission, a Rule 7 kalikasan petition is broad enough to correct any act taken
without or in excess of jurisdiction or with grave abuse of discretion amounting to
lack or excess of jurisdiction which is the subject matter of a Rule 65 certiorari
petition. Any form of abuse of discretion as long as it constitutes an unlawful act or
omission involving the environment can be subject of a Rule 7 kalikasan petition. A
Rule 65 petition, on the other hand, requires the abuse of discretion to be grave.
Ergo, a subject matter which mordinarily cannot properly be subject of a certiorari
petition can be the subject of a kalikasan petition. 2. Who may file. Rule 7 has
liberalized the rule on locus standi, such that availment of the writ of kalikasan is
open to a broad range of suitors, to include even an entity authorized by law,
peoples organization or any public interest group accredited by or registered with
any government agency, on behalf of persons whose right to a balanced and
healthful ecology is violated or threatened to be violated. Rule 65 allows only the
aggrieved person to be the petitioner. 3. Respondent. The respondent in a Rule 65
petition is only the government or its officers, unlike in a kalikasan petition where
the respondent may be a private individual or entity. 4. Exemption from docket fees.
The kalikasan petition is exempt from docket fees, unlike in a Rule 65 petition. Rule 7
of RPEC has pared down the usually burdensome litigation expenses. 5. Venue. The
certiorari petition can be filed with (a) the RTC exercising jurisdiction over the
territory where the act was committed; (b) the Court of Appeals; and (c) the
Supreme Court. Given the magnitude of the damage, the kalikasan petition can be
filed directly with the Court of Appeals or the Supreme Court. The direct filing of a
kalikasan petition will prune case delay. 6. Exhaustion of administrative remedies.
This doctrine generally applies to a certiorari petition, unlike in a kalikasan petition.
7. Period to file. An aggrieved party has 60 days from notice of judgment or denial of
a motion for reconsideration to file a certiorari petition, while a kalikasan petition is
not subject to such limiting time lines. 8. Discovery measures. In a certiorari petition,
discovery measures are not available unlike in a kalikasan petition. Resort to these
measures will abbreviate proceedings. It is clear as day that a kalikasan petition
provides more ample advantages to a suitor than a Rule 65 petition for certiorari.
Same; Same; Same; View that each organism, inclusive of the human of the species,
reacts differently to a foreign body or a pollutant, thus, the need to address each
environmental case on a case-to-case basis.To require that there should be no
possibility of any countervailing interests existing within the population represented
or those that are yet to be born would likewise effectively remove the rule on
citizens suits from our Environmental Rules or render it superfluous. No party could
possibly prove, and no court could calculate, whether there is a possibility that other
countervailing interests exist in a given situation. We should not lose sight of the
fact that the impact of an activity to the environment, to our flora and fauna, and to
the health of each and every citizen will never become an absolute certainty such
that it can be predicted or calculated without error, especially if we are talking about
generations yet unborn where we would obviously not have a basis for said
determination. Each organism, inclusive of the human of the species, reacts
differently to a foreign body or a pollutant, thus, the need to address each
environmental case on a case-to-case basis. Too, making sure that there are no
countervailing interests in existence, especially those of populations yet unborn,
would only cause delays in the resolution of an environmental case as this is a
gargantuan, if not well-nigh impossible, task.
Same; Same; Same; Res Judicata; View that the rule on res judicata should not
likewise be applied to environmental cases with the same degree of rigidity
observed in ordinary civil cases, contrary to the dissents contention.The rule on
res judicata should not likewise be applied to environmental cases with the same
degree of rigidity observed in ordinary civil cases, contrary to the dissents
contention. Suffice it to state that the highly dynamic, generally unpredictable, and
unique nature of environmental cases precludes Us from applying the said principle
in environmental cases.
Same; Same; Same; View that the imposition of the suggested conditions would
virtually render the provisions on citizens suit a pure jargon, a useless rule, in short.
The true and full extent of an environmental damage is difficult to fully
comprehend, much so to predict. Considering the dynamics of nature, where every
aspect thereof is interlinked, directly or indirectly, it can be said that a negative
impact on the environment, though at times may appear minuscule at one point,
may cause a serious imbalance to our environs in the long run. And it is not always
that this imbalance immediately surfaces. In some instances, it may take years
before we realize that the deterioration is already serious and possibly irreparable,
just as what happened to the Manila Bay where decades of neglect, if not sheer
citizen and bureaucratic neglect, ultimately resulted in the severe pollution of the
Bay. To my mind, the imposition of the suggested conditions would virtually render
the provisions on citizens suit a pure jargon, a useless rule, in short. Paje vs. Casio,
749 SCRA 39, G.R. No. 207366 February 3, 2015
G.R. No. 207257 February 3, 2015
HON. RAMON JESUS P. PAJE, in his capacity as SECRETARY OF THE
DEPARTMENT OF ENVIRONMENT AND NATURAL RESOURCES
(DENR), Petitioner,
vs.
HON. TEODORO A. CASIO, HON. RAYMOND V. PALATINO, HON. RAFAEL V.
MARIANO, HON. EMERENCIANA A. DE JESUS, CLEMENTE G. BAUTISTA, JR.,
HON. ROLEN C. PAULINO, HON. EDUARDO PIANO, HON. JAMES DE LOS
REYES, HON. AQUILINO Y. CORTEZ, JR., HON. SARAH LUGERNA LIPUMANO-
GARCIA, NORAIDA VELARMINO, BIANCA CHRISTINE GAMBOA ESPINOS,
CHARO SIMONS, GREGORIO LLORCA MAGDARAOG, RUBELH PERALTA, ALEX
CORPUS HERMOSO, RODOLFO SAMBAJON, REV. FR. GERARDO GREGORIO P.
JORGE, CARLITO A. BALOY, OFELIA D. PABLO, MARIO ESQUILLO, ELLE
LATINAZO, EVANGELINE Q. RODRIGUEZ, JOHN CARLO DELOS
REYES, Respondents.
x-----------------------x
G.R. No. 207276
REDONDO PENINSULA ENERGY, INC., Petitioner,
vs.
HON. TEODORO A. CASIO, HON. RAYMOND V. PALATINO, HON. RAFAEL V.
MARIANO, HON. EMERENCIANA A. DE JESUS, CLEMENTE G. BAUTISTA, JR.,
HON. ROLEN C. PAULINO, HON. EDUARDO PIANO, HON. JAMES DE LOS
REYES, HON. AQUILINO Y. CORTEZ, JR., HON. SARAH LUGERNA LIPUMANO-
GARCIA, NORAIDA VELARMINO, BIANCA CHRISTINE GAMBOA ESPINOS,
CHARO SIMONS, GREGORIO LLORCA MAGDARAOG, RUBELH PERALTA, ALEX
CORPUS HERMOSO, RODOLFO SAMBAJON, REV. FR. GERARDO GREGORIO P.
JORGE, CARLITO A. BALOY, OFELIA D. PABLO, MARIO ESQUILLO, ELLE
LATINAZO, EVANGELINE Q. RODRIGUEZ, JOHN CARLO DELOS REYES, RAMON
JESUS P. PAJE, in his capacity as SECRETARY OF THE DEPARTMENT OF
ENVIRONMENT AND NATURAL RESOURCES AND SUBIC BAY METROPOLITAN
AUTHORITY, Respondents.
x-----------------------x
G.R. No. 207282
HON. TEODORO A. CASIO, HON. RAYMOND V. PALATINO, HON.
EMERENCIANA A. DE JESUS, CLEMENTE G. BAUTISTA, JR., HON. RAFAEL V.
MARIANO, HON. ROLEN C. PAULINO, HON. EDUARDO PIANO, HON. JAMES DE
LOS REYES, HON. AQUILINO Y. CORTEZ, JR., HON. SARAH LUGERNA
LIPUMANO-GARCIA, NORAIDA VELARMINO, BIANCA CHRISTINE GAMBOA
ESPINOS, CHARO SIMONS, GREGORIO LLORCA MAGDARAOG, RUBELH
PERALTA, ALEX CORPUS HERMOSA, RODOLFO SAMBAJON, ET
AL., Petitioners,
vs.
RAMON JESUS P. PAJE in his capacity as SECRETARY OF THE DEPARTMENT
OF ENVIRONMENT AND NATURAL RESOURCES, SUBIC BAY METROPOLITAN
AUTHORITY, AND REDONDO PENINSULA ENERGY, INC., Respondents.
x-----------------------x
G.R. No. 207366
SUBIC BAY METROPOLITAN AUTHORITY, Petitioner,
vs.
HON. TEODORO A. CASIO, HON. RAYMOND V. PALATINO, HON. RAFAEL V.
MARIANO, HON. EMERENCIANA A. DE JESUS, HON. ROLEN C. PAULINO, HON
EDUARDO PIANO, HON. JAMES DE LOS REYES, HON. AQUILINO Y. CORTEZ,
JR., HON. SARAH LUGERNA LIPUMANOGARCIA, NORAIDA VELARMINO,
BIANCA CHRISTINE GAMBOA, GREGORIO LLORCA MAGDARAOG,
RUBELHPERALTA, ALEX CORPUS HERMOSO, RODOLFO SAMBAJON, REV. FR.
GERARDO GREGORIO P. JORGE, CARLITO A. BALOY, OFELIA D. PABLO, MARIO
ESQUILLO, ELLELATINAZO, EV ANGELINE Q. RODRIGUEZ, JOHN CARLO
DELOS REYES, HON. RAMON JESUS P. PAJE, in his capacity as SECRETARY OF
THE DEPARTMENT OF ENVIRONMENT AND NATURAL RESOURCES AND
REDONDO PENINSULA ENERGY, INC., Respondents.
DECISION
DEL CASTILLO, J.:
Before this Court are consolidated Petitions for Review on Certiorari 1 assailing the
Decision2 dated January 30, 2013 and the Resolution3 dated May 22, 2013 of the
Court of Appeals (CA) in CA-G.R. SP No. 00015, entitled "Hon. Teodoro A. Casio, et
al. v. Hon. Ramon Jesus P. Paje, et al."
Factual Antecedents
In February 2006, Subic Bay Metropolitan Authority (SBMA), a government agency
organized and established under Republic Act No. (RA) 7227,4 and Taiwan
Cogeneration Corporation (TCC) entered into a Memorandum of Understanding
(MOU) expressing their intention to build a power plant in Subic Bay which would
supply reliable and affordable power to Subic Bay Industrial Park (SBIP). 5
On July 28, 2006, SBMA and TCC entered into another MOU, whereby TCC undertook
to build and operatea coal-fired power plant.6 In the said MOU, TCC identified 20
hectares of land at SitioNaglatore, Mt. Redondo, Subic Bay Freeport Zone (SBFZ) as
the suitable area for the project and another site of approximately 10 hectares tobe
used as an ash pond.7 TCC intends to lease the property from SBMA for a term of 50
years with rent fixed at$3.50 per square meter, payable in 10 equal 5-year
installments.8
On April 4, 2007, the SBMA Ecology Center issued SBFZ Environmental Compliance
Certificate (ECC) No. EC-SBFZ-ECC-69-21-500 in favor of Taiwan Cogeneration
International Corporation (TCIC), a subsidiary of TCC,9 for the construction,
installation,and operation of 2x150-MW Circulating Fluidized Bed (CFB) Coal-Fired
Thermal Power Plant at Sitio Naglatore.10
On June 6, 2008, TCC assigned all its rights and interests under the MOU dated July
28, 2006 to Redondo Peninsula Energy, Inc. (RP Energy), 11 a corporation duly
organized and existing under the laws of the Philippines with the primary purpose of
building, owning, and operating powerplants in the Philippines, among
others.12Accordingly, an Addendum to the said MOU was executed by SBMA and RP
Energy.13
RP Energy then contracted GHD Pty, Ltd. (GHD) to prepare an Environmental Impact
Statement (EIS) for the proposed coal-fired power plant and to assist RP Energy in
applying for the issuance ofan ECC from the Department of Environment and Natural
Resources (DENR).14 On August 27, 2008, the Sangguniang Panglungsodof Olongapo
City issued Resolution No. 131, Series of 2008, expressing the city governments
objection to the coal-fired power plant as an energy source and urging the
proponent to consider safer alternative sources ofenergy for Subic Bay. 15
On December 22, 2008, the DENR, through former Secretary Jose L. Atienza, Jr.,
issued an ECC for the proposed 2x150-MW coal-fired power plant. 16
Sometime thereafter, RP Energy decided to include additional components in its
proposed coal-fired power plant. Due to the changes in the project design, which
involved the inclusion of a barge wharf, seawater intake breakwater, subsea
discharge pipeline, raw water collection system, drainage channel improvement, and
a 230kV double-circuit transmission line,17 RP Energy requested the DENR
Environmental Management Bureau(DENR-EMB) to amend its ECC.18 In support of its
request, RP Energy submitted to the DENR-EMBan Environmental Performance
Report and Management Plan (EPRMP), which was prepared by GHD.19
On June 8, 2010, RP Energy and SBMA entered into a Lease and Development
Agreement (LDA) over a 380,004.456-square meter parcel of land to be used for
building and operating the coal-fired power plant. 20
On July 8, 2010, the DENR-EMBissued an amended ECC (first amendment) allowing
the inclusion ofadditional components, among others.21
Several months later, RP Energy again requested the DENR-EMB to amend the
ECC.22 Instead of constructing a 2x150-MW coal-fired power plant, as originally
planned, it now sought toconstruct a 1x300-MWcoal-fired power plant. 23 In support
of its request, RP Energy submitted a Project Description Report (PDR) to the DENR-
EMB.24
On May 26, 2011, the DENR-EMB granted the request and further amended the ECC A. Petitioners (Casio Group)
(second amendment).25
1. Whether x x x the DENR Environmental Compliance Certificate (ECC x x
On August 1, 2011, the Sangguniang Panglalawiganof Zambales issued Resolution x) in favor of RP Energy for a 2x150 MW Coal-Fired Thermal Power Plant
No. 2011-149, opposing the establishment of a coal-fired thermal power plant at Project (Power Plant, x x x ) and its amendment to 1x300 MW Power Plant,
SitioNaglatore, Brgy. Cawag, Subic, Zambales.26 and the Lease and Development Agreement between SBMA and RP Energy
complied with the Certification Precondition as required under Section 59 of
Republic Act No. 8371 or the Indigenous Peoples Rights Act of 1997 (IPRA
On August 11, 2011, the Liga ng mga Barangayof Olongapo City issued Resolution
Law, x x x);
No. 12, Series of 2011, expressing its strong objection to the coal-fired power plant
as an energy source.27
2. Whether x x x RP Energy can proceed with the construction and
operation of the 1x300 MW Power Plant without prior consultation with and
On July 20, 2012, Hon. Teodoro A. Casio, Hon. Raymond V. Palatino, Hon. Rafael V.
approval of the concerned local government units (LGUs, x x x ), pursuant
Mariano, Hon. Emerenciana A. De Jesus, Clemente G. Bautista, Jr., Hon. Rolen C.
to Sections 26 and 27 of Republic Act No. 7160 or the Local Government
Paulino,Hon. Eduardo Piano, Hon. James de los Reyes, Hon. Aquilino Y. Cortez, Jr.,
Code;
Hon. Sarah Lugerna Lipumano-Garcia, Noraida Velarmino, Bianca Christine Gamboa
Espinos, Charo Simons, Gregorio Llorca Magdaraog, Rubelh Peralta, Alex Corpus
Hermoso,Rodolfo Sambajon, Rev. Fr. Gerardo Gregorio P. Jorge, Carlito A. Baloy, 3. Whether x x x Section 8.3 of DENRAdministrative Order No. 2003-30
Ofelia D. Pablo, Mario Esquillo, Elle Latinazo, Evangeline Q. Rodriguez, and John Carlo (DAO No. 2003-30, x x x ) providing for the amendment of an ECC is null
delos Reyes (Casio Group) filed before this Court a Petition for Writ of Kalikasan and void for being ultra vires; and
against RP Energy, SBMA, and Hon. Ramon Jesus P. Paje, in his capacity as Secretary
of the DENR.28
4. Whether x x x the amendment of RPEnergys ECC under Section 8.3 of
DAO No. 2003-30 is null and void.
On July 31, 2012, this Court resolved, among others, to: (1) issue a Writ of Kalikasan;
and (2) refer the case to the CA for hearing and reception of evidence and rendition
B. Respondent RP Energy
of judgment.29 While the case was pending, RP Energy applied for another
amendment to its ECC (third amendment) and submitted another EPRMP to the
DENR-EMB, proposing the construction and operation of a 2x300-MW coal-fired 1. Whether x x x Section 8.3 of DAO No. 2003-30 can be collaterally
power plant.30 attacked;

On September 11, 2012, the Petition for Writ of Kalikasanwas docketed as CA-G.R. 1.1 Whether x x x the same is valid until annulled;
SP No. 00015 and raffled to the Fifteenth Division of the CA. 31 In the Petition, the
Casio Group alleged, among others, that the power plant project would cause grave
2. Whether x x x petitioners exhausted their administrative remedies with
environmental damage;32 that it would adversely affect the health of the residents of
respect to the amended ECC for the 1x300 MW Power Plant;
the municipalities of Subic,Zambales, Morong, Hermosa, and the City of
Olongapo;33 that the ECC was issued and the LDA entered into without the prior
approval of the concerned sanggunians as required under Sections 26 and 27 of the 2.1 Whether x x x the instant Petition is proper;
Local Government Code (LGC);34 that the LDA was entered into without securing a
prior certification from the National Commission on Indigenous Peoples (NCIP) as
3. Whether x x x RP Energycomplied with all the procedures/requirements
required under Section 59 of RA8371 or the Indigenous Peoples Rights Act of 1997
for the issuance of the DENR ECC and its amendment;
(IPRA Law);35 that Section 8.3 of DENR Administrative Order No. 2003-30 (DAO 2003-
30) which allowsamendments of ECCs is ultra viresbecause the DENR has no
authority to decide on requests for amendments of previously issued ECCs in the 3.1 Whether x x x a Certificate of Non-Overlap from the National
absence of a new EIS;36 and that due to the nullity of Section 8.3 of DAO 2003-30, all Commission on Indigenous Peoples is applicable in the instant
amendments to RP Energys ECC are null and void. 37 case;

On October 29, 2012, the CA conducted a preliminary conference wherein the
parties, with their respective counsels, appeared except for Hon. Teodoro A. Casio,
Hon. Rafael V. Mariano, Hon. Emerencia A. De Jesus, Clemente G. Bautista, Mario
Esquillo, Elle Latinazo,Evangeline Q. Rodriguez, and the SBMA. 38 The matters taken
up during the preliminary conference were embodied in the CAs Resolution dated
November 5, 2012, to wit:
4. Whether x x x the LGUs approval under Sections 26 and 27 of the Local
Government Code is necessaryfor the issuance of the DENR ECC and its
amendments, and what constitutes LGU approval;
5. Whether x x x there is a threatened or actual violation of environmental
laws to justify the Petition;

I. ISSUES
 5.1 Whether x x x the approved 1x300 MW Power Plant complied
with the accepted legal standards on thermal pollution of coastal
waters, air pollution, water pollution, and acid deposits on aquatic
and terrestrial ecosystems; and
6. Whether x x x the instant Petition should be dismissed for failure to
comply with the requirements of properverification and certification of
nonforum shopping with respect to some petitioners.
C. Respondent DENR Secretary Paje
1. Whether x x x the issuance of the DENR ECC and its amendment in favor
of RP Energy requires compliance with Section 59 of the IPRA Law, as well
as Sections 26 and 27 of the Local Government Code;
2. Whether x x x Section 8.3 of DAO No. 2003-30 can be collaterally
attacked in this proceeding; and
3. Whether x x x Section 8.3 of DAO No. 2003-30 is valid.
II. ADMISSIONS/DENIALS
Petitioners, through Atty. Ridon, admittedall the allegations in RP Energys Verified
Return, except the following:
1. paragraphs 1.4 to 1.7;
2. paragraphs 1.29 to 1.32; and
3. paragraphs 1.33 to 1.37.
Petitioners made no specific denial withrespect to the allegations of DENR Secretary
Pajes Verified Return. x x x
Respondent RP Energy proposed the following stipulations, which were all admitted
by petitioners, through Atty. Ridon, viz:
1. The 1x300 MW Power Plant is not yet operational;
2. At present, there is no environmental damage;
3. The 1x300 MW Power Plant project is situated within the Subic Special
Economic Zone; and
4. Apart from the instant case, petitioners have not challenged the validity
of Section 8.3 of DAO No. 2003-30.
Public respondent DENR Secretary Paje did not propose any matter for stipulation. 39
Thereafter, trial ensued.
The Casio Group presented three witnesses, namely: (1) Raymond V. Palatino, a
two-term representativeof the KabataanPartylist in the House of
Representatives;40 (2) Alex C. Hermoso, the convenor of the Zambales-Olongapo City
Civil Society Network,a director of the PREDA41 Foundation, and a member of the
Zambales Chapter of the Kaya NatinMovement and the Zambales Chapter of the
People Power Volunteers for Reform; 42and (3) Ramon Lacbain, the ViceGovernor of
the Province of Zambales.43
RP Energy presented five witnesses,namely: (1) JunisseP. Mercado (Ms. Mercado), an
employee of GHD and the Project Directorof ongoing projects for RP Energy
regarding the proposed power plant project;44 (2) Juha Sarkki (Engr. Sarkki), a Master
of Science degree holder inChemical Engineering;45 (3) Henry K. Wong, a degree
holder of Bachelor of Science Major in Mechanical Engineering from Worcester
Polytechnic Institute;46 (4) Dr. Ely Anthony R. Ouano (Dr. Ouano), a licensed Chemical
Engineer, Sanitary Engineer, and Environmental Planner in the Philippines; 47 and (5)
David C. Evangelista (Mr. Evangelista), a Business Development Analyst working for
RP Energy.48
SBMA, for its part, presented its Legal Department Manager, Atty. Von F. Rodriguez
(Atty. Rodriguez).49
The DENR, however, presented no evidence.50
Meanwhile, on October 31, 2012, a Certificate of Non-Overlap (CNO) was issued in
connection with RP Energys application for the 2x300-MW coal-fired power plant. 51
On November 15, 2012, the DENR-EMB granted RP Energys application for the third
amendment to its ECC, approving the construction and operation of a 2x300-MW
coal-fired power plant, among others.52
Ruling of the Court of Appeals
On January 30, 2013, the CA rendereda Decision denying the privilege of the writ of
kalikasanand the application for an environment protection order due to the failure
of the Casio Group to prove that its constitutional right to a balanced and healthful
ecology was violated or threatened.53 The CA likewise found no reason to nullify
Section 8.3 ofDAO No. 2003-30. It said that the provision was not ultra vires,as the
express power of the Secretary of the DENR, the Director and Regional Directors of
the EMB to issue an ECC impliedly includes the incidental power to amend the
same.54 In any case, the CA ruled that the validity of the said section could not
becollaterally attacked in a petition for a writ of kalikasan. 55
Nonetheless, the CA resolved to invalidate the ECC dated December 22, 2008 for
non-compliance with Section 59 of the IPRA Law56 and Sections 26 and 27 of the
LGC57 and for failure of Luis Miguel Aboitiz (Mr. Aboitiz), Director of RP Energy, to
affix his signature in the Sworn Statement of Full Responsibility, which is an integral
part of the ECC.58 Also declared invalid were the ECC first amendment dated July 8,
2010 and the ECC second amendment dated May 26, 2011 in view of the failure of
RP Energy to comply with the restrictions set forth in the ECC, which specifically
require that "any expansion of the project beyond the project description or any
change in the activity x x x shall be subject to a new Environmental Impact
Assessment."59 However, as to the ECC third amendment dated November 15, 2012,
the CA decided not to rule on its validity since it was not raised as an issue during
the preliminary conference.60
The CA also invalidated the LDA entered into by SBMA and RP Energy as it was
issued without the prior consultation and approval of all the sanggunians concerned
as required under Sections 26 and 27 of the LGC,61and in violation of Section 59,
Chapter VIII ofthe IPRA Law, which enjoins all departments and other governmental
agencies from granting any lease without a prior certification that the area affected
does not overlap with any ancestral domain.62 The CA noted that no CNO was
secured from the NCIP prior to the execution of the LDA,63and that the CNO dated
October 31, 2012 was secured during the pendency of the case and was issued in
connection with RP Energys application for a 2x300-MW coalfired power plant. 64
Thus, the CA disposed of the case in this wise:
WHEREFORE, premises considered, judgment is hereby rendered DENYING the
privilege of the writ of kalikasan and the application for an environmental protection
order. The prayer to declare the nullity of Section 8.3 of the DENR Administrative
Order No. 2003-30 for being ultra vires is DENIED; and the following are all declared
INVALID:
1. The Environmental Compliance Certificate (ECC Ref. Code: 0804-011-
4021) dated 22 December 2008 issued in favor of respondent Redondo
Peninsula Energy, Inc. by former Secretary Jose L. Atienza, Jr. of the
Department of Environment and Natural Resources;
2. The ECC first amendment dated 08 July 2010 and ECC second
amendment dated 26 May 2011, both issued in favor ofrespondent
Redondo Peninsula Energy, Inc. by OIC Director Atty. Juan Miguel T. Cunaof
the Department of Environment and Natural Resources, Environmental
Management Bureau; and
3. The Lease and Development Agreement dated 08 June 2010 entered into
by respondents Subic Bay Metropolitan Authority and Redondo Peninsula
Energy, Inc. involving a parcel of land consisting of P380,004.456 square
meters.
SO ORDERED.65
The DENR and SBMA separately moved for reconsideration. 66 RP Energy filed a
Motion for Partial Reconsideration,67 attaching thereto a signed Statement of
Accountability.68 The Casio Group, on the other hand, filed Omnibus Motions for
Clarification and Reconsideration.69
On May 22, 2013, the CAissued a Resolution70 denying the aforesaid motions for lack
of merit. The CA opined that the reliefs it granted in its Decision are allowed under
Section 15, Rule 7 of the Rules of Procedure for Environmental Cases as the reliefs
enumerated therein are broad, comprehensive, and nonexclusive.71 In fact,
paragraph (e) of the saidprovision allows the granting of "such other reliefs" in
consonance with the objective, purpose, and intent of the Rules.72 SBMAs contention
that the stoppage of a project for non-compliance with Section 59 of the IPRA Law
may only be done by the indigenous cultural communities or indigenous peoples
was also brushed aside by the CA as the Casio Group did not file a case under the
IPRA Law but a Petition for a Writ of Kalikasan, which is available to all natural or
juridical persons whose constitutional right to a balanced and healthful ecology is
violated, or threatened to be violated.73 As to RP Energys belated submission of a
signed Statement of Accountability, the CA gaveno weight and credenceto it as the
belated submission of such document, long after the presentation of evidence of the
parties had been terminated, is not in accord with the rules of fair play. 74 Neither was
the CA swayed by the argument that the omitted signature of Luis Miguel Aboitiz is a
mere formal defect, which does not affect the validity of the entire document. 75 The
dispositive portion of the Resolution reads: WHEREFORE,premises considered,
respondents Subic Bay Metropolitan Authoritys Motion for Reconsideration dated 18
February 2013, Department of Environment and Natural Resources Secretary Ramon
Jesus P. Pajes Motion for Reconsideration dated 19 February 2013, and Redondo
Peninsula Energy, Inc.s Motion for Partial Reconsideration dated 22 February 2013,
as well as petitioners OmnibusMotions for Clarification and Reconsideration dated
25 February 2013,are all DENIED for lack of merit.
SO ORDERED.76
Unsatisfied, the parties appealed to this Court.
The Casio Groups arguments
The Casio Group, in essence, argues that it is entitled to a Writ of Kalikasan as it
was able to prove that the operation of the power plant would cause environmental
damage and pollution, and that thiswould adversely affect the residents of the
provinces of Bataan and Zambales, particularly the municipalities of Subic, Morong,
Hermosa, and the City of Olongapo. It cites as basis RP Energys EIS, which allegedly
admits that acid rain may occur in the combustion of coal; 77 that the incidence of
asthma attacks among residents in the vicinity of the project site may increasedue
to exposure to suspended particles from plant operations; 78 and that increased sulfur
oxides (SOx) and nitrogen oxides (NOx) emissions may occur during plant
operations.79 It also claims that when the SBMA conducted Social Acceptability Policy
Consultations with different stakeholders on the proposed power plant, the results
indicated that the overall persuasion of the participants was a clear aversion to the
project due to environmental, health, economic and socio-cultural
concerns.80 Finally, it contends that the ECC third amendment should also be
nullified for failure to comply with the procedures and requirements for the issuance
of the ECC.81
The DENRs arguments
The DENR imputes error on the CAin invalidating the ECC and its amendments,
arguing that the determination of the validity of the ECC as well as its amendments
is beyond the scope of a Petition for a Writ of Kalikasan.82 And even if it is within the
scope, there is no reason to invalidate the ECC and its amendments as these were
issued in accordance with DAO No. 2003-30. 83 The DENR also insists that contrary to
the view of the CA, a new EIS was no longer necessary since the first EIS was still
within the validity period when the first amendment was requested, and that this is
precisely the reason RP Energy was only required to submit an EPRMP in support of
its application for the first amendment.84 As to the second amendment, the DENR-
EMB only required RP Energy to submit documents to support the proposed revision
considering that the change in configuration of the power plant project, from
2x150MW to 1x300MW, was not substantial.85 Furthermore, the DENR argues that no
permits, licenses, and/or clearances from other government agencies are required in But we shall first address some preliminary matters, in view of the manner by which
the processing and approval of the ECC.86 Thus, non-compliance with Sections 26 the appellate court disposed of this case.
and 27 of the LGC as well as Section 59 ofthe IPRA Law is not a ground to invalidate
the ECC and its amendments.87 The DENR further posits that the ECC is not a
The Rules on the Writ of Kalikasan,105 which is Part III of the Rules of Procedure for
concession, permit, or license but is a document certifying that the proponent has
Environmental Cases,106 was issued by the Court pursuant to its power to
complied with all the requirements of the EIS System and has committed to
promulgate rules for the protection and enforcement of constitutional rights, 107 in
implement the approved Environmental Management Plan.88 The DENR invokes
particular, the individuals rightto a balanced and healthful ecology. 108 Section 1 of
substantial justice so that the belatedly submitted certified true copy of the ECC
Rule 7 provides:
containing the signature of Mr. Aboitiz on the Statement of Accountability may be
accepted and accorded weight and credence.89
Section 1. Nature of the writ.- The writ is a remedy available to a natural or juridical
person, entity authorized by law, peoples organization, nongovernmental
SBMAs arguments
organization, or any public interest group accredited by or registered with any
government agency, on behalf of persons whose constitutional right to a balanced
For its part, SBMA asserts that since the CA did not issue a Writ of Kalikasan, it and healthful ecology is violated, or threatened with violation by an unlawful act or
should not have invalidated the LDA and that in doing so, the CA acted beyond its omission of a public official or employee, or private individual or entity, involving
powers.90 SBMA likewise puts in issue the legal capacity of the Casio Group to environmental damage of such magnitude as to prejudice the life, health or property
impugn the validity of the LDA91 and its failure to exhaust administrative of inhabitants in two or more cities or provinces.
remedies.92 In any case, SBMA contends that there is no legal basis to invalidate the
LDA as prior consultation under Sections 26 and 27 of the LGC is not required in this
The writ is categorized as a special civil action and was, thus, conceptualized as an
case considering that the area is within the SBFZ.93 Under RA 7227, it is the SBMA
extraordinary remedy,which aims to provide judicial relief from threatened or actual
which has exclusive jurisdiction over projects and leases within the SBFZ and that in
violation/s of the constitutional right to a balanced and healthful ecology of a
case of conflict between the LGC and RA 7227, it is the latter, a special law, which
magnitude or degree of damage that transcends political and territorial
must prevail.94 Moreover, the lack of prior certification from the NCIP is alsonot a
boundaries.109 It is intended "to provide a strongerdefense for environmental rights
ground to invalidate a contract.95 If at all, the only effect of non-compliance with the
through judicial efforts where institutional arrangements of enforcement,
said requirement under Section 59 of the IPRA Law is the stoppage or suspension of
implementation and legislation have fallen short"110 and seeks "to address the
the project.96Besides, the subsequent issuance of a CNO has cured any legal defect
potentially exponential nature of large-scale ecological threats." 111
found in the LDA.97

RP Energys arguments
RP Energy questions the proprietyof the reliefs granted by the CA considering that it
did not issue a writ of kalikasanin favor of the Casio Group.98 RP Energy is of the
view that unless a writ of kalikasanis issued, the CA has no power to grant the reliefs
prayed for in the Petition.99 And even if it does, the reliefs are limited to those
enumerated in Section 15, Rule 7 of the Rules of Procedure for Environmental Cases
and that the phrase "such other reliefs" in paragraph (e) should be limited only to
those of the same class or general nature as the four other reliefs enumerated. 100 As
to the validity of the LDA, the ECC and its amendments, the arguments of RP Energy
are basically the same arguments interposed by SBMA and the DENR. RP Energy
maintains that the ECC and its amendments were obtained in compliance with the
DENR rules and regulations;101 that a CNO is not necessary in the execution of anLDA
and in the issuance of the ECC and its amendments;102 and that prior approval of the
local governments, which may be affected by the project, are not required because
under RA 7227, the decision of the SBMA shall prevail in matters affecting the Subic
Special Economic Zone (SSEZ), except in matters involving defense and
security.103 RP Energy also raises the issue of non-exhaustion of administrative
remedies on the part of the Casio Group.104 Preliminaries
This case affords us an opportunity to expound on the nature and scope of the writ
of kalikasan. It presents some interesting questions about law and justice in the
context of environmental cases, which we will tackle in the main body of this
Decision.
Under Section 1 of Rule 7, the following requisites must be present to avail of this
extraordinary remedy: (1) there is an actual or threatened violation of the
constitutional right to a balanced and healthful ecology; (2) the actual or threatened
violation arises from an unlawful act or omission of a public official or employee, or
private individual or entity; and (3) the actual or threatened violation involves or will
lead to an environmental damage of such magnitude as to prejudice the life, health
or property ofinhabitants in two or more cities or provinces.
Expectedly, the Rules do not definethe exact nature or degree of environmental
damage but only that it must be sufficientlygrave, in terms of the territorial scope of
such damage, so as tocall for the grant ofthis extraordinary remedy. The gravity
ofenvironmental damage sufficient to grant the writ is, thus, to be decided on a
case-to-case basis.
If the petitioner successfully proves the foregoing requisites, the court shall render
judgment granting the privilege of the writ of kalikasan. Otherwise, the petition shall
be denied. If the petition is granted, the court may grant the reliefs provided for
under Section 15of Rule 7, to wit: Section 15. Judgment.- Within sixty (60) daysfrom
the time the petition is submitted for decision, the court shall render judgment
granting or denying the privilege of the writ of kalikasan.
The reliefs that may be granted under the writ are the following:
(a) Directing respondent to permanently cease and desist from committing
acts or neglecting the performance of a duty in violation of environmental
laws resulting in environmental destruction or damage;
 (b) Directing the respondent public official, government agency, private
person or entity to protect, preserve, rehabilitate or restore the
environment;
(c) Directing the respondent public official, government agency, private
person or entity to monitor strict compliance with the decision and orders
of the court;
(d) Directing the respondent public official, government agency, or private
person or entity to make periodic reports on the execution of the final
judgment; and
(e) Such other reliefs which relate to the right of the people to a balanced
and healthful ecology or to the protection, preservation, rehabilitation or
restoration of the environment, except the award of damages to individual
petitioners.
It must be noted, however,that the above enumerated reliefs are non-exhaustive.
The reliefs that may be granted under the writ are broad, comprehensive and non-
exclusive.112
Prescinding from the above, the DENR, SBMA and RP Energy are one in arguing that
the reliefs granted by the appellate court, i.e.invalidating the ECC and its
amendments, are improper because it had deniedthe Petition for Writ of
Kalikasanupon a finding that the Casio Group failed to prove the alleged
environmental damage, actual or threatened, contemplated under the Rules.
Ordinarily, no reliefs could and should be granted. But the question may be asked,
could not the appellate court have granted the Petition for Writ of Kalikasanon the
ground of the invalidity of the ECC for failure to comply with certain laws and rules?
This question is the starting point for setting up the framework of analysis which
should govern writ of kalikasan cases.
In their Petition for Writ of Kalikasan,113 the Casio Groups allegations, relative to
the actual or threatened violation of the constitutional right to a balanced and
healthful ecology, may be grouped into two.
The first set of allegations deals withthe actual environmental damage that will
occur if the power plant project isimplemented. The Casio Group claims that the
construction and operation of the power plant will result in (1) thermal pollution of
coastal waters, (2) air pollution due to dust and combustion gases, (3) water
pollution from toxic coal combustion waste, and (4) acid deposition in aquatic and
terrestrial ecosystems, which will adversely affect the residents of the Provinces of
Bataan and Zambales, particularly the Municipalities of Subic, Morong and Hermosa,
and the City of Olongapo.
The second set of allegations deals with the failureto comply with certain laws and
rules governing or relating to the issuance ofan ECC and amendments thereto. The
Casio Group claims that the ECC was issued in violation of (1) the DENR rules on
the issuance and amendment of an ECC, particularly, DAO 2003-30 and the Revised
Procedural Manual for DAO 2003-30 (Revised Manual), (2) Section 59 of the IPRA
Law,and (3) Sections 26 and 27 of the LGC. In addition, it claims that the LDA
entered into between SBMA and RP Energy violated Section 59 of the IPRA Law.
As to the first set of allegations, involving actual damage to the environment, it is
not difficult to discern that, if they are proven, then the Petition for Writ of Kalikasan
could conceivably be granted.
However, as to the second set of allegations, a nuanced approach is warranted. The
power of the courts to nullify an ECC existed even prior to the promulgation of the
Rules on the Writ of Kalikasanfor judicial review of the acts of administrative
agencies or bodies has long been recognized114 subject, of course, to the doctrine of
exhaustion of administrative remedies.115
But the issue presented before us is nota simple case of reviewing the acts of an
administrative agency, the DENR, which issued the ECC and its amendments. The
challenge to the validity ofthe ECC was raised in the context of a writ of
kalikasancase. The question then is, can the validity of an ECC be challenged viaa
writ of kalikasan?
We answer in the affirmative subject to certain qualifications.
As earlier noted, the writ of kalikasanis principally predicated on an actual or
threatened violation of the constitutional right to a balanced and healthful ecology,
which involves environmental damage of a magnitude that transcends political and
territorial boundaries. A party, therefore, who invokes the writ based on alleged
defects or irregularities in the issuance of an ECC must not only allege and prove
such defects or irregularities, but mustalso provide a causal link or, at least, a
reasonable connection between the defects or irregularities in the issuance of an
ECC and the actual or threatened violation of the constitutional right to a balanced
and healthful ecology of the magnitude contemplated under the Rules. Otherwise,
the petition should be dismissed outright and the action re-filed before the proper
forum with due regard to the doctrine of exhaustion of administrative remedies. This
must be so ifwe are to preserve the noble and laudable purposes of the writ against
those who seek to abuse it.
An example of a defect or an irregularity in the issuance of an ECC, which could
conceivably warrant the granting of the extraordinary remedy of the writ of
kalikasan, is a case where there are serious and substantial misrepresentations or
fraud in the application for the ECC, which, if not immediately nullified, would cause
actual negative environmental impacts of the magnitude contemplated under the
Rules, because the government agenciesand LGUs, with the final authority to
implement the project, may subsequently rely on such substantially defective or
fraudulent ECC in approving the implementation of the project.
To repeat, in cases of defects or irregularities in the issuance of an ECC, it is not
sufficient to merely allege such defects or irregularities, but to show a causal link or
reasonable connection with the environmental damage of the magnitude
contemplated under the Rules. In the case at bar, no such causal link or reasonable
connection was shown or even attempted relative to the aforesaid second set of
allegations. It is a mere listing of the perceived defects or irregularities in the
issuance of the ECC. This would havebeen sufficient reason to disallow the resolution
of such issues in a writ of kalikasan case.
However, inasmuch as this is the first time that we lay down this principle, we have
liberally examined the alleged defects or irregularities in the issuance of the ECC
and find that there is only one group of allegations, relative to the ECC, that can be
reasonably connected to anenvironmental damageof the magnitude contemplated
under the Rules. This is withrespect to the allegation that there was no
environmental impact assessment relative to the first and second amendments to
the subject ECC. If this were true, then the implementation of the project can
conceivably actually violate or threaten to violate the right to a healthful and
balanced ecology of the inhabitants near the vicinity of the power plant. Thus, the
resolution of such an issue could conceivably be resolved in a writ of kalikasan case
provided that the case does not violate, or is anexception to the doctrine of
exhaustion of administrative remedies and primary jurisdiction.116
1.1. The alleged thermal pollution of coastal waters, air pollution
due to dust and combustion gases, water pollution from toxic coal
combustion waste, and acid deposition to aquatic and terrestrial
ecosystems that will becaused by the project.
1.2. The alleged negative environmental assessment of the project
by experts in a report generated during the social acceptability
consultations.
1.3. The alleged admissions of grave environmental damage in the
EIS itself of the project.

As to the claims that the issuance of the ECC violated the IPRA Law and LGC and 2. Whether the ECC is invalid for lackof signature of Mr. Luis Miguel Aboitiz,
that the LDA, likewise, violated the IPRA Law, we find the same not to be within the as representative of RP Energy, in the Statement of Accountability of the
coverage of the writ of kalikasanbecause, assuming there was non-compliance ECC.
therewith, no reasonable connection can be made to an actual or threatened
violation of the right to a balanced and healthful ecology of the magnitude
3. Whether the first and second amendments to the ECC are invalid for
contemplated under the Rules.
failure to undergo a new environmental impact assessment (EIA) because
of the utilization of inappropriate EIA documents.
To elaborate, the alleged lackof approval of the concerned sanggunians over the
subject project would not lead toor is not reasonably connected with environmental
4. Whether the Certificate of Non-Overlap, under Section 59 of the IPRA
damage but, rather, it is an affront to the local autonomy of LGUs. Similarly, the
Law, is a precondition to the issuanceof an ECC and the lack of its prior
alleged lack of a certificate precondition that the project site does not overlap with
issuance rendered the ECC invalid.
an ancestral domain would not result inor is not reasonably connected with
environmental damage but, rather, it is an impairment of the right of Indigenous
Cultural Communities/Indigenous Peoples (ICCs/IPs) to their ancestral domains. 5. Whether the Certificate of Non-Overlap, under Section 59 of the IPRA
These alleged violationscould be the subject of appropriate remedies before the Law, is a precondition to the consummation of the Lease and Development
proper administrative bodies (like the NCIP) or a separate action to compel Agreement (LDA) between SBMA and RPEnergy and the lack of its prior
compliance before the courts, as the case may be. However, the writ of kalikasan issuance rendered the LDA invalid.
would not be the appropriate remedy to address and resolve such issues.
6. Whether compliance with Section 27, in relation to Section 26, of the LGC
Be that as it may, we shall resolve both the issues proper in a writ of kalikasan case (i.e., approval of the concerned sanggunianrequirement) is necessary prior
and those which are not, commingled as it were here, because of the exceptional to the implementation of the power plant project.
character of this case. We take judicial notice of the looming power crisis that our
nation faces. Thus, the resolution of all the issues in this case is of utmost urgency
7. Whether the validity of the third amendment to the ECC can be resolved
and necessity in order to finally determine the fate of the project center of this
in this case.
controversy. If we were to resolve only the issues proper in a writ of kalikasancase
and dismiss those not proper therefor, that will leave such unresolved issues open to
another round of protracted litigation. In any case, we find the records sufficient to Ruling
resolve all the issues presented herein. We also rule that, due to the extreme
urgency of the matter at hand, the present case is an exception to the doctrine of
The parties to this case appealed from the decision of the appellate court pursuant
exhaustion of administrative remedies.117 As we have often ruled, in exceptional
to Section 16, Rule7 of the Rules of Procedure for Environmental Cases, viz:
cases, we can suspend the rules of procedure in order to achieve substantial justice,
and to address urgent and paramount State interests vital to the life of our nation.
Section 16. Appeal.- Within fifteen (15) days from the date of notice of the adverse
judgment or denialof motion for reconsideration, any party may appeal to the
Issues
Supreme Court under Rule45 of the Rules of Court. The appeal may raise questions
of fact. (Emphasis supplied)
In view of the foregoing, we shall resolve the following issues:
It is worth noting that the Rules on the Writ of Kalikasan allow the parties to raise, on
1. Whether the Casio Group was able to prove that the construction and appeal, questions of fact and, thus, constitutes an exception to Rule 45 of the
operation of the power plant will cause grave environmental damage. Rules of Court because ofthe extraordinary nature of the circumstances
surrounding the issuance of a writ of kalikasan.118 Thus, we shall review both
questions of law and fact in resolving the issues presented in this case.
We now rule on the above-mentioned issues in detail.
I.
Whether the Casio Group was able to prove that the construction and operation of
the power plant will cause grave environmental damage.
The alleged thermal pollution of coastal
waters, air pollution due to dust and
combustion gases, water pollution from
toxic coal combustion waste, and acid
deposition in aquatic and terrestrial
ecosystems that willbe caused by the
project.
As previously noted, the Casio Group alleged that the construction and operation of
the power plant shall adversely affect the residents of the Provinces of Bataan and
Zambales, particularly, the Municipalities of Subic, Morong and Hermosa, and the
City of Olongapo, as well as the sensitive ecological balance of the area. Their claims
of ecological damage may be summarized as follows:
1. Thermal pollution of coastal waters. Due to the discharge of heated
water from the operation of the plant, they claim that the temperature of
the affected bodies of water will rise significantly. This will have adverse
effects on aquatic organisms. It will also cause the depletion of oxygen in
the water. RP Energy claims that there will beno more than a 3C increase
in water temperature but the Casio Group claims that a 1C to 2C rise
can already affect the metabolism and other biological functions of aquatic
organisms such asmortality rate and reproduction.
2. Air pollution due to dust and combustion gases. While the Casio Group
admits that Circulating Fluidized Bed (CFB) Coal technology, which will be
used in the power plant, is a clean technology because it reduces the
emission of toxic gases, it claims that volatile organic compounds,
specifically, polycyclic aromatic hydrocarbons (PAHs) will also be emitted
under the CFB. PAHs are categorized as pollutants with carcinogenic and
mutagenic characteristics. Carbon monoxide, a poisonous gas, and nitrous
oxide, a lethal global warming gas, will also be produced.
3. Water pollution from toxic coal combustion waste. The waste from coal
combustion or the residues from burning pose serious environmental risk
because they are toxic and may cause cancer and birth defects. Their
release to nearby bodies of water will be a threatto the marine ecosystem
of Subic Bay. The project is located in a flood-prone area and is near three
prominent seismic faults as identified by Philippine Institute of Volcanology
and Seismology. The construction of an ash pond in an area susceptible to
flooding and earthquake also undermines SBMAs duty to prioritize the
preservation of the water quality in Subic Bay.
4. Acid deposition in aquatic and terrestrial ecosystems. The power plant
will release 1,888 tons of nitrous oxides and 886 tons of sulfur dioxide per
year. These oxides are responsible for acid deposition. Acid deposition
directly impacts aquatic ecosystems. It is toxic to fish and other aquatic
animals. It will also damage the forests near Subic Bay as well as the
wildlife therein. This will threaten the stability of the biological diversity of
the Subic Bay Freeport which was declared as one of the ten priority sites
among the protected areas in the Philippines and the Subic Watershed and
Forest Reserve. This will also have an adverse effect on tourism. 119
In its January 30, 2013 Decision, the appellate court ruled that the Casio Group
failed to prove the above allegations.
We agree with the appellate court.
Indeed, the three witnesses presented by the Casio Group are not experts on the
CFB technology or on environmental matters. These witnesses even admitted on
cross-examination that theyare not competent to testify on the environmental
impact of the subject project. What is wanting in their testimonies is their technical
knowledgeof the project design/implementation or some other aspects of the
project, even those not requiring expertknowledge, vis--vis the significant negative
environmental impacts which the Casio Group alleged will occur. Clearly, the
Casio Group failed to carry the onusof proving the alleged significant negative
environmental impacts of the project. In comparison, RP Energy presented several
experts to refute the allegations of the Casio Group.
As aptly and extensively discussed by the appellate court:
Petitioners120 presented three (3) witnesses, namely, Palatino, Hermoso, and
Lacbain, all of whom are not experts on the CFB technology or even on
environmental matters. Petitioners did not present any witness from Morong or
Hermosa. Palatino, a former freelance writer and now a Congressman representing
the Kabataan Partylist, with a degree of BS Education major in Social Studies,
admitted that he is not a technical expert. Hermoso, a Director of the PREDA
foundation which is allegedly involved on environmental concerns, and a member of
Greenpeace, is not an expert on the matter subject of this case. He is a graduate of
BS Sociology and a practicing business director involved in social development and
social welfare services. Lacbain, incumbent ViceGovernor of the Province of
Zambales, anaccounting graduate with a Master in Public Administration, was a
former BancoFilipino teller, entertainment manager, disco manager, marketing
manager and college instructor, and is also not an expert on the CFB technology.
Lacbain also admitted that he is neither a scientist nor an expert on matters of the
environment.
Petitioners cited various scientific studies or articles and websites culled from the
internet. However, the said scientific studiesand articles including the alleged Key
Observations and Recommendations on the EIS of the Proposed RPE Project by Rex
Victor O. Cruz (Exhibit "DDDDD") attached to the Petition, were not testified to by an
expert witness, and are basically hearsay in nature and cannot be given probative
weight. The article purportedly written by Rex Victor O. Cruz was not even signed by
the said author, which fact was confirmed by Palatino. Petitioners witness, Lacbain,
admitted that he did not personally conduct any study on the environmental or
health effects of a coal-firedpower plant, but only attended seminars and
conferences pertaining to climate change; and that the scientific studies mentioned
in the penultimate whereas clause of Resolution No. 2011-149 (Exhibit "AAAAA") of
the Sangguniang Panlalawiganof Zambales is based on what he read on the internet,
seminars he attended and what he heard from unnamed experts in the field of
environmental protection.
In his Judicial Affidavit (Exhibit "HHHHH"), Palatino stated that he was furnished by
the concerned residents the Key Observations and Recommendations on the EIS of
Proposed RPE Project by Rex Victor O. Cruz, and that he merely received and read
the five (5) scientific studies and articles which challenge the CFB technology.
Palatino also testified that: he was only furnished by the petitioners copies of the
studies mentioned in his Judicial Affidavit and he did not participate in the execution,
formulation or preparation of any of the said documents; he does not personally
know Rex Cruz or any of the authors of the studies included in his Judicial Affidavit;
he did not read other materials about coal-fired power plants; he is not aware of the
acceptable standards as far as the operation of a coal-fired power plant is
concerned; petitioner Velarmino was the one who furnished him copies of the
documents in reference to the MOU and some papers related to the case; petitioner
Peralta was the one who e-mailed to him the soft copy ofall the documents [letters
(a) to (o) of his Judicial Affidavit], except the LGU Resolutions; and he has never
been at the actual Power Plant projectsite. It must be noted that petitioners
Velarmino and Peralta were never presented as witnesses in this case. In addition,
Palatino did not identify the said studies but simplyconfirmed that the said studies
were attached to the Petition.
Indeed, under the rules of evidence, a witness can testify only to those facts which
the witness knows of his orher personal knowledge, that is, which are derived from
the witness own perception. Concomitantly, a witness may not testify on matters
which he or she merely learned from others either because said witness was told or
read or heard those matters. Such testimony is considered hearsay and may not be
received as proof of the truth of what the witness has learned. This is known as the
hearsay rule. Hearsay is notlimited to oral testimony or statements; the general rule
that excludes hearsay as evidence applies to written, as well as oral statements.
There are several exceptions to the hearsay rule under the Rules of Court, among
which are learned treatises under Section 46 of Rule 130, viz:
"SEC. 46. Learned treatises. -A published treatise, periodical or pamphlet on a
subjectof history, law, science, or art is admissible as tending to prove the truth of a
matter stated therein if the court takes judicial notice, or a witness expert in the
subject testifies, that the writer of the statement in the treatise, periodical or
pamphlet is recognized in his profession or calling as expert in the subject."
The alleged scientific studies mentioned in the Petition cannot be classified as
learned treatises. We cannot take judicial notice of the same, and no witness expert
in the subjectmatter of this case testified, that the writers of the said scientific
studies are recognized in their profession or calling as experts in the subject.
In stark contrast, respondent RP Energy presented several witnesses on the CFB
technology.
In his Judicial Affidavit, witness Wong stated that he obtained a Bachelor of Science,
Major in Mechanical Engineering from Worcester Polytechnic Institute; he is a
Consulting Engineer of Steam Generators of URS; he was formerly connected with
Foster Wheeler where he held the positions of site commissioning engineer, testing
engineer, instrumentation and controls engineer, mechanical equipment department
manager, director of boiler performance and mechanical design engineering and
pulverized coal product director. He explained that: CFB stands for Circulating
Fluidized Bed; it is a process by which fuel is fed to the lower furnace where it is
burned in an upward flow of combustion air; limestone, which is used as sulfur
absorbent, is also fed to the lower furnace along with the fuel; the mixture offuel,
ash, and the boiler bed sorbent material is carried to the upper part of the furnace
and into a cyclone separator; the heavier particles which generally consist of the
remaining uncombusted fuel and absorbent material are separated in the cyclone
separator and are recirculated to the lower furnace to complete the combustion of
any unburned particles and to enhance SO2 capture by the sorbent; fly ash and flue
gas exit the cyclone and the fly ash is collected in the electrostatic precipitator;
furnace temperature is maintained in the range of 800 to 900 C by suitable heat
absorbing surface; the fuel passes through a crusher that reduces the size to an
appropriate size prior to the introduction into the lower furnace along with the
limestone; the limestone is used as a SO2 sorbent which reacts with the sulfur
oxides to form calcium sulfate, an inert and stable material; air fans at the bottom of
the furnace create sufficient velocity within the steam generator to maintain a bed
of fuel, ash, and limestone mixture; secondary air is also introduced above the bed
to facilitate circulation and complete combustion of the mixture; the combustion
process generates heat, which then heats the boiler feedwater flowing through
boiler tube bundles under pressure; the heat generated in the furnace circuit turns
the water to saturated steam which is further heated to superheated steam; this
superheated steam leaves the CFB boiler and expands through a steam turbine; the
steam turbine is directly connected to a generator that turns and creates electricity;
after making its way through the steam turbine, the low-pressure steam is
exhausted downwards into a condenser; heat is removed from the steam, which
cools and condenses into water (condensate); the condensate is then pumped back
through a train of feedwater heaters to gradually increase its temperature beforethis
water is introduced to the boiler to start the process all over again; and CFB
technology has advantagesover pulverized coal firing without backend cleanup
systems, i.e., greater fuel flexibility, lower SO2 and NOx emissions. Moreover, Wong
testified, inter alia, that: CFBs have a wider range of flexibility so they can
environmentally handle a wider range of fuel constituents, mainly the constituent
sulfur; and is capable of handling different types of coal within the range of the
different fuelconstituents; since CFB is the newer technology than the PC or stalker
fire, it has better environmental production; 50 percent ofthe electric generation in
the United States is still produced by coal combustion; and the CFB absorbs the
sulfur dioxide before it is emitted; and there will be a lower percentage of emissions
than any other technology for the coal.
In his Judicial Affidavit, Sarrki, stated that: he is the Chief Engineer for Process
Concept in FosterWheeler; he was a Manager of Process Technology for Foster
Wheeler from 1995 to 2007; and he holds a Master of Science degree in Chemical
Engineering.He explained that: CFB boilers will emit PAHs but only in minimal
amounts, while BFB will produce higher PAH emissions; PAH is a natural product of
any combustion process; even ordinary burning, such as cooking or driving
automobiles, will have some emissions that are not considered harmful; it is only
when emissions are of a significant level that damage may be caused; a CFB
technology has minimal PAH emissions; the high combustion efficiency of CFB
technology, due to long residence time of particles inside the boiler, leads to
minimal emissions of PAH; other factors such as increase in the excess air ratio[,]
decrease in Ca/S, as well as decrease in the sulfur and chlorine contents of coal will
likewise minimize PAH production; and CFB does not cause emissions beyond
scientificallyacceptable levels. He testified, inter alia, that: the CFB technology is
used worldwide; they have a 50% percent share of CFB market worldwide; and this
will be the first CFB by Foster Wheeler in the Philippines; Foster Wheeler
manufactures and supplies different type[s] of boilers including BFB, but CFB is
always applied on burning coal, so they do not apply any BFB for coal firing; CFB has
features which have much better combustion efficiency, much lower emissions and
it is more effective as a boiler equipment; the longer the coal stays inthe combustion
chamber, the better it is burned; eight (8) seconds is already beyond adequate but it
keeps a margin; in CFB technology, combustion technology is uniform throughout
the combustion chamber; high velocity is used in CFB technology, that is vigorous
mixing or turbulence; turbulence is needed to get contact between fuel and In the same vein, Dr. Ouano stated in his Judicial Affidavit:
combustion air; and an important feature of CFB is air distribution.
Q: In page 41, paragraph 99 of the Petition, it was alleged that: "x x x a temperature
In his Judicial Affidavit, Ouano stated that: he is a licensed Chemical Engineer, change of 1C to 2C canalready affect the metabolism and other biological
Sanitary Engineer and Environmental Planner in the Philippines; he is also a functions of aquatic organisms such as mortality rate and reproduction." What is
chartered Professional Engineer inAustralia and a member of the colleges of your expert opinion, if any, on this matter alleged by the Petitioners?
environmental engineers and chemical engineers of the Institution of Engineers
(Australia); he completed his Bachelor in Chemical Engineering in 1970, Master of
A: Living organisms have proven time and again that they are very adaptable to
Environmental Engineering in 1972 and Doctor of Environmental Engineering in
changes in the environment. Living organisms have been isolated in volcanic vents
1974; he also graduated from the University of Sydney Law School with the degree
under the ocean living on the acidic nutrient soup of sulfur and other minerals
of Master of Environmental Law in 2002 and PhD in Law from Macquarie University
emitted by the volcano to sub-freezing temperature in Antarctica. Asa general rule,
in 2007. He explained in his Judicial Affidavit that: the impacts identified and
metabolism and reproductive activity [increase] with temperature until a maximum
analyzed in the EIA process are all potential or likely impacts; there are a larger
is reached after which [they decline]. For this reason, during winter, animals
number of EIA techniques for predicting the potential environmental impacts; it is
hibernate and plants become dormant after shedding their leaves. It is on the onset
important to note that all those methods and techniques are only for predicting the
of spring that animals breed and plants bloom when the air and water are warmer.
potential environmental impacts, not the real impacts; almost all environmental
At the middle of autumn when the temperature drops to single digit, whales, fish,
systems are non-linear and they are subject to chaotic behavior that even the most
birds and other living organisms, which are capable of migrating, move to the other
sophisticated computer could not predict accurately; and the actual or real
end of the globe where spring is just starting. In the processes of migration, those
environmental impact could only be established when the project is in actual
migratory species have to cross the tropics where the temperature is not just one or
operation. He testified, inter alia, that: the higher the temperature the higher the
two degrees warmer but 10 to 20 degrees warmer. When discussing the impact of 1
nitrous oxide emitted; in CFB technology, the lower the temperature, the lower is the
to 2 degrees temperature change and its impact on the ecosystem, the most
nitrogen oxide; and it still has a nitrogen oxide but not as high as conventional coal;
important factors to consider are (1) Organism Type specifically its tolerance to
the CFB is the boiler; from the boiler itself,different pollution control facilities are
temperature change (mammals have higher tolerance); (2) Base Temperature it is
going to be added; and for the overall plant with the pollution control facilities, the
the temperature over the optimum temperature such that an increasewill result in
particulate matters, nitrogen oxide and sulfur dioxide are under control. (Citations
the decline in number of the organisms; (3) Mobility or Space for Migration (i.e., an
omitted)121
aquarium with limited space or an open ocean that the organism can move to a
space more suited to [a] specific need, such as the migratory birds); and (4)
We also note that RP Energy controverted in detail the afore-summarized allegations Ecosystem Complexity and Succession. The more complex the ecosystem the more
of the Casio Group on the four areas of environmental damage that will allegedly stable it is as succession and adaptation [are] more robust.
occur upon the construction and operation of the power plant:
Normally, the natural variation in water temperature between early morning to late
1. On thermal pollution of coastal waters. afternoon could be several degrees (four to five degrees centigrade and up to ten
degrees centigrade on seasonal basis). Therefore, the less than one degree
centigrade change predicted by the GHD modeling would have minimal impact. 123
As to the extent of the expected rise in water temperature once the power plant is
operational, Ms. Mercado stated in her JudicialAffidavit thus:
On cross-examination, Dr. Ouano further explained
Q: What was the result of the Thermal Plume Modeling that was conducted for RP
Energy? ATTY. AZURA:

A: The thermal dispersion modeling results show that largest warming change x x x When you say Organism Type you mentioned that mammals have a higher
(0.95C above ambient) is observed in the shallowest (5 m) discharge scenario. The tolerance for temperature change?
warmest surface temperature change for the deepest (30 m) scenario is 0.18C. All
the simulated scenarios comply with the DAO 90-35 limit for temperature rise of 3C
DR. OUANO:
within the defined 70 x 70 m mixing zone. The proposed power plant location is near
the mouth of Subic Bay, thus the tidal currents influence the behavior of thermal
discharge plume. Since the area is well-flushed, mixing and dilution of the thermal Yes.
discharge is expected.
ATTY. AZURA:
It also concluded that corals are less likely to be affected by the cooling water
discharge as corals may persist in shallow marine waterswith temperatures ranging
What about other types of organisms, Dr. Ouano? Fish for example?
from 18C to 36C. The predicted highest temperature of 30.75C, from the 0.95C
increase in ambient in the shallowest (5 m) discharge scenario, is within this
range.122 DR. OUANO:
Well, mammals have high tolerance because mammals are warm[- ]blooded. Now, To clarify. You said that the most potentially sensitive part of the ecosystem would be
when it comes to cold[-]blooded animals the tolerance is much lower. But again the corals. DR. OUANO:
when you are considering x x x fish [e]specially in open ocean you have to
remember that nature by itself is x x x very brutal x x x where there is always the
Or threatened part because they are the ones [that] are not in a position to migrate.
prey-predator relationship. Now, most of the fish that we have in open sea [have]
already a very strong adaptability mechanism.And in fact, Kingman back in 1964 x x
x studied the coal reefaround the gulf of Oman where the temperature variation on ATTY AZURA:
day to day basis varied not by 1 degree to 2 degrees but by almost 12 degrees
centigrade. Now, in the Subic Bay area which when youre looking at it between
In this case, Dr. Ouano, with respectto this project and the projected temperature
daytime variation, early dawn when it is cold, the air is cold, the sea temperature,
change, will the corals in Subic Bay be affected?
sea water is quite cold. Then by 3:00 oclock in the afternoon it starts to warm up.
Sothe variation [in the] Subic Bay area is around 2 to 4 degrees by natural variation
from the sun as well as from the current that goes around it. So when you are talking DR. OUANO:
about what the report has said of around 1 degree change, the total impact x x x on
the fishes will be minimal. x x x
As far as the outlet is concerned, they have established it outside the coral area. By
the time it reaches the coral area the temperature variation, as per the GHD study is
ATTY. AZURA: very small, it[]s almost negligible.

x x x So, you said, Dr. Ouano, that fish, while they have a much lower tolerance for ATTY AZURA:
temperature variation, are still very adaptable. What about other sea life, Dr. Ouano,
for example, sea reptiles?
Specifically, Dr. Ouano, what does negligible mean, what level of variation are we
talking about?
DR. OUANO:
DR. OUANO:
Thats what I said. The most sensitive part of the marine ecology is physically the
corals because corals are non-migratory, they are fix[ed]. Second[ly] x x x corals are
If you are talking about a thermometer, you might be talking about, normally about .
also highly dependent on sunlight penetration. If they are exposed out of the sea,
1 degrees centigrade. Thatsthe one that you could more or less ascertain. x x x
they die; if theyare so deep, they die. And that is why I cited Kingman in his studies
of coral adaptability [in] the sea ofOman where there was a very high temperature
variation, [they] survived. ATTY. AZURA:

ATTY. AZURA:
Would you be aware, Dr. Ouano, if Kingman has done any studies in Subic Bay?
DR. OUANO:
Not in Subic Bay but I have reviewedthe temperature variation, natural temperature
variation from the solar side, the days side as well as the seasonal variation. There
are two types of variation since temperatures are very critical. One is the daily,
which means from early morning to around 3:00 oclock, and the other one is
seasonal variation because summer, December, January, February are the cold
months and then by April, May we are having warm temperature where the
temperature goes around 32-33 degrees; Christmas time, it drops to around 18 to 20
degrees so it[']sa variation of around seasonal variation of 14 degrees although
some of the fish might even migrate and that is why I was trying to put in corals
because they are the ones that are really fix[ed]. They are not in a position to
migrate in this season.
ATTY. AZURA:
Dr. Ouano, you mentioned in youranswer to the same question, Question 51, that
there is a normal variation in water temperature. In fact, you said there is a variation
throughout the day, daily and also throughout the year, seasonal. Just to clarify, Dr.
Ouano. When the power plant causes the projected temperature change of 1 degree
to 2 degrees Celsius this will be in addition to existing variations? What I mean, Dr.
Ouano, just so I can understand, how will that work? How will the temperature
change caused by the power plant work with the existing variation? DR. OUANO:
There is something like what we call the zonal mixing. This is an area of
approximately one or two hectares where the pipe goes out, the hot water goes out.
So that x x x, we have to accept x x x that [throughout it] the zone will be a
disturb[ed] zone. After that one or two hectares park the water temperature is well
mixed [so] that the temperature above the normal existing variation now practically
drops down to almost the normal level.124
2. On air pollution due todust and combustion gases.
To establish that the emissions from the operation of the power plant would be
compliant with the standards under the Clean Air Act,125 Ms. Mercado stated in her
Judicial Affidavit thus:
 271. Q: What was the result of the Air Dispersion Modeling that was conducted for
RP Energy?
A: The Air Dispersion Modeling predicted that the Power Plant Project will produce
the following emissions,which [are] fully compliant with the standards set by DENR:
If I may refer you to another page of the same annex, Ms. Mercado, thats page 202
of the same document, the August 2012. Fig. 2-78 appears to show, theres a Table,
Ms. Mercado, the first table, the one on top appears to show a comparison in normal
and upset conditions. I noticed, Ms. Mercado, that the black bars are much higher
than the bars in normal condition. Can you state what this means?

MS. MERCADO:
Predicted GLC126 for 1-hr National Ambient Air Quality
averaging period Guideline Values
It means there are more emissions that could potentially be released when it is
SO2 45.79 g/Nm3 340 g/Nm3 under upset condition.

NO2 100.8 g/Nm3 260 g/Nm3

ATTY. AZURA:
CO 10 g/Nm3 35 g/Nm3
I also noticed, Ms. Mercado, at the bottom part of this chart there are Receptor IDs,
R1, R2, R3 and so forth and on page 188 of this same document, Annex "9-
Predicted GLC for 8-hr averaging period National Ambient Air Quality Mercado," there is a list identifying these receptors, for example, Receptor 6, Your
Guideline Values Honor, appears to have been located in Olongapo City, Poblacion. Just so I can
CO 0.19 mg/ncm 10 g/Nm3 understand, Ms. Mercado, does that mean that if upset condition[s] were to occur,
the Olongapo City Poblacion will be affected by the emissions? MS. MERCADO:

Predicted GLC for 24-hr averaging period National Ambient Air Quality All it means is that there will be higher emissions and a higher ground concentration.
Guideline Values But you might want to alsopay attention to the "y axis," it says there GLC/CAA
[Ground Level Concentration/Clean Air Act limit]. So it means that even under upset
SO2 17.11 g/Nm3 180 g/Nm3
conditions say for R6, the ground level concentration for upset condition is still
NO2 45.79 g/Nm3 150 g/Nm3 around .1 or 10% percent only of the Clean Air Act limit. So its still much lower than
the limit.

Predicted GLC for 1-yr averaging period National Ambient Air Quality ATTY. AZURA:
Guideline Values

SO2 6.12 g/Nm3 80 g/Nm3 But that would mean, would it not, Ms. Mercado, that in the event of upset
conditions[,] emissionswould increase in the Olongapo City Poblacion?
NO2 No standard ---

CO No standard --- MS. MERCADO:

Not emissions will increase. The emissions will be the same but the ground level
272. Q: What other findings resulted from the Air Dispersion Modeling, if any?
concentration, the GLC, will be higher if you compare normal versus upset. But even
if it[]s under upset conditions, it is still only around 10% percent of the Clean Air Act
A: It also established that the highest GLC to CleanAir Act Standards ratio among Limit.
possible receptors was located 1.6 km North NorthEast ("NNE") of the Power Plant
Project. Further, this ratio was valued only at 0.434 or less than half of the upper
xxxx
limit set out in the Clean Air Act. This means that the highest air ambient quality
disruption will happen only 1.6 km NNE of the Power Plant Project, and that such
disruption would still be compliant with the standards imposed by the Clean Air J. LEAGOGO:
Act.127
So you are trying to impress upon this Court that even if the plant is in an upset
The Casio Group argued, however, that, as stated inthe EIS, during upset condition, it will emit less than what the national standards dictate?
conditions, significant negative environmental impact will result from the emissions.
This claim was refuted by RP Energys witness during cross-examination:
MS. MERCADO:

ATTY. AZURA:
Yes, Your Honor.128
With respect to the claims that the powerplant will release dangerous PAHs and CO,
Engr. Sarrki stated in his Judicial Affidavit thus:
Q: In page 42, paragraph 102 of the Petition, the Petitioners alleged that Volatile
Organic Compounds ("VOC") specifically Polycyclic Aromatic Hydrocarbon ("PAH")
will be emitted even by CFB boilers. What can you say about this?
A: Actually, the study cited by the Petitioners does not apply to the present case
because it does not refer to CFB technology. The study refers to a laboratory-scale
tubular Bubbling Fluidized Bed ("BFB") test rig and not a CFB. CFB boilers will emit
PAHs but only in minimal amounts. Indeed, a BFB will produce higher PAH emissions.
xxxx
Q: Why can the study cited by Petitioners not apply in the present case?
A: The laboratory-scale BFB used in the study only has one (1) air injection point and
does not replicate the staged-air combustion process of the CFB that RP Energy will
use. Thisstaged-air process includes the secondary air. Injecting secondary air into
the system will lead to more complete combustion and inhibits PAH production.
There is a study entitled "Polycyclic Aromatic Hydrocarbon (PAH) Emissions from a
Coal-Fired Pilot FBC System" byKunlei Liu, Wenjun Han, Wei-Ping Pan, John T. Riley
found in the Journal of Hazardous Materials B84 (2001) where the findings are
discussed.
Also, the small-scale test rig utilized in the study does not simulate the process
conditions (hydrodynamics, heat transfer characteristics, solid and gas mixing
behavior, etc.) seen in a large scale utility boiler, like those which would be utilized
by the Power Plant Project.
xxxx
Q: Aside from residence time of particles and secondary air, what other factors, if
any, reduce PAH production?
A: Increase in the excess air ratio will also minimizePAH production. Furthermore,
decrease in Calcium to Sulfur moral ratio ("Ca/S"), as well as decrease in the sulfur
and chlorine contents of coal will likewise minimize PAH production. This is also
based on the study entitled "Polycyclic Aromatic Hydrocarbon (PAH) Emissions from
a Coal-Fired Pilot FBC System" by Kunlei Liu, Wenjun Han, Wei-Ping Pan, John T. Riley.
In RP Energys Power Plant Project, the projected coal to be utilized has low sulfur
and chlorine contents minimizing PAH production. Also, due to optimum conditions
for the in-furnace SO2capture, the Ca/S will be relatively low, decreasing PAH
production.
Q: In paragraph 104 of the Petition, it was alleged that "Carbon monoxide (CO), a
poisonous, colorless and odorless gas is also produced when there is partial
oxidation or when there is not enough oxygen (O2) to form carbon dioxide (CO2)."
What can you say about this?
A: CFB technology reduces the CO emissions of the Power Plant Project to safe
amounts. In fact, I understand that the projected emissions level of the Power Plant
Project compl[ies]with the International Finance Corporation ("IFC") standards.
Furthermore, characteristics of CFB technology such as long residence time, uniform
temperature and high turbulence provide an effective combustion environment
which results [in] lower and safer CO emissions.
Q: I have no further questions for youat the moment. Is there anything you wish to
add to the foregoing?
A: Yes. PAH is a natural product of ANY combustion process. Even ordinary burning,
such as cooking or driving automobiles, will have some emissions that are not
considered harmful. It is only when emissions are of a significant level that damage
may be caused.
Given that the Power Plant Project will utilize CFB technology, it will have minimal
PAH emissions. The high combustion efficiency of CFB technology, due to the long
residence time of particles inside the boiler, leads to the minimal emissions of PAH.
Furthermore,other factors such as increase in the excess air ratio, decrease in Ca/S,
as well as decrease in the sulfur and chlorine contents of coal will likewise minimize
PAH production. CFB does not cause emissions beyond scientifically acceptable
levels, and we are confident it will not result in the damage speculated by the
Petitioners.129
3. On water pollution from toxic coal combustion waste.
With regard to the claim that coal combustion waste produced by the plant will
endanger the health of the inhabitants nearby, Dr. Ouano stated in his Judicial
Affidavit thus:
Q: In page 43, paragraph 110 of the Petition, it was alleged that: "[s]olid coal
combustion waste is highly toxic and is said to cause birth defects and cancer risks
among others x x x." What is your expert opinion, if any, on this matter alleged by
the Petitioners?
A: Coal is geologically compressed remains of living organisms that roamed the
earth several million years ago. In the process of compression, some of the minerals
in the soil, rocks or mud, the geologic media for compression, are also imparted into
the compressed remains. If the compressing media of mud, sediments and rocks
contain high concentration of mercury, uranium, and other toxic substances, the
coal formed will likewise contain high concentration of those substances. If the
compressing materials have low concentration of those substances, then the coal
formed will likewise have low concentration of those substances. If the coal does not
contain excessive quantities of toxic substances, the solid residues are even used in
agriculture to supply micronutrients and improve the potency of fertilizers. It is used
freely as a fill material in roads and other construction activities requiring large
volume of fill and as additive in cement manufacture. After all, diamonds that people
love to hang around their necks and keep close to the chest are nothing more than
the result of special geologic action, as those in volcanic pipes on coal. 130
RP Energy further argued, a matter which the Casio Group did not rebut or refute,
that the waste generated by the plant will be properly handled, to wit:
 4.1.49 When coal is burned in the boiler furnace, two by-products are In terms of fault lines, did you study whether this project site is in any fault line?
generated - bottom and fly ash. Bottom ash consists oflarge and fused
particles that fall to the bottom of the furnace and mix with the bed
DR. OUANO:
media.Fly ash includes finegrained and powdery particles that are carried
away by flue gas into the electrostatic precipitator, which is then sifted and
collected. These by-products are non-hazardous materials. In fact, a coal There are some fault linesand in fact, in the Philippines it is very difficult to find an
power plants Fly Ash, Bottom Ash and Boiler Slag have consequent area except Palawan where there is no fault line within 20 to 30 [kilometers]. But
beneficial uses which "generate significant environmental, economic, and then fault lines as well as earthquakes really [depend] upon your engineering
performance benefits." Thus, fly ash generated during the process will be design. I mean, Sto. Tomas University has withstood all the potential earthquakes we
sold and transported to cement manufacturing facilities or other local and had in Manila[,] even sometimes it[]s intensity 8 or so because the design for it
international industries. back in 1600 they are already using what we call floating foundation. So if the
engineering side for it[,] technology is there to withstand the expected fault line
[movement]. J. LEAGOGO:
4.1.50 RP Energy shall also install safety measures to insure that waste
from burning of coal shall be properly handled and stored.
What is the engineering side of the project? You said UST is floating.
4.1.51 Bottom ash will be continuously collected from the furnace and
transferred through a series of screw and chain conveyors and bucket DR. OUANO:
elevator to the bottom ash silo. The collection and handling system is
enclosed to prevent dust generation. Discharge chutes will be installed at
The foundation, that means to say you dont break
the base of the bottom ash silo for unloading. Open trucks will be used to
collect ash through the discharge chutes. Bottom ash will be sold, and
unsold ash will be stored in ash cells. A portion of the bottom ash will be J. LEAGOGO:
reused as bed materialthrough the installation of a bed media regeneration
system (or ash recycle). Recycled bottom ash will be sieved using a
Floating foundation. What about this, what kind of foundation?
vibrating screen and transported to a bed material surge bin for re-injection
into the boiler.
DR. OUANO:
4.1.52 Fly ash from the electrostatic precipitator is pneumatically removed
from the collection hopper using compressed air and transported in dry It will now depend on their engineering design, the type of equipment
state to the fly ash silo. Two discharge chutes will be installed at the base of
the fly ash silo. Fly ash can either be dry-transferred through a loading
J. LEAGOGO:
spout into an enclosed lorry or truck for selling, re-cycling, or wet-
transferred through a wet unloader into open dump trucks and transported
to ash cells. Fly ash discharge will operate in timed cycles, with an override No, but did you read it in their report?
function to achievecontinuous discharge if required. Fly ash isolation valves
in each branch line will prevent leakage and backflow into non-operating
DR. OUANO: It[]s not there in their report because it will depend on the supplier, the
lines.
equipment supplier.

4.1.53 Approximately 120,000m will be required for the construction of the

J. LEAGOGO:
ash cell. Ash will be stacked along the sloping hill, within a grid of
excavations (i.e. cells) with a 5m embankment. Excavated soils will be used
for embankment construction and backfill. To prevent infiltration [of] ash So it[]s not yet there?
deposits into the groundwater, a clay layer with minimum depth of400mm
will be laid at the base of each cell. For every 1-m depth of ash deposit, a
DR. OUANO:
10-cm soil backfill will be applied to immobilize ash and prevent migration
via wind. Ash cell walls will be lined with high-density polyethylene to
prevent seepage. This procedure and treatment method is in fact suitable It[]s not yet there in the site but it is also covered inour Building Code what are the
for disposal of toxic and hazardous wastes although fly ash is not classified intensities of earthquakes expected of the different areas in the Philippines.
as toxic and hazardous materials.131
J. LEAGOGO:
Anent the claims that the plant is susceptible to earthquake and landslides, Dr.
Ouano testified thus:
Have you checked our geo-hazard maps in the Philippines to check on this project
site?
J. LEAGOGO:
DR. OUANO: No.

Yes. It is included there in the EIA Report. J. LEAGOGO:

J. LEAGOGO: Why?

It[]s there? DR. OUANO:

DR. OUANO: Because it[]s so dilute[d].

It[]s there.132 J. LEAGOGO:

4. On acid deposition in aquatic and terrestrial ecosystems. It will?

Relative to the threat of acid rain, Dr. Ouano stated in his Judicial Affidavit, thus: DR. OUANO:

Q: In page 44, paragraph 114 of the Petition, it was alleged that "the coalfired power Because the acid concentration is so dilute[d] so that it is not going to cause acid
plant will release 1,888 tons of nitrous oxides (NOx) per year and 886 tons of sulfur rain.
dioxide (SO2) per year. These oxides are the precursors to the formation of sulfuric
acid and nitric acid which are responsible for acid deposition." Whatis your expert
J. LEAGOGO:
opinion on this matter alleged by the Petitioners?

The acid concentration is so diluted that it will not cause acid rain?
A: NO2 is found in the air, water and soil from natural processes such as lightning,
bacterial activities and geologic activities as well as from human activities such as
power plants and fertilizer usage in agriculture. SO2 is also found in air, water and DR. OUANO:
soil from bacterial, geologic and human activities. NO2 and SO2 in the air are part of
the natural nitrogen and sulfur cycle to widely redistribute and recycle those
Yes .
essential chemicals for use by plants. Without the NO2 and SO2 in the air, plant and
animal life would be limited to small areas of this planet where nitrogen and sulfur
are found in abundance. With intensive agricultural practices, nitrogen and sulfur are J. LEAGOGO:
added in the soil as fertilizers.
What do you mean it[]s so diluted? How will it be diluted?
Acid rain takes place when the NO2 and SO2 concentration are excessive or beyond
those values set in the air quality standards. NO2 and SO2 in the air in
DR. OUANO:
concentrations lower than those set in the standards have beneficial effect to the
environment and agriculture and are commonly known as micronutrients. 133
Because it[]s going to be mixed withthe air in the atmosphere; diluted in the air in
the atmosphere. And besides this 886 tons, this is not released in one go, it is
On clarificatory questions from the appellate court, the matter was further dissected
released almost throughout the year.
thus:

J. LEAGOGO:
J. LEAGOGO:

You also answered in Question No. 61, "acid raintakes place when the NO2 AND SO2
x x x The project will release 1,888 tons of nitrous oxide per year. And he said, yes;
concentration are excessive." So whendo you consider it as excessive?
that witness answered, yes, itwill produce 886 tons of sulfur dioxide per year. And he
also answered yes, that these oxides are the precursors to the formation of sulfuric
acid and nitric acid. Now my clarificatory question is, with this kind of releases there DR. OUANO:
will be acid rain?
That is something when you are talking about acid
DR. OUANO:
J. LEAGOGO:
In terms of tons of nitrous oxide and tons of sulfur oxide, when do you consider it as DR. OUANO:
excessive?
SO2, we are talking about ... youwont mind if I go to my codigo. For sulfur dioxide
DR. OUANO: this acid rain most likely will start at around 7,000 milligrams per standard cubic
meter but then sorry, it[]s around 3,400 micrograms per cubic meter. That is the
concentration for sulfur dioxide, and in our plant it will be around 45 micrograms per
It is in concentration not on tons weight, Your Honor.
standard cubic meter. So the acid rain will start at 3,400 and the emission is
estimated here to result to concentration of 45.7 micrograms.
J. LEAGOGO:
J. LEAGOGO:
In concentration?
That is what GHD said in their report.
DR. OUANO:
DR. OUANO:
In milligrams per cubic meter, milligrams per standard cubic meter.
Yes. So that is the factor of x x x safety that we have.134
J. LEAGOGO:
Apart from the foregoing evidence, wealso note that the above and other
So being an expert, whatwill be the concentration of this kind of 1,888 tons of environmental concerns are extensively addressed in RP Energys Environmental
nitrous oxide? What will be the concentration in terms of your? Management Plan or Program(EMP). The EMP is "a section in the EIS that details the
prevention, mitigation, compensation, contingency and monitoring measures to
enhance positive impacts and minimize negative impacts and risks of a proposed
DR. OUANO:
project or undertaking."135 One of the conditions of the ECC is that RP Energy shall
strictly comply with and implement its approved EMP. The Casio Group failed to
If the concentration is in excess ofsomething like 8,000 micrograms per standard contest, with proof, the adequacy of the mitigating measures stated in the aforesaid
cubic meters, then there isalready potential for acid rain. EMP.

J. LEAGOGO:
I am asking you, Dr. Ouano, you said it will release 1,888 tons of nitrous oxide?
In upholding the evidence and arguments of RP Energy, relative to the lack of proof
as to the alleged significant environmental damage that will be caused by the
project, the appellate court relied mainly on the testimonies of experts, which we
find to be in accord withjudicial precedents. Thus, we ruled in one case:

DR. OUANO:
Although courts are not ordinarily bound by testimonies of experts, they may place
whatever weight they choose upon such testimonies in accordance with the facts of
Yes . the case. The relative weight and sufficiency of expert testimony is peculiarly within
the province of the trial court to decide, considering the ability and character of the
witness, his actions upon the witness stand, the weight and process of the reasoning
J. LEAGOGO:
by which he has supported his opinion, his possible bias in favor of the side for
whom he testifies,the fact that he is a paid witness, the relative opportunities for
In terms of concentration, what will that be? study and observation of the matters about which he testifies, and any other
matters which serve to illuminate his statements. The opinion of the expert may not
be arbitrarily rejected; it isto be considered by the court in view of all the facts and
DR. OUANO:
circumstances in the case and when common knowledge utterly fails, the expert
opinion may be given controlling effects (20 Am. Jur., 1056-1058). The problem of
In terms of the GHD study that will result [in] 19 milligrams per standard cubic the credibility of the expert witness and the evaluation of his testimony is left to the
meters and the time when acid rain will start [is when the concentration gets] discretion of the trial court whose ruling thereupon is not reviewable inthe absence
around 8,000 milligrams per standard cubic meters. So we have 19 compared to of an abuse of that discretion.136
8,000. So weare very, very safe.
Hence, we sustain the appellate courts findings that the Casio Group failed to
J. LEAGOGO: establish the alleged grave environmental damage which will be caused by the
construction and operation of the power plant.
What about SO2?
In another vein, we, likewise, agree with the observationsof the appellate court that The specialists likewise deemed the Environment Impact Assessment (EIA)
the type of coal which shall be used in the power plant has important implications as conducted by RPEI to be incomplete and limited in scope based on the following
to the possible significant negative environmental impacts of the subject observations:
project.137 However, there is no coal supply agreement, as of yet, entered into by RP
Energy with a third-party supplier. In accordance with the terms and conditions of
i. The assessment failed to include areas 10km. to 50km. from the
the ECC and in compliance with existing environmental laws and standards, RP
operation site, although according tothe panel, sulfur emissions could
Energy is obligated to make use of the proper coal type that will not cause
extend as far as 40-50 km.
significant negative environmental impacts.

ii. The EIA neglected to include other forests in the Freeport in its scope and
The alleged negative environmental
that there were no specific details on the protection of the endangered flora
assessment of the project by experts in a
and endemic fauna in the area. Soil, grassland, brush land, beach forests
report generated during the social
and home gardens were also apparently not included in the study.
acceptability consultations

iii. The sampling methods used inthe study were limited and insufficient for
The Casio Group also relies heavily on a report on the social acceptability process
effective long-term monitoring of surface water, erosion control and
of the power plant project to bolster itsclaim that the project will cause grave
terrestrial flora and fauna.
environmental damage. We purposely discuss this matter in this separate subsection
for reasons which will be made clear shortly.
The specialists also discussed the potential effects of an operational coalfired power
plant [on] its environs and the community therein. Primary among these were the
But first we shall present the pertinent contents of this report.
following:

According to the Casio Group, from December 7 to 9, 2011, the SBMA conducted
i. Formation of acid rain, which would adversely affect the trees and
social acceptabilitypolicy consultations with different stakeholders on RP Energys
vegetation in the area which, in turn, would diminish forest cover. The acid
proposed 600 MW coal plant project at the Subic Bay Exhibition and Convention
rain would apparently worsen the acidity of the soil in the Freeport.
Center. The results thereof are contained in a document prepared by SBMA entitled
"Final Report: Social Acceptability Process for RP Energy, Inc.s 600-MW Coal Plant
Project" (Final Report). We notethat SBMA adopted the Final Report as a common ii. Warming and acidification of the seawater in the bay, resulting in the bio-
exhibit with the Casio Group in the course of the proceedings before the appellate accumulationof contaminants and toxic materials which would eventually
court. lead to the overall reduction of marine productivity.

The Final Report stated that there was a clear aversion to the concept of a coal-fired iii. Discharge of pollutants such as Nitrous Oxide, Sodium Oxide, Ozone and
power plant from the participants. Their concerns included environmental, health, other heavy metals suchas mercury and lead to the surrounding region,
economic and socio-cultural factors. Pertinent to this case is the alleged assessment, which would adversely affect the health of the populace in the vicinity.
contained in the Final Report, of the potential effects of the project by three experts:
(1) Dr. Rex Cruz (Dr. Cruz), Chancellor of the University of the Philippines, Los Baos
V. FINDINGS
and a forest ecology expert, (2) Dr. Visitacion Antonio, a toxicologist, who related
information as to public health; and (3) Andre Jon Uychiaco, a marine biologist.
Based on their analyses of the subject matter, the specialists recommended that the
SBMA re-scrutinize the coal-fired power plant project with the following goals in
The Final Report stated these expertsalleged views on the project, thus:
mind:

IV. EXPERTS OPINION

i. To ensure its coherence and compatibility to [the] SBMA mandate, vision,
mission and development plans, including its Protected Area Management
xxxx Plan;

The specialists shared the judgment that the conditions were not present to merit ii. To properly determine actual and potential costs and benefits;
the operation of a coal-fired power plant,and to pursue and carry out the project with
confidence and assurance that the natural assets and ecosystems within the
iii. To effectively determine the impacts on environment and health; and
Freeport area would not be unduly compromised, or that irreversible damage would
not occur and that the threats to the flora and fauna within the immediate
community and its surroundings would be adequately addressed. The three experts iv. To ensure a complete and comprehensive impacts zone study.
were also of the same opinion that the proposed coal plant project would pose a
wide range of negative impacts on the environment, the ecosystems and human
population within the impact zone.
The specialists also urged the SBMA to conduct a Comprehensive Cost And Benefit
Analysis Of The Proposed Coal Plant Project Relative To Each Stakeholder Which
Should Include The Environment As Provider Of Numerous Environmental Goods And
Services.
They also recommended an Integrated/Programmatic Environmental Impact
Assessmentto accurately determine the environmental status of the Freeport
ecosystem as basis and reference in evaluating future similar projects. The need for
a more Comprehensive Monitoring System for the Environment and Natural
Resourceswas also reiterated by the panel. 138
Of particular interest are the alleged key observations of Dr. Cruz on the EIS
prepared by RP Energy relative to the project:
Key Observations and Recommendations on the EIS of Proposed RPE Project
Rex Victor O. Cruz
Based on SBMA SAP on December 7-9, 2011
1. The baseline vegetation analysis was limited only within the project site
and its immediate vicinity. No vegetation analysis was done in the
brushland areas in the peninsula which is likely to be affected in the event
acid rain forms due to emissions from the power plant.
2. The forest in the remaining forests inthe Freeport was not considered as
impact zone as indicated by the lack ofdescription of these forests and the
potential impacts the project might have on these forests. This appears to
be a key omission in the EIS considering that these forests are well within
40 to 50 km away from the site and that there are studies showing that the
impacts of sulphur emissions can extend as far as 40 to 50 km away from
the source.
3. There are 39 endemic fauna and 1 endangered plant species (Molave) in
the proposed project site. There will be a need to make sure that these
species are protected from being damaged permanently in wholesale.
Appropriate measures such as ex situconservation and translocation if
feasible must be implemented.
4. The Project site is largely in grassland interspersed with some trees.
These plants if affected by acid rain or by sulphur emissions may disappear
and have consequences on the soil properties and hydrological processes in
the area. Accelerated soil erosion and increased surface runoff and reduced
infiltration of rainwater into the soil.
5. The rest of the peninsula is covered with brushland but were never
included as part of the impact zone.
6. There are home gardens along the coastal areas of the site planted to
ornamental and agricultural crops which are likely to be affected by acid
rain.
7. There is also a beach forest dominated by aroma, talisai and agoho
which will likely be affectedalso by acid rain.
8. There are no Environmentally Critical Areas within the 1 km radius from
the project site. However, the OlongapoWatershed Forest Reserve, a
protected area is approximately 10 kmsouthwest of the projectsite.
Considering the prevailing wind movement in the area, this forest reserve is
likely to be affected by acid rain if it occurs from the emission of the power
plant. This forest reserve is however not included as partof the potential
impact area.
9. Soil in the project site and the peninsula is thin and highly acidic and
deficient in NPK with moderate to severe erosion potential. The sparse
vegetation cover in the vicinity of the projectsite is likely a result of the
highly acidic soil and the nutrient deficiency. Additional acidity may result
from acid rain that may form in the area which could further make it harder
for the plants to grow in the area that in turn could exacerbate the already
severe erosion in the area. 10. There is a need to review the proposalto
ensure that the proposed project is consistent with the vision for the
Freeport as enunciated in the SBMA Master Plan and the Protected Area
Management Plan. This will reinforce the validity and legitimacy of these
plans as a legitimate framework for screening potential locators in the
Freeport. Itwill also reinforce the trust and confidence of the stakeholders
on the competence and authority of the SBMA that would translate in
stronger popular support to the programs implemented in the Freeport.
11. The EGF and Trust Fund (Table 5.13) should be made clear that the
amounts are the minimum amount and that adequate funds will be
provided by the proponent as necessary beyond the minimum amounts.
Furthermore the basis for the amounts allocated for the items (public
liability and rehabilitation) in Trust Fund and in EGF (tree planting and
landscaping, artificial reef establishment) must be clarified. The specific
damages and impacts that will be covered by the TF and EGF must also be
presented clearly at the outset to avoid protracted negotiations in the
event of actual impacts occurring in the future.
12. The monitoring plan for terrestrial flora and fauna is not clear on the
frequency of measurement. More importantly, the proposed method of
measurement (sampling transect) while adequate for estimating the
diversity of indices for benchmarking is not sufficient for long[-]term
monitoring. Instead, long[-]term monitoringplots (at least 1 hectare in size)
should be established to monitor the long[-]term impacts of the project on
terrestrial flora and fauna.
13. Since the proposed monitoring of terrestrial flora and fauna is limited to
the vicinity of the project site, it will be useful not only for mitigating and
avoiding unnecessary adverse impacts ofthe project but also for improving
management decisions if long[-]term monitoring plots for the remaining
natural forests in the Freeport are established. These plots will also be
useful for the study of the dynamic interactions of terrestrial flora and
fauna with climate change, farming and other human activities and the
resulting influences on soil, water, biodiversity, and other vital ecosystem
services in the Freeport.139
We agree with the appellate court that the alleged statements by these experts
cannot be given weight because they are hearsay evidence. None of these alleged
experts testified before the appellate court to confirm the pertinent contents of the
Final Report. No reason appears in the records of this case as to why the Casio
Group failed to present these expert witnesses.
We note, however, that these statements, on their face, especially the observations
of Dr. Cruz, raise serious objections to the environmental soundness of the project,
specifically, the EIS thereof.It brings to fore the question of whether the Court can,
on its own, compel the testimonies of these alleged experts in order to shed light on
these matters in view of the rightat stake not just damage to the environment but
the health, well-being and,ultimately, the livesof those who may be affected by the
project.
The Rules of Procedure for Environmental Cases liberally provide the courts with
means and methods to obtain sufficient information in order to adequately protect
orsafeguard the right to a healthful and balanced ecology. In Section 6 (l) 140 of Rule 3
(Pre-Trial), when there is a failure to settle, the judge shall, among others, determine
the necessity of engaging the services of a qualified expert as a friend of the court
(amicus curiae). While, in Section 12141 of Rule 7 (Writ of Kalikasan), a party may
avail of discovery measures: (1) ocular inspection and (2) production or inspection of
documents or things. The liberality of the Rules in gathering and even compelling
information, specifically with regard to the Writ of Kalikasan, is explained in this
wise: [T]he writ of kalikasanwas refashioned as a tool to bridge the gap between
allegation and proof by providing a remedy for would-be environmental litigants to
compel the production of information within the custody of the government. The writ
would effectively serve as a remedy for the enforcement of the right to information
about the environment. The scope of the fact-finding power could be: (1) anything
related to the issuance, grant of a government permit issued or information
controlled by the government or private entity and (2) [i]nformation contained in
documents such as environmental compliance certificate (ECC) and other
government records. In addition, the [w]rit may also be employed to compel the
production of information, subject to constitutional limitations. This function is
analogous to a discovery measure, and may be availed of upon application for the
writ.142
Clearly, in environmental cases, the power toappoint friends of the court in order to
shed light on matters requiring special technical expertise as well as the power to
order ocular inspections and production of documents or things evince the main
thrust of, and the spirit behind, the Rules to allow the court sufficient leeway in
acquiring the necessary information to rule on the issues presented for its
resolution, to the end that the right toa healthful and balanced ecology may be
adequately protected. To draw a parallel, in the protection of the constitutional rights
of an accused, when life or liberty isat stake, the testimonies of witnesses may be
compelled as an attribute of the Due Process Clause. Here, where the right to a
healthful and balanced ecology of a substantial magnitude is at stake, should we not
tread the path of caution and prudence by compelling the testimonies of these
alleged experts?
After due consideration, we find that, based on the statements in the Final Report,
there is no sufficiently compelling reason to compel the testimonies of these alleged
expert witnesses for the following reasons.
First, the statementsare not sufficiently specificto point to us a flaw (or flaws) in the
study or design/implementation (or some other aspect) of the project which provides
a causal link or, at least, a reasonable connection between the construction and
operation ofthe project vis--vis potential grave environmental damage. In
particular, they do not explain why the Environmental Management Plan (EMP)
contained in the EIS of the project will notadequately address these concerns.
Second, some of the concerns raisedin the alleged statements, like acid rain,
warming and acidification of the seawater, and discharge of pollutants were, as
previously discussed, addressed by the evidence presented by RP Energy before the
appellate court. Again, these alleged statements do not explain why such concerns
are not adequately covered by the EMP of RP Energy.
Third, the key observations of Dr. Cruz, while concededly assailing certain aspects of
the EIS, do not clearly and specifically establish how these omissions have led to the
issuance of an ECC that will pose significant negative environmental impacts once
the project is constructed and becomes operational. The recommendations stated
therein would seem to suggest points for improvement in the operation and
monitoring of the project,but they do not clearly show why such recommendations
are indispensable for the project to comply with existing environmental laws and
standards, or how non-compliance with such recommendations will lead to an
environmental damage of the magnitude contemplatedunder the writ of kalikasan.
Again, these statements do not state with sufficient particularity how the EMP in the
EIS failed to adequately address these concerns.
Fourth, because the reason for the non-presentation of the alleged expert witnesses
does not appear on record, we cannot assume that their testimonies are being
unduly suppressed.
By ruling that we do not find a sufficiently compelling reason to compel the taking of
the testimonies of these alleged expert witnesses in relation to their serious
objections to the power plant project, we do not foreclose the possibility that their
testimonies could later on be presented, in a proper case, to more directly,
specifically and sufficientlyassail the environmental soundness of the project and
establish the requisite magnitude of actualor threatened environmental damage, if
indeed present. After all, their sense ofcivic duty may well prevail upon them to
voluntarily testify, if there are truly sufficient reasons tostop the project, above and
beyond their inadequate claims in the Final Report that the project should not be
pursued. As things now stand,however, we have insufficient bases to compel their
testimonies for the reasons already proffered.
The alleged admissions of grave
environmental damage in the EIS of the
project.
In their Omnibus Motions for Clarification and Reconsideration before the appellate
court and Petition for Review before thisCourt, the Casio Group belatedly claims
that the statements in the EIS prepared by RPEnergy established the significant
negative environmental impacts of the project. They argue in this manner:
Acid Rain
35. According to RP Energys Environmental Impact Statement for its proposed 2 x
150 MW Coal-Fired Thermal Power Plant Project, acid rain may occur in the
combustion of coal, to wit x x x x
During the operation phase, combustion of coal will result in emissions of
particulates SOx and NOx. This may contribute to the occurrence of acid rain due to
elevated SO2 levels in the atmosphere. High levels of NO2 emissions may give rise
to health problems for residents within the impact area.
xxxx
Asthma Attacks
36. The same EPRMP143 mentioned the incidence of asthma attacks [as a] result of
power plant operations, to wit
xxxx
The incidence of asthma attacks among residents in the vicinity of the project site
may increase due to exposure to suspended particulates from plant operations. 144
RP Energy, however, counters that the above portions of the EIS were quoted out of
context. As to the subject of acid rain, the EIS states in full:
Operation
During the operation phase, combustion of coal will result in emissions of
particulates, SOx and NOx. This may contribute to the occurrence of acid rain due to
elevated SO2 levels in the atmosphere. High levels of NO2 emissions may give rise
to health problems for residents within the impact area. Emissions may also have an
effect onvegetation (Section 4.1.4.2). However, the use of CFBC technology is a
built-in measure that results in reduced emission concentrations. SOx emissions will
beminimised by the inclusion of a desulfurisation process, whilst NOx emissions will
be reduced as the coal is burned at a temperature lower than that required to
oxidise nitrogen.145 (Emphasis supplied)
As to the subject of asthma attacks, the EIS states in full:
The incidence of asthma attacks among residents in the vicinity of the project site
may increase due to exposureto suspended particulates from plant operations. Coal
and ash particulates may also become suspended and dispersed into the air during
unloading and transport, depending on wind speed and direction. However, effect on
air quality due to windblown coal particulates will be insignificant as the coal
handling system will have enclosures (i.e. enclosed conveyors and coal dome) to
eliminate the exposure of coal to open air, and therefore greatly reduce the potential
for particulates from being carried away by wind (coalhandling systems, Section
3.4.3.3). In addition, the proposed process will include an electrostaticprecipitator
that will remove fly ash from the flue gas prior to its release through the stacks, and
so particulates emissions will be minimal.146 (Emphasis supplied)
We agree with RP Energy that, while the EIS discusses the subjects of acid rain and
asthma attacks, it goes on to state that there are mitigating measures that will be
put in place to prevent these ill effects. Quite clearly, the Casio Group quoted
piecemeal the EIS in sucha way as to mislead this Court as to its true and full
contents.
We deplore the way the Casio Group has argued this point and we take this time to
remind it that litigants should not trifle withcourt processes. Along the same lines,
we note how the Casio Group has made serious allegations in its Petition for Writ of
Kalikasanbut failed to substantiate the same in the course of the proceedings before
the appellate court. In particular, during the preliminary conference of this case, the
Casio Group expressly abandoned its factual claims on the alleged grave
environmental damage that will be caused by the power plant (i.e., air, water and
land pollution) and, instead, limited itself to legal issues regarding the alleged non-
compliance of RP Energy with certain laws and rules in the procurement of the
ECC.147 We also note how the Casio Group failed to comment on the subject
Petitions before this Court, which led this Court to eventually dispense with its
comment.148 We must express our disapproval over the way it has prosecuted
itsclaims, bordering as it does on trifling with court processes. We deem itproper,
therefore, to admonishit to be more circumspect in how it prosecutesits claims.
In sum, we agree with the appellate court that the Casio Group failed to
substantiate its claims thatthe construction and operation of the power plant will
cause environmental damage of the magnitude contemplated under the writ of
kalikasan. The evidence it presented is inadequate to establish the factual bases of
its claims.
II.
Whether the ECC is invalid for lack of signature of Mr. Luis Miguel Aboitiz (Mr.
Aboitiz), as representative of RP Energy, in the Statement of Accountability of the
ECC.
The appellate court ruled that the ECC is invalid because Mr. Aboitiz failed to sign
the Statement of Accountability portion of the ECC.
We shall discuss the correctness ofthis ruling on both procedural and substantive
grounds. Procedurally, we cannot fault the DENR for protesting the manner by which
the appellate court resolved the issue of the aforesaid lack of signature. We agree
with the DENR that this issue was not among those raised by the Casio Group in its
Petition for Writ of Kalikasan.149 What is more, this was not one of the triable issues
specificallyset during the preliminary conference of this case.150
How then did the issue oflack of signature arise?
A review of the voluminous records indicates that the matterof the lack of signature
was discussed, developed or surfaced only inthe course of the hearings, specifically,
on clarificatory questions from the appellate court, to wit:
J. LEAGOGO:
I would also show to you your ECC, thats page 622 of the rollo. I am showing to you
this Environmental Compliance Certificate dated December 22, 2008 issued by Sec.
Jose L. Atienza, Jr. of the DENR. This is your "Exhibit "18." Would you like to go over
this? Are you familiar with this document?
MS. MERCADO:
Yes, it[]s my Annex "3," Your Honor. Street, Legaspi Village, Makati City, takes full responsibility in complying with all
conditions in thisEnvironmental Compliance Certificate [ECC][.]" Will you tell this
Court why this was not signed?
J. LEAGOGO:

I would like to refer you to page 3 of the ECC dated December 22, 2008. Page 2
refers to the Environmental Compliance Certificate, ECC Ref. No. 0804-011-4021.
Thats page 2 of the letter dated December 22, 2008. And on page 3, Dr. Julian
Amador recommended approval and it was approved by Sec. Atienza. You see that
on page 3?
MS. MERCADO:
It was signed, Your Honor, but this copy wasnt signed. My apologies, I was the one
who provided this, I believe, to the lawyers. This copy was not signed because
during.

MS. MERCADO: J. LEAGOGO:

Yes, Your Honor. But this is your exhibit, this is yourExhibit "18" and this is not signed. Do you agree
with me that your Exhibit "18" is not signed by Mr. Aboitiz?
J. LEAGOGO:
MS. MERCADO:
Okay. On the same page, page 3, theres a Statement of Accountability.
Thats correct, Your Honor.151
MS. MERCADO:
We find this line of questioning inadequate to apprise the parties that the lack of
signature would be a key issue in this case; as in fact it became decisive in the
Yes, Your Honor.
eventual invalidation of the ECC by the appellate court.

J. LEAGOGO:
Concededly, a court has the power to suspend its rules of procedure in order to
attain substantial justice so that it has the discretion, in exceptional cases, to take
Luis, who is Luis Miguel Aboitiz? into consideration matters not originally within the scope of the issues raised in the
pleadings or set during the preliminary conference, in order to prevent a miscarriage
of justice. In the case at bar, the importance of the signature cannot be seriously
MS. MERCADO:
doubted because it goes into the consent and commitment of the project proponent
to comply with the conditions of the ECC, which is vital to the protection of the right
During that time he was the authorized representative of RP Energy, to a balanced and healthful ecology of those who may be affected by the project.
Nonetheless, the power of a court tosuspend its rules of procedure in exceptional
cases does not license it to foist a surprise on the parties in a given case. To
Your Honor.
illustrate, in oral arguments before this Court, involving sufficiently important public
interest cases, we note that individual members of the Court, from time to time,
J. LEAGOGO: point out matters that may not have been specifically covered by the advisory (the
advisory delineates the issues to be argued and decided). However, a directive is
given to the concerned parties to discuss the aforesaid matters in their memoranda.
Now, who is the authorized representative of RP Energy?
Such a procedure ensures that, at the very least, the parties are apprised that the
Court has taken an interest in such matters and may adjudicate the case on the
MS. MERCADO: basis thereof. Thus, the parties are given an opportunity to adequately argue the
issue or meet the issue head-on. We, therefore, find that the appellate court should
have, at the very least, directed RP Energy and the DENR to discuss and elaborate
It would be Mr. Aaron Domingo, I believe.
on the issue of lack of signature in the presentation of their evidence and
memoranda, beforemaking a definitive ruling that the lack thereof invalidated the
J. LEAGOGO: ECC.This is in keeping with the basic tenets of due process.

Please tell the Court why this was not signed by Mr. Luis Miguel Aboitiz, the At any rate, we shall disregard the procedural defect and rule directly on whether
Statement of Accountability? the lack of signature invalidated the ECC in the interest of substantial justice.

Because the Statement of Accountability says, "Mr. Luis Miguel Aboitiz, Director, The laws governing the ECC, i.e., PresidentialDecree No. (PD) 1151 and PD 1586, do
representing Redondo Peninsula Energy with office address located at 110 Legaspi not specifically state that the lack of signature in the Statement of Accountability
 has the effect of invalidating the ECC. Unlike in wills or donations, where failure to
comply withthe specific form prescribed by law leads to its nullity, 152 the applicable
laws here are silentwith respect to the necessity of a signature in the Statement of (RPR) of the EMB, which includes a draft decision document.
Accountability and the effect of the lack thereof. This is, of course, understandable
because the Statement of Accountability is a mere off-shoot of the rule-making
powers of the DENR relative tothe implementation of PD 1151 and PD 1586. To 5.0
determine, therefore, the effect of the lack of signature, we must look atthe DECISION
significance thereof under the Environmental Impact Assessment (EIA) Rules of the MAKING Decision Making involves evaluation of EIA recommendations and the draft decision docume
DENR and the surrounding circumstances of this case. resulting to the issuance of an ECC, CNC or Denial Letter. When approved, a covered project
issued its certificate of Environmental Compliance Commitment (ECC) while an application o
non-covered project is issued a Certificate of Non-Coverage (CNC). Endorsing and deciding
To place this issue in its proper context, a helpful overview of the stages of the EIA authorities are designated by AO 155 42, and further detailed in this Manual for every report
process, taken from the Revised Manual, is reproduced below: type. Moreover, the Proponent signs a sworn statement of full responsibility on implementat
of its commitments prior to the release of the ECC. 156 The ECC is then transmitted to
Figure 1-3 Overview of Stages of the Philippine EIA Process 153 concerned LGUs and other GAs for integration into their decisionmaking process. The regula
part of EIA Review is limited to the processes within EMB control. The timelines for the
issuance of decision documents provided for in AO 42 and DAO 2003-30 are applicable only
1.0 from the time the EIA Report is accepted for substantive review to the time a decision is issu
REENING on the application.
Screeningdetermines if a project is covered or not covered by the PEISS. 154If a project is
covered, screening further determines what document type the project should prepare to
secure the needed approval, and what the rest of the requirements are in terms of EMB office
of application, endorsing and decision authorities, duration of processing. MONITORIN
G.
Monitoring, Validation and Evaluation/Audit stage assesses performance of the Proponent
6.0
against the ECC and itscommitments in the Environmental Management and Monitoring Plan
VALIDATION,
2.0 to ensure actual impacts of the project are adequately prevented or mitigated.
and
COPING EVALUATION
Scopingis a Proponent-driven multi-sectoral formal process of determining the focused Terms
of Reference of the EIA Study. Scoping identifies the most significant issues/impacts of a
AUDIT to
proposed project, and then, delimits the extent of baseline information to those necessary
evaluate and mitigate the impacts. The need for and scope of an Environmental Risk
Assessment (ERA) is also done during the scoping session. Scoping is done with the local
community through Public Scoping and with a third party EIA Review Committee (EIARC) The signing of the Statement of Accountability takes placeat the Decision Making
through Technical Scoping, both with the participation of the DENR-EMB. The process resultsStage.
in After a favorable review of its ECC application, the project proponent, through
a signed Formal Scoping Checklist by the review team, with final approval by the EMB Chief.its authorized representative, is made to sign a sworn statement of full responsibility
on the implementation ofits commitments prior to the official release of the ECC.

A STUDY The definition of the ECC in the Revised Manual highlights the importance of the
and signing of the Statement of Accountability:
The EIA Studyinvolves a description of the proposed project and its alternatives,
0 REPORT
characterization of the project environment, impact identification and prediction, evaluation of
EPARATIO Environmental Compliance Certificate (ECC) - a certificate of Environmental
impact significance, impact mitigation, formulation of Environmental Management and
N Compliance Commitment to which the Proponent conforms with, after DENR-EMB
Monitoring Plan, withcorresponding cost estimates and institutional support commitment. The
explains the ECC conditions, by signing the sworn undertaking of full responsibility
study results are presented in an EIA Reportfor which an outline is prescribed by EMB for every
major document type over implementation of specified measures which are necessary to comply with
existing environmental regulations or to operate within best environmental practices
that are not currently covered by existing laws. It is a document issued by the
A REPORT DENR/EMB after a positive review of an ECC application, certifying that the
0 REPORT Proponent has complied with all the requirements of the EIS System and has
Review of EIA Reportsnormally entails an EMB procedural screening for compliance with committed to implement its approved Environmental Management Plan. The ECC
and
minimum requirements specified during Scoping, followed by a substantive review of either also provides guidance to other agencies and to LGUs on EIA findings and
ALUATION
composed third party experts commissioned by EMB as the EIA Review Committee for PEIS/EIS- recommendations, which need to be considered in their respective decision-making
based applications, or DENR/EMB internal specialists, the Technical Committee, for IEE-basedprocess.157(Emphasis supplied)
applications. EMB evaluates the EIARC recommendations and the publics inputs during public
consultations/hearings in the process of recommending a decision on the application. The
EIARC Chair signs EIARC recommendations including issues outside the mandate of the EMB.As can be seen, the signing of the Statement of Accountabilityis an integral and
The entire EIA review and evaluation process is summarized in the Review Process Report significant component of the EIA process and the ECC itself. The evident intention is
to bind the project proponentto the ECC conditions, which will ensure that the
project will not cause significant negative environmental impacts by the
"implementation of specified measures which are necessary to comply with existing
environmental regulations or tooperate within best environmental practices that are
not currently covered by existing laws." Indeed, the EIA process would be a
meaningless exercise if the project proponent shall not be strictly bound to faithfully
comply withthe conditions necessary toadequately protect the right of the people to
a healthful and balanced ecology.
Contrary to RP Energys position, we, thus, find that the signature of the project
proponents representative in the Statement of Accountability is necessary for the
validity of the ECC. It is not, as RP Energy would have it, a mere formality and its
absence a mere formal defect.
The question then is, was the absence of the signature of Mr. Aboitiz, as
representative of RP Energy, in the Statement of Accountability sufficient ground to
invalidate the ECC?
Viewed within the particular circumstances of this case, we answer in the negative.
While it is clear that the signing of the Statement of Accountability is necessary for
the validity ofthe ECC, we cannot close oureyes to the particular circumstances of
this case. So often have we ruled that this Court is not merely a court of law but a
court of justice. We find that there are several circumstances present in this case
which militate against the invalidation of the ECC on this ground.
We explain.
First, the reason for the lack of signature was not adequately taken into
consideration by the appellate court. To reiterate, the matter surfaced during the
hearing of this case on clarificatory questions by the appellate court, viz:
J. LEAGOGO:
Please tell the Court why this was not signed by Mr. Luis Miguel Aboitiz, the
Statement of Accountability?
Because the Statement of Accountability says, "Mr. Luis Miguel Aboitiz, Director,
representing Redondo Peninsula Energy with office address located at 110 Legaspi
Street, Legaspi Village, Makati City, takes full responsibility in complying with all
conditions in this Environmental Compliance Certificate [ECC][.]" Will you tell this
Court why this was not signed?
MS. MERCADO:
It was signed, Your Honor, but this copy wasnt signed. My apologies, I was the one
who provided this, I believe, to the lawyers. This copy was not signed because
during
J. LEAGOGO:
But this is your exhibit, this is yourExhibit "18" and this is not signed. Do you agree
with me that your Exhibit "18" is not signed by Mr. Aboitiz?
MS. MERCADO:
Thats correct, Your Honor.158 (Emphasis supplied)
Due to the inadequacy of the transcriptand the apparent lack of opportunity for the
witness to explain the lack of signature, we find that the witness testimony does
not, by itself, indicate that there was a deliberate or malicious intent not to sign the
Statement of Accountability.
Second, as previously discussed, the concerned parties to this case, specifically, the
DENR and RP Energy, werenot properly apprised that the issue relative to the lack of
signature would be decisive inthe determination of the validity of the ECC.
Consequently, the DENR and RPEnergy cannot be faulted for not presenting proof
during the course ofthe hearings to squarely tackle the issue of lack of signature.
Third, after the appellate court ruled in its January 30, 2013 Decision that the lack of
signature invalidated the ECC,RP Energy attached, to its Motion for Partial
Reconsideration, a certified true copy of the ECC, issued by the DENREMB, which
bore the signature of Mr. Aboitiz. The certified true copy of the ECC showed that the
Statement of Accountability was signed by Mr. Aboitiz on December 24, 2008. 159
The authenticity and veracity of this certified true copy of the ECC was not
controverted by the Casio Group in itscomment on RP Energys motion for partial
reconsideration before the appellate court nor in their petition before this Court.
Thus, in accordance with the presumption of regularity in the performance of official
duties, it remains uncontroverted that the ECC on file with the DENR contains the
requisite signature of Mr. Aboitiz in the Statement of Accountability portion.
As previously noted, the DENR and RPEnergy were not properly apprised that the
issue relative to the lack ofsignature would be decisive in the determination of the
validity of the ECC. As a result, we cannot fault RP Energy for submitting the
certified true copy of the ECC only after it learned that the appellate court had
invalidated the ECC on the ground of lack ofsignature in its January 30, 2013
Decision.
We note, however, that, as previously discussed, the certified true copy of the
Statement of Accountability was signed by Mr. Aboitiz on December 24, 2008 or two
days after the ECCs official release on December 22, 2008. The aforediscussed rules
under the Revised Manual, however, state that the proponent shall sign the sworn
statement of full responsibility on implementation of its commitments priorto the
release of the ECC. Itwould seem that the ECC was first issued, then it was signed by
Mr. Aboitiz, and thereafter, returned to the DENR to serve as its file copy. Admittedly,
there is lack of strict compliance with the rules although the signature ispresent. Be
thatas it may, we find nothing in the records to indicate that this was done with bad
faith or inexcusable negligence because of the inadequacy of the evidence and
arguments presented, relative to the issue of lack of signature, in view of the
manner this issue arose in this case, as previously discussed. Absent such proof, we
are not prepared to rule that the procedure adopted by the DENR was done with bad
faithor inexcusable negligence but we remind the DENR to be more circumspect in
following the rules it provided in the Revised Manual. Thus, we rule that the
signature requirement was substantially complied with pro hac vice.
Fourth, we partly agree with the DENRthat the subsequent letter-requests for discretion. More so here because the administration of the EIA process involves
amendments to the ECC, signed by Mr. Aboitiz on behalf of RP Energy, indicate its special technical skill or knowledge which the law has specifically vested in the
implied conformity to the ECC conditions. In practical terms, if future litigation DENR.
should occur due to violations of the ECC conditions, RP Energy would be estopped
from denying its consent and commitment to the ECC conditions even if there was
After our own examination of DAO 2003-30 and the Revised Manual as well as the
no signature in the Statement of Accountability. However, we note that the
voluminous EIA documents of RP Energy appearing in the records of this case, we
Statement of Accountability precisely serves to obviate any doubt as to the consent
find that the appellate court made an erroneous interpretation and application of the
and commitment of the project proponent to the ECC conditions. At any rate, the
pertinent rules.
aforesaid letter-requests do additionally indicate RP Energys conformity to the ECC
conditions and, thus, negate a pattern to maliciously evade accountability for the
ECC conditions or to intentionally create a "loophole" in the ECC to be exploited in a We explain.
possible futurelitigation over non-compliance with the ECC conditions.
As a backgrounder, PD 1151 set the Philippine Environment Policy. Notably, this law
In sum, we rule that the appellate court erred when it invalidated the ECC on the recognized the right ofthe people to a healthful environment.160 Pursuant thereto, in
ground of lack of signature of Mr. Aboitiz in the ECCs Statement of Accountability every action, project or undertaking, which significantly affects the quality of the
relative to the copy of the ECC submitted by RP Energy to the appellate court. While environment, all agencies and instrumentalities of the national government,
the signature is necessary for the validity of the ECC, the particular circumstances of including government-owned or -controlled corporations, as well as private
this case show that the DENR and RP Energy were not properly apprised of the issue corporations, firms, and entities were required to prepare, file and include a
of lack ofsignature in order for them to present controverting evidence and statement (i.e., Environmental Impact Statement or EIS) containing:
arguments on this point, as the matter only developed during the course of the
proceedings upon clarificatory questions from the appellate court. Consequently, RP
(a) the environmental impact of the proposed action, project or
Energy cannot be faulted for submitting the certified true copy of the ECC only after
undertaking;
it learned that the ECC had been invalidated on the ground of lack of signature in
the January 30, 2013 Decision of the appellate court.
(b) any adverse environmental effect which cannot be avoided should the
proposal be implemented;
The certified true copy of the ECC, bearing the signature of Mr. Aboitiz in the
Statement of Accountability portion, was issued by the DENR-EMB and remains
uncontroverted. Itshowed that the Statement of Accountability was signed by Mr. (c) alternative to the proposed action;
Aboitiz on December 24, 2008. Although the signing was done two days after the
official release of the ECC on December 22, 2008, absent sufficient proof, we are not
(d) a determination that the short-term uses of the resources of the
prepared to rule that the procedure adoptedby the DENR was done with bad faith or
environment are consistent with the maintenance and enhancement of the
inexcusable negligence. Thus, werule that the signature requirement was
longterm productivity of the same; and
substantially complied with pro hac vice.

(e) whenever a proposal involves the use of depletable or non-renewable

III.
resources, a finding must be made that such use and commitment are
warranted.161
Whether the first and second amendments to the ECC are invalid for failure to
undergo a new environmental impact assessment (EIA) because of the utilization of
To further strengthen and develop the EIS, PD1586 was promulgated, which
inappropriate EIA documents.
established the Philippine Environmental Impact Statement System (PEISS). The
PEISS is "a systems-oriented and integrated approach to the EIS system to ensure a
Upholding the arguments of the Casio Group, the appellate court ruled that the first rational balance between socio-economic development and environmental
and second amendments tothe ECC were invalid because the ECC contained an protection for the benefit of present and future generations." 162 The ECC requirement
express restriction that any expansion of the project beyond the project description ismandated under Section 4 thereof:
shall be the subject of a new EIA. It found that both amendments failed to comply
with the appropriate EIA documentary requirements under DAO 2003-30 and the
SECTION 4. Presidential Proclamation ofEnvironmentally Critical Areas and Projects.
Revised Manual. In particular, it found that the Environmental Performance Report
The President of the Philippines may, on his own initiative or upon recommendation
and Management Plan (EPRMP) and Project Description Report (PDR), which RP
of the National Environmental Protection Council, by proclamation declare certain
Energy submitted tothe DENR, relative to the application for the first and second
projects, undertakings or areas in the country as environmentally critical. No person,
amendments, respectively, were not the proper EIA document type. Hence, the
partnership or corporation shall undertake or operate any such declared
appellate court ruled that the aforesaid amendments were invalid.
environmentally critical project or area without first securing an Environmental
Compliance Certificate issued by the President or his dulyauthorized representative.
Preliminarily, we must state that executive actions carry presumptive validity so that x x x (Emphasis supplied)
the burden of proof is on the Casio Group to show that the procedure adopted
bythe DENR in granting the amendments to the ECC were done with grave abuse of
The PEISS consists of the Environmental Impact Assessment (EIA) process, which is
mandatory for private orpublic projects thatmay significantly affect the quality of the
environment. It involves evaluating and predicting the likely impacts of the project
on the environment, designing appropriate preventive, mitigating and enhancement
measures addressing these consequences to protect the environment and the
communitys welfare.163
PD 1586 was implemented by DAO 2003-30 which, in turn, set up a system or
procedure to determine when a project is required to secure an ECC and when it is
not. When an ECC is not required, the project proponent procures a Certificate of
Non-Coverage (CNC).164 As part of the EIA process, the project proponent is required
to submit certain studies or reports (i.e., EIA document type) to the DENR-EMB,
which willbe used in the review process in assessing the environmental impact of
the project and the adequacy of the corresponding environmental management plan
or program to address such environmental impact. This will then be part of the
bases to grant or deny the application for an ECC or CNC, as the case may be.
Table 1-4 of the Revised Manual summarizes the required EIA document type for
each project category. It classifies a project as belonging to group I, II, III, IV or V,
where:
I- Environmentally Critical Projects (ECPs) in either Environmentally Critical
Area (ECA) or Non-Environmentally Critical Area (NECA),
II- Non-Environmentally Critical Projects (NECPs) in ECA,
III- NECPs in NECA,
IV- Co-located Projects, and
V- Unclassified Projects.
The aforesaid table then further classifies a project, as pertinent to this case, as
belonging to category A,B or C, where:
A- new;
B- existing projects for modification or re-start up; and
C- operating projects without an ECC.
Finally, the aforesaid table considers whether the project is single or co-
located.165 After which, it states the appropriateEIA document typeneeded for the
application for an ECC or CNC, as the case may be.
The appropriate EIA document type vis--vis a particular project depends on the
potential significant environmental impact of the project. At the highest level would
be an ECP, such as the subject project. The hierarchy of EIA document type, based
on comprehensiveness and detail of the study or report contained therein, insofar as
single projects are concerned, is as follows:
1. Environmental Impact Statement166 (EIS),
2. Initial Environmental Examination167 (IEE) Report,
3. Initial Environmental Examination168 (IEE) Checklist Report,
4. Environmental Performance Report and Management Plan 169 (EPRMP),
and
5. Project Description170 (PD) or Project Description Report (PDR).
Thus, in the course of RP Energys application for anECC, it was required by the
DENR-EMB to submit an EIS because the subject project is: an ECP, new and a single
project.
The present controversy, however, revolves around, not an application for an ECC,
but amendments thereto.
RP Energy requested the subject first amendment to its ECC due to its desire to
modify the project design through the inclusion of a barge wharf, seawater intake
breakwater, subsea discharge pipeline, raw water collection system, drainage
channel improvement and a 230-kV double transmission line. The DENR-EMB
determined that this was a major amendment and, thus, required RP Energy to
submit an EPRMP.
The Casio Group argued, and the appellate court sustained, that an EPRMP is not
the correct EIA document type based on the definition of an EPRMP in DAO 2003-30
and the Revised Manual.
In DAO 2003-30, an EPRMP is defined as:
Environmental Performance Report and Management Plan (EPRMP)
documentation of the actual cumulative environmental impacts and effectiveness of
current measures for single projects that are already operating but without ECC's,
i.e., Category A-3. For Category B-3 projects, a checklist form of the EPRMP would
suffice;171(Emphasis supplied)
Further, the table in Section 5 of DAO 2003-30 states that an EPRMP is required for
"A-2: Existing and to beexpanded (including undertakings that have stopped
operations for more than 5 years and plan to re-start with or without expansion) and
A-3: Operating without ECC."
On the other hand, the Revised Manual delineates when an EPRMP is the proper EIA
document type, thus:
For operating projects with previous ECCs but planning or applying for clearance to
modify/expand or re-start operations, or for projects operating without an ECCbut
applying to secure one to comply with PD 1586 regulations, the appropriate
document is not an EIS but an EIA Report incorporating the projects environmental
performance and its current Environmental Management Plan. This report isx x x anx
x x Environmental Performance Report and Management Plan (EPRMP) for single
project applications x x x172 (Emphasis supplied)
In its "Glossary," the Revised Manual defines an EPRMP as:
Environmental Performance Report and Management Plan (EPRMP) - documentation
of the actual cumulative environmental impacts and effectiveness of current
measures for single projects that are already operating but without
ECCs.173 (Emphasis supplied)
Finally, Table 1-4, in the Revised Manual, states that an EPRMP is required for "Item I-
B: Existing Projects for Modification or Re-start up (subject to conditions in Annex 2-
1c) and I-C: Operating without ECC."
From these definitions and tables, an EPRMP is, thus, the required EIA document
type for an ECP-single project which is:
1. Existing and to be expanded (including undertakings that have stopped
operations for more than 5 years and plan to re-start with or without
expansion);
Requirements for processing ECC amendments shall depend on the nature of the
request but shall be focused on the information necessary to assess the
environmental impact of such changes.
8.3.1. Requests for minor changes to ECCs such as extension of
deadlines for submission of post-ECC requirements shall be
decided upon by the endorsing authority.
8.3.2. Requests for major changes to ECCs shall be decided upon
by the deciding authority.
8.3.3. For ECCs issued pursuant to an IEE or IEE checklist, the
processing of the amendment application shall not exceed thirty
(30) working days; and for ECCs issued pursuant to an EIS, the
processing shall not exceed sixty (60) working days. Provisions on
automatic approval related to prescribed timeframes under AO 42
shall also apply for the processing of applications to amend ECCs.
(Emphasis supplied)
Implementing the afore-quoted section, the Revised Manual pertinently states in
Section 2.2, paragraph 16:

2. Operating but without ECCs;

16) Application Process for ECC Amendments

3. Operating projects with previous ECCs but planning or applying for

clearance to modify/expand orre-start operations; and
4. Existing projects for modification or re-start up.
It may be observed that, based from the above, DAO2003-30 and the Revised
Manual appear to use the terms "operating"and "existing" interchangeably. In the
case at bar, the subject project has not yet been constructed although there have
been horizontal clearing operations at the project site.
Figure 2-4 presents how Proponents may request for minor or major changes in their
ECCs. Annex 2-1c provides a decision chart for the determination of requirements for
project modifications, particularly for delineating which application scenarios will
require EPRMP (which will be subject to Figure 2-1 process) or other support
documentations (which will be subject to Figure 2-4 process). Figure 2-4, in turn,
provides:
Figure 2-4. Flowchart on Request for ECC Amendments 175

On its face, therefore, the theory of the Casio Group, as sustained by the appellate
court that the EPRMP is not the appropriate EIA document type seems plausible Scenario 1: Request for Minor Amendments Scenario 2: Request for Major Amendments
because the subject project is not: (1) operating/existing with a previous ECC but
planning or applying for modification or expansion, or (2) operating but without an1. Typographical error 1. Expansion of project area w/in catchment describ
ECC. Instead, the subject project is an unimplemented or a non-implemented, in EIA
hence,non-operating project with a previous ECC but planning for modification or
expansion. 2. Extension of deadlines for submission of post-ECC
requirement/s 2. Increase in production capacity or auxiliary
component of the original project
The error in the above theory lies in the failure to consider or trace the applicable
provisions of DAO 2003-30 and the Revised Manual on amendments to an ECC. 3. Extension of ECC validity
3. Change/s in process flow or technology
4. Change in company name/ownership
The proper starting point in determining the validity of the subject first amendment,
specifically, the propriety of the EIA document type (i.e., EPRMP) which RP Energy 4. Addition of new product
submitted in relation to its application for the aforesaid amendment, must of 5. Decrease in land/project area or production
necessity be the rules on amendments to an ECC. 174 This is principally found in capacity 5. Integration of ECCs for similar or dissimilar but
Section 8.3,Article II of DAO 2003-03, viz: contiguous projects (NOTE: ITEM#5 IS PROPONENTS

8.3 Amending an ECC

Other amendments deemed
nor" at the discretion of the
B CO/RO Director
Start]
hin three (3) years from ECC issuance (for
jects not started)176 OR at any time during project
plementation, the Proponent prepares and
bmits to the ECC-endorsing DENR-EMB office a
TTER-REQUEST for ECC amendment, including
a/information, reports or documents to
bstantiate the requested revisions.
e ECC-endorsing EMB office assigns a Case
ndler to evaluate the request
OPTION, NOT EMBS) 4
6. Revision/Reformatting of ECC Conditions
7. Other amendments deemed "major" at the
discretion of the EMB CO/RO Director
ECC-endorsing Authority decides on the Letter- ECC-endorsing/issuing Authority (per Table 1-4)
Request, based on CH recommendation decides on Letter Requests/EPRMP/PEPRMP/Other
1[Start] documents based on EMB CH and/or Tech/Review
Committee recommendations.
Within three (3) years from ECC issuance (for projects
not started)177 OR at any time during project
implementation, the Proponent prepares Maximum
and submits
Processing Time to Issuance of Decision Max Processing Time to Issuance of Decision
to the ECC-endorsing DENR-EMB office a LETTER-
REQUESTfor ECC amendments, including
data/information, reports or documents to substantiate
the requested revisions.
EMB CO 7 workdays CO PEPRMP CO EPRMP RO RO
PEPRM EPRM
2 P
For projects that have started implementation, EMB
evaluates request based on Annex 2-1cfor various
EMB RO 7 workdays 120 90 60 30
scenarios of project modification. Documentary
requirements may range from a Letter-Request to an
workdays workdays workda work
EPRMP to the EMB CO/RO while for those with
ys ys
Programmatic ECC, a PEPRMP may need to be
submitted to the EMB CO to support the request. It is
important to note that for operating projects, the
appropriate document is not an EIS but an EIA Report
incorporating the projects historical environmental Other document applications: max 30 workdays (EM
performance and its current EMP, subject to specific CO and RO)
documentary requirements detailed in Annex 2-1cfor
every modification scenario.
Noteworthy in the above, which is pertinent to the issue at hand, is that the
amendment process squarely applies to projects not started, such as the subject
For EPRMP/PEPRMP-based requests, EMB forms a project, based on the phrase "[w]ithin three (3) years from ECC issuance (for
Technical/Review Committee to evaluate the request.
projects not started) x x x".
For other requests, a Case Handler may solely
undertake the evaluation. EMB CO and RO will process
Annex 2-1c, in turn, provides a "Decision Chart for Determination of Requirements
P/EPRMP for PECC/ECC under Groups I and II
For Project Modification." We reproduce below the first three columns of Annex 2-1c,
respectively. (Go to Figure 2-1)
as are pertinent to the issue at hand:
ANNEX 2-1c
 DECISION CHART FOR DETERMINATION OF REQUIREMENTS FOR PROJECT
MODIFICATION178
Proposed Modifications to the
Current Project
Expansion of land/project
area w/in catchment or
environment described in
the original EIA Report
Expansion of land/project
area OUTSIDE catchment or
environment described in
the original EIA Report
Increase in capacity or
auxiliary component of the
original project which will
eithernot entail exceedance
of PDR (non-covered
project) thresholds or EMP &
ERA can still address
impacts & risks arising from
modification
Analysis of Proposed
Modifications
Since the modification will be in an
area already described and
evaluated in the original EIA
Report, incremental impacts from
additional land development will
have been addressed in the
approved EMP
It is assumed the modification
proposal may have significant
potential impacts due to absence
of prior assessment as to how the
project may affect the proposed
expansion area
Non-exceedance of PDR (non
covered project) threshold is
assumed that impacts are not
significant;
Modification scenario and decision
process are applicable to both
nonimplemented and operating
projects issued ECCs
Increase in capacity or
auxiliary component of the
original project which will
either exceed PDR
Resulting Decision Document/Type
(noncovered project)
of EIA Report Required
thresholds, or EMP & ERA
cannot address impacts and
risks arising from
modification
Operational projects, or those
which have stopped for 5 years
and plan to re-start
For Groups I and II EISbased
Change/s in process flow or
Projects with an ECC applying for
technology
modification
ECC Amendment /Letter Request
with brief description of activities
in the additional area
Additional component or
products which will enhance
the environment (e.g. due
to compliance to new
ECC Amendment /Environmental
stringent requirements) or
Performance Report and
lessen impacts on the
Management Plan (EPRMP)
environment (e.g. thru
utilization of waste into new
products)
ECC Amendment /Letter Request
Downgrade project size or
with brief description of additional
area or other units of
capacity or componentmeasure of thresholds limits
Conversion to new project
type (e.g. bunker-fired plant
to gas-fired)
Exceedance of PDR (non-covered) ECC Amendment /Environment
threshold is assumed that impacts Performance Report and
may be potentially significant, Management Plan (EPRMP)
particularly if modification will
result to a next higher level of
threshold range
Modification scenario and decision
process are applicable to both
nonimplemented and operating
projects with or without issued
ECCs
EMP and ERA can still address ECC Amendment /Letter Reque
impacts & risks arising from with brief process description
modification
EMP and ERA cannot address ECC Amendment /Environment
impacts & risks arising from Performance Report and
modification Management Plan (EPRMP)
Activity is directly lessening or ECC Amendment /Letter Reque
mitigating the projects impacts on with consolidated Project
the environment. However, to Description Report of new proje
ensure there is no component in component and integrated EM
the modification which fall under
covered project types, EMB will
require disclosure of the
description of the components and
process with which the new
product will be developed.
No incremental adverse impacts; From ECC Amendment to Relief
may result to lower project ECC Commitments (Conversion
threshold or may result to non- CNC): /Letter-Request only
coverage
Considered new application but New ECC /EIS
with lesser data requirements
since most facilities are
 3. Change/s in process flow or technology

established; environmental
performance in the past will serve 4. Addition of new product
as baseline; However, for
operating projects, there may be 5. Integration of ECCs for similar or dissimilar but contiguous projects
need to request for Relief from ECC (NOTE: ITEM#5 IS PROPONENTS OPTION, NOT EMBS)
Commitment prior to applying for
new project type to ensure no
balance of environmental 6. Revision/Reformatting of ECC Conditions
accountabilities from the current
project 7. Other amendments deemed "major at the discretion of the EMB CO/RO
Director

Integration of ECCs for
similar or contiguous
projects
(Note: Integration of ECCs is
at the option of the
Proponent to request/apply)
Revision/ Reformatting of
ECC Conditions
We now apply these provisions to the case at bar.
No physical change in project
size/area; no change in
process/technology but improved
management of continuous
projects by having an integrated
planning document in the form or
an integrated ECC (ECC conditions
will be harmonized across projects;
conditions relating to requirements
within other agencies mandates
will be deleted)
No physical change on the project
but ECC conditions relating to
requirements within other
agencies mandates will be deleted
The Casio Group does not controvert this finding by the DENR-EMB and we find the
ECC Amendment /Letter Request same reasonably supported by the evidence on record considering that, among
with consolidated Project others, the construction of a 230-kVdouble transmission line would result in major
activities outside the project site which could have significant environmental
Description Report and integrated
EMP impacts.
Consequently, the amendment was considered asfalling under Item#4 of Annex 2-
1c, and, thus, the appropriate EIA document typeis an EPRMP, viz:
Increase in capacity or Exceedance of PDR (non-covered) ECC Amendment /Environmenta
auxiliary component of the thresholds is assumed that impacts Performance Report and
original project which will may be potentially significant, Management Plan (EPRMP)182
either exceed PDR (non- particularly if modification will
covered
ECC Amendment /Letter project) thresholds, or
Request result to a next higher level of
only EMP & ERA cannot address threshold range
impacts and risks arising from
modification
Modification scenario and decision
process are applicable to both
nonimplemented and operating
projects with or without issued
ECCs181

To reiterate, the first amendment to the ECC was requested by RP Energy due to its
planned change of project design involving the inclusion of a barge wharf, seawater
intake breakwater, subseadischarge pipeline, raw water collection system, drainage
channel improvement and a 230-kV double transmission line. The DENR-EMB
determined179 that the proposed modifications involved a major amendment
because it will result in anincrease in capacity or auxiliary component, as per
Scenario 2,Item #2 of Figure 2-4:
Scenario 2: Request for Major Amendments
Note that the Chart expressly states that, "[m]odification scenario and decision
process are applicable to both non-implementedand operating projects withor
without ECCs."183 To recall, the subject project has not been constructed and is not
yet operational, although horizontal clearing activities have already been
undertaken at the project site. Thus, the subject project may be reasonably
classified as a non-implemented project with an issued ECC, which falls under
Item#4 and, hence, an EPRMP is the appropriate EIA document type.

1. Expansion of project area w/in catchment described in EIA
2. Increase in production capacity or auxiliary component of the original
project180
This lengthy explanation brings us toa simple conclusion. The definitions in DAO
2003-30 and the Revised Manual, stating that the EPRMP is applicable to (1)
operating/existing projectswith a previous ECC but planning or applying for
modification or expansion, or (2) operating projects but without an ECC, were not an
exclusive list.
The afore-discussed provisions of Figure 2-4, in relation to Annex 2-1c, plainly show
that the EPRMP can, likewise, be used as an appropriate EIA document type for a
single, non-implemented project applying for a major amendment to its ECC,
involving an increase in capacity or auxiliary component, which will exceed PDR
(non-covered project) thresholds, or result in the inability of the EMP and ERA to
address the impacts and risks arising from the modification, such as the subject
project.
That the proposed modifications in the subject project fall under this class or type of
amendment was a determination made by the DENR-EMBand, absent a showing of
grave abuse of discretion, the DENR-EMBs findings are entitled to great respect
because it is the administrative agency with the special competence or expertise to
administer or implement the EIS System. The apparent confusion of the Casio
Group and the appellate court is understandable. They had approached the issue
with a legal training mindset or background. As a general proposition, the definition
of terms in a statute or rule is controlling as to its nature and scope within the
context of legal or judicial proceedings. Thus, since the procedure adopted by the
DENR-EMB seemed to contradict or go beyond the definition of terms in the relevant
issuances, the Casio Group and the appellate court concluded that the procedure
was infirm.
However, a holistic reading of DAO2003-30 and the Revised Manual will show that
such a legalistic approach inits interpretation and application is unwarranted. This is
primarily because the EIA process is a system, not a set of rigid rules and definitions.
In the EIA process, there is much room for flexibility in the determination and use
ofthe appropriate EIA document type as the foregoing discussion has shown. 184 To
our mind, whatshould be controlling is the guiding principle set in DAO 2003-30 in
the evaluation of applications for amendments to ECCs, as stated in Section 8.3
thereof: "[r]equirements for processing ECC amendments shall depend on the nature
of the requestbut shall be focused on theinformation necessary to assess the
environmental impact of such changes."185
This brings us to the next logicalquestion, did the EPRMP provide the necessary
information in order for the DENR-EMB to assess the environmental impact of RP
Energys request relative to the first amendment?
We answer in the affirmative.
In the first place, the Casio Group never attempted to prove that the subject
EPRMP, submitted by RP Energy to the DENR-EMB, was insufficient for purposes of
evaluating the environmental impact of the proposed modifications to the original
project design. There is no claim that the data submitted were falsified or
misrepresented. Neither was there an attempt to subpoena the review process
documents of the DENR to establish thatthe grant of the amendment to the ECC was
done with grave abuse of discretion or to the grave prejudice of the right to a
healthful environment of those who will beaffected by the project. Instead, the
Casio Group relied solely on the definition of terms in DAO 2003-30 and the Revised
Manual, which approach, as previously discussed,was erroneous.
At any rate, we have examined the contents of the voluminous EPRMP submitted by
RP Energy and wefind therein substantial sections explaining the proposed changes
as well as the adjustments that will be made in the environmental management plan
in order to address the potential environmental impacts of the proposed
modifications to the original project design. These are summarized in the "Project
Fact Sheet"186 of the EPRMP and extensively discussed in Section 4187 thereof. Absent
any claim or proof to the contrary, we have no bases to conclude that these data
were insufficient to assess the environmental impact of the proposed modifications.
In accordance with the presumption of regularity in the performance of official
duties, the DENR-EMB must be deemed to have adequately assessed the
environmental impact of the proposed changes, before granting the request under
the first amendment to the subject ECC.
In sum, the Revised Manual permits the use of an EPRMP, as the appropriate EIA
document type, for major amendments to an ECC, even for an unimplemented or
non-implementedproject with a previous ECC, such as the subject project.
Consequently, we find that the procedure adopted by the DENR, in requiring RP
Energy to submitan EPRMP in order to undertake the environmental impact
assessment of the planned modifications to the original project design, relative to
the first amendment to the ECC, suffers from no infirmity.
We apply the same framework of analysis in determining the propriety of a PDR, as
the appropriate EIA document type, relative to the second amendment to the
subject ECC.
Again, the Casio Group, as sustained by the appellate court, relied on the
definitions of a PDR in DAO 2003-30 and the Revised Manual:
Project Description (PD) document, which may also be a chapter in an EIS, that
describes the nature, configuration, use of raw materials and natural resources,
production system, waste or pollution generation and control and the activities of a
proposed project. It includes a description of the use of human resources as well as
activity timelines, during the pre-construction, construction, operation and
abandonment phases. It is tobe used for reviewing co-located and single projects
under Category C, aswell as for Category D projects. 188
xxxx
a) For new projects: x x x For non-covered projects in Groups II and III, a x x x Project
Description Report (PDR) is the appropriate document to secure a decision from
DENR/EMB. The PDR is a "must" requirement for environmental enhancement and
mitigation projects in both ECAs (Group II) and NECAs (Group III) to allow EMB to
confirm the benign nature of proposed operations for eventual issuance of a
Certificate ofNon-Coverage (CNC). All other Group III (non-covered) projects do not
need to submit PDRs application is at the option of the Proponent should it need a
CNC for its own purposes, e.g. financing pre-requisite. For Group V projects, a PDR is
required to ensure new processes/technologies or any new unlisted project does not
pose harm to the environment. The Group V PDR is a basis for either issuance of a
CNC or classification of the project into its proper project group.
b) For operating projects with previous ECCs but planning or applying for clearance
to modify/expand or re-start operations, or for projects operating without an ECC but
applying to secure oneto comply with PD 1586 regulations, the appropriate
document is not an EIS but an EIA Report incorporating the projects environmental
performance and its current Environmental Management Plan. This report is either
an (6) Environmental Performance Report and Management Plan (EPRMP) for single
project applications or a (7) Programmatic EPRMP (PEPRMP) for co-located project
applications. However, for small project modifications, an updating of the project
description or the Environmental Management Plan with the use of the proponents
historical performance and monitoring records may suffice.189
xxxx
Project Description (PD) - document, which may also be a chapter in an EIS, that
describes the nature, configuration, use of raw materials and natural resources,
production system, waste or pollution generation and control and the activities of a
proposed project. It includes a description of the use of human resources as well as
activity timelines, during the pre-construction, construction, operation and
abandonment phases.190
We will no longer delve intothe details of these definitions. Suffice it to state, similar
to the discussion on the EPRMP, that if we go by the strict limits of these definitions,
the PDR relative to the subject second amendment would not fall squarely under any
of the above.
However, again, these are not the only provisions governing the PDR in the Revised
Manual.
After the favorable grant of the first amendment, RP Energy applied for another
amendment to its ECC, this time inconsideration of its plan to change the
configuration of the project from 2 x 150 MWto 1 x 300 MW. In practical terms, this
meant that the subject project will still produce 300 MW of electricity but will now
make use of only one boiler (instead of two) to achieve greater efficiency in the
operations of the plant. The DENR-EMB determined 191this amendment to be minor,
under Scenario 1, Item#6 of Figure 2-4:
Scenario 1: Request for Minor
Amendments
1. Typographical error
2. Extension of deadlines for submission of post-ECC requirement/s
3. Extension of ECC validity
4. Change in company name/ownership
5. Decrease in land/project area or production capacity
6. Other amendments deemed "minor" at the discretion of the EMB CO/RO
Director192
because (1) there is no increase in capacity; (2) it does not constitute any
significant impact; and (3) its EMP and ERA as specified in the submitted EPRMP
remain the same.193 Relative to Annex 2-1c, the requested amendment was, in turn,
determinedto fall under Item#3:
Increase in capacity or Non-exceedance of PDR (non ECC Amendment /Letter Reques
auxiliary component of the covered project) thresholds is with brief description of addition
original project which will assumed that impacts are not capacity or component195
either not entail exceedance significant;
of PDR (non-covered project)
thresholds or EMP & ERA can
Modification scenario and decision
still address impacts & risks
process are applicable to both non-
arising from modification
implemented and operating
projects issued ECCs194
We make the same observation, as before, that the above applies to an
unimplemented or non-implemented project with a previous ECC, like the subject
project. Although it may be noted thatthe proposed modification does not squarely
fall under Item#3, considering that, as previously mentioned,there will be no
increase in capacity relative to the second amendment, still, we find nothing
objectionable to this classification by the DENR-EMB, for it seems plain enough that
this classification was used because the modification was deemed too minor to
require a detailed project study like an EIS or EPRMP. Since this is the classification
most relevant and closely related to the intended amendment, following the basic
precept that the greater includes the lesser, the DENR-EMB reasonably exercised its
discretion in merely requiring a letter request with a brief description of the
modification.
As earlier noted, the PDR is the EIA document type with the least detail, and, thus,
applicable to such minor modifications. Thus, the DENR-EMB cannot be faulted for
requiring RPEnergy to submit a PDR relative to its application for the second
amendment. Consequently, as before, we findthat the Revised Manual supports the
procedure adopted by the DENR-EMB in requiring RP Energy to submit a PDR in
order to assess the environmental impact of the planned modifications relative to
the second amendment.
In their Petition before this Court, the Casio Group boldly asserts that "[t]here is
nothing in the Project Description Report that provides an environmental impact
assessment of the effects of constructing and operating a single 300-MW generating
unit."196 However, to our dismay, as in their other serious allegations in their Petition
for Writ ofKalikasan, the same is, likewise, baseless. Apart from such a sweeping
claim, the Casio Group has provided no evidence or argument to back up the same.
An examination of the PDR readily reveals that it contains the details of the
proposed modifications197 and an express finding that no significant environmental
impact will be generated bysuch modifications, as in fact it is expected that the
operation of the power plant will become more efficient as a result of the change
from 2 x 150 MW to 1 x 300 MW configuration. 198 Consequently, the PDR merely
reiterates the same mitigating measures that will presumably address the minor
modifications to the project design. Again, no evidence was presented to show
substantial errors or misrepresentations in these data or their inadequacy for
providing the bases for the DENR-EMB to assess the environmental impact of the
proposed modifications under the second amendment.
In fine, absent proof to the contrary, bearing in mind that allegations are not proof, IV.
we sustain the procedure adoptedby the DENR-EMB in requiring RP Energy to submit
a PDR and, on the basis thereof, approving the request for the second amendment.
Whether the Certificate of Non-Overlap (CNO), under Section 59 of the IPRA Law, is a
precondition to the issuance of anECC and the lack of its prior issuance rendered the
In another vein, we note that the appellate court proceeded from the erroneous ECC invalid.
premise that the EIA is a document, when it repeatedly stated that the amendments
to the ECC require a new EIA, and not merely an EPRMP or PDR. The appellate court
The appellate court ruled that the ECC issued in favor of RP Energy on December 22,
relied on the provisoin the ECC, which stated that "[a]ny expansion of the project
2008 is invalid because the CNO covering the subject project was issued only on
beyond the project description or any change in the activity or transfer of location
October 31, 2012 or almost fouryears from the timeof issuance of the ECC. Thus, the
shall besubject to a new Environmental Impact Assessment." 199
ECC was issued in violation of Section 59 of the IPRA Law and its implementing rules
which require that a CNO be obtained prior to the issuance of a government agency
However, as correctly pointed out by the DENR and RP Energy, the EIA is not a of, among others, a license or permit. In so ruling, the appellate court implicitly
document but a process: upheld the Casio Groups argument that the ECC is a form of government license or
permit pursuant to Section 4 of PD 1586 which requires all entities to securean ECC
before (1) engaging in an environmentally critical project or (2) implementing a
Environmental Impact Assessment (EIA) processthat involves evaluating and
project within an environmentally critical area.
predicting the likely impacts of a project (including cumulative impacts) on the
environment during construction, commissioning, operation and abandonment. It
also includes designing appropriate preventive, mitigating and enhancement The DENR and RP Energy, however, argue that an ECC is not the license or permit
measures addressing these consequences to protect the environment and the contemplated under Section 59 of the IPRA Law and its implementing rules as may
community's welfare.The process is undertaken by, among others, the project be deduced from the definition, nature and scope of an ECC under DAO 2003-03 and
proponent and/orEIA Consultant, EMB, a Review Committee, affected communities the Revised Manual. The DENR explains that the issuance of an ECC does not
and other stakeholders.200 (Emphasis supplied) exempt the project proponent from securing other permits and clearances as
required under existing laws, including the CNO, and that the final decision on
whether a project will be implemented lies with the concerned local government
When the provisoin the ECC, therefore, states that a new EIA shall beconducted, this
unit/s or the lead government agency which has sectoral mandate to promote the
simply means that the project proponent shall be required to submit such study or
government programwhere the project belongs.
report, as warranted by the DENR Rules and circumstances, which will sufficiently
aid the DENR in making a new EIA and, thus, determine whether to grant the
proposed amendment (or project modification). Aswe have seen, consistent with We agree with the DENR and RP Energy.
DAO 2003-30 and the Revised Manual, the DENR required RP Energy to submit an
EPRMP and a PDR relative to the latters request involving the first and second
Section 59, Chapter VIII of the IPRA Law provides:
amendments, respectively, which led to the new EIA of the project in compliance
with the provisoof the ECC.
SEC. 59. Certification Precondition. All departments and other governmental
agencies shall henceforth be strictly enjoined from issuing, renewing, or granting
Verily, the various EIA documents, such as the EPRMP and PDR, are mere tools used
any concession,license or lease, or entering into any production-sharing agreement,
by the DENR to assess the environmental impact of a particular project. These
without prior certification from the NCIP that the area affected does not overlap with
documents are flexibly used by the DENR, as the circumstances warrant, in order to
any ancestral domain.Such certification shall only be issued after a field-based
adequately assess the impacts of a new project or modifications thereto. Being the
investigation is conducted by the Ancestral Domains Office of the area concerned:
administrative agency entrusted with the determination of which EIA document type
Provided, That no certification shall be issued by the NCIP without the free and prior
applies to a particular application for an amendment to an ECC, falling as it does
informed and written consent of ICCs/IPs concerned: Provided, further, That no
within its particular technical expertise, wemust accord great respect to its
department, government agency or government-owned or -controlled corporation
determination, absent a showing of grave abuse of discretion or patent illegality.
may issue new concession, license, lease, or production sharing agreement while
there is a pending application for a CADT: Provided, finally, That the ICCs/IPs shall
In sum, we find that the appellate court erred when it ruled that the first and second have the right to stop or suspend, in accordance with this Act, any project that has
amendments to the subject ECC wereinvalid for failure to comply with a new EIA and not satisfied the requirement of this consultation process. (Emphasis supplied)
for violating DAO 2003-30 and the Revised Manual. The appellate court failed to
properly consider the applicable provisions in DAO 2003-30 and the Revised Manual
While Section 9, Part II, Rule VIII of National Commission on Indigenous Peoples
on amendments to ECCs. Our examination of the provisions on amendments to
(NCIP) Administrative Order No. 01-98201 states:
ECCs, as well as the EPRMP and PDR themselves, shows that the DENR reasonably
exercised its discretion in requiring an EPRMP and a PDR for the first and second
amendments, respectively. Through these documents, which the DENR reviewed, a SECTION 9. Certification Precondition Prior to Issuance of any Permits or Licenses.
new EIA was conducted relative to the proposed project modifications. Hence,
absent sufficient showing of grave abuse of discretion or patent illegality, relative to
a. Need for Certification. No department of government or other agencies
both the procedure and substance of the amendment process, we uphold the
shall issue, renew or grant anyconcession, license, lease, permit, or enter
validity of these amendments.
 into any production sharing agreement without a prior certification from the
NCIP that the area affected does not overlap any ancestral domain.
b. Procedure for Issuance ofCertification by NCIP.
1) The certification, above mentioned, shall be issued by the
Ancestral Domain Office, only after a field based investigation that
such areas are not within any certified or claimed ancestral
domains.
2) The certification shall be issued only upon the free, prior,
informed and written consent of the ICCs/IPs who will be affected
by the operation of such concessions, licenses or leases or
production-sharing agreements. A written consent for the issuance
of such certification shall be signed by at least a majority of the
representatives of all the households comprising the concerned
ICCs/IPs. (Emphasis supplied)
As may be deduced from its subtitle, Section 59 requires as a precondition, relative
to the issuance of any concession, license, lease or agreement over natural
resources, a certification issued by the NCIP that the area subject thereof does not
lie within any ancestral domain.202 This is in keeping with the State policy to protect
the rights of Indigenous Cultural Communities/Indigenous Peoples (ICCs/IPs) to their
ancestral domains in order to ensure their economic, social and cultural well-being
as well as to recognize the applicability of customary laws governing property rights
or relations in determining the ownership and extent of such ancestral domain. 203
The IPRA Law and its implementing rules do not define the terms "license" and
"permit" so that resort to their plain or ordinary meaning in relation to the
intendment of the law is appropriate.
A "license" has been defined as "a governmental permission to perform a particular
act (such as getting married), conduct a particular business or occupation, operate
machinery or vehicles after proving capacity and ability to do so safely, or use
property for a certain purpose"204 while a "permit" has been defined as "a license or
other document given by an authorized public official or agency (building inspector,
department ofmotor vehicles) to allow a person or business to perform certain
acts."205
The evident intention of Section 59, in requiring the CNO prior to the issuance of a
license or permit, is to prevent the implementation of a project that may impair the
right of ICCs/IPs to their ancestral domains. The law seeks to ensure that a project
willnot overlap with any ancestral domain prior to its implementation and thereby
pre-empt any potential encroachment of, and/or damage to the ancestral domains of
ICCs/IPs without their prior and informed consent.
With these considerationsin mind, we now look atthe definition, nature and scope of
an ECC in order to determine if it falls within the ambit of a "license" or "permit" to
which the CNO requirement, under Section 59 of the IPRA Law and its implementing
rules, finds application. Section 4 of PD 1586 provides, in part:
SECTION 4. Presidential Proclamation of Environmentally Critical Areas and Projects.
The President of the Philippines may, on his own initiative or upon
recommendation of the National Environmental Protection Council, by proclamation
declare certain projects, undertakings or areas in the country as environmentally
critical. No person, partnership or corporation shall undertake or operate any
suchdeclared environmentally critical project or area without first securing an
Environmental Compliance Certificate issued by the President orhis duly authorized
representative.For the proper management of said critical project or area, the
President may by his proclamation reorganize such government offices, agencies,
institutions, corporations or instrumentalities including the re-alignment of
government personnel, and their specific functionsand responsibilities. (Emphasis
supplied)
While the above statutory provision reveals that the ECC is an indispensable
requirement before (1) the conduct of an environmentally critical project or (2) the
implementation of a project inan environmentally critical area, it does not follow that
the ECC is the "license" or "permit" contemplated under Section 59 of the IPRA Law
and its implementing rules.
Section 3(d), Article I of DAO 2003-03 defines an ECC in this wise:
SECTION 3. Definition of Terms.
For the purpose of this Order, the following definitions shall be applied:
xxxx
d. Environmental Compliance Certificate (ECC) document issued by the
DENR/EMB after a positive review of an ECC application, certifying that based on the
representations of the proponent, the proposed project or undertaking will not cause
significant negative environmental impact. The ECC also certifies that the proponent
has complied with all the requirements of the EIS System and has committed to
implement its approved Environmental Management Plan. The ECC contains specific
measures and conditions that the project proponent has to undertake beforeand
during the operation of a project, and in some cases, during the project's
abandonment phase to mitigate identified environmental impacts.
In turn, Section 1.0, paragraphs 3 and 6 of the Revised Manual provide, in part:
3) Purpose of the EIA Process
As a basic principle, EIA is used to enhance planning and guide decisionmaking. In
this Manual, EIA is primarily presented in the context of a requirement to integrate
environmental concerns in the planning process of projects at the feasibility stage.
Through the EIA Process, adverse environmental impacts of proposed actions are
considerably reduced through a reiterative review process of project siting, design
and other alternatives, and the subsequent formulation of environmental
management and monitoring plans. A positive determination by the DENR-EMB
results to the issuance of an Environmental Compliance Commitment (ECC)
document, to be conformed to by the Proponent and represents the projects
Environmental Compliance Certificate. The release of the ECC allows the project to
proceed to the next stage of project planning, which is the acquisition of approvals
from other government agencies and LGUs, after which the project can start
implementation.
 xxxx
6) The EIA Process inRelation to Other Agencies Requirements It is inherent upon
the EIA Process to undertake a comprehensive and integrated approach in the
review and evaluation of environment-related concerns of government agencies
(GAs), local government units (LGUs) and the general public. The subsequent EIA
findings shall provide guidance and recommendations to these entities as a basis for
their decision making process.
a) An Inter-agency MOA on EIS Streamlining was entered into in 1992 by 29
government agencies wherein ECC of covered projects was agreed to be a
prerequisite of all other subsequent government approvals;
b) DENR Memo Circular No. 2007-08 issued on 13 July 2007 reiterates in
effect the intent of the MOA and reinforces the role of the ECC/CNC as a
guidance document to other agencies and LGUs, as follows:
i) "No permits and/or clearances issued by other National
Government Agencies and Local Government Units shall be
required in the processing of ECC or CNC applications.
ii) The findings and recommendations ofthe EIA shall be
transmitted to relevant government agencies for them to integrate
in their decision making prior to the issuance of clearances,
permits and licenses under their mandates.
iii) The issuance of an ECC or CNC for a project under the EIS
System does not exempt the Proponent from securing other
government permits and clearances as required by other laws. The
current practice of requiring various permits, clearancesand
licenses only constrains the EIA evaluation process and negates
the purpose and function of the EIA."
project can be commenced, asper Section 4 of PD 1586,the issuanceof the ECC does
not, as of yet, result inthe implementation of the project. Rather, the ECC is intended
to, among others, provide guidance or act as a decision-making tool to other
government agencies and LGUs which have the final authority to grant licenses or
permits, such as building permits or licenses to operate, that will ultimately result in,
or authorize the implementation of the project or the conduct of specific activities.
As a consequence, we find that the CNO requirement under Section 59 of the IPRA
Law is not required to be obtained prior to the issuance of an ECC. As previously
discussed, Section 59 aims to forestall the implementation of a project that may
impair the right of ICCs/IPs totheir ancestral domains, by ensuring or verifying that a
project will not overlap with any ancestral domain prior to its implementation.
However, because the issuance of an ECC does not result in the implementation of
the project, there is no necessity to secure a CNO prior to an ECCs issuance as the
goal orpurpose, which Section 59 seeks to achieve, is, at the time of the issuance of
an ECC, not yet applicable.
In sum, we find that the ECC is not the license or permit contemplated under Section
59 of the IPRA Law and its implementing rules. Hence, there is no necessity to
secure the CNO under Section 59 before an ECC may be issued and the issuance of
the subject ECC without first securing the aforesaid certification does not render it
invalid.
V.
Whether the Certificate of Non-Overlap (CNO), under Section 59 of the IPRA Law, is a
precondition to the consummation of the Lease and Development Agreement (LDA)
between SBMA and RP Energy and the lack of its prior issuance rendered the LDA
invalid.
We now turn to the applicability of Section 59 of the IPRA Law to the LDA entered
into between the SBMA and RP Energy on June 8, 2010. Similar to the ECC, the LDA
was entered into prior to the issuance ofthe CNO on October 31, 2012.

iv) Henceforth, all related previous instructions and other

Before this Court, SBMA and RP Energy reiterate their arguments on why the CNO is
issuances shall be made consistent with the Circular.
no longer necessary in the instant case, to wit:

c) "Permits, licenses and clearances" are inclusive of other national and

1. Prior to entering into the LDA withRP Energy, SBMA entered into a lease
local government approvals such as endorsements, resolutions,
agreement with HHIC206 -Philippines, Inc. and a CNO was already issued
certifications, plans and programs, which have to be cleared/approved or
therefor which, for all intents and purposes, is applicable to the area leased
other government documents required within the respective mandates and
by RP Energy being part of contiguous lots in Redondo Peninsula.
jurisdiction of these agencies/LGUs.

2. The site of the power plant project is very distant from the boundaries of
xxxx
the lone area at the Subic Bay Freeport Zone covered by an Aeta
Communitys Certificate of Ancestral Domain Title (CADT).
f) The final decision whether a project will be implemented or not lies either with the
LGUs who have spatial jurisdiction over the project or with the lead government
3. There was no indigenous community within the vicinity of the project
agency who has sectoral mandate to promote the government program where the
area as stated in RP Energys EIS.
project belongs, e.g. DOE for energy projects; DENR-MGB for mining projects.
(Emphasis supplied)
4. The land where the project is located was subsequently classified as
industrial by the SBMA. 5. The scoping/procedural screening checklist
As can be seen, the issuance of the ECC does not, by and of itself, authorize the
classified as "not relevant" the issue of indigenous people.
implementation of the project. Although it is indispensable before the covered
 6. Ms. Mercado, who was part of the team which prepared the EIS, testified
that she visited the project site ten or more times and did not see any Aeta
communities there.
7. Mr. Evangelista testified that the project site used to be a firing range of
the U.S. Armed Forces which would make it impossible to be a settlement
area of indigenous communities.
8. Atty. Rodriguez stated that the project site is not covered by a CADT and
that from the start of negotiations on the LDA, the SBMA Ecology Center
verified with the NCIP that there was no application for said area to be
covered by a CADT.
RP Energy further argues that, in any case, as a matter of prudence, it secured a
CNO from the NCIP. On October 31, 2012, the NCIP issued the subject CNO over the
project site, which should erase any doubt as to whether it overlaps with an
ancestral domain.
Upholding the arguments of the Casio Group, the appellate court ruled that SBMA
failed to comply with the CNO requirement and, thus, the LDA entered into between
SBMA and RP Energy is invalid. It rejected the reasons given by SBMA and RP
Energy, to wit:
1. RP Energys reliance on its own field investigation that no indigenous
community was found within the vicinity is unavailing because it was not
the field investigation by the NCIP required by the IPRA Law.
2. RP Energy acknowledged that Aetas were among the earliest settlers in
the municipality where the project will be built. Hence, it was not clearly
shown that in 2008, at the time the LDA was entered into, there were no
indigenouscommunities in the project site.
3. SBMAs representation that the project site is industrial relies on a letter
dated March 5, 2008 and the scoping checklist, which are hearsay
evidence.
4. The statements of Atty. Rodriguez have no probative value because he is
not an officer of SBMA Ecology Center oran officer of NCIP.
5. At the time the CNO was issued on October 31, 2012, and the field
investigation relative thereto was conducted by the NCIP, the project site
no longer reflected the actual condition on December 22, 2008 when the
LDA was entered into because the households which occupied the site had
already been relocated by then.
6. SBMA, prior to entering into a lease agreement with HHIC, secured a
CNO, but oddly did not do the same with respect to the lease agreement
with RP Energy, considering that both leases cover lands located within the
same peninsula. RP Energy appears to have been accorded a different
treatment.
7. The CNO issued in favor of HHIC cannot justify the lack of a CNO for the
power plant project because the two projects are situated in different
locations: the HHIC project is located in Sitio Agusuhin,while the power
plant project is located in Sitio Naglatore.
While we agree with the appellate court that a CNO should have been secured prior
to the consummation of the LDA between SBMAand RP Energy, and not after, as was
done here, we find that, under the particular circumstances of this case, the
subsequent and belated compliance withthe CNO requirement does not invalidate
the LDA.
For convenience, and as starting point of ouranalysis, we reproduce Section 59 of
the IPRA Law below:
SEC. 59. Certification Precondition. All departments and other governmental
agencies shall henceforth be strictly enjoined from issuing, renewing, or granting
any concession, license or lease, or entering into any productionsharing agreement,
without prior certification from the NCIP that the area affected does not overlap with
any ancestral domain.Such certification shall only be issued after a field-based
investigation is conducted by the Ancestral Domains Office of the area concerned:
Provided, That no certification shall be issued by the NCIP without the free and prior
informed and written consent of ICCs/IPs concerned: Provided, further, That no
department, government agency or government-owned or -controlled corporation
may issue new concession, license, lease, or production sharing agreement while
there is a pending application for a CADT: Provided, finally, That the ICCs/IPs shall
have the right to stop or suspend, in accordance with this Act, any project that has
not satisfied the requirement of this consultation process. (Emphasis supplied)
The law is clear but its actual operation or application should not be interpreted
beyond the bounds of reason or practicality.
We explain.
Indeed, a CNO is required prior to the grant of a lease by all government agencies,
including the SBMA. Again, the evident intention is to prevent the impairment of the
right of ICCs/IPs to their ancestral domains. A lease, such as the LDA under
consideration, would result in, among others, granting RP Energy the right to the use
and enjoyment of the project site to the exclusion of third parties. 207 As such, the
lease could conceivably encroach on an ancestral domain if the CNO is not first
obtained.
However, implicit in the operation of Section 59 is the practical reality that the
concerned government agency must make a preliminary determinationon whether
or not to obtain the required certification in the first place. To expound, a
government agency, which wishes to lease part of its property located near Padre
Faura Street, Manila City could not, and should not be reasonably expected to obtain
the CNO, as it is obviously inapplicable to its planned lease. In contrast, a
government agency, which intends to lease a property in a valley or mountainous
region, where indigenous communities are known to reside, conduct hunting
activities, perform rituals, or carry out some other activities, should be reasonably
expected to secure the CNO prior to consummating the planned lease with third
persons.
Even if the indigenous community does not actuallyreside on the proposed lease
site, the government agency would still be required to obtain the CNO preciselyto
rule out the possibility that the proposed lease site encroaches upon an ancestral
domain. The reason for this is that an ancestral domain does not only cover the
lands actually occupied by an indigenous community, but all areas where they have
a claim of ownership, through time immemorial use, such as hunting, burial or
worship grounds and to which they have traditional access for their subsistence and
other traditional activities.208
The wording of the law itself seems to presuppose that if the concession, lease,
license or production-sharing agreement is over natural resources, then the CNO
should be first obtained. This is because the lastterm, "production-sharing
agreement," normally refers to natural resources. But the problem arises as to what
should be considered "natural resources"; for a vacant lot, nearPadre Faura Street, or
a forest land, in Mt. Banahaw, could both beconsidered as "natural resources,"
depending on the restrictive or expansive understanding of that term.
After due consideration, we find that the proper rule of action, for purposes of
application of Section 59, is that all government offices should undertake proper and
reasonable diligence in making a preliminary determination on whether to secure
the CNO, bearing in mind the primordial State interest in protecting the rights of
ICCs/IPs to their ancestral domains. They should consider the nature and location of
the areas involved; the historical background of the aforesaid areas relative to the
occupation, use or claim of ownership by ICCs/IPs; the present and actual condition
of the aforesaid areas likethe existence of ICCs/IPs within the area itself or within
nearby territories; and such other considerations that would help determine whether
a CNO should be first obtained prior to granting a concession, lease, license or
permit, or entering into a production-sharing agreement.
If there are circumstances that indicate that a claim of ownership by ICCs/IPs may be
present or a claim of ownership may be asserted in the future, no matter how
remote, the proper and prudent course ofaction is to obtain the CNO. In case of
doubt, the doubt should be resolved in favor of securing the CNO and, thus, the
government agency is under obligation tosecure the aforesaid certification in order
to protect the interests and rights of ICCs/IPs to their ancestral domains. This must
be so if we are to accord the proper respect due to, and adequately safeguard the
interests and rights of, our brothers and sisters belonging to ICCs/IPs in consonance
with the constitutional policy209 to promote and protect the rights of ICCS/IPs as
fleshed out in the IPRA Law and its implementing rules.
In the case at bar, we find, applying this rule of action, that the SBMA should have
first secured a CNO before entering into the LDA with RP Energy for the following
reasons.
First, the Subic area is historicallyknown to be the home of our brothers and sisters
belonging to the Aeta communities. In particular, the EIS210 itself of RP Energy noted
that Aeta communities originally occupiedthe proposed project site of the power
plant. Thus, even if we assume that, at the time of the ocular inspection of the
proposed project site in 2008, there were no Aeta communities seen thereat, as
claimed by RP Energy, the exercise of reasonable prudence should have moved
SBMA and RP Energy to secure a CNO in order to rule out the possibility that the
project site may overlap with an ancestral domain. This is especially so, in view of
the observation previously made, that lack of actual occupation by an indigenous
community ofthe area does not necessarily mean that it is not a part of anancestral
domain because the latter encompasses areas that are not actually occupied by
indigenouscommunities but are used for other purposes like hunting, worship or
burial grounds.
Second, SBMA and RP Energy claim that the SBMA Ecology Center verified with the
NCIP that the project site does not overlap with an ancestral domain. However, the
person, who allegedly did the verification, and the officer from the NCIP, who was
contacted in this alleged verification, were not presented in court. Assuming that
this verification did take place and that the SBMA Ecology Center determined that
there is no pendingapplication for a CADT covering the project site and that the
presently recognized CADT of Aeta communities is too far away from the project site,
it still does not follow that the CNO under Section 59 should have been dispensed
with. The acts of individual members ofa government agency, who allegedly
checked with the NCIP that the project site does not overlap with an ancestral
domain, cannot substitute for the CNO required by law. The reason is obvious. Such
posture would circumvent the noble and laudable purposes of the law in providing
the CNO as the appropriate mechanism in order to validly and officially determine
whether a particular project site does not overlap with an ancestral domain. It would
open the doors to abuse because a government agency can easily claim that it
checked with the NCIP regarding any application for an ancestral domain over a
proposed project site while stopping short of securing a CNO. To reiterate, the legally
mandated manner to verify if a project site overlaps with an ancestral domain is the
CNO,and not through personal verification by members of a government agency
with the NCIP.
Third, that the project site was formerlyused as the firing range of the U.S. Armed
Forces does not preclude the possibility that a present orfuture claim of ancestral
domain may be made over the aforesaid site. The concept of an ancestral domain
indicates that, even if the use ofan area was interrupted by the occupation of foreign
forces, it may still be validly claimed to be an ancestral domain. 211
Fourth, that the project site was subsequently classified by the SBMA as forming part
of an industrial zone does not exempt it from the CNO requirement. The change in
the classification of the land is not an exception to the CNO requirement under the
IPRA Law. Otherwise, government agencies can easily defeat the rights of ICCs/IPs
through the conversion of land use.
Fifth, SBMA argues that the CNO issued to HHIC should, for all intents and purposes,
be applicable to RP Energy. However, ascorrectly ruled by the appellate court, the
CNO issued to HHICs shipyard cannot be extended to RP Energys project site
because they involve two different locations although found within the same land
mass. The CNO issued in favor of HHIC clearly states that the findings in the CNO are
applicable only to the shipyard location of HHIC. Last, the steps taken by SBMA, in
securing a CNO prior to its lease agreement with HHIC, was the proper and prudent
course of action that should have been applied to the LDA with RP Energy. It does
notmatter that HHIC itself asked for the CNO prior to entering into a lease
agreement with SBMA, as claimed by SBMA, while RP Energy did not make such a
request because, as we have discussed, SBMA had the obligation, given the
surrounding circumstances, to secure a CNO in order to rule out the possibility that
the project site overlapped with an ancestral domain.
All in all, we find, applying the foregoing rule of action,that SBMA should have
secured a CNO before entering into the LDA with RP Energy. Considering that Section
59 is a prohibitory statutory provision, a violation thereof would ordinarily result in
the nullification of the contract.212 However, we rule that the harsh consequences of
such a ruling should not be applied to the case at bar.
The reason is that this is the first time that we lay down the foregoing rule of action
so much so that it would be inequitable to retroactively apply its effects with respect
to the LDA entered into between SBMA and RPEnergy. We also note that, under the
particular circumstances of this case, there is no showing that SBMA and RP Energy
had a deliberate or ill intent to escape, defeat or circumvent the mandate of Section
59 of the IPRA Law. On the contrary, they appear to have believed in good faith,
albeiterroneously, that a CNO was no longer needed because of the afore-discussed
defenses they raised herein. When the matter of lack of a CNO relative to the LDA
was brought to their attention, through the subject Petition for Writ ofKalikasan filed
by the Casio Group, RP Energy, with the endorsement of SBMA, promptly undertook
to secure the CNO, which was issued on October 31, 2012 and stated that the
project site does not overlap with any ancestral domain.213
Thus, absent proof to the contrary, weare not prepared to rule that SBMA and RP
Energy acted inbad faith or with inexcusable negligence, considering that the
foregoing rule of action has not heretofore been laiddown by this Court. As a result,
we hold that the LDA should notbe invalidated due to equitable considerations
present here.
By so ruling, we clarify that we reject RP Energys claim that the belated submission
of the CNO is an "over compliance" on its part. Quite the contrary, as we have
discussed, the CNO should have been first secured given the surrounding
circumstances of this case.
In the same vein, we reject SBMAs argument thatthe belated application for, and
submission of the CNO cured whatever defect the LDA had. We have purposely
avoided a ruling to the effect that a CNO secured subsequent to the concession,
lease, license, permit or production-sharing agreement will cure the defect. Such a
ruling would lead to abuse of the CNO requirement since the defect can be cured
anyway by a subsequent and belated application for a CNO. Government agencies
and third parties, either through deliberate intent or negligence, may view it as an
excuse not to timely and promptly secure the CNO, even when the circumstances
warrant the application for a CNO under the aforediscussed rule of action, tothe
damage and prejudice of ICCs/IPs. Verily, once the concession, lease, license or
permit is issued, or the agreement is entered into without the requisite CNO,
consequent damages will have already occurred if it later turns out that the site
overlaps with anancestral domain. This is so even if the ICCs/IPs can have the
project stopped upon discovery thatit overlapped with their ancestral domain under
the last proviso214 of Section 59. To prevent this evil, compliance with the CNO
requirement should be followed through the aforediscussed rule of action.
In sum, we rule that a CNO should have been secured prior to the consummation of
the LDA between SBMA and RP Energy. However, considering that this is the first
time we lay down the rule of action appropriate to the application of Section 59, we
refrain from invalidating the LDA due to equitable considerations.
VI.
Whether compliance with Section 27, inrelation to Section 26, of the LGC (i.e.,
approval of the concerned sanggunianrequirement) is necessary prior to the
implementation of the power plant project.
Sustaining the arguments ofthe Casio Group, the appellate court ruled that the
subject project cannot beconstructed and operated until after the prior approval of
the concerned sanggunianrequirement, under Section 27 of the LGC, is complied
with. Hence, the ECC and LDA could not be validly granted and entered into without
first complying with the aforesaid provision. It held that all the requisites for the
application of the aforesaid provision are present. As to the pertinent provisions of
RA 7227 or "TheBases Conversion and Development Act of 1992," which grants
broad powers of administration to the SBMA over the Subic Special Economic
Zone(SSEZ), the appellate court ruled that RA 7227 contains a provision recognizing
the basic autonomy ofthe LGUs which joined the SSEZ. Thus, the LGC and RA
7227should be harmonized whereby the concerned sanggunianspower to approve
under Section 27 must be respected.
The DENR impliedly agrees with the Casio Group that compliance with Section 27 is
still required but without clearly elaborating its reasons therefor.
The SBMA and RP Energy, however, argue that the prior approval of the concerned
sanggunianrequirement, under Section 27, is inapplicable to the subject project
because it is located within the SSEZ. The LGC and RA 7227 cannot be harmonized
because of the clear mandate of the SBMA to govern and administer all investments
and businesses within the SSEZ. Hence, RA 7227 should be deemed as carving out
an exception to the prior approval of the concerned sanggunianrequirement insofar
as the SSEZ is concerned.
We agree with the SBMA and RP Energy.
Preliminarily, we note that Sections 26 and 27 of the LGC contemplate two
requirements: (1) prior consultations and (2) prior approval of the concerned
sanggunian,viz:
SECTION 26. Duty of National Government Agencies in the Maintenance of
Ecological Balance. It shall be the duty of every national agency or government-
owned or -controlled corporation authorizing or involved in the planning and
implementation of any project or program that may cause pollution, climatic change,
depletion of non-renewable resources, loss of cropland, rangeland, or forest cover,
and extinction of animal or plant species, to consult with the local government units,
non governmental organizations, and other sectors concerned and explain the goals
and objectives of the project or program, its impact upon the peopleand the
community in terms of environmental or ecological balance, and the measures that
will be undertaken to prevent or minimize the adverse effects thereof. (Emphasis
supplied)
SECTION 27. Prior Consultations Required. No project or program shall be
implemented by government authorities unless the consultations mentioned in
Sections 2 (c) and 26 hereof are complied with, and prior approval of the sanggunian
concerned is obtained: Provided, That occupants in areas where such projects are to
be implemented shall not be evicted unless appropriate relocation sites have been
provided, in accordance with the provisions of the Constitution. (Emphasis supplied)
In the case at bar, the Casio Group only questions the alleged lack of the prior
approval of the concerned sanggunians under Section 27 of the LGC. Thus, we shall
limit our discussion to the resolution of this issue. (Parenthetically, we note that prior
consultations, as required by Section 26 of the LGC, appear to have been complied
with. This may begleaned from the EIS of RPEnergy which contains the
documentation of the extensive public consultations held, under the supervision of
the DENR-EMB, relative to the subject project, as required by the EIA process, 215 as
well as the socialacceptability policy consultations conducted by the SBMA, which
generated the document entitled "Final Report: Social Acceptability Process for RP
Energy, Inc.s 600-MW Coal Plant Project," as noted and discussed in an earlier
subsection.216)
We also note that the Casio Group argues that the approval of the concerned
sanggunian requirement was necessary prior to the issuance of the ECC and the
consummation of the LDA; the absence of which invalidated the ECC and LDA.
We shall no longer discuss at length whether the approval of the concerned
sanggunian requirement must be complied with prior to the issuance of an ECC. As
discussed in an earlier subsection, the issuance of an ECC does not, by itself, result
in the implementation of the project. Hence, the purpose or goal of Sections 26 and
27 of the LGC,like Section 59 of the IPRA Law, does not yet obtain and, thus, the ECC
may be issued evenwithout prior compliance with Sections 26 and 27 of the LGC.
We, thus, limit the discussion as to whether the approval of the concerned
sanggunian requirement should have been complied with prior to the consummation
of the LDA, considering that the LDA is part of the implementation of the subject
project and already vests in RP Energy the right to the use and enjoyment of the
project site, asin fact horizontal clearing activities were already undertaken by RP
Energy at the project site by virtue of the LDA.
The prior approval of the concerned sanggunian requirement is an attribute and
implementation of the local autonomy granted to, and enjoyed by LGUs under the
Constitution.217 The LGU has the duty to protect its constituents and interests in the
implementation of the project. Hence, the approval of the concerned sanggunian is
required by law to ensure thatlocal communities partake in the fruits of their own
backyard.218
For Section 27, in relation to Section 26, to apply, the following requisites must
concur: (1) the planning and implementation of the project or program is vested in a
national agency or government-owned and-controlled corporation, i.e., national
programs and/or projects which are to be implemented in a particular local
community; and (2) the project or program may cause pollution, climatic change,
depletion of non-renewable resources, loss of cropland, rangeland, or forest cover,
extinction of animal or plant species, or call for the eviction of a particular group of
people residing in the locality where the project will be implemented.219
In the case at bar, the two requisites are evidently present: (1) the planning and
implementation of the subject project involves the Department of Energy, DENR,
and SBMA; and (2) the subject project may cause pollution, climatic change,
depletion of non-renewable resources, loss of cropland, rangeland, or forest cover,
and extinction of animal or plant species,or call for the eviction of a particular group
of people residing in the locality where the project will be implemented. Hence,
Section 27 of the LGC should ordinarily apply.
It is not disputed that no approval was sought from the concerned
sangguniansrelative to the subject project.1a\^/phi1 Whatis more, the affected LGUs
have expressed their strong oppositions to the project through various sanggunian
resolutions.220 However, it is also undisputed that the subject project is located
within the SSEZ and, thus, under the territorial jurisdiction of the SBMA pursuant to
RA 7227.
Thus, we are tasked to determine the applicability of the prior approval of the
concerned sanggunian requirement, under Section 27 of the LGC, relative to a
project within the territorial jurisdiction of the SBMA under RA 7227.
RA 7227 was passed on March 13, 1992 in the aftermath of the Mount Pinatubo
eruption and the closure of the Subic Naval Base ofthe U.S. Armed Forces. It sought
to revivethe affected areas by creating and developing the SSEZ into a "self-
sustaining industrial, commercial, financial and investment center to generate
employment opportunities in and around the zone and to attract and promote
productive foreign investments."221 The SSEZ covered the City of Olangapo and
Municipality of Subic in the Province ofZambales and the lands and its contiguous
extensions occupied by the former U.S. Naval Base, which traversed the territories
of the Municipalities of Hermosa and Morong in the Province of Bataan. Under
Section 12 of RA 7227, the creation of the SSEZ was made subject to the
concurrence by resolution of the respective sanggunians of the City of Olongapo and
the Municipalities of Subic, Morong and Hermosa, viz:
SECTION 12. Subic Special Economic Zone. Subject to the concurrence by
resolution of the sangguniang panlungsod of the City of Olongapo and the
sangguniang bayanof the Municipalities of Subic, Morong and Hermosa, there is
hereby created a Special Economic and Free-port Zone consisting of the City of
Olongapo and the Municipality of Subic, Province of Zambales, the lands occupied by
the Subic Naval Base and its contiguous extensions as embraced, covered, and
defined by the 1947 Military Bases Agreement between the Philippines and the
United States of America as amended, and within the territorial jurisdiction of the
Municipalities of Morong and Hermosa, Province of Bataan, hereinafter referred to as
the Subic Special Economic Zone whose metes and bounds shall be delineated in a
proclamation to be issued by the President of the Philippines. Within thirty (30) days
after the approval of this Act, each local government unit shall submit its resolution
of concurrence to join the Subic Special Economic Zone to the office of the President.
Thereafter, the President of the Philippines shall issue a proclamation defining the
metes and bounds of the Zone as provided herein.
Subsequently, the aforesaid sanggunians submitted their respective resolutions of
concurrence and the President issued Presidential Proclamation No. 532, Series of
1995, defining the metes and bounds of the SSEZ.
In Executive Secretary v. Southwing Heavy Industries, Inc.,222 we described the
concept of SSEZ as a Freeport:
The Freeport was designed to ensurefree flow or movement of goods and capital
within a portion of the Philippine territory in order to attract investors to invest their
capital in a business climate with the least governmental intervention. The concept
ofthis zone was explained by Senator Guingona in this wise:
Senator Guingona. Mr. President, the special economic zone is successful in many
places, particularly Hong Kong, which is a free port. The difference between a special
economic zone and an industrial estate is simply expansive in the sense that the
commercial activities, including the establishment of banks, services, financial
institutions, agro-industrial activities, maybe agriculture to a certain extent.
This delineates the activities that would have the least of government intervention,
and the running of the affairs of the special economic zone would be run principally
by the investors themselves, similar toa housing subdivision, where the subdivision
owners elect their representatives to run the affairs of the subdivision, toset the
policies, to set the guidelines.
We would like to see Subic area converted into a little Hong Kong, Mr. President,
where there is a hub of free port and free entry, free duties and activities to a
maximum spur generation of investment and jobs.
(4) To construct, acquire, own, lease, operate and maintain on its
own or through contract, franchise, license permits bulk purchase
from the private sector and build-operate transfer scheme or joint-
venture the required utilities and infrastructurein coordination with
local government units and appropriate government agencies
concerned and inconformity with existing applicable laws therefor;

(5) To adopt, alter and use a corporate seal; to contract, lease, sell,
While the investor is reluctant to come in the Philippines, as a rule, because of red
dispose, acquire and own properties; to sue and be sued in order
tape and perceived delays, we envision this special economic zone to be an area
to carry out its duties and functions as provided for in this Act and
where there will be minimum government interference.
to exercise the power of eminent domain for public use and public
purpose;
The initial outlay may not only come from the Government or the Authority as
envisioned here, but from them themselves, because they would be encouraged to
(6) Within the limitation provided by law, to raise and/or borrow
invest not only for the land but also for the buildings and factories. As long as they
the necessary funds from local and international financial
are convinced that in such an area they can do business and reap reasonable profits,
institutions and to issue bonds, promissory notes and other
thenmany from other parts, both local and foreign, would invest, Mr.
securities for that purpose and to secure the same by guarantee,
President.223 (Emphasis in the original)
pledge, mortgage deed of trust, or assignment of its properties
held by the Subic Authority for the purpose of financing its projects
To achieve the above-mentioned purposes, the law created SBMA to administer the and programs within the framework and limitation of this Act;
SSEZ. In the process, SBMA was granted broad and enormous powers as provided
for under Section 13(b) of RA 7227:
(7) To operate directly or indirectly or license tourism related
activities subject to priorities and standards set by the Subic
Sec. 13. The Subic Bay Metropolitan Authority. Authority including games and amusements, except horse racing,
dog racing and casino gambling which shall continue to be
licensed by the Philippine Amusement and Gaming Corporation
xxxx
(PAGCOR) upon recommendation of the Conversion Authority; to
maintain and preserve the forested areas as a national park;
(b) Powers and functions of the Subic Bay Metropolitan Authority - The
Subic Bay Metropolitan Authority, otherwise knownas the Subic Authority,
(8) To authorize the establishment ofappropriate educational and
shall have the following powers and function: (1) To operate, administer,
medical institutions;
manage and develop the ship repair and ship building facility, container
port, oil storage and refueling facility and Cubi Air Base within the Subic
Special Economic and Free-port Zone as a free market in accordance with (9) To protect, maintain and develop the virgin forests within the
the policies set forth in Section 12 of this Act; baselands, which will be proclaimed as a national park and subject
to a permanent total log ban, and for this purpose, the rules and
regulations of the Department of Environment and Natural
(2) To accept any local or foreign investment, business or
Resources and other government agencies directly involved in the
enterprise, subject only to such rules and regulations to be
above functions shall be implemented by the Subic Authority;
promulgated by the Subic Authority in conformity with the policies
of the Conversion Authority without prejudice to the
nationalization requirements provided for in the Constitution; (10) To adopt and implement measures and standards for
environmental pollution control of all areas within its territory,
including but not limited to all bodies of water and to enforce the
(3) To undertake and regulate the establishment, operation and
same. For which purpose the Subic Authority shall create an
maintenance of utilities, other services and infrastructure in the
Ecology Center; and
Subic Special Economic Zone including shipping and related
business, stevedoring and port terminal services or concessions,
incidental thereto and airport operations in coordination with the (11) To exercise such powers as may be essential, necessary or
Civil Aeronautics Board, and to fix just and reasonable rates, fares incidental to the powers granted to it hereunder as well as to carry
charges and other prices therefor; out the policies and objectives of this Act. (Emphasis supplied) The
Implementing Rules of RA 7227 further provide:

Sec. 11. Responsibilities of the SBMA. Other than the powers and functions
prescribed in Section 10 of these Rules, the SBMA shall have the following
responsibilities:
(a) The SBMA shall exercise authority and jurisdiction over all economic activity
within the SBF224
xxxx
(f) Consistent with the Constitution, the SBMA shall have the following powers to
enforce the law and these Rules in the SBF:
xxxx
(8) to issue, alter, modify, suspend or revoke for cause, any permit, certificate,
license, visa or privilege allowed under the Act or these Rules;
xxxx
(11) to promulgate such other rules, regulations and circulars as may be necessary,
proper or incidental to carry out the policies and objectives of the Act, these Rules,
as well as the powers and duties of the SBMA thereunder.225
As can be seen, the SBMA was given broad administrative powers over the SSEZ and
these necessarily include the power to approve or disapprove the subject project,
which is within its territorial jurisdiction. But, as previously discussed, the LGC grants
the concerned sangguniansthe power to approve and disapprove this same project.
The SBMA asserts that its approval of the project prevails over the apparent
disapproval of the concerned sanggunians. There is, therefore, a real clash between
the powers granted under these two laws.
Which shall prevail?
Section 12 of RA 7227 provides:
Sec. 12. Subic Special Economic Zone. x x x
The abovementioned zone shall be subjected to the following policies:
(a) Within the framework and subject to the mandate and limitations of the
Constitution and the pertinent provisions of the Local Government Code, the Subic
Special Economic Zone shall bedeveloped into a self-sustaining, industrial,
commercial, financial and investment center to generate employment opportunities
in and around the zone and to attract and promote productive foreign investments;
xxxx
(i) Except as herein provided, the local government units comprising the Subic
Special Economic Zone shall retain their basic autonomy and identity. The cities shall
be governed by their respective charters and the municipalities shall operate and
function in accordance with Republic Act No. 7160, otherwise known as the Local
Government Code of 1991. (Emphasis supplied)
This section sets out the basic policies underlying the creation of the SSEZ. Indeed,
as noted by the appellate court, Section 12(i) expressly recognizes the basic
autonomy and identity of the LGUscomprising the SSEZ. However, the clause
"[e]xcept as herein provided" unambiguously provides that the LGUs do not retain
their basic autonomy and identitywhen it comes to matters specified by the law as
falling under the powers, functions and prerogatives of the SBMA.
In the case at bar, we find that the power to approve or disapprove projects within
the SSEZ is one such power over which the SBMAs authority prevails over the LGUs
autonomy. Hence, there isno need for the SBMA to secure the approval of the
concerned sangguniansprior to the implementation of the subject project.
This interpretation is based on the broad grant of powers to the SBMA over all
administrative matters relating to the SSEZ under Section 13 of RA 7227, as afore-
discussed. Equally important, under Section 14, other than those involving defense
and security, the SBMAs decision prevails in case of conflict between the SBMA and
the LGUs in all matters concerning the SSEZ, viz.:
Sec. 14. Relationship with the Conversion Authority and the Local Government Units.
(a) The provisions of existing laws, rules and regulations to the contrary
notwithstanding, the Subic Authority shall exercise administrative powers,
rule-making and disbursement of funds over the Subic Special Economic
Zonein conformity with the oversight function of the Conversion Authority.
(b) In case of conflict between the Subic Authority and the local
government units concerned on matters affecting the Subic Special
Economic Zone other than defense and security, the decision of the
SubicAuthority shall prevail. (Emphasis supplied)
Clearly, the subject project does not involve defense or security, but rather business
and investment to further the development of the SSEZ. Such is in line with the
objective of RA 7227 to develop the SSEZ into a self-sustaining industrial,
commercial, financial and investment center. Hence, the decision of the SBMA would
prevail over the apparent objections of the concerned sanggunians of the LGUs.
Significantly, the legislative deliberations on RA 7227, likewise, support and confirm
the foregoing interpretation. As earlier noted, Section 13 b(4) of RA 7227 provides:
Sec. 13. The Subic Bay Metropolitan Authority.
xxxx
(b) Powers and functions of the Subic Bay Metropolitan Authority - The Subic Bay
Metropolitan Authority, otherwise knownas the Subic Authority, shall have the
following powers and function: x x x x
(4) To construct, acquire, own, lease, operate and maintain on its own or through
contract, franchise, license permits bulk purchase from the private sector and build-
operate transfer scheme or joint-venture the required utilities and infrastructure in
coordination with local government units and appropriate government agencies
concerned and in conformity with existing applicable laws therefor;
In the Senate, during the period of amendments, when the provision which would
eventually become the afore-quoted Section 13 b(4) of RA 7227 was under
consideration, the following exchanges took place:
Senator Laurel. Mr. President.
The President. Senator Laurel is recognized.
Senator Laurel. Relative to line 27 up to line 31 of page 16, regarding the provision
to the effect that the Authoritywill have the following functions: "to construct,
acquire, own, etcetera," that is all right.
My motion is that we amend this particular line, starting from the word "structures",
by deleting the words that follow on line 31, which states: "in coordination with local
government unitsand", and substitute the following in place of those words:
"SUBJECT TO THE APPROVAL OF THE SANGGUNIAN OF THE AFFECTED LOCAL
GOVERNMENT UNITS AND IN COORDINATION WITH."
So, this paragraph will read, as follows: "to construct, own, lease, operate, and
maintain on its own or through contract, franchise, license permits, bulk purchase
from the private sector and build-operate-transfer scheme or joint venture the
required utilities and infrastructure SUBJECT TO THE APPROVAL OF THE
SANGGUNIAN OF THE AFFECTED LOCAL GOVERNMENT UNITS AND IN coordination
with appropriate government agencies concerned and in conformity with existing
applicable laws therefor."
The President. What does the Sponsor say?
Senator Shahani. I believe this would cripple the Authority. I would like to remind our
Colleagues that in the Board of Directors, the representatives of the local
government units that agree to join with the Subic Special Economic Zone will be
members of the Board so that they will have a say, Mr. President. But if we say
"subject," that is a very strong word. It really means that they will be the ones to
determine the policy.
So, I am afraid that I cannot accept this amendment, Mr. President.
Senator Laurel. May I respond or react, Mr. President.
The President. Yes.
Senator Laurel. The Constitution is there,very categorical inthe promotion and
encouragement of local autonomy, and mandating Congress to enact the necessary
Local Government Code with emphasis on local autonomy.
We have now Section 27 of the new Local Government Code which actually provides
that for every projectin any local government territory, the conformity or
concurrence of the Sanggunian of every such local government unit shall be secured
in the form of resolutionthe consent of the Sanggunian.
The President. Well, both sides have already been heard. There is the Laurel
amendment that would make the power of the Subic Bay Metropolitan Authority to
construct, acquire, own, lease, operate and maintain on its own or through contract,
franchise, license, permits, bulk purchases from private sector, buildoperate-and-
transfer scheme, or joint venture, the required utilities and infrastructure, subject to
approval by the appropriate Sanggunian of the local government concerned.
This amendment to the amendment has been rejected by the Sponsor. So, we are
voting now on this amendment.
As many as are in favor of the Laurel amendment, say Aye. (Few Senators: Aye.)
Those who are against the said amendment, say Nay. (Several Senators: Nay.)
Senator Laurel. Mr. President, may I ask for a nominal voting.
The President. A nominal voting should beupon the request of one-fifth of the
Members of the House, but we can accommodate the Gentleman by asking for a
division of the House. Therefore, those in favor of the Laurel amendment, please
raise their right hands. (Few Senators raised their right hands.)
Senator Laurel. I was asking, Mr. President, for a nominal voting. The President. A
nominal voting can be had only upon motion ofone-fifth of the Members of the Body.
Senator Laurel. That is correct, Mr. President. But this issuch an important issue
being presented to us, because this question is related to the other important issue,
which is: May an elected public official of a particular government unit, such as a
town or municipality, participate as a member of the Board of Directors of this
particular zone.
The President. The ruling of the Chair stands. The division of the House is hereby
directed.
As many as are infavor of the Laurel amendment, please raised (sic) their right
hands. (Few Senators raised their right hands.)
As many as are against the said amendment, please do likewise. (Several Senators
raised their right hands.)
The amendment is lost.226 (Emphasis supplied)
Indubitably, the legislature rejected the attempts to engraft Section 27s prior
approval of the concerned sanggunian requirement under the LGC into RA 7227.
Hence, the clear intent was to do awaywith the approval requirement of the
concerned sangguniansrelative to the power ofthe SBMA to approve or disapprove a
project within the SSEZ.
The power to create the SSEZ is expressly recognized in Section 117 of the LGC, viz.:
TITLE VIII.
Autonomous Special Economic Zones
SECTION 117. Establishment of Autonomous Special Economic Zones. The Whether the validity of the third amendment to the ECC can be resolved by the
establishment by law of autonomous special economic zones in selected areas of Court.
the country shall be subject to concurrence by the local government units included
therein.
The Casio Group argues that the validity of the third amendment should have been
resolved by the appellate court because it is covered by the broad issues set during
When the concerned sanggunians opted to join the SSEZ, they were, thus, fully the preliminary conference.
aware that this would lead to some diminution of their local autonomy in order to
gain the benefits and privileges of being a part of the SSEZ.
RP Energy counters that this issue cannot be resolved because it was expressly
excluded during the preliminary conference.
Further, the point of Senator Shahani that the representation of the concerned LGUs
in the Board of Directors will compensate for the diminution of their local autonomy
The appellate court sustained the position of RP Energy and ruled that this issue was
and allow them to be represented in the decision-making of the SBMA is not lost on
not included in the preliminary conference so that it cannot be resolved without
us. This is expressly provided for in Section 13(c) of RA 7227, viz:
violating the right todue process of RP Energy.

SECTION 13. The Subic Bay Metropolitan Authority.

We agree with the appellate court.

xxxx
(c) Board of Directors. The powers of the Subic Authority shall be vested in and
exercised by a Board of Directors, hereinafter referred to as the Board, which shall
be composed of fifteen (15) members, to wit:
(1) Representatives of the local government units that concur to join the
Subic Special Economic Zone;
Indeed, the issue of the validity of the third amendment to the ECC was not part of
the issues set during the preliminary conference, as it appears at that time that the
application for the third amendment was still ongoing. The following clarificatory
questions during the aforesaid conference confirm this, viz.:
J. LEAGOGO:
So what are you questioning in your Petition?

(2) Two (2) representatives from the National Government;

ATTY. RIDON:

(3) Five (5) representatives from the private sector coming from the present
We are questioning the validity of the amendment, Your Honor.
naval stations, public works center, ship repair facility, naval supply depot
and naval air station; and
J. LEAGOGO:
(4) The remaining balance to complete the Board shall be composed of
representatives from the business and investment sectors. (Emphasis Which amendment?
supplied)
ATTY. RIDON:
SBMAs undisputed claim is that, during the board meeting when the subject project
was approved, exceptfor one, all the representatives of the concerned LGUs were
From 2 x 150 to 1 x 300, Your Honor.
present and voted to approve the subject project. 227 Verily, the wisdom of the law
creating the SSEZ; the wisdom of the choice of the concerned LGUs to join the SSEZ;
and the wisdom ofthe mechanism of representation of the concerned LGUs in the J. LEAGOGO:
decision-making process of the SBMA are matters outside the scope of the power of
judicial review. We can only interpret and apply the law as we find it.
Your Petition does not involve the 2 x 300 which is still pending with the DENR.
Because you still have remedies there, you can make your noise there, you can
In sum, we find that the implementation of the project is not subject to the prior question it to your heart[]s content because it is still pending
approval of the concerned sanggunians, under Section 27 of the LGC, and the
SBMAs decision to approve the project prevails over the apparent objections of the
xxxx
concerned sangguniansof the LGUs, by virtue ofthe clear provisions of RA 7227.
Thus, there was no infirmity when the LDA was entered into between SBMA and RP
Energy despite the lack of approval of the concerned sanggunians. VII. J. LEAGOGO:
Atty. Ridon, I go back to my question. Were not yet talking of the legal points here. (a) Environmental cases, such asa petition for a writ of kalikasan, should
Im just talking of what are you questioning. You are questioning the 1 x 300? not, in general,be litigated viaa representative, citizen or class suit because
of the danger of misrepresenting the interests and thus, barring future
action due to res judicata of those not actually present in the prosecution
ATTY. RIDON:
of the case, either because they do not yet exist, like the unborn
generations, or because the parties bringing suit do not accurately
Yes, Your Honor. represent the interests ofthe group they represent or the class to which
they belong. As an exception, such representative, citizen or class suit may
be allowed subject to certain conditions; and
J. LEAGOGO:

(b) The amendments to the ECC, granted by the DENR in favor of RP

Because it was 2 x 150 and then 1 x 300?
Energy, are void for failure to submit a new EIS in support of the
applications for these amendments to the subject ECC, and a petition for
ATTY. RIDON: writ of kalikasanis not the proper remedy to raise a defect inthe ECC.

Yes, Your Honor. We disagree.

J. LEAGOGO: A.

Up to that point? Justice Leonens proposition that environmental cases should not, in general, be
litigated via a representative, citizen or class suit is both novel and ground-breaking.
However, it isinappropriate to resolve such an important issue in this case, in view of
ATTY. RIDON:
the requisites for the exercise of our power of judicial review, because the matter
was not raised by the parties so that the issue was not squarely tackled and fully
Yes, Your Honor. ventilated. The proposition will entail, as Justice Leonen explains, an abandonment
or, at least, a modification of our ruling in the landmark case of Oposa v.
Factoran.229 It will also require an amendment or a modification of Section 5 (on
J. LEAGOGO:
citizen suits), Rule 2 ofthe Rules of Procedure for Environmental Cases. Hence, it is
more appropriate to await a case where such issues and arguments are properly
Because there is no amended ECC yet for the 2 x 300 or 600. Thats clear enough raisedby the parties for the consideration of the Court.
for all of us.
B.
ATTY. RIDON:
Justice Leonen reasons that the amendments to the subject ECC are void because
Yes, Your Honor.228 the applications therefor were unsupported by anEIS, as required by PD 1151 and PD
1586. The claim is made that an EIS is required by law, even if the amendment to
the ECC is minor, because an EIS is necessary to determine the environmental
Given the invocation of the right to due process by RP Energy, we must sustain the
impact of the proposed modifications to the original project design. The DENR rules,
appellate courts finding that the issue as to the validity of the third amendment
therefore, which permit the modification of the original project design without the
cannot be adjudicated in this case.
requisite EIS, are void for violating PD 1151 and PD 1586.

Refutation of the Partial Dissent.

We disagree.

Justice Leonen partially dissents from the foregoing disposition on the following
Indeed, Section 4 of PD 1151 sets out the basic policy of requiring an EIS in every
grounds:
action, project or undertaking that significantly affects the quality of the
environment, viz:

SECTION 4. Environmental Impact Statements. Pursuant to the above enunciated

policies and goals, all agencies and instrumentalities of the national government,
including government-owned or -controlled corporations, as well as private
corporations, firms and entities shall prepare, file and include in every action,
projector undertaking which significantly affects the quality of the environmenta
detailed statement on
 (a) the environmental impact of the proposed action, project or
undertaking;
(b) any adverse environmental effect which cannot be avoided should the
proposal be implemented;
(c) alternative to the proposed action;
(d) a determination that the short-term uses of the resources of the
environment are consistent with the maintenance and enhancement of the
long-term productivity of the same; and
(e) whenever a proposal involves the use of depletable or nonrenewable
resources, a finding must be made that such use and commitment are
warranted.
Before an environmental impact statement is issued by a lead agency, all agencies
having jurisdiction over, or special expertise on, the subject matter involved shall
comment on the draft environmental impact statement made by the lead agency
within thirty (30) days from receipt of the same. (Emphasis supplied)
As earlier stated, the EIS was subsequently developed and strengthened through PD
1586 which established the Philippine Environmental Impact Statement System.
Sections 4 and 5 of PD 1586 provide:
SECTION 4. Presidential Proclamation of Environmentally Critical Areas and
Projects.1avvphi1 The President of the Philippines may, on his own initiative or upon
recommendation of the National Environmental Protection Council, by proclamation
declare certain projects, undertakings or areas in the country as environmentally
critical. No person, partnership or corporation shall undertake or operate any such
declared environmentally critical project or area without first securing an
Environmental Compliance Certificate issued by the President or his duly authorized
representative. For the proper management of said critical project or area, the
President may by his proclamation reorganize such government offices, agencies,
institutions, corporations or instrumentalities including the re-alignment of
government personnel, and their specific functions and responsibilities.
For the same purpose as above, the Ministry of Human Settlements shall: (a)
prepare the proper land or water use pattern for said critical project(s) or area(s); (b)
establish ambient environmental quality standards; (c) develop a program of
environmental enhancement or protective measures against calamituous factors
such as earthquake, floods, water erosion and others, and (d) perform such other
functions as may be directed by the President from time to time.
SECTION 5. Environmentally Non-Critical Projects. All other projects, undertakings
and areas not declared by the President as environmentally critical shall be
considered as non-critical and shall not be required to submit an environmental
impact statement. The National Environmental Protection Council, thru the Ministry
of Human Settlements may however require non-critical projects and undertakings
to provide additional environmental safeguards as it may deem necessary.
(Emphasis supplied)
These laws were, in turn, implemented by DAO 2003-30 and the Revised Manual.
As correctly noted by Justice Leonen,Presidential Proclamation No. 2146 was
subsequently issued which, among others, classified fossil-fueled power plants as
environmentally critical projects.
In conformity with the above-quoted laws and their implementing issuances, the
subject project, a coal power plant, was classified by the DENR as an
environmentally critical project, new and single. Hence, RP Energy was required to
submit an EIS in support of its application for an ECC. RP Energy thereafter complied
with the EIS requirement and the DENR, after review, evaluation and compliance
with the other steps provided in its rules, issued an ECC in favor of RP Energy. As can
be seen, the EIS requirement was duly complied with.
Anent Justice Leonens argument thatthe subsequent amendments to the ECC were
void for failure to prepare and submit a new EIS relative to these amendments, it is
important to note thatPD 1586 does not state the procedure to be followed when
there is an application for an amendment to a previously issued ECC. There is
nothing in PD 1586 which expressly requires an EIS for an amendment to an ECC.
In footnote 174 of the ponencia, it is stated:
Parenthetically, we must mention that the validity of the rules providing for
amendments to the ECC was challenged by the Casio Group on the ground that it is
ultra vires before the appellate court. It argued that the laws governing the ECC do
not expressly permit the amendment of an ECC. However, the appellate court
correctly ruled that the validity of the rules cannot be collaterally attacked.
Besides,the power of the DENR to issue rules on amendments of an ECC is
sanctioned under the doctrine of necessary implication. Considering that the greater
power todeny or grant an ECC is vested by law in the President or his authorized
representative, the DENR, there is no obstacle to the exercise of the lesser or
implied power to amend the ECC for justifiable reasons. This issue was no longer
raised before this Court and, thus, we no longertackle the same here.
Because PD 1586 did not expressly provide the procedure to be followed in case of
an application for an amendment toa previously issued ECC, the DENR exercised its
discretion, pursuant to its delegated authority to implement this law, in issuing DAO
2003-30 and the Revised Manual.
Justice Leonens argument effectively challenges the validity of the provisions in
DAO 2003-30 and the Revised Manual relative to amendments to an ECC for being
contrary to PD 1151 and 1586.
We disagree.
First, to repeat, there is nothing in PD 1586 which expressly requires an EIS for an
amendment to an ECC.
Second, as earlier noted, the proposition would constitute a collateral attack on the
validity of DAO 2003-30 and the Revised Manual, which is not allowed under the
premises. The Casio Group itself has abandoned this claim before this Court so that
the issue is not properly before this Court for its resolution.
Third, assuming that a collateral attack on the validity of DAO 2003-30 and the
Revised Manual can be allowed in this case, the rules on amendments appear to be
reasonable, absent a showing of grave abuse of discretion or patent illegality.
Essentially, the rules take into consideration the nature of the amendment in
determining the proper Environmental Impact Assessment (EIA) document type that
the project proponent will submit in support of its application for an amendment to
its previously issued ECC. A minor amendment will require a less detailed EIA
document type, like a Project Description Report (PDR), while a major amendment
will require a more detailed EIA document type, like an Environmental Performance
Report and Management Plan (EPRMP) or even an EIS. 230
The rules appear to be based on the premise that it would be unduly burden some or
impractical to require a project proponent to submit a detailed EIA document type,
like an EIS, for amendments that, upon preliminary evaluation by the DENR, will not
cause significant environmental impact. In particular, as applied to the subject
project, the DENR effectively determined that it is impractical to requireRP Energy
to, in a manner of speaking, start from scratch by submitting a new EIS in support of
its application for the first amendment to its previously issued ECC, considering that
the existing EIS may be supplemented by an EPRMP to adequately evaluate the
environmental impact of the proposed modifications under the first amendment. The
same reasoning may be applied to the PDR relative to the second amendment. As
previously discussed, the Casio Group failed to provethat the EPRMP and PDR were
inadequate to assess the environmental impact of the planned modifications under
the first and second amendments, respectively. On the contrary, the EPRMP and PDR
appeared to contain the details of the planned modifications and the corresponding
adjustments to bemade in the environmental management plan or mitigating
measures inorder to address the potential impacts of these planned modifications.
Hence, absent sufficient proof, there is no basis to conclude that the procedure
adopted by the DENR was done with grave abuse of discretion.
Justice Leonens proposition would effectively impose a stringent requirement of an
EIS for each and every proposed amendment to an ECC, no matter how minor the
amendment may be. While this requirement would seem ideal, in order to ensure
that the environmental impact of the proposed amendment is fully taken into
consideration, the pertinent laws do not, however, expressly require that such a
procedure be followed.As already discussed, the DENR appear to have reasonably
issued DAO 2003-30 and the Revised Manualrelative to the amendment process of
an ECC, by balancing practicality vis--vis the need for sufficient information in
determining the environmental impact of the proposed amendment to an ECC. In
fine, the Court cannot invalidate the rules which appear to be reasonable, absent a
showing of grave abuse of discretion or patent illegality.
We next tackle Justice Leonens argument that a petition for certiorari,and not a writ
of kalikasan,is the proper remedy to question a defect in an ECC.
In general, the proper procedure to question a defectin an ECC is to follow the
appeal process provided in DAO 2003-30 and the Revised Manual. After complying
with the proper administrative appeal process, recourse may be made to the courts
in accordance with the doctrine of exhaustion of administrative remedies. However,
as earlier discussed, in exceptional cases, a writ of kalikasan may be availed of to
challenge defects in the ECC providedthat (1) the defects are causally linked or
reasonably connected to an environmental damage of the nature and
magnitudecontemplated under the Rules on Writ of Kalikasan, and (2) the case does
not violate, or falls under an exception to, the doctrine of exhaustion of
administrative remedies and/or primary jurisdiction.
As previously discussed, in the case at bar, only the allegation with respect to the
lack of an EIA relative to the first and second amendments to the subject ECC may
be reasonably connected to such an environmental damage. Further, given the
extreme urgency of resolving the issue due to the looming power crisis, this case
may be considered as falling under an exception to the doctrine of exhaustion of
administrative remedies. Thus, the aforesaid issue may be conceivably resolved in a
writ of kalikasan case.
More importantly, we have expressly ruled that this case is an exceptional case due
to the looming power crisis, so that the rules of procedure may be suspended in
order to address issues which, ordinarily, the Court would not consider proper in a
writ of kalikasan case. Hence, all issues, including those not proper in a writ of
kalikasan case, were resolved here in order to forestall another round of protracted
litigation relative to the implementation of the subject project.
Conclusion
We now summarize our findings:
1. The appellate court correctly ruled that the Casio Group failed to
substantiate its claims thatthe construction and operation of the power
plant will cause environmental damage of the magnitude contemplated
under the writ of kalikasan. On the other hand, RP Energy presented
evidenceto establish that the subject project will not cause grave
environmental damage, through its Environmental Management Plan, which
will ensure thatthe project will operate within the limits of existing
environmental laws and standards;
2. The appellate court erred when it invalidated the ECC on the ground of
lack of signature of Mr. Aboitiz in the ECCs Statement of Accountability
relative to the copy of the ECC submitted by RP Energy to the appellate
court. While the signature is necessary for the validity of the ECC, the
particular circumstances of this case show that the DENR and RP Energy
were not properly apprised of the issue of lack of signature in order for
them to present controverting evidence and arguments on this point, as the
issue only arose during the course of the proceedings upon clarificatory
questions from the appellate court. Consequently, RP Energy cannot be
faulted for submitting the certified true copy of the ECC only after it learned
that the ECC had been invalidatedon the ground of lack of signature in the
January 30, 2013 Decision of the appellate court. The certified true copy of
the ECC, bearing the signature of Mr. Aboitiz in the Statement of
Accountability portion, was issued by the DENR-EMB, and remains
uncontroverted. It showed that the Statement of Accountability was signed
by Mr. Aboitiz on December 24, 2008. Because the signing was done after
the official release of the ECC on December 22, 2008, wenote that the
DENR did not strictly follow its rules, which require that the signing of the
Statement of Accountability should be done before the official release of
the ECC. However, considering that the issue was not adequately argued
norwas evidence presented before the appellate court on the
circumstances at the time of signing, there is insufficient basis to conclude
that the procedure adoptedby the DENR was tainted with bad faith or
inexcusable negligence. We remind the DENR, however, to be more
circumspect in following its rules. Thus, we rule that the signature
requirement was substantially complied with pro hac vice.
3. The appellate court erred when it ruled that the first and second
amendments to the ECC were invalid for failure to comply with a new EIA
and for violating DAO 2003-30 and the Revised Manual. It failed to properly
consider the applicable provisions in DAO 2003-30 and the Revised Manual
for amendment to ECCs. Our own examination of the provisions on
amendments to ECCs in DAO 2003-30 and the Revised Manual, as wellas
the EPRMP and PDR themselves, shows that the DENR reasonably exercised
its discretion in requiring an EPRMP and a PDR for the first and second
amendments, respectively. Through these documents, which the DENR
reviewed, a new EIA was conducted relative to the proposed project
modifications. Hence, absent sufficient showing of grave abuse of discretion
or patent illegality, relative to both the procedure and substance of the
amendment process, we uphold the validity of these amendments;
4. The appellate court erred when it invalidated the ECC for failure to
comply with Section 59 of the IPRA Law.1wphi1 The ECC is not the license
or permit contemplated under Section 59 of the IPRA Law and its
implementing rules. Hence, there is no necessity to secure the CNO under
Section 59 before an ECC may be issued, and the issuance of the subject
ECC without first securing the aforesaid certification does not render it
invalid;
5. The appellate court erred when it invalidated the LDA between SBMA and
RP Energy for failure to comply withSection 59 of the IPRA Law. While we
find that a CNO should have been secured prior to the consummation of the
LDA between SBMA and RP Energy, considering that this is the first time we
lay down the rule of action appropriate to the application of Section 59, we
refrain from invalidating the LDA for reasons of equity;
SO ORDERED.
MARIANO C. DEL CASTILLO
Associate Justice
6. The appellate court erred when it ruled that compliance with Section 27,
in relation to Section 26, of the LGC (i.e., approval of the concerned
sanggunian requirement) is necessary prior to issuance of the subjectECC.
The issuance of an ECC does not, by itself, result inthe implementation of
the project. Hence, there is no necessity to secure prior compliance with
the approval of the concerned sanggunian requirement, and the issuance of
the subject ECC without first complying with the aforesaid requirement
does not render it invalid. The appellate court also erred when it ruled that
compliance with the aforesaid requirement is necessary prior to the
consummation of the LDA. By virtue of the clear provisions of RA 7227, the
project is not subject to the aforesaid requirement and the SBMAs decision
to approve the project prevails over the apparent objections of the
concerned sanggunians. Thus, the LDA entered into between SBMA and RP
Energy suffers from no infirmity despite the lack of approval of the
concerned sanggunians; and
7. The appellate court correctly ruled thatthe issue as to the validity of the
third amendment to the ECC cannot be resolved in this case because it was
not one of the issues set during the preliminary conference, and would,
thus, violate RP Energys right to due process. WHEREFORE, the Court
resolves to:
1. DENY the Petition in G.R. No. 207282; and
2. GRANT the Petitions in G.R.Nos. 207257, 207366 and 207276:
2.1. The January 30, 2013 Decision and May 22, 2013
Resolution of the Court of Appeals in CA-G.R. SP No.
00015 are reversed and set aside;
2.2. The Petition for Writ of Kalikasan, docketed as CA-
G.R. SP No. 00015, is denied for insufficiency of evidence;
2.3. The validity of the December 22, 2008 Environmental
Compliance Certificate, as well as the July 8, 2010 first
amendment and the May 26, 2011 second amendment
thereto, issued by the Department of Environment and
Natural Resources in favor of Redondo Peninsula Energy,
Inc., are upheld; and
2.4. The validity of the June 8, 2010 Lease and
Development Agreement between Subic Bay Metropolitan
Authority and Redondo Peninsula Energy, Inc. is upheld.
Manila Electric Company vs. Lim, 632 SCRA 195, G.R. No. 184769 October
5, 2010
Writ of Habeas Data; Right to Privacy; Labor Law; Transfers; An employees plea that
she be spared from complying with her employers Memorandum directing her
reassignment under the guise of a quest for information or data allegedly in
possession of petitioners, does not fall within the province of a writ of habeas data;
The habeas data rule, in general, is designed to protect by means of judicial
complaint the image, privacy, honor, information, and freedom of information of an
individualit is meant to provide a forum to enforce ones right to the truth and to
informational privacy, thus safeguarding the constitutional guarantees of a persons
right to life, liberty and security against abuse in this age of information technology.
Respondents plea that she be spared from complying with MERALCOs
Memorandum directing her reassignment to the Alabang Sector, under the guise of
a quest for information or data allegedly in possession of petitioners, does not fall
within the province of a writ of habeas data. Section 1 of the Rule on the Writ of
Habeas Data provides: Section1. Habeas Data.The writ of habeas data is a
remedy available to any person whose right to privacy in life, liberty or security is
violated or threatened by an unlawful act or omission of a public official or employee
or of a private individual or entity engaged in the gathering, collecting or storing of
data or information regarding the person, family, home and correspondence of the
aggrieved party. (emphasis and underscoring supplied) The habeas data rule, in
general, is designed to protect by means of judicial complaint the image, privacy,
honor, information, and freedom of information of an individual. It is meant to
provide a forum to enforce ones right to the truth and to informational privacy, thus
safeguarding the constitutional guarantees of a persons right to life, liberty and
security against abuse in this age of information technology.
Same; Same; Same; Like the writ of amparo, habeas data was conceived as a
response, given the lack of effective and available remedies, to address the
extraordinary rise in the number of killings and enforced disappearancesits intent
is to address violations of or threats to the rights to life, liberty or security as a
remedy independently from those provided under prevailing Rules; The writs of
amparo and habeas data will NOT issue to protect purely property or commercial
concerns nor when the grounds invoked in support of the petitions therefor are
vague or doubtfulemployment constitutes a property right under the context of
the due process clause of the Constitution.It bears reiteration that like the writ of
amparo, habeas data was conceived as a response, given the lack of effective and
available remedies, to address the extraordinary rise in the number of killings and
enforced disappearances. Its intent is to address violations of or threats to the rights
to life, liberty or security as a remedy independently from those provided under
prevailing Rules. Castillo v. Cruz, 605 SCRA 628 (2009), underscores the emphasis
laid down in Tapuz v. del Rosario, 554 SCRA 768 (2008), that the writs of amparo and
habeas data will NOT issue to protect purely property or commercial concerns nor
when the grounds invoked in support of the petitions therefor are vague or doubtful.
Employment constitutes a property right under the context of the due process
clause of the Constitution. It is evident that respondents reservations on the real
reasons for her transfera legitimate concern respecting the terms and conditions
of ones employmentare what prompted her to adopt the extraordinary remedy of
habeas data. Jurisdiction over such concerns is inarguably lodged by law with the
NLRC and the Labor Arbiters.
Same; Same; Same; To argue that the employers refusal to disclose the contents of
reports allegedly received on the threats to the employees safety amounts to a
violation of her right to privacy is at best speculative.In another vein, there is no
showing from the facts presented that petitioners committed any unjustifiable or
unlawful violation of respondents right to privacy vis--vis the right to life, liberty or
security. To argue that petitioners refusal to disclose the contents of reports
allegedly received on the threats to respondents safety amounts to a violation of
her right to privacy is at best speculative. Respondent in fact trivializes these threats
and accusations from unknown individuals in her earlier-quoted portion of her July
10, 2008 letter as highly suspicious, doubtful or are just mere jokes if they existed
at all. And she even suspects that her transfer to another place of work betray[s]
the real intent of management] and could be a punitive move. Her posture
unwittingly concedes that the issue is labor-related. Manila Electric Company vs.
Lim, 632 SCRA 195, G.R. No. 184769 October 5, 2010
G.R. No. 184769 October 5, 2010
MANILA ELECTRIC COMPANY, ALEXANDER S. DEYTO and RUBEN A.
SAPITULA, Petitioners,
vs.
ROSARIO GOPEZ LIM, Respondent.
DECISION
CARPIO MORALES, J.:
The Court is once again confronted with an opportunity to define the evolving metes
and bounds of the writ of habeas data. May an employee invoke the remedies
available under such writ where an employer decides to transfer her workplace on
the basis of copies of an anonymous letter posted therein imputing to her
disloyalty to the company and calling for her to leave, which imputation it
investigated but fails to inform her of the details thereof?
Rosario G. Lim (respondent), also known as Cherry Lim, is an administrative clerk at
the Manila Electric Company (MERALCO).
On June 4, 2008, an anonymous letter was posted at the door of the Metering Office
of the Administration building of MERALCO Plaridel, Bulacan Sector, at which
respondent is assigned, denouncing respondent. The letter reads:
Cherry Lim:
MATAPOS MONG LAMUNIN LAHAT NG BIYAYA NG MERALCO, NGAYON NAMAN AY
GUSTO MONG PALAMON ANG BUONG KUMPANYA SA MGA BUWAYA NG GOBYERNO.
KAPAL NG MUKHA MO, LUMAYAS KA RITO, WALANG UTANG NA LOOB. 1
Copies of the letter were also inserted in the lockers of MERALCO linesmen. Informed
about it, respondent reported the matter on June 5, 2008 to the Plaridel Station of
the Philippine National Police.2
By Memorandum3 dated July 4, 2008, petitioner Alexander Deyto, Head of
MERALCOs Human Resource Staffing, directed the transfer of respondent to
MERALCOs Alabang Sector in Muntinlupa as "A/F OTMS Clerk," effective July 18,
2008 in light of the receipt of " reports that there were accusations and threats
directed against [her] from unknown individuals and which could possibly
compromise [her] safety and security."
Respondent, by letter of July 10, 2008 addressed to petitioner Ruben A. Sapitula,
Vice-President and Head of MERALCOs Human Resource Administration, appealed
her transfer and requested for a dialogue so she could voice her concerns and
misgivings on the matter, claiming that the "punitive" nature of the transfer
amounted to a denial of due process. Citing the grueling travel from her residence in
Pampanga to Alabang and back entails, and violation of the provisions on job
security of their Collective Bargaining Agreement (CBA), respondent expressed her
thoughts on the alleged threats to her security in this wise:
xxxx
I feel that it would have been better . . . if you could have intimated to me the
nature of the alleged accusations and threats so that at least I could have found out
if these are credible or even serious. But as you stated, these came from unknown
individuals and the way they were handled, it appears that the veracity of these
accusations and threats to be [sic] highly suspicious, doubtful or are just mere jokes
if they existed at all.
Assuming for the sake of argument only, that the alleged threats exist as the
management apparently believe, then my transfer to an unfamiliar place and
environment which will make me a "sitting duck" so to speak, seems to betray the
real intent of management which is contrary to its expressed concern on my security
and safety . . . Thus, it made me think twice on the rationale for managements
initiated transfer. Reflecting further, it appears to me that instead of the
management supposedly extending favor to me, the net result and effect of
management action would be a punitive one.4 (emphasis and underscoring supplied)
Respondent thus requested for the deferment of the implementation of her transfer
pending resolution of the issues she raised.
No response to her request having been received, respondent filed a petition 5 for the
issuance of a writ of habeas data against petitioners before the Regional Trial Court
(RTC) of Bulacan, docketed as SP. Proc. No. 213-M-2008.
By respondents allegation, petitioners unlawful act and omission consisting of their
continued failure and refusal to provide her with details or information about the
alleged report which MERALCO purportedly received concerning threats to her safety
and security amount to a violation of her right to privacy in life, liberty and
security, correctible by habeas data. Respondent thus prayed for the issuance of a
writ commanding petitioners to file a written return containing the following:
a) a full disclosure of the data or information about respondent in relation
to the report purportedly received by petitioners on the alleged threat to
her safety and security; the nature of such data and the purpose for its
collection;
b) the measures taken by petitioners to ensure the confidentiality of such
data or information; and
c) the currency and accuracy of such data or information obtained.
Additionally, respondent prayed for the issuance of a Temporary Restraining Order
(TRO) enjoining petitioners from effecting her transfer to the MERALCO Alabang
Sector.
By Order6 of August 29, 2008, Branch 7 of the Bulacan RTC directed petitioners to
file their verified written return. And by Order of September 5, 2008, the trial court
granted respondents application for a TRO.
Petitioners moved for the dismissal of the petition and recall of the TRO on the
grounds that, inter alia, resort to a petition for writ of habeas data was not in order;
and the RTC lacked jurisdiction over the case which properly belongs to the National
Labor Relations Commission (NLRC).7
By Decision8 of September 22, 2008, the trial court granted the prayers of
respondent including the issuance of a writ of preliminary injunction directing
petitioners to desist from implementing respondents transfer until such time that
petitioners comply with the disclosures required.
The trial court justified its ruling by declaring that, inter alia, recourse to a writ of
habeas data should extend not only to victims of extra-legal killings and political
activists but also to ordinary citizens, like respondent whose rights to life and
security are jeopardized by petitioners refusal to provide her with information or
data on the reported threats to her person.
Hence, the present petition for review under Rule 45 of 1997 Rules of Civil Procedure
and the Rule on the Writ of Habeas Data9 contending that 1) the RTC lacked
jurisdiction over the case and cannot restrain MERALCOs prerogative as employer to
transfer the place of work of its employees, and 2) the issuance of the writ is outside
the parameters expressly set forth in the Rule on the Writ of Habeas Data. 101avvphi1
Maintaining that the RTC has no jurisdiction over what they contend is clearly a labor
dispute, petitioners argue that "although ingeniously crafted as a petition for habeas
data, respondent is essentially questioning the transfer of her place of work by her
employer"11 and the terms and conditions of her employment which arise from an
employer-employee relationship over which the NLRC and the Labor Arbiters under
Article 217 of the Labor Code have jurisdiction.
Petitioners thus maintain that the RTC had no authority to restrain the
implementation of the Memorandum transferring respondents place of work which
is purely a management prerogative, and that OCA-Circular No. 79-2003 12 expressly
prohibits the issuance of TROs or injunctive writs in labor-related cases.
Petitioners go on to point out that the Rule on the Writ of Habeas Data directs the
issuance of the writ only against public officials or employees, or private individuals
or entities engaged in the gathering, collecting or storing of data or information
regarding an aggrieved partys person, family or home; and that MERALCO (or its
officers) is clearly not engaged in such activities.
The petition is impressed with merit.
Respondents plea that she be spared from complying with MERALCOs
Memorandum directing her reassignment to the Alabang Sector, under the guise of
a quest for information or data allegedly in possession of petitioners, does not fall
within the province of a writ of habeas data.
In another vein, there is no showing from the facts presented that petitioners
committed any unjustifiable or unlawful violation of respondents right to privacy vis-
a-vis the right to life, liberty or security. To argue that petitioners refusal to disclose
the contents of reports allegedly received on the threats to respondents safety
amounts to a violation of her right to privacy is at best speculative. Respondent in
fact trivializes these threats and accusations from unknown individuals in her earlier-
quoted portion of her July 10, 2008 letter as "highly suspicious, doubtful or are just
mere jokes if they existed at all."18 And she even suspects that her transfer to
another place of work "betray[s] the real intent of management]" and could be a
"punitive move." Her posture unwittingly concedes that the issue is labor-related.

Section 1 of the Rule on the Writ of Habeas Data provides: WHEREFORE, the petition is GRANTED. The assailed September 22, 2008 Decision of
the Bulacan RTC, Branch 7 in SP. Proc. No. 213-M-2008 is hereby REVERSED and SET
Section 1. Habeas Data. The writ of habeas data is a remedy available to any ASIDE. SP. Proc. No. 213-M-2008 is, accordingly, DISMISSED.
person whose right to privacy in life, liberty or security is violated or
threatened by an unlawful act or omission of a public official or employee or of No costs.
a private individual or entity engaged in the gathering, collecting or storing of
data or information regarding the person, family, home and correspondence of
SO ORDERED.
the aggrieved party. (emphasis and underscoring supplied)

The habeas data rule, in general, is designed to protect by means of judicial

complaint the image, privacy, honor, information, and freedom of information of an
individual. It is meant to provide a forum to enforce ones right to the truth and to
informational privacy, thus safeguarding the constitutional guarantees of a persons
right to life, liberty and security against abuse in this age of information technology.

It bears reiteration that like the writ of amparo, habeas data was conceived as a
response, given the lack of effective and available remedies, to address the
extraordinary rise in the number of killings and enforced disappearances. Its intent is
to address violations of or threats to the rights to life, liberty or security as a remedy
independently from those provided under prevailing Rules. 13

Castillo v. Cruz14 underscores the emphasis laid down in Tapuz v. del Rosario 15 that
the writs of amparo and habeas data will NOT issue to protect purely property or
commercial concerns nor when the grounds invoked in support of the petitions
therefor are vague or doubtful.16 Employment constitutes a property right under the
context of the due process clause of the Constitution. 17 It is evident that
respondents reservations on the real reasons for her transfer - a legitimate concern
respecting the terms and conditions of ones employment - are what prompted her
to adopt the extraordinary remedy of habeas data. Jurisdiction over such concerns is
inarguably lodged by law with the NLRC and the Labor Arbiters.
Lee vs. Ilagan, 738 SCRA 59, G.R. No. 203254 October 8, 2014
Constitutional Law; Habeas Data Rule (A.M. No. 08-1-16-SC); A.M. No. 08-1-16-SC, or
the Rule on the Writ of Habeas Data (Habeas Data Rule), was conceived as a
response, given the lack of effective and available remedies, to address the
extraordinary rise in the number of killings and enforced disappearances.A.M. No.
08-1-16-SC, or the Rule on the Writ of Habeas Data (Habeas Data Rule), was
conceived as a response, given the lack of effective and available remedies, to
address the extraordinary rise in the number of killings and enforced
disappearances. It was conceptualized as a judicial remedy enforcing the right to
privacy, most especially the right to informational privacy of individuals, which is
defined as the right to control the collection, maintenance, use, and dissemination
of data about oneself.
Same; Same; As defined in Section 1 of the Habeas Data Rule, the writ of habeas
data now stands as a remedy available to any person whose right to privacy in life,
liberty or security is violated or threatened by an unlawful act or omission of a public
official or employee, or of a private individual or entity engaged in the gathering,
collecting or storing of data or information regarding the person, family, home, and
correspondence of the aggrieved party.As defined in Section 1 of the Habeas
Data Rule, the writ of habeas data now stands as a remedy available to any person
whose right to privacy in life, liberty or security is violated or threatened by an
unlawful act or omission of a public official or employee, or of a private individual or
entity engaged in the gathering, collecting or storing of data or information
regarding the person, family, home, and correspondence of the aggrieved party.
Thus, in order to support a petition for the issuance of such writ, Section 6 of the
Habeas Data Rule essentially requires that the petition sufficiently alleges, among
others, [t]he manner the right to privacy is violated or threatened and how it
affects the right to life, liberty or security of the aggrieved party. In other words, the
petition must adequately show that there exists a nexus between the right to
privacy on the one hand, and the right to life, liberty or security on the other.
Corollarily, the allegations in the petition must be supported by substantial evidence
showing an actual or threatened violation of the right to privacy in life, liberty or
security of the victim. In this relation, it bears pointing out that the writ of habeas
data will not issue to protect purely property or commercial concerns nor when the
grounds invoked in support of the petitions therefor are vague and doubtful.
Same; Same; Right to Privacy; Sex Videos; As the rules and existing jurisprudence
on the matter evoke, alleging and eventually proving the nexus between ones
privacy right to the cogent rights to life, liberty or security are crucial in habeas data
cases, so much so that a failure on either account certainly renders a habeas data
petition dismissible.In this case, the Court finds that Ilagan was not able to
sufficiently allege that his right to privacy in life, liberty or security was or would be
violated through the supposed reproduction and threatened dissemination of the
subject sex video. While Ilagan purports a privacy interest in the suppression of this
video which he fears would somehow find its way to Quiapo or be uploaded in the
internet for public consumption he failed to explain the connection between such
interest and any violation of his right to life, liberty or security. Indeed, courts cannot
speculate or contrive versions of possible transgressions. As the rules and existing
jurisprudence on the matter evoke, alleging and eventually proving the nexus
between ones privacy right to the cogent rights to life, liberty or security are crucial
in habeas data cases, so much so that a failure on either account certainly renders a
habeas data petition dismissible, as in this case. Lee vs. Ilagan, 738 SCRA 59, G.R.
No. 203254 October 8, 2014
FIRST DIVISION
G.R. No. 203254, October 08, 2014
DR. JOY MARGATE LEE, Petitioner, v. P/SUPT. NERI A. ILAGAN, Respondent.
DECISION
PERLAS-BERNABE, J.:
Before the Court is a petition for review on certiorari1 assailing the Decision2 dated
August 30, 2012 of the Regional Trial Court of Quezon City, Branch 224 (RTC) in SP
No. 12-71527, which extended the privilege of the writ of habeas data in favor of
respondent Police Superintendent Neri A. Ilagan (Ilagan).
The Facts
In his Petition for Issuance of the Writ of Habeas Data3 dated June 22, 2012, Ilagan
alleged that he and petitioner Dr. Joy Margate Lee (Lee) were former common law
partners. Sometime in July 2011, he visited Lee at the latters condominium, rested
for a while and thereafter,proceeded to his office. Upon arrival, Ilagan noticed that
his digital camera was missing.4 On August 23, 2011, Lee confronted Ilagan at the
latters office regarding a purported sex video (subject video) she discovered from
the aforesaid camera involving Ilagan and another woman. Ilagan denied the video
and demanded Lee to return the camera, but to no avail.5 During the confrontation,
Ilagan allegedly slammed Lees head against a wall inside his office and walked
away.6Subsequently, Lee utilized the said video as evidence in filing various
complaints against Ilagan, namely: (a) a criminal complaint for violation of Republic
Act No. 9262,7otherwise known as the Anti-Violence Against Women and Their
Children Act of 2004, before the Office of the City Prosecutor of Makati; and (b) an
administrative complaint for grave misconduct before the National Police
Commission (NAPOLCOM).8 Ilagan claimed that Lees acts of reproducing the subject
video and threatening to distribute the same to the upper echelons of the
NAPOLCOM and uploading it to the internet violated not only his right to life, liberty,
security, and privacy but also that of the other woman, and thus, the issuance of a
writ of habeas data in his favor is warranted.9
Finding the petition prima facie meritorious, the RTC issued a Writ of Habeas
Data10 dated June 25, 2012, directing Lee to appear before the court a quo, and to
produce Ilagans digital camera, as well as the negative and/or original of the
subject video and copies thereof, and to file a verified written return within five (5)
working days from date of receipt thereof.
In her Verified Return11 dated July 2, 2012, Lee admitted that she indeed kept the
memory card of the digital camera and reproduced the aforesaid video but averred
that she only did so to utilize the same as evidence in the cases she filed against
Ilagan. She also admitted that her relationship with Ilagan started sometime in 2003
and ended under disturbing circumstances in August 2011, and that she only
happened to discover the subject video when Ilagan left his camera in her
condominium. Accordingly, Lee contended that Ilagans petition for the issuance of
the writ of habeas data should be dismissed because: (a) its filing was only aimed at
suppressing the evidence against Ilagan in the cases she filed; and (b) she is not
engaged in the gathering, collecting, or storing of data regarding the person of
Ilagan.12
 The RTC Ruling
In a Decision13 dated August 30, 2012, the RTC granted the privilege of the writ
of habeas data in Ilagans favor, and accordingly, ordered the implementing officer
to turn-over copies of the subject video to him, and enjoined Lee from further
reproducing the same.14
The RTC did not give credence to Lees defense that she is not engaged in the
gathering, collecting or storing of data regarding the person of Ilagan, finding that
her acts of reproducing the subject video and showing it to other people, i.e., the
NAPOLCOM officers, violated the latters right to privacy in life and caused him to
suffer humiliation and mental anguish. In this relation, the RTC opined that Lees use
of the subject video as evidence in the various cases she filed against Ilagan is not
enough justification for its reproduction. Nevertheless, the RTC clarified that it is only
ruling on the return of the aforesaid video and not on its admissibility before other
tribunals.15
Dissatisfied, Lee filed this petition.
The Issue Before the Court
The essential issue for the Courts resolution is whether or not the RTC correctly
extended the privilege of the writ of habeas data in favor of Ilagan.
The Courts Ruling
The petition is meritorious.
A.M. No. 08-1-16-SC, or the Rule on the Writ of Habeas Data (Habeas Data Rule), was
conceived as a response, given the lack of effective and available remedies, to
address the extraordinary rise in the number of killings and enforced
disappearances.16 It was conceptualized as a judicial remedy enforcing the right to
privacy, most especially the right to informational privacy of individuals,17which
is defined as the right to control the collection, maintenance, use, and
dissemination of data about oneself.18
As defined in Section 1 of the Habeas Data Rule, the writ of habeas data now stands
as a remedy available to any person whose right to privacy in life, liberty or
security is violated or threatened by an unlawful act or omission of a public official
or employee, or of a private individual or entity engaged in the gathering, collecting
or storing of data or information regarding the person, family, home, and
correspondence of the aggrieved party. Thus, in order to support a petition for
the issuance of such writ, Section 6 of the Habeas Data Rule essentially requires that
the petition sufficiently alleges, among others, [t]he manner the right to
privacy is violated or threatened and how it affects the right to life, liberty
or security of the aggrieved party. In other words, the petition must
adequately show that there exists a nexus between the right to privacy on
the one hand, and the right to life, liberty or security on the
other .19 Corollarily, the allegations in the petition must be supported
by substantial evidence showing an actual or threatened violation of the right to
privacy in life, liberty or security of the victim. 20 In this relation, it bears pointing out
that the writ of habeas data will not issue to protect purely property or commercial
concerns nor when the grounds invoked in support of the petitions therefor are
vague and doubtful.21
In this case, the Court finds that Ilagan was not able to sufficiently allege that his
right to privacy in life, liberty or security was or would be violated through the
supposed reproduction and threatened dissemination of the subject sex video. While
Ilagan purports a privacy interest in the suppression of this video which he fears
would somehow find its way to Quiapo or be uploaded in the internet for public
consumption he failed to explain the connection between such interest and any
violation of his right to life, liberty or security. Indeed, courts cannot speculate or
contrive versions of possible transgressions. As the rules and existing jurisprudence
on the matter evoke, alleging and eventually proving the nexus between ones
privacy right to the cogent rights to life, liberty or security are crucial in habeas
data cases, so much so that a failure on either account certainly renders a habeas
data petition dismissible, as in this case.
In fact, even discounting the insufficiency of the allegations, the petition would
equally be dismissible due to the inadequacy of the evidence presented. As the
records show, all that Ilagan submitted in support of his petition was his self-serving
testimony which hardly meets the substantial evidence requirement as prescribed
by the Habeas Data Rule. This is because nothing therein would indicate that Lee
actually proceeded to commit any overt act towards the end of violating Ilagans
right to privacy in life, liberty or security. Nor would anything on record even lead a
reasonable mind to conclude22 that Lee was going to use the subject video in order
to achieve unlawful ends say for instance, to spread it to the public so as to ruin
Ilagans reputation. Contrastingly, Lee even made it clear in her testimony that the
only reason why she reproduced the subject video was to legitimately utilize the
same as evidence in the criminal and administrative cases that she filed against
Ilagan.23 Hence, due to the insufficiency of the allegations as well as the glaring
absence of substantial evidence, the Court finds it proper to reverse the RTC
Decision and dismiss the habeas data petition.
WHEREFORE, the petition is GRANTED. The Decision dated August 30, 2012 of the
Regional Trial Court of Quezon City, Branch 224 in SP No. 12-71527is
hereby REVERSED and SET ASIDE. Accordingly, the Petition for Issuance of the
Writ of Habeas Data filed by respondent P/Supt. Neri A. Ilagan is DISMISSED for lack
of merit.
SO ORDERED.
Arigo vs. Swift, 735 SCRA 102, G.R. No. 206510 September 16, 2014
Remedial Law; Civil Procedure; Locus Standi; Words and Phrases; Locus standi is a
right of appearance in a court of justice on a given question.Locus standi is a
right of appearance in a court of justice on a given question. Specifically, it is a
partys personal and substantial interest in a case where he has sustained or will
sustain direct injury as a result of the act being challenged, and calls for more
than just a generalized grievance. However, the rule on standing is a procedural
matter which this Court has relaxed for nontraditional plaintiffs like ordinary citizens,
taxpayers and legislators when the public interest so requires, such as when the
subject matter of the controversy is of transcendental importance, of overreaching
significance to society, or of paramount public interest.
Constitutional Law; Balance and Healthful Ecology; In the landmark case of Oposa v.
Factoran, Jr., 224 SCRA 792 (1993), the Supreme Court (SC) recognized the public
right of citizens to a balanced and healthful ecology which, for the first time in our
constitutional history, is solemnly incorporated in the fundamental law.In the
landmark case of Oposa v. Factoran, Jr., 224 SCRA 792 (1993), we recognized the
public right of citizens to a balanced and healthful ecology which, for the first
time in our constitutional history, is solemnly incorporated in the fundamental law.
We declared that the right to a balanced and healthful ecology need not be written
in the Constitution for it is assumed, like other civil and political rights guaranteed in
the Bill of Rights, to exist from the inception of mankind and it is an issue of
transcendental importance with intergenerational implications. Such right carries
with it the correlative duty to refrain from impairing the environment.
Remedial Law; Civil Procedure; Class Suit; On the novel element in the class suit filed
by the petitioners minors in Oposa, this Court ruled that not only do ordinary citizens
have legal standing to sue for the enforcement of environmental rights, they can do
so in representation of their own and future generations.On the novel element in
the class suit filed by the petitioners minors in Oposa, this Court ruled that not only
do ordinary citizens have legal standing to sue for the enforcement of environmental
rights, they can do so in representation of their own and future generations. Thus:
Petitioners minors assert that they represent their generation as well as generations
yet unborn. We find no difficulty in ruling that they can, for themselves, for others of
their generation and for the succeeding generations, file a class suit. Their
personality to sue in behalf of the succeeding generations can only be based on the
concept of intergenerational responsibility insofar as the right to a balanced and
healthful ecology is concerned. Such a right, as hereinafter expounded, considers
the rhythm and harmony of nature. Nature means the created world in its entirety.
Such rhythm and harmony indispensably include, inter alia, the judicious disposition,
utilization, management, renewal and conservation of the countrys forest, mineral,
land, waters, fisheries, wildlife, off-shore areas and other natural resources to the
end that their exploration, development and utilization be equitably accessible to
the present as well as future generations. Needless to say, every generation has a
responsibility to the next to preserve that rhythm and harmony for the full
enjoyment of a balanced and healthful ecology. Put a little differently, the minors
assertion of their right to a sound environment constitutes, at the same time, the
performance of their obligation to ensure the protection of that right for the
generations to come.
Constitutional Law; State Immunity from Suit; This traditional rule of State immunity
which exempts a State from being sued in the courts of another State without the
formers consent or waiver has evolved into a restrictive doctrine which
distinguishes sovereign and governmental acts (jure imperii) from private,
commercial and proprietary acts (jure gestionis).This traditional rule of State
immunity which exempts a State from being sued in the courts of another State
without the formers consent or waiver has evolved into a restrictive doctrine which
distinguishes sovereign and governmental acts (jure imperii) from private,
commercial and proprietary acts (jure gestionis). Under the restrictive rule of State
immunity, State immunity extends only to acts jure imperii. The restrictive
application of State immunity is proper only when the proceedings arise out of
commercial transactions of the foreign sovereign, its commercial activities or
economic affairs.
Same; International Law; International Law of the Sea; Words and Phrases; The
international law of the sea is generally defined as a body of treaty rules and
customary norms governing the uses of the sea, the exploitation of its resources,
and the exercise of jurisdiction over maritime regimes.The international law of the
sea is generally defined as a body of treaty rules and customary norms governing
the uses of the sea, the exploitation of its resources, and the exercise of jurisdiction
over maritime regimes. It is a branch of public international law, regulating the
relations of states with respect to the uses of the oceans. The UNCLOS is a
multilateral treaty which was opened for signature on December 10, 1982 at
Montego Bay, Jamaica. It was ratified by the Philippines in 1984 but came into force
on November 16, 1994 upon the submission of the 60th ratification.
Same; Same; Same; United Nations Convention on the Law of the Sea; The United
Nations Convention on the Law of the Sea (UNCLOS) gives to the coastal State
sovereign rights in varying degrees over the different zones of the sea which are: 1)
internal waters, 2) territorial sea, 3) contiguous zone, 4) exclusive economic zone,
and 5) the high seas. It also gives coastal States more or less jurisdiction over
foreign vessels depending on where the vessel is located.The UNCLOS is a product
of international negotiation that seeks to balance State sovereignty (mare clausum)
and the principle of freedom of the high seas (mare liberum). The freedom to use
the worlds marine waters is one of the oldest customary principles of international
law. The UNCLOS gives to the coastal State sovereign rights in varying degrees over
the different zones of the sea which are: 1) internal waters, 2) territorial sea, 3)
contiguous zone, 4) exclusive economic zone, and 5) the high seas. It also gives
coastal States more or less jurisdiction over foreign vessels depending on where the
vessel is located.
Same; Same; State Immunity from Suit; Visiting Forces Agreement; Writ of Kalikasan;
The waiver of State immunity under the Visiting Forces Agreement (VFA) pertains
only to criminal jurisdiction and not to special civil actions such as the present
petition for issuance of a writ of Kalikasan.The VFA is an agreement which defines
the treatment of United States troops and personnel visiting the Philippines to
promote common security interests between the US and the Philippines in the
region. It provides for the guidelines to govern such visits of military personnel, and
further defines the rights of the United States and the Philippine government in the
matter of criminal jurisdiction, movement of vessel and aircraft, importation and
exportation of equipment, materials and supplies. The invocation of US federal tort
laws and even common law is thus improper considering that it is the VFA which
governs disputes involving US military ships and crew navigating Philippine waters in
pursuance of the objectives of the agreement. As it is, the waiver of State immunity
under the VFA pertains only to criminal jurisdiction and not to special civil actions
such as the present petition for issuance of a writ of Kalikasan. In fact, it can be
inferred from Section 17, Rule 7 of the Rules that a criminal case against a person
charged with a violation of an environmental law is to be filed separately: SEC. 17.
Institution of separate actions.The filing of a petition for the issuance of the writ of
kalikasan shall not preclude the filing of separate civil, criminal or administrative
actions.
Same; Same; Same; Same; Same; A ruling on the application or non-application of
criminal jurisdiction provisions of the Visiting Forces Agreement (VFA) to US
personnel who may be found responsible for the grounding of the USS Guardian,
would be premature and beyond the province of a petition for a writ of Kalikasan.In
any case, it is our considered view that a ruling on the application or non-application
of criminal jurisdiction provisions of the VFA to US personnel who may be found
responsible for the grounding of the USS Guardian, would be premature and beyond
the province of a petition for a writ of Kalikasan. We also find it unnecessary at this
point to determine whether such waiver of State immunity is indeed absolute. In the
same vein, we cannot grant damages which have resulted from the violation of
environmental laws. The Rules allows the recovery of damages, including the
collection of administrative fines under R.A. No. 10067, in a separate civil suit or that
deemed instituted with the criminal action charging the same violation of an
environmental law.
Same; Same; Foreign Relations; It is settled that the conduct of the foreign relations
of our government is committed by the Constitution to the executive and legislative
the political departments of the government, and the propriety of what may
be done in the exercise of this political power is not subject to judicial inquiry or
decision.A rehabilitation or restoration program to be implemented at the cost of
the violator is also a major relief that may be obtained under a judgment rendered in
a citizens suit under the Rules, viz.: RULE 5 SECTION 1. Reliefs in a citizen suit.If
warranted, the court may grant to the plaintiff proper reliefs which shall include the
protection, preservation or rehabilitation of the environment and the payment of
attorneys fees, costs of suit and other litigation expenses. It may also require the
violator to submit a program of rehabilitation or restoration of the environment, the
costs of which shall be borne by the violator, or to contribute to a special trust fund
for that purpose subject to the control of the court. In the light of the foregoing, the
Court defers to the Executive Branch on the matter of compensation and
rehabilitation measures through diplomatic channels. Resolution of these issues
impinges on our relations with another State in the context of common security
interests under the VFA. It is settled that [t]he conduct of the foreign relations of
our government is committed by the Constitution to the executive and legislative
the political departments of the government, and the propriety of what may be
done in the exercise of this political power is not subject to judicial inquiry or
decision. Arigo vs. Swift, 735 SCRA 102, G.R. No. 206510 September 16, 2014
G.R. No. 206510 September 16, 2014
MOST REV. PEDRO D. ARIGO, Vicar Apostolic of Puerto Princesa D.D.; MOST
REV. DEOGRACIAS S. INIGUEZ, JR., Bishop-Emeritus of Caloocan, FRANCES
Q. QUIMPO, CLEMENTE G. BAUTISTA, JR., Kalikasan-PNE, MARIA CAROLINA
P. ARAULLO, RENATO M. REYES, JR., Bagong Alyansang Makabayan, HON.
NERI JAVIER COLMENARES, Bayan Muna Partylist, ROLAND G. SIMBULAN,
PH.D., Junk VF A Movement, TERESITA R. PEREZ, PH.D., HON. RAYMOND V.
PALATINO, Kabataan Party-list, PETER SJ. GONZALES, Pamalakaya,
GIOVANNI A. TAPANG, PH. D., Agham, ELMER C. LABOG, Kilusang Mayo
Uno, JOAN MAY E. SALVADOR, Gabriela, JOSE ENRIQUE A. AFRICA, THERESA
A. CONCEPCION, MARY JOAN A. GUAN, NESTOR T. BAGUINON, PH.D., A.
EDSEL F. TUPAZ, Petitioners,
vs.
SCOTT H. SWIFT in his capacity as Commander of the US. 7th Fleet, MARK
A. RICE in his capacity as Commanding Officer of the USS Guardian,
PRESIDENT BENIGNO S. AQUINO III in his capacity as Commander-in-Chief
of the Armed Forces of the Philippines, HON. ALBERT F. DEL ROSARIO,
Secretary, pepartment of Foreign Affair.s, HON. PAQUITO OCHOA, JR.,
Executiv~.:Secretary, Office of the President, . HON. VOLTAIRE T. GAZMIN,
Secretary, Department of National Defense, HON. RAMON JESUS P. P AJE,
Secretary, Department of Environment and Natural Resoz!rces, VICE
ADMIRAL JOSE LUIS M. ALANO, Philippine Navy Flag Officer in Command,
Armed Forces of the Philippines, ADMIRAL RODOLFO D. ISO RENA,
Commandant, Philippine Coast Guard, COMMODORE ENRICO EFREN
EVANGELISTA, Philippine Coast Guard Palawan, MAJOR GEN. VIRGILIO 0.
DOMINGO, Commandant of Armed Forces of the Philippines Command and
LT. GEN. TERRY G. ROBLING, US Marine Corps Forces. Pacific and Balikatan
2013 Exercise Co-Director, Respondents.
DECISION
VILLARAMA, JR, J.:
Before us is a petition for the issuance of a Writ of Kalikasan with prayer for the
issuance of a Temporary Environmental Protection Order (TEPO) under Rule 7 of A.M.
No. 09-6-8-SC, otherwise known as the Rules of Procedure for Environmental Cases
(Rules), involving violations of environmental laws and regulations in relation to the
grounding of the US military ship USS Guardian over the Tubbataha Reefs.
Factual Background
The name "Tubbataha" came from the Samal (seafaring people of southern
Philippines) language which means "long reef exposed at low tide." Tubbataha is
composed of two huge coral atolls - the north atoll and the south atoll - and the
Jessie Beazley Reef, a smaller coral structure about 20 kilometers north of the atolls.
The reefs of Tubbataha and Jessie Beazley are considered part of Cagayancillo, a
remote island municipality of Palawan.1
In 1988, Tubbataha was declared a National Marine Park by virtue of Proclamation
No. 306 issued by President Corazon C. Aquino on August 11, 1988. Located in the
middle of Central Sulu Sea, 150 kilometers southeast of Puerto Princesa City,
Tubbataha lies at the heart of the Coral Triangle, the global center of marine
biodiversity.
In 1993, Tubbataha was inscribed by the United Nations Educational Scientific and
Cultural Organization (UNESCO) as a World Heritage Site. It was recognized as one of
the Philippines' oldest ecosystems, containing excellent examples of pristine reefs
and a high diversity of marine life. The 97,030-hectare protected marine park is also
an important habitat for internationally threatened and endangered marine species.
UNESCO cited Tubbataha's outstanding universal value as an important and
significant natural habitat for in situ conservation of biological diversity; an example
representing significant on-going ecological and biological processes; and an area of
exceptional natural beauty and aesthetic importance.2
On April 6, 2010, Congress passed Republic Act (R.A.) No. 10067,3 otherwise known
as the "Tubbataha Reefs Natural Park (TRNP) Act of 2009" "to ensure the protection
and conservation of the globally significant economic, biological, sociocultural,
educational and scientific values of the Tubbataha Reefs into perpetuity for the
enjoyment of present and future generations." Under the "no-take" policy, entry into
the waters of TRNP is strictly regulated and many human activities are prohibited
and penalized or fined, including fishing, gathering, destroying and disturbing the
resources within the TRNP. The law likewise created the Tubbataha Protected Area
Management Board (TPAMB) which shall be the sole policy-making and permit-
granting body of the TRNP.
The USS Guardian is an Avenger-class mine countermeasures ship of the US Navy. In
December 2012, the US Embassy in the Philippines requested diplomatic clearance
for the said vessel "to enter and exit the territorial waters of the Philippines and to
arrive at the port of Subic Bay for the purpose of routine ship replenishment,
maintenance, and crew liberty."4 On January 6, 2013, the ship left Sasebo, Japan for
Subic Bay, arriving on January 13, 2013 after a brief stop for fuel in Okinawa,
Japan.1wphi1
On January 15, 2013, the USS Guardian departed Subic Bay for its next port of call in
Makassar, Indonesia. On January 17, 2013 at 2:20 a.m. while transiting the Sulu Sea,
the ship ran aground on the northwest side of South Shoal of the Tubbataha Reefs,
about 80 miles east-southeast of Palawan. No cine was injured in the incident, and
there have been no reports of leaking fuel or oil.
On January 20, 2013, U.S. 7th Fleet Commander, Vice Admiral Scott Swift, expressed
regret for the incident in a press statement. 5 Likewise, US Ambassador to the
Philippines Harry K. Thomas, Jr., in a meeting at the Department of Foreign Affairs
(DFA) on February 4, "reiterated his regrets over the grounding incident and assured
Foreign Affairs Secretazy Albert F. del Rosario that the United States will provide
appropriate compensation for damage to the reef caused by the ship." 6 By March 30,
2013, the US Navy-led salvage team had finished removing the last piece of the
grounded ship from the coral reef.
On April 1 7, 2013, the above-named petitioners on their behalf and in
representation of their respective sector/organization and others, including minors or
generations yet unborn, filed the present petition agairtst Scott H. Swift in his
capacity as Commander of the US 7th Fleet, Mark A. Rice in his capacity as
Commanding Officer of the USS Guardian and Lt. Gen. Terry G. Robling, US Marine
Corps Forces, Pacific and Balikatan 2013 Exercises Co-Director ("US respondents");
President Benigno S. Aquino III in his capacity as Commander-in-Chief of the Armed
Forces of the Philippines (AFP), DF A Secretary Albert F. Del Rosario, Executive
Secretary Paquito Ochoa, Jr., Secretary Voltaire T. Gazmin (Department of National
Defense), Secretary Jesus P. Paje (Department of Environment and Natural
Resources), Vice-Admiral Jose Luis M. Alano (Philippine Navy Flag Officer in
Command, AFP), Admiral Rodolfo D. Isorena (Philippine Coast Guard Commandant),
Commodore Enrico Efren Evangelista (Philippine Coast Guard-Palawan), and Major
General Virgilio 0. Domingo (AFP Commandant), collectively the "Philippine
respondents."
The Petition
Petitioners claim that the grounding, salvaging and post-salvaging operations of the
USS Guardian cause and continue to cause environmental damage of such
magnitude as to affect the provinces of Palawan, Antique, Aklan, Guimaras, Iloilo,
Negros Occidental, Negros Oriental, Zamboanga del Norte, Basilan, Sulu, and Tawi-
Tawi, which events violate their constitutional rights to a balanced and healthful
ecology. They also seek a directive from this Court for the institution of civil,
administrative and criminal suits for acts committed in violation of environmental
laws and regulations in connection with the grounding incident.
Specifically, petitioners cite the following violations committed by US respondents
under R.A. No. 10067: unauthorized entry (Section 19); non-payment of conservation
fees (Section 21 ); obstruction of law enforcement officer (Section 30); damages to
the reef (Section 20); and destroying and disturbing resources (Section 26[g]).
Furthermore, petitioners assail certain provisions of the Visiting Forces Agreement
(VFA) which they want this Court to nullify for being unconstitutional.
The numerous reliefs sought in this case are set forth in the final prayer of the
petition, to wit: WHEREFORE, in view of the foregoing, Petitioners respectfully pray
that the Honorable Court: 1. Immediately issue upon the filing of this petition a
Temporary Environmental Protection Order (TEPO) and/or a Writ of Kalikasan, which
shall, in particular,
a. Order Respondents and any person acting on their behalf, to cease and
desist all operations over the Guardian grounding incident;
b. Initially demarcating the metes and bounds of the damaged area as well
as an additional buffer zone;
c. Order Respondents to stop all port calls and war games under 'Balikatan'
because of the absence of clear guidelines, duties, and liability schemes for
breaches of those duties, and require Respondents to assume responsibility
for prior and future environmental damage in general, and environmental
damage under the Visiting Forces Agreement in particular.
d. Temporarily define and describe allowable activities of ecotourism,
diving, recreation, and limited commercial activities by fisherfolk and
indigenous communities near or around the TRNP but away from the
damaged site and an additional buffer zone;
2. After summary hearing, issue a Resolution extending the TEPO until
further orders of the Court;
3. After due proceedings, render a Decision which shall include, without
limitation:
a. Order Respondents Secretary of Foreign Affairs, following the dispositive
portion of Nicolas v. Romulo, "to forthwith negotiate with the United States
representatives for the appropriate agreement on [environmental
guidelines and environmental accountability] under Philippine authorities as
provided in Art. V[] of the VFA ... "
b. Direct Respondents and appropriate agencies to commence
administrative, civil, and criminal proceedings against erring officers and
individuals to the full extent of the law, and to make such proceedings
public;
c. Declare that Philippine authorities may exercise primary and exclusive
criminal jurisdiction over erring U.S. personnel under the circumstances of
this case;
d. Require Respondents to pay just and reasonable compensation in the
settlement of all meritorious claims for damages caused to the Tubbataha
Reef on terms and conditions no less severe than those applicable to other
States, and damages for personal injury or death, if such had been the
case;
e. Direct Respondents to cooperate in providing for the attendance of
witnesses and in the collection and production of evidence, including
seizure and delivery of objects connected with the offenses related to the
grounding of the Guardian;
f. Require the authorities of the Philippines and the United States to notify
each other of the disposition of all cases, wherever heard, related to the
grounding of the Guardian;
g. Restrain Respondents from proceeding with any purported restoration,
repair, salvage or post salvage plan or plans, including cleanup plans
covering the damaged area of the Tubbataha Reef absent a just settlement
approved by the Honorable Court;
h. Require Respondents to engage in stakeholder and LOU consultations in
accordance with the Local Government Code and R.A. 10067;
i. Require Respondent US officials and their representatives to place a
deposit to the TRNP Trust Fund defined under Section 17 of RA 10067 as a
bona .fide gesture towards full reparations;
j. Direct Respondents to undertake measures to rehabilitate the areas
affected by the grounding of the Guardian in light of Respondents'
experience in the Port Royale grounding in 2009, among other similar
grounding incidents;
k. Require Respondents to regularly publish on a quarterly basis and in the
name of transparency and accountability such environmental damage
assessment, valuation, and valuation methods, in all stages of negotiation;
l. Convene a multisectoral technical working group to provide scientific and
technical support to the TPAMB;
m. Order the Department of Foreign Affairs, Department of National
Defense, and the Department of Environment and Natural Resources to
review the Visiting Forces Agreement and the Mutual Defense Treaty to
consider whether their provisions allow for the exercise of erga omnes
rights to a balanced and healthful ecology and for damages which follow
from any violation of those rights;
n. Narrowly tailor the provisions of the Visiting Forces Agreement for
purposes of protecting the damaged areas of TRNP;
o. Declare the grant of immunity found in Article V ("Criminal Jurisdiction")
and Article VI of the Visiting Forces Agreement unconstitutional for violating
equal protection and/or for violating the preemptory norm of
nondiscrimination incorporated as part of the law of the land under Section
2, Article II, of the Philippine Constitution;
p. Allow for continuing discovery measures;
q. Supervise marine wildlife rehabilitation in the Tubbataha Reefs in all
other respects; and
4. Provide just and equitable environmental rehabilitation measures and
such other reliefs as are just and equitable under the
premises.7 (Underscoring supplied.)
Since only the Philippine respondents filed their comment8 to the petition,
petitioners also filed a motion for early resolution and motion to proceed ex parte
against the US respondents.9
Respondents' Consolidated Comment
In their consolidated comment with opposition to the application for a TEPO and
ocular inspection and production orders, respondents assert that: ( 1) the grounds
relied upon for the issuance of a TEPO or writ of Kalikasan have become fait
accompli as the salvage operations on the USS Guardian were already completed;
(2) the petition is defective in form and substance; (3) the petition improperly raises
issues involving the VFA between the Republic of the Philippines and the United
States of America; and ( 4) the determination of the extent of responsibility of the
US Government as regards the damage to the Tubbataha Reefs rests exdusively with
the executive branch.
The Court's Ruling
As a preliminary matter, there is no dispute on the legal standing of petitioners to
file the present petition.
Locus standi is "a right of appearance in a court of justice on a given
question."10 Specifically, it is "a party's personal and substantial interest in a case
where he has sustained or will sustain direct injury as a result" of the act being
challenged, and "calls for more than just a generalized grievance." 11 However, the
rule on standing is a procedural matter which this Court has relaxed for non-
traditional plaintiffs like ordinary citizens, taxpayers and legislators when the public
interest so requires, such as when the subject matter of the controversy is of
transcendental importance, of overreaching significance to society, or of paramount
public interest.12
In the landmark case of Oposa v. Factoran, Jr., 13 we recognized the "public right" of
citizens to "a balanced and healthful ecology which, for the first time in our
constitutional history, is solemnly incorporated in the fundamental law." We declared
that the right to a balanced and healthful ecology need not be written in the
Constitution for it is assumed, like other civil and polittcal rights guaranteed in the
Bill of Rights, to exist from the inception of mankind and it is an issue of
transcendental importance with intergenerational implications.1wphi1 Such right
carries with it the correlative duty to refrain from impairing the environment. 14
On the novel element in the class suit filed by the petitioners minors in Oposa, this
Court ruled that not only do ordinary citizens have legal standing to sue for the
enforcement of environmental rights, they can do so in representation of their own
and future generations. Thus:
Petitioners minors assert that they represent their generation as well as generations
yet unborn. We find no difficulty in ruling that they can, for themselves, for others of
their generation and for the succeeding generations, file a class suit. Their
personality to sue in behalf of the succeeding generations can only be based on the
concept of intergenerational responsibility insofar as the right to a balanced and
healthful ecology is concerned. Such a right, as hereinafter expounded, considers
the "rhythm and harmony of nature." Nature means the created world in its entirety.
Such rhythm and harmony indispensably include, inter alia, the judicious disposition,
utilization, management, renewal and conservation of the country's forest, mineral,
land, waters, fisheries, wildlife, off-shore areas and other natural resources to the
end that their exploration, development and utilization be equitably accessible to
the present a:: well as future generations. Needless to say, every generation has a
responsibility to the next to preserve that rhythm and harmony for the full
1:njoyment of a balanced and healthful ecology. Put a little differently, the minors'
assertion of their right to a sound environment constitutes, at the same time, the
performance of their obligation to ensure the protection of that right for the
generations to come.15 (Emphasis supplied.)
The liberalization of standing first enunciated in Oposa, insofar as it refers to minors
and generations yet unborn, is now enshrined in the Rules which allows the filing of
a citizen suit in environmental cases. The provision on citizen suits in the Rules
"collapses the traditional rule on personal and direct interest, on the principle that
humans are stewards of nature." 16
Having settled the issue of locus standi, we shall address the more fundamental
question of whether this Court has jurisdiction over the US respondents who did not
submit any pleading or manifestation in this case.
The immunity of the State from suit, known also as the doctrine of sovereign
immunity or non-suability of the State,17 is expressly provided in Article XVI of the
1987 Constitution which states:
Section 3. The State may not be sued without its consent.
In United States of America v. Judge Guinto, 18 we discussed the principle of state
immunity from suit, as follows:
The rule that a state may not be sued without its consent, now expressed in Article
XVI, Section 3, of the 1987 Constitution, is one of the generally accepted principles
of international law that we have adopted as part of the law of our land under Article
II, Section 2. x x x.
Even without such affirmation, we would still be bound by the generally accepted
principles of international law under the doctrine of incorporation. Under this
doctrine, as accepted by the majority of states, such principles are deemed
incorporated in the law of every civilized state as a condition and consequence of its
membership in the society of nations. Upon its admission to such society, the state
is automatically obligated to comply with these principles in its relations with other
states.
As applied to the local state, the doctrine of state immunity is based on the
justification given by Justice Holmes that ''there can be no legal right against the
authority which makes the law on which the right depends." [Kawanakoa v.
Polybank, 205 U.S. 349] There are other practical reasons for the enforcement of the
doctrine. In the case of the foreign state sought to be impleaded in the local
jurisdiction, the added inhibition is expressed in the maxim par in parem, non habet
imperium. All states are sovereign equals and cannot assert jurisdiction over one
another. A contrary disposition would, in the language of a celebrated case, "unduly
vex the peace of nations." [De Haber v. Queen of Portugal, 17 Q. B. 171]
While the doctrine appears to prohibit only suits against the state without its
consent, it is also applicable to complaints filed against officials of the state for acts
allegedly performed by them in the discharge of their duties. The rule is that if the
judgment against such officials will require the state itself to perform an affirmative
act to satisfy the same,. such as the appropriation of the amount needed to pay the
damages awarded against them, the suit must be regarded as against the state
itself although it has not been formally impleaded. [Garcia v. Chief of Staff, 16 SCRA
120] In such a situation, the state may move to dismiss the comp.taint on the
ground that it has been filed without its consent.19 (Emphasis supplied.)
Under the American Constitution, the doctrine is expressed in the Eleventh
Amendment which reads:
The Judicial power of the United States shall not be construed to extend to any suit
in law or equity, commenced or prosecuted against one of the United States by
Citizens of another State, or by Citizens or Subjects of any Foreign State.
In the case of Minucher v. Court of Appeals, 20 we further expounded on the immunity
of foreign states from the jurisdiction of local courts, as follows:
The precept that a State cannot be sued in the courts of a foreign state is a long-
standing rule of customary international law then closely identified with the personal
immunity of a foreign sovereign from suit and, with the emergence of democratic
states, made to attach not just to the person of the head of state, or his
representative, but also distinctly to the state itself in its sovereign capacity. If the
acts giving rise to a suit arc those of a foreign government done by its foreign agent,
although not necessarily a diplomatic personage, but acting in his official capacity,
the complaint could be barred by the immunity of the foreign sovereign from suit
without its consent. Suing a representative of a state is believed to be, in effect,
suing the state itself. The proscription is not accorded for the benefit of an individual
but for the State, in whose service he is, under the maxim -par in parem, non habet
imperium -that all states are soverr~ign equals and cannot assert jurisdiction over
one another. The implication, in broad terms, is that if the judgment against an
official would rec 1uire the state itself to perform an affirmative act to satisfy the
award, such as the appropriation of the amount needed to pay the damages decreed
against him, the suit must be regarded as being against the state itself, although it xxxx
has not been formally impleaded.21(Emphasis supplied.)
The aforecited authorities are clear on the matter. They state that the doctrine of
In the same case we also mentioned that in the case of diplomatic immunity, the immunity from suit will not apply and may not be invoked where the public official is
privilege is not an immunity from the observance of the law of the territorial being sued in his private and personal capacity as an ordinary citizen. The cloak of
sovereign or from ensuing legal liability; it is, rather, an immunity from the exercise protection afforded the officers and agents of the government is removed the
of territorial jurisdiction.22 moment they are sued in their individual capacity. This situation usually arises where
the public official acts without authority or in excess of the powers vested in him. It
is a well-settled principle of law that a public official may be liable in his personal
In United States of America v. Judge Guinto, 23 one of the consolidated cases therein
private capacity for whatever damage he may have caused by his act done with
involved a Filipino employed at Clark Air Base who was arrested following a buy-bust
malice and in bad faith, or beyond the scope of his authority or
operation conducted by two officers of the US Air Force, and was eventually
jurisdiction.26 (Emphasis supplied.) In this case, the US respondents were sued in
dismissed from his employment when he was charged in court for violation of R.A.
their official capacity as commanding officers of the US Navy who had control and
No. 6425. In a complaint for damages filed by the said employee against the military
supervision over the USS Guardian and its crew. The alleged act or omission
officers, the latter moved to dismiss the case on the ground that the suit was against
resulting in the unfortunate grounding of the USS Guardian on the TRNP was
the US Government which had not given its consent. The RTC denied the motion but
committed while they we:re performing official military duties. Considering that the
on a petition for certiorari and prohibition filed before this Court, we reversed the
satisfaction of a judgment against said officials will require remedial actions and
RTC and dismissed the complaint. We held that petitioners US military officers were
appropriation of funds by the US government, the suit is deemed to be one against
acting in the exercise of their official functions when they conducted the buy-bust
the US itself. The principle of State immunity therefore bars the exercise of
operation against the complainant and thereafter testified against him at his trial. It
jurisdiction by this Court over the persons of respondents Swift, Rice and Robling.
follows that for discharging their duties as agents of the United States, they cannot
be directly impleaded for acts imputable to their principal, which has not given its
consent to be sued. During the deliberations, Senior Associate Justice Antonio T. Carpio took the position
that the conduct of the US in this case, when its warship entered a restricted area in
violation of R.A. No. 10067 and caused damage to the TRNP reef system, brings the
This traditional rule of State immunity which exempts a State from being sued in the
matter within the ambit of Article 31 of the United Nations Convention on the Law of
courts of another State without the former's consent or waiver has evolved into a
the Sea (UNCLOS). He explained that while historically, warships enjoy sovereign
restrictive doctrine which distinguishes sovereign and governmental acts (Jure
immunity from suit as extensions of their flag State, Art. 31 of the UNCLOS creates
imperil") from private, commercial and proprietary acts (Jure gestionis). Under the
an exception to this rule in cases where they fail to comply with the rules and
restrictive rule of State immunity, State immunity extends only to acts Jure imperii.
regulations of the coastal State regarding passage through the latter's internal
The restrictive application of State immunity is proper only when the proceedings
waters and the territorial sea.
arise out of commercial transactions of the foreign sovereign, its commercial
activities or economic affairs.24
According to Justice Carpio, although the US to date has not ratified the UNCLOS, as
a matter of long-standing policy the US considers itself bound by customary
In Shauf v. Court of Appeals,25 we discussed the limitations of the State immunity
international rules on the "traditional uses of the oceans" as codified in UNCLOS, as
principle, thus:
can be gleaned from previous declarations by former Presidents Reagan and Clinton,
and the US judiciary in the case of United States v. Royal Caribbean Cruise Lines,
It is a different matter where the public official is made to account in his capacity as Ltd.27
such for acts contrary to law and injurious to the rights of plaintiff. As was clearly set
forth by JustiGe Zaldivar in Director of the Bureau of Telecommunications, et al. vs.
The international law of the sea is generally defined as "a body of treaty rules arid
Aligaen, etc., et al. : "Inasmuch as the State authorizes only legal acts by its officers,
customary norms governing the uses of the sea, the exploitation of its resources,
unauthorized acts of government officials or officers are not acts of the State, and an
and the exercise of jurisdiction over maritime regimes. It is a branch of public
action against the officials or officers by one whose rights have been invaded or
international law, regulating the relations of states with respect to the uses of the
violated by such acts, for the protection of his rights, is not a suit against the State
oceans."28 The UNCLOS is a multilateral treaty which was opened for signature on
within the rule of immunity of the State from suit. In the same tenor, it has been said
December 10, 1982 at Montego Bay, Jamaica. It was ratified by the Philippines in
that an action at law or suit in equity against a State officer or the director of a State
1984 but came into force on November 16, 1994 upon the submission of the 60th
department on the ground that, while claiming to act for the State, he violates or
ratification.
invades the personal and property rights of the plaintiff, under an unconstitutional
act or under an assumption of authority which he does not have, is not a suit against
the State within the constitutional provision that the State may not be sued without The UNCLOS is a product of international negotiation that seeks to balance State
its consent." The rationale for this ruling is that the doctrine of state immunity sovereignty (mare clausum) and the principle of freedom of the high seas (mare
cannot be used as an instrument for perpetrating an injustice. liberum).29 The freedom to use the world's marine waters is one of the oldest
customary principles of international law.30 The UNCLOS gives to the coastal State
sovereign rights in varying degrees over the different zones of the sea which are: 1)
internal waters, 2) territorial sea, 3) contiguous zone, 4) exclusive economic zone,
and 5) the high seas. It also gives coastal States more or less jurisdiction over
foreign vessels depending on where the vessel is located. 31
Insofar as the internal waters and territorial sea is concerned, the Coastal State
exercises sovereignty, subject to the UNCLOS and other rules of international law.
Such sovereignty extends to the air space over the territorial sea as well as to its
bed and subsoil.32
In the case of warships,33 as pointed out by Justice Carpio, they continue to enjoy
sovereign immunity subject to the following exceptions:
Article 30
Non-compliance by warships with the laws and regulations of the coastal State
If any warship does not comply with the laws and regulations of the coastal State
concerning passage through the territorial sea and disregards any request for
compliance therewith which is made to it, the coastal State may require it to leave
the territorial sea immediately.
Article 31
Responsibility of the flag State for damage caused by a warship
or other government ship operated for non-commercial purposes
The flag State shall bear international responsibility for any loss or damage to the
coastal State resulting from the non-compliance by a warship or other government
ship operated for non-commercial purposes with the laws and regulations of the
coastal State concerning passage through the territorial sea or with the provisions of
this Convention or other rules of international law.
Article 32
Immunities of warships and other government ships operated for non-commercial
purposes
With such exceptions as are contained in subsection A and in articles 30 and 31,
nothing in this Convention affects the immunities of warships and other government
ships operated for non-commercial purposes. (Emphasis supplied.) A foreign
warship's unauthorized entry into our internal waters with resulting damage to
marine resources is one situation in which the above provisions may apply. But what
if the offending warship is a non-party to the UNCLOS, as in this case, the US?
An overwhelming majority - over 80% -- of nation states are now members of
UNCLOS, but despite this the US, the world's leading maritime power, has not
ratified it.
While the Reagan administration was instrumental in UNCLOS' negotiation and
drafting, the U.S. delegation ultimately voted against and refrained from signing it
due to concerns over deep seabed mining technology transfer provisions contained
in Part XI. In a remarkable, multilateral effort to induce U.S. membership, the bulk of
UNCLOS member states cooperated over the succeeding decade to revise the
objection.able provisions. The revisions satisfied the Clinton administration, which
signed the revised Part XI implementing agreement in 1994. In the fall of 1994,
President Clinton transmitted UNCLOS and the Part XI implementing agreement to
the Senate requesting its advice and consent. Despite consistent support from
President Clinton, each of his successors, and an ideologically diverse array of
stakeholders, the Senate has since withheld the consent required for the President
to internationally bind the United States to UNCLOS.
While UNCLOS cleared the Senate Foreign Relations Committee (SFRC) during the
108th and 110th Congresses, its progress continues to be hamstrung by significant
pockets of political ambivalence over U.S. participation in international institutions.
Most recently, 111 th Congress SFRC Chairman Senator John Kerry included "voting
out" UNCLOS for full Senate consideration among his highest priorities. This did not
occur, and no Senate action has been taken on UNCLOS by the 112th Congress. 34
Justice Carpio invited our attention to the policy statement given by President
Reagan on March 10, 1983 that the US will "recognize the rights of the other , states
in the waters off their coasts, as reflected in the convention [UNCLOS], so long as
the rights and freedom of the United States and others under international law are
recognized by such coastal states", and President Clinton's reiteration of the US
policy "to act in a manner consistent with its [UNCLOS] provisions relating to
traditional uses of the oceans and to encourage other countries to do likewise."
Since Article 31 relates to the "traditional uses of the oceans," and "if under its
policy, the US 'recognize[s] the rights of the other states in the waters off their
coasts,"' Justice Carpio postulates that "there is more reason to expect it to
recognize the rights of other states in their internal waters, such as the Sulu Sea in
this case."
As to the non-ratification by the US, Justice Carpio emphasizes that "the US' refusal
to join the UN CLOS was centered on its disagreement with UN CLOS' regime of deep
seabed mining (Part XI) which considers the oceans and deep seabed commonly
owned by mankind," pointing out that such "has nothing to do with its [the US']
acceptance of customary international rules on navigation."
It may be mentioned that even the US Navy Judge Advocate General's Corps publicly
endorses the ratification of the UNCLOS, as shown by the following statement posted
on its official website:
The Convention is in the national interest of the United States because it establishes
stable maritime zones, including a maximum outer limit for territorial seas; codifies
innocent passage, transit passage, and archipelagic sea lanes passage rights; works
against "jurisdictiomtl creep" by preventing coastal nations from expanding their
own maritime zones; and reaffirms sovereign immunity of warships, auxiliaries anJ
government aircraft.
xxxx
Economically, accession to the Convention would support our national interests by
enhancing the ability of the US to assert its sovereign rights over the resources of
one of the largest continental shelves in the world. Further, it is the Law of the Sea
Convention that first established the concept of a maritime Exclusive Economic Zone
out to 200 nautical miles, and recognized the rights of coastal states to conserve
and manage the natural resources in this Zone. 35
We fully concur with Justice Carpio's view that non-membership in the UNCLOS does
not mean that the US will disregard the rights of the Philippines as a Coastal State
over its internal waters and territorial sea. We thus expect the US to bear
"international responsibility" under Art. 31 in connection with the USS Guardian
grounding which adversely affected the Tubbataha reefs. Indeed, it is difficult to
imagine that our long-time ally and trading partner, which has been actively
supporting the country's efforts to preserve our vital marine resources, would shirk
from its obligation to compensate the damage caused by its warship while transiting
our internal waters. Much less can we comprehend a Government exercising
leadership in international affairs, unwilling to comply with the UNCLOS directive for
all nations to cooperate in the global task to protect and preserve the marine
environment as provided in Article 197, viz:
Article 197
Cooperation on a global or regional basis
States shall cooperate on a global basis and, as appropriate, on a regional basis,
directly or through competent international organizations, in formulating and
elaborating international rules, standards and recommended practices and
procedures consistent with this Convention, for the protection and preservation of
the marine environment, taking into account characteristic regional features.
In fine, the relevance of UNCLOS provisions to the present controversy is beyond
dispute. Although the said treaty upholds the immunity of warships from the
jurisdiction of Coastal States while navigating the.latter's territorial sea, the flag
States shall be required to leave the territorial '::;ea immediately if they flout the
laws and regulations of the Coastal State, and they will be liable for damages caused
by their warships or any other government vessel operated for non-commercial
purposes under Article 31.
Petitioners argue that there is a waiver of immunity from suit found in the VFA.
Likewise, they invoke federal statutes in the US under which agencies of the US have
statutorily waived their immunity to any action. Even under the common law tort
claims, petitioners asseverate that the US respondents are liable for negligence,
trespass and nuisance.
We are not persuaded.
The VFA is an agreement which defines the treatment of United States troops and
personnel visiting the Philippines to promote "common security interests" between
the US and the Philippines in the region. It provides for the guidelines to govern such
visits of military personnel, and further defines the rights of the United States and
the Philippine government in the matter of criminal jurisdiction, movement of vessel
and aircraft, importation and exportation of equipment, materials and supplies. 36 The
invocation of US federal tort laws and even common law is thus improper
considering that it is the VF A which governs disputes involving US military ships and
crew navigating Philippine waters in pursuance of the objectives of the agreement.
As it is, the waiver of State immunity under the VF A pertains only to criminal
jurisdiction and not to special civil actions such as the present petition for issuance
of a writ of Kalikasan. In fact, it can be inferred from Section 17, Rule 7 of the Rules
that a criminal case against a person charged with a violation of an environmental
law is to be filed separately:
SEC. 17. Institution of separate actions.-The filing of a petition for the issuance of the
writ of kalikasan shall not preclude the filing of separate civil, criminal or
administrative actions.
In any case, it is our considered view that a ruling on the application or non-
application of criminal jurisdiction provisions of the VF A to US personnel who may
be found responsible for the grounding of the USS Guardian, would be premature
and beyond the province of a petition for a writ of Kalikasan. We also find it
unnecessary at this point to determine whether such waiver of State immunity is
indeed absolute. In the same vein, we cannot grant damages which have resulted
from the violation of environmental laws. The Rules allows the recovery of damages,
including the collection of administrative fines under R.A. No. 10067, in a separate
civil suit or that deemed instituted with the criminal action charging the same
violation of an environmental law.37
Section 15, Rule 7 enumerates the reliefs which may be granted in a petition for
issuance of a writ of Kalikasan, to wit:
SEC. 15. Judgment.-Within sixty (60) days from the time the petition is submitted for
decision, the court shall render judgment granting or denying the privilege of the
writ of kalikasan.
The reliefs that may be granted under the writ are the following:
(a) Directing respondent to permanently cease and desist from committing
acts or neglecting the performance of a duty in violation of environmental
laws resulting in environmental destruction or damage;
(b) Directing the respondent public official, govemment agency, private
person or entity to protect, preserve, rehabilitate or restore the
environment;
 (c) Directing the respondent public official, government agency, private
person or entity to monitor strict compliance with the decision and orders
of the court;
(d) Directing the respondent public official, government agency, or private
person or entity to make periodic reports on the execution of the final
judgment; and
(e) Such other reliefs which relate to the right of the people to a balanced
and healthful ecology or to the protection, preservation, rehabilitation or
restoration of the environment, except the award of damages to individual
petitioners. (Emphasis supplied.)
We agree with respondents (Philippine officials) in asserting that this petition has
become moot in the sense that the salvage operation sought to be enjoined or
restrained had already been accomplished when petitioners sought recourse from
this Court. But insofar as the directives to Philippine respondents to protect and
rehabilitate the coral reef stn icture and marine habitat adversely affected by the
grounding incident are concerned, petitioners are entitled to these reliefs
notwithstanding the completion of the removal of the USS Guardian from the coral
reef. However, we are mindful of the fact that the US and Philippine governments
both expressed readiness to negotiate and discuss the matter of compensation for
the damage caused by the USS Guardian. The US Embassy has also declared it is
closely coordinating with local scientists and experts in assessing the extent of the
damage and appropriate methods of rehabilitation.
Exploring avenues for settlement of environmental cases is not proscribed by the
Rules. As can be gleaned from the following provisions, mediation and settlement
are available for the consideration of the parties, and which dispute resolution
methods are encouraged by the court, to wit:
RULE3
xxxx
SEC. 3. Referral to mediation.-At the start of the pre-trial conference, the court shall
inquire from the parties if they have settled the dispute; otherwise, the court shall
immediately refer the parties or their counsel, if authorized by their clients, to the
Philippine Mediation Center (PMC) unit for purposes of mediation. If not available,
the court shall refer the case to the clerk of court or legal researcher for mediation.
Mediation must be conducted within a non-extendible period of thirty (30) days from
receipt of notice of referral to mediation.
The mediation report must be submitted within ten (10) days from the expiration of
the 30-day period.
SEC. 4. Preliminary conference.-If mediation fails, the court will schedule the
continuance of the pre-trial. Before the scheduled date of continuance, the court
may refer the case to the branch clerk of court for a preliminary conference for the
following purposes:
(a) To assist the parties in reaching a settlement;
xxxx
SEC. 5. Pre-trial conference; consent decree.-The judge shall put the parties and
their counsels under oath, and they shall remain under oath in all pre-trial
conferences.
The judge shall exert best efforts to persuade the parties to arrive at a settlement of
the dispute. The judge may issue a consent decree approving the agreement
between the parties in accordance with law, morals, public order and public policy to
protect the right of the people to a balanced and healthful ecology.
xxxx
SEC. 10. Efforts to settle.- The court shall endeavor to make the parties to agree to
compromise or settle in accordance with law at any stage of the proceedings before
rendition of judgment. (Underscoring supplied.)
The Court takes judicial notice of a similar incident in 2009 when a guided-missile
cruiser, the USS Port Royal, ran aground about half a mile off the Honolulu Airport
Reef Runway and remained stuck for four days. After spending $6.5 million restoring
the coral reef, the US government was reported to have paid the State of Hawaii
$8.5 million in settlement over coral reef damage caused by the grounding. 38
To underscore that the US government is prepared to pay appropriate compensation
for the damage caused by the USS Guardian grounding, the US Embassy in the
Philippines has announced the formation of a US interdisciplinary scientific team
which will "initiate discussions with the Government of the Philippines to review
coral reef rehabilitation options in Tubbataha, based on assessments by Philippine-
based marine scientists." The US team intends to "help assess damage and
remediation options, in coordination with the Tubbataha Management Office,
appropriate Philippine government entities, non-governmental organizations, and
scientific experts from Philippine universities."39
A rehabilitation or restoration program to be implemented at the cost of the violator
is also a major relief that may be obtained under a judgment rendered in a citizens'
suit under the Rules, viz:
RULES
SECTION 1. Reliefs in a citizen suit.-If warranted, the court may grant to the plaintiff
proper reliefs which shall include the protection, preservation or rehabilitation of the
environment and the payment of attorney's fees, costs of suit and other litigation
expenses. It may also require the violator to submit a program of rehabilitation or
restoration of the environment, the costs of which shall be borne by the violator, or
to contribute to a special trust fund for that purpose subject to the control of the
court.1wphi1

In the light of the foregoing, the Court defers to the Executive Branch on the matter
of compensation and rehabilitation measures through diplomatic channels.
Resolution of these issues impinges on our relations with another State in the
context of common security interests under the VFA. It is settled that "[t]he conduct
of the foreign relations of our government is committed by the Constitution to the
executive and legislative-"the political" --departments of the government, and the
propriety of what may be done in the exercise of this political power is not subject to
judicial inquiry or decision."40

On the other hand, we cannot grant the additional reliefs prayed for in the petition
to order a review of the VFA and to nullify certain immunity provisions thereof.

As held in BAYAN (Bagong Alyansang Makabayan) v. Exec. Sec. Zamora, 41 the VFA
was duly concurred in by the Philippine Senate and has been recognized as a treaty
by the United States as attested and certified by the duly authorized representative
of the United States government. The VF A being a valid and binding agreement, the
parties are required as a matter of international law to abide by its terms and
provisions.42 The present petition under the Rules is not the proper remedy to assail
the constitutionality of its provisions. WHEREFORE, the petition for the issuance of
the privilege of the Writ of Kalikasan is hereby DENIED.

No pronouncement as to costs.

SO ORDERED.

MARTIN S. VILLARAMA, JR.

Associate Justice
Resident Marine Mammals of the Protected Seascape Taon Strait vs.
Reyes, 756 SCRA 513, G.R. No. 181527 April 21, 2015
Remedial Law; Civil Procedure; Parties; Locus Standi; Citizen Suits; Rules of
Procedure for Environmental Cases; The Court passed the landmark Rules of
Procedure for Environmental Cases, which allow for a citizen suit, and permit any
Filipino citizen to file an action before our courts for violations of our environmental
laws.It had been suggested by animal rights advocates and environmentalists that
not only natural and juridical persons should be given legal standing because of the
difficulty for persons, who cannot show that they by themselves are real parties-in-
interests, to bring actions in representation of these animals or inanimate objects.
For this reason, many environmental cases have been dismissed for failure of the
petitioner to show that he/she would be directly injured or affected by the outcome
of the case. However, in our jurisdiction, locus standi in environmental cases has
been given a more liberalized approach. While developments in Philippine legal
theory and jurisprudence have not progressed as far as Justice Douglass paradigm
of legal standing for inanimate objects, the current trend moves towards
simplification of procedures and facilitating court access in environmental cases.
Recently, the Court passed the landmark Rules of Procedure for Environmental
Cases, which allow for a citizen suit, and permit any Filipino citizen to file an action
before our courts for violations of our environmental laws.
Same; Same; Same; Same; Same; Environmental Cases; Even before the Rules of
Procedure for Environmental Cases became effective, the Supreme Court (SC) had
already taken a permissive position on the issue of locus standi in environmental
cases.Even before the Rules of Procedure for Environmental Cases became
effective, this Court had already taken a permissive position on the issue of locus
standi in environmental cases. In Oposa v. Factoran, Jr., 224 SCRA 792 (1993), we
allowed the suit to be brought in the name of generations yet unborn based on the
concept of intergenerational responsibility insofar as the right to a balanced and
healthful ecology is concerned. Furthermore, we said that the right to a balanced
and healthful ecology, a right that does not even need to be stated in our
Constitution as it is assumed to exist from the inception of humankind, carries with it
the correlative duty to refrain from impairing the environment. In light of the
foregoing, the need to give the Resident Marine Mammals legal standing has been
eliminated by our Rules, which allow any Filipino citizen, as a steward of nature, to
bring a suit to enforce our environmental laws. It is worth noting here that the
Stewards are joined as real parties in the Petition and not just in representation of
the named cetacean species. The Stewards, Ramos and Eisma-Osorio, having shown
in their petition that there may be possible violations of laws concerning the habitat
of the Resident Marine Mammals, are therefore declared to possess the legal
standing to file this petition.
Same; Same; Same; Unwilling Co-petitioners; Impleading the former President as an
unwilling co-petitioner, for an act she made in the performance of the functions of
her office, is contrary to the public policy against embroiling the President in suits,
to assure the exercise of Presidential duties and functions free from any hindrance
or distraction, considering that being the Chief Executive of the Government is a job
that, aside from requiring all of the office holders time, also demands undivided
attention.Section 10, Rule 3 of the Rules of Court provides: Sec. 10. Unwilling co-
plaintiff.If the consent of any party who should be joined as plaintiff can not be
obtained, he may be made a defendant and the reason therefor shall be stated in
the complaint. Under the foregoing rule, when the consent of a party who should be
joined as a plaintiff cannot be obtained, he or she may be made a party defendant
to the case. This will put the unwilling party under the jurisdiction of the Court,
which can properly implead him or her through its processes. The unwilling partys
name cannot be simply included in a petition, without his or her knowledge and
consent, as such would be a denial of due process. Moreover, the reason cited by
the petitioners Stewards for including former President Macapagal-Arroyo in their
petition, is not sufficient to implead her as an unwilling co-petitioner. Impleading the
former President as an unwilling co-petitioner, for an act she made in the
performance of the functions of her office, is contrary to the public policy against
embroiling the President in suits, to assure the exercise of Presidential duties and
functions free from any hindrance or distraction, considering that being the Chief
Executive of the Government is a job that, aside from requiring all of the office
holders time, also demands undivided attention. Therefore, former President
Macapagal-Arroyo cannot be impleaded as one of the petitioners in this suit. Thus,
her name is stricken off the title of this case.
Service Contracts; In La Bugal-Blaan Tribal Association, Inc. v. Ramos, 445 SCRA 1
(2004), the Supreme Court (SC) held that the deletion of the words service
contracts in the 1987 Constitution did not amount to a ban on them per se.This
Court has previously settled the issue of whether service contracts are still allowed
under the 1987 Constitution. In La Bugal-Blaan Tribal Association, Inc. v. Ramos, 445
SCRA 1 (2004), we held that the deletion of the words service contracts in the
1987 Constitution did not amount to a ban on them per se. In fact, in that decision,
we quoted in length, portions of the deliberations of the members of the
Constitutional Commission (ConCom) to show that in deliberating on paragraph 4,
Section 2, Article XII, they were actually referring to service contracts as understood
in the 1973 Constitution, albeit with safety measures to eliminate or minimize the
abuses prevalent during the martial law regime.
Natural Resources; Oil Explorations; Oil Exploration and Development Act of 1972;
The disposition, exploration, development, exploitation, and utilization of indigenous
petroleum in the Philippines are governed by Presidential Decree (PD) No. 87 or the
Oil Exploration and Development Act of 1972.The disposition, exploration,
development, exploitation, and utilization of indigenous petroleum in the Philippines
are governed by Presidential Decree No. 87 or the Oil Exploration and Development
Act of 1972. This was enacted by then President Ferdinand Marcos to promote the
discovery and production of indigenous petroleum through the utilization of
government and/or local or foreign private resources to yield the maximum benefit
to the Filipino people and the revenues to the Philippine Government. Contrary to
the petitioners argument, Presidential Decree No. 87, although enacted in 1972,
before the adoption of the 1987 Constitution, remains to be a valid law unless
otherwise repealed.
Statutory Construction; In cases where the statute seems to be in conflict with the
Constitution, but a construction that it is in harmony with the Constitution is also
possible, that construction should be preferred.In cases where the statute seems
to be in conflict with the Constitution, but a construction that it is in harmony with
the Constitution is also possible, that construction should be preferred. This Court, in
Pangandaman v. Commission on Elections, 319 SCRA 283 (1999), expounding on this
point, pronounced: It is a basic precept in statutory construction that a statute
should be interpreted in harmony with the Constitution and that the spirit, rather
than the letter of the law determines its construction; for that reason, a statute must
be read according to its spirit and intent. x x x. (Citation omitted) Consequently, we
find no merit in petitioners contention that SC-46 is prohibited on the ground that
there is no general law prescribing the standard or uniform terms, conditions, and
requirements for service contracts involving oil exploration and extraction.
Constitutional Law; Presidency; Oil Explorations; Natural Resources; Paragraph 4,
Section 2, Article XII of the 1987 Constitution requires that the President himself
enter into any service contract for the exploration of petroleum.Paragraph 4,
Section 2, Article XII of the 1987 Constitution requires that the President himself
enter into any service contract for the exploration of petroleum. SC-46 appeared to
have been entered into and signed only by the DOE through its then Secretary,
Vicente S. Perez, Jr., contrary to the said constitutional requirement. Moreover, public
respondents have neither shown nor alleged that Congress was subsequently
notified of the execution of such contract. Public respondents implied argument that
based on the alter ego principle, their acts are also that of then President
Macapagal-Arroyos, cannot apply in this case. In Joson v. Torres, 290 SCRA 279
(1998), we explained the concept of the alter ego principle or the doctrine of
qualified political agency and its limit in this wise: Under this doctrine, which
recognizes the establishment of a single executive, all executive and administrative
organizations are adjuncts of the Executive Department, the heads of the various
executive departments are assistants and agents of the Chief Executive, and, except
in cases where the Chief Executive is required by the Constitution or law to act in
person or the exigencies of the situation demand that he act personally, the
multifarious executive and administrative functions of the Chief Executive are
performed by and through the executive departments, and the acts of the
Secretaries of such departments, performed and promulgated in the regular course
of business, are, unless disapproved or reprobated by the Chief Executive
presumptively the acts of the Chief Executive.
Same; Balanced and Healthful Ecology; National Integrated Protected Areas System
Act of 1992; Natural Resources; True to the constitutional policy that the State shall
protect and advance the right of the people to a balanced and healthful ecology in
accord with the rhythm and harmony of nature, Congress enacted the National
Integrated Protected Areas System Act of 1992 (NIPAS Act) to secure the perpetual
existence of all native plants and animals through the establishment of a
comprehensive system of integrated protected areas.True to the constitutional
policy that the State shall protect and advance the right of the people to a balanced
and healthful ecology in accord with the rhythm and harmony of nature, Congress
enacted the NIPAS Act to secure the perpetual existence of all native plants and
animals through the establishment of a comprehensive system of integrated
protected areas. These areas possess common ecological values that were
incorporated into a holistic plan representative of our natural heritage. The system
encompasses outstandingly remarkable areas and biologically important public
lands that are habitats of rare and endangered species of plants and animals,
biogeographic zones and related ecosystems, whether terrestrial, wetland, or
marine. It classifies and administers all the designated protected areas to maintain
essential ecological processes and life-support systems, to preserve genetic
diversity, to ensure sustainable use of resources found therein, and to maintain their
natural conditions to the greatest extent possible. The following categories of
protected areas were established under the NIPAS Act: a. Strict nature reserve; b.
Natural park; c. Natural monument; d. Wildlife sanctuary; e. Protected landscapes
and seascapes; f. Resource reserve; g. Natural biotic areas; and h. Other categories
established by law, conventions or international agreements which the Philippine
Government is a signatory.
Same; Same; Same; Same; Under Section 4 of the National Integrated Protected
Areas System Act of 1992 (NIPAS Act), a protected area refers to portions of land and
water, set aside due to their unique physical and biological significance, managed to
enhance biological diversity and protected against human exploitation.Under
Section 4 of the NIPAS Act, a protected area refers to portions of land and water, set
aside due to their unique physical and biological significance, managed to enhance
biological diversity and protected against human exploitation. The Taon Strait,
pursuant to Proclamation No. 1234, was set aside and declared a protected area
under the category of Protected Seascape. The NIPAS Act defines a Protected
Seascape to be an area of national significance characterized by the harmonious
interaction of man and land while providing opportunities for public enjoyment
through recreation and tourism within the normal lifestyle and economic activity of
this areas; thus a management plan for each area must be designed to protect and
enhance the permanent preservation of its natural conditions. Consistent with his
endeavor is the requirement that an Environmental Impact Assessment (EIA) be
made prior to undertaking any activity outside the scope of the management plan.
Unless an ECC under the EIA system is obtained, no activity inconsistent with the
goals of the NIPAS Act shall be implemented.
Same; Same; Same; Same; Environmentally Critical Area; Environmental Impact
Statement System; The Environmental Impact Statement System (EISS) prohibits
any person, partnership or corporation from undertaking or operating any declared
environmentally critical project or areas without first securing an Environmental
Compliance Certificate (ECC) issued by the President or his duly authorized
representative.The Environmental Impact Statement System (EISS) was
established in 1978 under Presidential Decree No. 1586. It prohibits any person,
partnership or corporation from undertaking or operating any declared
environmentally critical project or areas without first securing an ECC issued by the
President or his duly authorized representative. Pursuant to the EISS, which called
for the proper management of environmentally critical areas, Proclamation No. 2146
was enacted, identifying the areas and types of projects to be considered as
environmentally critical and within the scope of the EISS, while DENR Administrative
Order No. 2003-30 provided for its Implementing Rules and Regulations (IRR).
Same; Same; Same; Same; Same; Words and Phrases; Department of Environment
and Natural Resources (DENR) Administrative Order No. 2003-30 defines an
environmentally critical area as an area delineated as environmentally sensitive
such that significant environmental impacts are expected if certain types of
proposed projects or programs are located, developed, or implemented in it; thus,
before a project, which is any activity, regardless of scale or magnitude, which may
have significant impact on the environment, is undertaken in it, such project must
undergo an Environmental Impact Assessment (EIA) to evaluate and predict the
likely impacts of all its stages on the environment.DENR Administrative Order No.
2003-30 defines an environmentally critical area as an area delineated as
environmentally sensitive such that significant environmental impacts are expected
if certain types of proposed projects or programs are located, developed, or
implemented in it; thus, before a project, which is any activity, regardless of scale
or magnitude, which may have significant impact on the environment, is
undertaken in it, such project must undergo an EIA to evaluate and predict the likely
impacts of all its stages on the environment. An EIA is described in detail as follows:
h. Environmental Impact Assessment (EIA) process that involves evaluating and
predicting the likely impacts of a project (including cumulative impacts) on the
environment during construction, commissioning, operation and abandonment. It
also includes designing appropriate preventive, mitigating and enhancement
measures addressing these consequences to protect the environment and the
communitys welfare. The process is undertaken by, among others, the project
proponent and/or EIA Consultant, EMB, a Review Committee, affected communities
and other stakeholders.
Same; Same; Same; Natural Resources; Service Contracts; Oil Explorations; While
Presidential Decree (PD) No. 87 may serve as the general law upon which a service
contract for petroleum exploration and extraction may be authorized, the
exploitation and utilization of this energy resource in the present case may be
allowed only through a law passed by Congress, since the Taon Strait is a National
Integrated Protected Areas System (NIPAS) area.SC-46 was not executed for the
mere purpose of gathering information on the possible energy resources in the
Taon Strait as it also provides for the parties rights and obligations relating to
extraction and petroleum production should oil in commercial quantities be found to
exist in the area. While Presidential Decree No. 87 may serve as the general law
upon which a service contract for petroleum exploration and extraction may be
authorized, the exploitation and utilization of this energy resource in the present
case may be allowed only through a law passed by Congress, since the Taon Strait
is a NIPAS area. Since there is no such law specifically allowing oil exploration and/or
extraction in the Taon Strait, no energy resource exploitation and utilization may be
done in said protected seascape. Resident Marine Mammals of the Protected
Seascape Taon Strait vs. Reyes, 756 SCRA 513, G.R. No. 181527 April 21, 2015
G.R. No. 180771 April 21, 2015
RESIDENT MARINE MAMMALS OF THE PROTECTED SEASCAPE TAON
STRAIT, e.g., TOOTHED WHALES, DOLPHINS, PORPOISES, AND OTHER
CETACEAN SPECIES, Joined in and Represented herein by Human Beings
Gloria Estenzo Ramos and Rose-Liza Eisma-Osorio, In Their Capacity as
Legal Guardians of the Lesser Life-Forms and as Responsible Stewards of
God's Creations, Petitioners,
vs.
SECRETARY ANGELO REYES, in his capacity as Secretary of the Department
of Energy (DOE), SECRETARY JOSE L. ATIENZA, in his capacity as Secretary
of the Department of Environment and Natural Resources (DENR),
LEONARDO R. SIBBALUCA, DENR Regional Director-Region VII and in his
capacity as Chairperson of the Taon Strait Protected Seascape
Management Board, Bureau of Fisheries and Aquatic Resources (BFAR),
DIRECTOR MALCOLM J. SARMIENTO, JR., BFAR Regional Director for Region
VII ANDRES M. BOJOS, JAPAN PETROLEUM EXPLORATION CO., LTD. (JAPEX),
as represented by its Philippine Agent, SUPPLY OILFIELD SERVICES,
INC. Respondents.
x-----------------------x
G.R. No. 181527
CENTRAL VISAYAS FISHERFOLK DEVELOPMENT CENTER (FIDEC), CERILO D.
ENGARCIAL, RAMON YANONG, FRANCISCO LABID, in their personal capacity
and as representatives of the SUBSISTENCE FISHERFOLKS OF THE
MUNICIPALITIES OF ALOGUINSAN AND PINAMUNGAJAN, CEBU, AND THEIR
FAMILIES, AND THE PRESENT AND FUTURE GENERATIONS OF FILIPINOS
WHOSE RIGHTS ARE SIMILARLY AFFECTED, Petitioners,
vs.
SECRETARY ANGELO REYES, in his capacity as Secretary of the Department
of Energy (DOE), JOSE L. ATIENZA, in his capacity as Secretary of the
Department of Environment and Natural Resources (DENR), LEONARDO R.
SIBBALUCA, in his capacity as DENR Regional Director-Region VII and as
Chairperson of the Taon Strait Protected Seascape Management Board,
ALAN ARRANGUEZ, in his capacity as Director - Environmental
Management Bureau-Region VII, DOE Regional Director for Region
VIII1 ANTONIO LABIOS, JAPAN PETROLEUM EXPLORATION CO., LTD. (JAPEX),
as represented by its Philippine Agent, SUPPLY OILFIELD SERVICES,
INC., Respondents.
CONCURRING OPINION
"Until one has loved an animal,
a part of one 's soul remains unawakened."
Anatole France
LEONEN, J.:
I concur in the result, with the following additional reasons.
I
In G.R. No. 180771, petitioners Resident Marine Mammals allegedly bring their case
in their personal capacity, alleging that they stand to benefit or be injured from the
judgment on the issues. The human petitioners implead themselves in a
representative capacity "as legal guardians of the lesser life-forms and as
responsible stewards of God's Creations." 1 They use Oposa v. Factoran, Jr.2 as basis
for their claim, asserting their right to enforce international and domestic
environmental laws enacted for their benefit under the concept of stipulation pour
autrui.3 As the representatives of Resident Marine Mammals, the human petitioners
assert that they have the obligation to build awareness among the affected
residents of Taon Strait as well as to protect the environment, especially in light of
the government's failure, as primary steward, to do its duty under the doctrine of
public trust.4
Resident Marine Mammals and the human petitioners also assert that through this
case, this court will have the opportunity to lower the threshold for locus standi as
an exercise of "epistolary jurisdiction." 5
The zeal of the human petitioners to pursue their desire to protect the environment
and to continue to define environmental rights in the context of actual cases is
commendable. However, the space for legal creativity usually required for advocacy
of issues of the public interest is not so unlimited that it should be allowed to
undermine the other values protected by current substantive and procedural laws.
Even rules of procedure as currently formulated set the balance between competing
interests. We cannot abandon these rules when the necessity is not clearly and
convincingly presented.
The human petitioners, in G.R. No. 180771, want us to create substantive and
procedural rights for animals through their allegation that they can speak for them.
Obviously, we are asked to accept the premises that (a) they were chosen by the
Resident Marine Mammals of Taon Strait; (b) they were chosen by a representative
group of all the species of the Resident Marine Mammals; (c) they were able to
communicate with them; and (d) they received clear consent from their animal
principals that they would wish to use human legal institutions to pursue their
interests. Alternatively, they ask us to acknowledge through judicial notice that the
interests that they, the human petitioners, assert are identical to what the Resident
Marine Mammals would assert had they been humans and the legal strategies that
they invoked are the strategies that they agree with.
In the alternative, they want us to accept through judicial notice that there is a
relationship of guardianship between them and all the resident mammals in the
affected ecology.
Fundamental judicial doctrines that may significantly change substantive and
procedural law cannot be founded on feigned representation.
Instead, I agree that the human petitioners should only speak for themselves and
already have legal standing to sue with respect to the issue raised in their pleading.
The rules on standing have already been liberalized to take into consideration the
difficulties in the assertion of environmental rights. When standing becomes too
liberal, this can be the occasion for abuse.
II
Rule 3, Section 1 of the 1997 Rules of Civil Procedure, in part, provides:
SECTION 1. Who may be parties; plaintiff and defendant. - Only natural or juridical
persons, or entities authorized by law may be parties in a civil action.
The Rules provide that parties may only be natural or juridical persons or entities
that may be authorized by statute to be parties in a civil action.
Basic is the concept of natural and juridical persons in our Civil Code:
ARTICLE 37. Juridical capacity, which is the fitness to be the subject of legal
relations, is inherent in every natural person and is lost only through death. Capacity
to act, which is the power to do acts with legal effect, is acquired and may be lost.
Article 40 further defines natural persons in the following manner:
ARTICLE 40. Birth determines personality; but the conceived child shall be
considered born for all purposes that are favorable to it, provided it be born later
with the conditions specified 'in the following article.
Article 44, on the other hand, enumerates the concept of a juridical person:
ARTICLE 44. The following are juridical persons:
(1) The State and its political subdivisions;
(2) Other corporations, institutions and entities for public interest or
purpose, created by law; their personality begins as soon as they have
been constituted according to law;
(3) Corporations, partnerships and associations for private interest or
purpose to which the law grants a juridical personality, separate and
distinct from that of each shareholder, partner or member.
Petitioners in G.R. No. 180771 implicitly suggest that we amend, rather than simply
construe, the provisions of the Rules of Court as well as substantive law to
accommodate Resident Marine Mammals or animals. This we cannot do.
Rule 3, Section 2 of the 1997 Rules of Civil Procedure further defines real party in
interest:
SEC. 2. Parties in interest.-A real party in interest is the party who stands to be
benefited or injured by the judgment in the suit, or the party entitled to the avails of
the suit. Unless otherwise authorized by law or these Rules, every action must be
prosecuted or defended in the name of the real party in interest. (2a) 6
A litigant who stands to benefit or sustain an injury from the judgment of a case is a
real party in interest.7 When a case is brought to the courts, the real party in interest
must show that another party's act or omission has caused a direct injury, making
his or her interest both material and based on an enforceable legal right. 8
Representatives as parties, on the other hand, are parties acting in representation of
the real party in interest, as defined in Rule 3, Section 3 of the 1997 Rules of Civil
Procedure:
SEC. 3. Representatives as parties. - Where the action is allowed to be prosecuted or
defended by a representative or someone acting in a fiduciary capacity, the
beneficiary shall be included in the title of the case and shall be deemed to be the
real party in interest. A representative may be a trustee of an express rust, a
guardian, an executor or administrator, or a party authorized by law or these Rules.
An agent acting in his own name and for the benefit of an undisclosed principal may
sue or be sued without joining the principal except when the contract involves things
belonging to the principal.(3a)9
The rule is two-pronged. First, it defines .a representative as a party who is not
bound to directly or actually benefit or suffer from the judgment, but instead brings
a case in favor of an identified real party in interest.10 The representative is an
outsider to the cause of action. Second, the rule provides a list of who may be
considered as "representatives." It is not an exhaustive list, but the rule limits the
coverage only to those authorized by law or the Rules of Court.11
These requirements should apply even in cases involving the environment, which
means that for the Petition of the human petitioners to prosper, they must show that
(a) the Resident Marine Mammals are real parties in interest; and (b) that the human
petitioners are authorized by law or the Rules to act in a representative capacity.
The Resident Marine Mammals are comprised of "toothed whales, dolphins,
porpoises, and other cetacean species inhabiting Taon Strait." 12 While relatively
new in Philippine jurisdiction, the issue of whether animals have legal standing
before courts has been the subject of academic discourse in light of the emergence
of animal and environmental rights.
In the United States, anim4l rights advocates have managed to establish a system
which Hogan explains as the "guardianship model for nonhuman animals": 13
Despite Animal Lovers, there exists a well-established system by which nonhuman
animals may obtain judicial review to enforce their statutory rights and protections:
guardianships. With court approval, animal advocacy organizations may bring suit
on behalf of nonhuman animals in the same way court-appointed guardians bring
suit on behalf of mentally-challenged humans who possess an enforceable right but
lack the ability to enforce it themselves.
In the controversial but pivotal Should Trees Have Standing?-Toward Legal Rights for
Natural Objects, Christopher D. Stone asserts that the environment should possess
the right to seek judicial redress even though it is incapable of representing itself.
While asserting the rights of
speechless entities such as the environment or nonhuman animals certainly poses
legitimate challenges - such as identifying the proper spokesman -the American
legal system is already well-equipped with a reliable mechanism by which
nonhumans may obtain standing via a judicially established guardianship. Stone
notes that other speechless - and nonhuman - entities such as corporations, states,
estates, and municipalities have standing to bring suit on their own behalf. There is
little reason to fear abuses under this regime as procedures for removal and
substitution, avoiding conflicts of interest, and termination of a guardianship are well
established.
In fact, the opinion in Animal Lovers suggests that such an arrangement is indeed
possible. The court indicated that AL VA might have obtained standing in its own
right if it had an established history of dedication to the cause of the humane
treatment of animals. It noted that the Fund for Animals had standing and indicated
that another more well-known advocacy organization might have had standing as
well. The court further concluded that an organization's standing is more than a
derivative of its history, but history is a relevant consideration where organizations
are not well-established prior to commencing legal action. ALVA was not the proper
plaintiff because it could not identify previous activities demonstrating its recognized
activism for and commitment to the dispute independent of its desire to pursue legal
action. The court's analysis suggests that a qualified organization with a
demonstrated commitment to a cause could indeed bring suit on behalf of the
speechless in the form of a court-sanctioned guardianship.
This Comment advocates a shift in contemporary standing doctrine to empower non-
profit organizations with an established history of dedication to the cause and
relevant expertise to serve as official guardians ad !item on behalf of nonhuman
animals interests. The American legal system has numerous mechanisms for
representing the rights and interests of nonhumans; any challenges inherent in
extending these pre-existing mechanisms to nonhuman animals are minimal
compared to an interest in the proper administration of justice. To adequately
protect the statutory rights of nonhuman animals, the legal system must recognize
those statutory rights independent of humans and provide a viable means of
enforcement. Moreover, the idea of a guardianship for speechless plaintiffs is not
new and has been urged on behalf of the natural environment. 'Such a model is
even more compelling as applied to nonhuman animals, because they are sentient
beings with the ability to feel pain and exercise rational thought. Thus, animals are
qualitatively different from other legally protected nonhumans and therefore have
interests deserving direct legal protection.
Furthermore, the difficulty of enforcing the statutory rights of nonhuman animals
threatens the integrity of the federal statutes designed to protect them, essentially
rendering them meaningless. Sensing that laws protecting nonhuman animals would
be difficult to enforce, Congress provided for citizen suit provisions: the most well-
known example is found in the Endangered Species Act (ESA). Such provisions are
evidence of legislative intent to encourage civic participation on behalf of nonhuman
animals. Our law of standing should reflect this intent and its implication that
humans are suitable representatives of the natural environment, which includes
nonhuman animals.14 (Emphasis supplied, citation omitted)
When a court allows guardianship as a basis of representation, animals are
considered as similarly situated as individuals who have enforceable rights but, for a
legitimate reason (e.g., cognitive disability), are unable to bring suit for themselves.
They are also similar to entities that by their very nature are incapable of speaking
for themselves (e.g., corporations, states, and others).
In our jurisdiction, persons and entities are recognized both in law and the Rules of
Court as having standing to sue and, therefore, may be properly represented as real
parties in interest. The same cannot be said about animals.
Animals play an important role in households, communities, and the environment.
While we, as humans, may feel the need to nurture and protect them, we cannot go
as far as saying we represent their best interests and can, therefore, speak for them
before the courts. As humans, we cannot be so arrogant as to argue that we know
the suffering of animals and that we know what remedy they need in the face of an
injury.
Even in Hogan's discussion, she points out that in a case before the United States
District Court for the Central District of California, Animal Lovers Volunteer Ass'n v.
Weinberger,15 the court held that an emotional response to what humans perceive to
be an injury inflicted on an animal is not within the "zone-of-interest" protected by
law.16Such sympathy cannot stand independent of or as a substitute for an actual
injury suffered by the claimant.17 The ability to represent animals was further limited
in that case by the need to prove "genuine dedication" to asserting and protecting
animal rights:
What ultimately proved fatal to ALVA 's claim, however, was the court's assertion
that standing doctrine further required ALVA to differentiate its genuine dedication to
the humane treatment of animals from the general disdain for animal cruelty shared
by the public at large. In doing so, the court found ALVA 's asserted organizational
injury to be abstract and thus relegated ALVA to the ranks of the "concerned
bystander. "
....
In fact, the opinion in Animal Lovers suggests that such an arrangement is indeed
possible. The court indicated that ALVA might have obtained standing in its own right
if it had an established history of dedication to the cause of the humane treatment
of animals. It noted that the Fund for Animals had standing and indicated that
another more well-known advocacy organization might have had standing as well.
The court further concluded that an organization's standing is more than a
derivative of its history, but history is a relevant consideration where organizations
are not well-established prior to commencing legal action. ALVA was not the proper
plaintiff because it could not identify previous activities demonstrating its recognized
activism for and commitment to the dispute independent of its desire to pursue legal
action. The court's analysis suggests that a qualified organization with a
demonstrated commitment to a cause could indeed bring suit on behalf of the
speechless in the form of a court-sanctioned guardianship. 18 (Emphasis supplied,
citation omitted)
What may be argued as being parallel to this concept of guardianship is the principle
of human stewardship over the environment in a citizen suit under the Rules of
Procedure for Environmental Cases. A citizen suit allows any Filipino to act as a
representative of a party who has enforceable rights under environmental laws
before Philippine courts, and is defined in Section 5: .
SEC. 5. Citizen suit. - Any Filipino citizen in representation of others, including minors
or generations yet unborn, may file an action to enforce rights or obligations under
environmental laws. Upon the filing of a citizen suit, the court shall issue an order
which shall contain a brief description of the cause of action and the reliefs prayed
for, requiring all interested parties to manifest their interest to intervene in the case
within fifteen (15) days from notice thereof. The plaintiff may publish the order once
in a newspaper of a general circulation in the Philippines or furnish all affected
barangays copies of said order.
There is no valid reason in law or the practical requirements of this case to implead
and feign representation on behalf of animals. To have done so betrays a very
anthropocentric view of environmental advocacy. There is no way that we, humans,
can claim to speak for animals let alone present that they would wish to use our
court system, which is designed to ensure that humans seriously carry their
responsibility including ensuring a viable ecology for themselves, which of course
includes compassion for all living things.
Our rules on standing are sufficient and need not be further relaxed.
In Arigo v. Swift,19 I posed the possibility of further reviewing the broad interpretation
we have given to the rule on standing. While representatives are not required to
establish direct injury on their part, they should only be allowed to represent after
complying with the following: [I]t is imperative for them to indicate with certainty
the injured parties on whose behalf they bring the suit. Furthermore, the interest of
those they represent must be based upon concrete legal rights. It is not sufficient to
draw out a perceived interest from a general, nebulous idea of a potential "injury." 20
I reiterate my position in Arigo v. Swift and in Paje v. Casio 21 regarding this rule
alongside the appreciation of legal standing in Oposa v. Factoran 22 for environmental
cases. In Arigo, I opined that procedural liberality, especially in cases brought by
representatives, should be used with great caution:
Perhaps it is time to revisit the ruling in Oposa v. Factoran.
That case was significant in that, at that time, there was need to call attention to
environmental concerns in light of emerging international legal principles. While
"intergenerational responsibility" is a noble principle, it should not be used to obtain
judgments that would preclude future generations from making their own
assessment based on their actual concerns. The present generation must restrain
itself from assuming that it can speak best for those who will exist at a different
time, under a different set of circumstances. In essence, the unbridled resort to
representative suit will inevitably result in preventing future generations from
protecting their own rights and pursuing their own interests and decisions. It reduces
the autonomy of our children and our children 's children. Even before they are born,
we again restricted their ability to make their own arguments.
It is my opinion that, at best, the use of the Oposa doctrine in environmental cases
should be allowed only when a) there is a clear legal basis for the representative
suit; b) there are actual concerns based squarely upon an existing legal right; c)
there is no possibility of any countervailing interests existing within the population
represented or those that are yet to be born; and d) there is an absolute necessity
for such standing because there is a threat of catastrophe so imminent that an
immediate protective measure is necessary. Better still, in the light of its costs and
risks, we abandon the precedent all together. 23 (Emphasis in the original)
Similarly, in Paje:
A person cannot invoke the court's jurisdiction if he or she has no right or interest to
protect. He or she who invokes the court's jurisdiction must be the "owner of the
right sought to be enforced." In other words, he or she must have a cause of action.
An action may be dismissed on the ground of lack of cause of action if the person
who instituted it is not the real party in interest.24 The term "interest" under the
Rules of Court must refer to a material interest that is not merely a curiosity about or
an "interest in the question involved." The interest must be present and substantial.
It is not a mere expectancy or a future, contingent interest.
A person who is not a real party in interest may institute an action if he or she is
suing as representative of a .real party in interest. When an action is prosecuted or
defended by a representative, that representative is not and does not become the
real party in interest. The person represented is deemed the real party in interest.
The representative remains to be a third party to the action instituted on behalf of
another.
....
To sue under this rule, two elements must be present: "(a) the suit is brought on
behalf of an identified party whose right has been violated, resulting in some form of
damage, and (b) the representative authorized by law or the Rules of Court to
represent the victim."
The Rules of Procedure for Environmental Cases allows filing of a citizen's suit. A
citizen's suit under this rule allows any Filipino citizen to file an action for the
enforcement of environmental law on behalf of minors or generations yet unborn. It
is essentially a representative suit that allows persons who are not real parties in
interest to institute actions on behalf of the real party in interest.
The expansion of what constitutes "real party in interest" to include minors and
generations yet unborn is a recognition of this court's ruling in Oposa v. Factoran.
This court recognized the capacity of minors (represented by their parents) to file a
class suit on behalf of succeeding generations based on the concept of
intergenerational responsibility to ensure the future generation's access to and
enjoyment of [the] country's natural resources.
To allow citizen's suits to enforce environmental rights of others, including future
generations, is dangerous for three reasons:
First, they run the risk of foreclosing arguments of others who are unable to take
part in the suit, putting into. question its representativeness. Second, varying
interests may potentially result in arguments that are bordering on political issues,
the resolutions of which do not fall upon this court. Third, automatically allowing a
class or citizen's suit on behalf of minors and generations yet unborn may result in
the oversimplification of what may be a complex issue, especially in light of the
impossibility of determining future generation's true interests on the matter.
In citizen's suits, persons who may have no interest in the case may file suits for
others. Uninterested persons will argue for the persons they represent, and the court
will decide based on their evidence and arguments. Any decision by the court will be
binding upon the beneficiaries, which in this case are the minors and the future
generations. The court's decision will be res judicata upon them and conclusive upon
the issues presented.25
The danger in invoking Oposa v. Factoran to justify all kinds of environmental claims
lies in its potential to diminish the value of legitimate environmental rights.
Extending the application of "real party in interest" to the Resident Marine Mammals,
or animals in general, through a judicial pronouncement will potentially result in
allowing petitions based on mere concern rather than an actual enforcement of a
right. It is impossible for animals to tell humans what their concerns are. At best,
humans can only surmise the extent of injury inflicted, if there be any. Petitions
invoking a right and seeking legal redress before this court cannot be a product of
guesswork, and representatives have the responsibility to ensure that they bring
"reasonably cogent, rational, scientific, well-founded arguments" 26 on behalf of those
they represent.
Creative approaches to fundamental problems should be welcome. However, they
should be considered carefully so that no unintended or unwarranted consequences
should follow. I concur with the approach of Madame Justice Teresita J. Leonardo-De
Castro in her brilliant ponencia as it carefully narrows down the doctrine in terms of
standing. Resident Marine Mammals and the human petitioners have no legal
standing to file any kind of petition.
However, I agree that petitioners in G.R. No. 181527, namely, Central Visayas
Fisherfolk Development Center,. Engarcial, Yanong, and Labid, have standing both as
real parties in interest and as representatives of subsistence fisherfolks of the
Municipalities of Aloguinsan and Pinamungahan, Cebu, and their families, and the
present and future generations of Filipinos whose rights are similarly affected. The
activities undertaken under Service Contract 46 (SC-46) directly affected their
source of livelihood, primarily felt through the significant reduction of their fish
harvest.27 The actual, direct, and material damage they suffered, which has potential
long-term effects transcending generations, is a proper subject of a legal suit.
III
In our jurisdiction, there is neither reason nor any legal basis for the concept of
implied petitioners, most especially when the implied petitioner was a sitting
President of the Republic of the Philippines. In G.R. No. 180771, apart from
adjudicating unto themselves the status of "legal guardians" of whales, dolphins,
porpoises, and other cetacean species, human petitioners also impleaded Former
President Gloria Macapagal-Arroyo as "unwilling co-petitioner" for "her express
declaration and undertaking in the ASEAN Charter to protect Taon Strait." 28
No person may implead any other person as a co-plaintiff or co-petitioner without his
or her consent. In our jurisdiction, only when there is a party that should have been
a necessary party but was unwilling to join would there be an allegation as to why
that party has been omitted. In Rule 3, Section 9 of the 1997 Rules of Civil
Procedure:
SEC. 9. Non-joinder of necessary parties to be pleaded. -Whenever in any pleading in
which a claim is asserted a necessary party is not joined, the pleader shall set forth
his name, if known, and shall state why he is omitted. Should the court find the
reason for the omission unmeritorious, it may order the inclusion of the omitted
necessary party if jurisdiction over his person may be obtained.
The failure to comply with the order for his inclusion, without justifiable cause, shall
be deemed a waiver of the claim against such party.
The non-inclusion of a necessary party does not prevent the court from proceeding
in the action, and the judgment rendered therein shall be without prejudice to the
rights of such necessary party.29
A party who should have been a plaintiff or petitioner but whose consent cannot be
obtained should be impleaded as a defendant in the nature of an unwilling co-
plaintiff under Rule 3, Section 10 of the 1997 Rules of Civil Procedure:
SEC. 10. Unwilling co-plaintiff. - If the consent of any party who should be joined as
plaintiff can not be obtained, he may be made a defendant and the reason therefor
shall be stated in the complaint.30
The reason for this rule is plain: Indispensable party plaintiffs who should be part of
the action but who do not consent should be put within the jurisdiction of the court
through summons or other court processes. Petitioners. should not take it upon
themselves to simply imp lead any party who does not consent as a petitioner. This
places the unwilling co-petitioner at the risk of being denied due process.
Besides, Former President Gloria Macapagal-Arroyo cannot be a party to this suit. As
a co-equal constitutional department, we cannot assume that the President needs to
enforce policy directions by suing his or her alter-egos. The procedural situation
caused by petitioners may have gained public attention, but its legal absurdity
borders on the contemptuous. The Former President's name should be stricken out
of the title of this case.
IV
I also concur with the conclusion that SC-46 is both. illegal and unconstitutional.
SC-46 is illegal because it violates Republic Act No. 7586 or the National Integrated
Protected Areas System Act of 1992, and Presidential Decree No. 1234, 31 which
declared Taon Strait as a protected seascape. It is unconstitutional because it
violates the fourth paragraph of Article XII, Section 2 of the Constitution.
V I agree that fully foreign-owned corporations may participate in the exploration,
Petitioner Central Visayas Fisherfolk Development Center asserts that SC-46 violated
Article XII, Section 2, paragraph 1 of the .1987 Constitution because Japan Petroleum
Exploration Co., Ltd. (JAPEX) is 100% Japanese-owned. 32 It further asserts that SC-46
cannot be validly classified as a technical and financial assistance agreement
executed under Article XII, Section 2, paragraph 4 of the 1987 Constitution. 33 Public
respondents counter that SC-46 does not fall under the coverage of paragraph 1, but
is a validly executed contract under paragraph 4. 34 Public respondents further aver
that SC-46 neither granted exclusive fishing rights to JAPEX nor violated Central
Visayas Fisherfolk Development Center's right to preferential use of communal
marine and fishing resources.35
VI
Article XII, Section 2 of the 1987 Constitution states:
Section 2. All lands of the public domain, waters, minerals, coal, petroleum, and
other mineral oils, all forces of potential energy, fisheries, forests or timber, wildlife,
flora and fauna, and other natural resources are owned by the State. With the
exception. of agricultural lands, all other natural resources shall not be alienated.
The exploration, development, and utilization of natural resources shall be under the
full control and supervision of the State. The State may directly undertake such
activities, or it may enter into co-production, joint venture, or production-sharing
agreements with Filipino citizens, or corporations or associations at least sixty per
centum of whose capital is owned by such citizens. Such agreements may be for a
period not exceeding twenty-five years, renewable for not more than twenty-five
years, and under such terms and conditions as may be provided by law. In cases of
water rights for irrigation, water supply fisheries, or industrial uses other than the
development of water power, beneficial use may be the measure and limit of the
grant.
The State shall protect the nation's marine wealth in its archipelagic waters,
territorial sea, and exclusive economic zone, and reserve its use and enjoyment
exclusively to Filipino citizens.
The Congress may, by law, allow small-scale utilization of natural resources by
Filipino citizens, as well as cooperative fish farming, with priority to subsistence
fishermen and fish-workers in rivers, lakes, bays, and lagoons.
The President may enter into agreements with foreign-owned corporations involving
either technical or financial assistance for large-scale exploration, development, and
utilization of minerals, petroleum, and other mineral oils according to the general
terms and conditions provided by law, based on real contributions to the economic
growth and general welfare of the country. In such agreements, the State shall
promote the development and use of local scientific and technical resources.
The President shall notify the Congress of every contract entered into in accordance
with this provision, within thirty days from its execution. (Emphasis supplied)
development, and use of natural resources, but only through either financial
agreements or technical ones. This is the clear import of the words "either financial
or technical assistance agreements." This is also
the clear result if we compare the 1987 constitutional provision with the versions in
the 1973 and 1935 Constitution:
1973 CONSTITUTION
ARTICLE XIV
THE NATIONAL ECONOMY AND THE PATRIMONY OF THE NATION
SEC. 9. The disposition, exploration, development, of exploitation, or utilization of
any of the natural resources of the Philippines shall be limited to citizens of the
Philippines, or to corporations or association at least sixty per centum of the capital
of which is owned by such citizens. The Batasang Pambansa, in the national interest,
may allow such citizens, corporations, or associations to enter into service contracts
for financial, technical, management, or other forms of assistance with any foreign
person or entity for the exploitation, development, exploitation, or utilization of any
of the natural resources. Existing valid and binding service contracts for financial,
the technical, management, or other forms of assistance are hereby recognized as
such. (Emphasis supplied)
1935 CONSTITUTION
ARTICLE XIII
CONSERVATION AND UTILIZATION OF NATURAL RESOURCES
SECTION 1. All agricultural timber, and mineral. lands of the public domain, waters,
minerals, coal, petroleum, and other mineral oils, all forces of potential energy, and
other natural resources of the Philippines belong to the State, and their disposition,
exploitation, development, or utilization shall be limited to citizens of the Philippines,
or to corporations or associations at least sixty per centum of the capital of which is
owned by such citizens, subject to any existing right, grant, lease, or concession at
the time of the inauguration of the Government established under this Constitution.
Natural resources, with the exception of public agricultural land, shall not be
alienated, and no license, concession, or lease for the exploitation, development, or
utilization of any of the natural resources shall be granted for a period exceeding
twenty-five years, renewable for another twenty-five years, except as to water rights
for irrigation, water supply, fisheries, or industrial uses other than the development
of water power, in which cases beneficial use may be the measure and the limit of
the grant.
The clear text of the Constitution in light of its history prevails over any attempt to
infer interpretation from the Constitutional Commission deliberations. The
constitutional texts are the product of a full sovereign act: deliberations in a
constituent assembly and ratification. Reliance on recorded discussion of
Constitutional Commissions, on the other hand, may result in dependence on
incomplete authorship; Besides, it opens judicial review to further subjectivity from
those who spoke during the Constitutional Commission deliberations who may not
have predicted how their words will be used. It is safer that we use the words
already in the Constitution. The Constitution was their product. Its words were read
by those who ratified it. The Constitution is what society relies upon even at present.
SC-46 is neither a financial assistance nor a technical assistance agreement.
Even supposing for the sake of argument that it is, it could not be declared valid in
light of the standards set forth in La Bugal-B'laan Tribal Association, Inc. v. Ramos: 36
Such service contracts may be entered into only with respect to minerals, petroleum
and other mineral oils. The grant thereof is subject to several safeguards, among
which are these requirements:
(1) The service contract shall be crafted m accordance with a general law
that will set standard or uniform terms, conditions and requirements,
presumably to attain a certain uniformity in provisions and avoid the
possible insertion of terms disadvantageous to the country.
(2) The President shall be the signatory for the government because,
supposedly before an agreement is presented to the President for
signature, it will have been vetted several times over at different levels to
ensure that it conforms to law and can withstand public scrutiny.
(3) Within thirty days of the executed agreement, the President shall report
it to Congress to give that branch of government an opportunity to look
over the agreement and interpose timely objections, if any.37(Emphasis in
the original, citation omitted)
Based on the standards pronounced in La Bugal, SC-46' S validity must be tested
against three important points: (a) whether SC-46 was crafted in accordance with a
general law that provides standards, terms, and conditions; (b) whether SC-46 was
signed by the President for and on behalf of the government; and (c) whether it was
reported by the President to Congress within 30 days of execution.
VII
The general law referred to as a possible basis for SC-46's validity is Presidential
Decree No. 87 or the Oil Exploration and Development Act of 1972.1wphi1 It is my
opinion that this law is unconstitutional in that it allows service contracts, contrary
to Article XII, Section 2 of the 1987 Constitution:
The President may enter into agreements with foreign-owned corporations involving
either technical or financial assistance for large-scale exploration, development, and
utilization of minerals, petroleum, and other mineral oils according to the general
terms and conditions provided by law, based on real contributions to the economic
growth and general welfare of the country. In such agreements, the State shall
promote the development and use of local scientific and technical resources.
(Emphasis supplied)
The deletion of service contracts from the enumeration of the kind of agreements
the President may enter into with foreign-owned corporations for exploration and
utilization of resources means that service contracts are no longer allowed by the
Constitution. Pursuant to Article XVIII, Section 3 of the 1987 Constitution, 38 this
inconsistency renders the law invalid and ineffective.
SC-46 suffers from the lack of a special law allowing its activities. The Main Opinion
emphasizes an important point, which is that SC-46 did not merely involve
exploratory activities, but also provided the rights and obligations of the parties
should it be discovered that there is oil in commercial quantities in the area. The
Taon Strait being a protected seascape under Presidential Decree No.
123439 requires that the exploitation and utilization of energy resources from that
area are explicitly covered by a law passed by Congress specifically for that purpose,
pursuant to Section 14 of Republic Act No. 7586 or the National Integrated Protected
Areas System Act of 1992:
SEC. 14. Survey for Energy R6'sources. - Consistent with the policies declared in
Section 2, hereof, protected areas, except strict nature reserves and natural parks,
may be subjected to exploration only for the purpose of gathering information on
energy resources and only if such activity is carried out with the least damage to
surrounding areas. Surveys shall be conducted only in accordance with a program
approved by the DENR, and the result of such surveys shall be made available to the
public and submitted to the President for recommendation to Congress. Any
exploitation and utilization of energy resources found within NIP AS areas shall be
allowed only through a law passed by Congress.40 (Emphasis supplied)
No law was passed by Congress specifically providing the standards, terms, and
conditions of an oil exploration, extraction, and/or utilization for Taon Strait and,
therefore, no such activities could have been validly undertaken under SC-46. The
National Integrated Protected Areas System Act of 1992 is clear that exploitation
and utilization of energy resources in a protected seascape such as Taon Strait shall
only be allowed through a specific law.
VIII
Former President Gloria Macapagal-Arroyo was not the signatory to SC-46, contrary
to the requirement set by paragraph 4 of Article XII, Section 2 for service contracts
involving the exploration of petroleum. SC-46 was entered into by then Department
of Energy Secretary Vicente S. Perez, Jr., on behalf of the government. I agree with
the Main Opinion that in cases where the Constitution or law requires the President
to act personally on the matter, the duty cannot be delegated to another public
official.41 La Bugal highlights the importance of the President's involvement, being
one of the constitutional safeguards against abuse and corruption, as not mere
formality:
At this point, we sum up the matters established, based on a careful reading of the
ConCom deliberations, as follows:
In their deliberations on what was to become paragraph 4, the framers
used the term service contracts in referring to agreements x x x involving
either technical or financial assistance. They spoke of service contracts as
the concept was understood in the 1973 Constitution.
It was obvious from their discussions that they were not about to ban or
eradicate service contracts.
Instead, they were plainly crafting provisions to. put in place safeguards
that would eliminate or m minimize the abuses prevalent during the marital
law regime.42 (Emphasis in the original)
Public respondents failed to show that. Former President Gloria Macapagal-Arroyo
was involved in the signing or execution of SC-46. The failure to comply with this
constitutional requirement renders SC-46 null and void.
IX
Public respondents also failed to show that Congress was subsequently informed of
the execution and existence of SC-46. The reporting requirement is an equally
important requisite to the validity of any service contract involving the exploration,
development, and utilization of Philippine petroleum. Public respondents' failure to
report to Congress about SC-46 effectively took away any opportunity for the
legislative branch to scrutinize its terms and conditions.
In sum, SC-46 was executed and implemented absent all the requirements provided
under paragraph 4 of Article XII, Section 2. It is, therefore, null and void.
X
I am of the view that SC-46, aside from not having complied with the 1987
Constitution, is also null and void for being violative of environmental laws
protecting Taon Strait. In particular, SC-46 was implemented despite falling short of
the requirements of the National Integrated Protected Areas System Act of 1992.
As a protected seascape under Presidential Decree No. 1234,43 Taon Strait is
covered by the National Integrated Protected Areas System Act of 1992. This law
declares as a matter of policy:
SEC. 2. Declaration of Policy. Cognizant of the profound impact of man's activities on
all components of the natural environment particularly the effect of increasing
population, resource exploitation and industrial advancement and recognizing the
critical importance of protecting and maintaining the natural biological and physical
diversities of the environment notably on areas with biologically unique features to
sustain human life and development, as well as plant and animal life, it is hereby
declared the policy of the State to secure for the Filipino people of present and
future generations the perpetual existence of all native plants and animals through
the establishment of a comprehensive system of integrated protected areas within
the classification of national park as provided for in the Constitution.
It is hereby recognized that these areas, although distinct in features, possess
common ecological values that may be incorporated into a holistic plan
representative of our natural heritage; that effective administration of these areas is
possible only through cooperation among national government, local and concerned
private organizations; that the use and enjoyment of these protected areas must be
consistent with the principles of biological diversity and sustainable development.
To this end, there is hereby established a National Integrated Protected Areas
System (NIPAS), which shall encompass outstanding remarkable areas and
biologically important public lands that are habitats of rare and endangered species
of plants and animals, biogeographic zones and related ecosystems, whether
terrestrial, wetland or marine, all of which shall be designated as "protected
areas."44 (Emphasis supplied)
Pursuant to this law, any proposed activity in Taon Strait must undergo an
Environmental Impact Assessment:
SEC. 12. Environmental Impact Assessment. - Proposals for activities which are
outside the scope of the management plan for protected areas shall be subject to an
environmental impact assessment as required by law before they are adopted, and
the results thereof shall be taken into consideration in the decision-making
process.45 (Emphasis supplied)
The same provision further requires that an Environmental Compliance Certificate be
secured under the Philippine Environmental Impact Assessment System before arty
project is implemented:
No actual implementation of such activities shall be allowed without the required
Environmental Compliance Certificate (ECC) under the Philippine Environment
Impact Assessment (EIA) system. In instances where such activities are allowed to
be undertaken, the proponent shall plan and carry them out in such manner as will
minimize any adverse effects and take preventive and remedial action when
appropriate. The proponent shall be liable for any damage due to lack of caution or
indiscretion.46 (Emphasis supplied)
In projects involving the exploration or utilization of energy resources, the National
Integrated Protected Areas System Act of 1992 additionally requires that a program
be approved by the Department of Environment and Natural Resources, which shall
be publicly accessible. The program shall also be submitted to the President, who in
turn will recommend the program to Congress. Furthermore, Congress must enact a
law specifically allowing the exploitation of energy resources found within a
protected area such as Taon Strait:
SEC. 14. Survey for Energy Resources. - Consistent with the policies declared in
Section 2, hereof, protected areas, except strict nature reserves and natural parks,
may be subjected to exploration only for the purpose of gathering information on
energy resources and only if such activity is carried out with the least damage to
surrounding areas. Surveys shall be conducted only in accordance with a program
approved by the DENR, and the result of such surveys shall be made available to the
public and submitted to the President for recommendation to Congress. Any
exploitation and utilization of energy resources found within NIPAS areas shall be
allowed only through a taw passed by Congress.47 (Emphasis supplied)
Public respondents argue that SC-46 complied with the procedural requirements of
obtaining an Environmental Compliance Certificate. 48 At any rate, they assert that
the activities covered by SC-46 fell under Section 14 of the National Integrated
Protected Areas System Act of 1992, which they interpret to be an exception to
Section 12. They argue that the Environmental Compliance Certificate is not a strict
requirement for the validity of SC-46 since (a) the Taon Strait is not a nature'
reserve or natural park; (b) the exploration was merely for gathering information;
and ( c) measures were in place to ensure that the exploration caused the least
possible damage to the area.49
Section 14 is not an exception to Section 12, but instead provides additional
requirements for cases involving Philippine energy resources. The National
Integrated Protected Areas System Act of 1992 was enacted to recognize the
importance of protecting the environment in light of resource exploitation, among
others.50 Systems are put in place to secure for Filipinos local resources under the
most favorable conditions. With the status of Taon Strait as a protected seascape,
the institution of additional legal safeguards is even more significant.
Public respondents did not validly obtain an Environmental Compliance Certificate
for SC-46. Based on the records, JAPEX commissioned an environmental impact
evaluation only in the second subphase of its project, with the Environmental
Management .Bureau of Region
VII granting the project an Environmental Compliance Certificate on March 6, 2007. 51
Despite its scale, the seismic surveys from May 9 to 18, 2005 were conducted
without any environmental assessment contrary to Section 12 of the National
Integrated Protected Areas System Act of 1992.
XI
Finally, we honor every living creature when we take care of our environment. As
sentient species, we do not lack in the wisdom or sensitivity to realize that we only
borrow the resources that we use to survive and to thrive. We are not incapable of
mitigating the greed that is slowly causing the demise of our planet. Thus, there is
no need for us to feign representation of any other species or some imagined unborn
generation in filing any action in our courts of law to claim any of our fundamental
rights to a healthful ecology. In this way and with candor and courage, we fully
shoulder the responsibility deserving of the grace and power endowed on our
species.
ACCORDINGLY, I vote:
(a) to DISMISS G.R. No. 180771 for lack of standing and STRIKE OUT the
name of Former President Gloria Macapagal-Arroyo from the title of this
case;
(b) to GRANT G.R. No. 181527; and
(c) to DECLARE SERVICE CONTRACT 46 NULL AND VOID for violating the
1987 Constitution, Republic Act No. 7586, and Presidential Decree No.
1234.
MARVIC M.V.F. LEONEN
Associate Justice