G.R. No.

182795 June 5, 2008 While they attempted to focus on issuance of what they claimed to be
fraudulent and spurious land titles, to wit:
ARMANDO Q. CANLAS, MIGUEL D. CAPISTRANO, MARRIETA PIA,
petitioners, Petitioners herein are desirous to help the government, the best way they
vs. can, to unearth these so-called "syndicates" clothed with governmental
NAPICO HOMEOWNERS ASSN., I XIII, INC., ET AL., respondents. functions, in cahoots with the "squatting syndicates" - - - - the low so
defines. If only to give its proper meanings, the Government must be the first
RESOLUTION one to cleans (sic) its ranks from these unscrupulous political protges. If
unabated would certainly ruin and/or destroy the efficacy of the Torrens
REYES, R.T., J.: 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
THE present petition filed on May 26, 2008 seeks the issuance of a Writ of of Amparo, that these unprincipled Land Officials be summoned to
Amparo upon the following premise: answer their participation in the issuances of these fraudulent and
spurious titles, NOW, in the hands of the Private Respondents. The
Petitioners were deprived of their liberty, freedom and/or rights to shelter Courts of Justice, including this Honorable Supreme Court, are likewise
enshrined and embodied in our Constitution, as the result of these nefarious being made to believe that said titles in the possession of the Private
activities of both the Private and Public Respondents. This ardent request filed Respondents were issued untainted with frauds.2
before this Honorable Supreme Court is the only solution to this problem via
this newly advocated principles incorporated in the Rules the "RULE ON what the petition ultimately seeks is the reversal of this Courts dismissal of
THE WRIT OF AMPARO. 1
petitions in G.R. Nos. 177448, 180768, 177701, 177038, thus:

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.
1
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, constitute right to life, liberty and security. There is, therefore, no legal basis
177701 and 177038. Inherent in the powers of the Supreme Court of the for the issuance of the writ of amparo.
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 Besides, the factual and legal basis for petitioners claim to the land in
3
for the Writ of Amparo. 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
We dismiss the petition. allegation of the supposed factual and legal basis of the right sought to be
protected.
The Rule on the Writ of Amparo provides:
Section 1. Petition. The petition for a writ of amparo is a remedy available to Under Section 6 of the same rules, the court shall issue the writ upon the filing
any person whose right to life, liberty and security is violated or threatened of the petition, only if on its face, the court ought to issue said writ.
with violation by an unlawful act or omission of a public official or employee, or
of a private individual or entity. 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
The writ shall cover extralegal killings and enforced disappearances or threats ought to issue. The clerk of court shall issue the writ under the seal of the
thereof. (Emphasis supplied.) 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 threatened demolition of a dwelling by virtue of a final judgment of the The writ shall also set the date and time for summary hearing of the petition

court, which in this case was affirmed with finality by this Court in G.R. Nos. which shall not be later than seven (7) days from the date of its issuance.

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 Considering that there is no legal basis for its issuance, as in this case, the
have any despite the final and executory judgment adverse to them, does not writ will not be issued and the petition will be dismissed outright.

2
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.
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 18
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, 18 th
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
th
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.
3
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 Answer dated 14 May 2006, the petitioners denied the material
4
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 in 5
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
4
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 en qv2tered
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 Ab ction (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,
5
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, 2006 6."
The petitioners appealed the MCTC decision to the Regional Trial Court
("RTC," Branch 6 of Kalibo, Aklan) then presided over by Judge Niovady M.
Marin ("Judge Marin").
On appeal, Judge Marin granted the private respondents' motion for the
issuance of a writ of preliminary mandatory injunction through an Order dated
26 February 2007, with the issuance conditioned on the private respondents'
posting of a bond. The writ - authorizing the immediate implementation of the
7
MCTC decision - was actually issued by respondent Judge Elmo F. del
Rosario (the "respondent Judge") on 12 March 2007 after the private
respondents had complied with the imposed condition. The petitioners moved
to reconsider the issuance of the writ; the private respondents, on the other
hand, filed a motion for demolition.
The respondent Judge subsequently denied the petitioners' Motion for
Reconsideration and to Defer Enforcement of Preliminary Mandatory
Injunction in an Order dated 17 May 2007 . 8
Meanwhile, the petitioners opposed the motion for demolition. 9 The
respondent Judge nevertheless issued via a Special Order 10
a writ of
demolition to be implemented fifteen (15) days after the Sheriff's written notice
to the petitioners to voluntarily demolish their house/s to allow the private
respondents to effectively take actual possession of the land.
The petitioners thereafter filed on 2 August 2007 with the Court of Appeals,
Cebu City, a Petition for Review 11
(under Rule 42 of the 1997 Rules of Civil
Procedure) of the Permanent Mandatory Injunction and Order of
Demolition of the RTC of Kalibo, Br. 6 in Civil Case No. 7990.
Meanwhile, respondent Sheriff Nelson R. dela Cruz issued the Notice to
Vacate and for Demolition on 19 March 2008.12
6
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
7
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 Sherif
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
8
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 Sherif 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,
9
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
10
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:
"(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.
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;
22
(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
11
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.
12
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;
13
(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.
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
14
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 Certiorari 1 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. While in the United
4
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
15
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 van
bruising 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.17 The van then sped away.
After about an hour of traveling, the van stopped. 18 Petitioner, Carabeo and
Jandoc were ordered to alight.19 After 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.
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 SIM 32
card, a slip of paper containing an e-
mail address with password, 33
a plastic bag containing biscuits and books,
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. 37 Out 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
28
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
34
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
16
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.
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 Certificate 49
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
46
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
17
came to the La Paz Municipal Police Station to report the presence of heavily On 26 May 2009, public respondent PC/Supt. Leon Nilo Dela Cruz, as
armed men somewhere in Barangay Kapanikian. 55
Acting on the report, the Director of the Regional Police Office for Region 3, caused the creation of
police station launched an initial investigation. 56
Special Investigation Task GroupCAROJAN (Task Group CAROJAN) to
conduct an in-depth investigation on the abduction of the petitioner, Carabeo
The initial investigation revolved around the statement of Mr. Paolo, who and Jandoc.64
informed the investigators of an abduction incident involving three (3) persons Task Group CAROJAN started its inquiry by making a series of background
later identified as petitioner Melissa Roxas, Juanito Carabeo and John examinations on the victims of the purported abduction, in order to reveal the
Edward Jandocwho were all staying in his house. 57
Mr. Paolo disclosed that motive behind the abduction and, ultimately, the identity of the perpetrators. 65
the abduction occurred around 1:30 oclock in the afternoon, and was Task Group CAROJAN also maintained liaisons with Karapatan and the
perpetrated by about eight (8) heavily armed men who forced their way inside Alliance for Advancement of Peoples Rightsorganizations trusted by
his house. 58
Other witnesses to the abduction also confirmed that the armed petitionerin the hopes of obtaining the latters participation in the ongoing
men used a dark blue van with an unknown plate number and two (2) Honda investigations.66 Unfortunately, the letters sent by the investigators requesting
XRM motorcycles with no plate numbers.59 for the availability of the petitioner for inquiries were left unheeded. 67

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 Report 61
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
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

18
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 Message 73
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
19
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.
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
90
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
20
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 liabilit y,"
whereby the superior is made responsible for crimes committed by his
subordinates for failing to prevent or punish the perpetrators 105 (as opposed to
crimes he ordered). (Emphasis in the orginal, underscoring supplied)
21
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 transpired
the 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
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
courts. 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.
22
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 sketches 115
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
23
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,
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 position 123
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
120
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.
24

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 portion 125
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
25
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 provenconsidering 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
26
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,"128 must 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
safeguardrequiring 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
27
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 Paolowho, 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..
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
28
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 petitioner s
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;
29
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 Rightsits 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.
G.R. No. 191805 April 16, 2013 RESOLUTION

IN THE MATTER OF THE PETITION FOR THE WRIT OF AMPARO AND SERENO, CJ.:
HABEAS DATA IN FAVOR OF NORIEL RODRIGUEZ, NORIEL
RODRIGUEZ, Petitioner, On 15 November 2011, the Court promulgated its Decision in the present
vs. case, the dispositive portion of which reads:
GLORIA MACAPAGAL-ARROYO, GEN. VICTOR S. IBRADO, PDG JESUS WHEREFORE, we resolve to GRANT the Petition for Partial Review in G.R.
AME VERSOZA, LT. GEN. DELFIN BANGIT, MAJ. GEN. NESTOR Z. No. 191805 and DENY the Petition for Review in G.R. No. 193160. The
OCHOA, P/CSUPT. AMETO G. TOLENTINO, P/SSUPT. JUDE W. SANTOS, Decision of the Court of Appeals is hereby AFFIRMED WITH MODIFICATION.
COL. REMIGIO M. DE VERA, an officer named MATUTINA, LT. COL. The case is dismissed with respect to respondents former President Gloria
MINA, CALOG, GEORGE PALACPAC under the name "HARRY," Macapagal-Arroyo, P/CSupt. Ameto G. Tolentino, and P/SSupt. Jude W.
ANTONIO CRUZ, ALDWIN "BONG" PASICOLAN and VINCENT Santos, Calog, George Palacpac, Antonio Cruz, Aldwin Pasicolan and Vincent
CALLAGAN, Respondents. Callagan for lack of merit.

x-----------------------x This Court directs the Office of the Ombudsman (Ombudsman) and the
Department of Justice (DOJ) to take the appropriate action with respect to any
G.R. No. 193160 possible liability or liabilities, within their respective legal competence, that
may have been incurred by respondents Gen. Victor lbrado, PDG. Jesus
IN THE MATTER OF THE PETITION FOR THE WRIT OF AMPARO AND Verzosa, Lt. Gen. Delfin Bangit, Maj. Gen. Nestor Ochoa, Brig. Gen. Remegio
HABEAS DATA IN FAVOR OF NORIEL RODRIGUEZ, POLICE DIR. GEN. De Vera, 1st Lt. Ryan Matutina, and Lt. Col. Laurence Mina. The Ombudsman
JESUS A. VERSOZA, P/SSUPT. JUDE W. SANTOS, BGEN. REMEGIO M. and the DOJ are ordered to submit to this Court the results of their action
DE VERA, 1ST LT. RYAN S. MATUTINA, LT. COL. LAURENCE E. MINA, within a period of six months from receipt of this Decision.
ANTONIO C. CRUZ, ALDWIN C. PASICOLAN and VICENTE A.
CALLAGAN, Petitioners, In the event that herein respondents no longer occupy their respective posts,
vs. the directives mandated in this Decision and in the Court of Appeals are
NORIEL H. RODRIGUEZ, Respondent. enforceable against the incumbent officials holding the relevant positions.
Failure to comply with the foregoing shall constitute contempt of court.

30

SO ORDERED.
After a careful examination of the records, the Court was convinced that the
Court of Appeals correctly found sufficient evidence proving that the soldiers
of the 17th Infantry Battalion, 5th Infantry Division of the military abducted
petitioner Rodriguez on 6 September 2009, and detained and tortured him
until 17 September 2009.
Pursuant to the Decision ordering the Office of the Ombudsman to take further
action, Ombudsman Conchita Carpio Morales sent this Court a letter dated 23
May 2012, requesting an additional two-month period, or until 24 July 2012,
within which to submit a report. The Ombudsman stated that Noriel Rodriguez
(Rodriguez) and his family refused to cooperate with the investigation for
security reasons.
On 6 January 2012, respondents filed their Motion for Reconsideration,1
arguing that the soldiers belonging to the 17th Infantry Battalion, 5th Infantry
Division of the military cannot be held accountable for authoring the abduction
and torture of petitioner. Their arguments revolve solely on the claim that
respondents were never specifically mentioned by name as having performed,
permitted, condoned, authorized, or allowed the commission of any act or
incurrence omission which would violate or threaten with violation the rights to
life, liberty, and security of petitioner-respondent and his family.2
zeSA
On 18 January 2013, the Ombudsman submitted the Investigation Report, as
compliance with the Courts directive to take appropriate action with respect to
31
possible liabilities respondents may have incurred. The exhaustive report
detailed the steps taken by the Field Investigation Office (FIO) of the Office of
the Ombudsman, concluding that no criminal, civil, or administrative liabilities
may be imputed to the respondents. It was reflected therein that the lawyers
for the Rodriguezes had manifested to the FIO that the latter are hesitant to
appear before them for security reasons, viz:
Karapatan (a non-governmental organization that provides legal assistance to
victims of human rights violations and their families) could not locate Noriel
and Rodel. As of this writing, the Rodriguezes refused to participate in the
present fact-finding investigation for security reasons. Atty. Yambot disclosed
(through a Manifestation dated March 30, 2012 that despite efforts to convince
Noriel to participate in the present proceedings, the latter remains
unconvinced and unwilling to this date.
Recent information, however, revealed that Noriel and his family are no longer
interested in participating in the present case.
Instead of appearing before this Office for a conference under oath, SPO1
Robert B. Molina submitted an Affidavit dated June 13, 2012 stating that on
September 15, 2009, at around 11:00 oclock in the morning, Wilma H.
Rodriguez appeared before the Gonzaga Police Station and requested to
enter into the blotter that her son, Noriel, was allegedly missing in Sitio
Comunal, Gonzaga, Cagayan. Thereupon, he gathered information relative to
Wilmas report "but the community residence failed to reveal anything".3
The other accounts specifically that of respondent Antonino C. Cruz, Special
Investigator II of the Commission on Human Rights (CHR), as well as the
claims of respondents Mina and De Vera that they had disclosed to the CHR
that Noriel had become an agent ("asset") of the 17th Infantry Battalion have
been thoroughly evaluated and ruled upon in our Decision. The OMB further
laments, "If only he (Noriel) could be asked to verify the circumstances under
which he executed these subsequent affidavits, his inconsistent claims will
finally be settled," and that "(I)f there is one person who can attest on whether
detention and torture were indeed committed by any of the Subjects herein, it
is Noriel Rodriguez himself, the supposed victim."4
The purported unwillingness of the petitioner to appear or participate at this
stage of the proceedings due to security reasons does not affect the rationale
of the writ granted by the CA, as affirmed by this Court. In any case, the issue
of the existence of criminal, civil, or administrative liability which may be
imputed to the respondents is not the province of amparo proceedings --
rather, the writ serves both preventive and curative roles in addressing the
problem of extrajudicial killings and enforced disappearances. It is preventive
in that it breaks the expectation of impunity in the commission of these
offenses, and it is curative in that it facilitates the subsequent punishment of
perpetrators by inevitably leading to subsequent investigation and action.5 In
this case then, the thrust of ensuring that investigations are conducted and the
rights to life, liberty, and security of the petitioner, remains.
We deny the motion for reconsideration.
The writ of amparo partakes of a summary proceeding that requires only
substantial evidence to make the appropriate interim and permanent reliefs
available to the petitioner. As explained in the Decision, it is not an action to
determine criminal guilt requiring proof beyond reasonable doubt, or liability
32
for damages requiring preponderance of evidence, or even administrative
responsibility requiring substantial evidence. The totality of evidence as a
standard for the grant of the writ was correctly applied by this Court, as first
laid down in Razon v. Tagitis:
The fair and proper rule, to our mind, is to consider all the pieces of evidence
adduced in their totality, and to consider any evidence otherwise inadmissible
under our usual rules to be admissible if it is consistent with the admissible
evidence adduced. In other words, we reduce our rules to the most basic test
of reason i.e., to the relevance of the evidence to the issue at hand and its
consistency with all other pieces of adduced evidence. Thus, even hearsay
evidence can be admitted if it satisfies this basic minimum test.6 (Emphasis
supplied.)
No reversible error may be attributed to the grant of the privilege of the writ by
the CA, and the present motion for reconsideration raises no new issues that
would convince us otherwise.
Respondents claim that they were not competently identified as the soldiers
who abducted and detained the petitioner, or that there was no mention of
their names in the documentary evidence, is baseless. The CA rightly
considered Rodriguezs Sinumpaang Salaysay7 as a meticulous and
straightforward account of his horrific ordeal with the military, detailing the
manner in which he was captured and maltreated on account of his suspected
membership in the NPA.8
Petitioner narrated that at dawn on 9 September 2009, he noticed a soldier
with the name tag "Matutina," who appeared to be an official because the
other soldiers addressed him as "sir."9 He saw Matutina again at 11:00 p.m.
on 15 September 2009, when his abductors took him to a military operation in
the mountains. His narration of his suffering included an exhaustive
description of his physical surroundings, personal circumstances, and
perceived observations. He likewise positively identified respondents 1st Lt.
Matutina and Lt. Col. Mina to be present during his abduction, detention and
torture.10 These facts were further corroborated by Hermie Antonio Carlos in
his Sinumpaang Salaysay dated 16 September 2009,11 wherein he recounted
in detail the circumstances surrounding the victims capture.
Respondents main contention in their Return of the Writ was correctly
deemed illogical and contradictory by the CA. They claim that Rodriguez had
complained of physical ailments due to activities in the CPP-NPA, yet
nevertheless signified his desire to become a double-agent for the military.
The CA stated:
In the Return of the Writ, respondent AFP members alleged that petitioner
confided to his military handler, Cpl. Navarro, that petitioner could no longer
stand the hardships he experienced in the wilderness, and that he wanted to
become an ordinary citizen again because of the empty promises of the CPP-
NPA. However, in the same Return, respondents state that petitioner agreed to
become a double agent for the military and wanted to re-enter the CPP-NPA,
so that he could get information regarding the movement directly from the
source. If petitioner was tired of life in the wilderness and desired to become
an ordinary citizen again, it defies logic that he would agree to become an
undercover agent and work alongside soldiers in the mountains or the
33
wilderness he dreads to locate the hideout of his alleged NPA comrades.12
(Emphasis supplied.)
Respondents conveniently neglect to address the findings of both the CA and
this Court that aside from the abduction of Rodriguez, respondents,
specifically 1st Lt. Matutina, had violated and threatened the formers right to
security when they made a visual recording of his house, as well as the
photos of his relatives. The CA found that the soldiers even went as far as
taking videos of the photos of petitioners relatives hung on the wall of the
house, and the innermost portions of the house.13 There is no reasonable
justification for this violation of the right to privacy and security of petitioners
abode, which strikes at the very heart and rationale of the Rule on the Writ of
Amparo. More importantly, respondents also neglect to address our ruling that
the failure to conduct a fair and effective investigation similarly amounted to a
violation of, or threat to Rodriguezs rights to life, liberty, and security.14
The writs curative role is an acknowledgment that the violation of the right to
life, liberty, and security may be caused not only by a public officials act, but
also by his omission. Accountability may attach to respondents who are
imputed with knowledge relating to the enforced disappearance and who carry
the burden of disclosure; or those who carry, but have failed to discharge, the
burden of extraordinary diligence in the investigation of the enforced
disappearance.15 The duty to investigate must be undertaken in a serious
manner and not as a mere formality preordained to be ineffective.16
The CA found that respondents Gen. Ibrado, PDG Verzosa, LT. Gen. Bangit,
Maj. Gen. Ochoa, Col. De Vera, and Lt. Col. Mina conducted a perfunctory
investigation which relied solely on the accounts of the military. Thus, the CA
correctly held that the investigation was superficial, one-sided, and depended
entirely on the report prepared by 1st Lt. Johnny Calub. No efforts were
undertaken to solicit petitioners version of the incident, and no witnesses
were questioned regarding it.17 The CA also took into account the palpable
lack of effort from respondent Versoza, as the chief of the Philippine National
Police.
WHEREFORE, in view of the foregoing, the Motion for Reconsideration is
hereby DENIED with FINALITY. Let a copy of this Resolution be furnished the
Ombudsman for whatever appropriate action she may still take under
circumstances.
SO ORDERED.
ALEXANDER YANO, Gen. JESUS VERZOSA, Brig. Gen. REYNALDO
MAPAGU, Lt. P/Dir. EDGARDO DOROMAL, Maj. Gen. ISAGANI
CACHUELA, Commanding Officer of the AFP-ISU based in Baguio City,
PSS EUGENE MARTIN and several JOHN DOES,
Respondents.
x-------------------------x
PRESIDENT GLORIA MACAPAGAL-ARROYO, SECRETARY EDUARDO
ERMITA, SECRETARY GILBERTO TEODORO, SECRETARY RONALDO
PUNO, SECRETARY NORBERTO GONZALES, GEN. ALEXANDER YANO,
P/DGEN. JESUS VERZOSA, BRIG GEN. REYNALDO MAPAGU, MAJ.
GEN. ISAGANI CACHUELA ANDPOL. SR. SUPT. EUGENE MARTIN,
Petitioners,

ARTHUR BALAO, WINSTON BALAO, NONETTE BALAO, JONILYN

BALAO-STRUGAR and BEVERLY LONGID,
Petitioners,

- versus -
G.R. No. 186050

- versus -
ARTHUR BALAO, WINSTON BALAO, NONETTE BALAO, JONILYN
BALAO-STRUGAR and BEVERLY LONGID,
Respondents.

GLORIA MACAPAGAL-ARROYO, EDUARDO ERMITA, GILBERTO

TEODORO, RONALDO PUNO, NORBERTO GONZALES, Gen.
34
 December 13, 2011
x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x
DECISION

VILLARAMA, JR., J.:

Before us are consolidated appeals under Section 19 of the Rule on the Writ
of Amparofrom the January 19, 2009 Judgment,1, of the Regional Trial Court
(RTC) of La Trinidad, Benguet, Branch 63, in Special Proceeding No. 08-AMP-
0001, entitled In the Matter of the Petition for Issuance of Writ of Amparo in
G.R. No. 186059 favor of James Balao, Arthur Balao, et al. v. Gloria Macapagal-Arroyo, et al.
The RTC granted the petition for the writ of amparo but denied the prayer for
Present: issuance of inspection, production and witness protection orders.

CORONA,C.J., The Antecedents

CARPIO,
VELASCO, JR., On October 8, 2008, Arthur Balao, Winston Balao, Nonette Balao and Jonilyn
LEONARDO-DE CASTRO, Balao-Strugar, siblings of James Balao, and Beverly Longid (petitioners), filed
BRION, with the RTC of La Trinidad, Benguet a Petition for the Issuance of a Writ of
PERALTA Amparo,2, in favor of James Balao who was abducted by unidentified armed
BERSAMIN, men on September 17, 2008 in Tomay, La Trinidad, Benguet. Named
DEL CASTILLO, respondents in the petition were then President Gloria Macapagal-Arroyo,
ABAD, Executive Secretary Eduardo R. Ermita, Defense Secretary Gilberto C.
VILLARAMA, JR., Teodoro, Jr.,Interior and Local Government Secretary Ronaldo V. Puno,
PEREZ, National Security Adviser (NSA) Norberto B. Gonzales, Armed Forces of the
MENDOZA, Philippines (AFP) Chief of Staff Gen. Alexander B. Yano, Philippine National
SERENO, Police (PNP) Police Director General Jesus A. Verzosa, Philippine Army (PA)
REYES, and Chief Brig. Gen. Reynaldo B. Mapagu, PNP Criminal Investigation and
PERLAS-BERNABE, JJ. Detection Group (PNP-CIDG) Chief Lt. P/Dir. Edgardo Doromal, Northern
Luzon Command (NOLCOM) Commander Maj. Gen. Isagani C. Cachuela,
Promulgated: PNP-Cordillera Administrative Region Regional Director Police Senior Supt.

35
Eugene Gabriel Martin, the Commanding Officer of the AFP Intelligence
Service Unit (AFP-ISU) based in Baguio City and several John Does.
James M. Balao is a Psychology and Economics graduate of the University of
the Philippines-Baguio (UP-Baguio). In 1984, he was among those who
founded the Cordillera Peoples Alliance (CPA), a coalition of non-government
organizations (NGOs) working for the cause of indigenous peoples in the
Cordillera Region. As head of CPAs education and research committee,
James actively helped in the training and organization of farmers. He was also
the President of Oclupan Clan Association which undertakes the registration
and documentation of clan properties to protect their rights over ancestral
lands. In 1988, while working for the CPA, he was arrested on the charge of
violation of the Anti-Subversion Law but the case was eventually dismissed for
lack of evidence.
The testimonies and statements of eyewitnesses established the following
circumstances surrounding Jamess disappearance:
On September 17, 2008, at around 8:30 in the morning, a man clad in black
jacket, black shirt, black visor and gray pants was standing infront of
Saymors,3, Store at Tomay, La Trinidad, Benguet. He had a belt bag and a
travelling bag which was placed on a bench. Vicky Bonel was at the time
attending to the said store owned by her brother-in-law while Aniceto G.
Dawing, Jr. and his co-employee were delivering bakery products thereat. A
white van then arrived and stopped infront of the store. Five men in civilian
clothes who were carrying firearms alighted from the van and immediately
approached the man poking their guns on him. They grabbed and handcuffed
him. The man was asking why he was being apprehended. One of the armed
men addressed the people witnessing the incident, saying they were
policemen. Another warned that no one should interfere because the man was
being arrested for illegal drugs. Thereafter, they pushed the man inside the
van. One of the armed men went back to the store to get the mans travelling
36
bag. Before leaving the place, one of the armed men was also heard telling
the driver of the van that they are going to proceed to Camp Dangwa (PNP
Provincial Headquarters in La Trinidad, Benguet). The van headed towards
the direction of La Trinidad town proper. The witnesses later identified the man
as James Balao after seeing his photograph which appeared in posters
announcing him as missing.
The petition alleged that in May 2008, James reported surveillances on his
person to his family, particularly to his sister Nonette Balao (Nonette), and to
CPA Chairperson Beverly Longid (Beverly). James supposedly observed
certain vehicles tailing him and suspiciously parked outside his residence, one
of which was a van with plate number USC 922. He also claimed to have
received calls and messages through his mobile phone informing him that he
was under surveillance by the PNP Regional Office and the AFP-ISU. To
prove the surveillance, the informer gave the exact dates he visited his family,
clothes he wore, and dates and times he goes home or visits friends and
relatives. Attached to the petition were the affidavits,4, of Nonette and Beverly
attesting to Jamess reports of surveillance to his family and to the CPA.
It was further alleged that on September 17, 2008, around 7:00 in the
morning, James sent a text message to Nonette informing her that he was
about to leave his rented house in Fairview Central, Baguio City and that he
was going to their ancestral residence in Pico, La Trinidad, Benguet to do his
laundry. The travel time from Fairview, Baguio City to Pico usually takes only
20 to 45 minutes. Around 8:00 a.m., Nonette, after discovering that James
never reached their parents house at Pico, started contacting their friends and
relatives to ask about Jamess whereabouts. No one, however, had any idea
where he was.
Thus, the Balao family, with the assistance of the CPA and other NGOs, tried
to locate James. Teams were formed to follow Jamess route from Fairview,
Baguio City to Pico, La Trinidad and people along the way were asked if they
happened to see him. These searches, however, yielded negative results. One
of the teams also went to the office of the AFP-ISU (PA-ISU) in Navy Base
and the office of the Military Intelligence Group in Camp Allen, both in Baguio
City, but the personnel in said offices denied any knowledge on Jamess
whereabouts. The family likewise went to Baguio Police Station 7 to report
Jamess disappearance. The report was duly entered on the blotter but there
have been no developments as of the filing of the petition. They also sought
the help of the media to announce Jamess disappearance and wrote several
government agencies to inform them of his disappearance and enlist their help
in locating him.
Petitioners, moreover, enumerated in their petition several incidents of
harassments and human rights violations against CPA officers, staff and
members.
Contending that there is no plain, speedy or adequate remedy for them to
protect Jamess life, liberty and security, petitioners prayed for the issuance of
a writ of amparo ordering the respondents to disclose where James is
detained or confined, to release James, and to cease and desist from further
inflicting harm upon his person. They likewise prayed for (1) an inspection
order for the inspection of at least 11 military and police facilities which have
been previously reported as detention centers for activists abducted by
military and police operatives; (2) a production order for all documents that
contain evidence relevant to the petition, particularly the Order of Battle List
and any record or dossier respondents have on James; and (3) a witness
protection order.
Petitioners simultaneously filed an Urgent Ex-Parte Motion ,5, for the immediate
issuance of a writ of amparo pursuant to Section 6 of the Rule on the Writ of
Amparo.
On October 9, 2008, the Writ of Amparo,6, was issued directing respondents to
file their verified return together with their supporting affidavit within five days
from receipt of the writ.
37
Respondents in their Joint Return,7, stated: (1) that President Gloria
Macapagal-Arroyo is immune from suit and should thus be dropped as party-
respondent; (2) that only Arthur Balao should be named petitioner and the rest
of the other petitioners dropped; (3) that there is no allegation of specific
wrongdoing against respondents that would show their knowledge,
involvement or participation in the abduction of James; (4) that Exec. Sec.
Ermita, Sec. Teodoro, Sec. Puno, Sec. Gonzales, Gen. Yano, Gen. Cachuela,
Gen. Mapagu and Gen. Verzosa in their respective affidavits denied having
such participation or knowledge of Jamess abduction, set forth their actions
taken in investigating the matter and undertaking to continue exerting
extraordinary diligence in securing the liberty of James and bring all those
responsible for his disappearance to the bar of justice, including military or
police personnel when warranted by the findings of the investigations; (5) that
Supt. Martin already ordered an investigation, came up with interviews of
several witnesses, and held a dialogue with the Commander of the Military
Intelligence Group I (MIG1) and the Commanding Officer of the Internal
Service Unit-Internal Security Group, Philippine Army;and (6) that petitioners
themselves did not cooperate with police authorities in the investigation and
neither did they ask the National Bureau of Investigation to locate James.
Respondents contended that the petition failed to meet the requirement in the
Rule on the Writ of Amparo that claims must be established by substantial
evidence considering that: (1) petitioners allegations do not mention in anyway
the manner, whether directly or indirectly, the alleged participation of
respondents in the purported abduction of James; (2) Nonette and Beverly do
not have personal knowledge of the circumstances surrounding the abduction
of James, hence, their statements are hearsay with no probative value; and
(3) the allegations in the petition do not show the materiality and relevance of
the places sought to be searched/inspected and documents to be produced,
specifically the requirement that the prayer for an inspection order shall be
supported by affidavits or testimonies of witnesses having personal knowledge
of the whereabouts of the aggrieved party.
Respondents further argued that it is the PNP as the law enforcement agency,
and not the respondent military and executive officials, which has the duty to
investigate cases of missing persons. At most, the AFP may inquire on the
matters being alluded to them as may be ordered by the proper superior,
which is primarily done for possible court martial proceedings. Hence, their
common denials of having any knowledge, participation or authorization for
the alleged disappearance of James Balao. Nonetheless, respondents
executed their affidavits to show the actions they have taken and reports
submitted to them by the proper authorities, as follows:
Executive Secretary Ermitastated that upon receipt of copy of the
petition for a writ of amparo, he caused the issuance of a letter addressed to
the PNP Chief and AFP Chief of Staff for the purpose of inquiring and
establishing the circumstances surrounding the alleged disappearance of
James Balao, and which letters also called for the submission of pertinent
reports on the results of the investigation conducted, if any 8,
Secretary Teodoro declared that soon after the promulgation by
this Court of the Rule on the Writ of Amparo, he issued Policy Directive on the
Actions and Defenses Under the Amparo Rule which instructed members of
the AFP to undertake specific measures even without waiting for the filing of
an amparo petition in court whenever any member of the AFP or any of its
commands or units have been reported or published as being involved in the
alleged violation of an individuals right to life, liberty and security or threat
thereof, as a preparatory step in the filing of a verified return as required by
A.M. No. 07-9-12-SC. The AFP was therein also directed to immediately
coordinate with the PNP, NBI, DOJ and other government agencies in the
attainment of the desired actions in the event a petition is filed. Said policy
directive was contained in his Memorandum dated October 31, 2007 to the
38
Chief of Staff, AFP, and there is no reason for him to doubt that the AFP will
comply with it insofar as the present petition for writ of amparo is concerned 9,
Secretary Puno confirmed receipt of a copy of the petition and
said he will write to the PNP Chief to call for pertinent reports relative to the
circumstances of the alleged taking of the person in whose favor the writ of
amparo was sought. He undertook to make available any report he will receive
from the PNP on the matter 10,
NSA Gonzales asserted that as a public officer, he is presumed to
have performed his duties in accordance with law, which presumption remains
undisturbed amid gratuitous assumptions and conclusions in the petition
devoid of factual and legal basis. Upon receipt of a copy of the petition, he
caused to be issued letters/communications to the Director General of the
National Intelligence Coordinating Agency, the PNP Chief and the AFP Chief
of Staff for the purpose of making active inquiries and establishing the
circumstances of the alleged disappearance insofar as the possible
involvement of military/police personnel is concerned. He undertook to provide
the material results of investigations conducted or to be conducted by the
concerned agencies 11,
General Yano narrated that prior to the receipt of a copy of the
petition, he received a memorandum from the Department of National
Defense transmitting the letter of Bayan Muna Representative Teodoro A.
Casio inquiring about the alleged abduction of James Balao. On the basis of
said memo, he directed by radio message the NOLCOM Commander to
conduct a thorough investigation on the matter and to submit the result thereof
to the AFP General Headquarters. This was also done in compliance with the
Policy Directive issued by Defense Secretary Teodoro. He reiterated his
October 6, 2008 directive to the PA Commanding General in another radio
message dated October 16, 2008. He undertook to provide the court with
material results of the investigations conducted by the concerned units as
soon as the same are received by Higher Headquarters 12,
Lt. Gen. Cachuela said that even prior to the receipt of a copy of
the petition, he was already directed by Higher Headquarters to conduct a
thorough investigation on the alleged abduction of James Balao. Acting on
said directive, he in turn directed the 5th Infantry Division, PA to investigate the
matter since the place of the commission of the abduction is within its area of
responsibility. He undertook to furnish the court with a copy of the result of the
investigation conducted or to be conducted, as soon as NOLCOM receives the
same 13,
BGen. Mapagu on his part declared that there is nothing in the
allegations of the petition that would show the involvement of the PA in the
reported disappearance of James Balao. He claimed that he immediately
called the attention of the concerned staff to give some information regarding
the case and directed them to submit a report if they are able to obtain
information 14,
Pol. Dir. General Verzosa set forth the actions and steps taken by
the PNP, particularly the PNP Regional Office-Cordillera (PRO-COR) headed
by PCSupt. Eugene Martin, being the lead PNP unit investigating the case of
James Balao 15,
Pol. Chief Supt. Martin recounted that in the afternoon of
September 17, 2008, CPA Chairperson Beverly Longid called up and informed
him of the disappearance of James. On September 20, 2008, he was
informed that James was allegedly missing and immediately ordered the
Office of the Regional Intelligence Division (RID) to send flash alarm to all
lower units to look for and locate James Balao. This was followed by a
Memorandum with his picture and description. Upon his orders, Police Station
1 of the Baguio City Police Office (BCPO) immediately conducted inquiries at
39
the boarding house of James at Barangay Fairview, Baguio City. Likewise, he
ordered the creation of Task Force Balao to fast track the investigation of the
case. He further instructed the RID to exert all efforts and supervise all lower
units to intensify their investigation and ascertain the whereabouts and other
circumstances surrounding the disappearance of James. Results of the
investigations conducted were set forth in his affidavit. He had constant
coordination with the CPA leaders and Balao family who divulged the plate
numbers of vehicles allegedly observed by James prior to his disappearance
as conducting surveillance on his person. Upon verification with the Land
Transportation Office, the said vehicles were found to be registered under the
following persons: TNH 787 Narciso Magno of #20 Darasa, Tanauan,
Batangas; and USC 922 G & S Transport Corp. On October 6, 2008, he
received information regarding an abduction incident in Tomay, La Trinidad
whereupon he ordered the Provincial Director of Benguet to conduct an in-
depth investigation; said investigation disclosed that the person abducted was
indeed James. On October 8, 2008, Task Force Balao with the help of the
CPA and Balao family were able to convince two witnesses in the abduction
incident in Tomay, La Trinidad, Benguet to shed light on the incident; as a
result, cartographic sketches of the suspects were made. In the morning of
October 9, 2008, he presided over a dialogue which was attended by the
Group Commander, MIG1 and Commanding Officer of ISU, ISG and PA, for
the coordinated efforts to locate James. In the afternoon of the same day, he
met with the family and relatives of James to inform them of initial efforts and
investigation of the case. The Task Force Balao was also able to secure the
affidavits of witnesses Aniceto Dawing and Vicky Bonel, and invited some
members of the CPA who retrieved Jamess personal belongings in Fairview,
Baguio City and his companions prior to his disappearance on September 17,
2008 to appear before the Task Force Balao for some clarifications but none
of them appeared. The case is still under follow-up and continuing
investigation to know what really happened, identify the abductors, determine
the real motive for the abduction and file the necessary charges in court
against those responsible 16,

Also attached to the Return are the more detailed reports (with
attached affidavits of other witnesses) dated October 14, 2008 and October 6,
2008 submitted by Task Force Balao Commander P/S Supt. Fortunato B.
Albas to the PNP Cordillera Regional Director. Pertinent portions of the two
reports read:
xxxx
2. Inquiries conducted from Mr. Zusimo Unarosa, a resident of Nr 126,
Purok 3, Central Fairview, Baguio City, claimed that on the 1 st week of
September 2008, he frequently observed two (2) unidentified male persons
aged 50-70 years old and about 51 to 55 in height, bringing boxes from the
house, the contents of which could not be determined. However, averred
that these two (2) male personalities are not familiar in the barangay. He
further stated that he had never seen a van conducting surveillance on the
house and have not heard of any incident of kidnapping or abduction in the
community.
3. Mr[.] Anselmo Alukim, a neighbor, residing adjacent to the house of the
subject, when interviewed, averred that he observed some unidentified male
and female persons visiting the said house.
4. Interview conducted on Mr[.] Danny Griba, a resident of said barangay
averred that James Balao is not a resident or occupant of the said house
and claimed that he only saw the subject last summer and stated there are
five (5) unidentified persons occupying the said house. He further stated
that three (3) male persons aged 40 to 50 years old and a female aged
between 20-30 years old goes out during day time with several boxes and
returns at about 6:00 PM to 7:00 PM on board a taxi cab again with some
boxes of undetermined contents.
40
5. Mrs[.] Corazon Addun, resident of Nr 114, Purok 3, Central Fairview,
Baguio City averred that the subject is not residing in the said place and saw
him only once, sometime on April 2008. She further narrated that a certain
Uncle John aged 40 to 50 years old and a male person aged 20 to 30 are
among the occupants of said house. Accordingly, on September 21, 2008,
Uncle John went to the house of Mrs. Addun and over a cup of coffee told
her that he will be going to Sagada, Mountain Province purposely to locate a
missing colleague who was sent there. Accordingly[,] he received a phone
call that his missing colleague (James Balao) did not reach the municipality
and reported missing. After that short talk, she never saw Uncle John again.
Additionally, she did not notice any vehicle conducting surveillance therein
and any unusual incidents that transpired in said place.
xxxx
7. This office has likewise coordinated with MIG-1 and ISU, ISG, PA but both
offices denied any knowledge on the alleged abduction of James Balao.
8. It was found out that it was SPO4 Genero Rosal, residing within the
vicinity, who followed-up the incident because it was reported to him by his
neighbors. That after he learned about [James abduction], he contacted
PDEA, La Trinidad PS, RID ad Intel BPPO to verify if they had an operation
in Tomay, La Trinidad but all of them answered negative.
x x x x,17,
xxxx
3. A photocopy of the photograph of James Balao was presented to the
witnesses wherein they confirmed that the picture is the same person who
was arrested and handcuffed. Another witness divulged that prior to the
arrest of the person in the picture/photograph, a red motorcycle with two (2)
male riders allegedly conducted surveillance along the highway about ten
(10) meters away from the place where the victim was picked-up. Minutes
later, a white Mitsubishi Adventure arrived and took the victim inside the car.
The motorcycle riding in tandem followed the Mitsubushi Adventure en route
to Camp Dangwa, La Trinidad, Benguet. Another witness overheard one of
the abductors instructing the driver to quote pare sa Camp Dangwa tayo.
4. Follow[-]up investigation resulted in the identification of a certain KULOT
who also witnessed the alleged abduction. However, he was hesitant to talk
and instead pointed to the driver of the delivery van of Helens Bread. At
about 8:30 AM of October 9, 2008, Aniceto Dawing Jr[.] y Gano, the driver
of the delivery van of Helens Bread, surfaced and gave his statements on
what he witnessed on the alleged abduction.
5. On October 12, 2008, one Vicky Bonel y Felipe, 19 years old, single,
native of Atok, Benguet, resident of Tomay, LTB and store keeper of
Saymor[s] Store appeared before the office of Benguet PPO and gave her
sworn statement on the alleged abduction. A cartographic sketch was made
on the person who identified himself as policeman. She further stated that it
was when while she was tending her brother-in-laws store, gun-wielding
men, of about six or more, handcuffed and shove the victim inside their
vehicle. She recalled that she can recognize the abductors if she can see
them again.
6. Another witness stated that she was preparing her merchandise in the
waiting shed of Lower Tomay when she noticed a parked motorcycle beside
the elementary school at about 7:00 AM of September 17, 2008. The rider
of the bike was suspiciously scouring the area and kept on calling someone
from his cellular phone before the abduction was made.
7. Baguio City Police Office conducted follow-up investigation and were able
to secure affidavit of Florence Luken y Mayames, 47 years old, married, and
a resident of 135 Central Fairview averred that James Balao together with a
41
certain Uncle John about 65-75 years old, about 54 in height and a certain
Rene about 30-35 years old and stands 55, were her neighbors for almost
one year. She further stated that James Balao and company do not mingle
with their neighbors and only one person is usually left behind while James
and Rene goes out at 6:00 or 7:00 AM and goes back at around 6:00 or
7:00 PM.
She further averred that she did not notice any van or any kind of vehicle
parked along the roadside infront of any residence not his neighbors nor any
person or persons observing the occupants of the said house. Accordingly,
at around 1:00 PM of September 26, 2008, a closed van (Ca[n]ter) with
unknown plate number was seen parked infront of the said house and more
or less (10) unidentified male person[s] aging from 20-23 and an
unidentified female entered the alleged rented house of James Balao and
took some table, chairs and cabinets then left immediately to unknown
destination.
8. Mrs[.] Mina Cabati Serdan the owner of the house being rented by James
Balao averred that sometime May of 2007, a certain Mr[.] June, a realtor
agent, recommended to her that a certain James Balao will rent the house
for one (1) year term with an agreed monthly rent of fifteen thousand pesos
(P15,000.00). She stated that James Balao had extended his stay for almost
4 months. On the last week of August 2008, Mrs[.] Serdan called up James
Balao through phone to inform him that she will terminate his stay at the
rented house on September 30, 2008. Mrs[.] Serdan further stated that
[she]visited the rented house only twice and that was the only time she saw
James Balao with an unidentified companions.
That she only discovered that James Balao was missing when a certain
Carol informed her that he was missing. [Sh]e further stated that she visited
her house and found
out that the said occupants have already left on September 26, 2008 and
discovered that all personal belongings of the occupants have already been
taken out by the relatives. REMARKS:
xxxx
VI. ACTIONS TAKEN:
,1. .That a composite team TASK FORCE BALAO from this office and
the Regional Headquarters headed by [P/S SUPT] FORTUNATO BASCO
ALBAS was formed.
,2. .That the composite team of investigators conducted ocular
inspection on the area.
3. On October 8, 2008, two (2) witnesses namely: Marjore Domingo Hipolito
and Jenny Lynn Malondon Valdez gave their sworn statements and
cartographic sketch of one of the abductors.
4. On the morning of October 9, 2008, a dialogue was presided by RD,
PRO-COR and attended by the Group Commander, MIG1 and Commanding
Officer of ISU, SG, PA. Both commanders denied the accusations against
them
5. In the afternoon of the same day, a meeting with the family and relatives
of James Balao was again presided by RD, PRO-COR wherein the results
of the initial efforts and investigation were given to the family. He also
reported the surfacing of another two (2) witnesses who described the
suspect who handcuffed James Balao.
6. PRO-Cordillera wrote a letter to the Cordillera Peoples Alliance
requesting them to present Uncle John, Rene and his other companions
42
who are then residing in the same boarding house including all his
companions on September 17, 2008 and prior to his disappearance.
Case is still under follow-up investigation to identify the alleged abductors to
determine the real motive of the abduction and to file necessary charges
against them in courtFootnotes][18,
During the hearing, the affidavits and testimonies of the following witnesses
were presented by petitioners:
Aniceto Dawing,19, testified that on September 17, 2008, around
8:00 in the morning, while he was delivering bread at Saymors Store in Tomay,
La Trinidad, Benguet, a white van stopped infront of them and five armed men
alighted. The armed men, who introduced themselves as policemen in
Filipino, held and pointed a gun at one male person. The armed men told the
male person that he was being apprehended for illegal drugs. They then let
the male person board the vehicle and informed him that they will proceed to
Camp Dangwa. Dawing admitted that he did not know that it was James
whom he saw that time and came to know only of his identity when he saw a
poster bearing Jamess photograph. On cross-examination, he stated that the
white van did not have any markings that it was a police vehicle and that the
armed men were in civilian clothes and did not wear any police badges or
identification cards. He just assumed that they were policemen because of
their posture and haircut and because they introduced themselves as such.

Anvil Lumbag stated in his affidavit,20, that he was also at Saymors Store in
the morning of September 17, 2008 to buy chicken. He said that a ToyotaRevo
stopped infront of the store from where four men alighted. The men
handcuffed a man who was standing infront of the store and uttered Walang
makikialam, drugs kaso nito while pointing a gun at the said man. Then, they
forced the man to board the Revo. Before the Revo fled, Lumbag heard one of
the men say that they will be going to Camp Dangwa. Lumbags affidavit,
however, did not mention if it was James who was forcibly taken by the armed
men.
Beverly Longid,21, testified that she got to know James when she was a
member of the CPA youth organization in her student days. Every time James
will have an activity that is CPA-related, he would coordinate with Beverly, she
being the CPA chair. She also testified that prior to his disappearance, the last
time she talked with James was in July or August of 2008 when he reported
surveillances on his person by the PNP and the AFP. In her affidavit, she
alleged that James reported to her several vehicles tailing him, one of which
was a green van with plate number USC 922, the same plate number she had
seen at the Intelligence Security Unit in Navy Base, Baguio City, and which
was attached to a silver grey van.
Beverly admitted that at the time of the alleged abduction, she was in Baguio
City, at the Office of the Cordillera Peoples Legal Center and that she only
came to know that James was missing in the afternoon of September 18,
2008. She also confirmed that they met with Pol. Supt. Martin to seek
assistance regarding Jamess disappearance.
Nonette Balao,22, testified that she was at her bakeshop located in
Km. 4, La Trinidad, Benguet in the morning of September 17, 2008. At around
6:30 a.m., she received a text message from James saying that he will be
going home to their ancestral home to do some laundry. Thirty minutes later,
43
she received another text message from James saying that he was already
leaving his place in Fairview, Baguio City. When around 8:00 a.m. James had
not yet arrived at their ancestral home, she got worried. She texted him but
failed to get a reply, so she tried to call him. His phone, however, had already
been turned off. She then called the CPA office to check if James was there.
She was told that he was not there so she went to Jamess house in Fairview
at around 9:00 a.m. Jamess housemates, however, told her that he left at 7:00
a.m.
Nonette also testified that they only reported Jamess disappearance to the
police on September 20, 2008 because they thought that it was necessary
that a person be missing for at least 48 hours before the disappearance could
be reported. They went to Sub-Station Police Precinct No. 1 in Baguio and to
the police precinct in La Trinidad to report the matter. They also went to Camp
Dangwa to see if James was there.
Nonette claimed that she became worried because James never switched off
his mobile phone and since he already texted her that he was coming home,
he could have texted again if there was a change of plans. Also, James had
told them since April 2008 that he had been under surveillance. She does not
know why James went to Tomay, La Trinidad.
Samuel Anongos stated in his affidavit,23, that he is a member of the
Education Commission of the CPA. He claimed that when they conducted
trainings and educational discussions on mining education in Abra, members
of the AFP harassed the community and committed various human rights
violations. The AFP also allegedly held community meetings where they said
that the CPA is part of the New Peoples Army. Attached to Anongoss affidavit
is a copy of a paper that the AFP was allegedly distributing. It shows the
organizational structure of the Communist Party of the Philippines-New
Peoples Army (CPP-NPA) wherein CPA was identified as one of the
organizations under the National Democratic Front (NDF) 24,

RTC Ruling
On January 19, 2009, the RTC issued the assailed judgment, disposing as
follows:
IN VIEW OF ALL THE FOREGOING, judgment is hereby
rendered:
ISSUE a Writ of Amparo Ordering the respondents to (a)
disclose where James Balao is detained or confined, (b) to release James
Balao considering his unlawful detention since his abduction and (c) to
cease and desist from further inflicting harm upon his person; and
DENY the issuance of INSPECTION ORDER,
PRODUCTION ORDER and WITNESS PROTECTION
ORDER for failure of herein Petitioners to comply with
the stringent provisions on the Rule on the Writ of
Amparo and substantiate the same 25,
In denying respondents prayer that President Arroyo be dropped as
party-respondent, the RTC held that a petition for a writ of amparo is not
by any stretch of imagination a niggling[,] vexing or annoying court
case,26, from which she should be shielded. The RTC ruled that said
petition is nothing more than a tool to aid the president to guarantee that
laws on human rights are devotedly and staunchly carried out. It added
that those who complain against naming the president as party-
respondent are only those who either do not understand what the Writ of
Amparo is all about or who do not want to aid Her Excellency in her duty
to supervise and control the machinery of government 27,
44
In upholding the standing of Jamess siblings and Beverly to file
the petition, the RTC held that what Section 2 of the Rule on the Writ of
Amparorules out is the right to file similar petitions, meaning there could
be no successive petitions for the issuance of a writ of amparo for the
same party.
The RTC further held that more likely than not, the motive for
Jamess disappearance is his activist/political leanings and that Jamess
case is one of an enforced disappearance as defined under the Rule on
the Writ of Amparo. In so ruling, the RTC considered (1) the several
incidents of harassment mentioned in Beverlys testimony and enumerated
in the petition; and (2) the references in the petition to the CPA as a front
for the CPP-NPA.
The RTC likewise ruled that the government unmistakably
violated Jamess right to security of person. It found the investigation
conducted by respondents as very limited, superficial and one-sided. The
police and military thus miserably failed to conduct an effective
investigation of Jamess abduction as revealed by the investigation report
of respondents own witnesses, Supt. Martin and P/S Supt. Fortunato
Basco Albas, the Commander of Task Force Balao. It further noted that
respondents did not investigate the military officials believed to be behind
the abduction as said military officials were merely invited to a dialogue
and there was no investigation made in Camp Dangwa where the
abductors were believed to have taken James as narrated by the
witnesses. Moreover, the RTC observed that despite the undertaking of
respondents to investigate the abduction and provide results thereof, four
months have passed but petitioners have not been furnished reports
regarding the investigation.
As to the denial of the interim reliefs, the RTC stated that the stringent
provisions of the rules were not complied with and granting said reliefs
 might violate respondents constitutional rights and jeopardize State
security.
Both parties appealed to this Court.
The Consolidated Petitions
Petitioners, in G.R. No. 186050, question the RTCs denial of the interim
reliefs.
Respondents, on the other hand, assail in their petition in G.R. No. 186059,
the issuance of the writ of amparo. They raise the following arguments:
I
THE TRIAL COURTS JUDGMENT ORDERING RESPONDENT-
PETITIONERS TO: (A) DISCLOSE WHERE JAMES BALAO IS
DETAINED AND CONFINED; (B) TO RELEASE JAMES BALAO
CONSIDERING HIS UNLAWFUL DETENTION SINCE HIS ABDUCTION
AND (C) TO CEASE AND DESIST FROM FURTHER INFLICTING HARM
UPON HIS PERSON IS BASED PURELY ON CONJECTURES,
SURMISES AND HEARSAY EVIDENCE; HENCE, IT MUST BE SET
ASIDE.
II
RESPONDENT-PETITIONERS HAD PROVEN THAT THEY OBSERVED
EXTRAORDINARY DILIGENCE AS REQUIRED BY APPLICABLE LAWS,
RULES AND REGULATIONS IN THE PERFORMANCE OF THEIR
OFFICIAL DUTIES.
III
45
THE FACTUAL CIRCUMSTANCES AND THE EVIDENCE PRESENTED
IN THE MANALO CASE ARE TOTALLY DIFFERENT FROM THE CASE
AT BAR; HENCE, THE TRIAL COURT GROSSLY ERRED IN APPLYING
THE RULING THEREIN TO THE CASE AT BAR.
IV
THE TRIAL COURT CORRECTLY DENIED PETITIONER-
RESPONDENTS PRAYER FOR THE ISSUANCE OF AN INSPECTION
ORDER, PRODUCTION ORDER AND A WITNESS PROTECTION
ORDER 28,
Our Ruling
The Rule on the Writ of Amparo was promulgated on October 24, 2007
amidst rising incidence of extralegal killings and enforced disappearances.
It was formulated in the exercise of this Courts expanded rule-making
power for the protection and enforcement of constitutional rights enshrined
in the 1987 Constitution, albeit limited to these two situations. Extralegal
killings refer to killings committed without due process of law, i.e., without
legal safeguards or judicial proceedings 29, On the other hand, enforced
disappearances are attended by the following characteristics: an arrest,
detention, or abduction of a person by a government official or organized
groups or private individuals acting with the direct or indirect acquiescence
of the government; the refusal of the State to disclose the fate or
whereabouts of the person concerned or a refusal to acknowledge the
deprivation of liberty which places such person outside the protection of
law 30,
Section 18 of the Amparo Rule provides:
SEC. 18. Judgment. - The court shall render judgment within ten (10)
days from the time the petition is submitted for decision. If the allegations
in the petition are proven by substantial evidence, the court shall grant
the privilege of the writ and such reliefs as may be proper and appropriate;
otherwise, the privilege shall be denied. (Emphasis supplied.)
The threshold issue in this case is whether the totality of evidence
satisfies the degree of proof required by the Amparo Rule to establish an
enforced disappearance.
In granting the privilege of the writ of amparo, the trial court ratiocinated:
On record is evidence pointing to the more likely than not motive for
James Balaos disappearance his activist/political leanings. This is shown
by the several incidents relating to harassments of activists as mentioned
in the unrebutted testimony of Beverly Longid and the enumeration made
in par. 48 (a) to (cc) of the petition. There were also references in the
petitions pars. 52 et. seq. to the CPA (of which James Balao was an active
staff) as a front organization of the Communist Party of the Philippines-
New Peoples Army. More likely than not he was not taken to parts
unknown for reasons other than his involvement in the CPA, that is,
politically-motivated. The Court considers these facts enough
circumstances to establish substantial evidence of an enforced
disappearance as defined under the Rule on the Writ of Amparo. For
after all, substantial evidence requires nothing greater than more
likely than not degree of proof 31,(Emphasis supplied.)
The trial court gave considerable weight to the discussion in the petition of
briefing papers supposedly obtained from the AFP (Oplan Bantay-Laya
implemented since 2001) indicating that the anti-insurgency campaign of
the military under the administration of President Arroyo included targeting
of identified legal organizations under the NDF, which included the CPA,
46
and their members, as enemies of the state. The petition cited other
documents confirming such all-out war policy which resulted in the
prevalence of extrajudicial killings: namely, the published reports of the
Melo Commission and the UNHRCs Special Rapporteur on Extrajudicial
Summary or Arbitrary Executions, Mr. Philip Alston. The petition also
enumerated previously documented cases of extralegal killings of activists
belonging to militant groups, including CPA leaders and workers, almost
all of which have been preceded by surveillance by military or police
agents and acts of harassment. Consequently, petitioners postulated that
the surveillance on James and his subsequent abduction are
interconnected with the harassments, surveillance, threats and political
assassination of other members and officers of CPA which is his
organization.
We hold that such documented practice of targeting activists in the
militarys counter-insurgency program by itself does not fulfill the
evidentiary standard provided in the Amparo Rule to establish an enforced
disappearance.
In the case of Roxas v. Macapagal-Arroyo,,32, the Court noted that the
similarity between the circumstances attending a particular case of
abduction with those surrounding previous instances of enforced
disappearances does not, necessarily, carry sufficient weight to prove that
the government orchestrated such abduction. Accordingly, the trial court in
this case cannot simply infer government involvement in the abduction of
James from past similar incidents in which the victims also worked or
affiliated with the CPA and other left-leaning groups.
The petition further premised government complicity in the abduction of
James on the very positions held by the respondents, stating that --
The abduction of James Balao can only be attributed to the Respondents
who have command responsibility of all the actions of their subordinates
and who are the primary persons in the implementation of the
governments all out war policy 33, (Emphasis supplied.)
The Court in Rubrico v. Macapagal-Arroyo,34, had the occasion to expound
on the doctrine of command responsibility and why it has little bearing, if
at all, in amparo proceedings.
The evolution of the command responsibility doctrine finds its context in
the development of laws of war and armed combats. According to Fr.
Bernas, command responsibility, in its simplest terms, means the
responsibility of commanders for crimes committed by subordinate
members of the armed forces or other persons subject to their control in
international wars or domestic conflict. In this sense, command
responsibility is properly a form of criminal complicity. The Hague
Conventions of 1907 adopted the doctrine of command responsibility,
foreshadowing the present-day precept of holding a superior accountable
for the atrocities committed by his subordinates should he be remiss in his
duty of control over them. As then formulated, command responsibility is
an omission mode of individual criminal liability, whereby the superior is
made responsible for crimes committed by his subordinates for failing to
prevent or punish the perpetrators (as opposed to crimes he ordered).
The doctrine has recently been codified in the Rome Statute of the
International Criminal Court (ICC) to which the Philippines is signatory.
Sec. 28 of the Statute imposes individual responsibility on military
commanders for crimes committed by forces under their control. The
country is, however, not yet formally bound by the terms and provisions
embodied in this treaty-statute, since the Senate has yet to extend
concurrence in its ratification.
47
While there are several pending bills on command responsibility, there is
still no Philippine law that provides for criminal liability under that doctrine.
It may plausibly be contended that command responsibility, as legal basis
to hold military/police commanders liable for extra-legal killings, enforced
disappearances, or threats, may be made applicable to this jurisdiction on
the theory that the command responsibility doctrine now constitutes a
principle of international law or customary international law in accordance
with the incorporation clause of the Constitution. Still, it would be
inappropriate to apply to these proceedings the doctrine of
command responsibility, as the CA seemed to have done, as a form
of criminal complicity through omission, for individual respondents
criminal liability, if there be any, is beyond the reach of amparo. In
other words, the Court does not rule in such proceedings on any
issue of criminal culpability, even if incidentally a crime or an
infraction of an administrative rule may have been committed. As the
Court stressed in Secretary of National Defense v. Manalo (Manalo), the
writ of amparo was conceived to provide expeditious and effective
procedural relief against violations or threats of violation of the basic rights
to life, liberty, and security of persons; the corresponding amparo suit,
however, is not an action to determine criminal guilt requiring proof beyond
reasonable doubt x x x or administrative liability requiring substantial
evidence that will require full and exhaustive proceedings. Of the same
tenor, and by way of expounding on the nature and role of amparo, is what
the Court said in Razon v. Tagitis:
It does not determine guilt nor pinpoint criminal culpability for the
disappearance [threats thereof or extrajudicial killings]; it determines
responsibility, or at least accountability, for the enforced
disappearance [threats thereof or extrajudicial killings] for purposes
of imposing the appropriate remedies to address the disappearance
[or extrajudicial killings].
xxxx
As the law now stands, extrajudicial killings and enforced disappearances
in this jurisdiction are not crimes penalized separately from the component
criminal acts undertaken to carry out these killings and enforced
disappearances and are now penalized under the Revised Penal Code
and special laws. The simple reason is that the Legislature has not
spoken on the matter; the determination of what acts are criminal x x x are
matters of substantive law that only the Legislature has the power to
enact. x x x,35,
Subsequently, we have clarified that the inapplicability of the doctrine of
command responsibility in an amparo proceeding does not, by any
measure, preclude impleading military or police commanders on the
ground that the complained acts in the petition were committed with their
direct or indirect acquiescence. Commanders may therefore be
impleadednot actually on the basis of command responsibilitybut rather on
the ground of their responsibility, or at least accountability 36,
In Razon, Jr. v. Tagitis,,37,the Court defined responsibility and
accountability as these terms are applied to amparo proceedings, as
follows:
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
48
imputed with knowledge relating to the enforced disappearance and who
carry the burden of disclosure; or those who carry, but have failed to
discharge, the burden of extraordinary diligence in the investigation
of the enforced disappearance. x x x,38, (Emphasis supplied.)
Assessing the evidence on record, we find that the participation in any
manner of military and police authorities in the abduction of James has
not been adequately proven. The identities of the abductors have not been
established, much less their link to any military or police unit. There is
likewise no concrete evidence indicating that James is being held or
detained upon orders of or with acquiescence of government agents.
Consequently, the trial court erred in granting amparo reliefs by ordering
the respondent officials (1) to disclose where James Balao is detained or
confined, (2) to release him from such detention or confinement, and (3) to
cease and desist from further inflicting harm upon his person. Such
pronouncement of responsibility on the part of public respondents cannot
be made given the insufficiency of evidence 39, However, we agree with the
trial court in finding that the actions taken by respondent officials are very
limited, superficial and one-sided. Its candid and forthright observations
on the efforts exerted by the respondents are borne by the evidence on
record, thus:
x x x the violation of the right to security as protection by the government
is unmistakable. The police and the military miserably failed in conducting
an effective investigation of James Balaos abduction as revealed by the
investigation report of respondents own witnesses Honorable Chief
Superintendent Eugene Martin and Honorable Senior Superintendent
Fortunato Albas. The investigation was to use the words in The Secretary
of National Defense, et. al., v. Manalo et. al. verylimited, superficial and
one-sided.
The actions taken were simply these: (a) organization of the Task Force
Balao; (b) conduct of ocular inspection at the place of abduction; (c) taking
of sworn statements of civilian witnesses, whose testimonies did not prove
much as shown by the continued disappearance of James Balao; (d)
dialogue with implicated military officials as well as family members and
friends of James Balao; and (e) writing of letter to the CPA. The Court
does not want to second-guess police protocols in investigation but surely
some things are amiss where the investigation DID NOT INVESTIGATE
the military officials believed to be behind the abduction as they were
merely invited to a dialogue and where the investigation DID NOT LEAD to
Camp Dangwa where the abductors were supposed to have proceeded as
narrated by the witnesses. To the mind of this Court, there is a seeming
prejudice in the process of investigation to pin suspects who are not
connected with the military establishments. By any measure, this cannot
be a thorough and good faith investigation but one that falls short of that
required by the Writ of Amparo 40,
Respondents reiterate that they did their job the best they could and fault
the petitioners instead for their non-cooperation which caused delay in the
investigation. They particularly blamed Beverly who failed to attend the
October 15, 2008 invitation to appear before the investigators and shed
light on Jamess disappearance.
We are not persuaded.
First, the Task Force Balao had acknowledged the fact that Pol. Chief
Supt. Martin was already in constant coordination with the Balao family
and CPA, and hence the investigators could have readily obtained
whatever information they needed from Beverly. Pol. Chief Supt. Martin
even mentioned in his affidavit that Task Force Balao was able to secure
the testimonies of two eyewitnesses with the help of Beverly and the
Balao family, and that as a result cartographic sketches were made of
49
some suspects 41, Moreover, Beverly had explained during the cross-
examination conducted by Associate Solicitor Paderanga that she was at
the time coordinating with national and local agencies even as the police
investigation was ongoing 42, There is nothing wrong with petitioners
simultaneous recourse to other legal avenues to gain public attention for a
possible enforced disappearance case involving their very own colleague.
Respondents should even commend such initiative that will encourage
those who may have any information on the identities and whereabouts of
Jamess abductors to help the PNP in its investigation.
Assuming there was reluctance on the part of the Balao family and CPA to
submit Jamess relatives or colleagues for questioning by agents of the
PNP and AFP, they cannot be faulted for such stance owing to the
militarys perception of their organization as a communist front: ergo,
enemies of the State who may be targeted for liquidation. But more
important, such non-cooperation provides no excuse for respondents
incomplete and one-sided investigations. As we held in Rubrico v.
Macapagal-Arroyo,43,:
As regards P/Supt. Romero and P/Insp. Gomez, the Court is more than
satisfied that they have no direct or indirect hand in the alleged enforced
disappearance of Lourdes and the threats against her daughters. As
police officers, though, theirs was the duty to thoroughly investigate
the abduction of Lourdes, a duty that would include looking into the
cause, manner, and like details of the disappearance; identifying
witnesses and obtaining statements from them; and following
evidentiary leads, such as the Toyota Revo vehicle with plate number
XRR 428, and securing and preserving evidence related to the
abduction and the threats that may aid in the prosecution of the
person/s responsible. As we said in Manalo, the right to security, as a
guarantee of protection by the government, is breached by the superficial
and one-sidedhence, ineffectiveinvestigation by the military or the police
of reported cases under their jurisdiction. As found by the CA, the local
police stations concerned, including P/Supt. Roquero and P/Insp. Gomez,
did conduct a preliminary fact-finding on petitioners complaint. They could
not, however, make any headway, owing to what was perceived to be the
refusal of Lourdes, her family, and her witnesses to cooperate. Petitioners
counsel, Atty. Rex J.M.A. Fernandez, provided a plausible explanation for
his clients and their witnesses attitude, [They] do not trust the
government agencies to protect them.The difficulty arising from a
situation where the party whose complicity in extrajudicial killing or
enforced disappearance, as the case may be, is alleged to be the same
party who investigates it is understandable, though.
The seeming reluctance on the part of the Rubricos or their
witnesses to cooperate ought not to pose a hindrance to the police
in pursuing, on its own initiative, the investigation in question to its
natural end. To repeat what the Court said in Manalo, the right to
security of persons is a guarantee of the protection of ones right by
the government. And this protection includes conducting effective
investigations of extra-legal killings, enforced disappearances, or
threats of the same kind. The nature and importance of an investigation
are captured in the Velasquez Rodriguez case, in which the Inter-
American Court of Human Rights pronounced:
[The duty to investigate] must be undertaken in a serious manner and not
as a mere formality preordained to be ineffective. An investigation must
have an objective and be assumed by the State as its own legal duty, not
a step taken by private interests that depends upon the initiative of
the victim or his family or upon offer of proof, without an effective search
for the truth by the government 44, (Emphasis supplied.)
Indeed, why zero in on Jamess own kin and colleagues when
independent eyewitnesses already provided firsthand accounts of the
50
incident, as well as descriptions of the abductors? With the cartographic
sketches having been made from interviews and statements of witnesses,
the police investigators could have taken proper steps to establish the
personal identities of said suspects and yet this was not done, the police
investigators not even lifting a finger to ascertain whether the cartographic
sketches would match with any enlisted personnel of AFP and PNP, or
their civilian agents/assets. As to the vehicles, the plate numbers of which
have earlier been disclosed by James to his family and the CPA as used
in conducting surveillance on him prior to his abduction, the military
merely denied having a vehicle with such plate number on their property
list despite the fact that the same plate number (USC 922) was sighted
attached to a car which was parked at the PA-ISU compound in Navy
Base, Baguio City. As to the other plate number given by James (TNH
787), while the police investigators were able to verify the name and
address of the registered owner of the vehicle, there is no showing that
said owner had been investigated or that efforts had been made to locate
the said vehicle. Respondents insistence that the CPA produce the
alleged companions of James in his rented residence for investigation by
the PNP team, while keeping silent as to why the police investigators had
not actively pursued those evidentiary leads provided by eyewitnessesand
the Balao family, only reinforce the trial courts observation that the
investigators are seemingly intent on building up a case against other
persons so as to deflect any suspicion of military or police involvement in
James Balaos disappearance.
In view of the foregoing evidentiary gaps, respondents clearly failed to
discharge their burden of extraordinary diligence in the investigation of
Jamess abduction. Such ineffective investigation extant in the records of
this case prevents us from completely exonerating the respondents from
allegations of accountability for James disappearance. The reports
submitted by the PNP Regional Office, Task Force Balao and Baguio City
Police Station do not contain meaningful results or details on the depth
and extent of the investigation made. In Razon, Jr. v. Tagitis, the Court
observed that such reports of top police officials indicating the personnel
and units they directed to investigate can never constitute exhaustive and
meaningful investigation, or equal detailed investigative reports of the
activities undertaken to search for the victim 45, In the same case we
stressed that the standard of diligence required the duty of public officials
and employees to observe extraordinary diligence called for extraordinary
measures expected in the protection of constitutional rights and in the
consequent handling and investigation of extra-judicial killings and
enforced disappearance cases.
As to the matter of dropping President Arroyo as party-respondent, though
not raised in the petitions, we hold that the trial court clearly erred in
holding that presidential immunity cannot be properly invoked in an
amparo proceeding. As president, then President Arroyo was enjoying
immunity from suit when the petition for a writ of amparo was filed.
Moreover, the petition is bereft of any allegation as to what specific
presidential act or omission violated or threatened to violate petitioners
protected rights 46,
In order to effectively address thru the amparo remedy the violations of the
constitutional rights to liberty and security of James who remains missing
to date, the Court deems it appropriate to refer this case back to the trial
court for further investigation by the PNP and CIDG and monitoring of
their investigative activities that complies with the standard of diligence
required by the Amparo Rule. Section 24 of Republic Act No. 6975,
otherwise known as the PNP Law,47, specifies the PNP as the
governmental office with the mandate to [i]nvestigate and prevent crimes,
effect the arrest of criminal offenders, bring offenders to justice and assist
in their prosecution. The trial court should further validate the results of
such investigations and actions through hearings it may deem necessary
to conduct.
51
Lastly, on the denial of the prayer for interim reliefs under the Amparo
Rule.
An inspection order is an interim relief designed to give support or
strengthen the claim of a petitioner in an amparo petition, in order to aid
the court before making a decision 48, A basic requirement before an
amparo court may grant an inspection order is that the place to be
inspected is reasonably determinable from the allegations of the party
seeking the order 49, In this case, the issuance of inspection order was
properly denied since the petitioners specified several military and police
establishments based merely on the allegation that the testimonies of
victims and witnesses in previous incidents of similar abductions involving
activists disclosed that those premises were used as detention centers. In
the same vein, the prayer for issuance of a production order was
predicated on petitioners bare allegation that it obtained confidential
information from an unidentified military source, that the name of James
was included in the so-called Order of Battle. Indeed, the trial court could
not have sanctioned any fishing expedition by precipitate issuance of
inspection and production orders on the basis of insufficient claims of one
party.
Nonetheless, the trial court is not precluded, as further evidence warrants,
to grant the above interim reliefs to aid it in making a decision upon
evaluation of the actions taken by the respondents under the norm of
extraordinary diligence.
WHEREFORE, the petitions in G.R. Nos. 186050 and 186059 are PARTLY
GRANTED. The Judgment dated January 19, 2009 of the Regional Trial Court
of La Trinidad, Benguet, Branch 63, in Special Proceeding No. 08-AMP-0001
is MODIFIED as follows:
1) REVERSING the grant of the privilege of the writ of amparo;
2) AFFIRMING the denial of the prayer for inspection and production orders,
without prejudice to the subsequent grant thereof, in the course of hearing and
other developments in the investigations by the Philippine National
Police/Philippine National Police Criminal Investigation and Detection Group
and the Armed Forces of the Philippines;
3) ORDERING the incumbent Chief of Staff of the Armed Forces of the
Philippines, or his successor, and the incumbent Director General of the
Philippine National Police, or his successor, to CONTINUE the investigations
and actions already commenced by the Philippine National Police Regional
OfficeCordillera, Baguio City Police, Northern Luzon Command, Philippine
National Police/Philippine National Police Criminal Investigation and Detection
Group, Philippine Army-Intelligence Service Unit and other concerned units,
and specifically take and continue to take the necessary steps:
(a) to identify the persons described in the cartographic sketches submitted by
Task Force Balao;
(b) to locate and search the vehicles bearing the plate numbers submitted by
the petitioners and which James Balao had reported to be conducting
surveillance on his person prior to his abduction on September 17, 2008, and
investigate the registered owners or whoever the previous and present
possessors/transferees thereof; and to pursue any other leads relevant to the
abduction of James Balao;
The incumbent Armed Forces of the Philippines Chief of Staff, Philippine
National Police Director General, or their successors, shall ensure that the
investigations and actions of their respective units on the abduction of James
Balao are pursued with extraordinary diligence as required by Sec. 17 of the
Amparo Rule.
For purposes of these investigations, the Philippine National Police/Philippine
National Police Criminal Investigation and Detection Group
shall periodically report the detailed results of its
investigation to the trial court for its consideration and
action. On behalf of this Court, the trial court shall pass
52
upon the sufficiency of their investigative efforts. The
Philippine National Police and the Philippine National
Police Criminal Investigation and Detection Group shall
have six (6) months from notice hereof to undertake their
investigations. Within fifteen (15) days after completion of
the investigations, the Chief of Staff of the Armed Forces of
the Philippines and the DirectorGeneral of the Philippine
National Police shall submit a full report of the results of
the said investigations to the trial court. Within thirty (30)
days thereafter, the trial court shall submit its full reportto
this Court.
These directives and those of the trial court made pursuant to this Decision
shall be given to, and shall be directly enforceable against,
whoever may be the incumbent Armed Forces of the
Philippines Chief of Staff, Director General of the Philippine
National Police and Chief of the Philippine National Police
Criminal Investigation and Detection Group and other
concerned units, under pain of contempt from this Court
when the initiatives and efforts at disclosure and
investigation constitute less than the EXTRAORDINARY
DILIGENCE that the Amparo Rule and the circumstances
of the case demand; and
4) DROPPING former President Gloria Macapagal-Arroyo as party-
respondent in the petition for writ of amparo;
This case is hereby REMANDED to the Regional Trial Court of La Trinidad,
Benguet, Branch 63 for continuation of proceedings in
Special Proceeding No. 08-AMP-0001 for the purposes of
monitoring compliance with the above directives and
determining whether, in the light of any recent reports or
recommendations, there would already be sufficient
evidence to hold any of the public respondents responsible,
 or, at least, accountable. After making such determination,
the trial court shall submit its own report and
recommendation to this Court for final action. The trial
court will continue to have jurisdiction over this case in
order to accomplish its tasks under this decision;
Accordingly, the public respondents shall remain personally
impleaded in this petition to answer for any responsibilities and/or
accountabilities they may have incurred during their incumbencies.
No pronouncement as to costs.
SO ORDERED.
G.R. No. 182161 December 3, 2009
Reverend Father ROBERT P. REYES, Petitioner,
vs.
RAUL M. GONZALEZ, in his capacity as the secretary of the COURT OF
APPEALS, secretary DEPARTMENT OF JUSTICE, AND COMMISSIONER
MARCELINO C. LIBANAN, IN HIS CAPACITY AS THE COMMISSIONER
OF THE BUREAU OF IMMIGRATION, Respondents.
DECISION
LEONARDO-DE CASTRO, J.:
For resolution is the petition for review under Rule 45 of the Rules of Court,
assailing the February 4, 2008 Decision1 of the Court of Appeals (CA) in CA-
G.R. No. 00011 which dismissed the petition for the issuance of the writ of
amparo under A.M. No. 07-9-12-SC, as amended. It also assails the CAs
Resolution dated March 25, 2008, denying petitioners motion for
reconsideration of the aforesaid February 4, 2008 Decision.
53
The undisputed facts as found by the CA are as follows:
Petitioner was among those arrested in the Manila Peninsula Hotel siege on
November 30, 2007. In the morning of November 30, 2007, petitioner together
with fifty (50) others, were brought to Camp Crame to await inquest
proceedings. In the evening of the same day, the Department of Justice (DOJ)
Panel of Prosecutors, composed of Emmanuel Y. Velasco, Phillip L. Dela Cruz
and Aristotle M. Reyes, conducted inquest proceedings to ascertain whether
or not there was probable cause to hold petitioner and the others for trial on
charges of Rebellion and/or Inciting to Rebellion.
On December 1, 2007, upon the request of the Department of Interior and
Local Government (DILG), respondent DOJ Secretary Raul Gonzales issued
Hold Departure Order (HDO) No. 45 ordering respondent Commissioner of
Immigration to include in the Hold Departure List of the Bureau of Immigration
and Deportation (BID) the name of petitioner and 49 others relative to the
aforementioned case in the interest of national security and public safety.
On December 2, 2007, after finding probable cause against petitioner and 36
others for the crime of Rebellion under Article 134 of the Revised Penal Code,
the DOJ Panel of Prosecutors filed an Information docketed as I.S. No. 2007-
1045 before the Regional Trial Court, Branch 150 of Makati City.
On December 7, 2007, petitioner filed a Motion for Judicial Determination of
Probable Cause and Release of the Accused Fr. Reyes Upon Recognizance
asserting that the DOJ panel failed to produce any evidence indicating his
specific participation in the crime charged; and that under the Constitution, the
determination of probable cause must be made personally by a judge.
On December 13, 2007, the RTC issued an Order dismissing the charge for
Rebellion against petitioner and 17 others for lack of probable cause. The trial
court ratiocinated that the evidence submitted by the DOJ Panel of
Investigating Prosecutors failed to show that petitioner and the other accused-
civilians conspired and confederated with the accused-soldiers in taking arms
against the government; that petitioner and other accused-civilians were
arrested because they ignored the call of the police despite the deadline given
to them to come out from the 2nd Floor of the Hotel and submit themselves to
the police authorities; that mere presence at the scene of the crime and
expressing ones sentiments on electoral and political reforms did not make
them conspirators absent concrete evidence that the accused-civilians knew
beforehand the intent of the accused-soldiers to commit rebellion; and that the
cooperation which the law penalizes must be one that is knowingly and
intentionally rendered.
On December 18, 2007, petitioners counsel Atty. Francisco L. Chavez wrote
the DOJ Secretary requesting the lifting of HDO No. 45 in view of the
dismissal of Criminal Case No. 07-3126.
On even date, Secretary Gonzales replied to petitioners letter stating that the
DOJ could not act on petitioners request until Atty. Chavezs right to represent
petitioner is settled in view of the fact that a certain Atty. J. V. Bautista
representing himself as counsel of petitioner had also written a letter to the
DOJ.
On January 3, 2008, petitioner filed the instant petition claiming that despite
the dismissal of the rebellion case against petitioner, HDO No. 45 still
subsists; that on December 19, 2007, petitioner was held by BID officials at
the NAIA as his name is included in the Hold Departure List; that had it not
been for the timely intervention of petitioners counsel, petitioner would not
have been able to take his scheduled flight to Hong Kong; that on December
26, 2007, petitioner was able to fly back to the Philippines from Hong Kong but
every time petitioner would present himself at the NAIA for his flights abroad,
he stands to be detained and interrogated by BID officers because of the
continued inclusion of his name in the Hold Departure List; and that the
54
Secretary of Justice has not acted on his request for the lifting of HDO No. 45.
Petitioner further maintained that immediate recourse to the Supreme Court
for the availment of the writ is exigent as the continued restraint on petitioners
right to travel is illegal.
On January 24, 2008, respondents represented by the Office of the Solicitor
General (OSG) filed the Return of the Writ raising the following affirmative
defenses: 1) that the Secretary of Justice is authorized to issue Hold
Departure Orders under the DOJ Circulars No. 17, Series of 19982 and No.
18 Series of 20073 pursuant to his mandate under the Administrative Code of
1987 as ahead of the principal law agency of the government; 2) that HDO
No. 45 dated December 1, 2007 was issued by the Sec. Gonzales in the
course of the preliminary investigation of the case against herein petitioner
upon the request of the DILG; 3) that the lifting of HDO No. 45 is premature in
view of public respondents pending Motion for Reconsideration dated
January 3, 2008 filed by the respondents of the Order dated December 13,
2007 of the RTC dismissing Criminal Case No. 07-3126 for Rebellion for lack
of probable cause; 4) that petitioner failed to exhaust administrative remedies
by filing a motion to lift HDO No. 45 before the DOJ; and 5) that the
constitutionality of Circulars No. 17 and 18 can not be attacked collaterally in
an amparo proceeding.
During the hearing on January 25, 2008 at 10:00 a.m. at the Paras Hall of the
Court of Appeals, counsels for both parties appeared. Petitioners counsel
Atty. Francisco Chavez manifested that petitioner is currently in Hong Kong;
that every time petitioner would leave and return to the country, the
immigration officers at the NAIA detain and interrogate him for several minutes
because of the existing HDO; that the power of the DOJ Secretary to issue
HDO has no legal basis; and that petitioner did not file a motion to lift the HDO
before the RTC nor the DOJ because to do so would be tantamount to
recognizing the power of the DOJ Secretary to issue HDO.
For respondents part, the Office of the Solicitor-General (OSG) maintained
that the Secretary of the DOJs power to issue HDO springs from its mandate
under the Administrative Code to investigate and prosecute offenders as the
principal law agency of the government; that in its ten-year existence, the
constitutionality of DOJ Circular No. 17 has not been challenged except now;
and that on January 3, 2008, the DOJ Panel of Investigating Prosecutors had
filed a Motion for Reconsideration of the Order of Dismissal of the trial court.
On February 1, 2008, petitioner filed a Manifestation attaching thereto a copy
of the Order dated January 31, 2008 of the trial court denying respondent
DOJs Motion for Reconsideration for utter lack of merit. The trial court also
observed that the said Motion should be dismissed outright for being filed out
of time. 4
The petition for a writ of amparo is anchored on the ground that respondents
violated petitioners constitutional right to travel. Petitioner argues that the DOJ
Secretary has no power to issue a Hold Departure Order (HDO) and the
subject HDO No. 45 has no legal basis since Criminal Case No. 07-3126 has
already been dismissed.
On February 4, 2008, the CA rendered the assailed Decision dismissing the
petition and denying the privilege of the writ of amparo.
Petitioners Motion for Reconsideration5 thereon was also denied in the
assailed Resolution6 dated March 25, 2008.
Hence, the present petition which is based on the following grounds:
I.
THE DOJ SECRETARYS ARROGATION OF POWER AND USURPATION
OF AUTHORITY TO ISSUE A HOLD DEPARTURE ORDER CANNOT BE
JUSTIFIED THROUGH A RATIONALE THAT IT HAS SUPPOSEDLY BEEN
55
"REGULARLY EXERCISED IN THE PAST" OR HAS "NEVER BEEN
QUESTIONED (IN THE PAST).
II.
THE DOJ HAS CLAIMED A POWER TO ISSUE AN HDO INDEPENDENT OF
THAT OF THE REGIONAL TRIAL COURTS, HENCE, PETITIONER CANNOT
MERELY RELY ON THE RESIDUAL POWER OF THE RTC MAKATI IN
CRIMINAL CASE NO. 07-3126 TO ASSAIL SUCH CLAIMED POWER.
III.
THE UTMOST EXIGENCY OF THE PETITION IS EXEMPLIFIED BY THE
CONTINUING ACTUAL RESTRAINT ON PETITIONERS RIGHT TO TRAVEL
THROUGH THE MAINTENANCE OF HIS NAME IN THE HDO LIST AND
DOES NOT SIMPLY HINGE ON THE QUESTION OF WHETHER OR NOT
PETITIONER WAS ABLE TO TRAVEL DESPITE SUCH A RESTRAINT.
IV.
DOJ CIRCULAR 17 SERIES OF 1998 PROVIDES NO STATUTORY BASIS
FOR THE DOJ SECRETARYS CLAIMED POWER TO ISSUE AN HDO FOR
IT IS NOT A STATUTE. THE CIRCULAR ITSELF APPEARS NOT TO BE
BASED ON ANY STATUTE, HENCE, IT DOES NOT HAVE THE FORCE OF
LAW AND NEED NOT BE ATTACKED IN A DIRECT PROCEEDING.7
Petitioner maintains that the writ of amparo does not only exclusively apply to
situations of extrajudicial killings and enforced disappearances but
encompasses the whole gamut of liberties protected by the Constitution.
Petitioner argues that "[liberty] includes the right to exist and the right to be
free from arbitrary personal restraint or servitude and includes the right of the
citizens to be free to use his faculties in all lawful ways." Part of the right to
liberty guaranteed by the Constitution is the right of a person to travel.
In their Comment,8 both respondents Secretary Gonzalez and Commissioner
Libanan argue that: 1) HDO No. 45 was validly issued by the Secretary of
Justice in accordance with Department of Justice Circular No. 17, Series of
1998,9 and Circular No. 18, Series of 2007,10 which were issued pursuant to
said Secretarys mandate under the Administrative Code of 1987, as head of
the principal law agency of the government, to investigate the commission of
crimes, prosecute offenders, and provide immigration regulatory services;
and; 2) the issue of the constitutionality of the DOJ Secretarys authority to
issue hold departure orders under DOJ Circulars Nos. 17 and 18 is not within
the ambit of a writ of amparo.
The case hinges on the issue as to whether or not petitioners right to liberty
has been violated or threatened with violation by the issuance of the subject
HDO, which would entitle him to the privilege of the writ of amparo.
The petition must fail.
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.
The Court, in Secretary of National Defense et al. v. Manalo et al.,11 made a
categorical pronouncement that the Amparo Rule in its present form is
confined to these two instances of "extralegal killings" and "enforced
disappearances," or to threats thereof, thus:
x x x As the Amparo Rule was intended to address the intractable problem of
"extralegal killings" and "enforced disappearances," its coverage, in its present
56
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."12
In Tapuz v. Del Rosario,13 the Court laid down the basic principle regarding
the rule on the writ of amparo as follows:
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:
"(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."14
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. (Emphasis supplied)
Here, petitioner invokes this extraordinary remedy of the writ of amparo for the
protection of his right to travel. He insists that he is entitled to the protection
covered by the Rule on the Writ of Amparo because the HDO is a continuing
actual restraint on his right to travel. The Court is thus called upon to rule
whether or not the right to travel is covered by the Rule on the Writ of Amparo.
The rights that fall within the protective mantle of the Writ of Amparo under
Section 1 of the Rules thereon are the following: (1) right to life; (2) right to
liberty; and (3) right to security.
In Secretary of National Defense et al. v. Manalo et al.,15 the Court explained
the concept of right to life in this wise:
57
While the right to life under Article III, Section 1 guarantees essentially the
right to be alive- upon which the enjoyment of all other rights is preconditioned
- the right to security of person is a guarantee of the secure quality of this life,
viz: "The life to which each person has a right is not a life lived in fear that his
person and property may be unreasonably violated by a powerful ruler.
Rather, it is a life lived with the assurance that the government he established
and consented to, will protect the security of his person and property. The
ideal of security in life and property pervades the whole history of man. It
touches every aspect of mans existence." In a broad sense, the right to
security of person "emanates in a persons legal and uninterrupted enjoyment
of his life, his limbs, his body, his health, and his reputation. It includes the
right to exist, and the right to enjoyment of life while existing, and it is invaded
not only by a deprivation of life but also of those things which are necessary to
the enjoyment of life according to the nature, temperament, and lawful desires
of the individual."16
The right to liberty, on the other hand, was defined in the City of Manila, et al.
v. Hon. Laguio, Jr.,17 in this manner:
Liberty as guaranteed by the Constitution was defined by Justice Malcolm to
include "the right to exist and the right to be free from arbitrary restraint or
servitude. The term cannot be dwarfed into mere freedom from physical
restraint of the person of the citizen, but is deemed to embrace the right of
man to enjoy the facilities with which he has been endowed by his Creator,
subject only to such restraint as are necessary for the common welfare." x x x
Secretary of National Defense et al. v. Manalo et al.18 thoroughly expounded
on the import of the right to security, thus:
A closer look at the right to security of person would yield various
permutations of the exercise of this right.
First, the right to security of person is "freedom from fear." In its "whereas"
clauses, the Universal Declaration of Human Rights (UDHR) enunciates that
"a world in which human beings shall enjoy freedom of speech and belief and
freedom from fear and want has been proclaimed as the highest aspiration of
the common people." (emphasis supplied) Some scholars postulate that
"freedom from fear" is not only an aspirational principle, but essentially an
individual international human right. It is the "right to security of person" as the
word "security" itself means "freedom from fear." Article 3 of the UDHR
provides, viz:
Everyone has the right to life, liberty and security of person.
xxx
The Philippines is a signatory to both the UDHR and the ICCPR.
In the context of Section 1 of the Amparo Rule, "freedom from fear" is the right
and any threat to the rights to life, liberty or security is the actionable wrong.
Fear is a state of mind, a reaction; threat is a stimulus, a cause of action. Fear
caused by the same stimulus can range from being baseless to well-founded
as people react differently. The degree of fear can vary from one person to
another with the variation of the prolificacy of their imagination, strength of
character or past experience with the stimulus. Thus, in the amparo context, it
is more correct to say that the "right to security" is actually the "freedom from
threat." Viewed in this light, the "threatened with violation" Clause in the latter
part of Section 1 of the Amparo Rule is a form of violation of the right to
security mentioned in the earlier part of the provision.
Second, the right to security of person is a guarantee of bodily and
psychological integrity or security. Article III, Section II of the 1987 Constitution
guarantees that, as a general rule, ones body cannot be searched or invaded
without a search warrant. Physical injuries inflicted in the context of extralegal
58
killings and enforced disappearances constitute more than a search or
invasion of the body. It may constitute dismemberment, physical disabilities,
and painful physical intrusion. As the degree of physical injury increases, the
danger to life itself escalates. Notably, in criminal law, physical injuries
constitute a crime against persons because they are an affront to the bodily
integrity or security of a person.
xxx
Third, the right to security of person is a guarantee of protection of ones rights
by the government. In the context of the writ of amparo, this right is built into
the guarantees of the right to life and liberty under Article III, Section 1 of the
1987 Constitution and the right to security of person (as freedom from threat
and guarantee of bodily and psychological integrity) under Article III, Section
2. The right to security of person in this third sense is a corollary of the policy
that the State "guarantees full respect for human rights" under Article II,
Section 11 of the 1987 Constitution. As the government is the chief guarantor
of order and security, the Constitutional guarantee of the rights to life, liberty
and security of person is rendered ineffective if government does not afford
protection to these rights especially when they are under threat. Protection
includes conducting effective investigations, organization of the government
apparatus to extend protection to victims of extralegal killings or enforced
disappearances (or threats thereof) and/or their families, and bringing
offenders to the bar of justice. x x x (emphasis supplied) 19
The right to travel refers to the right to move from one place to another.20 As
we have stated in Marcos v. Sandiganbayan,21 "xxx a persons right to travel
is subject to the usual constraints imposed by the very necessity of
safeguarding the system of justice. In such cases, whether the accused
should be permitted to leave the jurisdiction for humanitarian reasons is a
matter of the courts sound discretion." 22
Here, the restriction on petitioners right to travel as a consequence of the
pendency of the criminal case filed against him was not unlawful. Petitioner
has also failed to establish that his right to travel was impaired in the manner
and to the extent that it amounted to a serious violation of his right to life,
liberty and security, for which there exists no readily available legal recourse
or remedy.
In Canlas et al. v. Napico Homeowners Association I XIII, Inc. et al.,23 this
Court ruled that:
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.
We find the direct recourse to this Court inappropriate, considering the
provision of Section 22 of the Rule on the Writ of Amparo which reads:
Section 22. Effect of Filing of a Criminal Action. When a criminal action has
been commenced, no separate petition for the writ shall be filed. The reliefs
under the writ shall be available by motion in the criminal case..
The procedure under this Rule shall govern the disposition of the reliefs
available under the writ of amparo.
Pursuant to the aforementioned Section 22, petitioner should have filed with
the RTC-Makati a motion to lift HDO No. 45 in Criminal Case No. 07-3126.
Petitioner, however, did not file in the RTC-Makati a motion to lift the DOJs
HDO, as his co-accused did in the same criminal case. Petitioner argues that
it was not the RTC-Makati but the DOJ that issued the said HDO, and that it is
his intention not to limit his remedy to the lifting of the HDO but also to
question before this Court the constitutionality of the power of the DOJ
59
Secretary to issue an HDO.24 We quote with approval the CAs ruling on this
matter:
The said provision [Section 22] is an affirmation by the Supreme Court of its
pronouncement in Crespo v. Mogul25 that once a complaint or information is
filed in court, any disposition of the case such as its dismissal or its
continuation rests on the sound discretion of the court. Despite the denial of
respondents MR of the dismissal of the case against petitioner, the trial court
has not lost control over Criminal Case No. 07-3126 which is still pending
before it. By virtue of its residual power, the court a quo retains the authority to
entertain incidents in the instant case to the exclusion of even this Court. The
relief petitioner seeks which is the lifting of the HDO was and is available by
motion in the criminal case. (Sec. 22, Rule on the Writ of amparo, supra).26
Even in civil cases pending before the trial courts, the Court has no authority
to separately and directly intervene through the writ of amparo, as elucidated
in Tapuz v. Del Rosario,27 thus:
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
securitythe 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.
Additionally, petitioner is seeking the extraordinary writ of amparo due to his
apprehension that the DOJ may deny his motion to lift the HDO.28 Petitioners
apprehension is at best merely speculative. Thus, he has failed to show any
clear threat to his right to liberty actionable through a petition for a writ of
amparo. The absence of an actual controversy also renders it unnecessary for
us on this occasion to pass upon the constitutionality of DOJ Circular No. 17,
Series of 1998 (Prescribing Rules and Regulations Governing the Issuance of
Hold Departure Orders); and Circular No. 18, Series of 2007 (Prescribing
Rules and Regulations Governing the Issuance and Implementation of
Watchlist Orders and for Other Purposes).
WHEREFORE, the petition is DISMISSED. The assailed Decision of the CA
dated February 4, 2008 in CA-G.R. No. 00011 is hereby AFFIRMED.
SO ORDERED.
EN BANC
RODOLFO NOEL LOZADA, JR., VIOLETA LOZADA and ARTURO
LOZADA,
Petitioners,
- versus -
PRESIDENT GLORIA MACAPAGAL ARROYO, EDUARDO ERMITA,
AVELINO RAZON, ANGEL ATUTUBO and SPO4 ROGER VALEROSO,*
Respondents.
G.R. Nos. 184379-80
60
Promulgated:
April 24, 2012
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DECISION
SERENO, J.:
What the Court decides today has nothing to do with the substance or merits
surrounding the aborted deal of the Philippine government with the National
Broadband Network and ZTE Corporation, or any allegation of petitioner
Rodolfo Noel June Lozada, Jr., (Lozada) regarding the same. There is only
one issue that we decide today whether circumstances are adequately alleged
and proven by petitioner Lozada to entitle him to the protection of the writ of
amparo. Before us is a Petition for Review on Certiorari of the Decision dated
12 September 2008 of the Court of Appeals (CA), dismissing the Petition for
the Issuance of a Writ of Amparo 1,
Petitioner Lozada was the former President and Chief Executive Officer of the
Philippine Forest Corporation (PFC), a government-owned- and -controlled
corporation under the Department of Environment and Natural Resources
(DENR) 2, Petitioner Violeta Lozada (Violeta) is his wife, while petitioner
Arturo Lozada (Arturo) is his brother.
At the time the Petition for the Writ of Amparo was filed, respondent former
President Gloria Macapagal Arroyo (former President Arroyo) was the
incumbent President of the Philippines. Meanwhile, Eduardo Ermita (ES
Ermita) was then the Executive Secretary; Avelino Razon (Razon), the
Director General of the Philippine National Police (PNP); Angel Atutubo
(Atutubo), the Assistant General Manager for Security and Emergency
Services of the Manila International Airport Authority; and Rodolfo Valeroso
(Valeroso), an agent of the Aviation Security Group (ASG) of the PNP.
Antecedent Facts
The instant Petition stems from the alleged corruption scandal precipitated by
a transaction between the Philippine government, represented by the National
Broadband Network (NBN), and ZTE Corporation (ZTE), a Chinese
manufacturer of telecommunications equipment 3, Former National Economic
Development Authority (NEDA) Secretary Romulo Neri (Sec. Neri) sought the
services of Lozada as an unofficial consultant in the ZTE-NBN deal] The latter
avers that during the course of his engagement, he discovered several
anomalies in the said transaction involving certain public officials These
events impelled the Senate of the Philippines Blue Ribbon Committee (Blue
Ribbon Committee) to conduct an investigation thereon,[if for which it issued
a subpoena directing Lozada to appear and testify on 30 January 2008
On that date, instead of appearing before the Blue Ribbon Committee, Lozada
left the country for a purported official trip to London, as announced by then
DENR Secretary Lito Atienza (Sec. Atienza][8, In the Petition, Lozada alleged
that his failure to appear at the scheduled hearing was upon the instructions of
then Executive Assistant Undersecretary Manuel Gaite (Usec. Gaite).[if 9,
Consequently, the Senate issued an Order dated 30 January 2008: (a) citing
Lozada for contempt; (b) ordering his arrest and detention; and (c) directing
the Senate Sergeant-at-Arms to implement the Order and make a return
thereon.
While overseas, Lozada asked Sec. Atienza whether the former could be
allowed to go back to the Philippines. Upon the approval of Sec. Atienza,
Lozada informed his family that he was returning from Hong Kong on 5
February 2008 on board Cathay Pacific Flight No. 919, bound to arrive in
Manila at 4:40 p.m. on the same day 12,
61
In the Petition, Lozada claims that, upon disembarking from the aircraft,
several men held his arms and took his bag. Although he allegedly insisted on
meeting with his family, he later realized that it was wiser to just follow them,
especially when he overheard from their handheld radio: [H]wag kayong
dumaan diyan sir nandyan ang mga taga senado 13,
Lozada asked if he could go to the comfort room, an opportunity he used to
call up his brother, petitioner Arturo, and inform him of his situation 14, The
men thereafter led him through the departure area of the airport and into a car
waiting for them 15, They made him sit alone at the back of the vehicle, while
a man, whom he later discovered to be respondent Valeroso, took the
passenger seat and was always in contact with other individuals 16, Lozada
observed that other cars tailed their vehicle 17,
Sec. Atienza then phoned Lozada, assuring the latter that he was with people
from the government, and that the former was going to confer with ES and
Ma[a]m. Lozada surmised that these individuals referred to ES Ermita and
former President Arroyo, respectively 18, Sec. Atienza also purportedly
instructed Lozada to pacify his wife, petitioner Violeta, who was making public
statements asking for her husbands return 19,
The vehicle traversed the South Luzon Expressway and drove towards the
direction of Laguna 20, Along the way, the men asked Lozada to draft an
antedated letter requesting police protection 21,
Lozada requested that he be brought home to Pasig, but the men were
allegedly compelled to deny his request on account of unidentified security
risks 22, Eventually, however, the vehicle turned around and drove to Libis,
Quezon City. The group stopped at The Outback restaurant to meet with
certain individuals, who turned out to be Atty. Antonio Bautista (Atty. Bautista)
and Colonel Paul Mascarinas (Col. Mascarinas) of the Police Special
Protection Office (PSPO). At the restaurant, Lozada claimed that he was
made to fill in the blanks of a prepared affidavit 23,
After the meeting, the men informed Lozada that they were going to billet him
in a hotel for a night, but he suggested that they take him to La Salle Green
Hills instead. The men acquiesced 24,
Upon arriving in La Salle Green Hills, Lozada was met by Violeta and his
sister, Carmen Lozada (Carmen) 25, He observed that the perimeter was
guarded by policemen, purportedly restraining his liberty and threatening not
only his security, but also that of his family and the De La Salle brothers 26,
On 6 February 2008, at around 10:00 a.m., Col. Mascarinas supposedly
brought Lozada to the office of Atty. Bautista to finalize and sign an affidavit
27,
At about 1:00 p.m., Violeta filed before this Court a Petition for Habeas
Corpus,f docketed as G.R. No. 181342 (the Habeas Corpus case) 28, Arturo
likewise filed before this Court a Petition for a Writ of Amparo, docketed as
G.R. No. 181356 (the Amparo case), and prayed for the issuance of (a) the
writ of amparo; (b) a Temporary Protection Order (TPO); and (c) Inspection
and Production Orders as regards documents related to the authority ordering
custody over Lozada, as well as any other document that would show
responsibility for his alleged abduction 29,
At around the same time that Arturo filed the Petition for a Writ of Amparo,
Col. Mascarinas drove Lozada back to La Salle Green Hills 30, Lozada was
then made to sign a typewritten, antedated letter requesting police protection
31, Thereafter, former Presidential Spokesperson Michael Defensor (Sec.
Defensor) supposedly came and requested Lozada to refute reports that the
latter was kidnapped and to deny knowledge of alleged anomalies in the NBN-
62
ZTE deal. Sec. Defensor then purportedly gave Lozada P50,000 for the latters
expenses 32,
On 7 February 2008, Lozada decided to hold a press conference and contact
the Senate Sergeant-at-Arms, who served the warrant of arrest on him 33,
Lozada claimed that after his press conference and testimony in the Senate,
he and his family were since then harassed, stalked and threatened 34,
On the same day, this Court issued a Resolution (a) consolidating the Habeas
Corpus case and the Amparo case; (b) requiring respondents in the Habeas
Corpus case to comment on the Petition; (c) issuing a Writ of Amparo; (d)
ordering respondents in the Amparo case to file their verified Return; (e)
referring the consolidated Petitions to the CA; and (f) directing the CA to set
the cases for hearing on 14 February 2008 35, Accordingly, the court a quo
set both cases for hearing on 14 February 2008 36,
On 12 February 2008, respondents filed before the CA a Manifestation and
Motion, praying for the dismissal of the Habeas Corpus case 37, They
asserted that Lozada was never illegally deprived of his liberty and was, at
that time, no longer in their custody. They likewise averred that, beginning 8
February 2008, Lozada had already been under the supervision of the Senate
and, from then on, had been testifying before it 38,
In their verified Return, respondents claimed that Sec. Atienza had arranged
for the provision of a security team to be assigned to Lozada, who was then
fearful for his safety 39, In effect, respondents asserted that Lozada had
knowledge and control of the events that took place on 5 February 2008,
voluntarily entrusted himself to their company, and was never deprived of his
liberty. Hence, respondents prayed for the denial of the interim reliefs and the
dismissal of the Petition 40,
During the initial hearing on 14 February 2008, Lozada and Violeta ratified the
Petition in the Amparo case,41, to comply with Section 2 of the Rule on the
Writ of Amparo,,42, which imposes an order to be followed by those who can
sue for the writ 43, The CA also dismissed the Habeas Corpus case in open
court for being moot and academic, as Lozada was physically present and
was not confined or detained by any of the respondents 44, Considering that
petitioners failed to question the dismissal of the Habeas Corpus case, the
said dismissal had lapsed into finality, leaving only the Amparo case open for
disposition.
Thereafter, Lozada filed a Motion for Temporary Protection Order and
Production of Documents,,45, while Arturo filed a Motion for Production of
Documents 46, Additionally, Arturo also filed a Motion for the Issuance of
Subpoena Ad Testificandum and Presentation of Hostile Witnesses and
Adverse Parties Romulo Neri, Benjamin Abalos, [Sr.], Rodolfo Valeroso, Jaime
the Driver and Other Respondents. Respondents opposed these motions 47,
The CA denied the Motion for the Issuance of Subpoena on the ground that
the alleged acts and statements attributed to Sec. Neri and Benjamin Abalos
(Abalos) were irrelevant to the Amparo case, and that to require them to testify
would only result in a fishing expedition 48, The CA likewise denied Arturos
subsequent Motion for Reconsideration 49,
In its Resolution dated 5 March 2008, the CA dropped former President Arroyo
as a respondent on the ground that at the time the Petition in the Amparo case
was filed, she was still the incumbent President enjoying immunity from suit
50, Arturo filed a Motion for Reconsideration,,51, which the CA denied in its
Resolution dated 25 March 2008 52,
On 12 September 2008, the CA rendered its Decision denying petitioners the
privilege of the Writ of Amparo and dismissing the Petition 53, The CA found
that petitioners were unable to prove through substantial evidence that
63
respondents violated, or threatened with violation, the right to life, liberty and
security of Lozada.
Petitioners thus filed the instant Petition, praying for: (a) the reversal of the
assailed CA Decision; (b) the issuance of the TPO; and (c) the accreditation of
the Association of Major Religious Superiors of the Philippines and the De La
Salle Brothers as the sanctuaries of Lozada and his family 54, In the
alternative, petitioners pray that this Court remand the case to the CA for
further hearings and reverse the latters Orders: (a) denying the Motion to
Issue a Subpoena Ad Testificandum and (b) dropping former President Arroyo
as a respondent. Petitioners raise the following issues:
Whether the Court a [q]uo erred in ruling to dismiss the petition for a writ of
amparo and deny Petitioners prayer for a Temporary Protection Order, inter
alia, because there is no substantial evidence to prove that the right to life,
liberty or security of Jun Lozada was violated or threatened with violation. This
rule is not in accord with the rule on the writ of amparo and Supreme Court
jurisprudence on substantial evidence[.]
Whether the Ponencia erred and gravely abused its discretion by prematurely
ruling that the testimony of witnesses which Petitioners sought to present and
who are subject of the Motion for Issuance of Subpoena ad testificandum
were irrelevant to the Petition for a Writ of Amparo in a way not in accord with
the Rules of Court and Supreme Court decisions.
]Whether the Court a quo erred in using and considering the affidavits of
respondents in coming up with the questioned decision when these were not
offered as evidence and were not subjected to cross-examination. This ruling
is not in accord with the Rules of Court and jurisprudence.
Whether the Court a [q]uo erred in dropping as respondent Pres. Gloria
Arroyo despite her failure to submit a verified return and personally claim
presidential immunity in a way not in accord with the Rule on the Writ of
Amparo
The Office of the Solicitor General (OSG) asserts that petitioners failed to
adduce substantial evidence, as the allegations they propounded in support of
their Petition were largely hearsay The OSG also maintains that it was proper
for the CA to have dropped former President Arroyo as respondent on account
of her presidential immunity from suit
Respondent Atutubo also alleges, among others, that: (a) Lozada voluntarily
asked for security and protection; (b) Lozada willingly submitted himself to the
company of the police escorts; (c) Atutubo merely accompanied him to pass
through the contingency route customarily provided to VIP passengers, public
figures, foreign dignitaries, and the like; and (d) Atutubo only performed his job
to ensure security and maintain order at the airport upon the arrival of Lozada
In the face of these assertions by respondents, petitioners nevertheless insist
that while they have sufficiently established that Lozada was taken against his
will and was put under restraint, respondents have failed to discharge their
own burden to prove that they exercised extraordinary diligence as public
officials 59, Petitioners also maintain that it was erroneous for the CA to have
denied their motion for subpoena ad testificandum for being irrelevant, given
that the relevancy of evidence must be examined after it is offered, and not
before 60, Finally, petitioners contend that the presidential immunity from suit
cannot be invoked in amparo actions
Issues
In ruling on whether the CA committed reversible error in issuing its assailed
Decision, three issues must be discussed:
64
,I. Whether the CA committed an error in dropping former President Arroyo
as a respondent in the Amparo case.
,II. Whether the CA committed an error in denying petitioners Motion for the
Issuance of a Subpoena Ad Testificandum.
III. Whether petitioners should be granted the privilege of the writ of amparo.
Discussion
The writ of amparo is an independent and summary remedy that provides
rapid judicial relief to protect the peoples right to life, liberty and security 62,
Having been originally intended as a response to the alarming cases of
extrajudicial killings and enforced disappearances in the country, it serves
both preventive and curative roles to address the said human rights violations.
It is preventive in that it breaks the expectation of impunity in the commission
of these offenses, and it is curative in that it facilitates the subsequent
punishment of perpetrators by inevitably leading to subsequent investigation
and action 63,
As it stands, the writ of amparo is confined only to cases of extrajudicial
killings and enforced disappearances, or to threats thereof 64, Considering
that this remedy is aimed at addressing these serious violations of or threats
to the right to life, liberty and security, it cannot be issued on amorphous and
uncertain grounds,,65, or in cases where the alleged threat has ceased and is
no longer imminent or continuing 66, Instead, it must be granted judiciously so
as not to dilute the extraordinary and remedial character of the writ, thus:
The privilege of the writ of amparo is envisioned basically to protect and
guarantee the rights to life, liberty, and security of persons, free from fears and
threats that vitiate the quality of this life. It is an extraordinary writ
conceptualized and adopted in light of and in response to the prevalence of
extra-legal killings and enforced disappearances. Accordingly, the remedy
ought to be resorted to and granted judiciously, lest the ideal sought by the
Amparo Rule be diluted and undermined by the indiscriminate filing of amparo
petitions for purposes less than the desire to secure amparo reliefs and
protection and/or on the basis of unsubstantiated allegations 67, (Emphasis
supplied.)
Using this perspective as the working framework for evaluating the assailed
CA decision and the evidence adduced by the parties, this Court denies the
Petition.
First issue: Presidential immunity from suit
It is settled in jurisprudence that the President enjoys immunity from suit
during his or her tenure of office or actual incumbency 68, Conversely, this
presidential privilege of immunity cannot be invoked by a non-sitting president
even for acts committed during his or her tenure 69,
In the case at bar, the events that gave rise to the present action, as well as
the filing of the original Petition and the issuance of the CA Decision, occurred
during the incumbency of former President Arroyo. In that respect, it was
proper for the court a quo to have dropped her as a respondent on account of
her presidential immunity from suit.
It must be underscored, however, that since her tenure of office has already
ended, former President Arroyo can no longer invoke the privilege of
presidential immunity as a defense to evade judicial determination of her
responsibility or accountability for the alleged violation or threatened violation
of the right to life, liberty and security of Lozada.
Nonetheless, examining the merits of the case still results in the denial of the
Petition on the issue of former President Arroyos alleged responsibility or
accountability. A thorough examination of the allegations postulated and the
evidence adduced by petitioners reveals their failure to sufficiently establish
65
any unlawful act or omission on her part that violated, or threatened with
violation, the right to life, liberty and security of Lozada. Except for the bare
claims that: (a) Sec. Atienza mentioned a certain Ma[a]m,,70, whom Lozada
speculated to have referred to her, and (b) Sec. Defensor told Lozada that the
President was hurting from all the media frenzy,,71, there is nothing in the
records that would sufficiently establish the link of former President Arroyo to
the events that transpired on 5-6 February 2010, as well as to the subsequent
threats that Lozada and his family purportedly received.
Second issue: Denial of the issuance of a subpoena ad testificandum
This Court, in Roco v. Contreras,,72, ruled that for a subpoena to issue, it
must first appear that the person or documents sought to be presented are
prima facie relevant to the issue subject of the controversy, to wit:
A subpoena is a process directed to a person requiring him to attend and to
testify at the hearing or trial of an action or at any investigation conducted
under the laws of the Philippines, or for the taking of his deposition.
In this jurisdiction, there are two (2) kinds of subpoena, to wit: subpoena ad
testificandum and subpoena duces tecum. The first is used to compel a
person to testify, while the second is used to compel the production of books,
records, things or documents therein specified. As characterized in H.C.
Liebenow vs. The Philippine Vegetable Oil Company:
The subpoena duces tecum is, in all respects, like the ordinary subpoena ad
testificandum with the exception that it concludes with an injunction that the
witness shall bring with him and produce at the examination the books,
documents, or things described in the subpoena.
Well-settled is the rule that before a subpoena duces tecum may issue, the
court must first be satisfied that the following requisites are present: (1) the
books, documents or other things requested must appear prima facie relevant
to the issue subject of the controversy (test of relevancy); and (2) such books
must be reasonably described by the parties to be readily identified (test of
definiteness) 73, (Emphasis supplied.)
In the present case, the CA correctly denied petitioners Motion for the
Issuance of Subpoena Ad Testificandum on the ground that the testimonies of
the witnesses sought to be presented during trial were prima facie irrelevant to
the issues of the case. The court a quo aptly ruled in this manner:
The alleged acts and statements attributed by the petitioner to Neri and
Abalos are not relevant to the instant Amparo Petition where the issue
involved is whether or not Lozadas right to life, liberty and security was
threatened or continues to be threatened with violation by the unlawful act/s of
the respondents. Evidence, to be relevant, must have such a relation to the
fact in issue as to induce belief in its existence or nonexistence. Further, Neri,
Abalos and a certain driver Jaime are not respondents in this Amparo Petition
and the vague allegations averred in the Motion with respect to them do not
pass the test of relevancy. To Our mind, petitioner appears to be embarking on
a fishing expedition. Petitioner should present the aggrieved party [Lozada],
who has been regularly attending the hearings, to prove the allegations in the
Amparo Petition, instead of dragging the names of other people into the
picture. We have repeatedly reminded the parties, in the course of the
proceedings, that the instant Amparo Petition does not involve the
investigation of the ZTE-[NBN] contract. Petitioner should focus on the fact in
issue and not embroil this Court into said ZTE-NBN contract, which is now
being investigated by the Senate Blue Ribbon Committee and the Office of the
Ombudsman 74, (Emphasis supplied.)
All the references of petitioners to either Sec. Neri or Abalos were solely with
respect to the ZTE-NBN deal, and not to the events that transpired on 5-6
February 2008, or to the ensuing threats that petitioners purportedly received.
66
Although the present action is rooted from the involvement of Lozada in the
said government transaction, the testimonies of Sec. Neri or Abalos are
nevertheless not prima facie relevant to the main issue of whether there was
an unlawful act or omission on the part of respondents that violated the right
to life, liberty and security of Lozada. Thus, the CA did not commit any
reversible error in denying the Motion for the Issuance of Subpoena Ad
Testificandum.
Third issue: Grant of the privilege of the writ of amparo
,A. .Alleged violation of or threat to the right to life, liberty and security
of Lozada
Sections 17 and 18 of the Rule on the Writ of Amparo requires the parties to
establish their claims by substantial evidence,,75, or such relevant evidence
as a reasonable mind might accept as adequate to support a conclusion 76,
The use of this evidentiary threshold reveals the clear intent of the framers of
the Rule on the Writ of Amparo to have the equivalent of an administrative
proceeding, albeit judicially conducted, in addressing amparo situations 77,
In cases where the violation of the right to life, liberty or security has already
ceased, it is necessary for the petitioner in an amparo action to prove the
existence of a continuing threat 78, Thus, this Court held in its Resolution in
Razon v. Tagitis:,79,
Manalo is different from Tagitis in terms of their factual settings, as enforced
disappearance was no longer a problem in that case. The enforced
disappearance of the brothers Raymond and Reynaldo Manalo effectively
ended when they escaped from captivity and surfaced, while Tagitis is still
nowhere to be found and remains missing more than two years after his
reported disappearance. An Amparo situation subsisted in Manalo, however,
because of the continuing threat to the brothers right to security; the brothers
claimed that since the persons responsible for their enforced disappearance
were still at large and had not been held accountable, the former were still
under the threat of being once again abducted, kept captive or even killed,
which threat constituted a direct violation of their right to security of person 80,
(Emphasis supplied.)
In the present case, the totality of the evidence adduced by petitioners failed
to meet the threshold of substantial evidence. Sifting through all the evidence
and allegations presented, the crux of the case boils down to assessing the
veracity and credibility of the parties diverging claims as to what actually
transpired on 5-6 February 2008. In this regard, this Court is in agreement
with the factual findings of the CA to the extent that Lozada was not illegally
deprived of his liberty from the point when he disembarked from the aircraft up
to the time he was led to the departure area of the airport,,81, as he
voluntarily submitted himself to the custody of respondents:
[Lozada] was one of the first few passengers to get off the plane because he
was instructed by Secretary Atienza, th[r]ough a phone call on the night of 04
February 2008, while he was still in Hong Kong, to proceed directly to the
Bureau of Immigration so that few people would notice him and he could be
facilitated in going out of the airport without any hassle from the people of the
Senate Sergeant-at-Arms. Again, [Lozada] stated that he wanted to get away
from the Senate people. [Lozada] even went to the mens room of the airport,
after he was allegedly grabbed, where he made a call to his brother Arturo,
using his Globe phone, and he was not prevented from making said call, and
was simply advised by the person who met him at the tube to (sic) sir, bilisan
mo na. When they proceeded out of the tube and while walking, [Lozada]
heard from the radio track down, wag kayo dyan, sir, nandyan yong mga taga
Senado, so they took a detour and went up to the departure area, did not go
out of the normal arrival area, and proceeded towards the elevator near the
Duty Free Shop and then down towards the tarmac. Since [Lozada] was
avoiding the people from the Office of the Senate Sergeant-at-Arms, said
detour appears to explain why they did not get out at the arrival area, where
67
[Lozada] could have passed through immigration so that his passport could be
properly stamped.
This Court does not find any evidence on record that [Lozada] struggled or
made an outcry for help when he was allegedly grabbed or abducted at the
airport. [Lozada] even testified that nobody held him, and they were not hostile
to him nor shouted at him. With noon day clarity, this Court finds that the
reason why [Lozada] was fetched at the airport was to help him avoid the
Senate contingent, who would arrest and detain him at the Office of the
Senate Sergeant-at-Arms, until such time that he would appear and give his
testimony, pursuant to the Order of the Senate on the NBN-ZTE Project.
[Lozada] clearly knew this because at that time, it was still his decision not to
testify before the Senate. He agreed with that plan 82, (Emphases supplied.)
The foregoing statements show that Lozada personally sought the help of
Sec. Atienza to avoid the Senate personnel, and thus knew that the men who
met him at the airport were there to aid him in such objective. Surely, the
actions of Lozada evinced knowledge and voluntariness, uncharacteristic of
someone who claims to have been forcibly abducted.
However, these mens subsequent acts of directing Lozada to board the
vehicle and driving him around, without disclosing the exact purpose thereof,
appear to be beyond what he had consented to and requested from Sec.
Atienza. These men neither informed him of where he was being transported
nor provided him complete liberty to contact his family members to assure
them of his safety. These acts demonstrated that he lacked absolute control
over the situation, as well as an effective capacity to challenge their
instructions.
Nevertheless, it must be emphasized that if Lozada had in fact been illegally
restrained, so much so that his right to liberty and security had been violated,
the acts that manifested this restraint had already ceased and has
consequently rendered the grant of the privilege of the writ of amparo moot.
Whether or not Lozada was deprived of his liberty from the point when he was
led inside the vehicle waiting for him at the airport up to the time he was taken
to La Salle Green Hills, petitioners assertions that Lozada and his family
continue to suffer various threats from respondents remain unproven. The CA
correctly found as follows:
The supposed announcement of General Razon over the radio that [Lozada]
was in the custody of the PNP can neither be construed as a threat to
[Lozadas] life, liberty and security. Certainly, no person in his right mind would
make that kind of media announcement if his intent was indeed to threaten
somebodys life, liberty and security.
xxx xxx xxx
He claims that he is threatened by the alleged presence of armed men riding
in motorcycle passing outside the De La Salle premises where he and his
family are staying and by alleged threats of armed men around him at places
where he went to. Again, these alleged threats were not proven by any
evidence at all, as having originated from any of the respondents.
[Lozada] also considers the installation of the surveillance camera at the De
La Salle and at St. Scholastica as indirect threat to his right to life, liberty and
security. He claims that these are spy cameras. However, save for [Lozadas]
self-serving claim, he simply failed to prove that they were installed or ordered
installed by the respondents for the purpose of threatening his right to life,
liberty and security.
[Lozada] further maintains that there is an alleged trend, i.e., wherever he
goes, there is a bomb threat. There were bomb threats in the places where he
went to like in [the Polytechnic University of the Philippines], Dagupan, Cebu
and Bohol. However, [Lozada] himself testified that he did not try to ascertain
where the bomb threats emanated. Plainly, there is no evidence on record that
68
the bomb threats were made by the respondents or done upon their
instigation.
Moreover, [Lozada] views the pronouncement of the Secretary of Justice that
he was put on the watch list of the Bureau of Immigration as a threat to his life,
liberty and security. This alleged threat is again unsupported by evidence, as
in fact, [Lozada] testified that he did not ascertain from the Bureau of
Immigration whether his name was actually in the official watch list of the
Bureau. At any rate, the Secretary of Justice is not one of the respondents in
the amparo petition, and there is no showing in the record that it was the
respondents who ordered the same for the purpose of threatening him.
[Lozada] harps on the filing of alleged frivolous cases against him and his
family as threat to his life, liberty and security. xxx However, [Lozada] himself
testified that he does not know whether the respondents or any of the
respondents ordered the filing of these cases against him. In any event, said
purported cases are to be determined based on their own merits and are
clearly beyond the realm of the instant amparo petition filed against the
respondents 83, (Emphasis supplied.)
Finally, petitioners insist that while they were able to sufficiently establish their
case by the required evidentiary standard, respondents failed to discharge
their burden to prove their defenses by substantial evidence and to show that
respondents exercised extraordinary diligence as required by the Rule on the
Writ of Amparo 84, This Court has squarely passed upon this contention in
Yano v. Sanchez,,85, to wit:
The failure to establish that the public official observed extraordinary diligence
in the performance of duty does not result in the automatic grant of the
privilege of the amparo writ. It does not relieve the petitioner from establishing
his or her claim by substantial evidence.
Thus, in amparo actions, petitioners must establish their claims by substantial
evidence, and they cannot merely rely on the supposed failure of respondents
to prove either their defenses or their exercise of extraordinary diligence. In
this case, the totality of the evidence presented by petitioners fails to meet the
requisite evidentiary threshold, and the privilege of the writ of amparo has
already been rendered moot and academic by the cessation of the restraint to
Lozadas liberty.
,B. .Propriety of the privilege of the writ of amparo and its interim
reliefs
As previously discussed, there is no basis to grant Lozada the privilege of the
writ of amparo, considering that the illegal restraint alleged in this case had
already ceased and there is no imminent or continuing restriction on his
liberty. In Castillo v. Cruz,,86, this Court held as follows:
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.
(Emphasis supplied.)
Further, it appears that Lozada had already filed before the Department of
Justice (DOJ) a Complaint charging respondents with kidnapping and
attempted murder, docketed as I.S. No. 2008-467 87, In this regard, this
Courts ruling in Rubrico v. Arroyo,88, is worth considering:
First, a criminal complaint for kidnapping and, alternatively, for arbitrary
detention rooted in the same acts and incidents leading to the filing of the
subject amparo petition has been instituted with the OMB, docketed as OMB-
P-C-O7-0602-E. The usual initial steps to determine the existence of a prima
69
facie case against the five (5) impleaded individuals suspected to be actually
involved in the detention of Lourdes have been set in motion. It must be
pointed out, though, that the filing of the OMB complaint came before the
effectivity of the Amparo Rule on October 24, 2007.
Second, Sec. 22 of the Amparo Rule proscribes the filing of an amparo
petition should a criminal action have, in the meanwhile, been commenced.
The succeeding Sec. 23, on the other hand, provides that when the criminal
suit is filed subsequent to a petition for amparo, the petition shall be
consolidated with the criminal action where the Amparo Rule shall
nonetheless govern the disposition of the relief under the Rule. Under the
terms of said Sec. 22, the present petition ought to have been dismissed at
the outset. But as things stand, the outright dismissal of the petition by force of
that section is no longer technically feasible in light of the interplay of the
following factual mix: (1) the Court has, pursuant to Sec. 6 of the Rule, already
issued ex parte the writ of amparo; (2) the CA, after a summary hearing, has
dismissed the petition, but not on the basis of Sec. 22; and (3) the complaint
in OMB-P-C-O7-0602-E named as respondents only those believed to be the
actual abductors of Lourdes, while the instant petition impleaded, in addition,
those tasked to investigate the kidnapping and detention incidents and their
superiors at the top. Yet, the acts and/or omissions subject of the criminal
complaint and the amparo petition are so linked as to call for the consolidation
of both proceedings to obviate the mischief inherent in a multiplicity-of-suits
situation.
Given the above perspective and to fully apply the beneficial nature of the writ
of amparo as an inexpensive and effective tool to protect certain rights
violated or threatened to be violated, the Court hereby adjusts to a degree the
literal application of Secs. 22 and 23 of the Amparo Rule to fittingly address
the situation obtaining under the premises. Towards this end, two things are at
once indicated: (1) the consolidation of the probe and fact-finding aspects of
the instant petition with the investigation of the criminal complaint before the
OMB; and (2) the incorporation in the same criminal complaint of the
allegations in this petition bearing on the threats to the right to security. Withal,
the OMB should be furnished copies of the investigation reports to aid that
body in its own investigation and eventual resolution of OMB-P-C-O7-0602-E.
Then, too, the OMB shall be given easy access to all pertinent documents and
evidence, if any, adduced before the CA. Necessarily, Lourdes, as
complainant in OMB-P-C-O7-0602-E, should be allowed, if so minded, to
amend her basic criminal complaint if the consolidation of cases is to be fully
effective. (Emphasis supplied.)
Thus, if the Complaint filed before the DOJ had already progressed into a
criminal case, then the latter action can more adequately dispose of the
allegations made by petitioners. After all, one of the ultimate objectives of the
writ of amparo as a curative remedy is to facilitate the subsequent punishment
of perpetrators 89, On the other hand, if there is no actual criminal case
lodged before the courts, then the denial of the Petition is without prejudice to
the filing of the appropriate administrative, civil or criminal case, if applicable,
against those individuals whom Lozada deems to have unduly restrained his
liberty.
Finally, with respect to the interim reliefs sought by petitioners, this Court, in
Yano v. Sanchez,,90, declined to grant the prayer for the issuance of a TPO,
as well as Inspection and Production Orders, upon a finding that the
implicated public officials were not accountable for the disappearance subject
of that case. Analogously, it would be incongruous to grant herein petitioners
prayer for a TPO and Inspection and Production Orders and at the same time
rule that there no longer exists any imminent or continuing threat to Lozadas
right to life, liberty and security. Thus, there is no basis on which a prayer for
the issuance of these interim reliefs can be anchored.
WHEREFORE, the instant petition is DENIED for being moot and academic.
The Court of Appeals denial of the privilege of the writ of amparo is hereby
AFFIRMED.
70
SO ORDERED.
G.R. No. 183871 February 18, 2010
LOURDES D. RUBRICO, JEAN RUBRICO APRUEBO, and MARY JOY
RUBRICO CARBONEL, Petitioners,
vs.
GLORIA MACAPAGAL-ARROYO, GEN. HERMOGENES ESPERON, P/DIR.
GEN. AVELINO RAZON, MAJ. DARWIN SY a.k.a. DARWIN REYES, JIMMY
SANTANA, RUBEN ALFARO, CAPT. ANGELO CUARESMA, a certain
JONATHAN, P/SUPT. EDGAR B. ROQUERO, ARSENIO C. GOMEZ, and
OFFICE OF THE OMBUDSMAN, Respondents.
DECISION
VELASCO, JR., J.:
In this petition for review under Rule 45 of the Rules of Court in relation to
Section 191 of the Rule on the Writ of Amparo2 (Amparo Rule), Lourdes D.
Rubrico, Jean Rubrico Apruebo, and Mary Joy Rubrico Carbonel assail and
seek to set aside the Decision3 of the Court of Appeals (CA) dated July 31,
2008 in CA-G.R. SP No. 00003, a petition commenced under the Amparo
Rule.
The petition for the writ of amparo dated October 25, 2007 was originally filed
before this Court. After issuing the desired writ and directing the respondents
to file a verified written return, the Court referred the petition to the CA for
summary hearing and appropriate action. The petition and its attachments
contained, in substance, the following allegations:
1. On April 3, 2007, armed men belonging to the 301st Air Intelligence and
Security Squadron (AISS, for short) based in Fernando Air Base in Lipa City
abducted Lourdes D. Rubrico (Lourdes), then attending a Lenten pabasa in
Bagong Bayan, Dasmarias, Cavite, and brought to, and detained at, the air
base without charges. Following a week of relentless interrogation - conducted
alternately by hooded individuals - and what amounts to verbal abuse and
mental harassment, Lourdes, chair of the Ugnayan ng Maralita para sa Gawa
Adhikan, was released at Dasmarias, Cavite, her hometown, but only after
being made to sign a statement that she would be a military asset.
After Lourdes release, the harassment, coming in the form of being tailed on
at least two occasions at different places, i.e., Dasmarias, Cavite and
Baclaran in Pasay City, by motorcycle-riding men in bonnets, continued;
2. During the time Lourdes was missing, P/Sr. Insp. Arsenio Gomez (P/Insp.
Gomez), then sub-station commander of Bagong Bayan, Dasmarias, Cavite,
kept sending text messages to Lourdes daughter, Mary Joy R. Carbonel
(Mary Joy), bringing her to beaches and asking her questions about
Karapatan, an alliance of human rights organizations. He, however, failed to
make an investigation even after Lourdes disappearance had been made
known to him;
3. A week after Lourdes release, another daughter, Jean R. Apruebo (Jean),
was constrained to leave their house because of the presence of men
watching them;
4. Lourdes has filed with the Office of the Ombudsman a criminal complaint
for kidnapping and arbitrary detention and administrative complaint for gross
abuse of authority and grave misconduct against Capt. Angelo Cuaresma
(Cuaresma), Ruben Alfaro (Alfaro), Jimmy Santana (Santana) and a certain
Jonathan, c/o Headquarters 301st AISS, Fernando Air Base and Maj.
Sy/Reyes with address at No. 09 Amsterdam Ext., Merville Subd., Paraaque
71
City, but nothing has happened; and the threats and harassment incidents
have been reported to the Dasmarias municipal and Cavite provincial police
stations, but nothing eventful resulted from their respective investigations.
Two of the four witnesses to Lourdes abduction went into hiding after being
visited by government agents in civilian clothes; and
5. Karapatan conducted an investigation on the incidents. The investigation
would indicate that men belonging to the Armed Forces of the Philippines
(AFP), namely Capt. Cuaresma of the Philippine Air Force (PAF), Alfaro,
Santana, Jonathan and Maj. Darwin Sy/Reyes, led the abduction of Lourdes;
that unknown to the abductors, Lourdes was able to pilfer a "mission order"
which was addressed to CA Ruben Alfaro and signed by Capt. Cuaresma of
the PAF.
The petition prayed that a writ of amparo issue, ordering the individual
respondents to desist from performing any threatening act against the security
of the petitioners and for the Office of the Ombudsman (OMB) to immediately
file an information for kidnapping qualified with the aggravating circumstance
of gender of the offended party. It also prayed for damages and for
respondents to produce documents submitted to any of them on the case of
Lourdes.
Before the CA, respondents President Gloria Macapagal-Arroyo, Gen.
Hermogenes Esperon, then Armed Forces of the Philippines (AFP) Chief of
Staff, Police Director-General (P/Dir. Gen.) Avelino Razon, then Philippine
National Police (PNP) Chief, Police Superintendent (P/Supt.) Roquero of the
Cavite Police Provincial Office, Police Inspector (P/Insp.) Gomez, now retired,
and the OMB (answering respondents, collectively) filed, through the Office of
the Solicitor General (OSG), a joint return on the writ specifically denying the
material inculpatory averments against them. The OSG also denied the
allegations against the following impleaded persons, namely: Cuaresma,
Alfaro, Santana, Jonathan, and Sy/Reyes, for lack of knowledge or information
sufficient to form a belief as to the allegations truth. And by way of general
affirmative defenses, answering respondents interposed the following
defenses: (1) the President may not be sued during her incumbency; and (2)
the petition is incomplete, as it fails to indicate the matters required by Sec.
5(d) and (e) of the Amparo Rule.4
Attached to the return were the affidavits of the following, among other public
officials, containing their respective affirmative defenses and/or statements of
what they had undertaken or committed to undertake regarding the claimed
disappearance of Lourdes and the harassments made to bear on her and her
daughters:
1. Gen. Esperon attested that, pursuant to a directive of then Secretary of
National Defense (SND) Gilberto C. Teodoro, Jr., he ordered the Commanding
General of the PAF, with information to all concerned units, to conduct an
investigation to establish the circumstances behind the disappearance and the
reappearance of Lourdes insofar as the involvement of alleged personnel/unit
is concerned. The Provost Marshall General and the Office of the Judge
Advocate General (JAGO), AFP, also undertook a parallel action.
Gen. Esperon manifested his resolve to provide the CA with material results of
the investigation; to continue with the probe on the alleged abduction of
Lourdes and to bring those responsible, including military personnel, to the
bar of justice when warranted by the findings and the competent evidence that
may be gathered in the investigation process by those mandated to look into
the matter;5
2. P/Dir. Gen. Razon - stated that an investigation he immediately ordered
upon receiving a copy of the petition is on-going vis--vis Lourdes abduction,
and that a background verification with the PNP Personnel Accounting and
Information System disclosed that the names Santana, Alfaro, Cuaresma and
72
one Jonathan do not appear in the police personnel records, although the
PNP files carry the name of Darwin Reyes Y. Muga.
Per the initial investigation report of the Dasmarias municipal police station,
P/Dir. Gen. Razon disclosed, Lourdes was abducted by six armed men in the
afternoon of April 3, 2007 and dragged aboard a Toyota Revo with plate
number XRR 428, which plate was issued for a Mitsubishi van to AK Cottage
Industry with address at 9 Amsterdam St., Merville Subd., Paraaque City.
The person residing in the apartment on that given address is one
Darius/Erwin See @ Darius Reyes allegedly working, per the latters house
helper, in Camp Aguinaldo.
P/Dir. Gen. Razon, however, bemoaned the fact that Mrs. Rubrico never
contacted nor coordinated with the local police or other investigating units of
the PNP after her release, although she is in the best position to establish the
identity of her abductors and/or provide positive description through composite
sketching. Nonetheless, he manifested that the PNP is ready to assist and
protect the petitioners and the key witnesses from threats, harassments and
intimidation from whatever source and, at the same time, to assist the Court in
the implementation of its orders
3. P/Supt. Roquero stated conducting, upon receipt of Lourdes complaint,
an investigation and submitting the corresponding report to the PNP
Calabarzon, observing that neither Lourdes nor her relatives provided the
police with relevant information;
4. P/Insp. Gomez alleged that Lourdes, her kin and witnesses refused to
cooperate with the investigating Cavite PNP; and
5. Overall Deputy Ombudsman Orlando Casimiro - alleged that cases for
violation of Articles 267 and 124, or kidnapping and arbitrary detention,
respectively, have been filed with, and are under preliminary investigation by
the OMB against those believed to be involved in Lourdes kidnapping; that
upon receipt of the petition for a writ of amparo, proper coordination was made
with the Office of the Deputy Ombudsman for the Military and other Law
Enforcement Offices (MOLEO) where the subject criminal and administrative
complaints were filed.
Commenting on the return, petitioners pointed out that the return was no more
than a general denial of averments in the petition. They, thus, pleaded to be
allowed to present evidence ex parte against the President, Santana, Alfaro,
Capt. Cuaresma, Darwin Sy, and Jonathan. And with leave of court, they also
asked to serve notice of the petition through publication, owing to their failure
to secure the current address of the latter five and thus submit, as the CA
required, proof of service of the petition on them.
The hearing started on November 13, 2007.7 In that setting, petitioners
counsel prayed for the issuance of a temporary protection order (TPO) against
the answering respondents on the basis of the allegations in the petition. At
the hearing of November 20, 2007, the CA granted petitioners motion that the
petition and writ be served by the courts process server on Darwin Sy/Reyes,
Santana, Alfaro, Capt. Cuaresma, and Jonathan.
The legal skirmishes that followed over the propriety of excluding President
Arroyo from the petition, petitioners motions for service by publication, and
the issuance of a TPO are not of decisive pertinence in this recital. The
bottom line is that, by separate resolutions, the CA dropped the President as
respondent in the case; denied the motion for a TPO for the courts want of
authority to issue it in the tenor sought by petitioners; and effectively denied
the motion for notice by publication owing to petitioners failure to submit the
affidavit required under Sec. 17, Rule 14 of the Rules of Court.8
After due proceedings, the CA rendered, on July 31, 2008, its partial
judgment, subject of this review, disposing of the petition but only insofar as
73
the answering respondents were concerned. The fallo of the CA decision
reads as follows:
WHEREFORE, premises considered, partial judgment is hereby rendered
DISMISSING the instant petition with respect to respondent Gen.
Hermogenes Esperon, P/Dir. Gen. Avelino Razon, Supt. Edgar B. Roquero,
P/Sr. Insp. Arsenio C. Gomez (ret.) and the Office of the Ombudsman.
Nevertheless, in order that petitioners complaint will not end up as another
unsolved case, the heads of the Armed Forces of the Philippines and the
Philippine National Police are directed to ensure that the investigations
already commenced are diligently pursued to bring the perpetrators to justice.
The Chief of Staff of the Armed Forces of the Philippines and P/Dir. Gen.
Avelino Razon are directed to regularly update petitioners and this Court on
the status of their investigation.
SO ORDERED.
In this recourse, petitioners formulate the issue for resolution in the following
wise:
WHETHER OR NOT the [CA] committed reversible error in dismissing [their]
Petition and dropping President Gloria Macapagal Arroyo as party respondent.
Petitioners first take issue on the Presidents purported lack of immunity from
suit during her term of office. The 1987 Constitution, so they claim, has
removed such immunity heretofore enjoyed by the chief executive under the
1935 and 1973 Constitutions.
Petitioners are mistaken. The presidential immunity from suit remains
preserved under our system of government, albeit not expressly reserved in
the present constitution. Addressing a concern of his co-members in the 1986
Constitutional Commission on the absence of an express provision on the
matter, Fr. Joaquin Bernas, S.J. observed that it was already understood in
jurisprudence that the President may not be sued during his or her tenure.9
The Court subsequently made it abundantly clear in David v. Macapagal-
Arroyo, a case likewise resolved under the umbrella of the 1987 Constitution,
that indeed the President enjoys immunity during her incumbency, and why
this must be so:
Settled is the doctrine that the President, during his tenure of office or actual
incumbency, may not be sued in any civil or criminal case, and there is no
need to provide for it in the Constitution or law. It will degrade the dignity of the
high office of the President, the Head of State, if he can be dragged into court
litigations while serving as such. Furthermore, it is important that he be freed
from any form of harassment, hindrance or distraction to enable him to fully
attend to the performance of his official duties and functions. Unlike the
legislative and judicial branch, only one constitutes the executive branch and
anything which impairs his usefulness in the discharge of the many great and
important duties imposed upon him by the Constitution necessarily impairs the
operation of the Government.10 x x x
And lest it be overlooked, the petition is simply bereft of any allegation as to
what specific presidential act or omission violated or threatened to violate
petitioners protected rights.
This brings us to the correctness of the assailed dismissal of the petition with
respect to Gen. Esperon, P/Dir. Gen. Razon, P/Supt. Roquero, P/Insp.
Gomez, and the OMB.
None of the four individual respondents immediately referred to above has
been implicated as being connected to, let alone as being behind, the alleged
abduction and harassment of petitioner Lourdes. Their names were not even
mentioned in Lourdes Sinumpaang Salaysay11 of April 2007. The same goes
for the respective Sinumpaang Salaysay and/or Karagdagang Sinumpaang
Salaysay of Jean12 and Mary Joy.13
74
As explained by the CA, Gen. Esperon and P/Dir. Gen. Razon were included
in the case on the theory that they, as commanders, were responsible for the
unlawful acts allegedly committed by their subordinates against petitioners. To
the appellate court, "the privilege of the writ of amparo must be denied as
against Gen. Esperon and P/Dir. Gen. Razon for the simple reason that
petitioners have not presented evidence showing that those who allegedly
abducted and illegally detained Lourdes and later threatened her and her
family were, in fact, members of the military or the police force." The two
generals, the CAs holding broadly hinted, would have been accountable for
the abduction and threats if the actual malefactors were members of the AFP
or PNP.
As regards the three other answering respondents, they were impleaded
because they allegedly had not exerted the required extraordinary diligence in
investigating and satisfactorily resolving Lourdes disappearance or bringing to
justice the actual perpetrators of what amounted to a criminal act, albeit there
were allegations against P/Insp. Gomez of acts constituting threats against
Mary Joy.
While in a qualified sense tenable, the dismissal by the CA of the case as
against Gen. Esperon and P/Dir. Gen. Razon is incorrect if viewed against the
backdrop of the stated rationale underpinning the assailed decision vis--vis
the two generals, i.e., command responsibility. The Court assumes the latter
stance owing to the fact that command responsibility, as a concept defined,
developed, and applied under international law, has little, if at all, bearing in
amparo proceedings.
The evolution of the command responsibility doctrine finds its context in the
development of laws of war and armed combats. According to Fr. Bernas,
"command responsibility," in its simplest terms, means the "responsibility of
commanders for crimes committed by subordinate members of the armed
forces or other persons subject to their control in international wars or
domestic conflict."14 In this sense, command responsibility is properly a form
of criminal complicity. The Hague Conventions of 1907 adopted the doctrine of
command responsibility,15 foreshadowing the present-day precept of holding
a superior accountable for the atrocities committed by his subordinates should
he be remiss in his duty of control over them. As then formulated, command
responsibility is "an omission mode of individual criminal liability," whereby the
superior is made responsible for crimes committed by his subordinates for
failing to prevent or punish the perpetrators16 (as opposed to crimes he
ordered).
The doctrine has recently been codified in the Rome Statute17 of the
International Criminal Court (ICC) to which the Philippines is signatory. Sec.
28 of the Statute imposes individual responsibility on military commanders for
crimes committed by forces under their control. The country is, however, not
yet formally bound by the terms and provisions embodied in this treaty-statute,
since the Senate has yet to extend concurrence in its ratification.18
While there are several pending bills on command responsibility,19 there is
still no Philippine law that provides for criminal liability under that doctrine.20
It may plausibly be contended that command responsibility, as legal basis to
hold military/police commanders liable for extra-legal killings, enforced
disappearances, or threats, may be made applicable to this jurisdiction on the
theory that the command responsibility doctrine now constitutes a principle of
international law or customary international law in accordance with the
incorporation clause of the Constitution.21 Still, it would be inappropriate to
apply to these proceedings the doctrine of command responsibility, as the CA
seemed to have done, as a form of criminal complicity through omission, for
individual respondents criminal liability, if there be any, is beyond the reach of
amparo. In other words, the Court does not rule in such proceedings on any
issue of criminal culpability, even if incidentally a crime or an infraction of an
75
administrative rule may have been committed. As the Court stressed in
Secretary of National Defense v. Manalo (Manalo),22 the writ of amparo was
conceived to provide expeditious and effective procedural relief against
violations or threats of violation of the basic rights to life, liberty, and security
of persons; the corresponding amparo suit, however, "is not an action to
determine criminal guilt requiring proof beyond reasonable doubt x x x or
administrative liability requiring substantial evidence that will require full and
exhaustive proceedings."23 Of the same tenor, and by way of expounding on
the nature and role of amparo, is what the Court said in Razon v. Tagitis:
It does not determine guilt nor pinpoint criminal culpability for the
disappearance [threats thereof or extra-judicial killings]; it determines
responsibility, or at least accountability, for the enforced disappearance
[threats thereof or extra-judicial killings] for purposes of imposing the
appropriate remedies to address the disappearance [or extra-judicial killings].
xxxx
As the law now stands, extra-judicial killings and enforced disappearances in
this jurisdiction are not crimes penalized separately from the component
criminal acts undertaken to carry out these killings and enforced
disappearances and are now penalized under the Revised Penal Code and
special laws. The simple reason is that the Legislature has not spoken on the
matter; the determination of what acts are criminal x x x are matters of
substantive law that only the Legislature has the power to enact.24 x x x
If command responsibility were to be invoked and applied to these
proceedings, it should, at most, be only to determine the author who, at the
first instance, is accountable for, and has the duty to address, the
disappearance and harassments complained of, so as to enable the Court to
devise remedial measures that may be appropriate under the premises to
protect rights covered by the writ of amparo. As intimated earlier, however, the
determination should not be pursued to fix criminal liability on respondents
preparatory to criminal prosecution, or as a prelude to administrative
disciplinary proceedings under existing administrative issuances, if there be
any.
Petitioners, as the CA has declared, have not adduced substantial evidence
pointing to government involvement in the disappearance of Lourdes. To a
concrete point, petitioners have not shown that the actual perpetrators of the
abduction and the harassments that followed formally or informally formed
part of either the military or the police chain of command. A preliminary police
investigation report, however, would tend to show a link, however hazy,
between the license plate (XRR 428) of the vehicle allegedly used in the
abduction of Lourdes and the address of Darwin Reyes/Sy, who was alleged
to be working in Camp Aguinaldo.25 Then, too, there were affidavits and
testimonies on events that transpired which, if taken together, logically point to
military involvement in the alleged disappearance of Lourdes, such as, but not
limited to, her abduction in broad daylight, her being forcibly dragged to a
vehicle blindfolded and then being brought to a place where the sounds of
planes taking off and landing could be heard. Mention may also be made of
the fact that Lourdes was asked about her membership in the Communist
Party and of being released when she agreed to become an "asset."
Still and all, the identities and links to the AFP or the PNP of the alleged
abductors, namely Cuaresma, Alfaro, Santana, Jonathan, and Sy/Reyes, have
yet to be established.
Based on the separate sworn statements of Maj. Paul Ciano26 and Technical
Sergeant John N. Romano,27 officer-in-charge and a staff of the 301st AISS,
respectively, none of the alleged abductors of Lourdes belonged to the 301st
AISS based in San Fernando Air Base. Neither were they members of any
unit of the Philippine Air Force, per the certification28 of Col. Raul Dimatactac,
Air Force Adjutant. And as stated in the challenged CA decision, a verification
76
with the Personnel Accounting and Information System of the PNP yielded the
information that, except for a certain Darwin Reyes y Muga, the other alleged
abductors, i.e., Cuaresma, Alfaro, Santana and Jonathan, were not members
of the PNP. Petitioners, when given the opportunity to identify Police Officer 1
Darwin Reyes y Muga, made no effort to confirm if he was the same Maj.
Darwin Reyes a.k.a. Darwin Sy they were implicating in Lourdes abduction.
Petitioners, to be sure, have not successfully controverted answering
respondents documentary evidence, adduced to debunk the formers
allegations directly linking Lourdes abductors and tormentors to the military or
the police establishment. We note, in fact, that Lourdes, when queried on
cross-examination, expressed the belief that Sy/Reyes was an NBI agent.29
The Court is, of course, aware of what was referred to in Razon30 as the
"evidentiary difficulties" presented by the nature of, and encountered by
petitioners in, enforced disappearance cases. But it is precisely for this reason
that the Court should take care too that no wrong message is sent, lest one
conclude that any kind or degree of evidence, even the outlandish, would
suffice to secure amparo remedies and protection.
Sec. 17, as complemented by Sec. 18 of the Amparo Rule, expressly
prescribes the minimum evidentiary substantiation requirement and norm to
support a cause of action under the Rule, thus:
Sec. 17. Burden of Proof and Standard of Diligence Required.The parties
shall establish their claims by substantial evidence.
xxxx
Sec. 18. Judgment.x x x If the allegations in the petition are proven by
substantial evidence, the court shall grant the privilege of the writ and such
reliefs as may be proper and appropriate; otherwise, the privilege shall be
denied. (Emphasis added.)
Substantial evidence is more than a mere imputation of wrongdoing or
violation that would warrant a finding of liability against the person charged;31
it is more than a scintilla of evidence. It means such amount of relevant
evidence which a reasonable mind might accept as adequate to support a
conclusion, even if other equally reasonable minds might opine otherwise.32
Per the CAs evaluation of their evidence, consisting of the testimonies and
affidavits of the three Rubrico women and five other individuals, petitioners
have not satisfactorily hurdled the evidentiary bar required of and assigned to
them under the Amparo Rule. In a very real sense, the burden of evidence
never even shifted to answering respondents. The Court finds no compelling
reason to disturb the appellate courts determination of the answering
respondents role in the alleged enforced disappearance of petitioner Lourdes
and the threats to her familys security.
Notwithstanding the foregoing findings, the Court notes that both Gen.
Esperon and P/Dir. Gen. Razon, per their separate affidavits, lost no time,
upon their receipt of the order to make a return on the writ, in issuing
directives to the concerned units in their respective commands for a thorough
probe of the case and in providing the investigators the necessary support. As
of this date, however, the investigations have yet to be concluded with some
definite findings and recommendation.
As regards P/Supt. Romero and P/Insp. Gomez, the Court is more than
satisfied that they have no direct or indirect hand in the alleged enforced
disappearance of Lourdes and the threats against her daughters. As police
officers, though, theirs was the duty to thoroughly investigate the abduction of
Lourdes, a duty that would include looking into the cause, manner, and like
details of the disappearance; identifying witnesses and obtaining statements
from them; and following evidentiary leads, such as the Toyota Revo vehicle
with plate number XRR 428, and securing and preserving evidence related to
the abduction and the threats that may aid in the prosecution of the person/s
responsible. As we said in Manalo,33 the right to security, as a guarantee of
77
protection by the government, is breached by the superficial and one-sided
hence, ineffectiveinvestigation by the military or the police of reported cases
under their jurisdiction. As found by the CA, the local police stations
concerned, including P/Supt. Roquero and P/Insp. Gomez, did conduct a
preliminary fact-finding on petitioners complaint. They could not, however,
make any headway, owing to what was perceived to be the refusal of Lourdes,
her family, and her witnesses to cooperate. Petitioners counsel, Atty. Rex
J.M.A. Fernandez, provided a plausible explanation for his clients and their
witnesses attitude, "[They] do not trust the government agencies to protect
them."34 The difficulty arising from a situation where the party whose
complicity in extra-judicial killing or enforced disappearance, as the case may
be, is alleged to be the same party who investigates it is understandable,
though.
The seeming reluctance on the part of the Rubricos or their witnesses to
cooperate ought not to pose a hindrance to the police in pursuing, on its own
initiative, the investigation in question to its natural end. To repeat what the
Court said in Manalo, the right to security of persons is a guarantee of the
protection of ones right by the government. And this protection includes
conducting effective investigations of extra-legal killings, enforced
disappearances, or threats of the same kind. The nature and importance of an
investigation are captured in the Velasquez Rodriguez case,35 in which the
Inter-American Court of Human Rights pronounced:
[The duty to investigate] must be undertaken in a serious manner and not as a
mere formality preordained to be ineffective. An investigation must have an
objective and be assumed by the State as its own legal duty, not a step taken
by private interests that depends upon the initiative of the victim or his family
or upon offer of proof, without an effective search for the truth by the
government. (Emphasis added.)
This brings us to Mary Joys charge of having been harassed by respondent
P/Insp. Gomez. With the view we take of this incident, there is nothing
concrete to support the charge, save for Mary Joys bare allegations of
harassment. We cite with approval the following self-explanatory excerpt from
the appealed CA decision:
In fact, during her cross-examination, when asked what specific act or threat
P/Sr. Gomez (ret) committed against her or her mother and sister, Mary Joy
replied "None "36
Similarly, there appears to be no basis for petitioners allegations about the
OMB failing to act on their complaint against those who allegedly abducted
and illegally detained Lourdes. Contrary to petitioners contention, the OMB
has taken the necessary appropriate action on said complaint. As culled from
the affidavit37 of the Deputy Overall Ombudsman and the joint affidavits38 of
the designated investigators, all dated November 7, 2007, the OMB had, on
the basis of said complaint, commenced criminal39 and administrative40
proceedings, docketed as OMB-P-C-07-0602-E and OMB-P-A 07-567-E,
respectively, against Cuaresma, Alfaro, Santana, Jonathan, and Sy/Reyes.
The requisite orders for the submission of counter-affidavits and verified
position papers had been sent out.
The privilege of the writ of amparo, to reiterate, is a remedy available to
victims of extra-judicial killings and enforced disappearances or threats of
similar nature, regardless of whether the perpetrator of the unlawful act or
omission is a public official or employee or a private individual.
At this juncture, it bears to state that petitioners have not provided the CA with
the correct addresses of respondents Cuaresma, Alfaro, Santana, Jonathan,
and Sy/Reyes. The mailed envelopes containing the petition for a writ of
amparo individually addressed to each of them have all been returned
unopened. And petitioners motion interposed before the appellate court for
78
notice or service via publication has not been accompanied by supporting
affidavits as required by the Rules of Court. Accordingly, the appealed CA
partial judgmentdisposing of the underlying petition for a writ of amparo
without (1) pronouncement as to the accountability, or lack of it, of the four
non-answering respondents or (2) outright dismissal of the same petition as to
themhews to the prescription of Sec. 20 of the Amparo Rule on archiving
and reviving cases.41 Parenthetically, petitioners have also not furnished this
Court with sufficient data as to where the afore-named respondents may be
served a copy of their petition for review.
Apart from the foregoing considerations, the petition did not allege ultimate
facts as would link the OMB in any manner to the violation or threat of
violation of the petitioners rights to life, liberty, or personal security.
The privilege of the writ of amparo is envisioned basically to protect and
guarantee the rights to life, liberty, and security of persons, free from fears and
threats that vitiate the quality of this life.42 It is an extraordinary writ
conceptualized and adopted in light of and in response to the prevalence of
extra-legal killings and enforced disappearances.43 Accordingly, the remedy
ought to be resorted to and granted judiciously, lest the ideal sought by the
Amparo Rule be diluted and undermined by the indiscriminate filing of amparo
petitions for purposes less than the desire to secure amparo reliefs and
protection and/or on the basis of unsubstantiated allegations.
In their petition for a writ of amparo, petitioners asked, as their main prayer,
that the Court order the impleaded respondents "to immediately desist from
doing any acts that would threaten or seem to threaten the security of the
Petitioners and to desist from approaching Petitioners, x x x their residences
and offices where they are working under pain of contempt of [this] Court."
Petitioners, however, failed to adduce the threshold substantive evidence to
establish the predicate facts to support their cause of action, i.e., the adverted
harassments and threats to their life, liberty, or security, against responding
respondents, as responsible for the disappearance and harassments
complained of. This is not to say, however, that petitioners allegation on the
fact of the abduction incident or harassment is necessarily contrived. The
reality on the ground, however, is that the military or police connection has not
been adequately proved either by identifying the malefactors as components
of the AFP or PNP; or in case identification is not possible, by showing that
they acted with the direct or indirect acquiescence of the government. For this
reason, the Court is unable to ascribe the authorship of and responsibility for
the alleged enforced disappearance of Lourdes and the harassment and
threats on her daughters to individual respondents. To this extent, the
dismissal of the case against them is correct and must, accordingly, be
sustained.
Prescinding from the above considerations, the Court distinctly notes that the
appealed decision veritably extended the privilege of the writ of amparo to
petitioners when it granted what to us are amparo reliefs. Consider: the
appellate court decreed, and rightly so, that the police and the military take
specific measures for the protection of petitioners right or threatened right to
liberty or security. The protection came in the form of directives specifically to
Gen. Esperon and P/Dir. Gen. Razon, requiring each of them (1) to ensure
that the investigations already commenced by the AFP and PNP units,
respectively, under them on the complaints of Lourdes and her daughters are
being pursued with urgency to bring to justice the perpetrators of the acts
complained of; and (2) to submit to the CA, copy furnished the petitioners, a
regular report on the progress and status of the investigations. The directives
obviously go to Gen. Esperon in his capacity as head of the AFP and, in a
sense, chief guarantor of order and security in the country. On the other hand,
P/Dir. Gen. Razon is called upon to perform a duty pertaining to the PNP, a
crime-preventing, investigatory, and arresting institution.
As the CA, however, formulated its directives, no definitive time frame was set
in its decision for the completion of the investigation and the reportorial
79
requirements. It also failed to consider Gen. Esperon and P/Dir. Gen. Razons
imminent compulsory retirement from the military and police services,
respectively. Accordingly, the CA directives, as hereinafter redefined and
amplified to fully enforce the amparo remedies, are hereby given to, and shall
be directly enforceable against, whoever sits as the commanding general of
the AFP and the PNP.
At this stage, two postulates and their implications need highlighting for a
proper disposition of this case.
First, a criminal complaint for kidnapping and, alternatively, for arbitrary
detention rooted in the same acts and incidents leading to the filing of the
subject amparo petition has been instituted with the OMB, docketed as OMB-
P-C-O7-0602-E. The usual initial steps to determine the existence of a prima
facie case against the five (5) impleaded individuals suspected to be actually
involved in the detention of Lourdes have been set in motion. It must be
pointed out, though, that the filing44 of the OMB complaint came before the
effectivity of the Amparo Rule on October 24, 2007.
Second, Sec. 2245 of the Amparo Rule proscribes the filing of an amparo
petition should a criminal action have, in the meanwhile, been commenced.
The succeeding Sec. 23,46 on the other hand, provides that when the criminal
suit is filed subsequent to a petition for amparo, the petition shall be
consolidated with the criminal action where the Amparo Rule shall
nonetheless govern the disposition of the relief under the Rule. Under the
terms of said Sec. 22, the present petition ought to have been dismissed at
the outset. But as things stand, the outright dismissal of the petition by force of
that section is no longer technically feasible in light of the interplay of the
following factual mix: (1) the Court has, pursuant to Sec. 647 of the Rule,
already issued ex parte the writ of amparo; (2) the CA, after a summary
hearing, has dismissed the petition, but not on the basis of Sec. 22; and (3)
the complaint in OMB-P-C-O7-0602-E named as respondents only those
believed to be the actual abductors of Lourdes, while the instant petition
impleaded, in addition, those tasked to investigate the kidnapping and
detention incidents and their superiors at the top. Yet, the acts and/or
omissions subject of the criminal complaint and the amparo petition are so
linked as to call for the consolidation of both proceedings to obviate the
mischief inherent in a multiplicity-of-suits situation.
Given the above perspective and to fully apply the beneficial nature of the writ
of amparo as an inexpensive and effective tool to protect certain rights
violated or threatened to be violated, the Court hereby adjusts to a degree the
literal application of Secs. 22 and 23 of the Amparo Rule to fittingly address
the situation obtaining under the premises. 48 Towards this end, two things
are at once indicated: (1) the consolidation of the probe and fact-finding
aspects of the instant petition with the investigation of the criminal complaint
before the OMB; and (2) the incorporation in the same criminal complaint of
the allegations in this petition bearing on the threats to the right to security.
Withal, the OMB should be furnished copies of the investigation reports to aid
that body in its own investigation and eventual resolution of OMB-P-C-O7-
0602-E. Then, too, the OMB shall be given easy access to all pertinent
documents and evidence, if any, adduced before the CA. Necessarily,
Lourdes, as complainant in OMB-P-C-O7-0602-E, should be allowed, if so
minded, to amend her basic criminal complaint if the consolidation of cases is
to be fully effective.
WHEREFORE, the Court PARTIALLY GRANTS this petition for review and
makes a decision:
(1) Affirming the dropping of President Gloria Macapagal-Arroyo from the
petition for a writ of amparo;
(2) Affirming the dismissal of the amparo case as against Gen. Hermogenes
Esperon, and P/Dir. Gen. Avelino Razon, insofar as it tended, under the
80
command responsibility principle, to attach accountability and responsibility to
them, as then AFP Chief of Staff and then PNP Chief, for the alleged enforced
disappearance of Lourdes and the ensuing harassments allegedly committed
against petitioners. The dismissal of the petition with respect to the OMB is
also affirmed for failure of the petition to allege ultimate facts as to make out a
case against that body for the enforced disappearance of Lourdes and the
threats and harassment that followed; and
(3) Directing the incumbent Chief of Staff, AFP, or his successor, and the
incumbent Director-General of the PNP, or his successor, to ensure that the
investigations already commenced by their respective units on the alleged
abduction of Lourdes Rubrico and the alleged harassments and threats she
and her daughters were made to endure are pursued with extraordinary
diligence as required by Sec. 1749 of the Amparo Rule. They shall order their
subordinate officials, in particular, to do the following:
(a) Determine based on records, past and present, the identities and locations
of respondents Maj. Darwin Sy, a.k.a. Darwin Reyes, Jimmy Santana, Ruben
Alfaro, Capt. Angelo Cuaresma, and one Jonathan; and submit certifications
of this determination to the OMB with copy furnished to petitioners, the CA,
and this Court;
(b) Pursue with extraordinary diligence the evidentiary leads relating to Maj.
Darwin Sy and the Toyota Revo vehicle with Plate No. XRR 428; and
(c) Prepare, with the assistance of petitioners and/or witnesses, cartographic
sketches of respondents Maj. Sy/Reyes, Jimmy Santana, Ruben Alfaro, Capt.
Angelo Cuaresma, and a certain Jonathan to aid in positively identifying and
locating them.
The investigations shall be completed not later than six (6) months from
receipt of this Decision; and within thirty (30) days after completion of the
investigations, the Chief of Staff of the AFP and the Director-General of the
PNP shall submit a full report of the results of the investigations to the Court,
the CA, the OMB, and petitioners.
This case is accordingly referred back to the CA for the purpose of monitoring
the investigations and the actions of the AFP and the PNP.
Subject to the foregoing modifications, the Court AFFIRMS the partial
judgment dated July 31, 2008 of the CA.
SO ORDERED.
G.R. No. 180906 October 7, 2008
THE SECRETARY OF NATIONAL DEFENSE, THE CHIEF OF STAFF,
ARMED FORCES OF THE PHILIPPINES, petitioners,
vs.
RAYMOND MANALO and REYNALDO MANALO, respondents.
DECISION
PUNO, C.J.:
While victims of enforced disappearances are separated from the rest of the
world behind secret walls, they are not separated from the constitutional
protection of their basic rights. The constitution is an overarching sky that
covers all in its protection. The case at bar involves the rights to life, liberty
and security in the first petition for a writ of Amparo filed before this Court.
This is an appeal via Petition for Review under Rule 45 of the Rules of Court
in relation to Section 191 of the Rule on the Writ of Amparo, seeking to
reverse and set aside on both questions of fact and law, the Decision
promulgated by the Court of Appeals in C.A. G.R. AMPARO No. 00001,
entitled "Raymond Manalo and Reynaldo Manalo, petitioners, versus The
81
Secretary of National Defense, the Chief of Staff, Armed Forces of the
Philippines, respondents."
This case was originally a Petition for Prohibition, Injunction, and Temporary
Restraining Order (TRO)2 filed before this Court by herein respondents
(therein petitioners) on August 23, 2007 to stop herein petitioners (therein
respondents) and/or their officers and agents from depriving them of their right
to liberty and other basic rights. Therein petitioners also sought ancillary
remedies, Protective Custody Orders, Appointment of Commissioner,
Inspection and Access Orders, and all other legal and equitable reliefs under
Article VIII, Section 5(5)3 of the 1987 Constitution and Rule 135, Section 6 of
the Rules of Court. In our Resolution dated August 24, 2007, we (1) ordered
the Secretary of the Department of National Defense and the Chief of Staff of
the AFP, their agents, representatives, or persons acting in their stead,
including but not limited to the Citizens Armed Forces Geographical Unit
(CAFGU) to submit their Comment; and (2) enjoined them from causing the
arrest of therein petitioners, or otherwise restricting, curtailing, abridging, or
depriving them of their right to life, liberty, and other basic rights as
guaranteed under Article III, Section 14 of the 1987 Constitution.5
While the August 23, 2007 Petition was pending, the Rule on the Writ of
Amparo took effect on October 24, 2007. Forthwith, therein petitioners filed a
Manifestation and Omnibus Motion to Treat Existing Petition as Amparo
Petition, to Admit Supporting Affidavits, and to Grant Interim and Final Amparo
Reliefs. They prayed that: (1) the petition be considered a Petition for the Writ
of Amparo under Sec. 266 of the Amparo Rule; (2) the Court issue the writ
commanding therein respondents to make a verified return within the period
provided by law and containing the specific matter required by law; (3) they be
granted the interim reliefs allowed by the Amparo Rule and all other reliefs
prayed for in the petition but not covered by the Amparo Rule; (4) the Court,
after hearing, render judgment as required in Sec. 187 of the Amparo Rule;
and (5) all other just and equitable reliefs.

On October 25, 2007, the Court resolved to treat the August 23, 2007 Petition
as a petition under the Amparo Rule and further resolved, viz:
WHEREFORE, let a WRIT OF AMPARO be issued to respondents requiring
them to file with the CA (Court of Appeals) a verified written return within five
(5) working days from service of the writ. We REMAND the petition to the CA
and designate the Division of Associate Justice Lucas P. Bersamin to conduct
the summary hearing on the petition on November 8, 2007 at 2:00 p.m. and
decide the petition in accordance with the Rule on the Writ of Amparo.9
On December 26, 2007, the Court of Appeals rendered a decision in favor of
therein petitioners (herein respondents), the dispositive portion of which
reads, viz:
ACCORDINGLY, the PRIVILEGE OF THE WRIT OF AMPARO is GRANTED.
The respondents SECRETARY OF NATIONAL DEFENSE and AFP CHIEF
OF STAFF are hereby REQUIRED:
1. To furnish to the petitioners and to this Court within five days from
notice of this decision all official and unofficial reports of the
investigation undertaken in connection with their case, except those
already on file herein;
2. To confirm in writing the present places of official assignment of M/Sgt
Hilario aka Rollie Castillo and Donald Caigas within five days from
notice of this decision.
3. To cause to be produced to this Court all medical reports, records and
charts, reports of any treatment given or recommended and
medicines prescribed, if any, to the petitioners, to include a list of
82
medical and (sic) personnel (military and civilian) who attended to
them from February 14, 2006 until August 12, 2007 within five days
from notice of this decision.
The compliance with this decision shall be made under the signature and oath
of respondent AFP Chief of Staff or his duly authorized deputy, the latter's
authority to be express and made apparent on the face of the sworn
compliance with this directive.
SO ORDERED.10
Hence, this appeal. In resolving this appeal, we first unfurl the facts as alleged
by herein respondents:
Respondent Raymond Manalo recounted that about one or two weeks before
February 14, 2006, several uniformed and armed soldiers and members of the
CAFGU summoned to a meeting all the residents of their barangay in San
Idelfonso, Bulacan. Respondents were not able to attend as they were not
informed of the gathering, but Raymond saw some of the soldiers when he
passed by the barangay hall.11
On February 14, 2006, Raymond was sleeping in their house in Buhol na
Mangga, San Ildefonso, Bulacan. At past noon, several armed soldiers
wearing white shirts, fatigue pants and army boots, entered their house and
roused him. They asked him if he was Bestre, but his mother, Ester Manalo,
replied that he was Raymond, not Bestre. The armed soldier slapped him on
both cheeks and nudged him in the stomach. He was then handcuffed,
brought to the rear of his house, and forced to the ground face down. He was
kicked on the hip, ordered to stand and face up to the light, then forcibly
brought near the road. He told his mother to follow him, but three soldiers
stopped her and told her to stay.12
Among the men who came to take him, Raymond recognized brothers
Michael de la Cruz, Madning de la Cruz, "Puti" de la Cruz, and "Pula" de la
Cruz, who all acted as lookout. They were all members of the CAFGU and
residing in Manuzon, San Ildefonso, Bulacan. He also recognized brothers
Randy Mendoza and Rudy Mendoza, also members of the CAFGU. While he
was being forcibly taken, he also saw outside of his house two barangay
councilors, Pablo Cunanan and Bernardo Lingasa, with some soldiers and
armed men.13
The men forced Raymond into a white L300 van. Once inside, he was
blindfolded. Before being blindfolded, he saw the faces of the soldiers who
took him. Later, in his 18 months of captivity, he learned their names. The one
who drove the van was Rizal Hilario alias Rollie Castillo, whom he estimated
was about 40 years of age or older. The leader of the team who entered his
house and abducted him was "Ganata." He was tall, thin, curly-haired and a
bit old. Another one of his abductors was "George" who was tall, thin, white-
skinned and about 30 years old.14
The van drove off, then came to a stop. A person was brought inside the van
and made to sit beside Raymond. Both of them were beaten up. On the road,
he recognized the voice of the person beside him as his brother Reynaldo's.
The van stopped several times until they finally arrived at a house. Raymond
and Reynaldo were each brought to a different room. With the doors of their
rooms left open, Raymond saw several soldiers continuously hitting his
brother Reynaldo on the head and other parts of his body with the butt of their
guns for about 15 minutes. After which, Reynaldo was brought to his
(Raymond's) room and it was his (Raymond's) turn to be beaten up in the
other room. The soldiers asked him if he was a member of the New People's
Army. Each time he said he was not, he was hit with the butt of their guns. He
was questioned where his comrades were, how many soldiers he had killed,
and how many NPA members he had helped. Each time he answered none,
they hit him.15
83
In the next days, Raymond's interrogators appeared to be high officials as the
soldiers who beat him up would salute them, call them "sir," and treat them
with respect. He was in blindfolds when interrogated by the high officials, but
he saw their faces when they arrived and before the blindfold was put on. He
noticed that the uniform of the high officials was different from those of the
other soldiers. One of those officials was tall and thin, wore white pants, tie,
and leather shoes, instead of combat boots. He spoke in Tagalog and knew
much about his parents and family, and a habeas corpus case filed in
connection with the respondents' abduction.16 While these officials
interrogated him, Raymond was not manhandled. But once they had left, the
soldier guards beat him up. When the guards got drunk, they also
manhandled respondents. During this time, Raymond was fed only at night,
usually with left-over and rotten food.17
On the third week of respondents' detention, two men arrived while Raymond
was sleeping and beat him up. They doused him with urine and hot water, hit
his stomach with a piece of wood, slapped his forehead twice with a .45 pistol,
punched him on the mouth, and burnt some parts of his body with a burning
wood. When he could no longer endure the torture and could hardly breathe,
they stopped. They then subjected Reynaldo to the same ordeal in another
room. Before their torturers left, they warned Raymond that they would come
back the next day and kill him.18
The following night, Raymond attempted to escape. He waited for the guards
to get drunk, then made noise with the chains put on him to see if they were
still awake. When none of them came to check on him, he managed to free his
hand from the chains and jumped through the window. He passed through a
helipad and firing range and stopped near a fishpond where he used stones to
break his chains. After walking through a forested area, he came near a river
and an Iglesia ni Kristo church. He talked to some women who were doing the
laundry, asked where he was and the road to Gapan. He was told that he was
in Fort Magsaysay.19 He reached the highway, but some soldiers spotted him,
forcing him to run away. The soldiers chased him and caught up with him.
They brought him to another place near the entrance of what he saw was Fort
Magsaysay. He was boxed repeatedly, kicked, and hit with chains until his
back bled. They poured gasoline on him. Then a so-called "Mam" or "Madam"
suddenly called, saying that she wanted to see Raymond before he was killed.
The soldiers ceased the torture and he was returned inside Fort Magsaysay
where Reynaldo was detained.20
For some weeks, the respondents had a respite from all the torture. Their
wounds were treated. When the wounds were almost healed, the torture
resumed, particularly when respondents' guards got drunk.21
Raymond recalled that sometime in April until May 2006, he was detained in a
room enclosed by steel bars. He stayed all the time in that small room
measuring 1 x 2 meters, and did everything there, including urinating,
removing his bowels, bathing, eating and sleeping. He counted that eighteen
people22 had been detained in that bartolina, including his brother Reynaldo
and himself.23
For about three and a half months, the respondents were detained in Fort
Magsaysay. They were kept in a small house with two rooms and a kitchen.
One room was made into the bartolina. The house was near the firing range,
helipad and mango trees. At dawn, soldiers marched by their house. They
were also sometimes detained in what he only knew as the "DTU."24
At the DTU, a male doctor came to examine respondents. He checked their
body and eyes, took their urine samples and marked them. When asked how
they were feeling, they replied that they had a hard time urinating, their
stomachs were aching, and they felt other pains in their body. The next day,
two ladies in white arrived. They also examined respondents and gave them
medicines, including orasol, amoxicillin and mefenamic acid. They brought
with them the results of respondents' urine test and advised them to drink
84
plenty of water and take their medicine. The two ladies returned a few more
times. Thereafter, medicines were sent through the "master" of the DTU,
"Master" Del Rosario alias Carinyoso at Puti. Respondents were kept in the
DTU for about two weeks. While there, he met a soldier named Efren who said
that Gen. Palparan ordered him to monitor and take care of them.25
One day, Rizal Hilario fetched respondents in a Revo vehicle. They, along with
Efren and several other armed men wearing fatigue suits, went to a
detachment in Pinaud, San Ildefonso, Bulacan. Respondents were detained
for one or two weeks in a big two-storey house. Hilario and Efren stayed with
them. While there, Raymond was beaten up by Hilario's men.26
From Pinaud, Hilario and Efren brought respondents to Sapang, San Miguel,
Bulacan on board the Revo. They were detained in a big unfinished house
inside the compound of "Kapitan" for about three months. When they arrived
in Sapang, Gen. Palparan talked to them. They were brought out of the house
to a basketball court in the center of the compound and made to sit. Gen.
Palparan was already waiting, seated. He was about two arms' length away
from respondents. He began by asking if respondents felt well already, to
which Raymond replied in the affirmative. He asked Raymond if he knew him.
Raymond lied that he did not. He then asked Raymond if he would be scared
if he were made to face Gen. Palparan. Raymond responded that he would
not be because he did not believe that Gen. Palparan was an evil man.27
Raymond narrated his conversation with Gen. Palparan in his affidavit, viz:
Tinanong ako ni Gen. Palparan, "Ngayon na kaharap mo na ako, di ka ba
natatakot sa akin?"
Sumagot akong, "Siyempre po, natatakot din..."
Sabi ni Gen. Palparan: "Sige, bibigyan ko kayo ng isang pagkakataon na
mabuhay, basta't sundin n'yo ang lahat ng sasabihin ko... sabihin mo sa
magulang mo - huwag pumunta sa mga rali, sa hearing, sa Karapatan at sa
Human Right dahil niloloko lang kayo. Sabihin sa magulang at lahat sa bahay
na huwag paloko doon. Tulungan kami na kausapin si Bestre na sumuko na
sa gobyerno."28
Respondents agreed to do as Gen. Palparan told them as they felt they could
not do otherwise. At about 3:00 in the morning, Hilario, Efren and the former's
men - the same group that abducted them - brought them to their parents'
house. Raymond was shown to his parents while Reynaldo stayed in the Revo
because he still could not walk. In the presence of Hilario and other soldiers,
Raymond relayed to his parents what Gen. Palparan told him. As they were
afraid, Raymond's parents acceded. Hilario threatened Raymond's parents
that if they continued to join human rights rallies, they would never see their
children again. The respondents were then brought back to Sapang.29
When respondents arrived back in Sapang, Gen. Palparan was about to
leave. He was talking with the four "masters" who were there: Arman, Ganata,
Hilario and Cabalse.30 When Gen. Palparan saw Raymond, he called for him.
He was in a big white vehicle. Raymond stood outside the vehicle as Gen.
Palparan told him to gain back his strength and be healthy and to take the
medicine he left for him and Reynaldo. He said the medicine was expensive at
Php35.00 each, and would make them strong. He also said that they should
prove that they are on the side of the military and warned that they would not
be given another chance.31 During his testimony, Raymond identified Gen.
Palparan by his picture.32
One of the soldiers named Arman made Raymond take the medicine left by
Gen. Palparan. The medicine, named "Alive," was green and yellow. Raymond
and Reynaldo were each given a box of this medicine and instructed to take
one capsule a day. Arman checked if they were getting their dose of the
85
medicine. The "Alive" made them sleep each time they took it, and they felt
heavy upon waking up.33
After a few days, Hilario arrived again. He took Reynaldo and left Raymond at
Sapang. Arman instructed Raymond that while in Sapang, he should introduce
himself as "Oscar," a military trainee from Sariaya, Quezon, assigned in
Bulacan. While there, he saw again Ganata, one of the men who abducted
him from his house, and got acquainted with other military men and
civilians.34
After about three months in Sapang, Raymond was brought to Camp Tecson
under the 24th Infantry Battalion. He was fetched by three unidentified men in
a big white vehicle. Efren went with them. Raymond was then blindfolded.
After a 30-minute ride, his blindfold was removed. Chains were put on him and
he was kept in the barracks.35
The next day, Raymond's chains were removed and he was ordered to clean
outside the barracks. It was then he learned that he was in a detachment of
the Rangers. There were many soldiers, hundreds of them were training. He
was also ordered to clean inside the barracks. In one of the rooms therein, he
met Sherlyn Cadapan from Laguna. She told him that she was a student of
the University of the Philippines and was abducted in Hagonoy, Bulacan. She
confided that she had been subjected to severe torture and raped. She was
crying and longing to go home and be with her parents. During the day, her
chains were removed and she was made to do the laundry.36
After a week, Reynaldo was also brought to Camp Tecson. Two days from his
arrival, two other captives, Karen Empeo and Manuel Merino, arrived. Karen
and Manuel were put in the room with "Allan" whose name they later came to
know as Donald Caigas, called "master" or "commander" by his men in the
24th Infantry Battalion. Raymond and Reynaldo were put in the adjoining
room. At times, Raymond and Reynaldo were threatened, and Reynaldo was
beaten up. In the daytime, their chains were removed, but were put back on at
night. They were threatened that if they escaped, their families would all be
killed.37
On or about October 6, 2006, Hilario arrived in Camp Tecson. He told the
detainees that they should be thankful they were still alive and should continue
along their "renewed life." Before the hearing of November 6 or 8, 2006,
respondents were brought to their parents to instruct them not to attend the
hearing. However, their parents had already left for Manila. Respondents were
brought back to Camp Tecson. They stayed in that camp from September
2006 to November 2006, and Raymond was instructed to continue using the
name "Oscar" and holding himself out as a military trainee. He got acquainted
with soldiers of the 24th Infantry Battalion whose names and descriptions he
stated in his affidavit.38
On November 22, 2006, respondents, along with Sherlyn, Karen, and Manuel,
were transferred to a camp of the 24th Infantry Battalion in Limay, Bataan.
There were many huts in the camp. They stayed in that camp until May 8,
2007. Some soldiers of the battalion stayed with them. While there, battalion
soldiers whom Raymond knew as "Mar" and "Billy" beat him up and hit him in
the stomach with their guns. Sherlyn and Karen also suffered enormous
torture in the camp. They were all made to clean, cook, and help in raising
livestock.39
Raymond recalled that when "Operation Lubog" was launched, Caigas and
some other soldiers brought him and Manuel with them to take and kill all
sympathizers of the NPA. They were brought to Barangay Bayan-bayanan,
Bataan where he witnessed the killing of an old man doing kaingin. The
soldiers said he was killed because he had a son who was a member of the
NPA and he coddled NPA members in his house.40 Another time, in another
"Operation Lubog," Raymond was brought to Barangay Orion in a house
where NPA men stayed. When they arrived, only the old man of the house
86
who was sick was there. They spared him and killed only his son right before
Raymond's eyes.41
From Limay, Raymond, Reynaldo, Sherlyn, Karen, and Manuel were
transferred to Zambales, in a safehouse near the sea. Caigas and some of his
men stayed with them. A retired army soldier was in charge of the house. Like
in Limay, the five detainees were made to do errands and chores. They stayed
in Zambales from May 8 or 9, 2007 until June 2007.42
In June 2007, Caigas brought the five back to the camp in Limay. Raymond,
Reynaldo, and Manuel were tasked to bring food to detainees brought to the
camp. Raymond narrated what he witnessed and experienced in the camp,
viz:
Isang gabi, sinabihan kami ni Donald (Caigas) na matulog na kami. Nakita ko
si Donald na inaayos ang kanyang baril, at nilagyan ng silenser. Sabi ni
Donald na kung mayroon man kaming makita o marinig, walang nangyari.
Kinaumagahan, nakita naming ang bangkay ng isa sa mga bihag na dinala sa
kampo. Mayroong binuhos sa kanyang katawan at ito'y sinunog. Masansang
ang amoy.
Makaraan ang isang lingo, dalawang bangkay and ibinaba ng mga
unipormadong sundalo mula sa 6 x 6 na trak at dinala sa loob ng kampo. May
naiwang mga bakas ng dugo habang hinihila nila ang mga bangkay. Naamoy
ko iyon nang nililinis ang bakas.
Makalipas ang isa o dalawang lingo, may dinukot sila na dalawang Ita. Itinali
sila sa labas ng kubo, piniringan, ikinadena at labis na binugbog. Nakita kong
nakatakas ang isa sa kanila at binaril siya ng sundalo ngunit hindi siya
tinamaan. Iyong gabi nakita kong pinatay nila iyong isang Ita malapit sa Post
3; sinilaban ang bangkay at ibinaon ito.
Pagkalipas ng halos 1 buwan, 2 pang bangkay ang dinala sa kampo. Ibinaba
ang mga bangkay mula sa pick up trak, dinala ang mga bangkay sa labas ng
bakod. Kinaumagahan nakita kong mayroong sinilaban, at
napakamasangsang ang amoy.
May nakilala rin akong 1 retiradong koronel at 1 kasama niya. Pinakain ko sila.
Sabi nila sa akin na dinukot sila sa Bataan. Iyong gabi, inilabas sila at hindi ko
na sila nakita.
xxx xxx xxx
Ikinadena kami ng 3 araw. Sa ikatlong araw, nilabas ni Lat si Manuel dahil
kakausapin daw siya ni Gen. Palparan. Nakapiring si Manuel, wala siyang
suot pang-itaas, pinosasan. Nilakasan ng mga sundalo ang tunog na galing
sa istiryo ng sasakyan. Di nagtagal, narinig ko ang hiyaw o ungol ni Manuel.
Sumilip ako sa isang haligi ng kamalig at nakita kong sinisilaban si Manuel.
Kinaumagahan, naka-kadena pa kami. Tinanggal ang mga kadena mga 3 o 4
na araw pagkalipas. Sinabi sa amin na kaya kami nakakadena ay dahil
pinagdedesisyunan pa ng mga sundalo kung papatayin kami o hindi.
Tinanggal ang aming kadena. Kinausap kami ni Donald. Tinanong kami kung
ano ang sabi ni Manuel sa amin. Sabi ni Donald huwag na raw naming
hanapin ang dalawang babae at si Manuel, dahil magkakasama na yung tatlo.
Sabi pa ni Donald na kami ni Reynaldo ay magbagong buhay at ituloy namin
ni Reynaldo ang trabaho. Sa gabi, hindi na kami kinakadena.43
On or about June 13, 2007, Raymond and Reynaldo were brought to
Pangasinan, ostensibly to raise poultry for Donald (Caigas). Caigas told
respondents to also farm his land, in exchange for which, he would take care
of the food of their family. They were also told that they could farm a small plot
adjoining his land and sell their produce. They were no longer put in chains
87
and were instructed to use the names Rommel (for Raymond) and Rod (for
Reynaldo) and represent themselves as cousins from Rizal, Laguna.44
Respondents started to plan their escape. They could see the highway from
where they stayed. They helped farm adjoining lands for which they were paid
Php200.00 or Php400.00 and they saved their earnings. When they had saved
Php1,000.00 each, Raymond asked a neighbor how he could get a cellular
phone as he wanted to exchange text messages with a girl who lived nearby.
A phone was pawned to him, but he kept it first and did not use it. They
earned some more until they had saved Php1,400.00 between them.
There were four houses in the compound. Raymond and Reynaldo were
housed in one of them while their guards lived in the other three. Caigas
entrusted respondents to Nonong, the head of the guards. Respondents'
house did not have electricity. They used a lamp. There was no television, but
they had a radio. In the evening of August 13, 2007, Nonong and his cohorts
had a drinking session. At about 1:00 a.m., Raymond turned up the volume of
the radio. When none of the guards awoke and took notice, Raymond and
Reynaldo proceeded towards the highway, leaving behind their sleeping
guards and barking dogs. They boarded a bus bound for Manila and were
thus freed from captivity.45
Reynaldo also executed an affidavit affirming the contents of Raymond's
affidavit insofar as they related to matters they witnessed together. Reynaldo
added that when they were taken from their house on February 14, 2006, he
saw the faces of his abductors before he was blindfolded with his shirt. He
also named the soldiers he got acquainted with in the 18 months he was
detained. When Raymond attempted to escape from Fort Magsaysay,
Reynaldo was severely beaten up and told that they were indeed members of
the NPA because Raymond escaped. With a .45 caliber pistol, Reynaldo was
hit on the back and punched in the face until he could no longer bear the pain.
At one point during their detention, when Raymond and Reynaldo were in
Sapang, Reynaldo was separated from Raymond and brought to Pinaud by
Rizal Hilario. He was kept in the house of Kapitan, a friend of Hilario, in a
mountainous area. He was instructed to use the name "Rodel" and to
represent himself as a military trainee from Meycauayan, Bulacan.
Sometimes, Hilario brought along Reynaldo in his trips. One time, he was
brought to a market in San Jose, del Monte, Bulacan and made to wait in the
vehicle while Hilario was buying. He was also brought to Tondo, Manila where
Hilario delivered boxes of "Alive" in different houses. In these trips, Hilario
drove a black and red vehicle. Reynaldo was blindfolded while still in Bulacan,
but allowed to remove the blindfold once outside the province. In one of their
trips, they passed by Fort Magsaysay and Camp Tecson where Reynaldo saw
the sign board, "Welcome to Camp Tecson."46
Dr. Benito Molino, M.D., corroborated the accounts of respondents Raymond
and Reynaldo Manalo. Dr. Molino specialized in forensic medicine and was
connected with the Medical Action Group, an organization handling cases of
human rights violations, particularly cases where torture was involved. He was
requested by an NGO to conduct medical examinations on the respondents
after their escape. He first asked them about their ordeal, then proceeded with
the physical examination. His findings showed that the scars borne by
respondents were consistent with their account of physical injuries inflicted
upon them. The examination was conducted on August 15, 2007, two days
after respondents' escape, and the results thereof were reduced into writing.
Dr. Molino took photographs of the scars. He testified that he followed the
Istanbul Protocol in conducting the examination.47
Petitioners dispute respondents' account of their alleged abduction and
torture. In compliance with the October 25, 2007 Resolution of the Court,
they filed a Return of the Writ of Amparo admitting the abduction but
denying any involvement therein, viz:
88
13. Petitioners Raymond and Reynaldo Manalo were not at any time arrested,
forcibly abducted, detained, held incommunicado, disappeared or under the
custody by the military. This is a settled issue laid to rest in the habeas corpus
case filed in their behalf by petitioners' parents before the Court of Appeals in
C.A.-G.R. SP No. 94431 against M/Sgt. Rizal Hilario aka Rollie Castillo, as
head of the 24th Infantry Battalion; Maj. Gen. Jovito Palparan, as Commander
of the 7th Infantry Division in Luzon; Lt. Gen. Hermogenes Esperon, in his
capacity as the Commanding General of the Philippine Army, and members of
the Citizens Armed Forces Geographical Unit (CAFGU), namely: Michael dela
Cruz, Puti dela Cruz, Madning dela Cruz, Pula dela Cruz, Randy Mendoza
and Rudy Mendoza. The respondents therein submitted a return of the writ...
On July 4, 2006, the Court of Appeals dropped as party respondents Lt. Gen.
Hermogenes C. Esperon, Jr., then Commanding General of the Philippine
Army, and on September 19, 2006, Maj. (sic) Jovito S. Palparan, then
Commanding General, 7th Infantry Division, Philippine Army, stationed at Fort
Magsaysay, Palayan City, Nueva Ecija, upon a finding that no evidence was
introduced to establish their personal involvement in the taking of the Manalo
brothers. In a Decision dated June 27, 2007..., it exonerated M/Sgt. Rizal
Hilario aka Rollie Castillo for lack of evidence establishing his involvement in
any capacity in the disappearance of the Manalo brothers, although it held
that the remaining respondents were illegally detaining the Manalo brothers
and ordered them to release the latter.48
Attached to the Return of the Writ was the affidavit of therein respondent
(herein petitioner) Secretary of National Defense, which attested that he
assumed office only on August 8, 2007 and was thus unaware of the Manalo
brothers' alleged abduction. He also claimed that:
7. The Secretary of National Defense does not engage in actual military
directional operations, neither does he undertake command directions of the
AFP units in the field, nor in any way micromanage the AFP operations. The
principal responsibility of the Secretary of National Defense is focused in
providing strategic policy direction to the Department (bureaus and agencies)
including the Armed Forces of the Philippines;
8. In connection with the Writ of Amparo issued by the Honorable Supreme
Court in this case, I have directed the Chief of Staff, AFP to institute
immediate action in compliance with Section 9(d) of the Amparo Rule and to
submit report of such compliance... Likewise, in a Memorandum Directive also
dated October 31, 2007, I have issued a policy directive addressed to the
Chief of Staff, AFP that the AFP should adopt the following rules of action in
the event the Writ of Amparo is issued by a competent court against any
members of the AFP:
(1) to verify the identity of the aggrieved party;
(2) to recover and preserve evidence related to the death or
disappearance of the person identified in the petition which may aid in
the prosecution of the person or persons responsible;
(3) to identify witnesses and obtain statements from them concerning the
death or disappearance;
(4) to determine the cause, manner, location and time of death or
disappearance as well as any pattern or practice that may have
brought about the death or disappearance;
(5) to identify and apprehend the person or persons involved in the death
or disappearance; and
(6) to bring the suspected offenders before a competent court.49
Therein respondent AFP Chief of Staff also submitted his own affidavit,
attached to the Return of the Writ, attesting that he received the above
directive of therein respondent Secretary of National Defense and that acting
on this directive, he did the following:
3.1. As currently designated Chief of Staff, Armed Forces of the
Philippines (AFP), I have caused to be issued directive to the units of
the AFP for the purpose of establishing the circumstances of the
89
alleged disappearance and the recent reappearance of the
petitioners.
3.2. I have caused the immediate investigation and submission of the
result thereof to Higher headquarters and/or direct the immediate
conduct of the investigation on the matter by the concerned unit/s,
dispatching Radio Message on November 05, 2007, addressed to the
Commanding General, Philippine Army (Info: COMNOLCOM, CG,
71D PA and CO 24 IB PA). A Copy of the Radio Message is attached
as ANNEX "3" of this Affidavit.
3.3. We undertake to provide result of the investigations conducted or to
be conducted by the concerned unit relative to the circumstances of
the alleged disappearance of the persons in whose favor the Writ of
Amparo has been sought for as soon as the same has been
furnished Higher headquarters.
3.4. A parallel investigation has been directed to the same units relative to
another Petition for the Writ of Amparo (G.R. No. 179994) filed at the
instance of relatives of a certain Cadapan and Empeo pending
before the Supreme Court.
3.5. On the part of the Armed Forces, this respondent will exert earnest
efforts to establish the surrounding circumstances of the
disappearances of the petitioners and to bring those responsible,
including any military personnel if shown to have participated or had
complicity in the commission of the complained acts, to the bar of
justice, when warranted by the findings and the competent evidence
that may be gathered in the process.50
Also attached to the Return of the Writ was the affidavit of Lt. Col. Felipe
Anontado, INF (GSC) PA, earlier filed in G.R. No. 179994, another Amparo
case in this Court, involving Cadapan, Empeo and Merino, which averred
among others, viz:
10) Upon reading the allegations in the Petition implicating the 24th Infantry
Batallion detachment as detention area, I immediately went to the 24th IB
detachment in Limay, Bataan and found no untoward incidents in the area nor
any detainees by the name of Sherlyn Cadapan, Karen Empeo and Manuel
Merino being held captive;
11) There was neither any reports of any death of Manuel Merino in the 24th
IB in Limay, Bataan;
12) After going to the 24th IB in Limay, Bataan, we made further inquiries with
the Philippine National Police, Limay, Bataan regarding the alleged detentions
or deaths and were informed that none was reported to their good office;
13) I also directed Company Commander 1st Lt. Romeo Publico to inquire into
the alleged beachhouse in Iba, Zambales also alleged to be a detention place
where Sherlyn Cadapan, Karen Empeo and Manuel Merino were detained.
As per the inquiry, however, no such beachhouse was used as a detention
place found to have been used by armed men to detain Cadapan, Empeo
and Merino.51
It was explained in the Return of the Writ that for lack of sufficient time, the
affidavits of Maj. Gen Jovito S. Palparan (Ret.), M/Sgt. Rizal Hilario aka Rollie
Castillo, and other persons implicated by therein petitioners could not be
secured in time for the submission of the Return and would be subsequently
submitted.52
Herein petitioners presented a lone witness in the summary hearings, Lt. Col.
Ruben U. Jimenez, Provost Marshall, 7th Infantry Division, Philippine Army,
based in Fort Magsaysay, Palayan City, Nueva Ecija. The territorial jurisdiction
of this Division covers Nueva Ecija, Aurora, Bataan, Bulacan, Pampanga,
Tarlac and a portion of Pangasinan.53 The 24th Infantry Battalion is part of
the 7th Infantry Division.54
90
On May 26, 2006, Lt. Col. Jimenez was directed by the Commanding General
of the 7th Infantry Division, Maj. Gen. Jovito Palaran,55 through his Assistant
Chief of Staff,56 to investigate the alleged abduction of the respondents by
CAFGU auxiliaries under his unit, namely: CAA Michael de la Cruz; CAA
Roman de la Cruz, aka Puti; CAA Maximo de la Cruz, aka Pula; CAA Randy
Mendoza; ex-CAA Marcelo de la Cruz aka Madning; and a civilian named
Rudy Mendoza. He was directed to determine: (1) the veracity of the
abduction of Raymond and Reynaldo Manalo by the alleged elements of the
CAFGU auxiliaries; and (2) the administrative liability of said auxiliaries, if
any.57 Jimenez testified that this particular investigation was initiated not by a
complaint as was the usual procedure, but because the Commanding General
saw news about the abduction of the Manalo brothers on the television, and
he was concerned about what was happening within his territorial
jurisdiction.58
Jimenez summoned all six implicated persons for the purpose of having them
execute sworn statements and conducting an investigation on May 29,
2006.59 The investigation started at 8:00 in the morning and finished at 10:00
in the evening.60 The investigating officer, Technical Sgt. Eduardo Lingad,
took the individual sworn statements of all six persons on that day. There were
no other sworn statements taken, not even of the Manalo family, nor were
there other witnesses summoned and investigated61 as according to
Jimenez, the directive to him was only to investigate the six persons.62
Jimenez was beside Lingad when the latter took the statements.63 The six
persons were not known to Jimenez as it was in fact his first time to meet
them.64 During the entire time that he was beside Lingad, a subordinate of his
in the Office of the Provost Marshall, Jimenez did not propound a single
question to the six persons.65
Jimenez testified that all six statements were taken on May 29, 2006, but
Marcelo Mendoza and Rudy Mendoza had to come back the next day to sign
their statements as the printing of their statements was interrupted by a power
failure. Jimenez testified that the two signed on May 30, 2006, but the jurats of
their statements indicated that they were signed on May 29, 2006.66 When
the Sworn Statements were turned over to Jimenez, he personally wrote his
investigation report. He began writing it in the afternoon of May 30, 2006 and
finished it on June 1, 2006.67 He then gave his report to the Office of the
Chief of Personnel.68
As petitioners largely rely on Jimenez's Investigation Report dated June 1,
2006 for their evidence, the report is herein substantially quoted:
III. BACKGROUND OF THE CASE
4. This pertains to the abduction of RAYMOND MANALO and REYNALDO
MANALO who were forcibly taken from their respective homes in Brgy. Buhol
na Mangga, San Ildefonso, Bulacan on 14 February 2006 by unidentified
armed men and thereafter were forcibly disappeared. After the said incident,
relatives of the victims filed a case for Abduction in the civil court against the
herein suspects: Michael dela Cruz, Madning dela Cruz, Puti Dela Cruz, Pula
Dela Cruz, Randy Mendoza and Rudy Mendoza as alleged members of the
Citizen Armed Forces Geographical Unit (CAFGU).
a) Sworn statement of CAA Maximo F. dela Cruz, aka Pula dated 29 May
2006 in (Exhibit "B") states that he was at Sitio Mozon, Brgy. Bohol na
Mangga, San Ildefonso, Bulacan doing the concrete building of a church
located nearby his residence, together with some neighbor thereat. He claims
that on 15 February 2006, he was being informed by Brgy. Kagawad Pablo
Umayan about the abduction of the brothers Raymond and Reynaldo Manalo.
As to the allegation that he was one of the suspects, he claims that they only
implicated him because he was a CAFGU and that they claimed that those
91
who abducted the Manalo brothers are members of the Military and CAFGU.
Subject vehemently denied any participation or involvement on the abduction
of said victims.
b) Sworn statement of CAA Roman dela Cruz y Faustino Aka Puti dtd 29
May 2006 in (Exhibit "C") states that he is a resident of Sitio Muzon, Brgy.
Buhol na Mangga, San Ildefonso, Bulacan and a CAA member based at Biak
na Bato Detachment, San Miguel, Bulacan. He claims that Raymond and
Reynaldo Manalo being his neighbors are active members/sympathizers of
the CPP/NPA and he also knows their elder Rolando Manalo @ KA BESTRE
of being an NPA Leader operating in their province. That at the time of the
alleged abduction of the two (2) brothers and for accusing him to be one of the
suspects, he claims that on February 14, 2006, he was one of those working
at the concrete chapel being constructed nearby his residence. He claims
further that he just came only to know about the incident on other day (15 Feb
06) when he was being informed by Kagawad Pablo Kunanan. That subject
CAA vehemently denied any participation about the incident and claimed that
they only implicated him because he is a member of the CAFGU.
c) Sworn Statement of CAA Randy Mendoza y Lingas dated 29 May 2006 in
(Exhibit "O") states that he is a resident of Brgy. Buhol na Mangga, San
Ildefonso, Bulacan and a member of CAFGU based at Biak na Bato
Detachment. That being a neighbor, he was very much aware about the
background of the two (2) brothers Raymond and Reynaldo as active
supporters of the CPP NPA in their Brgy. and he also knew their elder brother
"KUMANDER BESTRE" TN: Rolando Manalo. Being one of the accused, he
claims that on 14 February 2006, he was at Brgy. Magmarate, San Miguel,
Bulacan in the house of his aunt and he learned only about the incident when
he arrived home in their place. He claims further that the only reason why they
implicated him was due to the fact that his mother has filed a criminal charge
against their brother Rolando Manalo @ KA BESTRE who is an NPA
Commander who killed his father and for that reason they implicated him in
support of their brother. Subject CAA vehemently denied any involvement on
the abduction of said Manalo brothers.
d) Sworn Statement of Rudy Mendoza y Lingasa dated May 29, 2006 in
(Exhibit "E") states that he is a resident of Brgy. Marungko, Angat, Bulacan.
He claims that Raymond and Reynaldo Manalo are familiar to him being his
barriomate when he was still unmarried and he knew them since childhood.
Being one of the accused, he claims that on 14 February 2006, he was at his
residence in Brgy. Marungko, Angat, Bulacan. He claims that he was being
informed only about the incident lately and he was not aware of any reason
why the two (2) brothers were being abducted by alleged members of the
military and CAFGU. The only reason he knows why they implicated him was
because there are those people who are angry with their family particularly
victims of summary execution (killing) done by their brother @ KA Bestre
Rolando Manalo who is an NPA leader. He claims further that it was their
brother @ KA BESTRE who killed his father and he was living witness to that
incident. Subject civilian vehemently denied any involvement on the abduction
of the Manalo brothers.
e) Sworn statement of Ex-CAA Marcelo dala Cruz dated 29 May 2006 in
(Exhibit "F") states that he is a resident of Sitio Muzon, Brgy. Buhol na
Mangga, San Ildefonso, Bulacan, a farmer and a former CAA based at Biak
na Bato, San Miguel, Bulacan. He claims that Raymond and Reynaldo Manalo
are familiar to him being their barrio mate. He claims further that they are
active supporters of CPP/NPA and that their brother Rolando Manalo @ KA
BESTRE is an NPA leader. Being one of the accused, he claims that on 14
February 2006, he was in his residence at Sitio Muzon, Brgy. Buhol na
Mangga, San Ildefonso, Bulacan. That he vehemently denied any participation
of the alleged abduction of the two (2) brothers and learned only about the
incident when rumors reached him by his barrio mates. He claims that his
implication is merely fabricated because of his relationship to Roman and
Maximo who are his brothers.
92
f) Sworn statement of Michael dela Cruz y Faustino dated 29 May 2006 in
(Exhibit "G") states that he is a resident of Sitio Muzon, Brgy. Buhol na
Mangga, San Ildefonso, Bulacan, the Chief of Brgy. Tanod and a CAFGU
member based at Biak na Bato Detachment, San Miguel, Bulacan. He claims
that he knew very well the brothers Raymond and Reynaldo Manalo in their
barangay for having been the Tanod Chief for twenty (20) years. He alleged
further that they are active supporters or sympathizers of the CPP/NPA and
whose elder brother Rolando Manalo @ KA BESTRE is an NPA leader
operating within the area. Being one of the accused, he claims that on 14 Feb
2006 he was helping in the construction of their concrete chapel in their place
and he learned only about the incident which is the abduction of Raymond
and Reynaldo Manalo when one of the Brgy. Kagawad in the person of Pablo
Cunanan informed him about the matter. He claims further that he is truly
innocent of the allegation against him as being one of the abductors and he
considers everything fabricated in order to destroy his name that remains loyal
to his service to the government as a CAA member.
IV. DISCUSSION
5. Based on the foregoing statements of respondents in this particular case,
the proof of linking them to the alleged abduction and disappearance of
Raymond and Reynaldo Manalo that transpired on 14 February 2006 at Sitio
Muzon, Brgy. Buhol na Mangga, San Ildefonso, Bulacan, is unsubstantiated.
Their alleged involvement theretofore to that incident is considered doubtful,
hence, no basis to indict them as charged in this investigation.
Though there are previous grudges between each families (sic) in the past to
quote: the killing of the father of Randy and Rudy Mendoza by @ KA BESTRE
TN: Rolando Manalo, this will not suffice to establish a fact that they were the
ones who did the abduction as a form of revenge. As it was also stated in the
testimony of other accused claiming that the Manalos are active
sympathizers/supporters of the CPP/NPA, this would not also mean, however,
that in the first place, they were in connivance with the abductors. Being their
neighbors and as members of CAFGU's, they ought to be vigilant in protecting
their village from any intervention by the leftist group, hence inside their
village, they were fully aware of the activities of Raymond and Reynaldo
Manalo in so far as their connection with the CPP/NPA is concerned.
V. CONCLUSION
6. Premises considered surrounding this case shows that the alleged charges
of abduction committed by the above named respondents has not been
established in this investigation. Hence, it lacks merit to indict them for any
administrative punishment and/or criminal liability. It is therefore concluded
that they are innocent of the charge.
VI. RECOMMENDATIONS
7. That CAAs Michael F. dela Cruz, Maximo F. Dela Cruz, Roman dela Cruz,
Randy Mendoza, and two (2) civilians Maximo F. Dela Cruz and Rudy L.
Mendoza be exonerated from the case.
8. Upon approval, this case can be dropped and closed.69
In this appeal under Rule 45, petitioners question the appellate court's
assessment of the foregoing evidence and assail the December 26, 2007
Decision on the following grounds, viz:
I.
THE COURT OF APPEALS SERIOUSLY AND GRIEVOUSLY ERRED IN
BELIEVING AND GIVING FULL FAITH AND CREDIT TO THE INCREDIBLE,
UNCORROBORATED, CONTRADICTED, AND OBVIOUSLY SCRIPTED,
93
REHEARSED AND SELF-SERVING AFFIDAVIT/TESTIMONY OF HEREIN
RESPONDENT RAYMOND MANALO.
II.
THE COURT OF APPEALS SERIOUSLY AND GRIEVOUSLY ERRED IN
REQUIRING RESPONDENTS (HEREIN PETITIONERS) TO: (A) FURNISH
TO THE MANALO BROTHER(S) AND TO THE COURT OF APPEALS ALL
OFFICIAL AND UNOFFICIAL REPORTS OF THE INVESTIGATION
UNDERTAKEN IN CONNECTION WITH THEIR CASE, EXCEPT THOSE
ALREADY IN FILE WITH THE COURT; (B) CONFIRM IN WRITING THE
PRESENT PLACES OF OFFICIAL ASSIGNMENT OF M/SGT. HILARIO aka
ROLLIE CASTILLO AND DONALD CAIGAS; AND (C) CAUSE TO BE
PRODUCED TO THE COURT OF APPEALS ALL MEDICAL REPORTS,
RECORDS AND CHARTS, AND REPORTS OF ANY TREATMENT GIVEN
OR RECOMMENDED AND MEDICINES PRESCRIBED, IF ANY, TO THE
MANALO BROTHERS, TO INCLUDE A LIST OF MEDICAL PERSONNEL
(MILITARY AND CIVILIAN) WHO ATTENDED TO THEM FROM FEBRUARY
14, 2006 UNTIL AUGUST 12, 2007.70
The case at bar is the first decision on the application of the Rule on the Writ
of Amparo (Amparo Rule). Let us hearken to its beginning.
The adoption of the Amparo Rule surfaced as a recurring proposition in the
recommendations that resulted from a two-day National Consultative Summit
on Extrajudicial Killings and Enforced Disappearances sponsored by the Court
on July 16-17, 2007. The Summit was "envisioned to provide a broad and fact-
based perspective on the issue of extrajudicial killings and enforced
disappearances,"71 hence "representatives from all sides of the political and
social spectrum, as well as all the stakeholders in the justice system"72
participated in mapping out ways to resolve the crisis.
On October 24, 2007, the Court promulgated the Amparo Rule "in light of the
prevalence of extralegal killing and enforced disappearances."73 It was an
exercise for the first time of the Court's expanded power to promulgate rules to
protect our people's constitutional rights, which made its maiden appearance
in the 1987 Constitution in response to the Filipino experience of the martial
law regime.74 As the Amparo Rule was intended to address the intractable
problem of "extralegal killings" and "enforced disappearances," its coverage,
in its present form, is confined to these two instances or to threats thereof.
"Extralegal killings" are "killings committed without due process of law, i.e.,
without legal safeguards or judicial proceedings."75 On the other hand,
"enforced disappearances" are "attended by the following characteristics: an
arrest, detention or abduction of a person by a government official or
organized groups or private individuals acting with the direct or indirect
acquiescence of the government; the refusal of the State to disclose the fate
or whereabouts of the person concerned or a refusal to acknowledge the
deprivation of liberty which places such persons outside the protection of
law."76
The writ of Amparo originated in Mexico. "Amparo" literally means "protection"
in Spanish.77 In 1837, de Tocqueville's Democracy in America became
available in Mexico and stirred great interest. Its description of the practice of
judicial review in the U.S. appealed to many Mexican jurists.78 One of them,
Manuel Crescencio Rejn, drafted a constitutional provision for his native
state, Yucatan,79 which granted judges the power to protect all persons in the
enjoyment of their constitutional and legal rights. This idea was incorporated
into the national constitution in 1847, viz:
The federal courts shall protect any inhabitant of the Republic in the exercise
and preservation of those rights granted to him by this Constitution and by
laws enacted pursuant hereto, against attacks by the Legislative and
Executive powers of the federal or state governments, limiting themselves to
granting protection in the specific case in litigation, making no general
declaration concerning the statute or regulation that motivated the violation.80
94
Since then, the protection has been an important part of Mexican
constitutionalism.81 If, after hearing, the judge determines that a constitutional
right of the petitioner is being violated, he orders the official, or the official's
superiors, to cease the violation and to take the necessary measures to
restore the petitioner to the full enjoyment of the right in question. Amparo
thus combines the principles of judicial review derived from the U.S. with the
limitations on judicial power characteristic of the civil law tradition which
prevails in Mexico. It enables courts to enforce the constitution by protecting
individual rights in particular cases, but prevents them from using this power to
make law for the entire nation.82
The writ of Amparo then spread throughout the Western Hemisphere,
gradually evolving into various forms, in response to the particular needs of
each country.83 It became, in the words of a justice of the Mexican Federal
Supreme Court, one piece of Mexico's self-attributed "task of conveying to the
world's legal heritage that institution which, as a shield of human dignity, her
own painful history conceived."84 What began as a protection against acts or
omissions of public authorities in violation of constitutional rights later evolved
for several purposes: (1) Amparo libertad for the protection of personal
freedom, equivalent to the habeas corpus writ; (2) Amparo contra leyes for the
judicial review of the constitutionality of statutes; (3) Amparo casacion for the
judicial review of the constitutionality and legality of a judicial decision; (4)
Amparo administrativo for the judicial review of administrative actions; and (5)
Amparo agrario for the protection of peasants' rights derived from the agrarian
reform process.85
In Latin American countries, except Cuba, the writ of Amparo has been
constitutionally adopted to protect against human rights abuses especially
committed in countries under military juntas. In general, these countries
adopted an all-encompassing writ to protect the whole gamut of constitutional
rights, including socio-economic rights.86 Other countries like Colombia,
Chile, Germany and Spain, however, have chosen to limit the protection of the
writ of Amparo only to some constitutional guarantees or fundamental
rights.87
In the Philippines, while the 1987 Constitution does not explicitly provide for
the writ of Amparo, several of the above Amparo protections are guaranteed
by our charter. The second paragraph of Article VIII, Section 1 of the 1987
Constitution, the Grave Abuse Clause, provides for the judicial power "to
determine whether or not there has been a grave abuse of discretion
amounting to lack or excess of jurisdiction on the part of any branch or
instrumentality of the Government." The Clause accords a similar general
protection to human rights extended by the Amparo contra leyes, Amparo
casacion, and Amparo administrativo. Amparo libertad is comparable to the
remedy of habeas corpus found in several provisions of the 1987
Constitution.88 The Clause is an offspring of the U.S. common law tradition of
judicial review, which finds its roots in the 1803 case of Marbury v. Madison.89
While constitutional rights can be protected under the Grave Abuse Clause
through remedies of injunction or prohibition under Rule 65 of the Rules of
Court and a petition for habeas corpus under Rule 102,90 these remedies
may not be adequate to address the pestering problem of extralegal killings
and enforced disappearances. However, with the swiftness required to resolve
a petition for a writ of Amparo through summary proceedings and the
availability of appropriate interim and permanent reliefs under the Amparo
Rule, this hybrid writ of the common law and civil law traditions - borne out of
the Latin American and Philippine experience of human rights abuses - offers
a better remedy to extralegal killings and enforced disappearances and threats
thereof. The remedy provides rapid judicial relief as it partakes of a summary
proceeding that requires only substantial evidence to make the appropriate
reliefs available to the petitioner; it is not an action to determine criminal guilt
requiring proof beyond reasonable doubt, or liability for damages requiring
preponderance of evidence, or administrative responsibility requiring
substantial evidence that will require full and exhaustive proceedings.91
95
The writ of Amparo serves both preventive and curative roles in addressing
the problem of extralegal killings and enforced disappearances. It is preventive
in that it breaks the expectation of impunity in the commission of these
offenses; it is curative in that it facilitates the subsequent punishment of
perpetrators as it will inevitably yield leads to subsequent investigation and
action. In the long run, the goal of both the preventive and curative roles is to
deter the further commission of extralegal killings and enforced
disappearances.
In the case at bar, respondents initially filed an action for "Prohibition,
Injunction, and Temporary Restraining Order"92 to stop petitioners and/or
their officers and agents from depriving the respondents of their right to liberty
and other basic rights on August 23, 2007,93 prior to the promulgation of the
Amparo Rule. They also sought ancillary remedies including Protective
Custody Orders, Appointment of Commissioner, Inspection and Access
Orders and other legal and equitable remedies under Article VIII, Section 5(5)
of the 1987 Constitution and Rule 135, Section 6 of the Rules of Court. When
the Amparo Rule came into effect on October 24, 2007, they moved to have
their petition treated as an Amparo petition as it would be more effective and
suitable to the circumstances of the Manalo brothers' enforced disappearance.
The Court granted their motion.
With this backdrop, we now come to the arguments of the petitioner.
Petitioners' first argument in disputing the Decision of the Court of Appeals
states, viz:
The Court of Appeals seriously and grievously erred in believing and giving
full faith and credit to the incredible uncorroborated, contradicted, and
obviously scripted, rehearsed and self-serving affidavit/testimony of herein
respondent Raymond Manalo.94
In delving into the veracity of the evidence, we need to mine and refine the ore
of petitioners' cause of action, to determine whether the evidence presented is
metal-strong to satisfy the degree of proof required.
Section 1 of the Rule on the Writ of Amparo provides for the following causes
of action, viz:
Section 1. Petition. - The petition for a writ of Amparo is a remedy available to
any person whose right to life, liberty and security is violated or threatened
with violation by an unlawful act or omission of a public official or employee, or
of a private individual or entity.
The writ shall cover extralegal killings and enforced disappearances or threats
thereof. (emphasis supplied)
Sections 17 and 18, on the other hand, provide for the degree of proof
required, viz:
Sec. 17. Burden of Proof and Standard of Diligence Required. - The parties
shall establish their claims by substantial evidence.
xxx xxx xxx
Sec. 18. Judgment. - ... If the allegations in the petition are proven by
substantial evidence, the court shall grant the privilege of the writ and such
reliefs as may be proper and appropriate; otherwise, the privilege shall be
denied. (emphases supplied)
Substantial evidence has been defined as such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion.95
96
After careful perusal of the evidence presented, we affirm the findings of the
Court of Appeals that respondents were abducted from their houses in Sito
Muzon, Brgy. Buhol na Mangga, San Ildefonso, Bulacan on February 14, 2006
and were continuously detained until they escaped on August 13, 2007. The
abduction, detention, torture, and escape of the respondents were narrated by
respondent Raymond Manalo in a clear and convincing manner. His account
is dotted with countless candid details of respondents' harrowing experience
and tenacious will to escape, captured through his different senses and
etched in his memory. A few examples are the following: "Sumilip ako sa isang
haligi ng kamalig at nakita kong sinisilaban si Manuel."96 "(N)ilakasan ng mga
sundalo ang tunog na galing sa istiryo ng sasakyan. Di nagtagal, narinig ko
ang hiyaw o ungol ni Manuel."97 "May naiwang mga bakas ng dugo habang
hinihila nila ang mga bangkay. Naamoy ko iyon nang nililinis ang bakas."98
"Tumigil ako sa may palaisdaan kung saan ginamit ko ang bato para tanggalin
ang mga kadena."99 "Tinanong ko sa isang kapit-bahay kung paano ako
makakakuha ng cell phone; sabi ko gusto kong i-text ang isang babae na
nakatira sa malapit na lugar."100
We affirm the factual findings of the appellate court, largely based on
respondent Raymond Manalo's affidavit and testimony, viz:
...the abduction was perpetrated by armed men who were sufficiently
identified by the petitioners (herein respondents) to be military personnel and
CAFGU auxiliaries. Raymond recalled that the six armed men who barged into
his house through the rear door were military men based on their attire of
fatigue pants and army boots, and the CAFGU auxiliaries, namely: Michael de
la Cruz, Madning de la Cruz, Puti de la Cruz and Pula de la Cruz, all members
of the CAFGU and residents of Muzon, San Ildefonso, Bulacan, and the
brothers Randy Mendoza and Rudy Mendoza, also CAFGU members, served
as lookouts during the abduction. Raymond was sure that three of the six
military men were Ganata, who headed the abducting team, Hilario, who
drove the van, and George. Subsequent incidents of their long captivity, as
narrated by the petitioners, validated their assertion of the participation of the
elements of the 7th Infantry Division, Philippine Army, and their CAFGU
auxiliaries.
We are convinced, too, that the reason for the abduction was the suspicion
that the petitioners were either members or sympathizers of the NPA,
considering that the abductors were looking for Ka Bestre, who turned out to
be Rolando, the brother of petitioners.
The efforts exerted by the Military Command to look into the abduction were,
at best, merely superficial. The investigation of the Provost Marshall of the 7th
Infantry Division focused on the one-sided version of the CAFGU auxiliaries
involved. This one-sidedness might be due to the fact that the Provost
Marshall could delve only into the participation of military personnel, but even
then the Provost Marshall should have refrained from outrightly exculpating
the CAFGU auxiliaries he perfunctorily investigated...
Gen. Palparan's participation in the abduction was also established. At the
very least, he was aware of the petitioners' captivity at the hands of men in
uniform assigned to his command. In fact, he or any other officer tendered no
controversion to the firm claim of Raymond that he (Gen. Palparan) met them
in person in a safehouse in Bulacan and told them what he wanted them and
their parents to do or not to be doing. Gen. Palparan's direct and personal role
in the abduction might not have been shown but his knowledge of the dire
situation of the petitioners during their long captivity at the hands of military
personnel under his command bespoke of his indubitable command policy
that unavoidably encouraged and not merely tolerated the abduction of
civilians without due process of law and without probable cause.
In the habeas proceedings, the Court, through the Former Special Sixth
Division (Justices Buzon, chairman; Santiago-Lagman, Sr., member; and
Romilla-Lontok, Jr., member/ponente.) found no clear and convincing
97
evidence to establish that M/Sgt. Rizal Hilario had anything to do with the
abduction or the detention. Hilario's involvement could not, indeed, be then
established after Evangeline Francisco, who allegedly saw Hilario drive the
van in which the petitioners were boarded and ferried following the abduction,
did not testify. (See the decision of the habeas proceedings at rollo, p. 52)
However, in this case, Raymond attested that Hilario drove the white L-300 van
in which the petitioners were brought away from their houses on February 14,
2006. Raymond also attested that Hilario participated in subsequent incidents
during the captivity of the petitioners, one of which was when Hilario fetched
them from Fort Magsaysay on board a Revo and conveyed them to a
detachment in Pinaud, San Ildefonso, Bulacan where they were detained for
at least a week in a house of strong materials (Exhibit D, rollo, p. 205) and
then Hilario (along with Efren) brought them to Sapang, San Miguel, Bulacan
on board the Revo, to an unfinished house inside the compound of Kapitan
where they were kept for more or less three months. (Exhibit D, rollo, p. 205) It
was there where the petitioners came face to face with Gen. Palparan. Hilario
and Efren also brought the petitioners one early morning to the house of the
petitioners' parents, where only Raymond was presented to the parents to
relay the message from Gen. Palparan not to join anymore rallies. On that
occasion, Hilario warned the parents that they would not again see their sons
should they join any rallies to denounce human rights violations. (Exhibit D,
rollo, pp. 205-206) Hilario was also among four Master Sergeants (the others
being Arman, Ganata and Cabalse) with whom Gen. Palparan conversed on
the occasion when Gen. Palparan required Raymond to take the medicines for
his health. (Exhibit D, rollo, p. 206) There were other occasions when the
petitioners saw that Hilario had a direct hand in their torture.
It is clear, therefore, that the participation of Hilario in the abduction and forced
disappearance of the petitioners was established. The participation of other
military personnel like Arman, Ganata, Cabalse and Caigas, among others,
was similarly established.

xxx xxx xxx
As to the CAFGU auxiliaries, the habeas Court found them personally
involved in the abduction. We also do, for, indeed, the evidence of their
participation is overwhelming.101
We reject the claim of petitioners that respondent Raymond Manalo's
statements were not corroborated by other independent and credible pieces of
evidence.102 Raymond's affidavit and testimony were corroborated by the
affidavit of respondent Reynaldo Manalo. The testimony and medical reports
prepared by forensic specialist Dr. Molino, and the pictures of the scars left by
the physical injuries inflicted on respondents,103 also corroborate
respondents' accounts of the torture they endured while in detention.
Respondent Raymond Manalo's familiarity with the facilities in Fort Magsaysay
such as the "DTU," as shown in his testimony and confirmed by Lt. Col.
Jimenez to be the "Division Training Unit,"104 firms up respondents' story that
they were detained for some time in said military facility.
In Ortiz v. Guatemala,105 a case decided by the Inter-American Commission
on Human Rights, the Commission considered similar evidence, among
others, in finding that complainant Sister Diana Ortiz was abducted and
tortured by agents of the Guatemalan government. In this case, Sister Ortiz
was kidnapped and tortured in early November 1989. The Commission's
findings of fact were mostly based on the consistent and credible statements,
written and oral, made by Sister Ortiz regarding her ordeal.106 These
statements were supported by her recognition of portions of the route they
took when she was being driven out of the military installation where she was
detained.107 She was also examined by a medical doctor whose findings
showed that the 111 circular second degree burns on her back and abrasions
on her cheek coincided with her account of cigarette burning and torture she
suffered while in detention.108
98
With the secret nature of an enforced disappearance and the torture
perpetrated on the victim during detention, it logically holds that much of the
information and evidence of the ordeal will come from the victims themselves,
and the veracity of their account will depend on their credibility and
candidness in their written and/or oral statements. Their statements can be
corroborated by other evidence such as physical evidence left by the torture
they suffered or landmarks they can identify in the places where they were
detained. Where powerful military officers are implicated, the hesitation of
witnesses to surface and testify against them comes as no surprise.
We now come to the right of the respondents to the privilege of the writ of
Amparo. There is no quarrel that the enforced disappearance of both
respondents Raymond and Reynaldo Manalo has now passed as they have
escaped from captivity and surfaced. But while respondents admit that they
are no longer in detention and are physically free, they assert that they are not
"free in every sense of the word"109 as their "movements continue to be
restricted for fear that people they have named in their Judicial Affidavits and
testified against (in the case of Raymond) are still at large and have not been
held accountable in any way. These people are directly connected to the
Armed Forces of the Philippines and are, thus, in a position to threaten
respondents' rights to life, liberty and security."110 (emphasis supplied)
Respondents claim that they are under threat of being once again abducted,
kept captive or even killed, which constitute a direct violation of their right to
security of person.111
Elaborating on the "right to security, in general," respondents point out that
this right is "often associated with liberty;" it is also seen as an "expansion of
rights based on the prohibition against torture and cruel and unusual
punishment." Conceding that there is no right to security expressly mentioned
in Article III of the 1987 Constitution, they submit that their rights "to be kept
free from torture and from incommunicado detention and solitary detention
places112 fall under the general coverage of the right to security of person
under the writ of Amparo." They submit that the Court ought to give an
expansive recognition of the right to security of person in view of the State
Policy under Article II of the 1987 Constitution which enunciates that, "The
State values the dignity of every human person and guarantees full respect for
human rights." Finally, to justify a liberal interpretation of the right to security of
person, respondents cite the teaching in Moncupa v. Enrile113 that "the right
to liberty may be made more meaningful only if there is no undue restraint by
the State on the exercise of that liberty"114 such as a requirement to "report
under unreasonable restrictions that amounted to a deprivation of liberty"115
or being put under "monitoring and surveillance."116
In sum, respondents assert that their cause of action consists in the threat to
their right to life and liberty, and a violation of their right to security.
Let us put this right to security under the lens to determine if it has indeed
been violated as respondents assert. The right to security or the right to
security of person finds a textual hook in Article III, Section 2 of the 1987
Constitution which provides, viz:
Sec. 2. The right of the people to be secure in their persons, houses, papers
and effects against unreasonable searches and seizures of whatever nature
and for any purpose shall be inviolable, and no search warrant or warrant of
arrest shall issue except upon probable cause to be determined personally by
the judge...
At the core of this guarantee is the immunity of one's person, including the
extensions of his/her person - houses, papers, and effects - against
government intrusion. Section 2 not only limits the state's power over a
person's home and possessions, but more importantly, protects the privacy
and sanctity of the person himself.117 The purpose of this provision was
enunciated by the Court in People v. CFI of Rizal, Branch IX, Quezon City, viz:
118
99
The purpose of the constitutional guarantee against unreasonable searches
and seizures is to prevent violations of private security in person and property
and unlawful invasion of the security of the home by officers of the law acting
under legislative or judicial sanction and to give remedy against such
usurpation when attempted. (Adams v. New York, 192 U.S. 858; Alvero v.
Dizon, 76 Phil. 637 [1946]). The right to privacy is an essential condition to the
dignity and happiness and to the peace and security of every individual,
whether it be of home or of persons and correspondence. (Taada and
Carreon, Political Law of the Philippines, Vol. 2, 139 [1962]). The
constitutional inviolability of this great fundamental right against
unreasonable searches and seizures must be deemed absolute as
nothing is closer to a man's soul than the serenity of his privacy and the
assurance of his personal security. Any interference allowable can only
be for the best causes and reasons.119 (emphases supplied)
While the right to life under Article III, Section 1120 guarantees essentially the
right to be alive121 - upon which the enjoyment of all other rights is
preconditioned - the right to security of person is a guarantee of the secure
quality of this life, viz: "The life to which each person has a right is not a life
lived in fear that his person and property may be unreasonably violated by a
powerful ruler. Rather, it is a life lived with the assurance that the government
he established and consented to, will protect the security of his person and
property. The ideal of security in life and property... pervades the whole history
of man. It touches every aspect of man's existence."122 In a broad sense, the
right to security of person "emanates in a person's legal and uninterrupted
enjoyment of his life, his limbs, his body, his health, and his reputation. It
includes the right to exist, and the right to enjoyment of life while existing, and
it is invaded not only by a deprivation of life but also of those things which are
necessary to the enjoyment of life according to the nature, temperament, and
lawful desires of the individual."123
A closer look at the right to security of person would yield various
permutations of the exercise of this right.
First, the right to security of person is "freedom from fear." In its "whereas"
clauses, the Universal Declaration of Human Rights (UDHR) enunciates that
"a world in which human beings shall enjoy freedom of speech and belief and
freedom from fear and want has been proclaimed as the highest aspiration of
the common people." (emphasis supplied) Some scholars postulate that
"freedom from fear" is not only an aspirational principle, but essentially an
individual international human right.124 It is the "right to security of person" as
the word "security" itself means "freedom from fear."125 Article 3 of the UDHR
provides, viz:
Everyone has the right to life, liberty and security of person.126 (emphasis
supplied)
In furtherance of this right declared in the UDHR, Article 9(1) of the
International Covenant on Civil and Political Rights (ICCPR) also provides for
the right to security of person, viz:
1. Everyone has the right to liberty and security of person. No one shall be
subjected to arbitrary arrest or detention. No one shall be deprived of his
liberty except on such grounds and in accordance with such procedure as are
established by law. (emphasis supplied)
The Philippines is a signatory to both the UDHR and the ICCPR.
In the context of Section 1 of the Amparo Rule, "freedom from fear" is the right
and any threat to the rights to life, liberty or security is the actionable wrong.
Fear is a state of mind, a reaction; threat is a stimulus, a cause of action. Fear
caused by the same stimulus can range from being baseless to well-founded
as people react differently. The degree of fear can vary from one person to
100
another with the variation of the prolificacy of their imagination, strength of
character or past experience with the stimulus. Thus, in the Amparo context, it
is more correct to say that the "right to security" is actually the "freedom from
threat." Viewed in this light, the "threatened with violation" Clause in the latter
part of Section 1 of the Amparo Rule is a form of violation of the right to
security mentioned in the earlier part of the provision.127
Second, the right to security of person is a guarantee of bodily and
psychological integrity or security. Article III, Section II of the 1987 Constitution
guarantees that, as a general rule, one's body cannot be searched or invaded
without a search warrant.128 Physical injuries inflicted in the context of
extralegal killings and enforced disappearances constitute more than a search
or invasion of the body. It may constitute dismemberment, physical disabilities,
and painful physical intrusion. As the degree of physical injury increases, the
danger to life itself escalates. Notably, in criminal law, physical injuries
constitute a crime against persons because they are an affront to the bodily
integrity or security of a person.129
Physical torture, force, and violence are a severe invasion of bodily integrity.
When employed to vitiate the free will such as to force the victim to admit,
reveal or fabricate incriminating information, it constitutes an invasion of both
bodily and psychological integrity as the dignity of the human person includes
the exercise of free will. Article III, Section 12 of the 1987 Constitution more
specifically proscribes bodily and psychological invasion, viz:
(2) No torture, force, violence, threat or intimidation, or any other means which
vitiate the free will shall be used against him (any person under investigation
for the commission of an offense). Secret detention places, solitary,
incommunicado or other similar forms of detention are prohibited.
Parenthetically, under this provision, threat and intimidation that vitiate the free
will - although not involving invasion of bodily integrity - nevertheless
constitute a violation of the right to security in the sense of "freedom from
threat" as afore-discussed.
Article III, Section 12 guarantees freedom from dehumanizing abuses of
persons under investigation for the commission of an offense. Victims of
enforced disappearances who are not even under such investigation should all
the more be protected from these degradations.
An overture to an interpretation of the right to security of person as a right
against torture was made by the European Court of Human Rights (ECHR) in
the recent case of Popov v. Russia.130 In this case, the claimant, who was
lawfully detained, alleged that the state authorities had physically abused him
in prison, thereby violating his right to security of person. Article 5(1) of the
European Convention on Human Rights provides, viz: "Everyone has the right
to liberty and security of person. No one shall be deprived of his liberty save in
the following cases and in accordance with a procedure prescribed by law ..."
(emphases supplied) Article 3, on the other hand, provides that "(n)o one shall
be subjected to torture or to inhuman or degrading treatment or punishment."
Although the application failed on the facts as the alleged ill-treatment was
found baseless, the ECHR relied heavily on the concept of security in holding,
viz:
...the applicant did not bring his allegations to the attention of domestic
authorities at the time when they could reasonably have been expected to
take measures in order to ensure his security and to investigate the
circumstances in question.
xxx xxx xxx
... the authorities failed to ensure his security in custody or to comply with the
procedural obligation under Art.3 to conduct an effective investigation into his
allegations.131 (emphasis supplied)
101
The U.N. Committee on the Elimination of Discrimination against Women has
also made a statement that the protection of the bodily integrity of women may
also be related to the right to security and liberty, viz:
...gender-based violence which impairs or nullifies the enjoyment by women of
human rights and fundamental freedoms under general international law or
under specific human rights conventions is discrimination within the meaning
of article 1 of the Convention (on the Elimination of All Forms of Discrimination
Against Women). These rights and freedoms include . . . the right to liberty
and security of person.132
Third, the right to security of person is a guarantee of protection of one's rights
by the government. In the context of the writ of Amparo, this right is built into
the guarantees of the right to life and liberty under Article III, Section 1 of the
1987 Constitution and the right to security of person (as freedom from threat
and guarantee of bodily and psychological integrity) under Article III, Section
2. The right to security of person in this third sense is a corollary of the policy
that the State "guarantees full respect for human rights" under Article II,
Section 11 of the 1987 Constitution.133 As the government is the chief
guarantor of order and security, the Constitutional guarantee of the rights to
life, liberty and security of person is rendered ineffective if government does
not afford protection to these rights especially when they are under threat.
Protection includes conducting effective investigations, organization of the
government apparatus to extend protection to victims of extralegal killings or
enforced disappearances (or threats thereof) and/or their families, and
bringing offenders to the bar of justice. The Inter-American Court of Human
Rights stressed the importance of investigation in the Velasquez Rodriguez
Case,134 viz:
(The duty to investigate) must be undertaken in a serious manner and not as a
mere formality preordained to be ineffective. An investigation must have an
objective and be assumed by the State as its own legal duty, not as a step
taken by private interests that depends upon the initiative of the victim or his
family or upon their offer of proof, without an effective search for the truth by
the government.135
This third sense of the right to security of person as a guarantee of
government protection has been interpreted by the United Nations' Human
Rights Committee136 in not a few cases involving Article 9137 of the ICCPR.
While the right to security of person appears in conjunction with the right to
liberty under Article 9, the Committee has ruled that the right to security of
person can exist independently of the right to liberty. In other words, there
need not necessarily be a deprivation of liberty for the right to security of
person to be invoked. In Delgado Paez v. Colombia,138 a case involving
death threats to a religion teacher at a secondary school in Leticia, Colombia,
whose social views differed from those of the Apostolic Prefect of Leticia, the
Committee held, viz:
The first sentence of article 9 does not stand as a separate paragraph. Its
location as a part of paragraph one could lead to the view that the right to
security arises only in the context of arrest and detention. The travaux
prparatoires indicate that the discussions of the first sentence did indeed
focus on matters dealt with in the other provisions of article 9. The Universal
Declaration of Human Rights, in article 3, refers to the right to life, the right to
liberty and the right to security of the person. These elements have been dealt
with in separate clauses in the Covenant. Although in the Covenant the only
reference to the right of security of person is to be found in article 9, there is
no evidence that it was intended to narrow the concept of the right to security
only to situations of formal deprivation of liberty. At the same time, States
parties have undertaken to guarantee the rights enshrined in the Covenant. It
cannot be the case that, as a matter of law, States can ignore known threats
to the life of persons under their jurisdiction, just because that he or she is not
arrested or otherwise detained. States parties are under an obligation to take
102
reasonable and appropriate measures to protect them. An interpretation of
article 9 which would allow a State party to ignore threats to the personal
security of non-detained persons within its jurisdiction would render totally
ineffective the guarantees of the Covenant.139 (emphasis supplied)
The Paez ruling was reiterated in Bwalya v. Zambia,140 which involved a
political activist and prisoner of conscience who continued to be intimidated,
harassed, and restricted in his movements following his release from
detention. In a catena of cases, the ruling of the Committee was of a similar
import: Bahamonde v. Equatorial Guinea,141 involving discrimination,
intimidation and persecution of opponents of the ruling party in that state;
Tshishimbi v. Zaire,142 involving the abduction of the complainant's husband
who was a supporter of democratic reform in Zaire; Dias v. Angola,143
involving the murder of the complainant's partner and the harassment he
(complainant) suffered because of his investigation of the murder; and
Chongwe v. Zambia,144 involving an assassination attempt on the chairman
of an opposition alliance.
Similarly, the European Court of Human Rights (ECHR) has interpreted the
"right to security" not only as prohibiting the State from arbitrarily depriving
liberty, but imposing a positive duty on the State to afford protection of the
right to liberty.145 The ECHR interpreted the "right to security of person"
under Article 5(1) of the European Convention of Human Rights in the leading
case on disappearance of persons, Kurt v. Turkey.146 In this case, the
claimant's son had been arrested by state authorities and had not been seen
since. The family's requests for information and investigation regarding his
whereabouts proved futile. The claimant suggested that this was a violation of
her son's right to security of person. The ECHR ruled, viz:
... any deprivation of liberty must not only have been effected in conformity
with the substantive and procedural rules of national law but must equally be
in keeping with the very purpose of Article 5, namely to protect the individual
from arbitrariness... Having assumed control over that individual it is
incumbent on the authorities to account for his or her whereabouts. For this
reason, Article 5 must be seen as requiring the authorities to take effective
measures to safeguard against the risk of disappearance and to conduct a
prompt effective investigation into an arguable claim that a person has been
taken into custody and has not been seen since.147 (emphasis supplied)
Applying the foregoing concept of the right to security of person to the
case at bar, we now determine whether there is a continuing violation of
respondents' right to security.
First, the violation of the right to security as freedom from threat to
respondents' life, liberty and security.
While respondents were detained, they were threatened that if they escaped,
their families, including them, would be killed. In Raymond's narration, he was
tortured and poured with gasoline after he was caught the first time he
attempted to escape from Fort Magsaysay. A call from a certain "Mam," who
wanted to see him before he was killed, spared him.
This time, respondents have finally escaped. The condition of the threat to be
killed has come to pass. It should be stressed that they are now free from
captivity not because they were released by virtue of a lawful order or
voluntarily freed by their abductors. It ought to be recalled that towards the
end of their ordeal, sometime in June 2007 when respondents were detained
in a camp in Limay, Bataan, respondents' captors even told them that they
were still deciding whether they should be executed. Respondent Raymond
Manalo attested in his affidavit, viz:
Kinaumagahan, naka-kadena pa kami. Tinanggal ang mga kadena mga 3 o 4
na araw pagkalipas. Sinabi sa amin na kaya kami nakakadena ay dahil
pinagdedesisyunan pa ng mga sundalo kung papatayin kami o hindi.148
103
The possibility of respondents being executed stared them in the eye while
they were in detention. With their escape, this continuing threat to their life is
apparent, moreso now that they have surfaced and implicated specific officers
in the military not only in their own abduction and torture, but also in those of
other persons known to have disappeared such as Sherlyn Cadapan, Karen
Empeo, and Manuel Merino, among others.
Understandably, since their escape, respondents have been under
concealment and protection by private citizens because of the threat to their
life, liberty and security. The threat vitiates their free will as they are forced to
limit their movements or activities.149 Precisely because respondents are
being shielded from the perpetrators of their abduction, they cannot be
expected to show evidence of overt acts of threat such as face-to-face
intimidation or written threats to their life, liberty and security. Nonetheless, the
circumstances of respondents' abduction, detention, torture and escape
reasonably support a conclusion that there is an apparent threat that they will
again be abducted, tortured, and this time, even executed. These constitute
threats to their liberty, security, and life, actionable through a petition for a writ
of Amparo.
Next, the violation of the right to security as protection by the government.
Apart from the failure of military elements to provide protection to respondents
by themselves perpetrating the abduction, detention, and torture, they also
miserably failed in conducting an effective investigation of respondents'
abduction as revealed by the testimony and investigation report of petitioners'
own witness, Lt. Col. Ruben Jimenez, Provost Marshall of the 7th Infantry
Division.
The one-day investigation conducted by Jimenez was very limited, superficial,
and one-sided. He merely relied on the Sworn Statements of the six
implicated members of the CAFGU and civilians whom he met in the
investigation for the first time. He was present at the investigation when his
subordinate Lingad was taking the sworn statements, but he did not propound
a single question to ascertain the veracity of their statements or their
credibility. He did not call for other witnesses to test the alibis given by the six
implicated persons nor for the family or neighbors of the respondents.
In his affidavit, petitioner Secretary of National Defense attested that in a
Memorandum Directive dated October 31, 2007, he issued a policy directive
addressed to the AFP Chief of Staff, that the AFP should adopt rules of action
in the event the writ of Amparo is issued by a competent court against any
members of the AFP, which should essentially include verification of the
identity of the aggrieved party; recovery and preservation of relevant evidence;
identification of witnesses and securing statements from them; determination
of the cause, manner, location and time of death or disappearance;
identification and apprehension of the person or persons involved in the death
or disappearance; and bringing of the suspected offenders before a
competent court.150 Petitioner AFP Chief of Staff also submitted his own
affidavit attesting that he received the above directive of respondent Secretary
of National Defense and that acting on this directive, he immediately caused
to be issued a directive to the units of the AFP for the purpose of establishing
the circumstances of the alleged disappearance and the recent reappearance
of the respondents, and undertook to provide results of the investigations to
respondents.151 To this day, however, almost a year after the policy directive
was issued by petitioner Secretary of National Defense on October 31, 2007,
respondents have not been furnished the results of the investigation which
they now seek through the instant petition for a writ of Amparo.
Under these circumstances, there is substantial evidence to warrant the
conclusion that there is a violation of respondents' right to security as a
guarantee of protection by the government.
104
In sum, we conclude that respondents' right to security as "freedom from
threat" is violated by the apparent threat to their life, liberty and security of
person. Their right to security as a guarantee of protection by the government
is likewise violated by the ineffective investigation and protection on the part of
the military.
Finally, we come to the reliefs granted by the Court of Appeals, which
petitioners question.
First, that petitioners furnish respondents all official and unofficial reports of
the investigation undertaken in connection with their case, except those
already in file with the court.
Second, that petitioners confirm in writing the present places of official
assignment of M/Sgt. Hilario aka Rollie Castillo and Donald Caigas.
Third, that petitioners cause to be produced to the Court of Appeals all
medical reports, records and charts, and reports of any treatment given or
recommended and medicines prescribed, if any, to the Manalo brothers, to
include a list of medical personnel (military and civilian) who attended to them
from February 14, 2006 until August 12, 2007.
With respect to the first and second reliefs, petitioners argue that the
production order sought by respondents partakes of the characteristics of a
search warrant. Thus, they claim that the requisites for the issuance of a
search warrant must be complied with prior to the grant of the production
order, namely: (1) the application must be under oath or affirmation; (2) the
search warrant must particularly describe the place to be searched and the
things to be seized; (3) there exists probable cause with one specific offense;
and (4) the probable cause must be personally determined by the judge after
examination under oath or affirmation of the complainant and the witnesses he
may produce.152 In the case at bar, however, petitioners point out that other
than the bare, self-serving and vague allegations made by respondent
Raymond Manalo in his unverified declaration and affidavit, the documents
respondents seek to be produced are only mentioned generally by name, with
no other supporting details. They also argue that the relevancy of the
documents to be produced must be apparent, but this is not true in the
present case as the involvement of petitioners in the abduction has not been
shown.
Petitioners' arguments do not hold water. The production order under the
Amparo Rule should not be confused with a search warrant for law
enforcement under Article III, Section 2 of the 1987 Constitution. This
Constitutional provision is a protection of the people from the unreasonable
intrusion of the government, not a protection of the government from the
demand of the people such as respondents.
Instead, the Amparo production order may be likened to the production of
documents or things under Section 1, Rule 27 of the Rules of Civil Procedure
which provides in relevant part, viz:
Section 1. Motion for production or inspection order.
Upon motion of any party showing good cause therefor, the court in which an
action is pending may (a) order any party to produce and permit the inspection
and copying or photographing, by or on behalf of the moving party, of any
designated documents, papers, books of accounts, letters, photographs,
objects or tangible things, not privileged, which constitute or contain evidence
material to any matter involved in the action and which are in his possession,
custody or control...
In Material Distributors (Phil.) Inc. v. Judge Natividad,153 the respondent
judge, under authority of Rule 27, issued a subpoena duces tecum for the
production and inspection of among others, the books and papers of Material
105
Distributors (Phil.) Inc. The company questioned the issuance of the
subpoena on the ground that it violated the search and seizure clause. The
Court struck down the argument and held that the subpoena pertained to a
civil procedure that "cannot be identified or confused with unreasonable
searches prohibited by the Constitution..."
Moreover, in his affidavit, petitioner AFP Chief of Staff himself undertook "to
provide results of the investigations conducted or to be conducted by the
concerned unit relative to the circumstances of the alleged disappearance of
the persons in whose favor the Writ of Amparo has been sought for as soon
as the same has been furnished Higher headquarters."
With respect to the second and third reliefs, petitioners assert that the
disclosure of the present places of assignment of M/Sgt. Hilario aka Rollie
Castillo and Donald Caigas, as well as the submission of a list of medical
personnel, is irrelevant, improper, immaterial, and unnecessary in the
resolution of the petition for a writ of Amparo. They add that it will
unnecessarily compromise and jeopardize the exercise of official functions
and duties of military officers and even unwittingly and unnecessarily expose
them to threat of personal injury or even death.
On the contrary, the disclosure of the present places of assignment of M/Sgt.
Hilario aka Rollie Castillo and Donald Caigas, whom respondents both directly
implicated as perpetrators behind their abduction and detention, is relevant in
ensuring the safety of respondents by avoiding their areas of territorial
jurisdiction. Such disclosure would also help ensure that these military officers
can be served with notices and court processes in relation to any investigation
and action for violation of the respondents' rights. The list of medical
personnel is also relevant in securing information to create the medical history
of respondents and make appropriate medical interventions, when applicable
and necessary.
In blatant violation of our hard-won guarantees to life, liberty and security, G.R. No. 211590
these rights are snuffed out from victims of extralegal killings and enforced
disappearances. The writ of Amparo is a tool that gives voice to preys of silent CHAIRPERSON SIEGFRED B. MISON, in his capacity as the Chairperson
guns and prisoners behind secret walls. of Bureau of Immigration and Deportation, Petitioner,
vs.
WHEREFORE, premises considered, the petition is DISMISSED. The JA HOON KU, Respondent.
Decision of the Court of Appeals dated December 26, 2007 is affirmed.
DECISION
SO ORDERED.
PEREZ, J.:

The privilege of the writ of amparo is .an extraordinary remedy adopted to

G.R. No. 210759 June 23, 2015 address the special concerns of extra-legal killings and enforced
disappearances. Accordingly, the remedy ought to be resorted to and granted
CHAIRPERSON SIEGFRED B. MISON, in his capacity as Chairperson1 of judiciously, lest the ideal sought by the Amparo Rule be diluted and
Bureau of Immigration and Deportation,2 Petitioner, undermined by the indiscriminate filing of Amparo petitions for purposes less
vs. than the desire to secure amparo reliefs and protection and/or on the basis of
HON. PAULINO Q. GALLEGOS, in his capacity as Presiding Judge of the unsubstantiated allegations.3
Regional Trial Court-Manila, Branch 47 and JA HOON KU, Respondents.
For the consideration of the Court are three consolidated petitions assailing
x-----------------------x the Orders dated 28 January 2014,4 29 January 2014,5 and 18 February
2014,6 as well as the Resolution dated 14 March 2014,7 all issued by
G.R. No. 211403 respondent Presiding Judge Paulino Gallegos (Judge Gallegos) of the
Regional Trial Court-Manila, Branch 47 in SP. PROC. No. 14-131282.
CHAIRPERSON SIEGFRED B. MISON, as the Chairperson of Bureau of
Immigration and Deportation, Petitioner, The records show that on 23 December 2013, the International Criminal
vs. Police Organization (Interpol) of Seoul, Republic of Korea sent a Notice8 to
HON. PAULINO Q. GALLEGOS, as Presiding Judge of the Regional Trial Interpol Manila requesting assistance in the location and deportation of
Court-Manila, Branch 47 and JAHOONKU, Respondents. respondent Ja Hoon Ku (Ku) for arbitrarily spending money allotted as reserve
fund of Phildip Korea Co., Ltd. Consequently, the Embassy of the Republic of
x-----------------------x Korea wrote a Letter-Request9 to petitioner, Hon. Siegfred Mison, Chairperson

106
of the Bureau of Immigration (BI), for the immediate arrest and deportatio n of
Ku to Korea for being an undesirable alien.
Meanwhile, on 1 January 2014, Kus visa expired.10
On 3 January 2014, Special Prosecutor Maria Antonette Bucasas-
Mangrobang charged Ku for being a risk to public interest pursuant to Sec. 69,
Act No. 2711.11This finding was approved by the BI Board of Commissioners
which, on 16 January 2014, issued a Summary Deportation Order.12
On the same day, 16 January 2014, BI officers, with the assistance of the
Manila Police District-Warrant and Subpoena Section, arrested Ku. Upon
arrival at the BI detention center, Ku was detained.13
On 17 January 2014, the Republic of Korea voided Kus passport.14
Also on 17 January 2014, Ku filed a Petition for the Issuance of a Writ of
Amparo with Interim Remedies, docketed as SP PROC. No. 14- 131282.15
On 22 January 2014, he also filed a Supplemental Petition for the Issuance of
a Writ of Amparo.16
Finding said supple mental petition to be sufficient in form and substance,
Judge Gallegos, in an Order dated 22 January 2014, issued a Writ of
Amparo.17 On 24 January 2014, Ku filed a Motion for the Issuance of a
Temporary Protection Order (TPO).18 Judge Gallegos then set the hearing on
the TPO on 27 January 2014 at 8:30 a.m.,19 while he set the hearing on the
petition for the issuance of a writ of amparo on 29 January 2014 at 8:30
a.m.20
In the afternoon of 27 January 2014, petitioner filed his Return of the Writ.21
He was then notified that a hearing on the TPO was held earlier in the
morning and that the same was already submitted for resolution.22
107
Petitioner then filed an Opposition to the Motion for Issuance of TPO on 28
January 2014.23
On 28 January 2014, Judge Gallegos issued the first assailed Order granting
the motion for issuance of TPO, entrusting Kus custody to the Philippine
National Red Cross and/or its Chairman CEO Richard Gordon, and directing
the Philippine National Police-Police Security and Protection Group (PNP-
PSPG) to protect Ku and his immediate family.24 On 29 January 2014, Judge
Gallegos issued the second assailed Order directing the transfer of custody
and protection of Ku to the PNP-PSPG.25 Petitioner challenged these orders
before the Court via a Petition for Certiorari26 docketed as G.R. No. 210759.
On 4 February 2014, the Court issued a Resolution in G.R. No. 210759
issuing a Temporary Restraining Order (TRO) enjoining the enforcement of
the Orders dated 28 and 29 January 2014 and directing the BI to retain
custody of Ku, as well as requiring Ku to comment on the petition.27 In issuing
this resolution, the Court intimated the possibility of misuse by Ku of the writ of
amparo given that he was validly arrested and placed under the jurisdiction
and custody of the BI; thus the case cannot be categorized as one of
extralegal killing or enforced disappearance.28
Owing to the Courts Resolution dated 4 February 2014, in the hearing set on
11 February 2014 before the trial court, petitioner verbally moved for the
dismissal of the amparo petition.29On 18 February 2014, however, Judge
Gallegos issued the third assailed order denying the motion to dismiss for lack
of merit.30Thus, petitioner appealed the matter to the Court via the Petition for
Certiorari and Prohibition31 docketed as G.R. No. 211403.
On 25 February 2014, Ku filed an appeal memorandum on his deportation
order addressed to the Office of the President (OP).32
On 14 March 2014, Judge Gallegos issued the assailed Resolution granting
the privilege of the writ of amparo, to wit:
WHEREFORE, the privilege of the Writ of Amparo is hereby GRANTED. [Ku]
is ordered immediately released from [petitioners] custody without prejudice
to the institution of the proper remedy to extradition. Moreover, the [petitioner]
and/or agents are ordered to cease and desist from further violating the right
to liberty of [Ku] and the members of his family by filing cases to legitimize his
detention.33
Meanwhile, in the Resolution dated 18 March 2014 in G.R. No. 211403, the
Court issued a TRO enjoining the RTC from enforcing the Order dated 18
February 2014 and from further proceeding with the case.34
On 19 March 2014, the OP granted Ku provisional liberty only until 31 August
2014 or until his appeal was resolved, whichever came first.35Ku then moved
for the release of his passport before the RTC, which petitioner opposed and
to which he filed a counter-motion for the RTC to release said passport to the
BI, given that such was one of the conditions for the OPs grant of provisional
liberty to Ku.36 In the Order dated 26 March 2014, however, Judge Gallegos
merely noted petitioners motion for being moot, considering that he already
released Kus passport on 20 March 2014, upon the personal request of
Ku.37
Due to the complexities involved, petitioner filed the Petition for Review on
Certiorari in G.R. No. 211590, essentially assailing the Resolution dated 14
March 2014.
Condensing the various issues raised in these petitions,38 we come to the
central question of whether or not the privilege of the writ of amparo was
properly granted in the case at bar.
108
We rule in the negative.
Section 1 of the Rule on the Writ of Amparo (Amparo Rule)39 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.
On 25 September 2007, the Court promulgated the Amparo Rule "in light of
the prevalence of extralegal killings and enforced disappearances." It was an
exercise for the first time of the Courts expanded power to promulgate rules to
protect our people s constitutional rights, which made its maiden appearance
in the 1987 Constitution in response to the Filipino experience of the martial
law regime. 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 where about s of the person concerned or a refusal to acknowledge the
deprivation of liberty which places such persons outside the protection of
law."40
This pronouncement on the coverage of the writ was further cemented in the
latter case of Lozada, Jr. v. Macapagal-Arroyo41 where this Court explicitly
declared that as it stands, the writ of amparo is confined only to cases of
extrajudicial killings and enforced disappearances, or to threats thereof. As to
what constitutes "enforced disappearance," the Court in Navia v. Pardico42
enumerated the elements constituting "enforced disappearances" as the term
is statutorily defined in Section 3(g) of Republic Act (R.A.) No. 9851,43 to wit:
(a) that there be an arrest, detention, abduction or any form of deprivation
of liberty;
(b) that it be carried out by, or with the authorization, support or
acquiescence of, the State or a political organization;
(c) that it be followed by the State or political organizations refusal to
acknowledge or give information on the fate or whereabouts of the
person subject of the amparo petition; and
(d) that the intention for such refusal is to remove the subject person from
the protection of the law for a prolonged period of time.44
As clarified in Navia, with the enactment of R.A. No. 9851, the Amparo Rule is
now a procedural law anchored, not only on the constitutional rights to life,
liberty and security, but on a concrete statutory definition as well of what an
enforced or involuntary disappearance is. Therefore, A.M. No. 07-9-12-SCs
reference to enforced disappearances should be construed to mean the
enforced or involuntary disappearance of persons contemplated in Section
3(g) of R.A. No. 9851. Meaning, in probing enforced disappearance cases,
courts should read A.M. No. 07-9-12-SC in relation to R.A. No. 9851.45
Guided by the parameters of R.A. No. 9851, we can readily discern that Kus
circumstance does not come under the statutory definition of an enforced or
involuntary disappearance. Indeed, Ku was arrested by agents of the BI, but
there was no refusal on the part of the BI to acknowledge such arrest nor was
there any refusal to give information on the whereabouts of Ku. Neither can it
be said that the BI had any intention to remove Ku from the protection of the
law for a prolonged time.
109
Although Ku claims that he was arbitrarily arrested and detained by agents of
the BI, that he was not read his rights under the constitution and was not
informed of the reason for hi s arrest, nor provided a copy of any document
leading to his arrest and detention,46 the arresting officers are all consistent in
testifying that, upon Kus arrest, they introduced themselves as agents of the
BI, presented to Ku the Warrant of Deportation, and informed him of his
constitutional rights as well as the expiration of his visa.47
More importantly, there was no attempt on the part of the BI to conceal Ku or
his whereabouts. Within the Bureau, Kus arrest and the fact that he was in
their custody was not obscured as, in fact, these were well-documented as
evidenced by the Return of Warrant of Deportation dated 20 January 201448
and the After-Mission Report dated 17 January 2014.49
More importantly, in the Return of the Writ, petitioner readily disclosed to the
trial court that Ku was in the custody of the BI pursuant to a Warrant of
Deportation and a Summary Deportation Order.50
These documents and pleading show that there was never any intention on
the part of the BI to re move Ku from the protection of the law for a prolonged
time. Besides, when Ku was arrested at 9:30 p.m. on 16 January 2014, and
received at the BI Detention Center at 11:30 p.m. also on 16 January 2014,51
the following day or on 17 January 2014, Kus counsel was immediately able
to file his Entry of Appearance with Motion for Reconsideration before the
BI,52 thereby showing that Kus legal rights were amply guarded and that he
was never removed from the protection of the law.
Section 5 of the Amparo Rule enumerates what an amparo petition should
contain, among which is 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, to wit:

SEC. 5. Contents of Petition. The petition shall be signed and verified and
shall allege the following:
(a) The personal circumstances of the petitioner;
(b) The name and personal circumstances of the respondent responsible for
the threat, act or omission, or, if the name is unknown or uncertain, the
respondent may be described by an assumed appellation;
(c) The right to life, liberty and security of the aggrieved party violated or
threatened with violation by an unlawful act or omission of the respondent,
and how such threat or violation is committed with the attendant
circumstances detailed in supporting affidavits;
(d) The investigation conducted, if any, specifying the names, personal
circumstances, and addresses of the investigating authority or individuals, as
well as the manner and conduct of the investigation, together with any report;
(e) The actions and recourses taken by the petitioner to determine the fate or
whereabouts of the aggrieved party and the identity of the person responsible
for the threat, act or omission; and
(f) The relief prayed for.
The petition may include a general prayer for other just and equitable reliefs.
Ku claims that he fears for his life and feels the serious danger of being
detained for a long period of time without any cause, and that he fears that the
BI will fabricate criminal cases against him to hold him under detention.53
According to Ku, what he seeks to obtain in filing an amparo petition is the
protection it will give to his person against the actions of some government
officials who will likely take advantage of their positions and use the power of
the government at their command. Ku adds that the longer he stays in
confinement the more he is exposed to life-threatening situations and the
further the violation of his guaranteed rights.54
110
The allegations of Ku, though, are specious. It is to be noted that the Amparo
Rule requires the parties to establish their claims by substantial evidence.55
Other than making unfounded claims, however, Ku was not able to present
evidence that he was exposed to "life-threatening situations" while confined at
the BI Detention Center. On the contrary, the records show that he is afforded
visitorial rights and that he has access to his counsel.
Moreover, his primary fear, which prompted him to file the amparo petition,
was that the BI would trump up charges against him so as to justify his
detention. The fact remains, however, that even before his arrest, deportation
charges against him were already duly filed and ruled upon by the BI.
As such, it can readily be discerned that the RTCs grant of the privilege of the
writ of amparo was improper in this case as Ku and his whereabouts were
never concealed, and as the alleged threats to his life, liberty and security
were unfounded and unsubstantiated. It is to be emphasized that the
fundamental function of the writ of amparo is to cause the disclosure of details
concerning the extrajudicial killing or the enforced disappearance of an
aggrieved party. As Ku and his whereabouts were never hidden, there was no
need for the issuance of the privilege of the writ of amparo in the case at bar.
It is to be additionally observed that Ku is guilty of forum shopping. Being the
subject of a Warrant of Deportation and a Summary Deportation Order, Kus
proper recourse is with the BI and, thereafter, with the DOJ and the OP.56
Ku knows this and, in fact, he filed a Motion for Reconsideration before the BI
and an Appeal before the OP. When Ku, however, injudiciously filed a Petition
and a Supplemental Petition for the Issuance of a Writ of Amparo, he
committed forum shopping by seeking a remedy which he had already
solicited from another tribunal.
In Kiani v. BID,57 where petitioner therein file d before the trial court a petition
for a writ of habeas corpus seeking to have the detention of her husband
declared as illegal and to order the latters release, and where her husband
filed before the Bureau of Immigration and Deportation (BID) an omnibus
motion seeking to question the summary deportation order issued against
him, the Court held that petitioner indulged in forum shopping.
The Court clarified that under Section 8, Chapter 3, Title I, Book III of
Executive Order No. 292, the power to deport aliens is vested in the President
of the Philippines, subject to the requirements of due process. The
Immigration Commissioner is vested with authority to deport aliens under
Section 37 of the Philippine Immigration Act of 1940, as amended. Thus, a
party aggrieved by a Deportation Order issued by the BOC is proscribed from
assailing said Order in the RTC even via a petition for a writ of habeas
corpus . Conformably with ruling of the Court in Domingo v. Scheer , such
party may file a motion for the reconsideration thereof before the BOC.58
Citing Balite v. Court of Appeals,59 the Court held that there is forum
shopping when a party seeks to obtain remedies in an action in one court,
which had already been solicited, and in other courts and other proceedings in
other tribunals. While a party may avail of the remedies prescribed by the
Rules of Court, such party is not free to resort to them simultaneously or at
his/her pleasure or caprice. A party should not be allowed to present
simultaneous remedies in two different forums, for it degrades and wreaks
havoc to the rule on orderly procedure. A party must follow the sequence and
hierarchical order in availing of such remedies and not resort to shortcuts in
procedure or playing fast and loose with the said rules. Forum shopping, an
act of malpractice, is considered as trifling with the courts and abusing their
processes. It is improper conduct and degrades the administration of justice.
On a final note, the Court observes that Judge Gallegos knowingly
disregarded the Courts directives as regards this case. The records show that
111
the Courts Resolution dated 4 February 2014, wherein we issued a TRO
enjoining the enforcement of the Orders dated 28 and 29 January 2014 and
intimated the impropriety of the amparo petition, was received by the RTC on
5 February 2014.60 This should have alerted Judge Gallegos to proceed with
caution and restraint in granting the privilege of the writ of amparo. And yet,
despite having knowledge of the Courts pronouncements, Judge Gallegos
proceeded to grant the said privilege.
Also, the records show that the Courts Resolution dated 18 March 2014,
wherein we issued a TRO enjoining the enforcement of the Order dated 18
February 2014 and enjoining the RTC from further proceeding with the case,
was received by the RTC on 20 March 2014 at 9:00 a.m.61
Although by then, Judge Gallegos already issued the Resolution dated 14
March 2014 which granted the privilege of the writ of amparo, his receipt of
the Courts Resolution dated 18 Marc h 2014 should have forewarned him
against releasing Kus passport. That he did so demonstrates his resistance
and unwillingness to follow the Courts edicts.
It is well to note that a resolution of the Supreme Court should not be
construed as a mere request, and should be complied with promptly and
completely.. Such failure to comply accordingly betrays not only a recalcitrant
streak in character, but al so disrespect for the Courts lawful order and
directive.62
Judge Gallegos should know that judges must respect the orders and
decisions of higher tribunals, especially the Supreme Court from which all
other courts take their bearings. A resolution of the Supreme Court is not to be
construed as a mere request nor should it be complied with partially,
inadequately or selectively.63
In the Judiciary, moral integrity is more than a cardinal virtue, it is a necessity.
The exacting standards of conduct demanded from judges are designed to
promote public confidence in the integrity and impartiality of the judiciary.
When the judge himself becomes the transgressor of the law which he is
sworn to apply, he places his office in disrepute, encourages disrespect for the
law and impairs public confidence in the integrity of the judiciary itself.64
WHEREFORE, premises considered, the Court hereby resolves to:
a) GRANT the present petitions, and REVERSE and SET ASIDE the
Resolution dated 14 March 2014 of the Regional Trial Court which granted the
privilege of the Writ of Amparo;
b) DENY the privilege of the Writ of Amparo sought via the Petition for the
Issuance of a Writ of Amparo and the Supplemental Petition for the Issuance
of Writ of Amparo in SP. PROC.No. 14131282 before the Regional Trial of
Manila, Branch 47; and
c) DIRECT the Office of the Court Administrator to file the appropriate
administrative charge/s against Judge Paulino Q. Gallegos in accordance with
the tenor of this Decision, and to forthwith submit to the Court its report and
recommendation thereon.
SO ORDERED.
G.R. No. 205039, October 21, 2015
SPOUSES ROZELLE RAYMOND MARTIN AND CLAUDINE MARGARET
SANTIAGO, Petitioners, v. RAFFY TULFO, BEN TULFO, AND ERWIN
TULFO, Respondents.
DECISION
112
PERLAS-BERNABE, J.:
Assailed in this petition for review on certiorari1 are the Resolutions dated
August 6, 20122 and January 7, 20133 of the Regional Trial Court of Quezon
City4 (RTC) in SP No. Q-12-71275, which (a) dismissed the petition for writ of
amparo filed by petitioners-spouses Rozelle Raymond Martin "Raymart"
(Raymart) and Claudine Margaret Santiago (Claudine; collectively, petitioners)
and (b) dissolved the temporary protection order (TPO) previously issued
therein.
The Facts
At around 11:40 in the morning of May 6, 2012, petitioners arrived at the
Ninoy Aquino International Airport Terminal 3 (NAIA 3) aboard a Cebu Pacific
Airline flight from a vacation with their family and friends. They waited for the
arrival of their baggage but were eventually informed that it was offloaded and
transferred to a different flight. Aggrieved, petitioners lodged a complaint
before the Cebu Pacific complaint desk. As they were complaining, they
noticed a man taking photos of Claudine with his cellular phone. Ray mart
approached the man and asked what he was doing. Suddenly, the man, later
identified as Ramon "Mon" Tulfo (Mon), allegedly punched and kicked
Raymart, forcing the latter to fight back. When Claudine saw the commotion,
she approached Mon and the latter likewise allegedly kicked and pushed her
back against the counter. At that instance, Raymart rushed to defend his wife,
while one Edoardo Benjamin Atilano (Atilano) joined in the brawl. Immediately
thereafter, several airport security personnel came to stop the altercation and
brought them to the Airport Police Department for investigation.5
Days after the incident, respondents Raffy, Ben, and Erwin Tulfo
(respondents), brothers of Mon, aired on their TV program comments and
expletives against petitioners, and threatened that they will retaliate.6 Terrified
by the gravity of the threats hurled, petitioners filed a petition for the issuance
of a writ of amparo against respondents on May 11, 2012 before the RTC.7
On May 23, 2012, Erwin Tulfo filed a Manifestation and Motion to Deny
Issuance of Protection Order and/or Dismissal of the Petition Motu Proprio8
(May 23, 2012 Motion) which was opposed by petitioners for being a
prohibited pleading.9
On May 24, 2012, then Presiding Judge Bayani Vargas (JudgeVargas) issued
a Resolution10 granting a TPO in favor of petitioners and directed
respondents to file their return/answer.11
In his return/answer,12 Ben Tulfo claimed that the statements he uttered did
not involve any actual threat and that he merely expressed his strong
sentiments to defend his brother.13
On June 29, 2012, Judge Vargas submitted the case for resolution but
eventually retired on July 11, 2012. Consequently, Judge Maria Filomena
Singh (Judge Singh) was designated as the Acting Presiding Judge who
assumed office and handled the present case.14
The RTC Ruling
In a Resolution15 dated August 6, 2012, the RTC, through Judge Singh,
dismissed the petition and ordered the dissolution of the TPO.16 It held that
the petition is not a proper subject of a writ of amparo since the rules were
intended to apply solely to cases of extralegal killings and enforced
disappearances, noting that the purpose of the law is to, among others,
ascertain the whereabouts of an aggrieved party, recover evidence related to
the death or disappearance of the person identified in the petition, and
determine the facts surrounding the death or disappearance of a missing
person. Consequently, it held that it did not have the authority to issue said
113
writ in favor of petitioners. In this relation, it explained that while it is true that
the May 23, 2012 Motion was a motion to dismiss and as such, a prohibited
pleading under the rules, it still had the discretion to dismiss the case when in
its own determination the case is not covered by the same rule. It expressed
that the prohibition against motions to dismiss was meant to expedite the
proceedings; thus, in line with the same objective, it has the primary duty to so
declare if it cannot grant the remedy at the outset so as not to waste the time
and resources of the litigants and the courts, both in a moot and academic
exercise.17
Petitioners filed a motion for reconsideration,18 which was, however, denied
for lack of merit in a Resolution19 dated January 7, 2013; hence, this petition.
The Issue Before the Court
The essential issue in this case is whether or not the RTC's dismissal of
petitioners' amparo petition was correct.
Petitioners argue that the issuance of a writ of amparo is not limited to cases
of extrajudicial killings, enforced disappearances, or threats thereof.20 They
submit that they need not undergo the human rights abuses such as
extrajudicial killings or enforced disappearances, as is common to landmark
decisions on military and police abuses, before their right to life, liberty, and
security may be protected by a writ of amparo.21 Further, they insist that the
May 23, 2012 Motion was a prohibited pleading and, hence, should not have
been allowed.22
The Court's Ruling
The petition is bereft of merit.
In the landmark case of Secretary of National Defense v. Manalo (Manalo),23
the Court has already explained that the writ of amparo, under its present
procedural formulation, namely, A.M. No. 07-9-12-SC,24 otherwise known as
"The Rule on the Writ of Amparo," was intended to address and, thus, is
presently confined to cases involving extralegal killings and/or enforced
disappearances, or threats thereof:
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, x x x. (Emphasis
and underscoring supplied)ChanRoblesVirtualawlibrary
Indeed, while amparo (which literally means "protection" in Spanish) has been
regarded as a special remedy provided for the enforcement of constitutional
rights, the parameters of protection are not the same in every jurisdiction. In
Manalo, the origins of amparo were discussed as follows:
The writ of amparo originated in Mexico. "Amparo" literally means "protection"
in Spanish. In 1837, de Tocqueville's Democracy in America became available
in Mexico and stirred great interest. Its description of the practice of judicial
review in the U.S. appealed to many Mexican jurists. One of them, Manuel
Crescencio Rejon, drafted a constitutional provision for his native state,
Yucatan, which granted judges the power to protect all persons in the
enjoyment of their constitutional and legal rights. This idea was incorporated
into the national constitution in 1847, viz:
The federal courts shall protect any inhabitant of the Republic in the exercise
and preservation of those rights granted to him by this Constitution and by
laws enacted pursuant hereto, against attacks by the Legislative and
Executive powers of the federal or state governments, limiting themselves to
granting protection in the specific case in litigation, making no general
declaration concerning the statute or regulation that motivated the violation.
114
Since then, the protection has been an important part of Mexican
constitutionalism. If, after hearing, the judge determines that a constitutional
right of the petitioner is being violated, he orders the official, or the official's
superiors, to cease the violation and to take the necessary measures to
restore the petitioner to the full enjoyment of the right in question. Amparo
thus combines the principles of judicial review derived from the U.S. with the
limitations on judicial power characteristic of the civil law tradition which
prevails in Mexico. It enables courts to enforce the constitution by protecting
individual rights in particular cases, but prevents them from using this power to
make law for the entire nation.
The writ of amparo then spread throughout the Western Hemisphere,
gradually evolving into various forms, in response to the particular needs of
each country. It became, in the words of a justice of the Mexican Federal
Supreme Court, one piece of Mexico's self-attributed "task of conveying to the
world's legal heritage that institution which, as a shield of human dignity, her
own painful history conceived." What began as a protection against acts or
omissions of public authorities in violation of constitutional rights later evolved
for several purposes: (1) amparo libertad for the protection of personal
freedom, equivalent to the habeas corpus writ; (2) amparo contra leyes for the
judicial review of the constitutionality of statutes; (3) amparo casacion for the
judicial review of the constitutionality and legality of a judicial decision; (4)
amparo administrativo for the judicial review of administrative actions; and (5)
amparo agrario for the protection of peasants" rights derived from the agrarian
reform process.
In Latin American countries, except Cuba, the writ of amparo has been
constitutionally adopted to protect against human rights abuses especially
committed in countries under military juntas. In general, these countries
adopted an all-encompassing writ to protect the whole gamut of constitutional
rights, including socio-economic rights. Other countries like Colombia, Chile,
Germany and Spain, however, have chosen to limit the protection of the writ of
amparo only to some constitutional guarantees or fundamental rights.26
In our jurisdiction, the contextual genesis, at least, for the present Amparo
Rule has limited the remedy as a response to extrajudicial killings and
enforced disappearances, or threats thereof. "Extrajudicial killings," according
to case law, are generally characterized as "killings committed without due
process of law, i.e., without legal safeguards or judicial proceedings,"27 while
"enforced disappearances," according to Section 3 (g) of Republic Act No.
9851,28 otherwise known as the "Philippine Act on Crimes Against
International Humanitarian Law, Genocide, and Other Crimes Against
Humanity," "means the arrest, detention, or abduction of persons by, or with
the authorization, support or acquiescence of, a State or a political
organization followed by a refusal to acknowledge that deprivation of freedom
or to give information on the fate or whereabouts of those persons, with the
intention of removing from the protection of the law for a prolonged period of
time." In Navia v. Pardico,29 the Court held that it must be shown and proved
by substantial evidence that the disappearance was carried out by, or with the
authorization, support or acquiescence of, the State or a political organization,
followed by a refusal to acknowledge the same or give information on the fate
or whereabouts of said missing persons, with the intention of removing them
from the protection of the law for a prolonged period of time. Simply put, the
petitioner in an amparo case has the burden of proving by substantial
evidence the indispensable element of government participation.30 Notably,
the same requirement of government participation should also apply to
extralegal killings, considering that the writ of amparo was, according to then
Chief Justice Reynato S. Puno, who headed the Committee on the Revision of
the Rules of Court that drafted A.M. No. 07-9-12-SC, intended to "hold public
authorities, those who took their oath to defend the constitution and enforce
our laws, to a high standard of official conduct and hold them accountable to
our people. [In this light] [t]he sovereign Filipino people should be assured that
if their right[s] to life and liberty are threatened or violated, they will find
115
vindication in our courts of justice."31 Stated differently, the writ of amparo is
an extraordinary remedy that is meant to balance out the government's
incredible power in order to curtail human rights abuses on its end.
Consistent therewith, the delimitation of our current writ of amparo to
extralegal killings and/or enforced disappearances, or threats thereof, is
explicit from Section 1 of A.M. No. 07-9-12-SC, which reads:
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.
While the foregoing rule, as per Section 1 of A.M. No. 07-9-12-SC's first
paragraph, does state that the writ is a remedy to protect the right to life,
liberty, and security of the person desiring to avail of it, the same section's
second paragraph qualifies that the protection of such rights specifically
pertain to extralegal killings and enforced disappearances or threats thereof,
which are more concrete cases that involve protection to the rights to life,
liberty and security. The two paragraphs should indeed be read together in
order to construe the meaning of the provision. Clearly applicable is the
statutory construction rule that "clauses and phrases must not be taken as
detached and isolated expressions, but the whole and every part thereof must
be considered in fixing the meaning of any of its parts in order to produce a
harmonious whole. Every part of the statute [or, in this case, procedural rule]
must be interpreted with reference to the context, i.e., that every part of the
statute must be considered together with other parts of the statute and kept
subservient to the general intent of the whole enactment."32
In this case, it is undisputed that petitioners' amparo petition before the RTC
does not allege any case of extrajudicial killing and/or enforced
disappearance, or any threats thereof, in the senses above-described. Their
petition is merely anchored on a broad invocation of respondents' purported
violation of their right to life and security, carried out by private individuals
without any showing of direct or indirect government participation. Thus, it is
apparent that their amparo petition falls outside the purview of A.M. No. 07-9-
12-SC and, perforce, must fail. Hence, the RTC, through Judge Singh,
properly exercised its discretion to motu proprio dismiss the same under this
principal determination, regardless of the filing of the May 23, 2012 Motion.
The court, indeed, has the discretion to determine whether or not it has the
authority to grant the relief in the first place. And when it is already apparent
that the petition falls beyond the purview of the rule, it has the duty to dismiss
the petition so as not to prejudice any of the parties through prolonged but
futile litigation.
WHEREFORE, the petition is DENIED. The petition for writ of amparo filed by
petitioners-spouses Rozelle Raymond Martin and Claudine Margaret Santiago
before the Regional Trial Court of Quezon City, docketed as SP No. Q-12-
71275, is hereby DISMISSED.
SO ORDERED.
G.R. No. 184467 June 19, 2012
EDGARDO NAVIA,1 RUBEN DIO,2 and ANDREW BUISING, Petitioners,
vs.
VIRGINIA PARDICO, for and in behalf and in representation of BENHUR
V. PARDICO Respondent.
DECISION
116
DEL CASTILLO, J.:
For the protective writ of amparo to issue in enforced disappearance cases,
allegation and proof that the persons subject thereof are missing are not
enough. It must also be shown by the required quantum of proof that their
disappearance was carried out by, "or with the authorization, support or
acquiescence of, [the government] or a political organization, followed by a
refusal to acknowledge [the same or] give information on the fate or
whereabouts of [said missing] persons."3
This petition for review on certiorari4 filed in relation to Section 19 of A.M. No.
07-9-12-SC5 challenges the July 24, 2008 Decision6 of the Regional Trial
Court (RTC), Branch 20, Malolos City which granted the Petition for Writ of
Amparo7 filed by herein respondent against the petitioners.
Factual Antecedents
On March 31, 2008, at around 8:30 p.m., a vehicle of Asian Land Strategies
Corporation8 (Asian Land) arrived at the house of Lolita M. Lapore (Lolita)
located at 7A Lot 9, Block 54, Grand Royale Subdivision, Barangay Lugam,
Malolos City. The arrival of the vehicle awakened Lolitas son, Enrique Lapore
(Bong), and Benhur Pardico (Ben), who were then both staying in her house.
When Lolita went out to investigate, she saw two uniformed guards
disembarking from the vehicle. One of them immediately asked Lolita where
they could find her son Bong. Before Lolita could answer, the guard saw Bong
and told him that he and Ben should go with them to the security office of
Asian Land because a complaint was lodged against them for theft of electric
wires and lamps in the subdivision.9
Shortly thereafter, Bong, Lolita and Ben were in the office of the security
department of Asian Land also located in Grand Royale Subdivision.10 The
supervisor of the security guards, petitioner Edgardo Navia (Navia), also
arrived thereat.
As to what transpired next, the parties respective versions diverge.
Version of the Petitioners
Petitioners alleged that they invited Bong and Ben to their office because they
received a report from a certain Mrs. Emphasis, a resident of Grand Royale
Subdivision, that she saw Bong and Ben removing a lamp from a post in said
subdivision.11 The reported unauthorized taking of the lamp was relayed thru
radio to petitioners Ruben Dio (Dio) and Andrew Buising (Buising), who both
work as security guards at the Asian Land security department. Following their
departments standard operating procedure, Dio and Buising entered the
report in their logbook and proceeded to the house of Mrs. Emphasis. It was
there where Dio and Buising were able to confirm who the suspects were.
They thus repaired to the house of Lolita where Bong and Ben were staying to
invite the two suspects to their office. Bong and Ben voluntarily went with
them.
At the security office, Dio and Buising interviewed Bong and Ben. The
suspects admitted that they took the lamp but clarified that they were only
transferring it to a post nearer to the house of Lolita.12 Soon, Navia arrived
and Buising informed him that the complainant was not keen in participating in
the investigation. Since there was no complainant, Navia ordered the release
of Bong and Ben. Bong then signed a statement to the effect that the guards
released him without inflicting any harm or injury to him.13 His mother Lolita
also signed the logbook below an entry which states that she will never again
harbor or entertain Ben in her house. Thereafter, Lolita and Bong left the
security office.
117
Ben was left behind as Navia was still talking to him about those who might be
involved in the reported loss of electric wires and lamps within the subdivision.
After a brief discussion though, Navia allowed Ben to leave. Ben also affixed
his signature on the logbook to affirm the statements entered by the guards
that he was released unharmed and without any injury.14
Upon Navias instructions, Dio and Buising went back to the house of Lolita to
make her sign the logbook as witness that they indeed released Ben from
their custody. Lolita asked Buising to read aloud that entry in the logbook
where she was being asked to sign, to which Buising obliged. Not contented,
Lolita put on her reading glasses and read the entry in the logbook herself
before affixing her signature therein. After which, the guards left.
Subsequently, petitioners received an invitation15 from the Malolos City Police
Station requesting them to appear thereat on April 17, 2008 relative to the
complaint of Virginia Pardico (Virginia) about her missing husband Ben. In
compliance with the invitation, all three petitioners appeared at the Malolos
City Police Station. However, since Virginia was not present despite having
received the same invitation, the meeting was reset to April 22, 2008.16
On April 22, 2008, Virginia attended the investigation. Petitioners informed her
that they released Ben and that they have no information as to his present
whereabouts.17 They assured Virginia though that they will cooperate and
help in the investigation of her missing husband.18
Version of the Respondent
According to respondent, Bong and Ben were not merely invited. They were
unlawfully arrested, shoved into the Asian Land vehicle and brought to the
security office for investigation. Upon seeing Ben at the security office, Navia
lividly grumbled "Ikaw na naman?"19 and slapped him while he was still
seated. Ben begged for mercy, but his pleas were met with a flurry of punches
coming from Navia hitting him on different parts of his body.20 Navia then took
hold of his gun, looked at Bong, and said, "Wala kang nakita at wala kang
narinig, papatayin ko na si Ben."21
Bong admitted that he and Ben attempted to take the lamp. He explained that
the area where their house is located is very dark and his father had long
been asking the administrator of Grand Royale Subdivision to install a lamp to
illumine their area. But since nothing happened, he took it upon himself to take
a lamp from one of the posts in the subdivision and transfer it to a post near
their house. However, the lamp Bong got was no longer working. Thus, he
reinstalled it on the post from which he took it and no longer pursued his plan.
22
Later on, Lolita was instructed to sign an entry in the guards logbook where
she undertook not to allow Ben to stay in her house anymore.23 Thereafter,
Navia again asked Lolita to sign the logbook. Upon Lolitas inquiry as to why
she had to sign again, Navia explained that they needed proof that they
released her son Bong unharmed but that Ben had to stay as the latters case
will be forwarded to the barangay. Since she has poor eyesight, Lolita
obligingly signed the logbook without reading it and then left with Bong.24 At
that juncture, Ben grabbed Bong and pleaded not to be left alone. However,
since they were afraid of Navia, Lolita and Bong left the security office at once
leaving Ben behind.25
Moments after Lolita and Bong reached their house, Buising arrived and
asked Lolita to sign the logbook again. Lolita asked Buising why she had to
sign again when she already twice signed the logbook at the headquarters.
Buising assured her that what she was about to sign only pertains to Bongs
release. Since it was dark and she has poor eyesight, Lolita took Buising s
word and signed the logbook without, again, reading what was written in it. 26
118
The following morning, Virginia went to the Asian Land security office to visit
her husband Ben, but only to be told that petitioners had already released him
together with Bong the night before. She then looked for Ben, asked around,
and went to the barangay. Since she could not still find her husband, Virginia
reported the matter to the police.
In the course of the investigation on Bens disappearance, it dawned upon
Lolita that petitioners took advantage of her poor eyesight and naivete. They
made her sign the logbook as a witness that they already released Ben when
in truth and in fact she never witnessed his actual release. The last time she
saw Ben was when she left him in petitioners custody at the security office.27
Exasperated with the mysterious disappearance of her husband, Virginia filed
a Petition for Writ of Amparo28 before the RTC of Malolos City. Finding the
petition sufficient in form and substance, the amparo court issued an Order29
dated June 26, 2008 directing, among others, the issuance of a writ of amparo
and the production of the body of Ben before it on June 30, 2008. Thus:
WHEREFORE, conformably with Section 6 of the Supreme Court Resolution
[in] A.M. No. 07-[9]-12-SC, also known as "The Rule On The Writ Of Amparo",
let a writ of amparo be issued, as follows:
(1) ORDERING [petitioners] Edgardo Navia, Ruben Dio and Andrew
Buising of the Asian Land Security Agency to produce before the
Court the body of aggrieved party Benhur Pardico, on Monday, June
30, 2008, at 10:30 a.m.;
(2) ORDERING the holding of a summary hearing of the petition on the
aforementioned date and time, and DIRECTING the [petitioners] to
personally appear thereat;
(3) COMMANDING [petitioners] Edgardo Navia, Ruben Dio and Andrew
Buising to file, within a non-extendible period of seventy-two (72)
 hours from service of the writ, a verified written return with supporting
affidavits which shall, among other things, contain the following:
a) The lawful defenses to show that the [petitioners] did not violate or
threaten with violation the right to life, liberty and security of the
aggrieved party, through any act or omission;
b) The steps or actions taken by the [petitioners] to determine the
fate or whereabouts of the aggrieved party and the person or
persons responsible for the threat, act or omission; and
c) All relevant information in the possession of the [petitioners]
pertaining to the threat, act or omission against the aggrieved
party.
(4) GRANTING, motu proprio, a Temporary Protection Order prohibiting
the [petitioners], or any persons acting for and in their behalf, under
pain of contempt, from threatening, harassing or inflicting any harm to
[respondent], his immediate family and any [member] of his
household.
The Branch Sheriff is directed to immediately serve personally on the
[petitioners], at their address indicated in the petition, copies of the writ as well
as this order, together with copies of the petition and its annexes.30
A Writ of Amparo31 was accordingly issued and served on the petitioners on
June 27, 2008.32 On June 30, 2008, petitioners filed their Compliance33
praying for the denial of the petition for lack of merit.
A summary hearing was thereafter conducted. Petitioners presented the
testimony of Buising, while Virginia submitted the sworn statements34 of Lolita
and Enrique which the two affirmed on the witness stand.
Ruling of the Regional Trial Court
On July 24, 2008, the trial court issued the challenged Decision35 granting
the petition. It disposed as follows:
119
WHEREFORE, the Court hereby grants the privilege of the writ of amparo,
and deems it proper and appropriate, as follows:
(a) To hereby direct the National Bureau of Investigation (NBI) to immediately
conduct a deep and thorough investigation of the [petitioners] Edgardo Navia,
Ruben Dio and Andrew Buising in connection with the circumstances
surrounding the disappearance of [Benhur] Pardico, utilizing in the process, as
part of the investigation, the documents forming part of the records of this
case;
(b) To hereby direct the NBI to extend to the family of [Benhur] Pardico and the
witnesses who testified in this case protection as it may deem necessary to
secure their safety and security; and
(c) To hereby direct the Office of the Provincial Prosecutor of Bulacan to
investigate the circumstances concerning the legality of the arrest of [Benhur]
Pardico by the [petitioners] in this case, utilizing in the process, as part of said
investigation, the pertinent documents and admissions forming part of the
record of this case, and take whatever course/s of action as may be
warranted.
Furnish immediately copies of this decision to the NBI, through the Office of
Director Nestor Mantaring, and to the Provincial Prosecutor of Bulacan.
SO ORDERED.36
Petitioners filed a Motion for Reconsideration37 which was denied by the trial
court in an Order38 dated August 29, 2008.
Hence, this petition raising the following issues for our consideration:
4.1. WHETHER X X X THE HONORABLE TRIAL COURT GRAVELY ERRED
IN RULING THAT RESPONDENT IS ENTITLED TO THE PRIVILEGE OF
THE WRIT OF AMPARO.
4.1.1. WHETHER X X X RESPONDENT WAS ABLE TO ESTABLISH THAT
PETITIONERS HAVE COMMITTED OR ARE COMMITTING ACTS IN
VIOLATION OF HER HUSBANDS RIGHT TO LIFE, LIBERTY, OR
SECURITY.
4.1.2. WHETHER X X X RESPONDENT SUFFICIENTLY ESTABLISHED THE
FACT OF THE DISAPPEARANCE OF BENHUR PARDICO.
4.1.3. WHETHER X X X RESPONDENT WAS ABLE TO ESTABLISH THAT
THE ALLEGED DISAPPEARANCE OF BENHUR PARDICO WAS AT THE
INSTANCE OF HEREIN PETITIONERS.39
Petitioners Arguments
Petitioners essentially assail the sufficiency of the amparo petition. They
contend that the writ of amparo is available only in cases where the factual
and legal bases of the violation or threatened violation of the aggrieved partys
right to life, liberty and security are clear. Petitioners assert that in the case at
bench, Virginia miserably failed to establish all these. First, the petition is
wanting on its face as it failed to state with some degree of specificity the
alleged unlawful act or omission of the petitioners constituting a violation of or
a threat to Bens right to life, liberty and security. And second, it cannot be
deduced from the evidence Virginia adduced that Ben is missing; or that
petitioners had a hand in his alleged disappearance. On the other hand, the
entries in the logbook which bear the signatures of Ben and Lolita are
eloquent proof that petitioners released Ben on March 31, 2008 at around
10:30 p.m. Petitioners thus posit that the trial court erred in issuing the writ
and in holding them responsible for Bens disappearance.
Our Ruling
Virginias Petition for Writ of Amparo is fatally defective and must perforce be
dismissed, but not for the reasons adverted to by the petitioners.
120
A.M. No. 07-9-12-SC or The Rule on the Writ of Amparo was promulgated to
arrest the rampant extralegal killings and enforced disappearances in the
country. Its purpose is to provide an expeditious and effective relief "to any
person whose right to life, liberty and security is violated or threatened with
violation by an unlawful act or omission of a public official or employee, or of a
private individual or entity." 40
Here, Bens right to life, liberty and security is firmly settled as the parties do
not dispute his identity as the same person summoned and questioned at
petitioners security office on the night of March 31, 2008. Such
uncontroverted fact ipso facto established Bens inherent and constitutionally
enshrined right to life, liberty and security. Article 641 of the International
Covenant on Civil and Political Rights42 recognizes every human beings
inherent right to life, while Article 943 thereof ordains that everyone has the
right to liberty and security. The right to life must be protected by law while the
right to liberty and security cannot be impaired except on grounds provided by
and in accordance with law. This overarching command against deprivation of
life, liberty and security without due process of law is also embodied in our
fundamental law.44
The pivotal question now that confronts us is whether Bens disappearance as
alleged in Virginias petition and proved during the summary proceedings
conducted before the court a quo, falls within the ambit of A.M. No. 07-9-12-
SC and relevant laws.
It does not. Section 1 of A.M. No. 07-9-12-SC provides:
SECTION 1. Petition. The petition for a writ of amparo is a remedy available
to any person whose right to life, liberty and security is violated or threatened
with violation by an unlawful act or omission of a public official or employee, or
of a private individual or entity.
The writ shall cover extralegal killings and enforced disappearances or threats
thereof. (Emphasis ours.)
While Section 1 provides A.M. No. 07-9-12-SCs coverage, said Rules does
not, however, define extralegal killings and enforced disappearances. This
omission was intentional as the Committee on Revision of the Rules of Court
which drafted A.M. No. 07-9-12-SC chose to allow it to evolve through time
and jurisprudence and through substantive laws as may be promulgated by
Congress.45 Then, the budding jurisprudence on amparo blossomed in
Razon, Jr. v. Tagitis46 when this Court defined enforced disappearances. The
Court in that case applied the generally accepted principles of international
law and adopted the International Convention for the Protection of All Persons
from Enforced Disappearances definition of enforced disappearances, as "the
arrest, detention, abduction or any other form of deprivation of liberty by
agents of the State or by persons or groups of persons acting with the
authorization, support or acquiescence of the State, followed by a refusal to
acknowledge the deprivation of liberty or by concealment of the fate or
whereabouts of the disappeared person, which place such a person outside
the protection of the law."47
Not long thereafter, another significant development affecting A.M. No. 07-9-
12-SC came about after Congress enacted Republic Act (RA) No. 985148 on
December 11, 2009. Section 3(g) thereof defines enforced or involuntary
disappearances as follows:
(g) "Enforced or involuntary disappearance of persons" means the arrest,
detention, or abduction of persons by, or with the authorization, support or
acquiescence of, a State or a political organization followed by a refusal to
acknowledge that deprivation of freedom or to give information on the fate or
whereabouts of those persons, with the intention of removing from the
protection of the law for a prolonged period of time.
121
Then came Rubrico v. Macapagal-Arroyo49 where Justice Arturo D. Brion
wrote in his Separate Opinion that with the enactment of RA No. 9851, "the
Rule on the Writ of Amparo is now a procedural law anchored, not only on the
constitutional rights to the rights to life, liberty and security, but on a concrete
statutory definition as well of what an enforced or involuntary disappearance
is."50 Therefore, A.M. No. 07-9-12-SCs reference to enforced
disappearances should be construed to mean the enforced or involuntary
disappearance of persons contemplated in Section 3(g) of RA No. 9851.
Meaning, in probing enforced disappearance cases, courts should read A.M.
No. 07-9-12-SC in relation to RA No. 9851.
From the statutory definition of enforced disappearance, thus, we can derive
the following elements that constitute it:
(a) that there be an arrest, detention, abduction or any form of deprivation
of liberty;
(b) that it be carried out by, or with the authorization, support or
acquiescence of, the State or a political organization;
(c) that it be followed by the State or political organizations refusal to
acknowledge or give information on the fate or whereabouts of the
person subject of the amparo petition; and,
(d) that the intention for such refusal is to remove subject person from the
protection of the law for a prolonged period of time.
As thus dissected, it is now clear that for the protective writ of amparo to
issue, allegation and proof that the persons subject thereof are missing are
not enough. It must also be shown and proved by substantial evidence that
the disappearance was carried out by, or with the authorization, support or
acquiescence of, the State or a political organization, followed by a refusal to
acknowledge the same or give information on the fate or whereabouts of said
missing persons, with the intention of removing them from the protection of the
law for a prolonged period of time. Simply put, the petitioner in an amparo
case has the burden of proving by substantial evidence the indispensable
element of government participation.
In the present case, we do not doubt Bongs testimony that Navia had a
menacing attitude towards Ben and that he slapped and inflicted fistic blows
upon him. Given the circumstances and the pugnacious character of Navia at
that time, his threatening statement, "Wala kang nakita at wala kang narinig,
papatayin ko na si Ben," cannot be taken lightly. It unambiguously showed his
predisposition at that time. In addition, there is nothing on record which would
support petitioners assertion that they released Ben on the night of March 31,
2008 unscathed from their wrath. Lolita sufficiently explained how she was
prodded into affixing her signatures in the logbook without reading the entries
therein. And so far, the information petitioners volunteered are sketchy at best,
like the alleged complaint of Mrs. Emphasis who was never identified or
presented in court and whose complaint was never reduced in writing..
But lest it be overlooked, in an amparo petition, proof of disappearance alone
is not enough. It is likewise essential to establish that such disappearance was
carried out with the direct or indirect authorization, support or acquiescence of
the government. This indispensable element of State participation is not
present in this case. The petition does not contain any allegation of State
complicity, and none of the evidence presented tend to show that the
government or any of its agents orchestrated Bens disappearance. In fact,
none of its agents, officials, or employees were impleaded or implicated in
Virginias amparo petition whether as responsible or accountable persons.51
Thus, in the absence of an allegation or proof that the government or its
agents had a hand in Bens disappearance or that they failed to exercise
extraordinary diligence in investigating his case, the Court will definitely not
hold the government or its agents either as responsible or accountable
persons.
122
We are aware that under Section 1 of A.M. No. 07-9-12-SC a writ of amparo
may lie against a private individual or entity. But even if the person sought to
be held accountable or responsible in an amparo petition is a private individual
or entity, still, government involvement in the disappearance remains an
indispensable element. Here, petitioners are mere security guards at Grand
Royale Subdivision in Brgy. Lugam, Malolos City and their principal, the Asian
Land, is a private entity. They do not work for the government and nothing has
been presented that would link or connect them to some covert police, military
or governmental operation. As discussed above, to fall within the ambit of
A.M. No. 07-9-12-SC in relation to RA No. 9851, the disappearance must be
attended by some governmental involvement. This hallmark of State
participation differentiates an enforced disappearance case from an ordinary
case of a missing person.
WHEREFORE, the July 24, 2008 Decision of the Regional Trial Court, Branch
20, Malolos City, is REVERSED and SET ASIDE. The Petition for Writ of
Amparo filed by Virginia Pardico is hereby DISMISSED.
SO ORDERED.
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 Data 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
123
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,17 which 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
124
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.
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?
125
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 petition5
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
126
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.10.
Maintaining that the RTC has no jurisdiction over what they contend is clearly
a labor dispute, petitioners argue that "although ingeniously crafted as a
petition for habeas data, respondent is essentially questioning the transfer of
her place of work by her employer"11 and the terms and conditions of her
employment which arise from an employer-employee relationship over which
the NLRC and the Labor Arbiters under Article 217 of the Labor Code have
jurisdiction.
Petitioners thus maintain that the RTC had no authority to restrain the
implementation of the Memorandum transferring respondents place of work
which is purely a management prerogative, and that OCA-Circular No. 79-
200312 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.
127
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:
Section 1. Habeas Data. The writ of habeas data is a remedy available to
any person whose right to privacy in life, liberty or security is violated or
threatened by an unlawful act or omission of a public official or employee or of
a private individual or entity engaged in the gathering, collecting or storing of
data or information regarding the person, family, home and correspondence of
the aggrieved party. (emphasis and underscoring supplied)
The habeas data rule, in general, is designed to protect by means of judicial
complaint the image, privacy, honor, information, and freedom of information
of an individual. It is meant to provide a forum to enforce 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
Rosario15 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.
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.
WHEREFORE, the petition is GRANTED. The assailed September 22, 2008
Decision of the Bulacan RTC, Branch 7 in SP. Proc. No. 213-M-2008 is hereby
REVERSED and SET ASIDE. SP. Proc. No. 213-M-2008 is, accordingly,
DISMISSED. No costs.
SO ORDERED.
G.R. No. 202666 September 29, 2014
RHONDA AVE S. VIVARES and SPS. MARGARITA and DAVID SUZARA,
Petitioners,
128
vs.
ST. THERESA'S COLLEGE, MYLENE RHEZA T. ESCUDERO, and JOHN
DOES, Respondents.
DECISION
VELASCO, JR., J.:
The individual's desire for privacy is never absolute, since participation in
society is an equally powerful desire. Thus each individual is continually
engaged in a personal adjustment process in which he balances the desire for
privacy with the desire for disclosure and communication of himself to others,
in light of the environmental conditions and social norms set by the society in
which he lives. - Alan Westin, Privacy and Freedom (1967)
The Case
Before Us is a Petition for Review on Certiorari under Rule 45 of the Rules of
Court, in relation to Section 19 of A.M. No. 08-1-16-SC,1 otherwise known as
the "Rule on the Writ of Habeas Data." Petitioners herein assail the July 27,
2012 Decision2 of the Regional Trial Court, Branch 14 in Cebu City (RTC) in
SP. Proc. No. 19251-CEB, which dismissed their habeas data petition.
The Facts
Nenita Julia V. Daluz (Julia) and Julienne Vida Suzara (Julienne), both minors,
were, during the period material, graduating high school students at St.
Theresa's College (STC), Cebu City. Sometime in January 2012, while
changing into their swimsuits for a beach party they were about to attend,
Julia and Julienne, along with several others, took digital pictures of
themselves clad only in their undergarments. These pictures were then
uploaded by Angela Lindsay Tan (Angela) on her Facebook3 profile.

Back at the school, Mylene Rheza T. Escudero (Escudero), a computer
teacher at STCs high school department, learned from her students that
some seniors at STC posted pictures online, depicting themselves from the
waist up, dressed only in brassieres. Escudero then asked her students if they
knew who the girls in the photos are. In turn, they readily identified Julia,
Julienne, and Chloe Lourdes Taboada (Chloe), among others.
Using STCs computers, Escuderos students logged in to their respective
personal Facebook accounts and showed her photos of the identified
students, which include: (a) Julia and Julienne drinking hard liquor and
smoking cigarettes inside a bar; and (b) Julia and Julienne along the streets of
Cebu wearing articles of clothing that show virtually the entirety of their black
brassieres. What is more, Escuderos students claimed that there were times
when access to or the availability of the identified students photos was not
confined to the girls Facebook friends,4 but were, in fact, viewable by any
Facebook user.5
Upon discovery, Escudero reported the matter and, through one of her
students Facebook page, showed the photos to Kristine Rose Tigol (Tigol),
STCs Discipline-in-Charge, for appropriate action. Thereafter, following an
investigation, STC found the identified students to have deported themselves
in a manner proscribed by the schools Student Handbook, to wit:
1. Possession of alcoholic drinks outside the school campus;
2. Engaging in immoral, indecent, obscene or lewd acts;
3. Smoking and drinking alcoholicbeverages in public places;
4. Apparel that exposes the underwear;
5. Clothing that advocates unhealthy behaviour; depicts obscenity;
contains sexually suggestive messages, language or symbols; and 6.
Posing and uploading pictures on the Internet that entail ample body
exposure.
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On March 1, 2012, Julia, Julienne, Angela, and the other students in the
pictures in question, reported, as required, to the office of Sr. Celeste Ma.
Purisima Pe (Sr. Purisima), STCs high school principal and ICM6 Directress.
They claimed that during the meeting, they were castigated and verbally
abused by the STC officials present in the conference, including Assistant
Principal Mussolini S. Yap (Yap), Roswinda Jumiller, and Tigol. What is more,
Sr. Purisima informed their parents the following day that, as part of their
penalty, they are barred from joining the commencement exercises scheduled
on March 30, 2012.
A week before graduation, or on March 23, 2012, Angelas mother, Dr.
Armenia M. Tan (Tan), filed a Petition for Injunction and Damages before the
RTC of Cebu City against STC, et al., docketed as Civil Case No. CEB-
38594.7 In it, Tan prayed that defendants therein be enjoined from
implementing the sanction that precluded Angela from joining the
commencement exercises.
On March 25, 2012,petitioner Rhonda Ave Vivares (Vivares), the mother of
Julia, joined the fray as an intervenor. On March 28, 2012, defendants inCivil
Case No. CEB-38594 filed their memorandum, containing printed copies of
the photographs in issue as annexes. That same day, the RTC issued a
temporary restraining order (TRO) allowing the students to attend the
graduation ceremony, to which STC filed a motion for reconsideration.
Despite the issuance of the TRO, STC, nevertheless, barred the sanctioned
students from participating in the graduation rites, arguing that, on the date of
the commencement exercises, its adverted motion for reconsideration on the
issuance of the TRO remained unresolved.
Thereafter, petitioners filed before the RTC a Petition for the Issuance of a Writ
of Habeas Data, docketed as SP. Proc. No. 19251-CEB8 on the basis of the
following considerations:
1. The photos of their children in their undergarments (e.g., bra) were
taken for posterity before they changed into their swimsuits on the
occasion of a birthday beach party;
2. The privacy setting of their childrens Facebook accounts was set at
"Friends Only." They, thus, have a reasonable expectation of privacy
which must be respected.
3. Respondents, being involved in the field of education, knew or ought
to have known of laws that safeguard the right to privacy. Corollarily,
respondents knew or ought to have known that the girls, whose
privacy has been invaded, are the victims in this case, and not the
offenders. Worse, after viewing the photos, the minors were called
"immoral" and were punished outright;
4. The photos accessed belong to the girls and, thus, cannot be used
and reproduced without their consent. Escudero, however, violated
their rights by saving digital copies of the photos and by subsequently
showing them to STCs officials. Thus, the Facebook accounts of
petitioners children were intruded upon;
5. The intrusion into the Facebook accounts, as well as the copying of
information, data, and digital images happened at STCs Computer
Laboratory; and
6. All the data and digital images that were extracted were boldly
broadcasted by respondents through their memorandum submitted to
the RTC in connection with Civil Case No. CEB-38594. To petitioners,
the interplay of the foregoing constitutes an invasion of their childrens
privacy and, thus, prayed that: (a) a writ of habeas databe issued; (b)
respondents be ordered to surrender and deposit with the court all
soft and printed copies of the subjectdata before or at the preliminary
hearing; and (c) after trial, judgment be rendered declaring all
information, data, and digital images accessed, saved or stored,
reproduced, spread and used, to have been illegally obtained
inviolation of the childrens right to privacy.
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Finding the petition sufficient in form and substance, the RTC, through an
Order dated July 5, 2012, issued the writ of habeas data. Through the same
Order, herein respondents were directed to file their verified written return,
together with the supporting affidavits, within five (5) working days from
service of the writ.
In time, respondents complied with the RTCs directive and filed their verified
written return, laying down the following grounds for the denial of the petition,
viz: (a) petitioners are not the proper parties to file the petition; (b) petitioners
are engaging in forum shopping; (c) the instant case is not one where a writ of
habeas data may issue;and (d) there can be no violation of their right to
privacy as there is no reasonable expectation of privacy on Facebook.
Ruling of the Regional Trial Court
On July 27, 2012, the RTC rendered a Decision dismissing the petition for
habeas data. The dispositive portion of the Decision pertinently states:
WHEREFORE, in view of the foregoing premises, the Petition is hereby
DISMISSED.
The parties and media must observe the aforestated confidentiality.
xxxx
SO ORDERED.9
To the trial court, petitioners failed to prove the existence of an actual or
threatened violation of the minors right to privacy, one of the preconditions for
the issuance of the writ of habeas data. Moreover, the court a quo held that
the photos, having been uploaded on Facebook without restrictions as to who
may view them, lost their privacy in some way. Besides, the RTC noted, STC
gathered the photographs through legal means and for a legal purpose, that
is, the implementation of the schools policies and rules on discipline.
Not satisfied with the outcome, petitioners now come before this Court
pursuant to Section 19 of the Rule on Habeas Data.10
The Issues
The main issue to be threshed out in this case is whether or not a writ of
habeas data should be issued given the factual milieu. Crucial in resolving the
controversy, however, is the pivotal point of whether or not there was indeed
an actual or threatened violation of the right to privacy in the life, liberty, or
security of the minors involved in this case.
Our Ruling
We find no merit in the petition.
Procedural issues concerning the availability of the Writ of Habeas Data
The writ of habeas datais 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.11 It is
an independent and summary remedy designed to protect the image, privacy,
honor, information, and freedom of information of an individual, and to provide
a forum to enforce ones right to the truth and to informational privacy. It seeks
to protect a persons right to control information regarding oneself, particularly
in instances in which such information is being collected through unlawful
means in order to achieve unlawful ends.12
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In developing the writ of habeas data, the Court aimed to protect an
individuals right to informational privacy, among others. A comparative law
scholar has, in fact, defined habeas data as "a procedure designed to
safeguard individual freedom from abuse in the information age."13 The writ,
however, will not issue on the basis merely of an alleged unauthorized access
to information about a person. Availment of the writ requires the existence of a
nexus between the right to privacy on the one hand, and the right to life, liberty
or security on the other.14 Thus, the existence of a persons right to
informational privacy and a 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 are indispensable before the privilege of the writ may be
extended.15
Without an actionable entitlement in the first place to the right to informational
privacy, a habeas data petition will not prosper. Viewed from the perspective of
the case at bar this requisite begs this question: given the nature of an online
social network (OSN)
(1) that it facilitates and promotes real-time interaction among millions,
if not billions, of users, sans the spatial barriers,16 bridging the gap
created by physical space; and
(2) that any information uploaded in OSNs leavesan indelible trace in
the providers databases, which are outside the control of the end-
usersis there a right to informational privacy in OSN activities of its
users?
Before addressing this point, We must first resolve the procedural issues in
this case.
a. The writ of habeas data is not only confined to cases of extralegal
killings and enforced disappearances
Contrary to respondents submission, the Writ of Habeas Data was not
enacted solely for the purpose of complementing the Writ of Amparo in cases
of extralegal killings and enforced disappearances.

Section 2 of the Rule on the Writ of Habeas Data provides:
Sec. 2. Who May File. Any aggrieved party may file a petition for the writ of
habeas data. However, in cases of extralegal killings and enforced
disappearances, the petition may be filed by:
(a) Any member of the immediate family of the aggrieved party, namely: the
spouse, children and parents; or
(b) Any ascendant, descendant or collateral relative of the aggrieved party
within the fourth civil degreeof consanguinity or affinity, in default of those
mentioned in the preceding paragraph. (emphasis supplied)
Had the framers of the Rule intended to narrow the operation of the writ only
to cases of extralegal killings or enforced disappearances, the above
underscored portion of Section 2, reflecting a variance of habeas data
situations, would not have been made.
Habeas data, to stress, was designed "to safeguard individual freedom from
abuse in the information age."17 As such, it is erroneous to limit its
applicability to extralegal killings and enforced disappearances only. In fact,
the annotations to the Rule prepared by the Committee on the Revision of the
Rules of Court, after explaining that the Writ of Habeas Data complements the
Writ of Amparo, pointed out that:
The writ of habeas data, however, can be availed of as an independent
remedy to enforce ones right to privacy, more specifically the right to
informational privacy. The remedies against the violation of such right can
include the updating, rectification, suppression or destruction of the database
or information or files in possession or in control of respondents.18 (emphasis
Ours) Clearly then, the privilege of the Writ of Habeas Data may also be
availed of in cases outside of extralegal killings and enforced disappearances.
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b. Meaning of "engaged" in the gathering, collecting or storing of data or
information
Respondents contention that the habeas data writ may not issue against STC,
it not being an entity engaged in the gathering, collecting or storing of data or
information regarding the person, family, home and correspondence of the
aggrieved party, while valid to a point, is, nonetheless, erroneous.
To be sure, nothing in the Rule would suggest that the habeas data protection
shall be available only against abuses of a person or entity engaged in the
businessof gathering, storing, and collecting of data. As provided under
Section 1 of the Rule:
Section 1. Habeas Data. The writ of habeas datais 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 Ours)
The provision, when taken in its proper context, as a whole, irresistibly
conveys the idea that habeas data is a protection against unlawful acts or
omissions of public officials and of private individuals or entities engaged in
gathering, collecting, or storing data about the aggrieved party and his or her
correspondences, or about his or her family. Such individual or entity need not
be in the business of collecting or storing data.
To "engage" in something is different from undertaking a business endeavour.
To "engage" means "to do or take part in something."19 It does not
necessarily mean that the activity must be done in pursuit of a business. What
matters is that the person or entity must be gathering, collecting or
storing said data or information about the aggrieved party or his or her
family. Whether such undertaking carries the element of regularity, as when
one pursues a business, and is in the nature of a personal endeavour, for any
other reason or even for no reason at all, is immaterial and such will not
prevent the writ from getting to said person or entity.
To agree with respondents above argument, would mean unduly limiting the
reach of the writ to a very small group, i.e., private persons and entities whose
business is data gathering and storage, and in the process decreasing the
effectiveness of the writ asan instrument designed to protect a right which is
easily violated in view of rapid advancements in the information and
communications technologya right which a great majority of the users of
technology themselves are not capable of protecting.
Having resolved the procedural aspect of the case, We now proceed to the
core of the controversy.
The right to informational privacy on Facebook
a. The Right to Informational Privacy
The concept of privacyhas, through time, greatly evolved, with technological
advancements having an influential part therein. This evolution was briefly
recounted in former Chief Justice Reynato S. Punos speech, The Common
Right to Privacy,20 where he explained the three strands of the right to
privacy, viz: (1) locational or situational privacy;21 (2) informational privacy;
and (3) decisional privacy.22 Of the three, what is relevant to the case at bar
is the right to informational privacyusually defined as the right of individuals
to control information about themselves.23
With the availability of numerous avenues for information gathering and data
sharing nowadays, not to mention each systems inherent vulnerability to
attacks and intrusions, there is more reason that every individuals right to
control said flow of information should be protected and that each individual
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should have at least a reasonable expectation of privacy in cyberspace.
Several commentators regarding privacy and social networking sites, however,
all agree that given the millions of OSN users, "[i]n this [Social Networking]
environment, privacy is no longer grounded in reasonable expectations, but
rather in some theoretical protocol better known as wishful thinking."24
It is due to this notion that the Court saw the pressing need to provide for
judicial remedies that would allow a summary hearing of the unlawful use of
data or information and to remedy possible violations of the right to privacy.25
In the same vein, the South African High Court, in its Decision in the landmark
case, H v. W,26 promulgated on January30, 2013, recognized that "[t]he law
has to take into account the changing realities not only technologically but also
socially or else it will lose credibility in the eyes of the people. x x x It is
imperative that the courts respond appropriately to changing times, acting
cautiously and with wisdom." Consistent with this, the Court, by developing
what may be viewed as the Philippine model of the writ of habeas data, in
effect, recognized that, generally speaking, having an expectation of
informational privacy is not necessarily incompatible with engaging in
cyberspace activities, including those that occur in OSNs.
The question now though is up to what extent is the right to privacy protected
in OSNs? Bear in mind that informational privacy involves personal
information. At the same time, the very purpose of OSNs is socializing
sharing a myriad of information,27 some of which would have otherwise
remained personal.
b. Facebooks Privacy Tools: a response to the clamor for privacy in OSN
activities
Briefly, the purpose of an OSN is precisely to give users the ability to interact
and to stay connected to other members of the same or different social media
platform through the sharing of statuses, photos, videos, among others,
depending on the services provided by the site. It is akin to having a room
filled with millions of personal bulletin boards or "walls," the contents of which
are under the control of each and every user. In his or her bulletin board, a
user/owner can post anythingfrom text, to pictures, to music and videos
access to which would depend on whether he or she allows one, some or all
of the other users to see his or her posts. Since gaining popularity, the OSN
phenomenon has paved the way to the creation of various social networking
sites, including the one involved in the case at bar, www.facebook.com
(Facebook), which, according to its developers, people use "to stay connected
with friends and family, to discover whats going on in the world, and to share
and express what matters to them."28
Facebook connections are established through the process of "friending"
another user. By sending a "friend request," the user invites another to
connect their accounts so that they can view any and all "Public" and "Friends
Only" posts of the other. Once the request is accepted, the link is established
and both users are permitted to view the other users "Public" or "Friends
Only" posts, among others. "Friending," therefore, allows the user to form or
maintain one-to-one relationships with other users, whereby the user gives his
or her "Facebook friend" access to his or her profile and shares certain
information to the latter.29
To address concerns about privacy,30 but without defeating its purpose,
Facebook was armed with different privacy tools designed to regulate the
accessibility of a users profile31 as well as information uploaded by the user.
In H v. W,32 the South Gauteng High Court recognized this ability of the users
to "customize their privacy settings," but did so with this caveat: "Facebook
states in its policies that, although it makes every effort to protect a users
information, these privacy settings are not foolproof."33
For instance, a Facebook user can regulate the visibility and accessibility of
digital images(photos), posted on his or her personal bulletin or "wall," except
134
for the users profile picture and ID, by selecting his or her desired privacy
setting:
(a) Public - the default setting; every Facebook user can view the photo;
(b) Friends of Friends - only the users Facebook friends and their friends
can view the photo;
(c) Friends - only the users Facebook friends can view the photo;
(d) Custom - the photo is made visible only to particular friends and/or
networks of the Facebook user; and
(e) Only Me - the digital image can be viewed only by the user.
The foregoing are privacy tools, available to Facebook users, designed to set
up barriers to broaden or limit the visibility of his or her specific profile content,
statuses, and photos, among others, from another users point of view. In
other words, Facebook extends its users an avenue to make the availability of
their Facebook activities reflect their choice as to "when and to what extent to
disclose facts about [themselves] and to put others in the position of
receiving such confidences."34 Ideally, the selected setting will be based on
ones desire to interact with others, coupled with the opposing need to
withhold certain information as well as to regulate the spreading of his or her
personal information. Needless to say, as the privacy setting becomes more
limiting, fewer Facebook users can view that users particular post.
STC did not violate petitioners daughters right to privacy
Without these privacy settings, respondents contention that there is no
reasonable expectation of privacy in Facebook would, in context, be correct.
However, such is not the case. It is through the availability of said privacy tools
that many OSN users are said to have a subjective expectation that only those
to whom they grant access to their profile will view the information they post or
upload thereto.35
This, however, does not mean that any Facebook user automatically has a
protected expectation of privacy in all of his or her Facebook activities.

Before one can have an expectation of privacy in his or her OSN activity, it is
first necessary that said user, in this case the children of petitioners,manifest
the intention to keep certain posts private, through the employment of
measures to prevent access thereto or to limit its visibility.36 And this intention
can materialize in cyberspace through the utilization of the OSNs privacy
tools. In other words, utilization of these privacy tools is the manifestation,in
cyber world, of the users invocation of his or her right to informational
privacy.37
Therefore, a Facebook user who opts to make use of a privacy tool to grant or
deny access to his or her post or profile detail should not be denied the
informational privacy right which necessarily accompanies said choice.38
Otherwise, using these privacy tools would be a feckless exercise, such that if,
for instance, a user uploads a photo or any personal information to his or her
Facebook page and sets its privacy level at "Only Me" or a custom list so that
only the user or a chosen few can view it, said photo would still be deemed
public by the courts as if the user never chose to limit the photos visibility and
accessibility. Such position, if adopted, will not only strip these privacy tools of
their function but it would also disregard the very intention of the user to keep
said photo or information within the confines of his or her private space.
We must now determine the extent that the images in question were visible to
other Facebook users and whether the disclosure was confidential in nature.
In other words, did the minors limit the disclosure of the photos such that the
images were kept within their zones of privacy? This determination is
necessary in resolving the issue of whether the minors carved out a zone of
privacy when the photos were uploaded to Facebook so that the images will
be protected against unauthorized access and disclosure.
Petitioners, in support of their thesis about their childrens privacy right being
violated, insist that Escudero intruded upon their childrens Facebook
135
accounts, downloaded copies of the pictures and showed said photos to Tigol.
To them, this was a breach of the minors privacy since their Facebook
accounts, allegedly, were under "very private" or "Only Friends" setting
safeguarded with a password.39 Ultimately, they posit that their childrens
disclosure was only limited since their profiles were not open to public viewing.
Therefore, according to them, people who are not their Facebook friends,
including respondents, are barred from accessing said post without their
knowledge and consent. As petitioners children testified, it was Angela who
uploaded the subject photos which were only viewable by the five of them,40
although who these five are do not appear on the records.
Escudero, on the other hand, stated in her affidavit41 that "my students
showed me some pictures of girls cladin brassieres. This student [sic] of mine
informed me that these are senior high school [students] of STC, who are their
friends in [F]acebook. x x x They then said [that] there are still many other
photos posted on the Facebook accounts of these girls. At the computer lab,
these students then logged into their Facebook account [sic], and accessed
from there the various photographs x x x. They even told me that there had
been times when these photos were public i.e., not confined to their friends in
Facebook."
In this regard, We cannot give much weight to the minors testimonies for one
key reason: failure to question the students act of showing the photos to Tigol
disproves their allegation that the photos were viewable only by the five of
them. Without any evidence to corroborate their statement that the images
were visible only to the five of them, and without their challenging Escuderos
claim that the other students were able to view the photos, their statements
are, at best, self-serving, thus deserving scant consideration.42
It is well to note that not one of petitioners disputed Escuderos sworn account
that her students, who are the minors Facebook "friends," showed her the
photos using their own Facebook accounts. This only goes to show that no
special means to be able to view the allegedly private posts were ever
resorted to by Escuderos students,43 and that it is reasonable to assume,
therefore, that the photos were, in reality, viewable either by (1) their Facebook
friends, or (2) by the public at large.
Considering that the default setting for Facebook posts is "Public," it can be
surmised that the photographs in question were viewable to everyone on
Facebook, absent any proof that petitioners children positively limited the
disclosure of the photograph. If such were the case, they cannot invoke the
protection attached to the right to informational privacy. The ensuing
pronouncement in US v. Gines-Perez44 is most instructive:
[A] person who places a photograph on the Internet precisely intends to
forsake and renounce all privacy rights to such imagery, particularly under
circumstances suchas here, where the Defendant did not employ protective
measures or devices that would have controlled access to the Web page or
the photograph itself.45
Also, United States v. Maxwell46 held that "[t]he more open the method of
transmission is, the less privacy one can reasonably expect. Messages sent to
the public at large inthe chat room or e-mail that is forwarded from
correspondent to correspondent loses any semblance of privacy."
That the photos are viewable by "friends only" does not necessarily bolster the
petitioners contention. In this regard, the cyber community is agreed that the
digital images under this setting still remain to be outside the confines of the
zones of privacy in view of the following:
(1) Facebook "allows the world to be more open and connected by giving
its users the tools to interact and share in any conceivable way;"47
(2) A good number of Facebook users "befriend" other users who are
total strangers;48
(3) The sheer number of "Friends" one user has, usually by the hundreds;
and
136
(4) A users Facebook friend can "share"49 the formers post, or "tag"50
others who are not Facebook friends with the former, despite its being
visible only tohis or her own Facebook friends.
It is well to emphasize at this point that setting a posts or profile details
privacy to "Friends" is no assurance that it can no longer be viewed by another
user who is not Facebook friends with the source of the content. The users
own Facebook friend can share said content or tag his or her own Facebook
friend thereto, regardless of whether the user tagged by the latter is Facebook
friends or not with the former. Also, when the post is shared or when a person
is tagged, the respective Facebook friends of the person who shared the post
or who was tagged can view the post, the privacy setting of which was set at
"Friends."
To illustrate, suppose A has 100 Facebook friends and B has 200. A and B
are not Facebook friends. If C, As Facebook friend, tags B in As post, which
is set at "Friends," the initial audience of 100 (As own Facebook friends) is
dramatically increased to 300 (As 100 friends plus Bs 200 friends or the
public, depending upon Bs privacy setting). As a result, the audience who can
view the post is effectively expandedand to a very large extent.
This, along with its other features and uses, is confirmation of Facebooks
proclivity towards user interaction and socialization rather than seclusion or
privacy, as it encourages broadcasting of individual user posts. In fact, it has
been said that OSNs have facilitated their users self-tribute, thereby resulting
into the "democratization of fame."51 Thus, it is suggested, that a profile, or
even a post, with visibility set at "Friends Only" cannot easily, more so
automatically, be said to be "very private," contrary to petitioners argument.
As applied, even assuming that the photos in issue are visible only to the
sanctioned students Facebook friends, respondent STC can hardly be taken
to task for the perceived privacy invasion since it was the minors Facebook
friends who showed the pictures to Tigol. Respondents were mere recipients
of what were posted. They did not resort to any unlawful means of gathering
the information as it was voluntarily given to them by persons who had
legitimate access to the said posts. Clearly, the fault, if any, lies with the
friends of the minors. Curiously enough, however, neither the minors nor their
parents imputed any violation of privacy against the students who showed the
images to Escudero.
Furthermore, petitioners failed to prove their contention that respondents
reproduced and broadcasted the photographs. In fact, what petitioners
attributed to respondents as an act of offensive disclosure was no more than
the actuality that respondents appended said photographs in their
memorandum submitted to the trial court in connection with Civil Case No.
CEB-38594.52 These are not tantamount to a violation of the minors
informational privacy rights, contrary to petitioners assertion.
In sum, there can be no quibbling that the images in question, or to be more
precise, the photos of minor students scantily clad, are personal in nature,
likely to affect, if indiscriminately circulated, the reputation of the minors
enrolled in a conservative institution. However, the records are bereft of any
evidence, other than bare assertions that they utilized Facebooks privacy
settings to make the photos visible only to them or to a select few. Without
proof that they placed the photographs subject of this case within the ambit of
their protected zone of privacy, they cannot now insist that they have an
expectation of privacy with respect to the photographs in question.
Had it been proved that the access to the pictures posted were limited to the
original uploader, through the "Me Only" privacy setting, or that the users
contact list has been screened to limit access to a select few, through the
"Custom" setting, the result may have been different, for in such instances, the
intention to limit access to the particular post, instead of being broadcasted to
the public at large or all the users friends en masse, becomes more manifest
and palpable.
137
On Cyber Responsibility
It has been said that "the best filter is the one between your childrens
ears."53 This means that self-regulation on the part of OSN users and internet
consumers in general is the best means of avoiding privacy rights
violations.54
As a cyberspace community member, one has to be proactive in protecting his
or her own privacy.55 It is in this regard that many OSN users, especially
minors, fail. Responsible social networking or observance of the
"netiquettes"56 on the part of teenagers has been the concern of many due to
the widespread notion that teenagers can sometimes go too far since they
generally lack the people skills or general wisdom to conduct themselves
sensibly in a public forum.57
Respondent STC is clearly aware of this and incorporating lessons on good
cyber citizenship in its curriculum to educate its students on proper online
conduct may be most timely. Too, it is not only STC but a number of schools
and organizations have already deemed it important to include digital literacy
and good cyber citizenship in their respective programs and curricula in view
of the risks that the children are exposed to every time they participate in
online activities.58 Furthermore, considering the complexity of the cyber world
and its pervasiveness, as well as the dangers that these children are wittingly
or unwittingly exposed to in view of their unsupervised activities in
cyberspace, the participation of the parents in disciplining and educating their
children about being a good digital citizen is encouraged by these institutions
and organizations. In fact, it is believed that "to limit such risks, theres no
substitute for parental involvement and supervision."59
As such, STC cannot be faulted for being steadfast in its duty of teaching its
students to be responsible in their dealings and activities in cyberspace,
particularly in OSNs, when it enforced the disciplinary actions specified in the
Student Handbook, absent a showing that, in the process, it violated the
students rights.
OSN users should be aware of the risks that they expose themselves to
whenever they engage in cyberspace activities.. Accordingly, they should be
cautious enough to control their privacy and to exercise sound discretion
regarding how much information about themselves they are willing to give up.
Internet consumers ought to be aware that, by entering or uploading any kind
of data or information online, they are automatically and inevitably making it
permanently available online, the perpetuation of which is outside the ambit of
their control. Furthermore, and more importantly, information, otherwise
private, voluntarily surrendered by them can be opened, read, or copied by
third parties who may or may not be allowed access to such.
It is, thus, incumbent upon internet users to exercise due diligence in their
online dealings and activities and must not be negligent in protecting their
rights. Equity serves the vigilant. Demanding relief from the courts, as here,
requires that claimants themselves take utmost care in safeguarding a right
which they allege to have been violated. These are indispensable. We cannot
afford protection to persons if they themselves did nothing to place the matter
within the confines of their private zone. OSN users must be mindful enough
to learn the use of privacy tools, to use them if they desire to keep the
information private, and to keep track of changes in the available privacy
settings, such as those of Facebook, especially because Facebook is
notorious for changing these settings and the site's layout often.
In finding that respondent STC and its officials did not violate the minors'
privacy rights, We find no cogent reason to disturb the findings and case
disposition of the court a quo.
In light of the foregoing, the Court need not belabor the other assigned errors.
138
WHEREFORE, premises considered, the petition is hereby DENIED. The
Decision dated July 27, 2012 of the Regional Trial Court, Branch 14 in Cebu
City in SP. Proc. No. 19251-CEB is hereby AFFIRMED.
No pronouncement as to costs.
SO ORDERED.
G.R. No. 193636 July 24, 2012
MARYNETTE R. GAMBOA, Petitioner,
vs.
P/SSUPT. MARLOU C. CHAN, in his capacity as the PNP-Provincial
Director of Ilocos Norte, and P/SUPT. WILLIAM 0. FANG, in his capacity
as Chief, Intelligence Division, PNP Provincial Office, Ilocos Norte,
Respondents.
DECISION
SERENO, J.:
Before this Court is an Appeal by Certiorari (Under Rule 45 of the Rules of
Court) filed pursuant to Rule 191 of the Rule on the Writ of Habeas Data,2
seeking a review of the 9 September 2010 Decision in Special Proc. No.
14979 of the Regional Trial Court, First Judicial Region, Laoag City, Branch 13
(RTC Br. 13).3 The questioned Decision denied petitioner the privilege of the
writ of habeas data.4
At the time the present Petition was filed, petitioner Marynette R. Gamboa
(Gamboa) was the Mayor of Dingras, Ilocos Norte.5 Meanwhile, respondent
Police Senior Superintendent (P/SSUPT.) Marlou C. Chan was the Officer-in-
Charge, and respondent Police Superintendent (P/SUPT.) William O. Fang
was the Chief of the Provincial Investigation and Detective Management
Branch, both of the Ilocos Norte Police Provincial Office.6
On 8 December 2009, former President Gloria Macapagal-Arroyo issued
Administrative Order No. 275 (A.O. 275), "Creating an Independent
Commission to Address the Alleged Existence of Private Armies in the
Country."7 The body, which was later on referred to as the Zearosa
Commission,8 was formed to investigate the existence of private army groups
(PAGs) in the country with a view to eliminating them before the 10 May 2010
elections and dismantling them permanently in the future.9 Upon the
conclusion of its investigation, the Zearosa Commission released and
submitted to the Office of the President a confidential report entitled "A
Journey Towards H.O.P.E.: The Independent Commission Against Private
Armies Report to the President" (the Report).10
Gamboa alleged that the Philippine National Police in Ilocos Norte (PNP
Ilocos Norte) conducted a series of surveillance operations against her and
her aides,11 and classified her as someone who keeps a PAG.12 Purportedly
without the benefit of data verification, PNPIlocos Norte forwarded the
information gathered on her to the Zearosa Commission,13 thereby causing
her inclusion in the Reports enumeration of individuals maintaining PAGs.14
More specifically, she pointed out the following items reflected therein:
(a) The Report cited the PNP as its source for the portion regarding the
status of PAGs in the Philippines.15
(b) The Report stated that "x x x the PNP organized one dedicated
Special Task Group (STG) for each private armed group (PAG) to
monitor and counteract their activities."16
(c) Attached as Appendix "F" of the Report is a tabulation generated by
the PNP and captioned as "Status of PAGs Monitoring by STGs as of
April 19, 2010," which classifies PAGs in the country according to
region, indicates their identity, and lists the prominent personalities
139
with whom these groups are associated.17 The first entry in the table
names a PAG, known as the Gamboa Group, linked to herein
petitioner Gamboa.18
(d) Statistics on the status of PAGs were based on data from the PNP, to
wit:
The resolutions were the subject of a national press conference held in
Malacaang on March 24, 2010 at which time, the Commission was also
asked to comment on the PNP report that out of one hundred seventeen (117)
partisan armed groups validated, twenty-four (24) had been dismantled with
sixty-seven (67) members apprehended and more than eighty-six (86)
firearms confiscated.
Commissioner Herman Basbao qualified that said statistics were based on
PNP data but that the more significant fact from his report is that the PNP has
been vigilant in monitoring the activities of these armed groups and this
vigilance is largely due to the existence of the Commission which has
continued communicating with the Armed Forces of the Philippines (AFP) and
PNP personnel in the field to constantly provide data on the activities of the
PAGs. Commissioner Basbao stressed that the Commissions efforts have
preempted the formation of the PAGs because now everyone is aware that
there is a body monitoring the PAGs movement through the PNP.
Commissioner Lieutenant General Edilberto Pardo Adan also clarified that the
PAGs are being destabilized so that their ability to threaten and sow fear
during the election has been considerably weakened.19
(e) The Report briefly touched upon the validation system of the PNP:
Also, in order to provide the Commission with accurate data which is truly
reflective of the situation in the field, the PNP complied with the Commissions
recommendation that they revise their validation system to include those PAGs
previously listed as dormant. In the most recent briefing provided by the PNP
on April 26, 2010, there are one hundred seven (107) existing PAGs. Of these
groups, the PNP reported that seven (7) PAGs have been reorganized.20
On 6 and 7 July 2010, ABS-CBN broadcasted on its evening news program
the portion of the Report naming Gamboa as one of the politicians alleged to
be maintaining a PAG.21 Gamboa averred that her association with a PAG
also appeared on print media.22 Thus, she was publicly tagged as someone
who maintains a PAG on the basis of the unverified information that the PNP-
Ilocos Norte gathered and forwarded to the Zearosa Commission.23 As a
result, she claimed that her malicious or reckless inclusion in the enumeration
of personalities maintaining a PAG as published in the Report also made her,
as well as her supporters and other people identified with her, susceptible to
harassment and police surveillance operations.24
Contending that her right to privacy was violated and her reputation maligned
and destroyed, Gamboa filed a Petition dated 9 July 2010 for the issuance of a
writ of habeas data against respondents in their capacities as officials of the
PNP-Ilocos Norte.25 In her Petition, she prayed for the following reliefs:
(a) destruction of the unverified reports from the PNP-Ilocos Norte
database;
(b) withdrawal of all information forwarded to higher PNP officials;
(c) rectification of the damage done to her honor;
(d) ordering respondents to refrain from forwarding unverified reports
against her; and
(e) restraining respondents from making baseless reports.26
The case was docketed as Special Proc. No. 14979 and was raffled to RTC
Br. 13, which issued the corresponding writ on 14 July 2010 after finding
the Petition meritorious on its face.27 Thus, the trial court
(a) instructed respondents to submit all information and reports forwarded to
and used by the Zearosa Commission as basis to include her in the list of
persons maintaining PAGs;
(b) directed respondents, and any person acting on their behalf, to cease and
desist from forwarding to the Zearosa Commission, or to any other
140
government entity, information that they may have gathered against her
without the approval of the court;
(c) ordered respondents to make a written return of the writ together with
supporting affidavits; and
(d) scheduled the summary hearing of the case on 23 July 2010.28
In their Return of the Writ, respondents alleged that they had acted within the
bounds of their mandate in conducting the investigation and surveillance of
Gamboa.29 The information stored in their database supposedly pertained to
two criminal cases in which she was implicated, namely: (a) a Complaint for
murder and frustrated murder docketed as NPS DOC No. 1-04-INQ-091-
00077, and (b) a Complaint for murder, frustrated murder and direct assault
upon a person in authority, as well as indirect assault and multiple attempted
murder, docketed as NPS DOCKET No. 1-04-INV-10-A-00009.30
Respondents likewise asserted that the Petition was incomplete for failing to
comply with the following requisites under the Rule on the Writ of Habeas
Data: (a) the manner in which the right to privacy was violated or threatened
with violation and how it affected the right to life, liberty or security of Gamboa;
(b) the actions and recourses she took to secure the data or information; and
(c) the location of the files, registers or databases, the government office, and
the person in charge, in possession or in control of the data or information.31
They also contended that the Petition for Writ of Habeas Data, being limited to
cases of extrajudicial killings and enforced disappearances, was not the
proper remedy to address the alleged besmirching of the reputation of
Gamboa.32
RTC Br. 13, in its assailed Decision dated 9 September 2010, dismissed the
Petition.33 The trial court categorically ruled that the inclusion of Gamboa in
the list of persons maintaining PAGs, as published in the Report, constituted a
violation of her right to privacy, to wit:
In this light, it cannot also be disputed that by her inclusion in the list of
persons maintaining PAGs, Gamboas right to privacy indubitably has been
violated. The violation understandably affects her life, liberty and security
enormously. The untold misery that comes with the tag of having a PAG could
even be insurmountable. As she essentially alleged in her petition, she fears
for her security that at any time of the day the unlimited powers of
respondents may likely be exercised to further malign and destroy her
reputation and to transgress her right to life.
By her inclusion in the list of persons maintaining PAGs, it is likewise
undisputed that there was certainly intrusion into Gamboas activities. It
cannot be denied that information was gathered as basis therefor. After all,
under Administrative Order No. 275, the Zearosa Commission was tasked to
investigate the existence of private armies in the country, with all the powers of
an investigative body under Section 37, Chapter 9, Book I of the
Administrative Code of 1987.
xxx xxx xxx
By her inclusion in the list of persons maintaining PAGs, Gamboa alleged as
she accused respondents, who are public officials, of having gathered and
provided information that made the Zearosa Commission to include her in
the list. Obviously, it was this gathering and forwarding of information
supposedly by respondents that petitioner barks at as unlawful. x x x.34
Despite the foregoing findings, RTC Br. 13 nevertheless dismissed the Petition
on the ground that Gamboa failed to prove through substantial evidence that
the subject information originated from respondents, and that they forwarded
this database to the Zearosa Commission without the benefit of prior
verification.35 The trial court also ruled that even before respondents
assumed their official positions, information on her may have already been
acquired.36 Finally, it held that the Zearosa Commission, as the body tasked
141
to gather information on PAGs and authorized to disclose information on her,
should have been impleaded as a necessary if not a compulsory party to the
Petition.37
Gamboa then filed the instant Appeal by Certiorari dated 24 September
2010,38 raising the following assignment of errors:
1. The trial court erred in ruling that the Zearosa Commission be
impleaded as either a necessary or indispensable party;
2. The trial court erred in declaring that Gamboa failed to present
sufficient proof to link respondents as the informant to [sic] the
Zearosa Commission;
3. The trial court failed to satisfy the spirit of Habeas Data;
4. The trial court erred in pronouncing that the reliance of the Zearosa
Commission to [sic] the PNP as alleged by Gamboa is an assumption;
5. The trial court erred in making a point that respondents are distinct to
PNP as an agency.39
On the other hand, respondents maintain the following arguments: (a)
Gamboa failed to present substantial evidence to show that her right to
privacy in life, liberty or security was violated, and (b) the trial court correctly
dismissed the Petition on the ground that she had failed to present sufficient
proof showing that respondents were the source of the report naming her as
one who maintains a PAG.40
Meanwhile, Gamboa argues that although A.O. 275 was a lawful order,
fulfilling the mandate to dismantle PAGs in the country should be done in
accordance with due process, such that the gathering and forwarding of
unverified information on her must be considered unlawful.41 She also
reiterates that she was able to present sufficient evidence showing that the
subject information originated from respondents.42
In determining whether Gamboa should be granted the privilege of the writ of
habeas data, this Court is called upon to, first, unpack the concept of the right
to privacy; second, explain the writ of habeas data as an extraordinary remedy
that seeks to protect the right to informational privacy; and finally,
contextualize the right to privacy vis--vis the state interest involved in the
case at bar.
The Right to Privacy
The right to privacy, as an inherent concept of liberty, has long been
recognized as a constitutional right. This Court, in Morfe v. Mutuc,43 thus
enunciated:
The due process question touching on an alleged deprivation of liberty as thus
resolved goes a long way in disposing of the objections raised by plaintiff that
the provision on the periodical submission of a sworn statement of assets and
liabilities is violative of the constitutional right to privacy. There is much to be
said for this view of Justice Douglas: "Liberty in the constitutional sense must
mean more than freedom from unlawful governmental restraint; it must include
privacy as well, if it is to be a repository of freedom. The right to be let alone is
indeed the beginning of all freedom." As a matter of fact, this right to be let
alone is, to quote from Mr. Justice Brandeis "the most comprehensive of rights
and the right most valued by civilized men."
The concept of liberty would be emasculated if it does not likewise compel
respect for his personality as a unique individual whose claim to privacy and
interference demands respect. xxx.
xxx xxx xxx
x x x In the leading case of Griswold v. Connecticut, Justice Douglas,
speaking for five members of the Court, stated: "Various guarantees create
zones of privacy. The right of association contained in the penumbra of the
First Amendment is one, as we have seen. The Third Amendment in its
prohibition against the quartering of soldiers in any house in time of peace
without the consent of the owner is another facet of that privacy. The Fourth
142
Amendment explicitly affirms the right of the people to be secure in their
persons, houses, papers, and effects, against unreasonable searches and
seizures. The Fifth Amendment in its Self-Incrimination Clause enables the
citizen to create a zone of privacy which government may not force him to
surrender to his detriment. The Ninth Amendment provides: The enumeration
in the Constitution, of certain rights, shall not be construed to deny or
disparage others retained by the people." After referring to various American
Supreme Court decisions, Justice Douglas continued: "These cases bear
witness that the right of privacy which presses for recognition is a legitimate
one."
xxx xxx xxx
So it is likewise in our jurisdiction. The right to privacy as such is accorded
recognition independently of its identification with liberty; in itself, it is fully
deserving of constitutional protection. The language of Prof. Emerson is
particularly apt: "The concept of limited government has always included the
idea that governmental powers stop short of certain intrusions into the
personal life of the citizen. This is indeed one of the basic distinctions between
absolute and limited government. Ultimate and pervasive control of the
individual, in all aspects of his life, is the hallmark of the absolute state. In
contrast, a system of limited government, safeguards a private sector, which
belongs to the individual, firmly distinguishing it from the public sector, which
the state can control. Protection of this private sector protection, in other
words, of the dignity and integrity of the individual has become increasingly
important as modern society has developed. All the forces of a technological
age industrialization, urbanization, and organization operate to narrow
the area of privacy and facilitate intrusion into it. In modern terms, the capacity
to maintain and support this enclave of private life marks the difference
between a democratic and a totalitarian society."44 (Emphases supplied)
In Ople v. Torres,45 this Court traced the constitutional and statutory bases of
the right to privacy in Philippine jurisdiction, to wit:
Indeed, if we extend our judicial gaze we will find that the right of privacy is
recognized and enshrined in several provisions of our Constitution. It is
expressly recognized in section 3 (1) of the Bill of Rights:
Sec. 3. (1) The privacy of communication and correspondence shall be
inviolable except upon lawful order of the court, or when public safety or order
requires otherwise as prescribed by law.
Other facets of the right to privacy are protected in various provisions of the
Bill of Rights, viz:
Sec. 1. No person shall be deprived of life, liberty, or property without due
process of law, nor shall any person be denied the equal protection of the
laws.
Sec. 2. The right of the people to be secure in their persons, houses, papers,
and effects against unreasonable searches and seizures of whatever nature
and for any purpose shall be inviolable, and no search warrant or warrant of
arrest shall issue except upon probable cause to be determined personally by
the judge after examination under oath or affirmation of the complainant and
the witnesses he may produce, and particularly describing the place to be
searched and the persons or things to be seized.
xxx xxx xxx
Sec. 6. The liberty of abode and of changing the same within the limits
prescribed by law shall not be impaired except upon lawful order of the court.
Neither shall the right to travel be impaired except in the interest of national
security, public safety, or public health as may be provided by law.
xxx xxx xxx
Sec. 8. The right of the people, including those employed in the public and
private sectors, to form unions, associations, or societies for purposes not
contrary to law shall not be abridged.
143
Sec. 17. No person shall be compelled to be a witness against himself.
Zones of privacy are likewise recognized and protected in our laws. The Civil
Code provides that "every person shall respect the dignity, personality, privacy
and peace of mind of his neighbors and other persons" and punishes as
actionable torts several acts by a person of meddling and prying into the
privacy of another. It also holds a public officer or employee or any private
individual liable for damages for any violation of the rights and liberties of
another person, and recognizes the privacy of letters and other private
communications. The Revised Penal Code makes a crime the violation of
secrets by an officer, the revelation of trade and industrial secrets, and
trespass to dwelling. Invasion of privacy is an offense in special laws like the
Anti-Wiretapping Law, the Secrecy of Bank Deposits Act and the Intellectual
Property Code. The Rules of Court on privileged communication likewise
recognize the privacy of certain information.
Unlike the dissenters, we prescind from the premise that the right to privacy is
a fundamental right guaranteed by the Constitution, hence, it is the burden of
government to show that A.O. No. 308 is justified by some compelling state
interest and that it is narrowly drawn. x x x.46 (Emphases supplied)
Clearly, the right to privacy is considered a fundamental right that must be
protected from intrusion or constraint. However, in Standard Chartered Bank v.
Senate Committee on Banks,47 this Court underscored that the right to
privacy is not absolute, viz:
With respect to the right of privacy which petitioners claim respondent has
violated, suffice it to state that privacy is not an absolute right. While it is true
that Section 21, Article VI of the Constitution, guarantees respect for the rights
of persons affected by the legislative investigation, not every invocation of the
right to privacy should be allowed to thwart a legitimate congressional inquiry.
In Sabio v. Gordon, we have held that the right of the people to access
information on matters of public concern generally prevails over the right to
privacy of ordinary financial transactions. In that case, we declared that the
right to privacy is not absolute where there is an overriding compelling state
interest. Employing the rational basis relationship test, as laid down in Morfe v.
Mutuc, there is no infringement of the individuals right to privacy as the
requirement to disclosure information is for a valid purpose, in this case, to
ensure that the government agencies involved in regulating banking
transactions adequately protect the public who invest in foreign securities.
Suffice it to state that this purpose constitutes a reason compelling enough to
proceed with the assailed legislative investigation.48
Therefore, when the right to privacy finds tension with a competing state
objective, the courts are required to weigh both notions. In these cases,
although considered a fundamental right, the right to privacy may nevertheless
succumb to an opposing or overriding state interest deemed legitimate and
compelling.
The Writ of Habeas Data
The writ of habeas data is an independent and summary remedy designed to
protect the image, privacy, honor, information, and freedom of information of
an individual, and to provide a forum to enforce ones right to the truth and to
informational privacy.49 It seeks to protect a persons right to control
information regarding oneself, particularly in instances in which such
information is being collected through unlawful means in order to achieve
unlawful ends.50 It must be emphasized that in order for the privilege of the
writ to be granted, there must exist a nexus between the right to privacy on the
one hand, and the right to life, liberty or security on the other.
Section 1 of the Rule on the Writ of Habeas Data reads:
Habeas data. The writ of habeas data is a remedy available to any person
whose right to privacy in life, liberty or security is violated or threatened by an
unlawful act or omission of a public official or employee, or of a private
individual or entity engaged in the gathering, collecting or storing of data
144
information regarding the person, family, home and correspondence of the
aggrieved party.
The notion of informational privacy is still developing in Philippine law and
jurisprudence. Considering that even the Latin American habeas data, on
which our own Rule on the Writ of Habeas Data is rooted, finds its origins from
the European tradition of data protection,51 this Court can be guided by cases
on the protection of personal data decided by the European Court of Human
Rights (ECHR). Of particular note is Leander v. Sweden,52 in which the
ECHR balanced the right of citizens to be free from interference in their private
affairs with the right of the state to protect its national security. In this case,
Torsten Leander (Leander), a Swedish citizen, worked as a temporary
replacement museum technician at the Naval Museum, which was adjacent to
a restricted military security zone.53 He was refused employment when the
requisite personnel control resulted in an unfavorable outcome on the basis of
information in the secret police register, which was kept in accordance with the
Personnel Control Ordinance and to which he was prevented access.54 He
claimed, among others, that this procedure of security control violated Article
8 of the European Convention of Human Rights55 on the right to privacy, as
nothing in his personal or political background would warrant his classification
in the register as a security risk.56
The ECHR ruled that the storage in the secret police register of information
relating to the private life of Leander, coupled with the refusal to allow him the
opportunity to refute the same, amounted to an interference in his right to
respect for private life.57 However, the ECHR held that the interference was
justified on the following grounds: (a) the personnel control system had a
legitimate aim, which was the protection of national security,58 and (b) the
Personnel Control Ordinance gave the citizens adequate indication as to the
scope and the manner of exercising discretion in the collection, recording and
release of information by the authorities.59 The following statements of the
ECHR must be emphasized:
58. The notion of necessity implies that the interference corresponds to a
pressing social need and, in particular, that it is proportionate to the legitimate
aim pursued (see, inter alia, the Gillow judgment of 24 November 1986, Series
A no. 109, p. 22, 55).
59. However, the Court recognises that the national authorities enjoy a margin
of appreciation, the scope of which will depend not only on the nature of the
legitimate aim pursued but also on the particular nature of the interference
involved. In the instant case, the interest of the respondent State in protecting
its national security must be balanced against the seriousness of the
interference with the applicants right to respect for his private life.
There can be no doubt as to the necessity, for the purpose of protecting
national security, for the Contracting States to have laws granting the
competent domestic authorities power, firstly, to collect and store in registers
not accessible to the public information on persons and, secondly, to use this
information when assessing the suitability of candidates for employment in
posts of importance for national security.
Admittedly, the contested interference adversely affected Mr. Leanders
legitimate interests through the consequences it had on his possibilities of
access to certain sensitive posts within the public service. On the other hand,
the right of access to public service is not as such enshrined in the
Convention (see, inter alia, the Kosiek judgment of 28 August 1986, Series A
no. 105, p. 20, 34-35), and, apart from those consequences, the
interference did not constitute an obstacle to his leading a private life of his
own choosing.
In these circumstances, the Court accepts that the margin of appreciation
available to the respondent State in assessing the pressing social need in the
present case, and in particular in choosing the means for achieving the
legitimate aim of protecting national security, was a wide one.
145
xxx xxx xxx
66. The fact that the information released to the military authorities was not
communicated to Mr. Leander cannot by itself warrant the conclusion that the
interference was not "necessary in a democratic society in the interests of
national security", as it is the very absence of such communication which, at
least partly, ensures the efficacy of the personnel control procedure (see,
mutatis mutandis, the above-mentioned Klass and Others judgment, Series A
no. 28, p. 27, 58).
The Court notes, however, that various authorities consulted before the issue
of the Ordinance of 1969, including the Chancellor of Justice and the
Parliamentary Ombudsman, considered it desirable that the rule of
communication to the person concerned, as contained in section 13 of the
Ordinance, should be effectively applied in so far as it did not jeopardise the
purpose of the control (see paragraph 31 above).
67. The Court, like the Commission, thus reaches the conclusion that the
safeguards contained in the Swedish personnel control system meet the
requirements of paragraph 2 of Article 8 (art. 8-2). Having regard to the wide
margin of appreciation available to it, the respondent State was entitled to
consider that in the present case the interests of national security prevailed
over the individual interests of the applicant (see paragraph 59 above). The
interference to which Mr. Leander was subjected cannot therefore be said to
have been disproportionate to the legitimate aim pursued. (Emphases
supplied)
Leander illustrates how the right to informational privacy, as a specific
component of the right to privacy, may yield to an overriding legitimate state
interest. In similar fashion, the determination of whether the privilege of the
writ of habeas data, being an extraordinary remedy, may be granted in this
case entails a delicate balancing of the alleged intrusion upon the private life
of Gamboa and the relevant state interest involved.
The collection and forwarding of information by the PNP vis--vis the interest
of the state to dismantle private armies.
The Constitution explicitly mandates the dismantling of private armies and
other armed groups not recognized by the duly constituted authority.60 It also
provides for the establishment of one police force that is national in scope and
civilian in character, and is controlled and administered by a national police
commission.61
Taking into account these constitutional fiats, it is clear that the issuance of
A.O. 275 articulates a legitimate state aim, which is to investigate the
existence of PAGs with the ultimate objective of dismantling them
permanently.
To enable the Zearosa Commission to achieve its goals, A.O. 275 clothed it
with the powers of an investigative body, including the power to summon
witnesses, administer oaths, take testimony or evidence relevant to the
investigation and use compulsory processes to produce documents, books,
and records.62 A.O. 275 likewise authorized the Zearosa Commission to
deputize the Armed Forces of the Philippines, the National Bureau of
Investigation, the Department of Justice, the PNP, and any other law
enforcement agency to assist the commission in the performance of its
functions.63 Meanwhile, the PNP, as the national police force, is empowered
by law to (a) enforce all laws and ordinances relative to the protection of lives
and properties; (b) maintain peace and order and take all necessary steps to
ensure public safety; and (c) investigate and prevent crimes.64Pursuant to the
state interest of dismantling PAGs, as well as the foregoing powers and
functions accorded to the Zearosa Commission and the PNP, the latter
collected information on individuals suspected of maintaining PAGs, monitored
146
them and counteracted their activities.65 One of those individuals is herein
petitioner Gamboa.
This Court holds that Gamboa was able to sufficiently establish that the data
contained in the Report listing her as a PAG coddler came from the PNP.
Contrary to the ruling of the trial court, however, the forwarding of information
by the PNP to the Zearosa Commission was not an unlawful act that violated
or threatened her right to privacy in life, liberty or security.The PNP was
rationally expected to forward and share intelligence regarding PAGs with the
body specifically created for the purpose of investigating the existence of
these notorious groups. Moreover, the Zearosa Commission was explicitly
authorized to deputize the police force in the fulfillment of the formers
mandate, and thus had the power to request assistance from the latter.
Following the pronouncements of the ECHR in Leander, the fact that the PNP
released information to the Zearosa Commission without prior
communication to Gamboa and without affording her the opportunity to refute
the same cannot be interpreted as a violation or threat to her right to privacy
since that act is an inherent and crucial component of intelligence-gathering
and investigation.. Additionally, Gamboa herself admitted that the PNP had a
validation system, which was used to update information on individuals
associated with PAGs and to ensure that the data mirrored the situation on the
field.66 Thus, safeguards were put in place to make sure that the information
collected maintained its integrity and accuracy.Pending the enactment of
legislation on data protection, this Court declines to make any further
determination as to the propriety of sharing information during specific stages
of intelligence gathering. To do otherwise would supplant the discretion of
investigative bodies in the accomplishment of their functions, resulting in an
undue encroachment on their competence.
However, to accord the right to privacy with the kind of protection established
in existing law and jurisprudence, this Court nonetheless deems it necessary
to caution these investigating entities that information-sharing must observe
strict confidentiality. Intelligence gathered must be released exclusively to the
authorities empowered to receive the relevant information. After all, inherent to
the right to privacy is the freedom from "unwarranted exploitation of ones
person or from intrusion into ones private activities in such a way as to cause
humiliation to a persons ordinary sensibilities."67
In this case, respondents admitted the existence of the Report, but
emphasized its confidential nature.. That it was leaked to third parties and the
media was regrettable, even warranting reproach. But it must be stressed that
Gamboa failed to establish that respondents were responsible for this
unintended disclosure. In any event, there are other reliefs available to her to
address the purported damage to her reputation, making a resort to the
extraordinary remedy of the writ of habeas data unnecessary and improper.
Finally, this Court rules that Gamboa was unable to prove through substantial
evidence that her inclusion in the list of individuals maintaining PAGs made
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her and her supporters susceptible to harassment and to increased police
surveillance. In this regard, respondents sufficiently explained that the
investigations conducted against her were in relation to the criminal cases in
which she was implicated. As public officials, they enjoy the presumption of
regularity, which she failed to overcome. It is clear from the foregoing
discussion that the state interest of dismantling PAGs far outweighs the
alleged intrusion on the private life of Gamboa, especially when the collection
and forwarding by the PNP of information against her was pursuant to a lawful
mandate. Therefore, the privilege of the writ of habeas data must be denied.
WHEREFORE, the instant petition for review is DENIED. The assailed
Decision in Special Proc. No. 14979 dated 9 September 2010 of the Regional
Trial Court, Laoag City, Br. 13, insofar as it denies Gamboa the privilege of the
writ of habeas data, is AFFIRMED.
SO ORDERED.