TAPUZ V DEL ROSARIO
(3) the private respondents certificate of title to the disputed
Before us for the determination of sufficiency of form and
substance (pursuant to Sections 1 and 4 of Rule 65 of the Revised
Rules of Court; Sections 1 and 5 of the Rule on the Writ of Amparo;
[1]
and Sections 1 and 6 of the Rule on the Writ of Habeas Data [2]) is
the petition for certiorari and for the issuance of the writs
of amparo and habeas data filed by the above-named petitioners
against the Honorable Judge Elmo del Rosario [in his capacity as
presiding judge of RTC Br. 5, Kalibo], Sheriff Nelson de la Cruz [in
his capacity as Sheriff of the RTC], the Philippine National Police
stationed in Boracay Island, represented by the PNP Station
Commander, the Honorable Court of Appeals in Cebu, 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 the plaintiffs were in actual physical possession of the whole lot in
complaint[3] dated 24 April 2006 for forcible entry and damages
with a prayer for the issuance of a writ of preliminary mandatory
injunction against the petitioners Daniel Masangkay Tapuz,
Aurora Tapuz-Madriaga, Liberty M.
Asuncion, Ladylyn Bamos Madriaga, Everly Tapuz Madriaga,
Excel Tapuz, Ivan Tapuz and Marian Timbas (the petitioners) and
other John Does numbering about 120. The private respondents
alleged in their complaint that: (1) they are the registered owners
under TCT No. 35813 of a 1.0093-hectare parcel of land located
at Sitio Pinaungon, Balabag, Boracay, Malay, Aklan (the disputed
land); (2) they were the disputed lands prior possessors when the
petitioners armed with bolos and carrying suspected firearms and
together with unidentified persons numbering 120 - entered the
disputed land by force and intimidation, without the private
respondents permission and against the objections of the private
respondents security men, and built thereon a nipa and bamboo
structure.
In their Answer[4] dated 14 May 2006, the petitioners denied the
material allegations of the complaint. They essentially claimed that:
(1) they are the actual and prior possessors of the disputed land;
(2) on the contrary, the private respondents are the intruders; and
property is spurious. They asked for the dismissal of the complaint
and interposed a counterclaim for damages.
The MCTC, after due proceedings, rendered on 2 January 2007 a
decision[5] in the private respondents favor. It found prior
possession the key issue in forcible entry cases - in the private
respondents favor, thus:
The key that could unravel the answer to this question lies in the
Amended Commissioners 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 Commissioners Report and Sketch that
the land in question is enclosed by a concrete and cyclone wire
perimeter fence in pink and green highlighter as shown in the
Sketch Plan (p. 248). Said perimeter fence was constructed by the
plaintiffs 14 years ago. The foregoing findings of the Commissioner
in his report and sketch collaborated the claim of the plaintiffs that
after they acquired the land in question on May 27, 1993 through a
Deed of Sale (Annex A, Affidavit of Gregorio Sanson, p. 276, rec.),
they caused the construction of the perimeter fence sometime in
1993 (Affidavit of Gregorio Sanson, pp. 271-275, rec.).
From the foregoing established facts, it could be safely inferred that
question since 1993 when it was interrupted by the defendants
(sic) when on January 4, 2005 claiming to (sic) the Heirs of
Antonio Tapuz entered a portion of the land in question with view of
inhabiting the same and building structures therein prompting
plaintiff Gregorio Sanson to confront them before BSPU, Police Chief
Inspector Jack L. Wanky and Barangay Captain Glenn Sacapao. As a
result of their confrontation, the parties signed an Agreement
(Annex D, Complaint p. 20) wherein they agreed to vacate the
disputed portion of the land in question and agreed not to build any
structures thereon.
The foregoing is the prevailing situation of the parties after the
incident of January 4, 2005 when the plaintiff posted security
guards, however, sometime on or about 6:30 A.M. of April 19, 2006,
the defendants some with bolos and one carrying a sack suspected
to contain firearms with other John Does numbering about 120
persons by force and intimidation forcibly entered the premises
along the road and built a nipa and bamboo structure (Annex E,
Complaint, p. 11) inside the lot in question which incident was
promptly reported to the proper authorities as shown by plaintiffs
Certification (Annex F, Complaint, p. 12) of the entry in the police
blotter and on same date April 19, 2006, the plaintiffs filed a
complaint with the Office of
the Lupong Tagapamayapa of Barangay Balabag, Boracay Island,
Malay, Aklan but no settlement was reached as shown in their
Certificate to File Action (Annex G, Complaint, p. 13); hence the
present action.
Defendants (sic) contend in their answer that prior to January 4,
2005, they were already occupants of the property, being
indigenous settlers of the same, under claim of ownership by open
continuous, adverse possession to the exclusion of other
(sic). (Paragraph 4, Answer, p. 25).
The contention is untenable. As adverted earlier, the land in
question is enclosed by a perimeter fence constructed by the
plaintiffs sometime in 1993 as noted by the Commissioner in his
Report and reflected in his Sketch, thus, it is safe to conclude that
the plaintiffs where (sic) in actual physical possession of the land in
question from 1993 up to April 19, 2006 when they were
ousted therefrom by the defendants by means of force. Applying by
analogy the ruling of the Honorable Supreme Court in the case of
Molina, et al. vs. De Bacud, 19 SCRA 956, if the land were in the
possession of plaintiffs from 1993 to April 19, 2006, defendants
claims to an older possession must be rejected as untenable
because possession as a fact cannot be recognized at the same
time in two different personalities.
Defendants likewise contend that it was the plaintiffs who forcibly
entered the land in question on April 18, 2006 at about 3:00
oclock 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, Commissioners 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[7] authorizing
the immediate implementation of the MCTC decision was actually
issued by respondent Judge Elmo F. del Rosario (the respondent
Judge) on 12 March 2007 after the private respondents had
complied with the imposed condition. The petitioners moved to
reconsider the issuance of the writ; the private respondents, on the
other hand, filed a motion for demolition.
The respondent Judge subsequently denied the petitioners Motion
for Reconsideration and to Defer Enforcement of Preliminary
Mandatory Injunction in an Order dated 17 May 2007[8].
Meanwhile, the petitioners opposed the motion for demolition.
[9]
The respondent Judge nevertheless issued via a Special
Order[10] a writ of demolition to be implemented fifteen (15) days
after the Sheriffs written notice to the petitioners to voluntarily
demolish their house/s to allow the private respondents to
effectively take actual possession of the land.
The petitioners thereafter filed on 2 August 2007 with the Court of
Appeals, Cebu City, a Petition for Review[11] (under Rule 42 of the
1997 Rules of Civil Procedure) of the Permanent Mandatory
Injunction and Order of Demolition of the RTC of Kalibo, Br.
6 in Civil Case No. 7990.
Meanwhile, respondent Sheriff Nelson R. dela Cruz issued the
Notice to Vacate and for Demolition on 19 March 2008.[12]
It was against this factual backdrop that the petitioners filed the
present petition last 29 April 2008. The petition contains and prays
for three remedies, namely: a petition for certiorari under Rule 65 of
the Revised Rules of Court; the issuance of a writ of habeas data
under the Rule on the Writ of Habeas Data; and finally, the issuance
of the writ of amparo under the Rule on the Writ of Amparo.
To support the petition and the remedies prayed for, the petitioners
present factual positions diametrically opposed to
the MCTCs 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, ApolsidaUmambong, Ariel Gac, Darwin
Alvarez and Edgardo Penarada. Likewise, the affidavit of Nemia T.
Carmen is submitted to prove that the plaintiffs resorted to
atrocious acts through hired men in their bid to unjustly evict the
defendants.[13]
The petitioners posit as well that the MCTC has no jurisdiction over
the complaint for forcible entry that the private respondents filed
below. Citing Section 33 of The Judiciary Reorganization Act of
1980, as amended by Republic Act No. 7691,[14] they maintain that
the forcible entry case in fact involves issues of title to or
possession of real property or an interest therein, with the assessed
value of the property involved exceeding P20,000.00; thus, the
case should be originally cognizable by the RTC. Accordingly, the
petitioners reason out that the RTC - to where the MCTC decision
was appealed equally has no jurisdiction to rule on the case on
appeal and could not have validly issued the assailed orders.
OUR RULING
We find the petitions for certiorari and issuance of a writ of
habeas data fatally defective, both in substance and in
form. The petition for the issuance of the writ of amparo, on
the other hand, is fatally defective with respect to content
and substance.
The Petition for Certiorari
We conclude, based on the outlined material antecedents that led
to the petition, that the petition for certiorari to nullify the assailed
RTC orders has been filed out of time. It is not lost on us that the
petitioners have a pending petition with the Court of Appeals
(the CA petition) for the review of the same RTC orders now
assailed in the present petition, although the petitioners never
disclosed in the body of the present petition the exact status of
their pending CA petition. The CA petition, however, was filed with
the Court of Appeals on 2 August 2007, which indicates to us that
the assailed orders (or at the very least, the latest of the
interrelated assailed orders) were received on 1 August 2007 at
the latest. The present petition, on the other hand, was filed
on April 29, 2008 or more than eight months from the time the CA
petition was filed. Thus, the present petition is separated in point of
time from the assumed receipt of the assailed RTC orders by at
least eight (8) months, i.e., beyond the reglementary period of sixty
(60) days[15] from receipt of the assailed order or orders or from
notice of the denial of a seasonably filed motion for
reconsideration.
We note in this regard that the petitioners counsel stated in his
attached Certificate of Compliance with Circular #1-88 of the
Supreme Court[16] (Certificate of Compliance) that in the meantime
the RTC and the Sheriff issued a NOTICE TO VACATE AND FOR
DEMOLITION not served to counsel but to the petitioners who sent
photo copy of the same NOTICE to their counsel on April 18, 2008
by LBC. To guard against any insidious argument that the present
petition is timely filed because of this Notice to Vacate, we feel it
best to declare now that the counting of the 60-
day reglementary period under Rule 65 cannot start from the April
18, 2008 date cited by the petitioners counsel. The Notice to
Vacate and for Demolition is not an order that exists independently
from the RTC orders assailed in this petition and in the previously
filed CA petition. It is merely a notice, made in compliance with one
of the assailed orders, and is thus an administrative enforcement
medium that has no life of its own separately from the assailed
order on which it is based. It cannot therefore be the appropriate
subject of an independent petition for certiorari under Rule 65 in
the context of this case. The April 18, 2008 date cannot likewise be
the material date for Rule 65 purposes as the above-mentioned
Notice to Vacate is not even directly assailed in this petition, as the
petitions Prayer patently shows.[17]
Based on the same material antecedents, we find too that the
petitioners have been guilty of willful and deliberate
misrepresentation before this Court and, at the very least, of forum
shopping.
By the petitioners own admissions, they filed a petition with the
Court of Appeals (docketed as CA G.R. SP No. 02859) for the review
of the orders now also assailed in this petition, but brought the
present recourse to us, allegedly because the CA did not act on the
petition up to this date and for the petitioner (sic) to seek relief in
the CA would be a waste of time and would render the case moot
and academic since the CA refused to
resolve pending urgent motions and the Sheriff is determined to
enforce a writ of demolition despite the defect of LACK OF
JURISDICTION.[18]
Interestingly, the petitioners counsel - while making this claim in
the body of the petition - at the same time represented in his
Certificate of Compliance[19] that:
xxx
(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).
xxx
The difference between the above representations on what
transpired at the appellate court level is replete with significance
regarding the petitioners intentions. We discern -- from the
petitioners act of misrepresenting in the body of their petition
that the CA did not act on the petition up to this date while stating
the real Court of Appeals action in the Certification of Compliance --
the intent to hide the real state of the remedies the petitioners
sought below in order to mislead us into action on the RTC orders
without frontally considering the action that the Court of Appeals
had already undertaken.
At the very least, the petitioners are obviously seeking to obtain
from us, via the present petition, the same relief that it could not
wait for from the Court of Appeals in CA-G.R. SP No. 02859. The
petitioners act of seeking against the same parties the nullification
of the same RTC orders before the appellate court and before us at
the same time, although made through different mediums that are
both improperly used, constitutes willful and deliberate forum
shopping that can sufficiently serve as basis for the summary
dismissal of the petition under the combined application of the
fourth and penultimate paragraphs of Section 3, Rule 46; Section 5,
Rule 7; Section 1, Rule 65; and Rule 56, all of the Revised Rules of
Court. That a wrong remedy may have been used with the Court of
Appeals and possibly with us will not save the petitioner from a
forum-shopping violation where there is identity of parties,
involving the same assailed interlocutory orders, with the recourses
existing side by side at the same time.
To restate the prevailing rules, forum shopping is the institution of
two or more actions or proceedings involving the same parties for
the same cause of action, either simultaneously or successively, on
the supposition that one or the other court would make a favorable
disposition. Forum shopping may be resorted to by any party
against whom an adverse judgment or order has been issued in one
forum, in an attempt to seek a favorable opinion in another, other
than by appeal or a special civil action for certiorari. Forum
shopping trifles with the courts, abuses their processes, degrades
the administration of justice and congest court dockets. Willful and
deliberate violation of the rule against it is a ground for summary
dismissal of the case; it may also constitute direct contempt. [20]
Additionally, the required verification and certification of non-forum
shopping is defective as one (1) of the seven (7) petitioners -
Ivan Tapuz - did not sign, in violation of Sections 4 and 5 of Rule 7;
Section 3, Rule 46; Section 1, Rule 65; all in relation with Rule 56 of
the Revised Rules of Court. Of those who signed, only five (5)
exhibited their postal identification cards with the Notary Public.
In any event, we find the present petition for certiorari, on its face
and on the basis of the supporting attachments, to be devoid of
merit. The MCTC correctly assumed jurisdiction over the private
respondents complaint, which specifically alleged a cause for
forcible entry and not as petitioners may have misread
or misappreciated a case involving title to or possession of realty or
an interest therein. Under Section 33, par. 2 of The Judiciary
Reorganization Act, as amended by Republic Act (R.A.) No. 7691,
exclusive jurisdiction over forcible entry and
unlawful detainer cases lies with the Metropolitan Trial Courts,
Municipal Trial Courts and Municipal Circuit Trial Courts. These first-
level courts have had jurisdiction over these cases
called accion interdictal even before the R.A. 7691 amendment,
based on the issue of pure physical possession (as opposed to
the right of possession). This jurisdiction is regardless of the
assessed value of the property involved; the law established no
distinctions based on the assessed value of the property forced into
or unlawfully detained. Separately
from accion interdictal are accion publiciana for the recovery of the
right of possession as a plenary action,
and accion reivindicacion for the recovery of ownership.
[21]
Apparently, these latter actions are the ones the petitioners refer
to when they cite Section 33, par. 3, in relation with Section 19, par.
2 of The Judiciary Reorganization Act of 1980, as amended by
Republic Act No. 7691, in which jurisdiction may either be with the
first-level courts or the regional trial courts, dependingon the
assessed value of the realty subject of the litigation. As the
complaint at the MCTC was patently for forcible entry, that court
committed no jurisdictional error correctible by certiorari under the
present petition.
In sum, the petition for certiorari should be dismissed for
the cited formal deficiencies, for violation of the non-forum
shopping rule, for having been filed out of time, and for
substantive deficiencies.
The Writ of Amparo
To start off with the basics, the writ of amparo was originally
conceived as a response to the extraordinary rise in the number of
killings and enforced disappearances, and to the perceived lack of
available and effective remedies to address these extraordinary
concerns. It is intended to address violations of or threats to the
rights to life, liberty or security, as an extraordinary and
independent remedy beyond those available under the prevailing
Rules, or as a remedy supplemental to these Rules. What it is not,
is a writ to protect concerns that are purely property or
commercial. Neither is it a writ that we shall issue on
amorphous and uncertain grounds. Consequently, the Rule on
the Writ of Amparo in line with the extraordinary character of the
writ and the reasonable certainty that its issuance demands
requires that every petition for the issuance of the Pwrit must be
supported by justifying allegations of fact, to wit:
(a) The personal circumstances of the petitioner;
(b) The name and personal circumstances of the respondent
responsible for the threat, act or omission, or, if the name is
unknown or uncertain, the respondent may be described by an
assumed appellation;
(c) The right to life, liberty and security of the aggrieved
party violated or threatened with violation by an unlawful
act or omission of the respondent, and how such threat or
violation is committed with the attendant circumstances
detailed in supporting affidavits;
(d) The investigation conducted, if any, specifying the
names, personal circumstances, and addresses of the
investigating authority or individuals, as well as the
manner and conduct of the investigation, together with any
report;
(e) The actions and recourses taken by the petitioner to determine
the fate or whereabouts of the aggrieved party and the identity of
the person responsible for the threat, act or omission; and
(f) The relief prayed for.
The petition may include a general prayer for other just and
equitable reliefs.[22]
The writ shall issue if the Court is preliminarily satisfied with
the prima facie existence of the ultimate facts determinable from
the supporting affidavits that detail the circumstances of how and
to what extent a threat to or violation of the rights to life, liberty
and security of the aggrieved party was or is being committed.
The issuance of the writ of amparo in the present case is anchored
on the factual allegations heretofore quoted,[23] that are essentially
repeated in paragraph 54 of the petition. These allegations are
supported by the following documents:
(a) Joint Affidavit dated 23 May 2006 of Rowena
B. Onag, Apolsida Umambong, Ariel Gac, Darwin Alvarez
and Edgardo Pinaranda, supporting the factual positions of the
petitioners, id., petitioners prior possession, private respondents
intrusion and the illegal acts committed by the private respondents
and their security guards on 19 April 2006;
(b) Unsubscribed Affidavit of Nemia Carmen y Tapuz, alleging the
illegal acts (firing of guns, etc.) committed by a security guard
against minors descendants of Antonio Tapuz;
(c) Unsubscribed Affidavit of Melanie Tapuz y Samindao, essentially
corroborating Nemias affidavit;
(d) Certification dated 23 April 2006 issued by Police Officer
Jackson Jauod regarding the incident of petitioners intrusion into
the disputed land;
(e) Certification dated 27 April 2006 issued by Police Officer Allan R.
Otis, narrating the altercation between the Tapuz family and the
security guards of the private respondents, including the gun-
poking and shooting incident involving one of the security guards;
(f) Certification issued by Police Officer Christopher R. Mendoza,
narrating that a house owned by Josiel Tapuz, Jr., rented by a
certain Jorge Buenavente, was accidentally burned by a fire.
On the whole, what is clear from these statements - both sworn
and unsworn - is the overriding involvement of property issues as
the petition traces its roots to questions of physical possession of
the property disputed by the private parties. If at all, issues relating
to the right to life or to liberty can hardly be discerned except to
the extent that the occurrence of past violence has been
alleged. The right to security, on the other hand, is alleged only to
the extent of the threats and harassments implied from the
presence of armed men bare to the waist and the alleged pointing
and firing of weapons. Notably, none of the supporting
affidavits compellingly show that the threat to the rights to
life, liberty and security of the petitioners is imminent or is
continuing.
A closer look at the statements shows that at least two of them the
statements of Nemia Carreon y Tapuz and Melanie Tapuz are
practically identical and unsworn. The Certification by Police Officer
Jackson Jauod, on the other hand, simply narrates what had been
reported by one Danny Tapuz y Masangkay, and even mentions
that the burning of two residential houses was accidental.
As against these allegations are the cited MCTC factual findings in
its decision in the forcible entry case which rejected all the
petitioners factual claims. These findings are significantly complete
and detailed, as they were made under a full-blown judicial process,
i.e., after examination and evaluation of the contending parties
positions, evidence and arguments and based on the report of a
court-appointed commissioner.
We preliminarily examine these conflicting factual positions under
the backdrop of a dispute (with incidents giving rise to allegations
of violence or threat thereof) that was brought to and ruled upon
by the MCTC; subsequently brought to the RTC on an appeal that
is still pending; still much later brought to the appellate
court without conclusive results; and then brought to us on
interlocutory incidents involving a plea for the issuance of the writ
of amparo that, if decided as the petitioners advocate, may render
the pending RTC appeal moot.
Under these legal and factual situations, we are far from satisfied
with the prima facie existence of the ultimate facts that would
justify the issuance of a writ of amparo. Rather than acts of
terrorism that pose a continuing threat to the persons of the
petitioners, the violent incidents alleged appear to us to be
purely property-related and focused on the disputed land. Thus, if
the petitioners wish to seek redress and hold the alleged
perpetrators criminally accountable, the remedy may lie more in
the realm of ordinary criminal prosecution rather than on the use of
the extraordinary remedy of the writ of amparo.
Nor do we believe it appropriate at this time to disturb the MCTC
findings, as our action may carry the unintended effect, not only of
reversing the MCTC ruling independently of the appeal to the RTC
that is now in place, but also of nullifying the ongoing appeal
process. Such effect, though unintended, will obviously wreak
havoc on the orderly administration of justice, an overriding goal
that the Rule on the Writ of Amparo does not intend to weaken or
negate.
Separately from these considerations, we cannot fail but consider
too at this point the indicators, clear and patent to us, that the
petitioners present recourse via the remedy of the writ of amparo is
a mere subterfuge to negate the assailed orders that the
petitioners sought and failed to nullify before the appellate court
because of the use of an improper remedial measure. We discern
this from the petitioners misrepresentations pointed out above;
from their obvious act of forum shopping; and from the recourse
itself to the extraordinary remedies of the writs of certiorari
and amparo based on grounds that are far from forthright and
sufficiently compelling. To be sure, when recourses in the ordinary
course of law fail because of deficient legal representation or the
use of improper remedial measures, neither the writ
of certiorari nor that of amparo - extraordinary though they may be
- will suffice to serve as a curative substitute. The writ of amparo,
particularly, should not issue when applied for as a substitute for
the appeal or certiorari process, or when it will inordinately
interfere with these processes the situation obtaining in the present
case.
While we say all these, we note too that the Rule on the Writ
of Amparo provides for rules on the institution of separate actions,
[24]
for the effect of earlier-filed criminal actions, [25] and for the
consolidation of petitions for the issuance of a writ of amparo with a
subsequently filed criminal and civil action.[26] These rules were
adopted to promote an orderly procedure for dealing with petitions
for the issuance of the writ of amparo when the parties resort to
other parallel recourses.
Where, as in this case, there is an ongoing civil process dealing
directly with the possessory dispute and the reported acts of
violence and harassment, we see no point in separately and
directly intervening through a writ of amparo in the absence of any
clear prima facie showing that the right to life, liberty or security
the personal concern that the writ is intended to protect - is
immediately in danger or threatened, or that the danger or threat is
continuing. We see no legal bar, however, to an application for the
issuance of the writ, in a proper case, by motion in a pending case
on appeal or on certiorari, applying by analogy the provisions on
the co-existence of the writ with a separately filed criminal case.
The Writ of Habeas Data
Section 6 of the Rule on the Writ of Habeas Data requires the
following material allegations of ultimate facts in a petition for the
issuance of a writ of habeas data:
(a) The personal circumstances of the petitioner and the
respondent;
(b) The manner the right to privacy is violated or
threatened and how it affects the right to life, liberty or
security of the aggrieved party;
(c) The actions and recourses taken by the petitioner to
secure the data or information;
(d) The location of the files, registers or databases, the
government office, and the person in charge, in possession
or in control of the data or information, if known;
(e) The reliefs prayed for, which may include the updating,
rectification, suppression or destruction of the database or
information or files kept by the respondent.
In case of threats, the relief may include a prayer for an order
enjoining the act complained of; and
(f) Such other relevant reliefs as are just and equitable.
Support for the habeas data aspect of the present petition only
alleges that:
1. [ ] Similarly, a petition for a WRIT OF HABEAS DATA is prayed for
so that the PNP may release the report on the burning of the homes
of the petitioners and the acts of violence employed against them
by the private respondents, furnishing the Court and the petitioners
with copy of the same;
[]
66. Petitioners apply for a WRIT OF HABEAS DATA commanding the
Philippine National Police [PNP] to produce the police report
pertaining to the burning of the houses of the petitioners in the
land in dispute and likewise the investigation report if an
investigation was conducted by the PNP.
These allegations obviously lack what the Rule on Writ of Habeas
Data requires as a minimum, thus rendering the petition fatally
deficient. Specifically, we see no concrete allegations of unjustified
or unlawful violation of the right to privacy related to the right to
life, liberty or security. The petition likewise has not alleged, much
less demonstrated, any need for information under the control of
police authorities other than those it has already set forth as
integral annexes. The necessity or justification for the issuance of
the writ, based on the insufficiency of previous efforts made to
secure information, has not also been shown. In sum, the prayer for
the issuance of a writ of habeas data is nothing more than
the fishing expedition that this Court - in the course of drafting the
Rule on habeas data - had in mind in defining what the purpose of
a writ of habeas data is not. In these lights, the outright denial of
the petition for the issuance of the writ of habeas data is fully in
order.
WHEREFORE, premises considered, we hereby DISMISS the
present petition OUTRIGHT for deficiencies of form and substance
patent from its body and attachments.
SO ORDERED.
G.R. No. 182795 June 5, 2008
ARMANDO Q. CANLAS, MIGUEL D. CAPISTRANO, MARRIETA
PIA, petitioners,
vs.
NAPICO HOMEOWNERS ASSN., I XIII, INC., ET
AL., respondents.
RESOLUTION
REYES, R.T., J.:
THE present petition filed on May 26, 2008 seeks the issuance of
a Writ of Amparo upon the following premise:
Petitioners were deprived of their liberty, freedom and/or rights to
shelter enshrined and embodied in our Constitution, as the result of
these nefarious activities of both the Private and Public
Respondents. This ardent request filed before this Honorable
Supreme Court is the only solution to this problem via this newly
advocated principles incorporated in the Rules the "RULE ON THE
WRIT OF AMPARO."1
It appears that petitioners are settlers in a certain parcel of land
situated in Barangay Manggahan, Pasig City. Their dwellings/houses
have either been demolished as of the time of filing of the petition,
or is about to be demolished pursuant to a court judgment.
While they attempted to focus on issuance of what they claimed to
be fraudulent and spurious land titles, to wit:
Petitioners herein are desirous to help the government, the best
way they can, to unearth these so-called "syndicates" clothed
with governmental functions, in cahoots with the "squatting
syndicates" - - - - the low so defines. If only to give its proper
meanings, the Government must be the first one to cleans (sic) its
ranks from these unscrupulous political protges. If unabated
would certainly ruin and/or destroy the efficacy of the Torrens
System of land registration in this Country. It is therefore the ardent
initiatives of the herein Petitioners, by way of the said prayer for
the issuance of the Writ of Amparo, that these unprincipled
Land Officials be summoned to answer their participation in
the issuances of these fraudulent and spurious
titles, NOW, in the hands of the Private Respondents. The
Courts of Justice, including this Honorable Supreme Court,
are likewise being made to believe that said titles in the
possession of the Private Respondents were issued
untainted with frauds.2
what the petition ultimately seeks is the reversal of this Courts
dismissal of petitions in G.R. Nos. 177448, 180768, 177701,
177038, thus:
That, Petitioners herein knew before hand that: there can be no
motion for reconsideration for the second or third time to be filed
before this Honorable Supreme Court. As such therefore, Petitioners
herein are aware of the opinion that this present petition should not
in any way be treated as such motions fore reconsideration. Solely,
this petition is only for the possible issuance of the writ of amparo, justice or the judge may issue the writ under his or her own hand,
although it might affect the previous rulings of this Honorable and may deputize any officer or person to serve it.
Supreme Court in these cases, G.R. Nos. 177448, 180768, The writ shall also set the date and time for summary hearing of
177701 and 177038. Inherent in the powers of the Supreme the petition which shall not be later than seven (7) days from the
Court of the Philippines is to modify, reverse and set aside, date of its issuance.
even its own previous decision, that can not be thwarted Considering that there is no legal basis for its issuance, as in this
nor influenced by any one, but, only on the basis of merits case, the writ will not be issued and the petition will be dismissed
and evidence. This is the purpose of this petition for outright.
This new remedy of writ of amparo which is made available by this
the Writ of Amparo.3
We dismiss the petition. Court is intended for the protection of the highest possible rights of
The Rule on the Writ of Amparo provides: any person, which is his or her right to life, liberty and security. The
Section 1. Petition. The petition for a writ of amparo is a remedy Court will not spare any time or effort on its part in order to give
available to any person whose right to life, liberty and priority to petitions of this nature. However, the Court will also not
security is violated or threatened with violation by an unlawful act waste its precious time and effort on matters not covered by the
or omission of a public official or employee, or of a private writ.
individual or entity. WHEREFORE, the petition is DISMISSED.
The writ shall cover extralegal killings and enforced disappearances
or threats thereof. (Emphasis supplied.) P/SUPT. FELIXBERTO CASTILLO, POLICE G.R. No. 182165
The threatened demolition of a dwelling by virtue of a final OFFICERS ROMEO BAGTAS, RUPERTO
judgment of the court, which in this case was affirmed with finality BORLONGAN, EDMUNDO DIONISIO, Present:
by this Court in G.R. Nos. 177448, 180768, 177701, 177038, is not RONNIE MORALES, ARNOLD TRIA, and
included among the enumeration of rights as stated in the above- GILBERTO PUNZALAN, ENGR. RICASOL P. PUNO, CJ,
MILLAN, ENGR. REDENTOR S. DELA CARPIO,
quoted Section 1 for which the remedy of a writ of amparo is made
CRUZ, MR. ANASTACIO L. BORLONGAN, CORONA*
available. Their claim to their dwelling, assuming they still have any MR. ARTEMIO ESGUERRA, TISOY, and CARPIO MORALES,
despite the final and executory judgment adverse to them, does JOHN DOES, CHICO-NAZARIO,
not constitute right to life, liberty and security. There is, therefore, Petitioners, VELASCO, JR.,*
no legal basis for the issuance of the writ of amparo. NACHURA,
Besides, the factual and legal basis for petitioners claim to the land LEONARDO-DE CASTRO,
in question is not alleged in the petition at all. The Court can only BRION,
surmise that these rights and interest had already been threshed PERALTA,*
BERSAMIN,
out and settled in the four cases cited above. No writ of
- versus - DEL CASTILLO,
amparo may be issued unless there is a clear allegation of the ABAD,
supposed factual and legal basis of the right sought to be VILLARAMA, JR., JJ.
protected.
Under Section 6 of the same rules, the court shall issue the writ DR. AMANDA T. CRUZ, NIXON T. CRUZ,
upon the filing of the petition, only if on its face, the court ought to and FERDINAND T. CRUZ, Promulgated:
issue said writ. Respondents. November 25, 2009
Section 6. Issuance of the Writ. Upon the filing of the petition, the
court, justice or judge shall immediately order the issuance of the X-------------------------------------------------
-x
writ if on its face it ought to issue. The clerk of court shall issue the
writ under the seal of the court; or in case of urgent necessity, the DECISION

CARPIO MORALES, J.
Petitioners[1], employees and members of the local police force of
the City Government of Malolos, challenge the March 28, 2008
Decision of the Regional Trial Court (RTC) of Malolos, Branch 10 in a
petition for issuance of writs of amparo and habeas data instituted
by respondents.
The factual antecedents.
Respondent Amanda Cruz (Amanda) who, along with her husband
Francisco G. Cruz (Spouses Cruz), leased a parcel of land situated
at Barrio Guinhawa, Malolos (the property), refused to vacate the
property, despite demands by the lessor Provincial Government of
Bulacan (the Province) which intended to utilize it for local projects.
The Province thus filed a complaint for unlawful detainer against
the Spouses Cruz before the then Municipal Trial Court (MTC) of
Bulacan, Bulacan.
By Decision of September 5, 1997, the MTC rendered judgment
against the Spouses Cruz, which judgment, following its affirmance
by the RTC, became final and executory.
The finality of the decision in the ejectment case notwithstanding,
the spouses Cruz refused to vacate the property. They thereupon
filed cases against the Province[2] and the judges who presided over
the case.[3] Those cases were dismissed except their petition for
annulment of judgment lodged before Branch 18 of the RTC of
Malolos, and a civil case for injunction 833-M-2004 lodged before
Branch 10 of the same RTC Malolos.
The Spouses Cruz sought in the case for injunction the issuance of
a permanent writ of injunction to prevent the execution of the final
and executory judgment against them.
By Order of July 19, 2005, the RTC, finding merit in the Spouses
Cruzes allegation that subsequent events changed the situation of
the parties to justify a suspension of the execution of the final and
executory judgment, issued a permanent writ of injunction, the
dispositive portion of which reads:
WHEREFORE, the foregoing petitioners Motion for Reconsideration
of the Order dated August 10, 2004 is hereby GRANTED. Order
dated August 10, 2004 is hereby RECONSIDERED and SET ASIDE.
Further, the verified petition dated November 05, 2002 are
hereby REINSTATED and MADE PERMANENT until the MTC-
Bulacan, Bulacan finally resolves the pending motions of petitioners
with the same determines the metes and bounds of 400 sq. meters
leased premises subject matter of this case with immediate
dispatch. Accordingly, REMAND the determination of the issues
raised by the petitioners on the issued writ of demolition to the MTC
of Bulacan, Bulacan.
SO ORDERED.[4] (Emphasis in the original; underscoring supplied)
Finding that the fallo of the RTC July 19, 2005 Order treats, as a
suspensive condition for the lifting of the permanent injunction, the
determination of the boundaries of the property, the Province
returned the issue for the consideration of the MTC. In a Geodetic
Engineers Report submitted to the MTC on August 31, 2007, the
metes and bounds of the property were indicated.
The MTC, by Order of January 2, 2008, approved the Report and
ruled that the permanent injunction which the RTC issued is
ineffective. On motion of the Province, the MTC, by Order of January
21, 2008, thus issued a Second Alias Writ of Demolition.
On receiving notice of the January 2, 2008 MTC Order, the Spouses
Cruz filed a motion before Branch 10 of the RTC for the issuance of
a temporary restraining order (TRO) which it set for hearing on
January 25, 2008 on which date, however, the demolition had,
earlier in the day, been implemented. Such notwithstanding, the
RTC issued a TRO.[5] The Spouses Cruz, along with their sons-
respondents Nixon and Ferdinand, thereupon entered the property,
placed several container vans and purportedly represented
themselves as owners of the property which was for lease.
On February 21, 2008, petitioners Police Superintendent Felixberto
Castillo et al., who were deployed by the City Mayor in compliance
with a memorandum issued by Governor Joselito R. Mendoza
instructing him to protect, secure and maintain the possession of
the property, entered the property.
Amanda and her co-respondents refused to turn over the property,
however. Insisting that the RTC July 19, 2005 Order of Permanent
Injunction enjoined the Province from repossessing it, they shoved
petitioners, forcing the latter to arrest them and cause their
indictment for direct assault, trespassing and other forms of light
threats.
Respondents later filed on March 3, 2008 a Respectful Motion-
Petition for Writ of Amparo and Habeas Data, docketed as Special
Civil Action No. 53-M-2008, which was coincidentally raffled to
Branch 10 of the RTC Malolos.
Respondents averred that despite the Permanent Injunction,
petitioners unlawfully entered the property with the use of heavy
equipment, tore down the barbed wire fences and tents, [6] and
arrested them when they resisted petitioners entry; and that as
early as in the evening of February 20, 2008, members of the
Philippine National Police had already camped in front of the
property.
On the basis of respondents allegations in their petition and the
supporting affidavits, the RTC, by Order of March 4, 2008, issued
writs of amparo and habeas data.[7]
The RTC, crediting respondents version in this wise:
Petitioners have shown by preponderant evidence that the facts
and circumstances of the alleged offenses examined into on Writs
of Amparo and Habeas Data that there have been an on-going
hearings on the verified Petition for Contempt, docketed as Special
Proceedings No. 306-M-2006, before this Court for alleged violation
by the respondents of the Preliminary Injunction Order dated July
16, 2005 [sic] in Sp. Civil Action No. 833-M-2002, hearings were
held on January 25, 2008, February 12 and 19, 2008, where the
respondents prayed for an April 22, 2008 continuance, however, in
the pitch darkness of February 20, 2008, police officers, some
personnel from the Engineering department, and some civilians
proceeded purposely to the Pinoy Compound, converged therein
and with continuing threats of bodily harm and danger and stone-
throwing of the roofs of the homes thereat from voices around its
premises, on a pretext of an ordinary police operation when
enterviewed [sic] by the media then present, but at 8:00 a.m. to
late in the afternoon of February 21, 2008, zoomed in on the
petitioners, subjecting them to bodily harm, mental torture,
degradation, and the debasement of a human being, reminiscent of
the martial law police brutality, sending chill in any ordinary citizen,
[8]
rendered judgment, by Decision of March 28, 2008, in favor of
respondents, disposing as follows:
WHEREFORE, premises considered, the Commitment Orders and
waivers in Crim. Cases Nos. 08-77 for Direct assault; Crim. Case No.
08-77 for Other Forms of Trespass; and Crim. Case No. 08-78
for Light Threats are hereby DECLARED illegal, null and void, as
petitioners were deprived of their substantial rights, induced by
duress or a well-founded fear of personal violence. Accordingly, the
commitment orders and waivers are hereby SET ASIDE. The
temporary release of the petitioners is declared ABSOLUTE.
Without any pronouncement as to costs.
SO ORDERED.[9] (Emphasis in the original; underscoring supplied)
Hence, the present petition for review on certiorari, pursuant to
Section 19[10] of The Rule on the Writ of Amparo (A.M. No. 07-9-12-
SC),[11] which is essentially reproduced in the Rule on the Writ
of Habeas Data (A.M. No. 08-1-16-SC).[12]
In the main, petitioners fault the RTC for
giving due course and issuing writs of amparo and habeas data
when from the allegations of the petition, the same ought not to
have been issued as (1) the petition in [sic] insufficient in
substance as the same involves property rights; and (2) criminal
cases had already been filed and pending with the Municipal Trial
Court in Cities, Branch 1, City of Malolos. (Underscoring supplied)
The petition is impressed with merit.
The Court is, under the Constitution, empowered to promulgate
rules for the protection and enforcement of constitutional rights.
[13]
In view of the heightening prevalence of extrajudicial killings and
enforced disappearances, the Rule on the Writ of Amparo was
issued and took effect on October 24, 2007 which coincided with
the celebration of United Nations Day and affirmed the Courts
commitment towards internationalization of human rights. More
than three months later or on February 2, 2008, the Rule on the
Writ of Habeas Data was promulgated.
Section 1 of the Rule on the Writ of Amparo provides:
Section 1. Petition. The petition for a writ of amparo is a remedy
available to any person whose right to life, liberty and
security is violated or threatened with violation by an
unlawful act or omission of a public official or employee, or of a
private individual or entity. The writ shall cover extralegal killings
and enforced disappearances or threats thereof. (Emphasis and
underscoring supplied)
Section 1 of the Rule on the Writ of Habeas Data provides:
Section 1. Habeas Data. The writ of habeas data is a remedy
available to any person whose right to privacy in life, liberty or
security is violated or threatened by an unlawful act or
omission of a public official or employee or of a private individual
or entity engaged in the gathering, collecting or storing of
data or information regarding the person, family, home and
correspondence of the aggrieved party. (Emphasis and
underscoring supplied)
From the above-quoted provisions, the coverage of the writs is
limited to the protection of rights to life, liberty and security. And
the writs cover not only actual but also threats of unlawful acts or
omissions.
Secretary of National Defense v. Manalo[14] teaches:
As the Amparo Rule was intended to address the intractable
problem of extralegal killings and enforced disappearances, its
coverage, in its present form, is confined to these two instances or
to threats thereof. Extralegal killings are killings committed without
due process of law, i.e., without legal safeguards or judicial
proceedings. On the other hand, enforced disappearances are
attended by the following characteristics: an arrest, detention or
abduction of a person by a government official or organized groups
or private individuals acting with the direct or indirect acquiescence
of the government; the refusal of the State to disclose the fate or
whereabouts of the person concerned or a refusal to acknowledge
the deprivation of liberty which places such persons outside the
protection of law.[15] (Underscoring supplied, citations omitted)
To thus be covered by the privilege of the writs, respondents must
meet the threshold requirement that their right
to life, liberty and security is violated or threatened with an
unlawful act or omission. Evidently, the present controversy arose
out of a property dispute between the Provincial Government and
respondents. Absent any considerable nexus between the acts
complained of and its effect on respondents right to life, liberty and
security, the Court will not delve on the propriety of petitioners
entry into the property.
Apropos is the Courts ruling in Tapuz v. Del Rosario:[16]
To start off with the basics, the writ of amparo was originally
conceived as a response to the extraordinary rise in the number of
killings and enforced disappearances, and to the perceived lack of
available and effective remedies to address these extraordinary
concerns. It is intended to address violations of or threats to the
rights to life, liberty or security, as an extraordinary and
independent remedy beyond those available under the prevailing
Rules, or as a remedy supplemental to these Rules. What it is not,
is a writ to protect concerns that are purely property or
commercial. Neither is it a writ that we shall issue on
amorphous and uncertain grounds. Consequently, the Rule on
the Writ of Amparo in line with the extraordinary character of the
writ and the reasonable certainty that its issuance demands
requires that every petition for the issuance of the writ must be
supported by justifying allegations of fact, to wit:
xxxx
The writ shall issue if the Court is preliminarily satisfied with the
prima facie existence of the ultimate facts determinable from the
supporting affidavits that detail the circumstances of how and to
what extent a threat to or violation of the rights to life, liberty and
security of the aggrieved party was or is being committed.
[17]
(Emphasis and italics in the original, citation omitted)
Tapuz also arose out of a property dispute, albeit between private
individuals, with the petitioners therein branding as acts of
terrorism the therein respondents alleged entry into the disputed
land with armed men in tow. The Court therein held:
On the whole, what is clear from these statements both sworn and
unsworn is the overriding involvement of property issues as the
petition traces its roots to questions of physical possession of the
property disputed by the private parties. If at all, issues relating to
the right to life or to liberty can hardly be discerned except to the
extent that the occurrence of past violence has been alleged. The
right to security, on the other hand, is alleged only to the extent of
the treats and harassments implied from the presence of armed
men bare to the waist and the alleged pointing and firing of
weapons. Notably, none of the supporting affidavits
compellingly show that the threat to the rights to life,
liberty and security of the petitioners is imminent or
continuing.[18] (Emphasis in the original; underscoring supplied)
It bears emphasis that respondents petition did not show any
actual violation, imminent or continuing threat to their life, liberty
and security. Bare allegations that petitioners in unison, conspiracy
and in contempt of court, there and then willfully, forcibly and
feloniously with the use of force and intimidation entered and
forcibly, physically manhandled the petitioners (respondents) and
arrested the herein petitioners (respondents) [19] will not suffice to
prove entitlement to the remedy of the writ of amparo. No undue
confinement or detention was present. In fact, respondents were
even able to post bail for the offenses a day after their arrest.[20]
Although respondents release from confinement does not
necessarily hinder supplication for the writ of amparo, absent any
evidence or even an allegation in the petition that there is undue
and continuing restraint on their liberty, and/or that there exists
threat or intimidation that destroys the efficacy of their right to be
secure in their persons, the issuance of the writ cannot be justified.
That respondents are merely seeking the protection of their
property rights is gathered from their Joint Affidavit, viz:
xxxx
11. Kami ay humarang at humiga sa harap ng mga heavy
equipment na hawak hawak ang nasabing kautusan ng RTC Branch
10 (PERMANENT INJUNCTION at RTC ORDERS DATED February 12,
17 at 19 2008) upang ipaglaban ang dignidad ng kautusan ng
korte, ipaglaban ang prinsipyo ng SELF-HELP at batas ukol sa
PROPERTY RIGHTS, Wala kaming nagawa ipagtanggol ang aming
karapatan sa lupa na 45 years naming IN
POSSESSION. (Underscoring supplied)
Oddly, respondents also seek the issuance of a writ of habeas
data when it is not even alleged that petitioners are gathering,
collecting or storing data or information regarding their person,
family, home and correspondence.
As for respondents assertion of past incidents [21] wherein the
Province allegedly violated the Permanent Injunction order, these
incidents were already raised in the injunction proceedings on
account of which respondents filed a case for criminal contempt
against petitioners.[22]
Before the filing of the petition for writs of amparo and habeas
data, or on February 22, 2008, petitioners even instituted a petition
for habeas corpus which was considered moot and academic by
Branch 14 of the Malolos RTC and was accordingly denied by Order
of April 8, 2008.
More. Respondent Amanda and one of her sons, Francisco Jr.,
likewise filed a petition for writs of amparo and habeas data before
the Sandiganbayan, they alleging the commission of continuing
threats by petitioners after the issuance of the writs by the RTC,
which petition was dismissed for insufficiency and forum
shopping.
It thus appears that respondents are not without recourse and have
in fact taken full advantage of the legal system with the filing of
civil, criminal and administrative charges.[23]
It need not be underlined that respondents petitions for writs
of amparo and habeas data are extraordinary remedies which
cannot be used as tools to stall the execution of a final and
executory decision in a property dispute.
AT ALL EVENTS, respondents filing of the petitions for writs
of amparo and habeas data should have been barred, for criminal
proceedings against them had commenced after they were
arrested in flagrante delicto and proceeded against in accordance
with Section 6, Rule 112[24] of the Rules of Court. Validity of the
arrest or the proceedings conducted thereafter is a defense that
may be set up by respondents during trial and not before a petition
for writs of amparo and habeas data. The reliefs afforded by the
writs may, however, be made available to the aggrieved party by
motion in the criminal proceedings.[25]
WHEREFORE, the petition is GRANTED. The challenged March 4,
2008 Order of Branch 10 of the Regional Trial Court of Malolos is
DECLARED NULL AND VOID, and its March 28, 2008 Decision
is REVERSED and SET ASIDE. Special Civil Action No. 53-M-2008
is DISMISSED.
 GEN. AVELINO I. RAZON, JR., G.R. No. 182498 Rules. The privileges of the writ of amparo are hereby extended to
Chief, Philippine National Present: Engr. Morced Tagitis.
Police (PNP); Police Chief
Superintendent RAUL PUNO, C.J., Consequently: (1) respondent GEN. EDGARDO M. DOROMAL,
CASTAEDA, Chief, Criminal CARPIO, Chief, Criminal Investigation and Detention Group (CIDG) who
Investigation and Detection CORONA, should order COL. JOSE VOLPANE PANTE, CIDG-9 Chief,
Group (CIDG); Police Senior CARPIO MORALES, Zamboanga City, to aid him; (2) respondent GEN. AVELINO I.
Superintendent LEONARDO A. CHICO-NAZARIO, RAZON, Chief, PNP, who should order his men, namely: (a)
ESPINA, Chief, Police Anti- VELASCO, JR., respondent GEN. JOEL GOLTIAO, Regional Director of ARMM PNP,
Crime and Emergency NACHURA, (b) COL. AHIRON AJIRIM, both head of TASK FORCE TAGITIS, and
Response (PACER); and GEN. LEONARDO-DE CASTRO, (c) respondent SR. SUPERINTENDENT LEONARDO A. ESPINA,
JOEL R. GOLTIAO, Regional BRION, Chief, Police Anti-Crime and Emergency Response, to aid him as
Director of ARMM, PNP, PERALTA, their superior- are hereby DIRECTED to exert extraordinary
Petitioners, BERSAMIN, diligence and efforts, not only to protect the life, liberty and
- versus - DEL CASTILLO, security of Engr. Morced Tagitis, but also to extend
ABAD, and the privileges of the writ of amparo to Engr. Morced Tagitis and his
VILLARAMA, JR., JJ. family, and to submit a monthly report of their actions to this Court,
MARY JEAN B. TAGITIS, herein as a way of PERIODIC REVIEW to enable this Court to monitor the
represented by ATTY. FELIPE P. action of respondents.
ARCILLA, JR., Attorney-in-Fact,
Respondent. Promulgated: This amparo case is hereby DISMISSED as to respondent LT. GEN.
ALEXANDER YANO, Commanding General, Philippine Army, and
December 3, 2009 as to respondent GEN. RUBEN RAFAEL, Chief Anti-Terror Task
Force Comet, Zamboanga City, both being with the military, which
is a separate and distinct organization from the police and the
CIDG, in terms of operations, chain of command and budget.

This Decision reflects the nature of the Writ of Amparo a protective

remedy against violations or threats of violation against the rights
to life, liberty and security. [3] It embodies, as a remedy, the courts
directive to police agencies to undertake specified courses of
x-----------------------------------------------------------------------------------------x
action to address the disappearance of an individual, in this case,
DECISION
Engr. Morced N. Tagitis. It does not determine guilt nor pinpoint
BRION, J.:
criminal culpability for the disappearance; rather, it
determines responsibility, or at least accountability, for the
We review in this petition for review on certiorari[1] the decision
enforced disappearance for purposes of imposing the appropriate
dated March 7, 2008 of the Court of Appeals (CA) in C.A-
remedies to address the disappearance. Responsibility refers to
G.R. AMPARO No. 00009.[2] This CA decision confirmed the enforced
the extent the actors have been established by substantial
disappearance of Engineer Morced N. Tagitis (Tagitis) and granted
evidence to have participated in whatever way, by action or
the Writ of Amparo at the petition of his wife, Mary Jean B. Tagitis
omission, in an enforced disappearance, as a measure of the
(respondent). The dispositive portion of the CA decision reads:
remedies this Court shall craft, among them, the directive to file the
appropriate criminal and civil cases against the responsible parties
WHEREFORE, premises considered, petition is
in the proper courts. Accountability, on the other hand, refers to
hereby GRANTED. The Court hereby FINDS that this is
the measure of remedies that should be addressed to those who
an enforced disappearance within the meaning of the United
exhibited involvement in the enforced disappearance without
Nations instruments, as used in the Amparo
bringing the level of their complicity to the level of responsibility
defined above; or who are imputed with knowledge relating to the
enforced disappearance and who carry the burden of disclosure; or
those who carry, but have failed to discharge, the burden of
extraordinary diligence in the investigation of the enforced
disappearance. In all these cases, the issuance of the Writ
of Amparo is justified by our primary goal of addressing the
disappearance, so that the life of the victim is preserved and his
liberty and security are restored.
We highlight this nature of a Writ of Amparo case at the outset to
stress that the unique situations that call for the issuance of the
writ, as well as the considerations and measures necessary to
address these situations, may not at all be the same as the
standard measures and procedures in ordinary court actions and
proceedings. In this sense, the Rule on the Writ
of Amparo[4] (Amparo Rule) issued by this Court is
unique. The Amparo Rule should be read, too, as a work in
progress, as its directions and finer points remain to evolve through
time and jurisprudence and through the substantive laws that
Congress may promulgate.
THE FACTUAL ANTECEDENTS
The background facts, based on the petition and the records of the
case, are summarized below.
The established facts show that Tagitis, a consultant for the World
Bank and the Senior Honorary Counselor for the Islamic
Development Bank (IDB) Scholarship Programme, was last seen in
Jolo, Sulu. Together with Arsimin Kunnong (Kunnong), an IDB
scholar, Tagitis arrived in Jolo by boat in the early morning of
October 31, 2007 from a seminar in Zamboanga City. They
immediately checked-in at ASY Pension House. Tagitis asked
Kunnong to buy him a boat ticket for his return trip the following
day to Zamboanga. When Kunnong returned from this errand,
Tagitis was no longer around.[5] The receptionist related that Tagitis
went out to buy food at around 12:30 in the afternoon and even left
his room key with the desk.[6] Kunnong looked for Tagitis and even
sent a text message to the latters Manila-based secretary who did
not know of Tagitis whereabouts and activities either; she advised
Kunnong to simply wait.[7]
On November 4, 2007, Kunnong and Muhammad Abdulnazeir
N. Matli, a UP professor of Muslim studies and Tagitis fellow student
counselor at the IDB, reported Tagitis disappearance to the Jolo
Police Station.[8] On November 7, 2007, Kunnong executed a sworn
affidavit attesting to what he knew of the circumstances
surrounding Tagitis disappearance.[9]
More than a month later (on December 28, 2007), the respondent
filed a Petition for the Writ of Amparo (petition) with the CA through
her Attorney-in-Fact, Atty. Felipe P. Arcilla. [10] The petition was
directed against Lt. Gen. Alexander Yano, Commanding General,
Philippine Army; Gen. Avelino I. Razon, Chief, Philippine National
Police (PNP); Gen. Edgardo M. Doromal, Chief, Criminal
Investigation and Detention Group (CIDG); Sr. Supt. Leonardo A.
Espina, Chief, Police Anti-Crime and Emergency Response; Gen. Joel
Goltiao, Regional Director, ARMM-PNP; and Gen. Ruben Rafael,
Chief, Anti-Terror Task Force Comet [collectively referred to
as petitioners]. After reciting Tagitis personal circumstances and the
facts outlined above, the petition went on to state:
xxxx
7. Soon after the student left the room, Engr. Tagitis went out of the
pension house to take his early lunch but while out on the street, a
couple of burly men believed to be police intelligence
operatives, forcibly took him and boarded the latter on a
motor vehicle then sped away without the knowledge of his
student, Arsimin Kunnong;
8. As instructed, in the late afternoon of the same day, Kunnong
returned to the pension house, and was surprised to find out that
subject Engr. Tagitis cannot [sic] be contacted by phone and was
not also around and his room was closed and locked;
9. Kunnong requested for the key from the desk of the pension
house who [sic] assisted him to open the room of Engr. Tagitis,
where they discovered that the personal belongings of Engr. Tagitis,
including cell phones, documents and other personal belongings
were all intact inside the room;
10. When Kunnong could not locate Engr. Tagitis, the former sought
the help of another IDB scholar and reported the matter to the local
police agency;
11. Arsimin Kunnong including his friends and companions in Jolo,
exerted efforts in trying to locate the whereabouts of Engr. Tagitis
and when he reported the matter to the police authorities in Jolo,
he was immediately given a ready answer that Engr. Tagitis could
have been abducted by the Abu Sayyaf group and other groups
known to be fighting against the government;
12. Being scared with [sic] these suggestions and insinuations of
the police officers, Kunnong reported the matter to the
[respondent, wife of Engr. Tagitis] by phone and other responsible
officers and coordinators of the IDB Scholarship Programme in the
Philippines, who alerted the office of the Governor of ARMM who
was then preparing to attend the OIC meeting in Jeddah, Saudi
Arabia;
13. [Respondent], on the other hand, approached some of her co-
employees with the Land Bank in Digos branch, Digos City, Davao
del Sur who likewise sought help from some of their friends in the
military who could help them find/locate the whereabouts of her
husband;
14. All of these efforts of the [respondent] did not produce any
positive results except the information from persons in the military
who do not want to be identified that Engr. Tagitis is in the hands of
the uniformed men;
15. According to reliable information received by the
[respondent], subject Engr. Tagitis is in the custody of police
intelligence operatives, specifically with the CIDG, PNP
Zamboanga City, being held against his will in an earnest
attempt of the police to involve and connect Engr. Tagitis
with the different terrorist groups;
xxxx
17. [Respondent] filed her complaint with the PNP Police Station in
the ARMM in Cotobato and in Jolo, as suggested by her friends,
seeking their help to find her husband, but [respondents] request
and pleadings failed to produce any positive results;
18. Instead of helping the [respondent], she [sic] was told of an
intriguing tale by the police that her husband, subject of the
petition, was not missing but was with another woman having good
time somewhere, which is a clear indication of the [petitioners]
refusal to help and provide police assistance in locating her missing
husband;
19. The continued failure and refusal of the [petitioners] to release
and/or turn-over subject Engr. Tagitis to his family or even to
provide truthful information to [the respondent] of the subjects
whereabouts, and/or allow [the respondent] to visit her husband
Engr. Morced Tagitis, caused so much sleepless nights and serious
anxieties;
20. Lately, [the respondent] was again advised by one of the
[petitioners] to go to the ARMM Police Headquarters again in
Cotobato City and also to the different Police Headquarters
including [those] in Davao City, in Zamboanga City, in Jolo, and in
Camp Crame, Quezon City, and all these places have been visited
by the [respondent] in search for her husband, which entailed
expenses for her trips to these places thereby resorting her to
borrowings and beggings [sic] for financial help from friends and
relatives only to try complying [sic] to the different suggestions of
these police officers, despite of which, her efforts produced no
positive results up to the present time;
21. In fact at times, some police officers, who [sympathized
with] the sufferings undergone by the [respondent], informed her
that they are not the proper persons that she should approach, but
assured her not to worry because her husband is [sic] in good
hands;
22. The unexplained uncooperative behavior of the [petitioners] to
the [respondents] request for help and failure and refusal of the
[petitioners] to extend the needed help, support and assistance in
locating the whereabouts of Engr. Tagitis who had been declared
missing since October 30, 2007 which is almost two (2) months
now, clearly indicates that the [petitioners] are actually in physical
possession and custody of [respondents] husband, Engr. Tagitis;
xxxx
25. [The respondent] has exhausted all administrative avenues and
remedies but to no avail, and under the circumstances, [the
respondent] has no other plain, speedy and adequate remedy to
protect and get the release of subject Engr. Morced Tagitis from the
illegal clutches of the [petitioners], their intelligence operatives and
the like which are in total violation of the subjects human and
constitutional rights, except the issuance of a WRIT OF AMPARO.
[Emphasis supplied]
On the same day the petition was filed, the CA immediately issued
the Writ of Amparo, set the case for hearing on January 7, 2008,
and directed the petitioners to file their verified return within
seventy-two (72) hours from service of the writ.[11]
In their verified Return filed during the hearing of January 27, 2008,
the petitioners denied any involvement in or knowledge of Tagitis
alleged abduction. They argued that the allegations of the petition
were incomplete and did not constitute a cause of action against
them; were baseless, or at best speculative; and were merely
based on hearsay evidence. [12]
The affidavit of PNP Chief Gen. Avelino I. Razon, attached to the
Return, stated that: he did not have any personal knowledge of, or
any participation in, the alleged disappearance; that he had been
designated by President Gloria Macapagal Arroyo as the head of a
special body called TASK FORCE USIG, to address concerns about
extralegal killings and enforced disappearances; the Task
Force, inter alia, coordinated with the investigators and local police,
held case conferences, rendered legal advice in connection to these
cases; and gave the following summary:[13]
xxxx
4.
a) On November 5, 2007, the Regional Director, Police
Regional Office ARMM submitted a report on the alleged
disappearance of one Engr. Morced Tagitis. According to the said
report, the victim checked-in at ASY Pension House on October 30,
2007 at about 6:00 in the morning and then roamed around Jolo,
Sulu with an unidentified companion. It was only after a few days
when the said victim did not return that the matter was reported to
Jolo MPS. Afterwards, elements of Sulu PPO conducted a thorough
investigation to trace and locate the whereabouts of the said
missing person, but to no avail. The said PPO is still conducting
investigation that will lead to the immediate findings of the
whereabouts of the person.
b) Likewise, the Regional Chief, 9RCIDU submitted a
Progress Report to the Director, CIDG. The said report stated among
others that: subject person attended an Education Development
Seminar set on October 28, 2007 conducted at Ateneo de
Zamboanga, Zamboanga City together with a Prof. Matli. On
October 30, 2007, at around 5:00 oclock in the morning, Engr.
Tagitis reportedly arrived at Jolo Sulu wharf aboard M/V Bounty
Cruise, he was then billeted at ASY Pension House. At about 6:15
oclock in the morning of the same date, he instructed his student to
purchase a fast craft ticket bound for Zamboanga City and will
depart from Jolo, Sulu on October 31, 2007.That on or about 10:00
oclock in the morning, Engr. Tagitis left the premises of ASY Pension
House as stated by the cashier of the said pension house. Later in
the afternoon, the student instructed to purchase the ticket arrived
at the pension house and waited for Engr. Tagitis, but the latter did
not return. On its part, the elements of 9RCIDU is now conducting a
continuous case build up and information gathering to locate the
whereabouts of Engr. Tagitis.
c) That the Director, CIDG directed the conduct of the
search in all divisions of the CIDG to find Engr. Tagitis who was
allegedly abducted or illegally detained by covert CIDG-PNP
Intelligence Operatives since October 30, 2007, but after diligent
and thorough search, records show that no such person is being
detained in CIDG or any of its department or divisions.
5. On this particular case, the Philippine National Police exhausted
all possible efforts, steps and actions available under the
circumstances and continuously search and investigate [sic] the
instant case. This immense mandate, however, necessitates the
indispensable role of the citizenry, as the PNP cannot stand alone
without the cooperation of the victims and witnesses to identify the
perpetrators to bring them before the bar of justice and secure
their conviction in court.
The petitioner PNP-CIDG Chief, Gen. Edgardo M. Doromal,
submitted as well his affidavit, also attached to the Return of the
Writ, attesting that upon receipt of the Writ of Amparo, he caused
the following:[14]
xxxx
That immediately upon receipt on December 29, 2007 of the
Resolution of the Honorable Special Fourth Division of the Court of
Appeals, I immediately directed the Investigation Division of this
Group [CIDG] to conduct urgent investigation on the alleged
enforced disappearance of Engineer Morced Tagitis.
That based on record, Engr. Morced N. Tagitis attended an
Education Development Seminar on October 28, 2007 at Ateneo de
Zamboanga at Zamboanga City together with Prof. Abdulnasser
Matli. On October 30, 2007, at around six oclock in the morning he
arrived at Jolo, Sulu. He was assisted by his student identified as
Arsimin Kunnong of the Islamic Development Bank who was also
one of the participants of the said seminar. He checked in at ASY
pension house located [sic] Kakuyagan, Patikul, Sulu on October 30,
2007 with [sic] unidentified companion. At around six oclock in the
morning of even date, Engr. Tagitis instructed his student to
purchase a fast craft ticket for Zamboanga City. In the afternoon of
the same date, Kunnong arrived at the pension house carrying the
ticket he purchased for Engr. Tagitis, but the latter was nowhere to
be found anymore. Kunnong immediately informed Prof.
Abdulnasser Matli who reported the incident to the police. The CIDG
is not involved in the disappearance of Engr. Morced Tagitis to make
out a case of an enforced disappearance which presupposes a
direct or indirect involvement of the government.
That herein [petitioner] searched all divisions and departments for
a person named Engr. Morced N. Tagitis, who was allegedly
abducted or illegally detained by covert CIDG-PNP Intelligence
Operatives since October 30, 2007 and after a diligent and
thorough research records show that no such person is being
detained in CIDG or any of its department or divisions.
That nevertheless, in order to determine the circumstances
surrounding Engr. Morced Tagitis [sic] alleged enforced
disappearance, the undersigned had undertaken immediate
investigation and will pursue investigations up to its full completion
in order to aid in the prosecution of the person or persons
responsible therefore.
Likewise attached to the Return of the Writ was PNP-PACER [15] Chief
PS Supt. Leonardo A. Espinas affidavit which alleged that:[16]
xxxx
That, I and our men and women in PACER vehemently deny any
participation in the alleged abduction or illegally [sic] detention of
ENGR. MORCED N. TAGITS on October 30, 2007. As a matter of fact,
nowhere in the writ was mentioned that the alleged abduction was
perpetrated by elements of PACER nor was there any indication
that the alleged abduction or illegal detention of ENGR. TAGITIS was
undertaken jointly by our men and by the alleged covert CIDG-PNP
intelligence operatives alleged to have abducted or illegally
detained ENGR. TAGITIS.
That I was shocked when I learned that I was implicated in the
alleged disappearance of ENGR. MORCED in my capacity as the
chief PACER [sic] considering that our office, the Police Anti-Crime
and Emergency Response (PACER), a special task force created for
the purpose of neutralizing or eradicating kidnap-for-ransom groups
which until now continue to be one of the menace of our society is
a respondent in kidnapping or illegal detention case. Simply put,
our task is to go after kidnappers and charge them in court and to
abduct or illegally detain or kidnap anyone is anathema to our
mission.
That right after I learned of the receipt of the WRIT OF AMPARO, I
directed the Chief of PACER Mindanao Oriental (PACER-MOR) to
conduct pro-active measures to investigate, locate/search the
subject, identify and apprehend the persons responsible, to recover
and preserve evidence related to the disappearance of ENGR.
MORCED TAGITIS, which may aid in the prosecution of the person or
persons responsible, to identify witnesses and obtain statements
from them concerning the disappearance and to determine the
cause, manner, location and time of disappearance as well as any
pattern or practice that may have brought about the
disappearance.
That I further directed the chief of PACER-MOR, Police
Superintendent JOSE ARNALDO BRIONES JR., to submit a written
report regarding the disappearance of ENGR. MORCED.
That in compliance with my directive, the chief of PACER-MOR sent
through fax his written report.
That the investigation and measures being undertaken to
locate/search the subject in coordination with Police Regional
Office, Autonomous Region of Muslim Mindanao (PRO-ARMM) and
Jolo Police Provincial Office (PPO) and other AFP and PNP
units/agencies in the area are ongoing with the instruction not to
leave any stone unturned so to speak in the investigation until the
perpetrators in the instant case are brought to the bar of justice.
That I have exercised EXTRAORDINARY DILIGENCE in dealing with
the WRIT OF AMPARO just issued.
Finally, the PNP PRO ARMM Regional Director PC Supt. Joel R.
Goltiao (Gen. Goltiao), also submitted his affidavit detailing the
actions that he had taken upon receipt of the report on Tagitis
disappearance, viz:[17]
xxxx
3) For the record:
1. I am the Regional Director of Police Regional Office
ARMM now and during the time of the incident;
xxxx
4. It is my duty to look into and take appropriate measures on any
cases of reported enforced disappearances and when they are
being alluded to my office;
5. On November 5, 2007, the Provincial Director of Sulu Police
Provincial Office reported to me through Radio Message Cite No.
SPNP3-1105-07-2007 that on November 4, 2007 at around 3:30
p.m., a certain Abdulnasser Matli, an employee of Islamic
Development Bank, appeared before the Office of the Chief of
Police, Jolo Police Station, and reported the disappearance of Engr.
Morced Tagitis, scholarship coordinator of Islamic Development
Bank, Manila;
6. There was no report that Engr. Tagibis was last seen in the
company of or taken by any member of the Philippine National
Police but rather he just disappeared from ASY Pension House
situated at Kakuyagan Village, Village, Patikul, Sulu, on October 30,
2007, without any trace of forcible abduction or arrest;
7. The last known instance of communication with him was when
Arsimin Kunnong, a student scholar, was requested by him to
purchase a vessel ticket at the Office of Weezam Express, however,
when the student returned back to ASY Pension House, he no
longer found Engr. Tagitis there and when he immediately inquired
at the information counter regarding his whereabouts [sic], the
person in charge in the counter informed him that Engr. Tagitis had
left the premises on October 30, 2007 around 1 oclock p.m. and
never returned back to his room;
8. Immediately after learning the incident, I called and directed the
Provincial Director of Sulu Police Provincial Office and other units
through phone call and text messages to conduct investigation [sic]
to determine the whereabouts of the aggrieved party and the
person or persons responsible for the threat, act or omission, to
recover and preserve evidence related to the disappearance of
Engr. Tagitis, to identify witnesses and obtain statements from
them concerning his disappearance, to determine the cause and
manner of his disappearance, to identify and apprehend the person
or persons involved in the disappearance so that they shall be
brought before a competent court;
9. Thereafter, through my Chief of the Regional Investigation and
Detection Management Division, I have caused the following
directives:
a) Radio Message Cite No. RIDMD-1122-07-358 dated November
22, 2007 directing PD Sulu PPO to conduct joint investigation with
CIDG and CIDU ARMM on the matter;
b) Radio Message Cite No. RIDMD-1128-07-361 dated November
28, 2007 directing PD Sulu PPO to expedite compliance to my
previous directive;
c) Memorandum dated December 14, 2007 addressed to PD
Sulu PPO reiterating our series of directives for investigation and
directing him to undertake exhaustive coordination efforts with the
owner of ASY Pension House and student scholars of IDB in order to
secure corroborative statements regarding the disappearance and
whereabouts of said personality;
d) Memorandum dated December 24, 2007 addressed to PD Sulu
PPO directing him to maximize efforts to establish clues on the
whereabouts of Engr. Tagitis by seeking the cooperation of Prof.
Abdulnasser Matli and Arsimin Kunnong and/or whenever
necessary, for them to voluntarily submit for polygraph
examination with the NBI so as to expunge all clouds of doubt that
they may somehow have knowledge or idea to his disappearance;
e) Memorandum dated December 27, 2007 addressed to the
Regional Chief, Criminal Investigation and Detection Group, Police
Regional Office 9, Zamboanga City, requesting assistance to
investigate the cause and unknown disappearance of Engr. Tagitis
considering that it is within their area of operational jurisdiction;
f) Memorandum from Chief, Intelligence Division, PRO ARMM
dated December 30, 2007 addressed to PD Sulu PPO requiring
them to submit complete investigation report regarding the case of
Engr. Tagitis;
10. In compliance to our directives, PD Sulu PPO has exerted his
[sic] efforts to conduct investigation [sic] on the matter to
determine the whereabouts of Engr. Tagitis and the circumstances
related to his disappearance and submitted the following:
a) Progress Report dated November 6, 2007 through Radio
Message Cite No. SPNP3-1106-10-2007;
b) Radio Message Cite No. SPIDMS-1205-47-07 informing this
office that they are still monitoring the whereabouts of Engr. Tagitis;
c) Investigation Report dated December 31, 2007 from the Chief
of Police, Jolo Police Station, Sulu PPO;
11. This incident was properly reported to the PNP Higher
Headquarters as shown in the following:
a) Memorandum dated November 6, 2007 addressed to the
Chief, PNP informing him of the facts of the disappearance and the
action being taken by our office;
b) Memorandum dated November 6, 2007 addressed to the
Director, Directorate for Investigation and Detection Management,
NHQ PNP;
c) Memorandum dated December 30, 2007 addressed to the
Director, DIDM;
4) In spite of our exhaustive efforts, the whereabouts of Engr.
Tagitis cannot be determined but our office is continuously
intensifying the conduct of information gathering, monitoring and
coordination for the immediate solution of the case.
Since the disappearance of Tagistis was practically admitted and
taking note of favorable actions so far taken on the disappearance,
the CA directed Gen. Goltiao as the officer in command of the area
of disappearance to form TASK FORCE TAGITIS.[18]
Task Force Tagitis
On January 11, 2008, Gen. Goltiao designated PS Supt. Ahiron
Ajirim (PS Supt. Ajirim) to head TASK FORCE TAGITIS. [19] The CA
subsequently set three hearings to monitor whether TASK FORCE
TAGITIS was exerting extraordinary efforts in handling the
disappearance of Tagitis.[20] As planned, (1) the first hearing would
be to mobilize the CIDG, Zamboanga City; (2) the second hearing
would be to mobilize intelligence with Abu Sayyaf and ARMM; and
(3) the third hearing would be to mobilize the Chief of Police of Jolo,
Sulu and the Chief of Police of Zamboanga City and other police
operatives.[21]
In the hearing on January 17, 2008, TASK FORCE TAGITIS submitted
to the CA an intelligence report from PSL Usman S. Pingay, the
Chief of Police of the Jolo Police Station, stating a possible motive
for Tagitis disappearance.[22] The intelligence report was apparently
based on the sworn affidavit dated January 4, 2008 of Muhammad
Abdulnazeir N. Matli (Prof. Matli), Professor of Islamic Studies at the
University of the Philippines and an Honorary Student Counselor of
the IDB Scholarship Program in the Philippines, who told the
Provincial Governor of Sulu that:[23]
[Based] on reliable information from the Office of Muslim Affairs in
Manila, Tagitis has reportedly taken and carried away more or less
Five Million Pesos (P5,000,000.00) deposited and entrusted to his
[personal] bank accounts by the Central Office of IDB, Jeddah,
Kingdom of Saudi Arabia, which [was] intended for the IDB
Scholarship Fund.
In the same hearing, PS Supt. Ajirim testified that since the CIDG
was alleged to be responsible, he personally went to the CIDG
office in Zamboanga City to conduct an ocular
inspection/investigation, particularly of their detention cells. [24] PS
Supt. Ajirim stated that the CIDG, while helping TASK FORCE
TAGITIS investigate the disappearance of Tagitis, persistently
denied any knowledge or complicity in any abduction. [25] He further
testified that prior to the hearing, he had already mobilized and
given specific instructions to their supporting units to perform their
respective tasks; that they even talked to, but failed to get any lead
from the respondent in Jolo.[26] In his submitted investigation report
dated January 16, 2008, PS Supt. Ajirim concluded:[27]
9. Gleaned from the undersigned inspection and observation at the
Headquarters 9 RCIDU and the documents at hand, it is my own
initial conclusion that the 9RCIDU and other PNP units in the area
had no participation neither [sic] something to do with [sic]
mysterious disappearance of Engr. Morced Tagitis last October 30,
2007. Since doubt has been raised regarding the emolument on the
Islamic Development Bank Scholar program of IDB that was
reportedly deposited in the personal account of Engr. Tagitis by the
IDB central office in Jeddah, Kingdom of Saudi Arabia. Secondly, it
could might [sic] be done by resentment or sour grape among
students who are applying for the scholar [sic] and were denied
which was allegedly conducted/screened by the subject being the
coordinator of said program.
20. It is also premature to conclude but it does or it may and [sic]
presumed that the motive behind the disappearance of the subject
might be due to the funds he maliciously spent for his personal
interest and wanted to elude responsibilities from the institution
where he belong as well as to the Islamic student scholars should
the statement of Prof. Matli be true or there might be a professional
jealousy among them.
xxxx
It is recommended that the Writ of Amparo filed against the
respondents be dropped and dismissed considering on [sic] the
police and military actions in the area particularly the CIDG are
exerting their efforts and religiously doing their tasked [sic] in the
conduct of its intelligence monitoring and investigation for the early
resolution of this instant case. But rest assured, our office, in
coordination with other law-enforcement agencies in the area, are
continuously and religiously conducting our investigation for the
resolution of this case.
On February 4, 2008, the CA issued an ALARM WARNING that TASK
FORCE TAGITIS did not appear to be exerting extraordinary efforts
in resolving Tagitis disappearance on the following grounds: [28]
(1) This Court FOUND that it was only as late as January 28,
2008, after the hearing, that GEN. JOEL GOLTIAO and COL. AHIRON
AJIRIM had requested for clear photographs when it should have
been standard operating procedure in kidnappings or
disappearances that the first agenda was for the police to
secure clear picturesof the missing person, Engr. Morced Tagitis,
for dissemination to all parts of the country and to neighboring
countries. It had been three (3) months since GEN. JOEL GOLTIAO
admitted having been informed on November 5, 2007 of the
alleged abduction of Engr. Morced Tagitis by alleged bad elements
of the CIDG. It had been more than one (1) month since the Writ of
Amparo had been issued on December 28, 2007. It had been three
(3) weeks when battle formation was ordered through Task Force
Tagitis, on January 17, 2008. It was only on January 28, 2008 when
the Task Force Tagitis requested for clear and recent photographs of
the missing person, Engr. Morced Tagitis, despite the Task Force
Tagitis claim that they already had an all points bulletin, since
November 5, 2007, on the missing person, Engr. Morced
Tagitis. How could the police look for someone who disappeared if
no clear photograph had been disseminated?
(2) Furthermore, Task Force Tagitis COL. AHIROM AJIRIM
informed this Court that P/Supt KASIM was designated as Col.
Ahirom Ajirims replacement in the latters official designated
post. Yet, P/Supt KASIMs subpoena was returned to this Court
unserved. Since this Court was made to understand that it was
P/Supt KASIM who was the petitioners unofficial source of the
military intelligence information that Engr. Morced Tagitis was
abducted by bad elements of the CIDG (par. 15 of the Petition), the
close contact between P/Supt KASIM and Col. Ahirom Ajirim of TASK
FORCE TAGITIS should have ensured the appearance of Col. KASIM
in response to this courts subpoena and COL. KASIM could have
confirmed the military intelligence information that bad elements of
the CIDG had abducted Engr. Morced Tagitis.
Testimonies for the Respondent
On January 7, 2008, the respondent, Mary Jean B. Tagitis, testified
on direct examination that she went to Jolo and Zamboanga in her
efforts to locate her husband. She said that a friend from
Zamboanga holding a high position in the military (whom she did
not then identify) gave her information that allowed her to specify
her allegations, particularly paragraph 15 of the petition. [29] This
friend also told her that her husband [was] in good hands. [30] The
respondent also testified that she sought the assistance of her
former boss in Davao City, Land Bank Bajada Branch Manager Rudy
Salvador, who told her that PNP CIDG is holding [her husband],
Engineer Morced Tagitis.[31] The respondent recounted that she
went to Camp Katitipan in Davao City where she met Col. Julasirim
Ahadin Kasim (Col. Kasim/Sr. Supt Kasim) who read to her and her
friends (who were then with her) a highly confidential report that
contained the alleged activities of Engineer Tagitis and informed
her that her husband was abducted because he is under custodial
investigation for being a liaison for J.I. or Jemaah Islamiah. [32]
On January 17, 2008, the respondent on cross-examination testified
that she is Tagitis second wife, and they have been married for
thirteen years; Tagitis was divorced from his first wife. [33] She last
communicated with her husband on October 29, 2007 at around
7:31 p.m. through text messaging; Tagitis was then on his way to
Jolo, Sulu, from Zamboanga City.[34]
The respondent narrated that she learned of her husbands
disappearance on October 30, 2007 when her stepdaughter,
Zaynah Tagitis (Zaynah), informed her that she had not heard from
her father since the time they arranged to meet in Manila on
October 31, 2007.[35] The respondent explained that it took her a
few days (or on November 5, 2007) to personally ask Kunnong to
report her husbands disappearance to the Jolo Police Station, since
she had the impression that her husband could not communicate
with her because his cellular phones battery did not have enough
power, and that he would call her when he had fully-charged his
cellular phones battery.[36]
The respondent also identified the high-ranking military friend, who
gave her the information found in paragraph 15 of her petition, as
Lt. Col. Pedro L. Ancanan, Jr (Col. Ancanan). She met him in Camp
Karingal, Zamboanga through her boss.[37] She also testified that
she was with three other people, namely, Mrs. Marydel Martin
Talbin and her two friends from Mati City, Davao Oriental, when Col.
Kasim read to them the contents of the highly confidential report at
Camp Katitipan, Davao City. The respondent further narrated that
the report indicated that her husband met with people belonging to
a terrorist group and that he was under custodial investigation. She
then told Col. Kasim that her husband was a diabetic taking
maintenance medication, and asked that the Colonel relay to the
persons holding him the need to give him his medication. [38]
On February 11, 2008, TASK FORCE TAGITIS submitted two
narrative reports,[39] signed by the respondent, detailing her efforts
to locate her husband which led to her meetings with Col. Ancanan
of the Philippine Army and Col. Kasim of the PNP. In her narrative
report concerning her meeting with Col. Ancanan, the respondent
recounted, viz:[40]
On November 11, 2007, we went to Zamboanga City with my friend
Mrs. Marydel Talbin. Our flight from Davao City is 9:00 oclock in the
morning; we arrived at Zamboanga Airport at around 10:00
oclock. We [were] fetched by the two staffs of Col. Ancanan. We
immediately proceed [sic] to West Mindanao Command
(WESTMINCOM).
On that same day, we had private conversation with Col. Ancanan.
He interviewed me and got information about the personal
background of Engr. Morced N. Tagitis. After he gathered all
information, he revealed to us the contents of text messages they
got from the cellular phone of the subject Engr. Tagitis. One of the
very important text messages of Engr. Tagitis sent to his daughter
Zaynah Tagitis was that she was not allowed to answer any
telephone calls in his condominium unit.
While we were there he did not tell us any information of the
whereabouts of Engr. Tagitis. After the said meeting with Col.
Ancanan, he treated us as guests to the city. His two staffs
accompanied us to the mall to purchase our plane ticket going back
to Davao City on November 12, 2007.
When we arrived in Davao City on November 12, 2007 at 9:00 in
the morning, Col. Ancanan and I were discussing some points
through phone calls. He assured me that my husband is alive and
hes last looked [sic] in Talipapao, Jolo, Sulu. Yet I did not believe his
given statements of the whereabouts of my husband, because I
contacted some of my friends who have access to the groups of
MILF, MNLF and ASG. I called up Col. Ancanan several times
begging to tell me the exact location of my husband and who held
him but he refused.
While I was in Jolo, Sulu on November 30, 2007, I called him up
again because the PNP, Jolo did not give me any information of the
whereabouts of my husband. Col. Ancanan told me that Sana
ngayon alam mo na kung saan ang kinalalagyan ng asawa
mo. When I was in Zamboanga, I was thinking of dropping by the
office of Col. Ancanan, but I was hesitant to pay him a visit for the
reason that the Chief of Police of Jolo told me not to contact any
AFP officials and he promised me that he can solve the case of my
husband (Engr. Tagitis) within nine days.
I appreciate the effort of Col. Ancanan on trying to solve the case of
my husband Engr. Morced Tagitis, yet failed to do so.
The respondent also narrated her encounter with Col. Kasim, as
follows:[41]
On November 7, 2007, I went to Land Bank of the Philippines,
Bajada Branch, Davao City to meet Mr. Rudy Salvador. I told him
that my husband, Engineer Morced Tagitis was presumed to be
abducted in Jolo, Sulu on October 30, 2007. I asked him a favor to
contact his connections in the military in Jolo, Sulu where the
abduction of Engr. Tagitis took place. Mr. Salvador immediately
called up Camp Katitipan located in Davao City looking for high-
ranking official who can help me gather reliable information behind
the abduction of subject Engineer Tagitis.
On that same day, Mr. Salvador and my friend, Anna Mendoza,
Executive Secretary, accompanied me to Camp Katitipan to meet
Col. Kasim. Mr. Salvador introduced me to Col. Kasim and we had a
short conversation. And he assured me that hell do the best he can
to help me find my husband.
After a few weeks, Mr. Salvador called me up informing me up
informing me that I am to go to Camp Katitipan to meet Col. Kasim
for he has an urgent, confidential information to reveal.
On November 24, 2007, we went back to Camp Katitipan with my
three friends. That was the time that Col. Kasim read to us the
confidential report that Engr. Tagitis was allegedly connected [with]
different terrorist [groups], one of which he mentioned in the report
was OMAR PATIK and a certain SANTOS - a Balik Islam.
It is also said that Engr. Tagitis is carrying boxes of medicines for
the injured terrorists as a supplier. These are the two information
that I can still remember. It was written in a long bond paper with
PNP Letterhead. It was not shown to us, yet Col. Kasim was the one
who read it for us.
He asked a favor to me that Please dont quote my Name! Because
this is a raw report. He assured me that my husband is alive and he
is in the custody of the military for custodial investigation. I told
him to please take care of my husband because he has aliments
and he recently took insulin for he is a diabetic patient.
In my petition for writ of amparo, I emphasized the information that
I got from Kasim.
On February 11, 2008, the respondent presented Mrs. Marydel
Martin Talbin (Mrs. Talbin) to corroborate her testimony regarding
her efforts to locate her husband, in relation particularly with the
information she received from Col. Kasim. Mrs. Talbin testified that
she was with the respondent when she went to Zamboanga to see
Col. Ancanan, and to Davao City at Camp Katitipan to meet Col.
Kasim.[42]
In Zamboanga, Mrs. Talbin recounted that they met with Col.
Ancanan, who told them that there was a report and that he
showed them a series of text messages from Tagitis cellular phone,
which showed that Tagitis and his daughter would meet in Manila
on October 30, 2007.[43]
She further narrated that sometime on November 24, 2007, she
went with the respondent together with two other companions,
namely, Salvacion Serrano and Mini Leong, to Camp Katitipan to
talk to Col. Kasim.[44] The respondent asked Col. Kasim if he knew
the exact location of Engr. Tagitis. Col. Kasim told them that Tagitis
was in good hands, although he was not certain whether he was
with the PNP or with the Armed Forces of the Philippines (AFP). She
further recounted that based on the report Col. Kasim read in their
presence, Tagitis was under custodial investigation because he was
being charged with terrorism; Tagitis in fact had been under
surveillance since January 2007 up to the time he was abducted
when he was seen talking to Omar Patik and a certain Santos of
Bulacan, a Balik Islam charged with terrorism. Col. Kasim also told
them that he could not give a copy of the report because it was a
raw report.[45] She also related that the Col. Kasim did not tell them
exactly where Tagitis was being kept, although he mentioned
Talipapao, Sulu.Prof., lalabas din yan.[50] Prof. Matli also emphasized that
despite what his January 4, 2008 affidavit indicated, [51] he never
told PS Supt. Pingay, or made any accusation, that Tagitis took
away money entrusted to him.[52] Prof. Matli confirmed, however,
that that he had received an e-mail report [53] from Nuraya Lackian
of the Office of Muslim Affairs in Manila that the IDB was seeking
assistance of the office in locating the funds of IDB scholars
deposited in Tagitis personal account.[54]
On cross-examination by the respondents counsel, Prof. Matli
testified that his January 4, 2008 affidavit was already prepared
when PS Supt. Pingay asked him to sign it. [55] Prof Matli clarified that
although he read the affidavit before signing it, he was not so much
aware of [its] contents.[56]
On February 11, 2008, the petitioners presented Col. Kasim to rebut
material portions of the respondents testimony, particularly the
allegation that he had stated that Tagitis was in the custody of
either the military or the PNP. [57] Col. Kasim categorically denied the
statements made by the respondent in her narrative report,
specifically: (1) that Tagitis was seen carrying boxes of medicines as
supplier for the injured terrorists; (2) that Tagitis was under the
custody of the military, since he merely said to the respondent
that your husband is in good hands and is probably taken
cared of by his armed abductors; and (3) that Tagitis was under
custodial investigation by the military, the PNP or the CIDG
Zamboanga City.[58] Col. Kasim emphasized that the informal letter
he received from his informant in Sulu did not indicate that Tagitis
was in the custody of the CIDG. [59] He also stressed that the
information he provided to the respondent was merely a raw report
sourced from barangay intelligence that still needed confirmation
and follow-up as to its veracity.[60]
On cross-examination, Col. Kasim testified that the information he
gave the respondent was given to him by his informant, who was a
civilian asset, through a letter which he considered as unofficial.
[61]
Col. Kasim stressed that the letter was only meant for his
consumption and not for reading by others. [62] He testified further
that he destroyed the letter right after he read it to the respondent
and her companions because it was not important to him and also
because the information it contained had no importance in relation
with the abduction of Tagitis.[63] He explained that he did not keep
the letter because it did not contain any information regarding the
whereabouts of Tagitis and the person(s) responsible for his
abduction.[64]
In the same hearing on February 11, 2008, the petitioners also
presented Police Senior Superintendent Jose Volpane Pante (Col.
Pante), Chief of the CIDG-9, to disprove the respondents allegation
that Tagitis was in the custody of CIDG-Zamboanga City. [65] Col.
Pante clarified that the CIDG was the investigative arm of the PNP,
and that the CIDG investigates and prosecutes all cases involving
violations in the Revised Penal Code particularly those considered
as heinous crimes.[66] Col. Pante further testified that the allegation
that 9 RCIDU personnel were involved in the disappearance of
Tagitis was baseless, since they did not conduct any operation in
Jolo, Sulu before or after Tagitis reported disappearance. [67] Col.
Pante added that the four (4) personnel assigned to the Sulu CIDT
had no capability to conduct any operation, since they were only
assigned to investigate matters and to monitor the terrorism
situation.[68] He denied that his office conducted any surveillance on
Tagitis prior to the latters disappearance. [69] Col. Pante further
testified that his investigation of Tagitis disappearance was
unsuccessful; the investigation was still facing a blank wall on the
whereabouts of Tagitis.[70]
THE CA RULING
On March 7, 2008, the CA issued its decision [71] confirming that the
disappearance of Tagitis was an enforced disappearance under the
United Nations (UN) Declaration on the Protection of All Persons
from Enforced Disappearances.[72] The CA ruled that when military
intelligence pinpointed the investigative arm of the PNP (CIDG) to
be involved in the abduction, the missing-person case qualified as
an enforced disappearance. The conclusion that the CIDG was
involved was based on the respondents testimony, corroborated by
her companion, Mrs. Talbin. The CA noted that the information that
the CIDG, as the police intelligence arm, was involved in Tagitis
abduction came from no less than the military an independent
agency of government. The CA thus greatly relied on the raw report
from Col. Kasims asset, pointing to the CIDGs involvement in Tagitis
abduction. The CA held that raw reports from an asset carried great
weight in the intelligence world. It also labeled as suspect Col.
Kasims subsequent and belated retraction of his statement that the
military, the police, or the CIDG was involved in the abduction of
Tagitis.
The CA characterized as too farfetched and unbelievable and a
bedlam of speculation police theories painting the disappearance
as intentional on the part of Tagitis. He had no previous brushes
with the law or any record of overstepping the bounds of any trust
regarding money entrusted to him; no student of the IDB
scholarship program ever came forward to complain that he or she
did not get his or her stipend. The CA also found no basis for the
police theory that Tagitis was trying to escape from the clutches of
his second wife, on the basis of the respondents testimony that
Tagitis was a Muslim who could have many wives under the Muslim
faith, and that there was no issue at all when the latter divorced his
first wife in order to marry the second. Finally, the CA also ruled out
kidnapping for ransom by the Abu Sayyaf or by the ARMM
paramilitary as the cause for Tagitis disappearance, since the
respondent, the police and the military noted that there was no
acknowledgement of Tagitis abduction or demand for payment of
ransom the usual modus operandi of these terrorist groups.
Based on these considerations, the CA thus extended the privilege
of the writ to Tagitis and his family, and directed the CIDG Chief,
Col. Jose Volpane Pante, PNP Chief Avelino I. Razon, TASK FORCE
TAGITIS heads Gen. Joel Goltiao and Col. Ahiron Ajirim, and PACER
Chief Sr. Supt. Leonardo A. Espina to exert extraordinary diligence
and efforts to protect the life, liberty and security of Tagitis, with
the obligation to provide monthly reports of their actions to the
CA. At the same time, the CA dismissed the petition against the
then respondents from the military, Lt. Gen Alexander Yano and
Gen. Ruben Rafael, based on the finding that it was PNP-CIDG, not
the military, that was involved.
On March 31, 2008, the petitioners moved to reconsider the CA
decision, but the CA denied the motion in its Resolution of April 9,
2008.[73]
THE PETITION
In this Rule 45 appeal questioning the CAs March 7, 2008 decision,
the petitioners mainly dispute the sufficiency in form and substance
of the Amparo petition filed before the CA; the sufficiency of the
legal remedies the respondent took before petitioning for the writ;
the finding that the rights to life, liberty and security of Tagitis had
been violated; the sufficiency of evidence supporting the conclusion
that Tagitis was abducted; the conclusion that the CIDG
Zamboanga was responsible for the abduction; and, generally, the
ruling that the respondent discharged the burden of proving the
allegations of the petition by substantial evidence.[74]
THE COURTS RULING
We do not find the petition meritorious.
Sufficiency in Form and Substance
In questioning the sufficiency in form and substance of the
respondents Amparo petition, the petitioners contend that the
petition violated Section 5(c), (d), and (e) of
the Amparo Rule. Specifically, the petitioners allege that the
respondent failed to:
1) allege any act or omission the petitioners committed in
violation of Tagitis rights to life, liberty and security;
2) allege in a complete manner how Tagitis was abducted, the
persons responsible for his disappearance, and the respondents
source of information;
3) allege that the abduction was committed at the petitioners
instructions or with their consent;
4) implead the members of CIDG regional office in Zamboanga
alleged to have custody over her husband;
5) attach the affidavits of witnesses to support her accusations;
6) allege any action or inaction attributable to the petitioners in
the performance of their duties in the investigation of Tagitis
disappearance; and
7) specify what legally available efforts she took to determine the
fate or whereabouts of her husband.
A petition for the Writ of Amparo shall be signed and verified and
shall allege, among others (in terms of the portions the petitioners
cite):[75]
(c) The right to life, liberty and security of the aggrieved
party violated or threatened with violation by an unlawful
act or omission of the respondent, and how such threat or
violation is committed with the attendant circumstances
detailed in supporting affidavits;
(d) The investigation conducted, if any, specifying the
names, personal circumstances, and addresses of the
investigating authority or individuals, as well as the manner
and conduct of the investigation, together with any report;
(e) The actions and recourses taken by the petitioner to
determine the fate or whereabouts of the aggrieved party
and the identity of the person responsible for the threat,
act or omission; and
The framers of the Amparo Rule never intended Section 5(c) to be
complete in every detail in stating the threatened or actual
violation of a victims rights. As in any other initiatory pleading, the
pleader must of course state the ultimate facts constituting the
cause of action, omitting the evidentiary details. [76] In
an Amparo petition, however, this requirement must be read in
light of the nature and purpose of the proceeding, which addresses
a situation of uncertainty; the petitioner may not be able to
describe with certainty how the victim exactly disappeared, or who
actually acted to kidnap, abduct or arrest him or her, or where the
victim is detained, because these information may purposely be
hidden or covered up by those who caused the disappearance. In
this type of situation, to require the level of specificity, detail and
precision that the petitioners apparently want to read into
the Amparo Rule is to make this Rule a token gesture of judicial
concern for violations of the constitutional rights to life, liberty and
security.
To read the Rules of Court requirement on pleadings while
addressing the unique Amparo situation, the test in reading the
petition should be to determine whether it contains the
details available to the petitioner under the circumstances, while
presenting a cause of action showing a violation of the victims
rights to life, liberty and security through State or private party
action. The petition should likewise be read in its totality, rather
than in terms of its isolated component parts, to determine if the
required elements namely, of the disappearance, the State or
private action, and the actual or threatened violations of the rights
to life, liberty or security are present.
In the present case, the petition amply recites in its paragraphs 4 to
11 the circumstances under which Tagitis suddenly dropped out of
sight after engaging in normal activities, and thereafter was
nowhere to be found despite efforts to locate him. The petition
alleged, too, under its paragraph 7, in relation to paragraphs 15
and 16, that according to reliable information, police operatives
were the perpetrators of the abduction. It also clearly alleged how
Tagitis rights to life, liberty and security were violated when he was
forcibly taken and boarded on a motor vehicle by a couple of burly
men believed to be police intelligence operatives, and then taken
into custody by the respondents police intelligence operatives since
October 30, 2007, specifically by the CIDG, PNP Zamboanga City, x
x x held against his will in an earnest attempt of the police to
involve and connect [him] with different terrorist groups.[77]
These allegations, in our view, properly pleaded ultimate facts
within the pleaders knowledge about Tagitis disappearance, the
participation by agents of the State in this disappearance, the
failure of the State to release Tagitis or to provide sufficient
information about his whereabouts, as well as the actual violation
of his right to liberty. Thus, the petition cannot be faulted for any
failure in its statement of a cause of action.
If a defect can at all be attributed to the petition, this defect is its
lack of supporting affidavit, as required by Section 5(c) of
the Amparo Rule. Owing to the summary nature of the proceedings
for the writ and to facilitate the resolution of the petition,
the Amparo Rule incorporated the requirement for supporting
affidavits, with the annotation that these can be used as the
affiants direct testimony.[78] This requirement, however, should not
be read as an absolute one that necessarily leads to the dismissal
of the petition if not strictly followed. Where, as in this case, the
petitioner has substantially complied with the requirement by
submitting a verified petition sufficiently detailing the facts relied
upon, the strict need for the sworn statement that an affidavit
represents is essentially fulfilled. We note that the failure to attach
the required affidavits was fully cured when the respondent and her
witness (Mrs. Talbin) personally testified in the CA hearings held on
January 7 and 17 and February 18, 2008 to swear to and flesh out
the allegations of the petition. Thus, even on this point, the petition
cannot be faulted.
Section 5(d) of the Amparo Rule requires that prior investigation of
an alleged disappearance must have been made, specifying the
manner and results of the investigation. Effectively, this
requirement seeks to establish at the earliest opportunity the level
of diligence the public authorities undertook in relation with the
reported disappearance.[79]
We reject the petitioners argument that the respondents petition
did not comply with the Section 5(d) requirements of
the Amparo Rule, as the petition specifies in its paragraph 11 that
Kunnong and his companions immediately reported Tagitis
disappearance to the police authorities in Jolo, Sulu as soon as they
were relatively certain that he indeed had disappeared. The police,
however, gave them the ready answer that Tagitis could have been
abducted by the Abu Sayyaf group or other anti-government
groups. The respondent also alleged in paragraphs 17 and 18 of her
petition that she filed a complaint with the PNP Police Station in
Cotobato and in Jolo, but she was told of an intriguing tale by the
police that her husband was having a good time with another
woman. The disappearance was alleged to have been reported, too,
to no less than the Governor of the ARMM, followed by the
respondents personal inquiries that yielded the factual bases for
her petition.[80]
These allegations, to our mind, sufficiently specify that reports have
been made to the police authorities, and that investigations should
have followed. That the petition did not state the manner and
results of the investigation that the Amparo Rule requires, but
rather generally stated the inaction of the police, their failure to
perform their duty to investigate, or at the very least, their reported
failed efforts, should not be a reflection on the completeness of the
petition. To require the respondent to elaborately specify the
names, personal circumstances, and addresses of the investigating
authority, as well the manner and conduct of the investigation is an
overly strict interpretation of Section 5(d), given the respondents
frustrations in securing an investigation with meaningful results.
Under these circumstances, we are more than satisfied that the
allegations of the petition on the investigations undertaken are
sufficiently complete for purposes of bringing the petition forward.
Section 5(e) is in the Amparo Rule to prevent the use of a petition
that otherwise is not supported by sufficient allegations to
constitute a proper cause of action as a means to fish for evidence.
[81]
The petitioners contend that the respondents petition did not
specify what legally available efforts were taken by the respondent,
and that there was an undue haste in the filing of the petition
when, instead of cooperating with authorities, the respondent
immediately invoked the Courts intervention.
We do not see the respondents petition as the petitioners view it.
Section 5(e) merely requires that the Amparo petitioner (the
respondent in the present case) allege the actions and recourses
taken to determine the fate or whereabouts of the aggrieved party
and the identity of the person responsible for the threat, act or
omission. The following allegations of the respondents petition duly
outlined the actions she had taken and the frustrations she
encountered, thus compelling her to file her petition.
xxxx
7. Soon after the student left the room, Engr. Tagitis went out of the
pension house to take his early lunch but while out on the street, a
couple of burly men believed to be police intelligence operatives,
forcibly took him and boarded the latter on a motor vehicle then
sped away without the knowledge of his student, Arsimin Kunnong;
xxxx
10. When Kunnong could not locate Engr. Tagitis, the former sought
the help of another IDB scholar and reported the matter to the local
police agency;
11. Arsimin Kunnong, including his friends and companions in Jolo,
exerted efforts in trying to locate the whereabouts of Engr. Tagitis
and when he reported the matter to the police authorities in Jolo,
he was immediately given a ready answer that Engr. Tagitis could
[have been] abducted by the Abu Sayyaf group and other groups
known to be fighting against the government;
12. Being scared with these suggestions and insinuations of the
police officers, Kunnong reported the matter to the [respondent]
(wife of Engr. Tagitis) by phone and other responsible officers and
coordinators of the IDB Scholarship Programme in the Philippines
who alerted the office of the Governor of ARMM who was then
preparing to attend the OIC meeting in Jeddah, Saudi Arabia;
13. [The respondent], on the other hand, approached some of her
co-employees with the Land Bank in Digos branch, Digos City,
Davao del Sur, who likewise sought help from some of their friends
in the military who could help them find/locate the whereabouts of
her husband;
xxxx
15. According to reliable information received by the [respondent],
subject Engr. Tagitis is in the custody of police intelligence
operatives, specifically with the CIDG, PNP Zamboanga City, being
held against his will in an earnest attempt of the police to involve
and connect Engr. Tagitis with the different terrorist groups;
xxxx
17. [The respondent] filed her complaint with the PNP Police Station
at the ARMM in Cotobato and in Jolo, as suggested by her friends,
seeking their help to find her husband, but [the respondents]
request and pleadings failed to produce any positive results
xxxx
20. Lately, [respondent] was again advised by one of the
[petitioners] to go to the ARMM Police Headquarters again in
Cotobato City and also to the different Police Headquarters
including the police headquarters in Davao City, in Zamboanga
City, in Jolo, and in Camp Crame, Quezon City, and all these places
have been visited by the [respondent] in search for her husband,
which entailed expenses for her trips to these places thereby
resorting her to borrowings and beggings [sic] for financial help
from friends and relatives only to try complying to the different
suggestions of these police officers, despite of which, her efforts
produced no positive results up to the present time;
xxxx
25. [The respondent] has exhausted all administrative avenues and
remedies but to no avail, and under the circumstances,
[respondent] has no other plain, speedy and adequate remedy to
protect and get the release of subject Engr. Morced Tagitis from the
illegal clutches of [the petitioners], their intelligence operatives and
the like which are in total violation of the subjects human and
constitutional rights, except the issuance of a WRIT OF AMPARO.
Based on these considerations, we rule that the respondents
petition for the Writ of Amparo is sufficient in form and substance
and that the Court of Appeals had every reason to proceed with its
consideration of the case.
The Desaparecidos
The present case is one of first impression in the use and
application of the Rule on the Writ of Amparo in an enforced
disappearance situation. For a deeper appreciation of the
application of this Rule to an enforced disappearance situation, a
brief look at the historical context of the writ and enforced
disappearances would be very helpful.
The phenomenon of enforced disappearance arising from State
action first attracted notice in Adolf Hitlers Nact und Nebel Erlass or
Night and Fog Decree of December 7, 1941. [82] The Third Reichs
Night and Fog Program, a State policy, was directed at persons in
occupied territories endangering German security; they were
transported secretly to Germany where they disappeared without a
trace. In order to maximize the desired intimidating effect, the
policy prohibited government officials from providing information
about the fate of these targeted persons.[83]
In the mid-1970s, the phenomenon of enforced disappearances
resurfaced, shocking and outraging the world when individuals,
numbering anywhere from 6,000 to 24,000, were reported to have
disappeared during the military regime in Argentina. Enforced
disappearances spread in Latin America, and the issue became an
international concern when the world noted its widespread and
systematic use by State security forces in that continent under
Operation Condor[84] and during the Dirty War [85] in the 1970s and
1980s. The escalation of the practice saw political activists secretly
arrested, tortured, and killed as part of governments counter-
insurgency campaigns. As this form of political brutality became
routine elsewhere in the continent, the Latin American media
standardized the term disappearance to describe the phenomenon.
The victims of enforced disappearances were called
the desaparecidos,[86] which literally means the disappeared ones.
[87]
In general, there are three different kinds of disappearance
cases:
1) those of people arrested without witnesses or without positive
identification of the arresting agents and are never found again;
2) those of prisoners who are usually arrested without an
appropriate warrant and held in complete isolation for weeks or
months while their families are unable to discover their
whereabouts and the military authorities deny having them in
custody until they eventually reappear in one detention center or
another; and
3) those of victims of salvaging who have disappeared until their
lifeless bodies are later discovered. [88]
In the Philippines, enforced disappearances generally fall within the
first two categories,[89] and 855 cases were recorded during the
period of martial law from 1972 until 1986. Of this number, 595
remained missing, 132 surfaced alive and 127 were found dead.
During former President Corazon C. Aquinos term, 820 people were
reported to have disappeared and of these, 612 cases were
documented. Of this number, 407 remain missing, 108 surfaced
alive and 97 were found dead. The number of enforced
disappearances dropped during former President Fidel V. Ramos
term when only 87 cases were reported, while the three-year term
of former President Joseph E. Estrada yielded 58 reported
cases. KARAPATAN, a local non-governmental organization, reports
that as of March 31, 2008, the records show that there were a total
of 193 victims of enforced disappearance under incumbent
President Gloria M. Arroyos administration.The Commission on
Human Rights records show a total of 636 verified cases of
enforced disappearances from 1985 to 1993. Of this number, 406
remained missing, 92 surfaced alive, 62 were found dead, and 76
still have undetermined status.[90] Currently, the United Nations
Working Group on Enforced or Involuntary Disappearance [91] reports
619 outstanding cases of enforced or involuntary disappearances
covering the period December 1, 2007 to November 30, 2008. [92]
Enforced Disappearances
Under Philippine Law
The Amparo Rule expressly provides that the writ shall cover
extralegal killings and enforced disappearances or threats thereof.
[93]
We note that although the writ specifically covers enforced
disappearances, this concept is neither defined nor penalized in
this jurisdiction. The records of the Supreme Court Committee on
the Revision of Rules (Committee) reveal that the drafters of
the Amparo Rule initially considered providing an elemental
definition of the concept of enforced disappearance:[94]
JUSTICE MARTINEZ: I believe that first and foremost we should
come up or formulate a specific definition [for] extrajudicial killings
and enforced disappearances. From that definition, then we can
proceed to formulate the rules, definite rules concerning the same.
CHIEF JUSTICE PUNO: As things stand, there is no law
penalizing extrajudicial killings and enforced
disappearances so initially also we have to [come up with]
the nature of these extrajudicial killings and enforced
disappearances [to be covered by the Rule] because our
concept of killings and disappearances will define the
jurisdiction of the courts. So well have to agree among
ourselves about the nature of killings and disappearances for
instance, in other jurisdictions, the rules only cover state
actors. That is an element incorporated in their concept of
extrajudicial killings and enforced disappearances. In other
jurisdictions, the concept includes acts and omissions not only of
state actors but also of non state actors. Well, more specifically in
the case of the Philippines for instance, should these rules include
the killings, the disappearances which may be authored by let us
say, the NPAs or the leftist organizations and others. So, again we
need to define the nature of the extrajudicial killings and enforced
disappearances that will be covered by these rules. [Emphasis
supplied] [95]
In the end, the Committee took cognizance of several bills filed in
the House of Representatives[96] and in the Senate[97] on
extrajudicial killings and enforced disappearances, and resolved to
do away with a clear textual definition of these terms in the
Rule. The Committee instead focused on the nature and scope of
the concerns within its power to address and provided the
appropriate remedy therefor, mindful that an elemental definition
may intrude into the ongoing legislative efforts.[98]
As the law now stands, extra-judicial killings and enforced
disappearances in this jurisdiction are not crimes penalized
separately from the component criminal acts undertaken to carry
out these killings and enforced disappearances and are now
penalized under the Revised Penal Code and special laws. [99] The
simple reason is that the Legislature has not spoken on the matter;
the determination of what acts are criminal and what the
corresponding penalty these criminal acts should carry are matters
of substantive law that only the Legislature has the power to enact
under the countrys constitutional scheme and power structure.
Even without the benefit of directly applicable substantive laws on
extra-judicial killings and enforced disappearances, however, the
Supreme Court is not powerless to act under its own constitutional
mandate to promulgate rules concerning the protection and
enforcement of constitutional rights, pleading, practice and
procedure in all courts,[100] since extrajudicial killings and enforced
disappearances, by their nature and purpose, constitute State or
private party violation of the constitutional rights of individuals to
life, liberty and security. Although the Courts power is strictly
procedural and as such does not diminish, increase or modify
substantive rights, the legal protection that the Court can provide
can be very meaningful through the procedures it sets in
addressing extrajudicial killings and enforced disappearances. The
Court, through its procedural rules, can set the procedural
standards and thereby directly compel the public authorities to act
on actual or threatened violations of constitutional rights. To state
the obvious, judicial intervention can make a difference even if only
procedurally in a situation when the very same investigating public
authorities may have had a hand in the threatened or actual
violations of constitutional rights.
Lest this Court intervention be misunderstood, we clarify once
again that we do not rule on any issue of criminal culpability for the
extrajudicial killing or enforced disappearance. This is an issue that
requires criminal action before our criminal courts based on our
existing penal laws. Our intervention is in determining whether an
enforced disappearance has taken place and who is responsible or
accountable for this disappearance, and to define and impose the
appropriate remedies to address it. The burden for the public
authorities to discharge in these situations, under the Rule on the
Writ of Amparo, is twofold. The firstis to ensure that all efforts
at disclosure and investigation are undertaken under pain of
indirect contempt from this Court when governmental efforts are
less than what the individual situations require. The second is to
address the disappearance, so that the life of the victim is
preserved and his or her liberty and security restored. In these
senses, our orders and directives relative to the writ are continuing
efforts that are not truly terminated until the extrajudicial killing or
enforced disappearance is fully addressed by the complete
determination of the fate and the whereabouts of the victim, by the
production of the disappeared person and the restoration of his or
her liberty and security, and, in the proper case, by the
commencement of criminal action against the guilty parties.
Enforced Disappearance
Under International Law
From the International Law perspective, involuntary or enforced
disappearance is considered a flagrant violation of human rights.
[101]
It does not only violate the right to life, liberty and security of
the desaparecido; it affects their families as well through the denial
of their right to information regarding the circumstances of the
disappeared family member. Thus, enforced disappearances have
been said to be a double form of torture, with doubly paralyzing
impact for the victims, as they are kept ignorant of their own fates,
while family members are deprived of knowing the whereabouts of
their detained loved ones and suffer as well the serious economic
hardship and poverty that in most cases follow the disappearance
of the household breadwinner.[102]
The UN General Assembly first considered the issue of Disappeared
Persons in December 1978 under Resolution 33/173. The Resolution
expressed the General Assemblys deep concern arising from
reports from various parts of the world relating to enforced or
involuntary disappearances, and requested the UN Commission on
Human Rights to consider the issue of enforced disappearances
with a view to making appropriate recommendations.[103]
In 1992, in response to the reality that the insidious practice of
enforced disappearance had become a global phenomenon, the UN
General Assembly adopted the Declaration on the Protection of
All Persons from Enforced Disappearance (Declaration).
[104]
This Declaration, for the first time, provided in its third
preambular clause a working description of enforced
disappearance, as follows:
Deeply concerned that in many countries, often in a persistent
manner, enforced disappearances occur, in the sense that
persons are arrested, detained or abducted against their
will or otherwise deprived of their liberty by officials of
different branches or levels of Government, or by organized
groups or private individuals acting on behalf of, or with the
support, direct or indirect, consent or acquiescence of the
Government, followed by a refusal to disclose the fate or
whereabouts of the persons concerned or a refusal to
acknowledge the deprivation of their liberty, which places
such persons outside the protection of the law. [Emphasis supplied]
Fourteen years after (or on December 20, 2006), the UN General
Assembly adopted the International Convention for the Protection
of All Persons from Enforced Disappearance (Convention).[105] The
Convention was opened for signature in Paris, France on February
6, 2007.[106] Article 2 of the Convention defined enforced
disappearance as follows:
For the purposes of this Convention, enforced disappearance is
considered to be the arrest, detention, abduction or any other form
of deprivation of liberty by agents of the State or by persons or
groups of persons acting with the authorization, support or
acquiescence of the State, followed by a refusal to acknowledge
the deprivation of liberty or by concealment of the fate or
whereabouts of the disappeared person, which place such a person
outside the protection of the law. [Emphasis supplied]
The Convention is the first universal human rights instrument to
assert that there is a right not to be subject to enforced
disappearance[107] and that this right is non-derogable. [108] It
provides that no one shall be subjected to enforced disappearance
under any circumstances, be it a state of war, internal political
instability, or any other public emergency. It obliges State Parties to
codify enforced disappearance as an offense punishable with
appropriate penalties under their criminal law. [109] It also recognizes
the right of relatives of the disappeared persons and of the society
as a whole to know the truth on the fate and whereabouts of the
disappeared and on the progress and results of the investigation.
[110]
Lastly, it classifies enforced disappearance as a continuing
offense, such that statutes of limitations shall not apply until the
fate and whereabouts of the victim are established.[111]
Binding Effect of UN
Action on the Philippines
To date, the Philippines has neither signed nor ratified the
Convention, so that the country is not yet committed to enact any
law penalizing enforced disappearance as a crime. The absence of
a specific penal law, however, is not a stumbling block for action
from this Court, as heretofore mentioned; underlying every
enforced disappearance is a violation of the constitutional rights to
life, liberty and security that the Supreme Court is mandated by the
Constitution to protect through its rule-making powers.
Separately from the Constitution (but still pursuant to its terms),
the Court is guided, in acting on Amparo cases, by the reality that
the Philippines is a member of the UN, bound by its Charter and by
the various conventions we signed and ratified, particularly the
conventions touching on humans rights. Under the UN Charter, the
Philippines pledged to promote universal respect for, and
observance of, human rights and fundamental freedoms for all
without distinctions as to race, sex, language or religion.
[112]
Although no universal agreement has been reached on the
precise extent of the human rights and fundamental freedoms
guaranteed to all by the Charter, [113] it was the UN itself that issued
the Declaration on enforced disappearance, and this Declaration
states:[114]
Any act of enforced disappearance is an offence to dignity. It is
condemned as a denial of the purposes of the Charter of the
United Nations and as a grave and flagrant violation of
human rights and fundamental freedoms proclaimed in the
Universal Declaration of Human Rights and reaffirmed and
developed in international instruments in this field. [Emphasis
supplied]
As a matter of human right and fundamental freedom and as a
policy matter made in a UN Declaration, the ban on enforced
disappearance cannot but have its effects on the country, given our
own adherence to generally accepted principles of international law
as part of the law of the land.[115]
In the recent case of Pharmaceutical and Health Care Association
of the Philippines v. Duque III,[116] we held that:
Under the 1987 Constitution, international law can become part of
the sphere of domestic law either
by transformation or incorporation. The transformation method
requires that an international law be transformed into a domestic
law through a constitutional mechanism such as local
legislation. The incorporation method applies when, by mere
constitutional declaration, international law is deemed to
have the force of domestic law. [Emphasis supplied]
We characterized generally accepted principles of international law
as norms of general or customary international law that are binding
on all states. We held further:[117]
[G]enerally accepted principles of international law, by virtue of the
incorporation clause of the Constitution, form part of the laws of the
land even if they do not derive from treaty obligations.
The classical formulation in international law sees
those customary rules accepted as binding result from the
combination [of] two elements: the established, widespread,
and consistent practice on the part of States; and
a psychological element known as the opinion juris sive
necessitates (opinion as to law or necessity). Implicit in the latter
element is a belief that the practice in question is rendered
obligatory by the existence of a rule of law requiring it.
[Emphasis in the original]
The most widely accepted statement of sources of international law
today is Article 38(1) of the Statute of the International Court of
Justice, which provides that the Court shall apply international
custom, as evidence of a general practice accepted as law. [118] The
material sources of custom include State practice, State legislation,
international and national judicial decisions, recitals in treaties and
other international instruments, a pattern of treaties in the same
form, the practice of international organs, and resolutions relating
to legal questions in the UN General Assembly.[119] Sometimes
referred to as evidence of international law, [120] these sources
identify the substance and content of the obligations of States and
are indicative of the State practice and opinio juris requirements of
international law.[121] We note the following in these respects:
First, barely two years from the adoption of the Declaration, the
Organization of American States (OAS) General Assembly adopted
the Inter-American Convention on Enforced Disappearance of
Persons in June 1994.[122] State parties undertook under this
Convention not to practice, permit, or tolerate the forced
disappearance of persons, even in states of emergency or
suspension of individual guarantees.[123] One of the key provisions
includes the States obligation to enact the crime of forced
disappearance in their respective national criminal laws and to
establish jurisdiction over such cases when the crime was
committed within their jurisdiction, when the victim is a national of
that State, and when the alleged criminal is within its territory and
it does not proceed to extradite him, which can be interpreted as
establishing universal jurisdiction among the parties to the Inter-
American Convention.[124] At present, Colombia, Guatemala,
Paraguay, Peru and Venezuela have enacted separate laws in
accordance with the Inter-American Convention and have defined
activities involving enforced disappearance to be criminal. [125]
Second, in Europe, the European Convention on Human Rights has
no explicit provision dealing with the protection against enforced
disappearance. The European Court of Human Rights (ECHR),
however, has applied the Convention in a way that provides ample
protection for the underlying rights affected by enforced
disappearance through the Conventions Article 2 on the right to
life; Article 3 on the prohibition of torture; Article 5 on the right to
liberty and security; Article 6, paragraph 1 on the right to a fair
trial; and Article 13 on the right to an effective remedy. A leading
example demonstrating the protection afforded by the European
Convention is Kurt v. Turkey,[126] where the ECHR found a violation
of the right to liberty and security of the disappeared person when
the applicants son disappeared after being taken into custody by
Turkish forces in the Kurdish village of Agilli in November 1993. It
further found the applicant (the disappeared persons mother) to be
a victim of a violation of Article 3, as a result of the silence of the
authorities and the inadequate character of the investigations
undertaken. The ECHR also saw the lack of any meaningful
investigation by the State as a violation of Article 13.[127]
Third, in the United States, the status of the prohibition on enforced
disappearance as part of customary international law is recognized
in the most recent edition of Restatement of the Law: The Third,
[128]
which provides that [a] State violates international law if, as a
matter of State policy, it practices, encourages, or condones (3) the
murder or causing the disappearance of individuals. [129] We
significantly note that in a related matter that finds close
identification with enforced disappearance the matter of torture the
United States Court of Appeals for the Second Circuit Court held
in Filartiga v. Pena-Irala[130] that the prohibition on torture had
attained the status of customary international law. The court
further elaborated on the significance of UN declarations, as
follows:
These U.N. declarations are significant because they specify with
great precision the obligations of member nations under the
Charter. Since their adoption, "(m)embers can no longer contend
that they do not know what human rights they promised in the
Charter to promote. Moreover, a U.N. Declaration is, according to
one authoritative definition, "a formal and solemn instrument,
suitable for rare occasions when principles of great and lasting
importance are being enunciated. Accordingly, it has been
observed that the Universal Declaration of Human Rights "no
longer fits into the dichotomy of binding treaty against non-binding
pronouncement,' but is rather an authoritative statement of the
international community." Thus, a Declaration creates an
expectation of adherence, and "insofar as the expectation is
gradually justified by State practice, a declaration may by custom
become recognized as laying down rules binding upon the States."
Indeed, several commentators have concluded that the Universal
Declaration has become, in toto, a part of binding, customary
international law. [Citations omitted]
Fourth, in interpreting Article 2 (right to an effective domestic
remedy) of the International Convention on Civil and Political Rights
(ICCPR), to which the Philippines is both a signatory and a State
Party, the UN Human Rights Committee, under the Office of the
High Commissioner for Human Rights, has stated that the act of
enforced disappearance violates Articles 6 (right to life), 7
(prohibition on torture, cruel, inhuman or degrading treatment or
punishment) and 9 (right to liberty and security of the person) of
the ICCPR, and the act may also amount to a crime against
humanity.[131]
Fifth, Article 7, paragraph 1 of the 1998 Rome Statute establishing
the International Criminal Court (ICC) also covers enforced
disappearances insofar as they are defined as crimes against
humanity,[132] i.e., crimes committed as part of a widespread or
systematic attack against any civilian population, with knowledge
of the attack. While more than 100 countries have ratified the
Rome Statute,[133] the Philippines is still merely a signatory and has
not yet ratified it. We note that Article 7(1) of the Rome Statute has
been incorporated in the statutes of other international and hybrid
tribunals, including Sierra Leone Special Court, the Special Panels
for Serious Crimes in Timor-Leste, and the Extraordinary Chambers
in the Courts of Cambodia.[134] In addition, the implementing
legislation of State Parties to the Rome Statute of the ICC has given
rise to a number of national criminal provisions also covering
enforced disappearance.[135]
While the Philippines is not yet formally bound by the terms of the
Convention on enforced disappearance (or by the specific terms of
the Rome Statute) and has not formally declared enforced
disappearance as a specific crime, the above recital shows
that enforced disappearance as a State practice has been
repudiated by the international community, so that the ban
on it is now a generally accepted principle of international
law, which we should consider a part of the law of the land,
and which we should act upon to the extent already allowed
under our laws and the international conventions that bind
us.
The following civil or political rights under the Universal Declaration
of Human Rights, the ICCPR and the International Convention on
Economic, Social and Cultural Rights (ICESR) may be infringed in
the course of a disappearance:[136]
1) the right to recognition as a person before the law;
2) the right to liberty and security of the person;
3) the right not to be subjected to torture and other cruel, inhuman
or degrading treatment or punishment;
4) the right to life, when the disappeared person is killed;
5) the right to an identity;
6) the right to a fair trial and to judicial guarantees;
7) the right to an effective remedy, including reparation and
compensation;
8) the right to know the truth regarding the circumstances
of a disappearance.
9) the right to protection and assistance to the family;
10) the right to an adequate standard of living;
11) the right to health; and
12) the right to education [Emphasis supplied]
Article 2 of the ICCPR, which binds the Philippines as a state party,
provides:
Article 2
3. Each State Party to the present Covenant undertakes:
(a) To ensure that any person whose rights or freedoms as herein
recognized are violated shall have an effective remedy,
notwithstanding that the violation has been committed by
persons acting in an official capacity;
(b) To ensure that any person claiming such a remedy shall
have his right thereto determined by competent judicial,
administrative or legislative authorities, or by any other
competent authority provided for by the legal system of the State,
and to develop the possibilities of judicial remedy;
(c) To ensure that the competent authorities shall enforce such
remedies when granted. [Emphasis supplied]
In General Comment No. 31, the UN Human Rights Committee
opined that the right to an effective remedy under Article 2 of the
ICCPR includes the obligation of the State to investigate ICCPR
violations promptly, thoroughly, and effectively, viz:[137]
15. Article 2, paragraph 3, requires that in addition to effective
protection of Covenant rights, States Parties must ensure that
individuals also have accessible and effective remedies to
vindicate those rights The Committee attaches importance to
States Parties' establishing appropriate judicial
and administrative mechanisms for addressing claims of rights
violations under domestic law Administrative mechanisms are
particularly required to give effect to the general obligation
to investigate allegations of violations promptly, thoroughly
and effectively through independent and impartial bodies. A
failure by a State Party to investigate allegations of violations could
in and of itself give rise to a separate breach of the Covenant.
Cessation of an ongoing violation is an essential element of the
right to an effective remedy. [Emphasis supplied]
The UN Human Rights Committee further stated in the same
General Comment No. 31 that failure to investigate as well as
failure to bring to justice the perpetrators of ICCPR violations could
in and of itself give rise to a separate breach of the Covenant, thus:
[138]
18. Where the investigations referred to in paragraph 15 reveal
violations of certain Covenant rights, States Parties must ensure
that those responsible are brought to justice. As with
failure to investigate, failure to bring to justice
perpetrators of such violations could in and of itself give
rise to a separate breach of the Covenant. These obligations
arise notably in respect of those violations recognized as
criminal under either domestic or international law, such as
torture and similar cruel, inhuman and degrading treatment (article
7), summary and arbitrary killing (article 6) and enforced
disappearance (articles 7 and 9 and, frequently, 6). Indeed,
the problem of impunity for these violations, a matter of sustained
concern by the Committee, may well be an important contributing
element in the recurrence of the violations. When committed as
part of a widespread or systematic attack on a civilian population,
these violations of the Covenant are crimes against humanity (see
Rome Statute of the International Criminal Court, article 7).
[Emphasis supplied]
In Secretary of National Defense v. Manalo,[139] this Court, in ruling
that the right to security of persons is a guarantee of the protection
of ones right by the government, held that:
The right to security of person in this third sense is a corollary of
the policy that the State guarantees full respect for human rights
under Article II, Section 11 of the 1987 Constitution. As the
government is the chief guarantor of order and security, the
Constitutional guarantee of the rights to life, liberty and security of
person is rendered ineffective if government does not
afford protection to these rights especially when they are under
threat. Protection includes conducting effective
investigations, organization of the government apparatus
to extend protection to victims of extralegal killings or
enforced disappearances (or threats thereof) and/or their
families, and bringing offenders to the bar of justice. The
Inter-American Court of Human Rights stressed the importance of
investigation in the Velasquez Rodriguez Case, viz:
(The duty to investigate) must be undertaken in a serious
manner and not as a mere formality preordained to be
ineffective. An investigation must have an objective and
be assumed by the State as its own legal duty, not as a step
taken by private interests that depends upon the initiative
of the victim or his family or upon their offer of proof, without an
effective search for the truth by the government. [Emphasis
supplied]
Manalo significantly cited Kurt v. Turkey,[140] where the ECHR
interpreted the right to security not only as a prohibition on the
State against arbitrary deprivation of liberty, but also as the
imposition of a positive duty to afford protection to the right to
liberty. The Court notably quoted the following ECHR ruling:
[A]ny 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. [Emphasis
supplied]
These rulings effectively serve as the backdrop for the Rule on the
Writ of Amparo, which the Court made effective on October 24,
2007. Although the Amparo Rule still has gaps waiting to be filled
through substantive law, as evidenced primarily by the lack of a
concrete definition of enforced disappearance, the materials
cited above, among others, provide ample guidance and
standards on how, through the medium of the Amparo Rule,
the Court can provide remedies and protect the
constitutional rights to life, liberty and security that
underlie every enforced disappearance.
Evidentiary Difficulties Posed
by the Unique Nature of an
Enforced Disappearance
Before going into the issue of whether the respondent has
discharged the burden of proving the allegations of the petition for
the Writ of Amparo by the degree of proof required by
the Amparo Rule, we shall discuss briefly the unique evidentiary
difficulties presented by enforced disappearance cases; these
difficulties form part of the setting that the implementation of
the Amparo Rule shall encounter.
These difficulties largely arise because the State itself the party
whose involvement is alleged investigates enforced
disappearances. Past experiences in other jurisdictions show that
the evidentiary difficulties are generally threefold.
First, there may be a deliberate concealment of the identities
of the direct perpetrators.[141] Experts note that abductors are
well organized, armed and usually members of the military or
police forces, thus:
The victim is generally arrested by the security forces or by persons
acting under some form of governmental authority. In many
countries the units that plan, implement and execute the program
are generally specialized, highly-secret bodies within the armed or
security forces. They are generally directed through a separate,
clandestine chain of command, but they have the necessary
credentials to avoid or prevent any interference by the "legal"
police forces. These authorities take their victims to secret
detention centers where they subject them to interrogation and
torture without fear of judicial or other controls.[142]
In addition, there are usually no witnesses to the crime; if there are,
these witnesses are usually afraid to speak out publicly or to testify
on the disappearance out of fear for their own lives. [143] We have
had occasion to note this difficulty in Secretary of Defense v.
Manalo[144] when we acknowledged that where powerful military
officers are implicated, the hesitation of witnesses to surface and
testify against them comes as no surprise.
Second, deliberate concealment of pertinent evidence of the
disappearance is a distinct possibility; the central piece of
evidence in an enforced disappearance i.e., the corpus delicti or the
victims body is usually concealed to effectively thwart the start of
any investigation or the progress of one that may have begun.
[145]
The problem for the victims family is the States virtual
monopoly of access to pertinent evidence. The Inter-American
Court of Human Rights (IACHR) observed in the landmark case
of Velasquez Rodriguez[146] that inherent to the practice of enforced
disappearance is the deliberate use of the States power to destroy
the pertinent evidence. The IACHR described the concealment as a
clear attempt by the State to commit the perfect crime.[147]
Third is the element of denial; in many cases, the State
authorities deliberately deny that the enforced disappearance ever
occurred.[148] Deniability is central to the policy of enforced
disappearances, as the absence of any proven disappearance
makes it easier to escape the application of legal standards
ensuring the victims human rights. [149] Experience shows that
government officials typically respond to requests for information
about desaparecidos by saying that they are not aware of any
disappearance, that the missing people may have fled the country,
or that their names have merely been invented.[150]
These considerations are alive in our minds, as these are the
difficulties we confront, in one form or another, in our consideration
of this case.
Evidence and Burden of Proof in
Enforced Disappearances Cases
Sections 13, 17 and 18 of the Amparo Rule define the nature of
an Amparo proceeding and the degree and burden of proof the
parties to the case carry, as follows:
Section 13. Summary Hearing. The hearing on the petition shall
be summary. However, the court, justice or judge may call for a
preliminary conference to simplify the issues and determine the
possibility of obtaining stipulations and admissions from the
parties.
xxxx
Section 17. Burden of Proof and Standard of Diligence Required.
The parties shall establish their claims by substantial evidence.
The respondent who is a private individual must prove that ordinary
diligence as required by applicable laws, rules and regulations was
observed in the performance of duty.
The respondent who is a public official or employee must prove that
extraordinary diligence as required by applicable laws, rules and
regulations was observed in the performance of duty.
The respondent public official or employee cannot invoke the
presumption that official duty has been regularly performed or
evade responsibility or liability.
Section 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. [Emphasis
supplied]
These characteristics namely, of being summary and the use of
substantial evidence as the required level of proof (in contrast to
the usual preponderance of evidence or proof beyond reasonable
doubt in court proceedings) reveal the clear intent of the framers of
the Amparo Rule to have the equivalent of an administrative
proceeding, albeit judicially conducted, in
addressing Amparo situations. The standard of diligence required
the duty of public officials and employees to observe extraordinary
diligence point, too, to the extraordinary measures expected in the
protection of constitutional rights and in the consequent handling
and investigation of extra-judicial killings and enforced
disappearance cases.
Thus, in these proceedings, the Amparo petitioner needs only to
properly comply with the substance and form requirements of a
Writ of Amparo petition, as discussed above, and prove the
allegations by substantial evidence. Once a rebuttable case has
been proven, the respondents must then respond and prove their
defenses based on the standard of diligence required. The
rebuttable case, of course, must show that an enforced
disappearance took place under circumstances showing a violation
of the victims constitutional rights to life, liberty or security, and
the failure on the part of the investigating authorities to
appropriately respond.
The landmark case of Ang Tibay v. Court of Industrial
Relations[151] provided the Court its first opportunity to define the
substantial evidence required to arrive at a valid decision in
administrative proceedings. To directly quote Ang Tibay:
Substantial evidence is more than a mere scintilla. It means such
relevant evidence as a reasonable mind might accept as
adequate to support a conclusion. [citations omitted] The
statute provides that the rules of evidence prevailing in courts of
law and equity shall not be controlling. The obvious purpose of this
and similar provisions is to free administrative boards from the
compulsion of technical rules so that the mere admission of matter
which would be deemed incompetent in judicial proceedings would
not invalidate the administrative order. [citations omitted] But this
assurance of a desirable flexibility in administrative procedure does
not go so far as to justify orders without a basis in evidence having
rational probative force. [Emphasis supplied]
In Secretary of Defense v. Manalo,[152] which was the Courts first
petition for a Writ of Amparo, we recognized that the full and
exhaustive proceedings that the substantial evidence standard
regularly requires do not need to apply due to the summary nature
of Amparo proceedings. We said:
The remedy [of the writ of amparo] provides rapid judicial relief as
it partakes of a summary proceeding that requires only substantial
evidence to make the 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. [Emphasis supplied]
Not to be forgotten in considering the evidentiary aspects
of Amparo petitions are the unique difficulties presented by the
nature of enforced disappearances, heretofore discussed, which
difficulties this Court must frontally meet if the Amparo Rule is to
be given a chance to achieve its objectives. These evidentiary
difficulties compel the Court to adopt standards appropriate and
responsive to the circumstances, without transgressing the due
process requirements that underlie every proceeding.
In the seminal case of Velasquez Rodriguez,[153] the IACHR faced
with a lack of direct evidence that the government of Honduras was
involved in Velasquez Rodriguez disappearance adopted a relaxed
and informal evidentiary standard, and established the rule that
presumes governmental responsibility for a disappearance if it can
be proven that the government carries out a general practice of
enforced disappearances and the specific case can be linked to that
practice.[154] The IACHR took note of the realistic fact that enforced
disappearances could be proven only through circumstantial or
indirect evidence or by logical inference; otherwise, it was
impossible to prove that an individual had been made to
disappear. It held:
130. The practice of international and domestic courts shows that
direct evidence, whether testimonial or documentary, is not the
only type of evidence that may be legitimately considered in
reaching a decision. Circumstantial evidence, indicia, and
presumptions may be considered, so long as they lead to
conclusions consistent with the facts.
131. Circumstantial or presumptive evidence is especially
important in allegations of disappearances, because this
type of repression is characterized by an attempt to
suppress all information about the kidnapping or the
whereabouts and fate of the victim. [Emphasis supplied]
In concluding that the disappearance of Manfredo Velsquez
(Manfredo) was carried out by agents who acted under cover of
public authority, the IACHR relied on circumstantial evidence
including the hearsay testimony of Zenaida Velsquez, the
victims sister, who described Manfredos kidnapping on the basis of
conversations she had with witnesses who saw Manfredo kidnapped
by men in civilian clothes in broad daylight. She also told the Court
that a former Honduran military official had announced that
Manfredo was kidnapped by a special military squadron acting
under orders of the Chief of the Armed Forces. [155] The IACHR
likewise considered the hearsay testimony of a second witness who
asserted that he had been told by a Honduran military officer about
the disappearance, and a third witness who testified that he had
spoken in prison to a man who identified himself as Manfredo. [156]
Velasquez stresses the lesson that flexibility is necessary under the
unique circumstances that enforced disappearance cases pose to
the courts; to have an effective remedy, the standard of evidence
must be responsive to the evidentiary difficulties faced. On the one
hand, we cannot be arbitrary in the admission and appreciation of
evidence, as arbitrariness entails violation of rights and cannot be
used as an effective counter-measure; we only compound the
problem if a wrong is addressed by the commission of another
wrong. On the other hand, we cannot be very strict in our
evidentiary rules and cannot consider evidence the way we do in
the usual criminal and civil cases; precisely, the proceedings before
us are administrative in nature where, as a rule, technical rules of
evidence are not strictly observed. Thus, while we must follow the
substantial evidence rule, we must observe flexibility in considering
the evidence we shall take into account.
The fair and proper rule, to our mind, is to consider all the pieces of
evidence adduced in their totality, and to consider any evidence
otherwise inadmissible under our usual rules to be admissible if it is
consistent with the admissible evidence adduced. In other
words, we reduce our rules to the most basic test of
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.
We note in this regard that the use of flexibility in the consideration
of evidence is not at all novel in the Philippine legal system. In child
abuse cases, Section 28 of the Rule on Examination of a Child
Witness[157] is expressly recognized as an exception to the hearsay
rule. This Rule allows the admission of the hearsay testimony of a
child describing any act or attempted act of sexual abuse in any
criminal or non-criminal proceeding, subject to certain prerequisites
and the right of cross-examination by the adverse party. The
admission of the statement is determined by the court in light of
specified subjective and objective considerations that provide
sufficient indicia of reliability of the child witness. [158] These
requisites for admission find their counterpart in the present case
under the above-described conditions for the exercise of flexibility
in the consideration of evidence, including hearsay evidence, in
extrajudicial killings and enforced disappearance cases.
Assessment of the Evidence
The threshold question for our resolution is: was there an enforced
disappearance within the meaning of this term under the UN
Declaration we have cited?
The Convention defines enforced disappearance as the arrest,
detention, abduction or any other form of deprivation of liberty by
agents of the State or by persons or groups of persons acting with
the authorization, support or acquiescence of the State, followed by
a refusal to acknowledge the deprivation of liberty or by
concealment of the fate or whereabouts of the disappeared person,
which place such a person outside the protection of the law.
[159]
Under this definition, the elements that constitute enforced
disappearance are essentially fourfold:[160]
(a) arrest, detention, abduction or any form of deprivation
of liberty;
(b) carried out by agents of the State or persons or groups
of persons acting with the authorization, support or
acquiescence of the State;
(c) followed by a refusal to acknowledge the detention, or a
concealment of the fate of the disappeared person; and
(d) placement of the disappeared person outside the protection of
the law. [Emphasis supplied]
We find no direct evidence indicating how the victim actually
disappeared. The direct evidence at hand only shows that Tagitis
went out of the ASY Pension House after depositing his room key
with the hotel desk and was never seen nor heard of again. The
undisputed conclusion, however, from all concerned the petitioner,
Tagitis colleagues and even the police authorities is that Tagistis
disappeared under mysterious circumstances and was never seen
again. The respondent injected the causal element in her petition
and testimony, as we shall discuss below.
We likewise find no direct evidence showing that operatives of PNP
CIDG Zamboanga abducted or arrested Tagitis. If at all, only the
respondents allegation that Tagistis was under CIDG Zamboanga
custody stands on record, but it is not supported by any other
evidence, direct or circumstantial.
In her direct testimony, the respondent pointed to two sources of
information as her bases for her allegation that Tagistis had been
placed under government custody (in contrast with CIDG
Zamboanga custody). The first was an unnamed friend in
Zamboanga (later identified as Col. Ancanan), who occupied a high
position in the military and who allegedly mentioned that Tagitis
was in good hands. Nothing came out of this claim, as both the
respondent herself and her witness, Mrs. Talbin, failed to establish
that Col. Ancanan gave them any information that Tagitis was in
government custody. Col. Ancanan, for his part, admitted the
meeting with the respondent but denied giving her any information
about the disappearance.
The more specific and productive source of information was
Col. Kasim, whom the respondent, together with her witness Mrs.
Talbin, met in Camp Katitipan in Davao City. To quote the relevant
portions of the respondents testimony:
Q: Were you able to speak to other military officials regarding the
whereabouts of your husband particularly those in charge of any
records or investigation?
A: I went to Camp Katitipan in Davao City. Then one military officer,
Col. Casim, told me that my husband is being abducted
[sic] because he is under custodial investigation because he
is allegedly parang liason ng J.I., sir.
Q: What is J.I.?
A: Jemaah Islamiah, sir.
Q: Was there any information that was read to you during one of
those visits of yours in that Camp?
A: Col. Casim did not furnish me a copy of his report
because he said those reports are highly confidential, sir.
Q: Was it read to you then even though you were not
furnished a copy?
A: Yes, sir. In front of us, my friends.
Q: And what was the content of that highly confidential report?
A: Those alleged activities of Engineer Tagitis, sir.[161] [Emphasis
supplied]
She confirmed this testimony in her cross-examination:
Q: You also mentioned that you went to Camp Katitipan in Davao
City?
A: Yes, maam.
Q: And a certain Col. Kasim told you that your husband was
abducted and under custodial investigation?
A: Yes, maam.
Q: And you mentioned that he showed you a report?
A: Yes, maam.
Q: Were you able to read the contents of that report?
A: He did not furnish me a copy of those [sic] report
because those [sic] were highly confidential. That is a
military report, maam.
Q: But you were able to read the contents?
A: No. But he read it in front of us, my friends, maam.
Q: How many were you when you went to see Col. Kasim?
A: There were three of us, maam.
Q: Who were your companions?
A: Mrs. Talbin, tapos yung dalawang friends nya from Mati City,
Davao Oriental, maam.[162]
xxxx
Q: When you were told that your husband is in good hands, what
was your reaction and what did you do?
A: May binasa kasi sya that my husband has
a parang meeting with other people na parang mga
terorista na mga tao. Tapos at the end of the report is
[sic] under custodial investigation. So I told him Colonel, my
husband is sick. He is diabetic at nagmemaintain yun ng
gamot. Pakisabi lang sa naghohold sa asawa ko na bigyan siya ng
gamot, maam.[163]
xxxx
Q: You mentioned that you received information that Engineer
Tagitis is being held by the CIDG in Zamboanga, did you go to CIDG
Zamboanga to verify that information?
A: I did not go to CIDG Zamboanga. I went to Camp Karingal
instead. Enough na yun na effort ko because I know that they
would deny it, maam.[164]
On February 11, 2008, the respondent presented Mrs. Talbin to
corroborate her testimony that her husband was abducted and held
under custodial investigation by the PNP-CIDG Zamboanga
City, viz:
Q: You said that you went to Camp Katitipan in Davao City
sometime November 24, 2007, who was with you when you went
there?
A: Mary Jean Tagitis, sir.
Q: Only the two of you?
A: No. We have some other companions. We were four at that time,
sir.
Q: Who were they?
A: Salvacion Serrano, Mini Leong, Mrs. Tagitis and me, sir.
Q: Were you able to talk, see some other officials at Camp Katitipan
during that time?
A: Col. Kasim (PS Supt. Julasirim Ahadin Kasim) only, sir.
Q: Were you able to talk to him?
A: Yes, sir.
Q: The four of you?
A: Yes, sir.
Q: What information did you get from Col. Kasim during that time?
A: The first time we met with [him] I asked him if he knew of the
exact location, if he can furnish us the location of Engr. Tagitis. And
he was reading this report. He told us that Engr. Tagitis is in
good hands. He is with the military, but he is not certain
whether he is with the AFP or PNP. He has this serious
case. He was charged of terrorism because he was under
surveillance from January 2007 up to the time that he was
abducted. He told us that he was under custodial
investigation. As Ive said earlier, he was seen under
surveillance from January. He was seen talking to Omar
Patik, a certain Santos of Bulacan who is also a Balik Islam
and charged with terrorism. He was seen carrying boxes of
medicines. Then we asked him how long will he be in custodial
investigation. He said until we can get some information. But he
also told us that he cannot give us that report because it was a raw
report. It was not official, sir.
Q: You said that he was reading a report, was that report in
document form, in a piece of paper or was it in the computer or
what?
A: As far as I can see it, sir, it is written in white bond paper. I dont
know if it was computerized but Im certain that it was
typewritten. Im not sure if it used computer, fax or what, sir.
Q: When he was reading it to you, was he reading it line by line or
he was reading in a summary form?
A: Sometimes he was glancing to the report and talking to us, sir.
[165]
xxxx
Q: Were you informed as to the place where he was being kept
during that time?

A: He did not tell us where he [Tagitis] was being kept. But
he mentioned this Talipapao, Sulu, sir.
Q: After that incident, what did you do if any?
A: We just left and as Ive mentioned, we just waited because that
raw information that he was reading to us [sic] after the custodial
investigation, Engineer Tagitis will be released. [Emphasis supplied]
[166]
Col. Kasim never denied that he met with the respondent and her
friends, and that he provided them information based on the input
of an unnamed asset. He simply claimed in his testimony that the
informal letter he received from his informant in Sulu did not
indicate that Tagitis was in the custody of the CIDG.He also stressed
that the information he provided the respondent was merely a raw
report from barangay intelligence that still needed confirmation and
follow up as to its veracity.[167]
To be sure, the respondents and Mrs. Talbins testimonies were far
from perfect, as the petitioners pointed out. The respondent
mistakenly characterized Col. Kasim as a military officer who told
her that her husband is being abducted because he is under
custodial investigation because he is allegedly parang liason ng
J.I. The petitioners also noted that Mrs. Talbins testimony imputing
certain statements to Sr. Supt. Kasim that Engr. Tagitis is with the
military, but he is not certain whether it is the PNP or AFP is not
worthy of belief, since Sr. Supt. Kasim is a high ranking police
officer who would certainly know that the PNP is not part of the
military.
Upon deeper consideration of these inconsistencies, however, what
appears clear to us is that the petitioners never really steadfastly
disputed or presented evidence to refute the credibility of the
respondent and her witness, Mrs. Talbin. The inconsistencies the
petitioners point out relate, more than anything else, to details that
should not affect the credibility of the respondent and Mrs. Talbin;
the inconsistencies are not on material points.[168] We note, for
example, that these witnesses are lay people in so far as military
and police matters are concerned, and confusion between the
police and the military is not unusual. As a rule, minor
inconsistencies such as these indicate truthfulness rather than
prevarication[169]and only tend to strengthen their probative value,
in contrast to testimonies from various witnesses dovetailing on
every detail; the latter cannot but generate suspicion that the
material circumstances they testified to were integral parts of a
well thought of and prefabricated story.[170]
Based on these considerations and the unique evidentiary
situation in enforced disappearance cases, we hold it duly
established that Col. Kasim informed the respondent and
her friends, based on the informants letter, that Tagitis,
reputedly a liaison for the JI and who had been under
surveillance since January 2007, was in good hands and
under custodial investigation for complicity with the JI after
he was seen talking to one Omar Patik and a certain Santos
of Bulacan, a Balik Islam charged with terrorism. The
respondents and Mrs. Talbins testimonies cannot simply be
defeated by Col. Kasims plain denial and his claim that he had
destroyed his informants letter, the critical piece of evidence that
supports or negates the parties conflicting claims. Col. Kasims
admitted destruction of this letter effectively, a suppression of this
evidence raises the presumption that the letter, if produced, would
be proof of what the respondent claimed.[171] For brevity, we shall
call the evidence of what Col. Kasim reported to the respondent to
be the Kasim evidence.
Given this evidence, our next step is to decide whether we can
accept this evidence, in lieu of direct evidence, as proof that the
disappearance of Tagitis was due to action with government
participation, knowledge or consent and that he was held for
custodial investigation. We note in this regard that Col. Kasim was
never quoted to have said that the custodial investigation was by
the CIDG Zamboanga. The Kasim evidence only implies
government intervention through the use of the term custodial
investigation, and does not at all point to CIDG Zamboanga as
Tagitis custodian.
Strictly speaking, we are faced here with a classic case of hearsay
evidence i.e., evidence whose probative value is not based on the
personal knowledge of the witnesses (the respondent, Mrs. Talbin
and Col. Kasim himself) but on the knowledge of some other person
not on the witness stand (the informant).[172]
To say that this piece of evidence is incompetent and inadmissible
evidence of what it substantively states is to acknowledge as the
petitioners effectively suggest that in the absence of any direct
evidence, we should simply dismiss the petition. To our mind, an
immediate dismissal for this reason is no different from a statement
that the Amparo Rule despite its terms is ineffective, as it cannot
allow for the special evidentiary difficulties that are unavoidably
present in Amparo situations, particularly in extrajudicial killings
and enforced disappearances. The Amparo Rule was not
promulgated with this intent or with the intent to make it a token
gesture of concern for constitutional rights. It was promulgated to
provide effective and timely remedies, using and profiting from
local and international experiences in extrajudicial killings and
enforced disappearances, as the situation may
require. Consequently, we have no choice but to meet the
evidentiary difficulties inherent in enforced disappearances with the
flexibility that these difficulties demand.
To give full meaning to our Constitution and the rights it protects,
we hold that, as in Velasquez, we should at least take a close look
at the available evidence to determine the correct import of every
piece of evidence even of those usually considered inadmissible
under the general rules of evidence taking into account the
surrounding circumstances and the test of reason that we can use
as basic minimum admissibility requirement. In the present case,
we should at least determine whether the Kasim evidence before us
is relevant and meaningful to the disappearance of Tagistis and
reasonably consistent with other evidence in the case.
The evidence about Tagitis personal circumstances surrounded him
with an air of mystery. He was reputedly a consultant of the World
Bank and a Senior Honorary Counselor for the IDB who attended a
seminar in Zamboanga and thereafter proceded to Jolo for an
overnight stay, indicated by his request to Kunnong for the
purchase of a return ticket to Zamboanga the day after he arrived
in Jolo. Nothing in the records indicates the purpose of his
overnight sojourn in Jolo. A colleague in the IDB, Prof. Matli, early on
informed the Jolo police that Tagitis may have taken funds given to
him in trust for IDB scholars. Prof Matli later on stated that he never
accused Tagitis of taking away money held in trust, although he
confirmed that the IDB was seeking assistance in locating funds of
IDB scholars deposited in Tagitis personal account. Other than
these pieces of evidence, no other information exists in the records
relating to the personal circumstances of Tagitis.
The actual disappearance of Tagitis is as murky as his personal
circumstances. While the Amparo petition recited that he was taken
away by burly men believed to be police intelligence operatives, no
evidence whatsoever was introduced to support this
allegation. Thus, the available direct evidence is that Tagitis was
last seen at 12.30 p.m. of October 30, 2007 the day he arrived in
Jolo and was never seen again.
The Kasim evidence assumes critical materiality given the dearth of
direct evidence on the above aspects of the case, as it supplies the
gaps that were never looked into and clarified by police
investigation. It is the evidence, too, that colors a simple missing
person report into an enforced disappearance case, as it injects the
element of participation by agents of the State and thus brings into
question how the State reacted to the disappearance.
Denials on the part of the police authorities, and frustration on the
part of the respondent, characterize the attempts to locate
Tagitis. Initially in Jolo, the police informed Kunnong that Tagitis
could have been taken by the Abu Sayyaf or other groups fighting
the government. No evidence was ever offered on whether there
was active Jolo police investigation and how and why the Jolo police
arrived at this conclusion. The respondents own inquiry in Jolo
yielded the answer that he was not missing but was with another
woman somewhere. Again, no evidence exists that this explanation
was arrived at based on an investigation. As already related above,
the inquiry with Col. Ancanan in Zamboanga yielded ambivalent
results not useful for evidentiary purposes. Thus, it was only the
inquiry from Col. Kasim that yielded positive results. Col. Kasims
story, however, confirmed only the fact of his custodial
investigation (and, impliedly, his arrest or abduction), without
identifying his abductor/s or the party holding him in custody. The
more significant part of Col. Kasims story is that the abduction
came after Tagitis was seen talking with Omar Patik and a certain
Santos of Bulacan, a Balik Islam charged with terrorism. Mrs. Talbin
mentioned, too, that Tagitis was being held at Talipapao, Sulu. None
of the police agencies participating in the investigation ever
pursued these leads. Notably, TASK FORCE TAGITIS to which this
information was relayed did not appear to have lifted a finger to
pursue these aspects of the case.
More denials were manifested in the Returns on the writ to the CA
made by the petitioners. Then PNP Chief Gen. Avelino I. Razon
merely reported the directives he sent to the ARMM Regional
Director and the Regional Chief of the CIDG on Tagitis, and these
reports merely reiterated the open-ended initial report of the
disappearance. The CIDG directed a search in all of its divisions
with negative results. These, to the PNP Chief, constituted the
exhaustion of all possible efforts. PNP-CIDG Chief General Edgardo
M. Doromal, for his part, also reported negative results after
searching all divisions and departments [of the CIDG] for a person
named Engr. Morced N. Tagitis . . . and after a diligent and thorough
research, records show that no such person is being detained in the
CIDG or any of its department or divisions. PNP-PACER Chief PS
Supt. Leonardo A. Espina and PNP PRO ARMM Regional Director PC
Superintendent Joel R. Goltiao did no better in their affidavits-
returns, as they essentially reported the results of their directives
to their units to search for Tagitis.
The extent to which the police authorities acted was fully tested
when the CA constituted TASK FORCE TAGITIS, with specific
directives on what to do. The negative results reflected in the
Returns on the writ were again replicated during the three hearings
the CA scheduled. Aside from the previously mentioned retraction
that Prof. Matli made to correct his accusation that Tagitis took
money held in trust for students, PS Supt. Ajirim reiterated in his
testimony that the CIDG consistently denied any knowledge or
complicity in any abduction and said that there was no basis to
conclude that the CIDG or any police unit had anything to do with
the disappearance of Tagitis; he likewise considered it premature to
conclude that Tagitis simply ran away with the money in his
custody. As already noted above, the TASK FORCE notably did not
pursue any investigation about the personal circumstances of
Tagitis, his background in relation to the IDB and the background
and activities of this Bank itself, and the reported sighting of
Tagistis with terrorists and his alleged custody in Talipapao,
Sulu. No attempt appears to have ever been made to look into the
alleged IDB funds that Tagitis held in trust, or to tap any of the
assets who are indispensable in investigations of this nature. These
omissions and negative results were aggravated by the CA findings
that it was only as late as January 28, 2008 or three months after
the disappearance that the police authorities requested for clear
pictures of Tagitis. Col. Kasim could not attend the trial because his
subpoena was not served, despite the fact that he was designated
as Ajirims replacement in the latters last post. Thus, Col. Kasim was
not then questioned. No investigation even an internal one
appeared to have been made to inquire into the identity of Col.
Kasims asset and what he indeed wrote.
We glean from all these pieces of evidence and
developments a consistency in the governments denial of
any complicity in the disappearance of Tagitis, disrupted
only by the report made by Col. Kasim to the respondent at
Camp Katitipan. Even Col. Kasim, however, eventually denied
that he ever made the disclosure that Tagitis was under custodial
investigation for complicity in terrorism. Another distinctive trait
that runs through these developments is the governments
dismissive approach to the disappearance, starting from the
initial response by the Jolo police to Kunnongs initial reports of the
disappearance, to the responses made to the respondent when she
herself reported and inquired about her husbands disappearance,
and even at TASK FORCE TAGITIS itself.
As the CA found through TASK FORCE TAGITIS, the investigation
was at best haphazard since the authorities were looking for a man
whose picture they initially did not even secure. The returns and
reports made to the CA fared no better, as the CIDG efforts
themselves were confined to searching for custodial records of
Tagitis in their various departments and divisions. To point out the
obvious, if the abduction of Tagitis was a black operation because it
was unrecorded or officially unauthorized, no record of custody
would ever appear in the CIDG records; Tagitis, too, would not be
detained in the usual police or CIDG detention places. In sum,
none of the reports on record contains any meaningful
results or details on the depth and extent of the
investigation made. To be sure, reports of top police officials
indicating the personnel and units they directed to investigate can
never constitute exhaustive and meaningful investigation, or equal
detailed investigative reports of the activities undertaken to search
for Tagitis. Indisputably, the police authorities from the very
beginning failed to come up to the extraordinary diligence that
the Amparo Rule requires.
CONCLUSIONS AND THE AMPARO REMEDY
Based on these considerations, we conclude that Col. Kasims
disclosure, made in an unguarded moment, unequivocally point to
some government complicity in the disappearance. The consistent
but unfounded denials and the haphazard investigations cannot but
point to this conclusion. For why would the government and its
officials engage in their chorus of concealment if the intent had not
been to deny what they already knew of the disappearance? Would
not an in-depth and thorough investigation that at least credibly
determined the fate of Tagitis be a feather in the governments cap
under the circumstances of the disappearance? From this
perspective, the evidence and developments, particularly the
Kasim evidence, already establish a concrete case of enforced
disappearance that the Amparo Rule covers. From the prism of the
UN Declaration, heretofore cited and quoted, [173] the evidence at
hand and the developments in this case confirm the fact of the
enforced disappearance and government complicity, under a
background of consistent and unfounded government denials and
haphazard handling. The disappearance as well effectively placed
Tagitis outside the protection of the law a situation that will subsist
unless this Court acts.

This kind of fact situation and the conclusion reached are not
without precedent in international enforced disappearance
rulings. While the facts are not exactly the same, the facts of this
case run very close to those of Timurtas v. Turkey,[174] a case
decided by ECHR. The European tribunal in that case acted on the
basis of the photocopy of a post-operation report in finding that
Abdulvahap Timurtas (Abdulvahap) was abducted and later
detained by agents (gendarmes) of the government of Turkey. The
victim's father in this case brought a claim against Turkey for
numerous violations of the European Convention, including the
right to life (Article 2) and the rights to liberty and security of a
person (Article 5). The applicant contended that on August 14,
1993, gendarmes apprehended his son, Abdulvahap for being a
leader of the Kurdish Workers Party (PKK) in the Silopi region. The
petition was filed in southeast Turkey nearly six and one half years
after the apprehension. According to the father, gendarmes first
detained Abdulvahap and then transferred him to another
detainment facility. Although there was no eyewitness
evidence of the apprehension or subsequent
detainment, the applicant presented evidence
corroborating his version of events, including a photocopy
of a post-operation report signed by the commander of
gendarme operations in Silopi, Turkey. The report included a
description of Abdulvahap's arrest and the result of a subsequent
interrogation during detention where he was accused of being a
leader of the PKK in the Silopi region. On this basis, Turkey was held
responsible for Abdulvahaps enforced disappearance.
Following the lead of this Turkish experience - adjusted to
the Philippine legal setting and the Amparo remedy this
Court has established, as applied to the unique facts and
developments of this case we believe and so hold that the
government in general, through the PNP and the PNP-CIDG,
and in particular, the Chiefs of these organizations together
with Col. Kasim, should be held fully accountable for the
enforced disappearance of Tagitis.
The PNP and CIDG are accountable because Section 24 of Republic
Act No. 6975, otherwise known as the PNP Law, [175] specifies the
PNP as the governmental office with the mandate to investigate
and prevent crimes, effect the arrest of criminal offenders, bring
offenders to justice and assist in their prosecution. The PNP-CIDG,
as Col. Jose Volpane Pante (then Chief of CIDG Region 9) testified, is
the investigative arm of the PNP and is mandated to investigate
and prosecute all cases involving violations of the Revised Penal
Code, particularly those considered as heinous crimes. [176] Under
the PNP organizational structure, the PNP-CIDG is tasked to
investigate all major crimes involving violations of the Revised
Penal Code and operates against organized crime groups, unless
the President assigns the case exclusively to the National Bureau of
Investigation (NBI).[177] No indication exists in this case showing that
the President ever directly intervened by assigning the
investigation of Tagitis disappearance exclusively to the NBI.
Given their mandates, the PNP and PNP-CIDG officials and members
were the ones who were remiss in their duties when the
government completely failed to exercise the extral'>To fully
enforce the Amparo remedy, we refer this case back to the CA for
appropriate proceedings directed at the monitoring of the PNP and
the PNP-CIDG investigations and actions, and the validation of their
results through hearings the CA may deem appropriate to
conduct. For purposes of these investigations, the PNP/PNP-CIDG
shall initially present to the CA a plan of action for further
investigation, periodically reporting the detailed results of its
investigation to the CA for its consideration and action. On behalf of
this Court, the CA shall pass upon: the need for the PNP and the
PNP-CIDG to make disclosures of matters known to them as
indicated in this Decision and as further CA hearings may indicate;
the petitioners submissions; the sufficiency of their investigative
efforts; and submit to this Court a quarterly report containing its
actions and recommendations, copy furnished the petitioners and
the respondent, with the first report due at the end of the first
quarter counted from the finality of this Decision. The PNP and the
PNP-CIDG shall have one (1) full year to undertake their
investigation. The CA shall submit its full report for the
consideration of this Court at the end of the 4 th quarter counted
from the finality of this Decision.
WHEREFORE, premises considered, we DENY the petitioners
petition for review on certiorari for lack of merit, and AFFIRM the
decision of the Court of Appeals dated March 7, 2008 under the
following terms:
a. Recognition that the disappearance of Engineer
Morced N. Tagitis is an enforced disappearance covered by the Rule
on the Writ of Amparo;
b. Without any specific pronouncement on exact
authorship and responsibility, declaring the government (through
the PNP and the PNP-CIDG) and Colonel Julasirim Ahadin Kasim
accountable for the enforced disappearance of Engineer Morced N.
Tagitis;
c. Confirmation of the validity of the Writ of Amparo the General Ruben Rafael, Chief, Anti-Terrorism Task Force Comet,
Court of Appeals issued; Zamboanga City, is hereby AFFIRMED.
d. Holding the PNP, through the PNP Chief, and the PNP-
CIDG, through its Chief, directly responsible for the disclosure of SO ORDERED.
material facts known to the government and to their offices
regarding the disappearance of Engineer Morced N. Tagitis, and for
the conduct of proper investigations using extraordinary diligence,
with the obligation to show investigation results acceptable to this
Court;
e. Ordering Colonel Julasirim Ahadin Kasim impleaded in
this case and holding him accountable with the obligation to
disclose information known to him and to his assets in relation with
the enforced disappearance of Engineer Morced N. Tagitis;
f. Referring this case back to the Court of Appeals for
appropriate proceedings directed at the monitoring of the PNP and
PNP-CIDG investigations, actions and the validation of their results;
the PNP and the PNP-CIDG shall initially present to the Court of
Appeals a plan of action for further investigation, periodically
reporting their results to the Court of Appeals for consideration and
action;
g. Requiring the Court of Appeals to submit to this Court
a quarterly report with its recommendations, copy furnished the
incumbent PNP and PNP-CIDG Chiefs as petitioners and the
respondent, with the first report due at the end of the first quarter
counted from the finality of this Decision;
h. The PNP and the PNP-CIDG shall have one (1) full year
to undertake their investigations; the Court of Appeals shall submit
its full report for the consideration of this Court at the end of the
4th quarter counted from the finality of this Decision;

These directives and those of the Court of Appeals made pursuant

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

The dismissal of the Amparo petition with respect to General

Alexander Yano, Commanding General, Philippine Army, and
 IN THE MATTER OF THE PETITION G.R. No. 189155 DECISION
FOR THE WRIT OF AMPARO AND
THE WRIT OF HABEAS DATA IN Present:
FAVOR OF MELISSA C. ROXAS, PEREZ, J.:
CORONA, C.J.,
CARPIO,
CARPIO MORALES, At bench is a Petition For Review on Certiorari[1] assailing the
MELISSA C. ROXAS, VELASCO, JR., Decision[2] dated 26 August 2009 of the Court of Appeals in CA-G.R.
Petitioner, NACHURA, SP No. 00036-WRA a petition that was commenced jointly under the
LEONARDO-DE CASTRO, Rules on the Writ of Amparo (Amparo Rule) and Habeas
BRION,* Data (Habeas Data Rule). In its decision, the Court of Appeals
PERALTA, extended to the petitioner, Melissa C. Roxas, the privilege of the
BERSAMIN, writs of amparo and habeas data but denied the latters prayers for
-versus- DEL CASTILLO, an inspection order, production order and return of specified
ABAD, personal belongings. The fallo of the decision reads:
VILLARAMA, JR.,
PEREZ, WHEREFORE, the Petition is PARTIALLY MERITORIOUS. This Court
MENDOZA, and hereby grants Petitioner the privilege of the Writ of Amparo and
GLORIA MACAPAGAL-ARROYO, SERENO, JJ. Habeas Data.
GILBERT TEODORO, GEN. VICTOR
S. IBRADO, P/DIR. GEN. JESUS Accordingly, Respondents are enjoined to refrain from distributing
AME VERZOSA, LT. GEN. DELFIN or causing the distribution to the public of any records in whatever
N. BANGIT, PC/SUPT. LEON NILO form, reports, documents or similar papers relative to Petitioners
A. DELA CRUZ, MAJ. GEN. RALPH Melissa C. Roxas, and/or Melissa Roxas; alleged ties to the CPP-NPA
VILLANUEVA, PS/SUPT. RUDY or pertinently related to the complained incident. Petitioners
GAMIDO LACADIN, AND CERTAIN prayers for an inspection order, production order and for the return
PERSONS WHO GO BY THE of the specified personal belongings are denied for lack of
NAME[S] DEX, RC AND ROSE, merit. Although there is no evidence that Respondents are
Respondents. 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
Promulgated: responsible. Respondents are also ordered to provide protection to
the Petitioner and her family while in the Philippines against any
September 7, 2010 and all forms of harassment, intimidation and coercion as may be
relevant to the grant of these reliefs.[3]

We begin with the petitioners allegations.

Petitioner is an American citizen of Filipino descent. [4] While in the

x---------------------------------------------------------------------------------------------
-- x
United States, petitioner enrolled in an exposure program to the
Philippines with the group Bagong Alyansang Makabayan-United
States of America (BAYAN-USA) of which she is a member. [5] During
the course of her immersion, petitioner toured various provinces
and towns of Central Luzon and, in April of 2009, she volunteered
to join members of BAYAN-Tarlac[6] in conducting an initial health
survey in La Paz, Tarlac for a future medical mission. [7]
In pursuit of her volunteer work, petitioner brought her passport,
wallet with Fifteen Thousand Pesos (P15,000.00) in cash, journal,
digital camera with memory card, laptop computer, external hard
disk, IPOD,[8] wristwatch, sphygmomanometer, stethoscope and
medicines.[9]
After doing survey work on 19 May 2009, petitioner and her
companions, Juanito Carabeo (Carabeo) and John Edward Jandoc
(Jandoc), decided to rest in the house of one Mr. Jesus Paolo (Mr.
Paolo) in Sitio Bagong Sikat, Barangay Kapanikian, La Paz, Tarlac.
[10]
At around 1:30 in the afternoon, however, petitioner, her
companions and Mr. Paolo were startled by the loud sounds of
someone banging at the front door and a voice demanding that
they open up.[11]
Suddenly, fifteen (15) heavily armed men forcibly opened the door,
barged inside and ordered petitioner and her companions to lie on
the ground face down.[12] The armed men were all in civilian clothes
and, with the exception of their leader, were also wearing bonnets
to conceal their faces.[13]
Petitioner tried to protest the intrusion, but five (5) of the armed
men ganged up on her and tied her hands. [14] At this juncture,
petitioner saw the other armed men herding Carabeo and Jandoc,
already blindfolded and taped at their mouths, to a nearby blue
van. Petitioner started to shout her name. [15] Against her vigorous
resistance, the armed men dragged petitioner towards the
vanbruising her arms, legs and knees. [16] Once inside the van, but
before she can be blindfolded, petitioner was able to see the face of
one of the armed men sitting beside her. [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.[28]
Despite being deprived of sight, however, petitioner was still able
to learn the names of three of her interrogators who introduced
themselves to her as Dex, James and RC.[29] RC even told petitioner
that those who tortured her came from the Special Operations
Group, and that she was abducted because her name is included in
the Order of Battle.[30]
On 25 May 2009, petitioner was finally released and returned to her
uncles house in Quezon City.[31] Before being released, however, the
abductors gave petitioner a cellular phone with a SIM [32] card, a slip
of paper containing an e-mail address with password, [33] a plastic
bag containing biscuits and books, [34] the handcuffs used on her, a
blouse and a pair of shoes.[35] Petitioner was also sternly warned not
to report the incident to the group Karapatan or something
untoward will happen to her and her family. [36]
Sometime after her release, petitioner continued to receive calls
from RC via the cellular phone given to her. [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 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 7 th Infantry Division,
the Special Operations Group of the Armed Forces of the Philippines
(AFP) and its subsidiaries or branch/es prior to, during and
subsequent to 19 May 2009; (4) respondents be ordered to
expunge from the records of the respondents any document
pertinent or connected to Melissa C. Roxas, Melissa Roxas or any
name which sounds the same; and (5) respondents be ordered to
return to petitioner her journal, digital camera with memory card,
laptop computer, external hard disk, IPOD, wristwatch,
sphygmomanometer, stethoscope, medicines and her P15,000.00
cash.[40]
In a Resolution dated 9 June 2009, this Court issued the desired
writs and referred the case to the Court of Appeals for hearing,
reception of evidence and appropriate action. [41] The Resolution also
directed the respondents to file their verified written return. [42]
On 18 June 2009, the Office of the Solicitor General (OSG), filed
a Return of the Writs[43] on behalf of the public officials impleaded
as respondents.
We now turn to the defenses interposed by the public respondents.
The public respondents label petitioners alleged abduction and
torture as stage managed.[44] In support of their accusation, the
public respondents principally rely on the statement of Mr. Paolo, as
contained in the Special Report[45] of the La Paz Police Station. In
the Special Report, Mr. Paolo disclosed that, prior to the purported
abduction, petitioner and her companions instructed him and his
two sons to avoid leaving the house. [46] From this statement, the
public respondents drew the distinct possibility that, except for
those already inside Mr. Paolos house, nobody else has any way of
knowing where petitioner and her companions were at the time
they were supposedly abducted.[47] This can only mean, the public
respondents concluded, that if ever there was any abduction it
must necessarily have been planned by, or done with the consent
of, the petitioner and her companions themselves.[48]
Public respondents also cited the Medical 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 Gloria Macapagal-
Arroyo, in particular, because of her immunity from suit, [52] and (b)
as against all of the public respondents, in general, in view of the
absence of any specific allegation in the petition that they had
participated in, or at least authorized, the commission of such
atrocities.[53]
Finally, the public respondents posit that they had not been remiss
in their duty to ascertain the truth behind the allegations of the
petitioner.[54] In both the police and military arms of the government
machinery, inquiries were set-up in the following manner:
Police Action
Police authorities first learned of the purported abduction around
4:30 oclock in the afternoon of 19 May 2009,
when Barangay Captain Michael M. Manuel came to the La Paz
Municipal Police Station to report the presence of heavily armed
men somewhere in Barangay Kapanikian.[55] Acting on the report,
the police station launched an initial investigation. [56]
The initial investigation revolved around the statement of Mr. Paolo,
who informed the investigators of an abduction incident involving
three (3) personslater identified as petitioner Melissa Roxas, Juanito
Carabeo and John Edward Jandocwho were all staying in his house.
[57]
Mr. Paolo disclosed that the abduction occurred around 1:30
oclock in the afternoon, and was perpetrated by about eight (8)
heavily armed men who forced their way inside his house. [58] Other
witnesses to the abduction also confirmed that the armed men
used a dark blue van with an unknown plate number and two (2)
Honda XRM motorcycles with no plate numbers.[59]
At 5:00 oclock in the afternoon of 19 May 2009, the investigators
sent a Flash Message to the different police stations surrounding La
Paz, Tarlac, in an effort to track and locate the van and motorcycles
of the suspects. Unfortunately, the effort yielded negative results.
[60]
On 20 May 2009, the results of the initial investigation were
included in a Special 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]
On 26 May 2009, public respondent PC/Supt. Leon Nilo Dela Cruz,
as Director of the Regional Police Office for Region 3, caused the
creation of Special Investigation Task GroupCAROJAN (Task Group
CAROJAN) to conduct an in-depth investigation on the abduction of
the petitioner, Carabeo and Jandoc.[64]
Task Group CAROJAN started its inquiry by making a series of
background examinations on the victims of the purported
abduction, in order to reveal the motive behind the abduction and,
ultimately, the identity of the perpetrators. [65] Task Group CAROJAN
also maintained liaisons with Karapatan and the Alliance for
Advancement of Peoples Rightsorganizations trusted by petitionerin
the hopes of obtaining the latters participation in the ongoing
investigations.[66] Unfortunately, the letters sent by the
investigators requesting for the availability of the petitioner for
inquiries were left unheeded.[67]
The progress of the investigations conducted by Task Group
CAROJAN had been detailed in the reports [68] that it submitted to
public respondent General Jesus Ame Verzosa, the Chief of the
Philippine National Police. However, as of their latest report dated
29 June 2009, Task Group CAROJAN is still unable to make a
definitive finding as to the true identity and affiliation of the
abductorsa fact that task group CAROJAN attributes to the refusal
of the petitioner, or any of her fellow victims, to cooperate in their
investigative efforts.[69]
Military Action
Public respondent Gilbert Teodoro, the Secretary of National
Defense, first came to know about the alleged abduction and
torture of the petitioner upon receipt of the Resolution of this Court
directing him and the other respondents to file their return.
[70]
Immediately thereafter, he issued a Memorandum
Directive[71]addressed to the Chief of Staff of the AFP, ordering the
latter, among others, to conduct an inquiry to determine the
validity of the accusation of military involvement in the abduction.
[72]
Acting pursuant to the Memorandum Directive, public respondent
General Victor S. Ibrado, the AFP Chief of Staff, sent an AFP Radio
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 7 th 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 Report[77] detailing the results of its inquiry. In
substance, the report described petitioners allegations as
opinionated and thereby cleared the military from any involvement
in her alleged abduction and torture.[78]
The Decision of the Court of Appeals
In its Decision,[79] the Court of Appeals gave due weight and
consideration to the petitioners version that she was indeed
abducted and then subjected to torture for five (5) straight
days. The appellate court noted the sincerity and resolve by which
the petitioner affirmed the contents of her affidavits in open court,
and was thereby convinced that the latter was telling the truth. [80]
On the other hand, the Court of Appeals disregarded the argument
of the public respondents that the abduction of the petitioner was
stage managed, as it is merely based on an unfounded speculation
that only the latter and her companions knew where they were
staying at the time they were forcibly taken.[81]The Court of Appeals
further stressed that the Medical Certificate of the petitioner can
only affirm the existence of a true abduction, as its findings are
reflective of the very injuries the latter claims to have sustained
during her harrowing ordeal, particularly when she was handcuffed
and then dragged by her abductors onto their van.[82]
The Court of Appeals also recognized the existence of an ongoing
threat against the security of the petitioner, as manifested in the
attempts of RC to contact and monitor her, even after she was
released.[83] This threat, according to the Court of Appeals, is all the
more compounded by the failure of the police authorities to identify
the material perpetrators who are still at large.[84] Thus, the
appellate court extended to the petitioner the privilege of the writ
of amparo by directing the public respondents to afford protection
to the former, as well as continuing, under the norm of
extraordinary diligence, their existing investigations involving the
abduction.[85]
The Court of Appeals likewise observed a transgression of the right
to informational privacy of the petitioner, noting the existence of
records of investigations that concerns the petitioner as a
suspected member of the CPP-NPA. [86] The appellate court derived
the existence of such records from a photograph and video file
presented in a press conference by party-list representatives Jovito
Palparan (Palparan) and Pastor Alcover (Alcover), which allegedly
show the petitioner participating in rebel exercises. Representative
Alcover also revealed that the photograph and video came from a
female CPP-NPA member who wanted out of the
organization. According to the Court of Appeals, the proliferation of
the photograph and video, as well as any form of media,
insinuating that petitioner is part of the CPP-NPA does not only
constitute a violation of the right to privacy of the petitioner but
also puts further strain on her already volatile security. [87] To this
end, the appellate court granted the privilege of the writ of habeas
data mandating the public respondents to refrain from distributing
to the public any records, in whatever form, relative to petitioners
alleged ties with the CPP-NPA or pertinently related to her
abduction and torture.[88]
The foregoing notwithstanding, however, the Court of Appeals was
not convinced that the military or any other person acting under
the acquiescence of the government, were responsible for the
abduction and torture of the petitioner. [89] The appellate court
stressed that, judging by her own statements, the petitioner merely
believed that the military was behind her abduction. [90] Thus, the
Court of Appeals absolved the public respondents from any
complicity in the abduction and torture of petitioner. [91] The petition
was likewise dismissed as against public respondent President
Gloria Macapagal-Arroyo, in view of her immunity from suit.[92]
Accordingly, the petitioners prayers for the return of her personal
belongings were denied.[93] Petitioners prayers for an inspection
order and production order also met the same fate.[94]
Hence, this appeal by the petitioner.
AMPARO
A.
Petitioner first contends that the Court of Appeals erred in
absolving the public respondents from any responsibility in her
abduction and torture.[95] Corollary to this, petitioner also finds fault
on the part of Court of Appeals in denying her prayer for the return
of her personal belongings.[96]
Petitioner insists that the manner by which her abduction and
torture was carried out, as well as the sounds of construction, gun-
fire and airplanes that she heard while in detention, as these were
detailed in her two affidavits and affirmed by her in open court, are
already sufficient evidence to prove government involvement. [97]
Proceeding from such assumption, petitioner invokes the doctrine
of command responsibility to implicate the high-ranking civilian and
military authorities she impleaded as respondents in
her amparo petition.[98] Thus, petitioner seeks from this Court a
pronouncement holding the respondents as complicit in her
abduction and torture, as well as liable for the return of her
belongings.[99]
Command Responsibility in Amparo Proceedings
It must be stated at the outset that the use by the petitioner of
the doctrine of command responsibility as the justification in
impleading the public respondents in her amparo petition, is legally
inaccurate, if not incorrect. The doctrine of command responsibility
is a rule of substantive law that establishes liability and, by this
account, cannot be a proper legal basis to implead a party-
respondent in an amparo petition.[100]
The case of Rubrico v. Arroyo,[101] which was the first to examine
command responsibility in the context of an amparo proceeding,
observed that the doctrine is used to pinpoint
liability. Rubrico notes that:[102]
The evolution of the command responsibility doctrine finds its
context in the development of laws of war and armed combats.
According to Fr. Bernas, "command responsibility," in its simplest
terms, means the "responsibility of commanders for crimes
committed by subordinate members of the armed forces or other
persons subject to their control in international wars or domestic
conflict."[103] In this sense, command responsibility is properly a
form of criminal complicity. The Hague Conventions of 1907
adopted the doctrine of command responsibility, [104] foreshadowing
the present-day precept of holding a superior accountable for the
atrocities committed by his subordinates should he be remiss in his
duty of control over them. As then formulated, command
responsibility is "an omission mode of individual criminal
liability," whereby the superior is made responsible for crimes
committed by his subordinates for failing to prevent or punish the
perpetrators[105] (as opposed to crimes he ordered). (Emphasis in
the orginal, underscoring supplied)
Since the application of command responsibility presupposes an
imputation of individual liability, it is more aptly invoked in a full-
blown criminal or administrative case rather than in a
summary amparo proceeding. The obvious reason lies in the nature
of the writ itself:
The writ of amparo is a protective remedy aimed at providing
judicial relief consisting of the appropriate remedial measures and
directives that may be crafted by the court, in order to address
specific violations or threats of violation of the constitutional rights
to life, liberty or security. [106] While the principal objective of its
proceedings is the initial determination of whether an
enforced disappearance, extralegal killing or threats
thereof had transpiredthe writ does not, by so doing, fix
liability for such disappearance, killing or threats, whether
that may be criminal, civil or administrative under the
applicable substantive law.[107] The rationale underpinning this
peculiar nature of an amparo writ has been, in turn, clearly set forth
in the landmark case of The Secretary of National Defense v.
Manalo:[108]
x x x The remedy provides rapid judicial relief as it partakes of a
summary proceeding that requires only substantial evidence to
make the appropriate reliefs available to the petitioner; it is not
an action to determine criminal guilt requiring proof beyond
reasonable doubt, or liability for damages requiring
preponderance of evidence, or administrative responsibility
requiring substantial evidence that will require full and
exhaustive proceedings.[109](Emphasis supplied)
It must be clarified, however, that the inapplicability of the doctrine
of command responsibility in an amparo proceeding does not, by
any measure, preclude impleading military or police commanders
on the ground that the complained acts in the petition were
committed with their direct or indirect acquiescence.In which case,
commanders may be impleadednot actually on the basis of
command responsibilitybut rather on the ground of
their responsibility, or at least accountability. In Razon v.
Tagitis,[110] the distinct, but interrelated concepts of responsibility
and accountability were given special and unique significations in
relation to an amparo proceeding, to wit:
x x x Responsibility refers to the extent the actors have been
established by substantial evidence to have participated in
whatever way, by action or omission, in an enforced
disappearance, as a measure of the remedies this Court shall craft,
among them, the directive to file the appropriate criminal and civil
cases against the responsible parties in the proper
courts. Accountability, on the other hand, refers to the measure
of remedies that should be addressed to those who exhibited
involvement in the enforced disappearance without bringing the
level of their complicity to the level of responsibility defined above;
or who are imputed with knowledge relating to the enforced
disappearance and who carry the burden of disclosure; or those
who carry, but have failed to discharge, the burden of extraordinary
diligence in the investigation of the enforced disappearance.
Responsibility of Public Respondents
At any rate, it is clear from the records of the case that the intent of
the petitioner in impleading the public respondents is to ascribe
some form of responsibility on their part, based on her
assumption that they, in one way or the other, had condoned her
abduction and torture.[111]
To establish such assumption, petitioner attempted to show that it
was government agents who were behind her ordeal. Thus, the
petitioner calls attention to the circumstances surrounding her
abduction and torturei.e., the forcible taking in broad daylight; use
of vehicles with no license plates; utilization of blindfolds;
conducting interrogations to elicit communist inclinations; and the
infliction of physical abusewhich, according to her, is consistent
with the way enforced disappearances are being practiced by the
military or other state forces.[112]
Moreover, petitioner also claims that she was held inside the
military camp Fort Magsaysaya conclusion that she was able to
infer from the travel time required to reach the place where she
was actually detained, and also from the sounds of construction,
gun-fire and airplanes she heard while thereat.[113]
We are not impressed. The totality of the evidence presented by
the petitioner does not inspire reasonable conclusion that her
abductors were military or police personnel and that she was
detained at Fort Magsaysay.
First. The similarity between the circumstances attending a
particular case of abduction with those surrounding previous
instances of enforced disappearances does not, necessarily, carry
sufficient weight to prove that the government orchestrated such
abduction. We opine that insofar as the present case is concerned,
the perceived similarity cannot stand as substantial evidence of the
involvement of the government.
In amparo proceedings, the weight that may be accorded to parallel
circumstances as evidence of military involvement depends largely
on the availability or non-availability of other pieces of evidence
that has the potential of directly proving the identity and affiliation
of the perpetrators. Direct evidence of identity, when obtainable,
must be preferred over mere circumstantial evidence based on
patterns and similarity, because the former indubitably offers
greater certainty as to the true identity and affiliation of the
perpetrators. An amparo court cannot simply leave to remote and
hazy inference what it could otherwise clearly and directly
ascertain.
In the case at bench, petitioner was, in fact, able to include in
her Offer of Exhibits,[114] the cartographic 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
that she was a mere sojourner in the Philippines, whose familiarity
with Fort Magsaysay and the travel time required to reach it is in
itself doubtful.[116] With nothing else but obscure observations to
support it, petitioners claim that she was taken to Fort Magsaysay
remains a mere speculation.
In sum, the petitioner was not able to establish to a concrete point
that her abductors were actually affiliated, whether formally or
informally, with the military or the police organizations. Neither
does the evidence at hand prove that petitioner was indeed taken
to the military camp Fort Magsaysay to the exclusion of other
places. These evidentiary gaps, in turn, make it virtually
impossible to determine whether the abduction and torture
of the petitioner was in fact committed with the
acquiescence of the public respondents. On account of this
insufficiency in evidence, a pronouncement of responsibility on the
part of the public respondents, therefore, cannot be made.
Prayer for the Return of Personal Belongings
This brings Us to the prayer of the petitioner for the return of her
personal belongings.
In its decision, the Court of Appeals denied the above prayer of the
petitioner by reason of the failure of the latter to prove that the
public respondents were involved in her abduction and torture.
[117]
We agree with the conclusion of the Court of Appeals, but not
entirely with the reason used to support it. To the mind of this
Court, the prayer of the petitioner for the return of her belongings
is doomed to fail regardless of whether there is sufficient evidence
to hold public respondents responsible for the abduction of the
petitioner.
In the first place, an order directing the public respondents to
return the personal belongings of the petitioner is already
equivalent to a conclusive pronouncement of liability. The order
itself is a substantial relief that can only be granted once the
liability of the public respondents has been fixed in a full and
exhaustive proceeding. As already discussed above, matters of
liability are not determinable in a mere
summary amparo proceeding.[118]
But perhaps the more fundamental reason in denying the prayer of
the petitioner, lies with the fact that a persons right to be restituted
of his property is already subsumed under the general rubric of
property rightswhich are no longer protected by the writ of amparo.
[119]
Section 1 of the Amparo Rule,[120] which defines the scope and
extent of the writ, clearly excludes the protection of property rights.
B.
The next error raised by the petitioner is the denial by the Court of
Appeals of her prayer for an inspection of the detention areas of
Fort Magsaysay.[121]
Considering the dearth of evidence concretely pointing to any
military involvement in petitioners ordeal, this Court finds no error
on the part of the Court of Appeals in denying an inspection of the
military camp at Fort Magsaysay. We agree with the appellate court
that a contrary stance would be equivalent to sanctioning a fishing
expedition, which was never intended by the Amparo Rule in
providing for the interim relief of inspection order. [122] Contrary to
the explicit 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 to do.
Since the very estimates and observations of the petitioner are not
strong enough to make out a prima facie case that she was
detained in Fort Magsaysay, an inspection of the military camp
cannot be ordered. An inspection order cannot issue on the basis of
allegations that are, in themselves, unreliable and doubtful.
HABEAS DATA
As earlier intimated, the Court of Appeals granted to the petitioner
the privilege of the writ of habeas data, by enjoining the public
respondents from distributing or causing the distribution to the
public any records in whatever form, reports, documents or similar
papers relative to the petitioners alleged ties with the CPP-NPA or
pertinently related to her abduction and torture. Though not raised
as an issue in this appeal, this Court is constrained to pass upon
and review this particular ruling of the Court of Appeals in order to
rectify, what appears to Us, an error infecting the grant.
For the proper appreciation of the rationale used by the Court of
Appeals in granting the privilege of the writ of habeas data, We
quote hereunder the relevant 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 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 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 awkwardsituation,
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 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 the
petitioners abduction and torture, subject to reasonable regulations
consistent with the Constitution and existing laws.
3.) Further directing the incumbent Chief of the PNP, or his
successor, to furnish to this Court, the Court of Appeals, and the
petitioner or her representative, a copy of the reports of its
investigations and their recommendations, other than those that
are already part of the records of this case, within ninety (90) days
from receipt of this decision.
4.) Further directing the CHR to (a) furnish to the Court of
Appeals within ninety (90) days from receipt of this decision, a copy
of the reports on its investigation and its corresponding
recommendations; and to (b) provide or continue to provide
protection to the petitioner during her stay or visit to the
Philippines, until such time as may hereinafter be determined by
this Court.
Accordingly, this case must be referred back to the Court of
Appeals, for the purposes of monitoring compliance with the above
directives and determining whether, in light of any recent reports or
recommendations, there would already be sufficient evidence to
hold any of the public respondents responsible or, at least,
accountable. After making such determination, the Court of Appeals
shall submit its own report with recommendation to this Court for
final action. The Court of Appeals will continue to have jurisdiction
over this case in order to accomplish its tasks under this decision.
WHEREFORE, the instant petition is PARTIALLY
MERITORIOUS. We hereby render a decision:
1.) AFFIRMING the denial of the petitioners prayer for the
return of her personal belongings;
2.) AFFIRMING the denial of the petitioners prayer for an
inspection of the detention areas of Fort Magsaysay.
3.) REVERSING the grant of the privilege of habeas data,
without prejudice, however, to any modification that this Court may
make on the basis of the investigation reports and
recommendations submitted to it under this decision.
4.) MODIFYING the directive that further investigation
must be undertaken, as follows
a. APPOINTING the Commission on Human Rights as the lead
agency tasked with conducting further investigation regarding the
abduction and torture of the petitioner. Accordingly, the
Commission on Human Rights shall, under the norm of
extraordinary diligence, take or continue to take the necessary
steps: (a) to identify the persons described in the cartographic
sketches submitted by the petitioner, as well as their whereabouts;
and (b) to pursue any other leads relevant to petitioners abduction
and torture.
b. DIRECTING the incumbent Chief of the Philippine National
Police, or his successor, and the incumbent Chief of Staff of the
Armed Forces of the Philippines, or his successor, to extend
assistance to the ongoing investigation of the Commission on
Human Rights, including but not limited to furnishing the latter a
copy of its personnel records circa the time of the petitioners
abduction and torture, subject to reasonable regulations consistent
with the Constitution and existing laws.
c. Further DIRECTING the incumbent Chief of the Philippine
National Police, or his successor, to furnish to this Court, the Court
of Appeals, and the petitioner or her representative, a copy of the
reports of its investigations and their recommendations, other than
those that are already part of the records of this case, within ninety
(90) days from receipt of this decision.
d. Further DIRECTING the Commission on Human Rights (a) to
furnish to the Court of Appeals within ninety (90) days from receipt
of this decision, a copy of the reports on its investigation and its
corresponding recommendations; and (b) to provide or continue to
provide protection to the petitioner during her stay or visit to the
Philippines, until such time as may hereinafter be determined by
this Court.
5.) REFERRING BACK the instant case to the Court of
Appeals for the following purposes:
a. To MONITOR the investigations and actions taken by the PNP,
AFP, and the CHR;
b. To DETERMINE whether, in light of the reports and
recommendations of the CHR, the abduction and torture of the
petitioner was committed by persons acting under any of the public
respondents; and on the basis of this determination
c. To SUBMIT to this Court within ten (10) days from receipt of
the report and recommendation of the Commission on Human
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.
G.R. No. 178497, February 04, 2014
EDITA T. BURGOS, Petitioner, v. GEN. HERMOGENES ESPERON,
JR., LT. GEN. ROMEO P. TOLENTINO, MAJ. GEN. JUANITO
GOMEZ, MAJ. GEN. DELFIN BANGIT, LT. COL. NOEL CLEMENT,
LT. COL. MELQUIADES FELICIANO, AND DIRECTOR GENERAL
OSCAR CALDERON, Respondents.
[G.R. No. 183711]
EDITA T. BURGOS, Petitioner, v. GEN. HERMOGENES ESPERON,
JR., LT. GEN. ROMEO P. TOLENTINO, MAJ. GEN. JUANITO
GOMEZ, MAJ. GEN. DELFIN BANGIT, LT. COL. NOEL CLEMENT,
LT. COL. MELQUIADES FELICIANO, AND DIRECTOR GENERAL
OSCAR CALDERON, Respondents.
[G.R. No. 183712]
EDITA T. BURGOS, Petitioner, v. GEN. HERMOGENES ESPERON,
JR., LT. GEN. ROMEO P. TOLENTINO, MAJ. GEN. JUANITO
GOMEZ, LT. COL. MELQUIADES FELICIANO, AND LT. COL.
NOEL CLEMENT, Respondents.
[G.R. No. 183713]
EDITA T. BURGOS, Petitioner, v. CHIEF OF STAFF OF THE
ARMED FORCES OF THE PHILIPPINES, GEN. HERMOGENES
ESPERON, JR.; COMMANDING GENERAL OF THE PHILIPPINE
ARMY, LT. GEN. ALEXANDER YANO; AND CHIEF OF THE
PHILIPPINE NATIONAL POLICE, DIRECTOR GENERAL AVELINO
RAZON, JR., Respondents.
RESOLUTION
BRION, J.:
We resolve in this Resolution all the pending incidents in this case,
specifically:
(a) The determination of the relevance and advisability of the public
disclosure of the documents submitted by respondents
President Gloria MacapagalArroyo, Lt. Gen. Romeo P. Tolentino,
Maj. Gen. Juanito Gomez, Maj. Gen. Delfin Bangit, Lt. Col. Noel
Clement, Lt. Col. Melquiades Feliciano, Director General Oscar
Calderon, Chief of Staff of the Armed Forces of the Philippines,
Gen. Hermogenes Esperon, Jr.; Commanding General of the
Philippine Army, Lt. Gen. Alexander Yano; and Chief of the
Philippine National Police, Director General Avelino Razon, Jr. to
this Court per paragraph III (i) of the fallo of our July 5, 2011
Resolution; and
(b) The Urgent Ex Parte Motion Ex Abundanti Cautela1 (together
with sealed attachments) filed by petitioner Edita T. Burgos
praying that the Court: (1) order the persons named in the
sealed documents impleaded in CAG.R. SP No. 00008WA and
G.R. No. 183713; (2) issue a writ of Amparo on the basis of the
newly discovered evidence (the sealed attachments to the
motion); and (3) refer the cases to the Court of Appeals (CA) for
further hearings on the newly discovered evidence.
FACTUAL ANTECEDENTS
A. The Courts June 22, 2010 Resolution
These incidents stemmed from our June 22, 2010 Resolution
referring the present case to the Commission on Human Rights
(CHR) as the Courts directly commissioned agency, tasked with the
continuation of the investigation of Jonas Joseph T. Burgos
abduction with the obligation to report its factual findings and
recommendations to this Court. This referral was necessary as the
investigation by the Philippine National PoliceCriminal
Investigation and Detection Group (PNPCIDG), by the Armed
Forces of the Philippines (AFP) Provost Marshal, and even the initial
CHR investigation had been less than complete. In all of them,
there were significant lapses in the handling of the investigation. In
particular, we highlighted the PNPCIDGs failure to identify
the cartographic sketches of two (one male and one female)
of the five abductors of Jonas, based on their interview with
the eyewitnesses to the abduction.
In this same Resolution, we also affirmed the CAs dismissal of the
petitions for Contempt and issuance of a Writ of Amparo with
respect to President MacapagalArroyo who was then entitled, as
President, to immunity from suit.
The March 15, 2011 CHR Report
On March 15, 2011, the CHR submitted to the Court
its Investigation Report on the Enforced Disappearance of Jonas
Burgos (CHR Report), in compliance with our June 22, 2010
Resolution. On the basis of the gathered evidence, the CHR
submitted the following findings:chanRoblesvirtualLawlibrary
Based on the facts developed by evidence obtaining in this
case, the CHR finds that the enforced disappearance of
Jonas Joseph T. Burgos had transpired; and that his
constitutional rights to life liberty and security were
violated by the Government have been fully determined.
Jeffrey Cabintoy and Elsa Agasang have witnessed on that
fateful day of April 28, 2007 the forcible abduction of Jonas
Burgos by a group of about seven (7) men and a
woman from the extension portion of Hapag Kainan Restaurant,
located at the ground floor of Ever Gotesco Mall, Commonwealth
Avenue, Quezon City.
x x x involved in counterinsurgency operations at the 56th IB, while she
The eyewitnesses mentioned above were Jeffrey
Cabintoy (Jeffrey) and Elsa Agasang (Elsa), who at the time of the
abduction were working as busboy and TraineeSupervisor,
respectively, at Hapag Kainan Restaurant.
In his Sinumpaang Salaysay, Jeffrey had a clear recollection
of the face of HARRY AGAGEN BALIAGA, JR. as one of the
principal abductors, apart from the faces of the two abductors in
the cartographic sketches that he described to the police, after he
was shown by the Team the pictures in the PMA Year Book of Batch
Sanghaya 2000 and group pictures of men taken some years
thereafter.
The same group of pictures were shown to detained former
56th IB Army trooper Edmond M. Daguman (Daguman),
who also positively identified Lt. Harry Baliaga, Jr.
Dagumans Sinumpaang Salaysay states that he came to
know Lt. Baliaga as a Company Commander in the 56 th IB
while he was still in the military service (with Serial No.
800693, from 1997 to 2002) also with the 56 thIB but under
1Lt. Usmalik Tayaban, the Commander of Bravo
Company. When he was arrested and brought to the 56th IB Camp
in April 2005, he did not see Lt. Baliaga anymore at the said camp.
The similar reaction that the pictures elicited from both Jeffrey and
Daguman did not pass unnoticed by the Team. Both men always
look pensive, probably because of the pathetic plight they are in
right now. It came as a surprise therefore to the Team when they
could hardly hide their smile upon seeing the face of Baliaga, as if
they know the man very well.
Moreover, when the Team asked how certain Jeffrey was or [sic]
that it was indeed Baliaga that he saw as among those who
actually participated in Jonas abduction. Jeffrey was able to give a
graphic description and spontaneously, to boot, the blow by blow
account of the incident, including the initial positioning of the
actors, specially Baliaga, who even approached, talked to, and
prevented him from interfering in their criminal act.
A Rebelreturnee (RR) named Maria Vita Lozada y Villegas @KA MY,
has identified the face of the female in the cartographic sketch as a
certain Lt. Fernando. While Lozada refuses to include her
identification of Lt. Fernando in her Sinumpaang Salaysay for fear
of a backlash, she told the Team that she was certain it was Lt.
Fernando in the cartographic sketch since both of them were
was under the care of the battalion from March 2006 until she left
the 56th IB Headquarters in October 2007. Lozadas involvement in
counterinsurgency operations together with Lt. Fernando was
among the facts gathered by the CHR Regional Office 3
Investigators, whose investigation into the enforced disappearance
of Jonas Joseph Burgos was documented by way of an After Mission
Report dated August 13, 2008.
Most if not all the actual abductors would have been
identified had it not been for what is otherwise called
as evidentiary difficulties shamelessly put up by some
police and military elites. The deliberate refusal of TJAG Roa
to provide the CHR with the requested documents does not
only defy the Supreme Court directive to the AFP but ipso
facto created a disputable presumption that AFP personnel
were responsible for the abduction and that their superiors
would be found accountable, if not responsible, for the
crime committed. This observation finds support in the disputable
presumption That evidence willfully suppressed would be adverse
if produced. (Paragraph (e), Section 3, Rule 131 on Burden of Proof
and Presumptions, Revised Rules on Evidence of the Rules of Court
of the Philippines).
In saying that the requested document is irrelevant,
the Team has deemed that the requested documents and
profiles would help ascertain the true identities of the
cartographic sketches of two abductors because a certain
Virgilio Eustaquio has claimed that one of the intelligence
operatives involved in the 2007 ERAP 5 case fits the
description of his abductor.
As regards the PNP CIDG, the positive identification of
former 56th IB officer Lt. HARRY A. BALIAGA, JR. as one of
the principal abductors has effectively crushed the theory
of the CIDG witnesses that the NPAs abducted
Jonas. Baliagas true identity and affiliation with the
military have been established by overwhelming evidence
corroborated by detained former Army trooper Daguman.
For lack of material time, the Commission will continue to
investigate the enforced disappearance of Jonas Burgos as an
independent body and pursuant to its mandate under the 1987
Constitution. Of particular importance are the identities and
locations of the persons appearing in the cartographic sketches; I.
the allegations that CIDG Witnesses Emerito G. Lipio and Meliza
ConcepcionReyes are AFP enlisted personnel and the alleged II.
participation of Delfin De Guzman @ Ka Baste in the abduction of
Jonas Burgos whose case for Murder and Attempted Murder was
dismissed by the court for failure of the lone witness, an army man
of the 56th IB to testify against him. III.
Interview with Virgilio Eustaquio, Chairman of the Union Masses for
Democracy and Justice (UMDJ), revealed that the male
abductor of Jonas Burgos appearing in the cartographic
sketch was among the raiders who abducted him and four
others, identified as Jim Cabauatan, Jose Curament, Ruben
Dionisio and Dennis Ibona otherwise known as ERAP FIVE.
Unfortunately, and as already pointed out above, The Judge
Advocate General (TJAG) turned down the request of the Team for a IV.
profile of the operatives in the socalled Erap 5 abduction on the
ground of relevancy and branded the request as a fishing
expedition per its Disposition Form dated September 21, 2010.
Efforts to contact Virgilio Eustaquio to secure his affidavit proved V.
futile, as his present whereabouts cannot be determined. And due
to lack of material time, the Commission decided to pursue the
same and determine the whereabouts of the other members of the
Erap 5 on its own time and authority as an independent
body.2ChanRoblesVirtualawlibrary
B. The Courts July 5, 2011 Resolution
On July 5, 2011, in light of the new evidence and leads the CHR
uncovered, we issued a Resolution: (1) issuing anew a Writ
of Habeas Corpus and referring the habeas corpus petition to the
CA; (2) holding in abeyance our ruling on the merits of
the Amparo aspect of the case; referring back the same to
the CA in order to allow Lt. Harry A. Baliaga, Jr. and the
present Amparo respondents to file their Comments on the
CHR Report; and ordering Lt. Baliaga to be impleaded as a
party to the Amparo petition; and (3) affirming the dismissal of
the petitioners petition for Contempt, without prejudice to the re
filing of the contempt charge as may be warranted by the results of
the subsequent CHR investigation. To quote the exact wording of
our Resolution:
WHEREFORE, in the interest of justice and for the foregoing
reasons, we RESOLVE to:chanRoblesvirtualLawlibrary
IN G.R. NO. 183711 (HABEAS CORPUS PETITION, CA
G.R. SP No. 99839)
ISSUE a Writ of Habeas Corpus anew, returnable to the
Presiding Justice of the Court of Appeals who shall immediately
refer the writ to the same Division that decided the habeas
corpus petition;
ORDER Lt. Harry A. Baliaga, Jr. impleaded in CAG.R. SP No.
99839 and G.R. No. 183711, and REQUIRE him, together with the
incumbent Chief of Staff, Armed Forces of the Philippines; the
incumbent Commanding General, Philippine Army; and the
Commanding Officer of the 56th IB, 7th Infantry Division, Philippine
Army at the time of the disappearance of Jonas Joseph T. Burgos, Lt.
Col. Melquiades Feliciano, to produce the person of Jonas Joseph T.
Burgos under the terms the Court of Appeals shall prescribe, and to
show cause why Jonas Joseph T. Burgos should not be released from
detention;
REFER back the petition for habeas corpus to the same
Division of the Court of Appeals which shall continue to hear this
case after the required Returns shall have been filed and render a
new decision within thirty (30) days after the case is submitted for
decision; and
ORDER the Chief of Staff of the Armed Forces of the
Philippines and the Commanding General of the Philippine Army to
be impleaded as parties, separate from the original respondents
impleaded in the petition, and the dropping or deletion of President
Gloria MacapagalArroyo as partyrespondent.
IN G.R. NO. 183712 (CONTEMPT OF COURT CHARGE, CAG.R.
SP No. 100230)
e. AFFIRM the dismissal of the petitioners petition for Contempt in
CAG.R. SP No. 100230, without prejudice to the refiling of the
contempt charge as may be warranted by the results of the
subsequent CHR investigation this Court has ordered; and
f. ORDER the dropping or deletion of former President Gloria
MacapagalArroyo as partyrespondent, in light of the
unconditional dismissal of the contempt charge against her.
IN G.R. NO. 183713 (WRIT OF AMPARO PETITION, CAG.R. SP
No. 00008WA)
g. ORDER Lt. Harry A. Baliaga, Jr., impleaded in CAG.R. SP No.
00008WA and G.R. No. 183713, without prejudice to similar
directives we may issue with respect to others whose identities and
participation may be disclosed in future investigations and
proceedings;
h. DIRECT Lt. Harry A. Baliaga, Jr., and the present Amparo
respondents to file their Comments on the CHR report with the
Court of Appeals, within a nonextendible period of fifteen (15)
days from receipt of this Resolution.
i. REQUIRE General Roa of the Office of the Judge Advocate
General, AFP; the Deputy Chief of Staff for Personnel, JI, AFP, at the
time of our June 22, 2010 Resolution; and then Chief of Staff, AFP,
Gen. Ricardo David, (a) to show cause and explain to this Court,
within a nonextendible period of fifteen (15) days from receipt of
this Resolution, why they should not be held in contempt of this
Court for their defiance of our June 22, 2010 Resolution; and (b) to
submit to this Court, within a nonextendible period of fifteen (15)
days from receipt of this Resolution, a copy of the documents
requested by the CHR, particularly:
1) The profile and Summary of Information and pictures of T/Sgt.
Jason Roxas (Philippine Army); Cpl. Maria Joana Francisco
(Philippine Air Force); M/Sgt. Aron Arroyo (Philippine Air Force);
an alias T.L. all reportedly assigned with Military Intelligence
Group 15 of Intelligence Service of the Armed Forces of the
Philippines and 2Lt. Fernando, a lady officer involved in the
counterinsurgency operations of the 56th IB in 2006 to 2007;
2) Copies of the records of the 2007 ERAP 5 incident in Kamuning,
Quezon City and the complete list of the intelligence operatives
involved in that said covert military operation, including their
respective Summary of Information and individual pictures; and
3) Complete list of the officers, women and men assigned at the
56th and 69thInfantry Battalion and the 7th Infantry Division from
January 1, 2004 to June 30, 2007 with their respective profiles,
Summary of Information and pictures; including the list of
captured rebels and rebels who surrendered to the said camps
and their corresponding pictures and copies of their Tactical
Interrogation Reports and the cases filed against them, if any.
These documents shall be released exclusively to this Court
for our examination to determine their relevance to the
present case and the advisability of their public disclosure.
j. ORDER the Chief of Staff of the Armed Forces of the Philippines
and the Commanding General of the Philippine Army to be
impleaded as parties, in representation of their respective
organizations, separately from the original respondents impleaded
in the petition; and the dropping of President Gloria Macapagal
Arroyo as partyrespondent;
k. REFER witnesses Jeffrey T. Cabintoy and Elsa B. Agasang to the
Department of Justice for admission to the Witness Protection
Security and Benefit Program, subject to the requirements of
Republic Act No. 6981; and
l. NOTE the criminal complaint filed by the petitioner with the DOJ
which the latter may investigate and act upon on its own pursuant
to Section 21 of the Rule on the Writ of Amparo.3
C. The Courts August 23, 2011 Resolution
On August 23, 2011, we issued a Resolution resolving among
others:
(a) to NOTE the Explanation separately filed by Brigadier Gen.
Gilberto Jose C. Roa, Armed Forces of the Philippines (AFP),
General Ricardo A. David, Jr., AFP (ret.), and Rear Admiral
Cornelio A. dela Cruz, Jr., AFP;
xxx
(c) to LIMIT the documents to be submitted to this Court to those
assigned at the 56thInfantry Battalion (IB) from January 1, 2004
to June 30, 2007, and to SUBMIT these materials within ten
(10) days from notice of this Resolution, without prejudice to
the submission of the other documents required under the
Courts July 5, 2011 Resolution, pertaining to those assigned at
 the other units of the AFP, should the relevance of these
documents be established during the Court of Appeals hearing;
(d) to REQUIRE the submission, within ten (10) days from notice of
this Resolution, of the Summary of Information and individual
pictures of the intelligence operatives involved in the ERAP 5
incident, in compliance with the Courts July 5, 2011 Resolution;
(e) to REQUIRE the submission, within ten (10) days from notice of
this Resolution, of the profile and Summary of Information and
pictures of an alias T.L., reportedly assigned with Military
Intelligence Group 15 of the Intelligence Service of the AFP and
of a 2Lt. Fernando, a lady officer in the counterinsurgency
operations of the 56th IB in 2006 to 2007, in compliance with the
Courts July 5, 2011 Resolution.4
The Respondents September 23, 2011 Manifestation and
Motion
On September 23, 2011, the respondents submitted a
Manifestation and Motion in compliance with the Courts August 23,
2011 Resolution. Attached to this Manifestation and Motion are the
following documents:chanRoblesvirtualLawlibrary
a. The Summary of Information (SOI) of the officers and
enlisted personnel of the 56th IB, 7th ID from January 1, 2004 to June
30, 2007;
b. The Summary of Information (SOI) of the intelligence
operatives who were involved in the ERAP 5 incident; and
c. The Summary of Information (SOI) of 2Lt. Fernando, who
was a member of the 56th IB, 7th ID.5
D. The Courts September 6, 2011 Resolution
On August 19, 2011, the petitioner filed a Manifestation and a
Motion for Clarificatory Order praying among others that she be
allowed to examine the documents submitted to the Court pursuant
to paragraph III (i) of the Courts July 5, 2011 Resolution. In our
September 6, 2011 Resolution, we resolved, among others,
to:chanRoblesvirtualLawlibrary
(3) DENY the petitioners request to be allowed to examine the
documents submitted to this Court per paragraph (i) of
the fallo of our July 5, 2011 Resolution, without prejudice to
our later determination of the relevance and of the advisability
of public disclosure of those documents/materials;6
E. The Courts October 11, 2011 Resolution
On October 11, 2011, we issued a Resolution requiring the CHR to
secure Virgilio Eustaquios affidavit, and to submit a report of its
ongoing investigation of Jonas abduction, viz:
(1) REQUIRE the Commission on Human Rights to undertake all
available measures to obtain the affidavit of witness Virgilio
Eustaquio in connection with his allegation that one of the male
abductors of Jonas Joseph T. Burgos, appearing in the
cartographic sketch, was among the raiders who abducted
him and four others, identified as Jim Cabauatan, Jose
Curament, Ruben Dionisio and Dennis Ibona (otherwise known
as the ERAP FIVE);
(2) DIRECT the Commission on Human Rights to submit to this
Court, within thirty (30) days from receipt of this Resolution, a
Report, with its recommendations of its ongoing investigation of
Burgos abduction, and the affidavit of Virgilio Eustaquio, if any,
copy furnished the petitioner, the Court of Appeals, the
incumbent Chiefs of the AFP, the PNP and the PNPCIDG, and all
the present respondents before the Court of Appeals.7
F. The Courts November 29, 2011 Resolution
On November 2, 2011, we received a letter dated October 28, 2011
from Commissioner Jose Manuel S. Mamauag, Team Leader, CHR
Special Investigation Team, requesting photocopies of the following
documents:chanRoblesvirtualLawlibrary
i. SOI of the officers and enlisted personnel of the 56 th IB,
th
7 ID from January 1, 2004 to June 30, 2007;
ii. SOI of the intelligence operatives who were involved in the
ERAP 5 incident; and
iii. SOI of 2Lt. Fernando who was a member of the 56th IB,
th
7 ID. 8
In our November 29, 2011 Resolution, we denied the CHRs request
considering the confidential nature of the requested documents
and because the relevance of these documents to the present case
had not been established. We referred the CHR to our July 5, 2011
Resolution where we pointedly stated that these documents shall
be released exclusively to this Court for our examination to
determine their relevance to the present case and the advisability
of their public disclosure.9
We held that [w]e see no reason at this time to release these
confidential documents since their relevance to the present case
has not been established to our satisfaction. It is precisely for this
reason that we issued our October 24, 2011 Resolution and
directed the CHR to submit to this Court, within thirty (30) days
from receipt of the Resolution, a Report with its recommendations
of its ongoing investigation of Jonas Burgos abduction, and the
 affidavit of Virgilio Eustaquio, if any. Simply stated, it is only after The CA held that the issue in the petition for habeas corpus is not
the CHRs faithful compliance with our October 24, 2011 Resolution the illegal confinement or detention of Jonas, but his enforced
that we will be able to determine the relevance of the requested disappearance. Considering that Jonas was a victim of enforced
documents to the present case.10 disappearance, the present case is beyond the ambit of a petition
for habeas corpus.
G. The March 20, 2012 CHR Progress Report and
Eustaquios Affidavit Petition for the Writ of Amparo

On March 20, 2012, the CHR submitted its Progress Report detailing
its efforts to secure the affidavit of witness Eustaquio in relation
with his allegation that one of the male abductors of Jonas,
appearing in the cartographic sketch, was among the raiders who
abducted him and four others, identified as Jim Cabauatan, Jose
Curament, Ruben Dionisio and Dennis Ibona (otherwise known as
the ERAP FIVE). Attached to this Report is Eustaquios sworn
affidavit dated March 16, 2012, which pertinently stated:
1. I was one of the victims in the abduction incident on May 22,
2006 otherwise known as ERAP 5 and because of that, we filed a
case with the Ombudsman against Commodore Leonardo Calderon,
et al., all then ISAFP elements, docketed as OMBPC0604050E
for Arbitrary Detention, Unlawful Arrest, Maltreatment of Prisoners,
Grave Threats, Incriminatory Machination, and Robbery.
2. On March 16, 2012, I was approached again by the CHR
Special Investigation Team regarding the information I have
previously relayed to them sometime in September 2010 as to the
resemblance of the cartographic sketch of the man as described by
the two eyewitnesses Elsa Agasang and Jeffrey Cabintoy in the
abduction case of Jonas Burgos;
3. I can say that the male abductor of Jonas Burgos appearing
in the cartographic sketch is among the raiders who abducted me
and my four other companions because the cartographic sketch
almost exactly matched and/or resembled to the cartographic
sketch that I also provided and described in relation to the said
incident at my rented house in Kamuning, Quezon City on May 22,
2006.
4. I am executing this affidavit voluntarily, freely and attest to
the truth of the foregoing.11cralawred
H. The March 18, 2013 CA Decision
On March 18, 2013, the CA issued its decision pursuant to the
Courts July 5, 2011 Resolution referring the Amparo and Habeas
Corpus aspects of the case to the CA for appropriate hearings and
ruling on the merits of the petitions.
Petition for Habeas Corpus
Based on its finding that Jonas was a victim of enforced
disappearance, the CA concluded that the present case falls within
the ambit of the Writ of Amparo. The CA found that the totality of
the evidence supports the petitioners allegation that the military
was involved in the enforced disappearance of Jonas. The CA took
note of Jeffrey Cabintoys positive identification of Lt. Baliaga as
one of the abductors who approached him and told him not to
interfere because the man being arrested had been under
surveillance for drugs; he also remembered the face of Lt. Baliaga
the face he identified in the pictures because he resembles his
friend Raven. The CA also held that Lt. Baliagas alibi and
corroborative evidence cannot prevail over Cabintoys positive
identification, considering especially the absence of any indication
that he was impelled by hatred or any improper motive to testify
against Lt. Baliaga. Thus, the CA held that Lt. Baliaga was
responsible and the AFP and the PNP were accountable for the
enforced disappearance of Jonas.
Based on these considerations, the CA resolved to:
1) RECOGNIZING the abduction of Jonas Burgos as an enforced
disappearance covered by the Rule on the Writ of Amparo;
2) With regard to authorship,
a)DECLARING Maj. Harry A. Baliaga, Jr. RESPONSIBLE for the
enforced disappearance of Jonas Burgos; and
b)DECLARING the Armed Forces of the Philippines and
elements of the Armed Forces of the Philippines, particularly
the Philippine Army, ACCOUNTABLE for the enforced
disappearance of Jonas Burgos;
3) DECLARING the Philippine National Police ACCOUNTABLE for
the conduct of an exhaustive investigation of the enforced
disappearance of Jonas Burgos. To this end, the PNP through its
investigative arm, the PNPCIDG, is directed to exercise
extraordinary diligence to identify and locate the abductors of
Jonas Burgos who are still at large and to establish the link
 between the abductors of Jonas Burgos and those involved in
the ERAP 5 incident.
(4) DIRECTING the incumbent Chief of Staff of the Armed Forces of
the Philippines and the Director General of the Philippine
National Police, and their successors, to ensure the continuance
of their investigation and coordination on the enforced
disappearance of Jonas Burgos until the persons found
responsible are brought before the bar of justice;
(5) DIRECTING the Commission on Human Rights to continue with
its own independent investigation on the enforced
disappearance of Jonas Burgos with the same degree of
diligence required under the Rule on the Writ of Amparo; and
(6) DIRECTING the Armed Forces of the Philippines and the
Philippine National Police to extend full assistance to the
Commission on Human Rights in the conduct of the latters
investigation.
The Chief of Staff, Armed Forces of the Philippines, the Director
General, Philippine National Police and the Chairman, Commission
on Human Rights are hereby DIRECTED to submit a quarterly
report to this Court on the results of their respective investigation.
The filing of petitioners AffidavitComplaint against Maj. Harry A.
Baliaga, Jr., et al. before the Department of Justice on June 9, 2011
is NOTED. Petitioner is DIRECTED to immediately inform this Court
of any development regarding the outcome of the case. 12
The Respondents April 3, 2013 Motion for Partial
Reconsideration
The Solicitor General, in behalf of the public respondents (the AFP
Chief of Staff and the PNP Director General), filed a motion for
partial reconsideration of the March 18, 2013 CA decision. The
motion made the following submissions:
5. x x x[T]he Director General, PNP, respectfully takes exception to
the Honorable Courts findings that the PNP, specifically the CIDG,
failed to exercise extraordinary diligence in the conduct of its
investigation. x x x [T]hat this Honorable Court arrived at a
conclusion different from that of the CIDG, or accorded different
credence to the statements of the witnesses presented by the
parties, does not necessarily translate to the CIDGs failure to
exercise extraordinary diligence.
6. The Chief of Staff, AFP also takes exception to the Honorable
Courts findings that the Chief of Staff of the Armed Forces of the
Philippines and the Commanding General should be held
accountable for Jonas Burgos disappearance for failing to exercise
extraordinary diligence in conducting an internal investigation on
the matter. The unwillingness of the respondent officers of the
56th IB to cooperate in the investigation conducted by the CHR is a
persuasive proof of the alleged cover up of the militarys
involvement in the enforced disappearance of Jonas Burgos.
The AFP and the Philippine Army conducted a thorough
investigation to determine the veracity of the allegations
implicating some of its officers and personnel. After the conduct of
the same, it is the conclusion of the Armed Forces of the Philippines
and the Philippine Army, based on the evidence they obtained, that
Jonas Burgos has never been in custody.
7. The Chief of Staff, AFP, also respectfully takes exception to the
finding of the Honorable Court recognizing the abduction of Jonas
Burgos as an enforced disappearance.
x x x
That the Honorable Court found a member of the Philippine Army or
even a group of military men to be responsible for the abduction of
Jonas Burgos, does not necessarily make the same a case of
enforced disappearance involving the State. There is dearth of
evidence to show that the government is involved. Respondent
Baliagas alleged participation in the abduction and his previous
membership in the 56th Infantry Battalion of the Philippine Army, by
themselves, do not prove the participation or acquiescence of the
State.13ChanRoblesVirtualawlibrary
I. The CA Resolution dated May 23, 2013
On May 23, 2013, the CA issued its resolution denying the
respondents motion for partial reconsideration. The CA ruled that
as far as the PNP was concerned, its failure to elicit leads and
information from Cabintoy who witnessed Jonas abduction is
eloquent proof of its failure to exercise extraordinary diligence in
the conduct of its investigation. As far as the AFP was concerned,
the CA held that the fact that Lt. Baliaga of the Philippine Army was
positively identified as one of the abductors of Jonas, coupled with
the AFPs lack of serious effort to conduct further investigation,
spoke loudly of the AFP leaderships accountability.
To date, the respondents have not appealed to this Court,
as provided under Section 19 of the Rule on the Writ
of Amparo.14
J. The Petitioners Urgent Ex Parte Motion Ex Abundanti
Cautela dated April 1, 2013
On April 1, 2013, the petitioner filed an Ex Parte Motion Ex
Abundanti Cautela asking the Court to: (1) order the persons
named in the sealed documents to be impleaded in CAG.R. SP No.
00008WA and G.R. No. 183713; (2) issue a writ of Amparo on the
basis of the newly discovered evidence (the sealed attachment to
the motion); and (3) refer the cases to the CA for further hearing on
the newly discovered evidence.
The petitioner alleged that she received from a source (who
requested to remain anonymous) documentary evidence proving
that an intelligence unit of the 7th Infantry Division of the Philippine
Army and 56th Infantry Battalion, operating together, captured
Jonas on April 28, 2007 at Ever Gotesco Mall, Commonwealth
Avenue, Quezon City. This documentary evidence consists of: (1)
After Apprehension Report dated April 30, 2007; (2) Psycho Social
Processing Report dated April 28, 2007; and (3) Autobiography of
Jonas. The petitioner also claimed that these are copies of
confidential official reports on file with the Philippine Army.
i. After Apprehension Report dated April 30, 2007
This report is a photocopy consisting six pages dated April 30,
2007, addressed to the Commanding Officer, 7MIB, 7ID, LA, Fort
Magsaysay, NE. The report detailed the planning and the objective
of apprehending target communist leaders, among them, one alias
Ramon who was captured at Ever Gotesco Mall, Commonwealth,
Quezon City on April 28, 2007 by joint elements of the 72 MICO and
S2, 56th IB. This report also listed the names of the military
personnel belonging to task organization 72 MICO and 56 th IB who
conducted the operation.
ii. Psycho Social Processing Report dated April 28, 2007
This report details Jonas abduction and neutralization; the results
of his interrogation and the intelligence gathered on his significant
involvements/activities within the CPP/NPA/NDF organization.
iii. Undated Autobiography
This autobiography narrates how Jonas started as a student
activist, his recruitment and eventual ascent in the CPP/NPA as an
intelligence officer.
K. The Courts April 11, 2013 Resolution
In our April 11, 2013 Resolution, the Court resolved to require the
respondents to Comment on the petitioners Urgent Ex Parte
Motion Ex Abundanti Cautela and its attachments, within ten (10)
days from receipt of the Resolution. In the same Resolution, the
Court:chanRoblesvirtualLawlibrary
(1) required BGen. Roa and Lt. Gen. Emmanuel T. Bautista to fully
comply with the terms of Section III (i) of the dispositive portion
of our July 5, 2011 Resolution within fifteen (15) days from
receipt of the resolution;
(2) required Lt. Gen. Emmanuel T. Bautista to submit a written
assurance within fifteen (15) days from receipt of the Resolution
that the military personnel listed in the submitted After
Apprehension Report can be located and be served with the
processes that the Court may serve;
(3) issued a Temporary Protection Order in favor of the petitioner
and all the members of her immediate family;
(4) directed the DOJ and the NBI to provide security and protection
to the petitioner and her immediate family and to submit a
confidential memorandum on the security arrangements made;
(5) directed the NBI to coordinate and provide direct investigative
assistance to the CHR as it may require pursuant to the
authority granted under the Courts June 22, 2010 Resolution.15
i. The respondents Comment from the petitioners Urgent
Ex Parte Motion Ex Abundanti Cautela dated June 6, 2013
On June 6, 2013, the respondents, through the Office of the
Solicitor General, filed their comments on the petitioners Urgent
Ex Parte Motion Ex Abundanti Cautela.
First, the respondents alleged that the documents submitted by the
petitioner do not exist in the concerned military units respective
records, nor are they in the custody or possession of their
respective units. To support their allegations, the respondents
submitted the following:
a. Certification dated May 29, 2013 from Maj. Gen. Gregorio Pio
P. Catapang, Jr. Commander, 7th Infantry Division, Philippine Army
 stating that the documents16 submitted by the petitioner do not
exist nor in the possession/custody of this Headquarters.
b. Certification dated May 29, 2013, from Lt. Col. Louie D.S.
Villanueva, Assistant Chief of Staff, Office of the Assistant Chief of
Staff for Personnel, G1, 7th Infantry Division, Philippine Army stating
that the documents submitted by the petitioner could not be
found nor do they exist in the records of this Command.
c. Certification dated May 24, 2013 from Lt. Col. Bernardo M.
Ona, Commanding Officer, 56thInfantry Battalion, 7th Infantry
Division, Philippine Army stating that the documents submitted by
the petitioner do not exist at this unit.
d. Certification dated May 24, 2013 from 1Lt. Donal S. Frias,
Acting Commanding Officer, 72ndMilitary Intelligence Company,
7th Military Intelligence Battalion, 7th Infantry Division, Philippine
Army stating that the documents submitted by the petitioner do
not exist at the records or in the possession of this unit.17
The respondents also submitted the affidavits of Lt. Col. Melquiades
Feliciano, Maj. Allan M. Margarata and Cpl. Ruby Benedicto, viz:
a. In his June 3, 2013 Affidavit, Col. Feliciano stated:
1. That I was assigned as Battalion Commander of 56 th Infantry
Division, 7thInfantry Division, PA last 17 January 2007 to 17 August
2007.
2. That I was showed a photocopy of the After Apprehension
Report dated 30 April 2007 wherein members of 56 th IB, 7ID, PA
were included therein.
3. I vehemently oppose to (sic) the existence of the said
document and the participation of my men listed thereat. There
were no military operations that I have authorized or approved
regarding Jonas Burgos. The contents thereof are false and utter
fabrication of facts.
b. In his May 31, 2013 Affidavit, Maj. Margarata stated:
1. That I was assigned at 72nd Military Intelligence Company
(72MICO), 7thInfantry Division, PA from 01 July 2006 to 01 July 2008.
2. That I was showed a photocopy of the PsychoSocial
Processing Report dated 28 April 2007 and After Apprehension
Report dated 30 April 2007, both of which purportedly came from
72MICO, 7th Infantry Division, Philippine Army and that on the last
page of the PyschoSocial Processing Report appears my name
therein.
3. I vehemently oppose to (sic) the existence of the said
documents and the implication of my name in the said documents.
The contents thereof are purely a product of wild imagination. I
have never seen such document until now.
4. I can only surmise that these are plainly a fishing expedition
on the part of Mrs. Edita Burgos. A ploy to implicate any military
personnel especially those belonging to the 7th Infantry Division,
Philippine Army.
c. In her May 31, 2013 Affidavit, Cpl. Benedicto stated:
1. That I was never assigned at 72nd Military Intelligence
Company, 7th Infantry Division, PA.
2. That I was showed a photocopy of the PsychoSocial
Processing Report dated 28 April 2007 and After Apprehension
Report dated 30 April 2007, both of which purportedly came from
72MICO, 7th Infantry Division, Philippine Army and that on the last
page of the PsychoSocial Processing Report appears my name
therein.
3. I vehemently oppose to (sic) the existence of the said
documents and the implication of my name in the said documents.
The contents thereof are false and utter fabrication of facts. How
can I ever be at 72MICO if I was never assigned thereat.
4. I have never been an interrogator in my entire military
service. I have never been a member of any operation which
involves the name of Jonas Burgos or any other military operation
for that matter. I have never seen such document until now.
5. Furthermore, I have never worked with Maj. Allan Margarata
or of his unit, 72MICO.18
Second, the respondents note that none of the documents
submitted by the petitioner were signed; a writ of Amparo cannot
be issued and the investigation cannot progress on the basis of
false documents and false information.
Lastly, the respondents argue that since the National Bureau of
Investigation (NBI) and CHR are conducting their own investigations
of the case, the petitioners motion at this point is premature; the
proceedings to be conducted by the CA will be at the very least
redundant.
ii. The Respondents Compliance dated June 7, 2013
On June 7, 2013, the respondents, through the Office of Judge
Advocate General, complied with our April 11, 2013 Resolution by
submitting the following documents:
a. Profile/Summary of Information (SOI) with pictures of the
personnel of 56th Infantry Battalion (IB), 69th IB, and 7th Infantry
Division, Philippine Army (PA). These documents were submitted by
the 7th ID in sealed nine (9) small and three (3) big boxes (total of
twelve (12) sealed boxes);
b. Investigation Report of the Intelligence Service, Armed
Forces of the Philippines (ISAFP) on the 2007 ERAP 5 incident in
Kamuning, Quezon City; Profile/Summary of Information (SOI) with
pictures of the Intel Operatives involved in the ERAP 5 incident;
 and certification issued by the Command Adjutant of ISAFP
concerning T/Sgt. Jason Roxas (Philippine Army), Cpl. Maria Joana
Francisco (Philippine Air Force), M/Sgt. Aron Arroyo (Philippine Air
Force), an alias T.L., all reportedly assigned with the Military
Intelligence Group 15 of the Intelligence Service, AFP (MIG 15,
ISAFP). These documents were submitted by ISAFP in a sealed
envelope;
c. Profile/Summary of Information (SOI) with a picture of 2LT
Fernando PA. This document was submitted by Deputy Chief of
Staff for Personnel, G1, PA in a sealed envelope;
d. A certification issued by 56IB and 69IB, 7ID, PA concerning
captured/surrendered rebels;
e. A certification stating the present location and whereabouts
of military personnel listed in the submitted After Apprehension
Report, dated April 30, 2007, allegedly identified as members of the
Task Organization 72 MICO and 56th IB with the inclusion of four (4)
separate certifications from Commander, 7ID, PA, Office of the
Assistant Chief of Staff for Personnel, G1, 7ID, PA, Commanding
Officer, 72 MICO, and 56Ib, 71ID, PA, respectively, stating the non
existence of the following documents: PsychoSocial Processing
Report dated 28 April 2007; AfterApprehension Report dated 30
April 2007; Autobiography of Jonas Burgos; and Picture of Jonas
Burgos;
f. Affidavit of Compliance of General Emmanuel T. Bautista,
AFP, the Chief of Staff, assuring that the active military personnel
mentioned in the purported apprehension report can be located at
their given locations and be served with the processes that may be
issued by the Honorable Court.19
OUR RULING
A. On the relevancy and disclosure of the documents
submitted to this Court per paragraph III(i) of the fallo of
our July 5, 2011 Resolution
The directive for the submission of the abovementioned
documents arose from our determination in our June 22, 2010
Resolution that the PNPCIDG failed to identify the cartographic
sketches of two (one male and one female) of the five abductors of
Jonas, based on their interview with eyewitnesses to the abduction.
For this reason, the Court directly commissioned the CHR to
continue the investigation of Jonas abduction and the gathering of
evidence.
Based on its March 15, 2011 Report, the CHR uncovered a lead a
claim made by Eustaquio, Chairman of the Union Masses for
Democracy and Justice, that the male abductor of Jonas appearing
in the cartographic sketch was among the raiders who abducted
him and four others, known as the ERAP FIVE.
This prompted the CHR to request copies of the documents
embodied in par. III(i) of the fallo of the Courts July 5, 2011
Resolution from General Gilberto Jose C. Roa of the Office of the
Judge Advocate General, AFP. Gen. Roa initially denied this request
but eventually complied with the Courts directive of July 5, 2011 to
submit the documents via the September 23, 2011 Manifestation
and Motion and the June 7, 2013 Compliance. In the same July 5,
2011 Resolution, the Court made it plain that these documents
shall be released exclusively to the Court for its examination to
determine their relevance to the present case and the advisability
of their public disclosure.
Pursuant to the Courts October 11, 2011 Resolution, the CHR
submitted its March 20, 2012 Progress Report on its continuing
investigation of Jonas abduction. Attached to this Progress Report
was Virgilio Eustaquios sworn affidavit stating that: (1) he was one
of the victims of the abduction incident on May 22, 2006, otherwise
known as the ERAP FIVE incident; (2) as a result of this incident,
they filed a case with the Ombudsman against Commodore
Leonardo Calderon and other members of the Intelligence Service,
AFP (ISAFP) for arbitrary detention, unlawful arrest, maltreatment of
prisoners, grave threats, incriminatory machination and robbery;
and (3) the male abductor of Jonas appearing in the cartographic
sketch shown to him by the CHR was among the raiders who
abducted him and his four companions because it resembled the
cartographic sketch he described in relation to the ERAP FIVE
incident on May 22, 2006.
After reviewing the submissions of both the respondents 20 and the
CHR21 pursuant to the Courts July 5, 2011, August 23, 2011 and
October 11, 2011 Resolutions, we resolve to grant the CHR access
to these requested documents to allow them the opportunity to
ascertain the true identities of the persons depicted in the
cartographic sketches.
At this point, we emphasize that the sworn affidavit of Eustaquio
(that attests to the resemblance of one of Jonas abductors to the
abductors of the ERAP FIVE) constitutes the soughtafter missing
link that establishes the relevance of the requested documents to
the present case. We note that this lead may help the CHR
ascertain the identities of those depicted in the cartographic
sketches as two of Jonas abductors (one male and one female)
who, to this day, remain unidentified.

In view of the sensitive and confidential nature of the requested
documents, we direct the Clerk of Court of the Supreme Court to
allow the dulyauthorized representatives of the CHR to inspect the
requested documents in camera within five (5) days from receipt of
this Resolution. The documents shall be examined and compared
with the cartographic sketches of the two abductors of Jonas,
without copying and without bringing the documents outside the
premises of the Office of the Clerk of Court of the Supreme Court.
The inspection of the documents shall be within office hours and for
a reasonable period of time sufficient to allow the CHR to
comprehensively investigate the lead provided by Eustaquio.
To fully fulfill the objective of the Rule on the Writ of Amparo,
further investigation using the standard of extraordinary diligence
should be undertaken by the CHR to pursue the lead provided by
Eustaquio. We take judicial notice of the ongoing investigation
being conducted by the Department of Justice (DOJ), through the
NBI, on the disappearance of Jonas. 22 In this regard, we direct the
NBI to coordinate and provide direct investigative assistance to the
CHR as the latter may require, pursuant to the authority granted
under the Courts June 22, 2010 Resolution.
For this purpose, we require the CHR to submit a supplemental
investigation report to the DOJ, copy furnished the petitioner, the
NBI, the incumbent Chiefs of the AFP, the PNP and the PNPCIDG,
and all the respondents within sixty days (60) days from receipt of
this Resolution.
B. On the Urgent Ex Parte Motion Ex Abundanti Cautela
After reviewing the newly discovered evidence submitted by the
petitioner and considering all the developments of the case,
including the March 18, 2013 CA decision that confirmed the
validity of the issuance of the Writ of Amparo in the present case,
we resolve to deny the petitioners Urgent Ex Parte Motion Ex
Abundanti Cautela.
We note and conclude, based on the developments highlighted
above, that the beneficial purpose of the Writ of Amparo has been
served in the present case. As we held in Razon, Jr. v. Tagitis,23 the
writ merely embodies the Courts directives to police agencies to
undertake specified courses of action to address the enforced
disappearance of an individual. The Writ of Amparo serves both
a preventive and a curative role. It is curative as it facilitates the
subsequent punishment of perpetrators through the investigation
and remedial action that it directs. 24 The focus is on procedural
curative remedies rather than on the tracking of a specific criminal
or the resolution of administrative liabilities. The unique nature
of Amparo proceedings has led us to define terms or concepts
specific to what the proceedings seek to achieve. In Razon Jr., v.
Tagitis,25 we defined what the terms responsibility and
accountability signify in an Amparo case. We said:
Responsibility refers to the extent the actors have been
established by substantial evidence to have participated in
whatever way, by action or omission, in an enforced
disappearance, as a measure of the remedies this Court shall craft,
among them, the directive to file the appropriate criminal and civil
cases against the responsible parties in the proper
courts. Accountability, on the other hand, refers to the measure
of remedies that should be addressed to those who exhibited
involvement in the enforced disappearance without bringing the
level of their complicity to the level of responsibility defined above;
or who are imputed with knowledge relating to the enforced
disappearance and who carry the burden of disclosure; or those
who carry, but have failed to discharge, the burden of extraordinary
diligence in the investigation of the enforced
disappearance.26ChanRoblesVirtualawlibrary
In the present case, while Jonas remains missing, the series of
calculated directives issued by the Court outlined above and the
extraordinary diligence the CHR demonstrated in its investigations
resulted in the criminal prosecution of Lt. Baliaga. We take judicial
notice of the fact that the Regional Trial Court, Quezon City, Branch
216, has already found probable cause for arbitrary detention
against Lt. Baliaga and has ordered his arrest in connection with
Jonas disappearance.27
We also emphasize that the CA in its March 18, 2013
decision already ruled with finality on the entities responsible
and accountable (as these terms are defined in Razon, Jr. v. Tagitis)
for the enforced disappearance of Jonas. In its March 18, 2013
decision, the CA found, by substantial evidence, that Lt. Baliaga
participated in the abduction on the basis of Cabintoys positive
identification that he was one of the abductors of Jonas who told
him not to interfere because the latter had been under surveillance
for drugs. In the same Decision, the CA also held the AFP and the
PNP accountable for having failed to discharge the burden of
extraordinary diligence in the investigation of the enforced
disappearance of Jonas. Thus, the CA issued the following directives
to address the enforced disappearance of Jonas:
(1) DIRECT the PNP through its investigative arm, the PNPCIDG, to
identify and locate the abductors of Jonas Burgos who are still at
 large and to establish the link between the abductors of Jonas
Burgos and those involved in the ERAP 5 incident;
(2) DIRECT the incumbent Chief of Staff of the Armed Forces of the
Philippines and the Director General of the Philippines National
Police, and their successors, to ensure the continuance of their
investigation and coordination on the enforced disappearance of
Jonas Burgos until the persons found responsible are brought
before the bar of justice;
(3) DIRECT the Commission on Human Rights to continue with its
own independent investigation on the enforced disappearance
of Jonas Burgos with the same degree of diligence required
under the Rule on the Writ of Amparo;
(4) DIRECT the Armed Forces of the Philippines and the Philippine
National Police to extend full assistance to the Commission on
Human Rights in the conduct of the latters investigation; and
(5) DIRECT the Chief of Staff, Armed Forces of the Philippines, the
Director General, Philippine National Police and the Chairman,
Commission on Human Rights to submit a quarterly report to
the Court on the results of their respective investigation.28
We note that the respondents did not appeal the March 18, 2013
CA decision and the May 23, 2013 CA resolution denying their
motion for partial reconsideration.
Based on the above considerations, in particular, the final ruling of
the CA that confirmed the validity of the issuance of the Writ
of Amparo and its determination of the entities responsible for the
enforced disappearance of Jonas, we resolve to deny the
petitioners prayer to issue the writ of Amparo anew and to refer
the case to the CA based on the newly discovered evidence. We so
conclude as the petitioners request for the reissuance of the writ
and for the rehearing of the case by the CA would be redundant
and superfluous in light of: (1) the ongoing investigation being
conducted by the DOJ through the NBI; (2) the CHR investigation
directed by the Court in this Resolution; and (3) the continuing
investigation directed by the CA in its March 18, 2013 decision.
We emphasize that while the Rule on the Writ of Amparo accords
the Court a wide latitude in crafting remedies to address an
enforced disappearance, it cannot (without violating the nature of
the writ of Amparo as a summary remedy that provides rapid
judicial relief) grant remedies that would complicate and prolong
rather than expedite the investigations already ongoing. Note that
the CA has already determined with finality that Jonas was a victim
of enforced disappearance.
We clarify that by denying the petitioners motion, we do not
thereby rule on the admissibility or the merits of the newly
discovered evidence submitted by the petitioner. We likewise do
not foreclose any investigation by the proper investigative and
prosecutory agencies of the other entities whose identities and
participation in the enforced disappearance of Jonas may be
disclosed in future investigations and proceedings. Considering that
the present case has already reached the prosecution stage, the
petitioners motion should have been filed with the proper
investigative and prosecutory agencies of the government.
To expedite proceedings, we refer the petitioners motion, this
Resolution and its covered cases to the DOJ for investigation, for
the purpose of filing the appropriate criminal charges in the proper
courts against the proper parties, if warranted, based on the
gathered evidence. For this purpose, we direct the petitioner to
furnish the DOJ and the NBI copies of her Urgent Ex Parte Motion Ex
Abundanti Cautela, together with the sealed attachments to the
Motion, within five (5) days from receipt of this Resolution.
As mentioned, we take judicial notice of the ongoing investigation
by the DOJ, through the NBI, of the disappearance of Jonas. This
DOJ investigation is without prejudice to the Office of the
Ombudsmans exercise of its primary jurisdiction over the
investigation of the criminal aspect of this case should the case be
determined to be cognizable by the Sandiganbayan.29
As we direct below, further investigation for purposes of the
present proceedings shall continue to be undertaken by the CHR, in
close coordination with the NBI, for the completion of the
investigation under the terms of our June 22, 2010 Resolution and
the additional directives under the present Resolution.
As a final note, we emphasize that our ROLE in a writ
of Amparo proceeding is merely to determine whether an enforced
disappearance has taken place; to determine who is responsible or
accountable; and to define and impose the appropriate remedies to
address the disappearance.
As shown above, the beneficial purpose of the Writ of Amparo has
been served in the present case with the CAs final determination of
the persons responsible and accountable for the enforced
disappearance of Jonas and the commencement of criminal action
against Lt. Baliaga. At this stage, criminal, investigation and
prosecution proceedings are already beyond the reach of the Writ
of Amparo proceeding now before us.
Based on the above developments, we now hold that the full extent
of the remedies envisioned by the Rule on the Writ of Amparo has
been served and exhausted.Considering the foregoing, the
CourtRESOLVES to:
(1) DENY petitioner Edita Burgos Urgent Ex Parte Motion Ex
Abundanti Cautela;
(2) REFER the petitioners Urgent Ex Parte Motion Ex Abundanti
Cautela, this Resolution and its covered cases to the
Department of Justice for investigation for the purpose of filing
the appropriate criminal charges in the proper courts against
the proper parties if such action is warranted by the gathered
evidence. The referral to the Department of Justice is without
prejudice to the Office of the Ombudsmans exercise of its
primary jurisdiction over the investigation should the case be
determined to be cognizable by the Sandiganbayan;
(3) DIRECT the petitioner to furnish the Department of Justice and
the National Bureau of Investigation copies of her Urgent Ex
Parte Motion Ex Abundanti Cautela, together with the sealed
attachments to the Motion, within five (5) days from receipt of
this Resolution;
(4) DIRECT the Clerk of Court of the Supreme Court to allow the
dulyauthorized representatives of the Commission on Human
Rights to inspect the requested documents in camera within five
(5) days from receipt of this Resolution. For this purpose, the
documents shall be examined and compared with the
cartographic sketches of the two abductors of Jonas Burgos
without copying and bringing the documents outside the
premises of the Office of the Clerk of Court of the Supreme
Court. The inspection of the documents shall be conducted
within office hours and for a reasonable period of time that
would allow the Commission on Human Rights to
comprehensively investigate the lead provided by Virgilio
Eustaquio;
(5) DIRECT the National Bureau of Investigation to coordinate and
provide direct investigative assistance to the Commission on
Human Rights as the latter may require, pursuant to the
authority granted under the Courts June 22, 2010 Resolution.
(6) REQUIRE the Commission on Human Rights to submit a
supplemental investigation report to the Department of Justice,
copy furnished the petitioner, the National Bureau of
Investigation, the incumbent Chiefs of the Armed Forces of the
Philippines, the Philippine National Police and the Philippine
National PoliceCriminal Investigation and Detection Group, and
all the respondents, within sixty (60) days from receipt of this
Resolution.
(7) DECLARE this Writ of Amparo proceeding closed and
terminated, without prejudice to the concerned parties
compliance with the above directives and subject to the Courts
continuing jurisdiction to enforce compliance with this
Resolution.
SO ORDERED.
G.R. No. 199199 August 27, 2013
MARICRIS D. DOLOT, CHAIRMAN OF THE BAGONG
ALYANSANG MAKABAYAN-SORSOGON, PETITIONER
vs.
HON. RAMON PAJE, IN HIS CAPACITY AS THE SECRETARY OF
THE DEPARTMENT OF ENVIRONMENT AND NATURAL
RESOURCES, REYNULFO A. JUAN, REGIONAL DIRECTOR,
MINES AND GEOSCIENCES BUREAU, DENR, HON. RAUL R.
LEE, GOVERNOR, PROVINCE OF SORSOGON, ANTONIO C.
OCAMPO, JR., VICTORIA A. AJERO, ALFREDO M. AGUILAR,
AND JUAN M. AGUILAR, ANTONES ENTERPRISES, GLOBAL
SUMMIT MINES DEV'T CORP., AND TR ORE, RESPONDENTS.
DECISION
REYES, J.:
This is a petition for review on certiorari1 under Rule 45 of the Rules
of Court assailing the Order2 dated September 16, 2011 and
Resolution3 dated October 18, 2011 issued by the Regional Trial
Court (RTC) of Sorsogon, Branch 53. The assailed issuances
dismissed Civil Case No. 2011-8338 for Continuing Mandamus,
Damages and Attorneys Fees with Prayer for the Issuance of a
Temporary Environment Protection Order.
Antecedent Facts
On September 15, 2011, petitioner Maricris D. Dolot (Dolot),
together with the parish priest of the Holy Infant Jesus Parish and
the officers of Alyansa Laban sa Mina sa Matnog (petitioners), filed
a petition for continuing mandamus, damages and attorneys fees
with the RTC of Sorsogon, docketed as Civil Case No. 2011-
8338.4 The petition contained the following pertinent allegations:
(1) sometime in 2009, they protested the iron ore mining
operations being conducted by Antones Enterprises, Global Summit
Mines Development Corporation and TR Ore in Barangays Balocawe
and Bon-ot Daco, located in the Municipality of Matnog, to no avail;
(2) Matnog is located in the southern tip of Luzon and there is a
need to protect, preserve and maintain the geological foundation of
the municipality; (3) Matnog is susceptible to flooding and
landslides, and confronted with the environmental dangers of flood
hazard, liquefaction, ground settlement, ground subsidence and
landslide hazard; (4) after investigation, they learned that the
mining operators did not have the required permit to operate; (5)
Sorsogon Governor Raul Lee and his predecessor Sally Lee issued
to the operators a small-scale mining permit, which they did not
have authority to issue; (6) the representatives of the Presidential
Management Staff and the Department of Environment and Natural
Resources (DENR), despite knowledge, did not do anything to
protect the interest of the people of Matnog; 5 and (7) the
respondents violated Republic Act (R.A.) No. 7076 or the Peoples
Small-Scale Mining Act of 1991, R.A. No. 7942 or the Philippine
Mining Act of 1995, and the Local Government Code. 6 Thus, they
prayed for the following reliefs: (1) the issuance of a writ
commanding the respondents to immediately stop the mining
operations in the Municipality of Matnog; (2) the issuance of a
temporary environment protection order or TEPO; (3) the creation
of an inter-agency group to undertake the rehabilitation of the
mining site; (4) award of damages; and (5) return of the iron ore,
among others.7
The case was referred by the Executive Judge to the RTC of
Sorsogon, Branch 53 being the designated environmental court. 8 In
the Order9 dated September 16, 2011, the case was summarily
dismissed for lack of jurisdiction.
The petitioners filed a motion for reconsideration but it was denied
in the Resolution10 dated October 18, 2011. Aside from sustaining
the dismissal of the case for lack of jurisdiction, the RTC 11 further
ruled that: (1) there was no final court decree, order or decision yet
that the public officials allegedly failed to act on, which is a
condition for the issuance of the writ of continuing mandamus; (2)
the case was prematurely filed as the petitioners therein failed to
exhaust their administrative remedies; and (3) they also failed to
attach judicial affidavits and furnish a copy of the complaint to the
government or appropriate agency, as required by the rules.12
Petitioner Dolot went straight to this Court on pure questions of law.
Issues
The main issue in this case is whether the RTC-Branch 53 has
jurisdiction to resolve Civil Case No. 2011-8338. The other issue is
whether the petition is dismissible on the grounds that: (1) there is
no final court decree, order or decision that the public officials
allegedly failed to act on; (2) the case was prematurely filed for
failure to exhaust administrative remedies; and (3) the petitioners
failed to attach judicial affidavits and furnish a copy of the
complaint to the government or appropriate agency.
Ruling of the Court
Jurisdiction and Venue
In dismissing the petition for lack of jurisdiction, the RTC, in its
Order dated September 16, 2011, apparently relied on SC
Administrative Order (A.O.) No. 7 defining the territorial areas of the
Regional Trial Courts in Regions 1 to 12, and Administrative Circular
(Admin. Circular) No. 23-2008,13 designating the environmental
courts "to try and decide violations of environmental laws x x x
committed within their respective territorial jurisdictions." 14 Thus, it
ruled that its territorial jurisdiction was limited within the
boundaries of Sorsogon City and the neighboring municipalities of
Donsol, Pilar, Castilla, Casiguran and Juban and that it was "bereft
of jurisdiction to entertain, hear and decide [the] case, as such
authority rests before another co-equal court."15
Such reasoning is plainly erroneous. The RTC cannot solely rely on
SC A.O. No. 7 and Admin. Circular No. 23-2008 and confine itself
within its four corners in determining whether it had jurisdiction
over the action filed by the petitioners.
None is more well-settled than the rule that jurisdiction, which is
the power and authority of the court to hear, try and decide a case,
is conferred by law.16 It may either be over the nature of the action,
over the subject matter, over the person of the defendants or over
the issues framed in the pleadings. 17 By virtue of Batas Pambansa
(B.P.) Blg. 129 or the Judiciary Reorganization Act of 1980,
jurisdiction over special civil actions for certiorari, prohibition and
mandamus is vested in the RTC. Particularly, Section 21(1) thereof
provides that the RTCs shall exercise original jurisdiction
in the issuance of writs of certiorari, prohibition, mandamus, quo
warranto, habeas corpus and injunction which may be enforced in
any part of their respective regions. (Emphasis ours)
A.O. No. 7 and Admin. Circular No. 23-2008 was issued pursuant to
Section 18 of B.P. Blg. 129, which gave the Court authority to define
the territory over which a branch of the RTC shall exercise its
authority. These administrative orders and circulars issued by the
Court merely provide for the venue where an action may be filed.
The Court does not have the power to confer jurisdiction on any
court or tribunal as the allocation of jurisdiction is lodged solely in
Congress.18 It also cannot be delegated to another office or agency
of the Government.19 Section 18 of B.P. Blg. 129, in fact, explicitly
states that the territory thus defined shall be deemed to be the
territorial area of the branch concerned for purposes of determining
the venue of all suits, proceedings or actions. It was also clarified in
Office of the Court Administrator v. Judge Matas20 that
Administrative Order No. 3 [defining the territorial jurisdiction of the
Regional Trial Courts in the National Capital Judicial Region] and, in
like manner, Circular Nos. 13 and 19, did not per se confer
jurisdiction on the covered regional trial courts or its branches, such
that non-observance thereof would nullify their judicial acts. The
administrative order merely defines the limits of the administrative
area within which a branch of the court may exercise its authority
pursuant to the jurisdiction conferred by Batas Pambansa Blg.
129.21
The RTC need not be reminded that venue relates only to the place
of trial or the geographical location in which an action or
proceeding should be brought and does not equate to the
jurisdiction of the court. It is intended to accord convenience to the
parties, as it relates to the place of trial, and does not restrict their
access to the courts.22Consequently, the RTCs motu proprio
dismissal of Civil Case No. 2011-8338 on the ground of lack of
jurisdiction is patently incorrect.
At most, the error committed by the petitioners in filing the case
with the RTC of Sorsogon was that of improper venue. A.M. No. 09-
6-8-SC or the Rules of Procedure for Environmental Cases (Rules)
specifically states that a special civil action for continuing
mandamus shall be filed with the "[RTC] exercising jurisdiction over
the territory where the actionable neglect or omission occurred x x
x."23 In this case, it appears that the alleged actionable neglect or
omission occurred in the Municipality of Matnog and as such, the
petition should have been filed in the RTC of Irosin. 24 But even then,
it does not warrant the outright dismissal of the petition by the RTC
as venue may be waived. 25 Moreover, the action filed by the
petitioners is not criminal in nature where venue is an essential
element of jurisdiction.26 In Gomez-Castillo v. Commission on
Elections,27 the Court even expressed that what the RTC should
have done under the circumstances was to transfer the case (an
election protest) to the proper branch. Similarly, it would serve the
higher interest of justice28 if the Court orders the transfer of Civil
Case No. 2011 8338 to the RTC of Irosin for proper and speedy
resolution, with the RTC applying the Rules in its disposition of the
case.
At this juncture, the Court affirms the continuing applicability of
Admin. Circular No. 23-2008 constituting the different "green
courts" in the country and setting the administrative guidelines in
the raffle and disposition of environmental cases. While the
designation and guidelines were made in 2008, the same should
operate in conjunction with the Rules.
A.M. No. 09-6-8-SC: Rules of Procedure for Environmental Cases
In its Resolution dated October 18, 2011, which resolved the
petitioners motion for reconsideration of the order of dismissal, the
RTC further ruled that the petition was dismissible on the following
grounds: (1) there is no final court decree, order or decision yet
that the public officials allegedly failed to act on; (2) the case was
prematurely filed for failure to exhaust administrative remedies;
and (3) there was failure to attach judicial affidavits and furnish a
copy of the complaint to the government or appropriate
agency.29 The respondents, and even the Office of the Solicitor
General, in behalf of the public respondents, all concur with the
view of the RTC.
The concept of continuing mandamus was first introduced in
Metropolitan Manila Development Authority v. Concerned Residents
of Manila Bay.30 Now cast in stone under Rule 8 of the Rules, the
writ of continuing mandamus enjoys a distinct procedure than that
of ordinary civil actions for the enforcement/violation of
environmental laws, which are covered by Part II (Civil Procedure).
Similar to the procedure under Rule 65 of the Rules of Court for
special civil actions for certiorari, prohibition and mandamus,
Section 4, Rule 8 of the Rules requires that the petition filed should
be sufficient in form and substance before a court may take further
action; otherwise, the court may dismiss the petition outright.
Courts must be cautioned, however, that the determination to give
due course to the petition or dismiss it outright is an exercise of
discretion that must be applied in a reasonable manner in
consonance with the spirit of the law and always with the view in
mind of seeing to it that justice is served.31
Sufficiency in form and substance refers to the contents of the
petition filed under Rule 8, Section 1:
When any agency or instrumentality of the government or officer
thereof unlawfully neglects the performance of an act which the
law specifically enjoins as a duty resulting from an office, trust or
station in connection with the enforcement or violation of an
environmental law rule or regulation or a right therein, or unlawfully
excludes another from the use or enjoyment of such right and there
is no other plain, speedy and adequate remedy in the ordinary
course of law, the person aggrieved thereby may file a verified
petition in the proper court, alleging the facts with certainty,
attaching thereto supporting evidence, specifying that the petition
concerns an environmental law, rule or regulation, and praying that
judgment be rendered commanding the respondent to do an act or
series of acts until the judgment is fully satisfied, and to pay
damages sustained by the petitioner by reason of the malicious
neglect to perform the duties of the respondent, under the law,
rules or regulations. The petition shall also contain a sworn
certification of non-forum shopping.1wphi1
On matters of form, the petition must be verified and must contain
supporting evidence as well as a sworn certification of non-forum
shopping. It is also necessary that the petitioner must be one who
is aggrieved by an act or omission of the government agency,
instrumentality or its officer concerned. Sufficiency of substance, on
the other hand, necessitates that the petition must contain
substantive allegations specifically constituting an actionable
neglect or omission and must establish, at the very least, a prima
facie basis for the issuance of the writ, viz: (1) an agency or
instrumentality of government or its officer unlawfully neglects the
performance of an act or unlawfully excludes another from the use
or enjoyment of a right; (2) the act to be performed by the
government agency, instrumentality or its officer is specifically
enjoined by law as a duty; (3) such duty results from an office, trust
or station in connection with the enforcement or violation of an
environmental law, rule or regulation or a right therein; and (4)
there is no other plain, speedy and adequate remedy in the course
of law.32
The writ of continuing mandamus is a special civil action that may
be availed of "to compel the performance of an act specifically
enjoined by law."33 The petition should mainly involve an
environmental and other related law, rule or regulation or a right
therein. The RTCs mistaken notion on the need for a final
judgment, decree or order is apparently based on the definition of
the writ of continuing mandamus under Section 4, Rule 1 of the
Rules, to wit:
(c) Continuing mandamus is a writ issued by a court in an
environmental case directing any agency or instrumentality of the
government or officer thereof to perform an act or series of acts
decreed by final judgment which shall remain effective until
judgment is fully satisfied. (Emphasis ours)
The final court decree, order or decision erroneously alluded to by
the RTC actually pertains to the judgment or decree that a court
would eventually render in an environmental case for continuing
mandamus and which judgment or decree shall subsequently
become final.
Under the Rules, after the court has rendered a judgment in
conformity with Rule 8, Section 7 and such judgment has become
final, the issuing court still retains jurisdiction over the case to
ensure that the government agency concerned is performing its
tasks as mandated by law and to monitor the effective performance
of said tasks. It is only upon full satisfaction of the final judgment,
order or decision that a final return of the writ shall be made to the
court and if the court finds that the judgment has been fully
implemented, the satisfaction of judgment shall be entered in the
court docket.34 A writ of continuing mandamus is, in essence, a
command of continuing compliance with a final judgment as it
"permits the court to retain jurisdiction after judgment in order to
ensure the successful implementation of the reliefs mandated
under the courts decision."35
The Court, likewise, cannot sustain the argument that the
petitioners should have first filed a case with the Panel of
Arbitrators (Panel), which has jurisdiction over mining disputes
under R.A. No. 7942.
Indeed, as pointed out by the respondents, the Panel has
jurisdiction over mining disputes.36 But the petition filed below does
not involve a mining dispute. What was being protested are the
alleged negative environmental impact of the small-scale mining
operation being conducted by Antones Enterprises, Global Summit
Mines Development Corporation and TR Ore in the Municipality of
Matnog; the authority of the Governor of Sorsogon to issue mining
permits in favor of these entities; and the perceived indifference of
the DENR and local government officials over the issue. Resolution
of these matters does not entail the technical knowledge and
expertise of the members of the Panel but requires an exercise of
judicial function. Thus, in Olympic Mines and Development Corp. v.
Platinum Group Metals Corporation,37 the Court stated
Arbitration before the Panel of Arbitrators is proper only when there
is a disagreement between the parties as to some provisions of the
contract between them, which needs the interpretation and the
application of that particular knowledge and expertise possessed
by members of that Panel. It is not proper when one of the parties
repudiates the existence or validity of such contract or agreement
on the ground of fraud or oppression as in this case. The validity of
the contract cannot be subject of arbitration proceedings.
Allegations of fraud and duress in the execution of a contract are
matters within the jurisdiction of the ordinary courts of law. These
questions are legal in nature and require the application and
interpretation of laws and jurisprudence which is necessarily a
judicial function.38 (Emphasis supplied in the former and ours in the
latter)
Consequently, resort to the Panel would be completely useless and
unnecessary.
The Court also finds that the RTC erred in ruling that the petition is
infirm for failure to attach judicial affidavits. As previously stated,
Rule 8 requires that the petition should be verified, contain
supporting evidence and must be accompanied by a sworn
certification of non-forum shopping. There is nothing in Rule 8 that
compels the inclusion of judicial affidavits, albeit not prohibited. It
is only if the evidence of the petitioner would consist of testimony
of witnesses that it would be the time that judicial affidavits
(affidavits of witnesses in the question and answer form) must be
attached to the petition/complaint.39
Finally, failure to furnish a copy of the petition to the respondents is
not a fatal defect such that the case should be dismissed. The RTC
could have just required the petitioners to furnish a copy of the
petition to the respondents. It should be remembered that "courts
are not enslaved by technicalities, and they have the prerogative to
relax compliance with procedural rules of even the most mandatory
character, mindful of the duty to reconcile both the need to
speedily put an end to litigation and the parties right to an
opportunity to be heard."40
WHEREFORE, the petition is GRANTED. The Order dated September
16, 2011 and Resolution dated October 18, 2011 issued by the
Regional Trial Court of Sorsogon, Branch 53, dismissing Civil Case
No. 2011-8338 are NULLIFIED AND SET ASIDE. The Executive Judge
of the Regional Trial Court of Sorsogon is DIRECTED to transfer the
case to the Regional Trial Court of Irosin, Branch 55, for further
proceedings with dispatch. Petitioner Maricris D. Dolot is also
ORDERED to furnish the respondents with a copy of the petition
and its annexes within ten (10) days from receipt of this Decision
and to submit its Compliance with the RTC of Irosin.
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?
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 about the alleged report which
MERALCO purportedly received concerning threats to her safety
and security amount to a violation of her right to privacy in life,
liberty and security, correctible by habeas data. Respondent thus
prayed for the issuance of a writ commanding petitioners to file a
written return containing the following:
a) a full disclosure of the data or information about respondent in
relation to the report purportedly received by petitioners on the
alleged threat to her safety and security; the nature of such data
and the purpose for its collection;
b) the measures taken by petitioners to ensure the confidentiality
of such data or information; and
c) the currency and accuracy of such data or information obtained.
Additionally, respondent prayed for the issuance of a Temporary
Restraining Order (TRO) enjoining petitioners from effecting her
transfer to the MERALCO Alabang Sector.
By Order6 of August 29, 2008, Branch 7 of the Bulacan RTC directed
petitioners to file their verified written return. And by Order of
September 5, 2008, the trial court granted respondents application
for a TRO.
Petitioners moved for the dismissal of the petition and recall of the
TRO on the grounds that, inter alia, resort to a petition for writ of
habeas data was not in order; and the RTC lacked jurisdiction over
the case which properly belongs to the National Labor Relations
Commission (NLRC).7
By Decision8 of September 22, 2008, the trial court granted the
prayers of respondent including the issuance of a writ of
preliminary injunction directing petitioners to desist from
implementing respondents transfer until such time that petitioners
comply with the disclosures required.
The trial court justified its ruling by declaring that, inter alia,
recourse to a writ of habeas data should extend not only to victims
of extra-legal killings and political activists but also to ordinary
citizens, like respondent whose rights to life and security are
jeopardized by petitioners refusal to provide her with information
or data on the reported threats to her person.
Hence, the present petition for review under Rule 45 of 1997 Rules
of Civil Procedure and the Rule on the Writ of Habeas
Data9 contending that 1) the RTC lacked jurisdiction over the case
and cannot restrain MERALCOs prerogative as employer to transfer
the place of work of its employees, and 2) the issuance of the writ
is outside the parameters expressly set forth in the Rule on the Writ
of Habeas Data.101avvphi1
Maintaining that the RTC has no jurisdiction over what they contend
is clearly a labor dispute, petitioners argue that "although
ingeniously crafted as a petition for habeas data, respondent is
essentially questioning the transfer of her place of work by her
employer"11 and the terms and conditions of her employment which
arise from an employer-employee relationship over which the NLRC
and the Labor Arbiters under Article 217 of the Labor Code have
jurisdiction.
Petitioners thus maintain that the RTC had no authority to restrain
the implementation of the Memorandum transferring respondents
place of work which is purely a management prerogative, and that
OCA-Circular No. 79-200312 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.
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 thereof, and to file a verified written return within five (5) working
is, accordingly, DISMISSED. days from date of receipt thereof.
No costs.
In her Verified Return11 dated July 2, 2012, Lee admitted that she
indeed kept the memory card of the digital camera and reproduced
G.R. No. 203254, October 08, 2014
the aforesaid video but averred that she only did so to utilize the
DR. JOY MARGATE LEE, Petitioner, v. P/SUPT. NERI A.
same as evidence in the cases she filed against Ilagan. She also
ILAGAN, Respondent.
admitted that her relationship with Ilagan started sometime in 2003
DECISION
and ended under disturbing circumstances in August 2011, and
PERLAS-BERNABE, J.:
that she only happened to discover the subject video when Ilagan
Before the Court is a petition for review on certiorari1 assailing the
left his camera in her condominium. Accordingly, Lee contended
Decision2 dated August 30, 2012 of the Regional Trial Court of
that Ilagans petition for the issuance of the writ of habeas
Quezon City, Branch 224 (RTC) in SP No. 12-71527, which extended
data should be dismissed because: (a) its filing was only aimed at
the privilege of the writ of habeas data in favor of respondent Police
suppressing the evidence against Ilagan in the cases she filed; and
Superintendent Neri A. Ilagan (Ilagan).
(b) she is not engaged in the gathering, collecting, or storing of
The Facts
data regarding the person of Ilagan.12
The RTC Ruling
In his Petition for Issuance of the Writ of Habeas Data3 dated June
22, 2012, Ilagan alleged that he and petitioner Dr. Joy Margate Lee
In a Decision13 dated August 30, 2012, the RTC granted the
(Lee) were former common law partners. Sometime in July 2011, he
privilege of the writ of habeas data in Ilagans favor, and
visited Lee at the latters condominium, rested for a while and
accordingly, ordered the implementing officer to turn-over copies of
thereafter,proceeded to his office. Upon arrival, Ilagan noticed that
the subject video to him, and enjoined Lee from further reproducing
his digital camera was missing.4 On August 23, 2011, Lee
the same.14
confronted Ilagan at the latters office regarding a purported sex
video (subject video) she discovered from the aforesaid camera
The RTC did not give credence to Lees defense that she is not
involving Ilagan and another woman. Ilagan denied the video and
engaged in the gathering, collecting or storing of data regarding
demanded Lee to return the camera, but to no avail.5 During the
the person of Ilagan, finding that her acts of reproducing the
confrontation, Ilagan allegedly slammed Lees head against a wall
subject video and showing it to other people, i.e., the NAPOLCOM
inside his office and walked away. 6Subsequently, Lee utilized the
officers, violated the latters right to privacy in life and caused him
said video as evidence in filing various complaints against Ilagan,
to suffer humiliation and mental anguish. In this relation, the RTC
namely: (a) a criminal complaint for violation of Republic Act No.
opined that Lees use of the subject video as evidence in the
9262,7otherwise known as the Anti-Violence Against Women and
various cases she filed against Ilagan is not enough justification for
Their Children Act of 2004, before the Office of the City Prosecutor
its reproduction. Nevertheless, the RTC clarified that it is only ruling
of Makati; and (b) an administrative complaint for grave
on the return of the aforesaid video and not on its admissibility
misconduct before the National Police Commission (NAPOLCOM). 8
before other tribunals.15
Ilagan claimed that Lees acts of reproducing the subject video and
threatening to distribute the same to the upper echelons of the
Dissatisfied, Lee filed this petition.
NAPOLCOM and uploading it to the internet violated not only his
The Issue Before the Court
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
The essential issue for the Courts resolution is whether or not the
is warranted.9
RTC correctly extended the privilege of the writ of habeas data in
favor of Ilagan.
Finding the petition prima facie meritorious, the RTC issued a Writ
The Courts Ruling
of Habeas Data10 dated June 25, 2012, directing Lee to appear
before the court a quo, and to produce Ilagans digital camera, as
The petition is meritorious.
well as the negative and/or original of the subject video and copies
A.M. No. 08-1-16-SC, or the Rule on the Writ of Habeas
Data (Habeas Data Rule), was conceived as a response, given the
lack of effective and available remedies, to address the
extraordinary rise in the number of killings and enforced
disappearances.16 It was conceptualized as a judicial remedy
enforcing the right to privacy, most especially the right to
informational privacy of individuals,17which is defined as the
right to control the collection, maintenance, use, and dissemination
of data about oneself.18
As defined in Section 1 of the Habeas Data Rule, the writ of habeas
data now stands as a remedy available to any person whose right
to privacy in life, liberty or security is violated or threatened
by an unlawful act or omission of a public official or employee, or of
a private individual or entity engaged in the gathering, collecting or
storing of data or information regarding the person, family,
home, and correspondence of the aggrieved party. Thus, in
order to support a petition for the issuance of such writ, Section 6
of the Habeas Data Rule essentially requires that the petition
sufficiently alleges, among others, [t]he manner the right to
privacy is violated or threatened and how it affects the
right to life, liberty or security of the aggrieved party. In
other words, the petition must adequately show that there exists
a nexus between the right to privacy on the one hand, and
the right to life, liberty or security on the other .19 Corollarily,
the allegations in the petition must be supported by substantial
evidence showing an actual or threatened violation of the right to
privacy in life, liberty or security of the victim. 20 In this relation, it
bears pointing out that the writ of habeas data will not issue to
protect purely property or commercial concerns nor when the
grounds invoked in support of the petitions therefor are vague and
doubtful.21
In this case, the Court finds that Ilagan was not able to sufficiently
allege that his right to privacy in life, liberty or security was or
would be violated through the supposed reproduction and
threatened dissemination of the subject sex video. While Ilagan
purports a privacy interest in the suppression of this video which
he fears would somehow find its way to Quiapo or be uploaded in
the internet for public consumption he failed to explain the
connection between such interest and any violation of his right to
life, liberty or security. Indeed, courts cannot speculate or contrive
versions of possible transgressions. As the rules and existing
jurisprudence on the matter evoke, alleging and eventually proving
the nexus between ones privacy right to the cogent rights to life,
liberty or security are crucial in habeas data cases, so much so that
a failure on either account certainly renders a habeas data petition
dismissible, as in this case.
In fact, even discounting the insufficiency of the allegations, the
petition would equally be dismissible due to the inadequacy of the
evidence presented. As the records show, all that Ilagan submitted
in support of his petition was his self-serving testimony which
hardly meets the substantial evidence requirement as prescribed
by the Habeas Data Rule. This is because nothing therein would
indicate that Lee actually proceeded to commit any overt act
towards the end of violating Ilagans right to privacy in life, liberty
or security. Nor would anything on record even lead a reasonable
mind to conclude22 that Lee was going to use the subject video in
order to achieve unlawful ends say for instance, to spread it to
the public so as to ruin Ilagans reputation. Contrastingly, Lee even
made it clear in her testimony that the only reason why she
reproduced the subject video was to legitimately utilize the same
as evidence in the criminal and administrative cases that she filed
against Ilagan.23 Hence, due to the insufficiency of the allegations
as well as the glaring absence of substantial evidence, the Court
finds it proper to reverse the RTC Decision and dismiss the habeas
data petition.
WHEREFORE, the petition is GRANTED. The Decision dated
August 30, 2012 of the Regional Trial Court of Quezon City, Branch
224 in SP No. 12-71527is hereby REVERSED and SET ASIDE.
Accordingly, the Petition for Issuance of the Writ of Habeas
Data filed by respondent P/Supt. Neri A. Ilagan is DISMISSED for
lack of merit.
G.R. No. 206510 September 16, 2014
MOST REV. PEDRO D. ARIGO, Vicar Apostolic of Puerto
Princesa D.D.; MOST REV. DEOGRACIAS S. INIGUEZ, JR.,
Bishop-Emeritus of Caloocan, FRANCES Q. QUIMPO,
CLEMENTE G. BAUTISTA, JR., Kalikasan-PNE, MARIA
CAROLINA P. ARAULLO, RENATO M. REYES, JR., Bagong
Alyansang Makabayan, HON. NERI JAVIER COLMENARES,
Bayan Muna Partylist, ROLAND G. SIMBULAN, PH.D., Junk VF
A Movement, TERESITA R. PEREZ, PH.D., HON. RAYMOND V.
PALATINO, Kabataan Party-list, PETER SJ. GONZALES,
Pamalakaya, GIOVANNI A. TAPANG, PH. D., Agham, ELMER C.
LABOG, Kilusang Mayo Uno, JOAN MAY E. SALVADOR,
Gabriela, JOSE ENRIQUE A. AFRICA, THERESA A.
CONCEPCION, MARY JOAN A. GUAN, NESTOR T. BAGUINON,
PH.D., A. EDSEL F. TUPAZ, Petitioners,
vs.
SCOTT H. SWIFT in his capacity as Commander of the US.
7th Fleet, MARK A. RICE in his capacity as Commanding
Officer of the USS Guardian, PRESIDENT BENIGNO S.
AQUINO III in his capacity as Commander-in-Chief of the
Armed Forces of the Philippines, HON. ALBERT F. DEL
ROSARIO, Secretary, pepartment of Foreign Affair.s, HON.
PAQUITO OCHOA, JR., Executiv~.:Secretary, Office of the
President, . HON. VOLTAIRE T. GAZMIN, Secretary,
Department of National Defense, HON. RAMON JESUS P. P
AJE, Secretary, Department of Environment and Natural
Resoz!rces, VICE ADMIRAL JOSE LUIS M. ALANO, Philippine
Navy Flag Officer in Command, Armed Forces of the
Philippines, ADMIRAL RODOLFO D. ISO RENA, Commandant,
Philippine Coast Guard, COMMODORE ENRICO EFREN
EVANGELISTA, Philippine Coast Guard Palawan, MAJOR GEN.
VIRGILIO 0. DOMINGO, Commandant of Armed Forces of the
Philippines Command and LT. GEN. TERRY G. ROBLING, US
Marine Corps Forces. Pacific and Balikatan 2013 Exercise
Co-Director, Respondents.
DECISION
VILLARAMA, JR, J.:
Before us is a petition for the issuance of a Writ of Kalikasan with
prayer for the issuance of a Temporary Environmental Protection
Order (TEPO) under Rule 7 of A.M. No. 09-6-8-SC, otherwise known
as the Rules of Procedure for Environmental Cases (Rules),
involving violations of environmental laws and regulations in
relation to the grounding of the US military ship USS Guardian over
the Tubbataha Reefs.
Factual Background
The name "Tubbataha" came from the Samal (seafaring people of
southern Philippines) language which means "long reef exposed at
low tide." Tubbataha is composed of two huge coral atolls - the
north atoll and the south atoll - and the Jessie Beazley Reef, a
smaller coral structure about 20 kilometers north of the atolls. The
reefs of Tubbataha and Jessie Beazley are considered part of
Cagayancillo, a remote island municipality of Palawan.1
In 1988, Tubbataha was declared a National Marine Park by virtue
of Proclamation No. 306 issued by President Corazon C. Aquino on
August 11, 1988. Located in the middle of Central Sulu Sea, 150
kilometers southeast of Puerto Princesa City, Tubbataha lies at the
heart of the Coral Triangle, the global center of marine biodiversity.
In 1993, Tubbataha was inscribed by the United Nations
Educational Scientific and Cultural Organization (UNESCO) as a
World Heritage Site. It was recognized as one of the Philippines'
oldest ecosystems, containing excellent examples of pristine reefs
and a high diversity of marine life. The 97,030-hectare protected
marine park is also an important habitat for internationally
threatened and endangered marine species. UNESCO cited
Tubbataha's outstanding universal value as an important and
significant natural habitat for in situ conservation of biological
diversity; an example representing significant on-going ecological
and biological processes; and an area of exceptional natural beauty
and aesthetic importance.2
On April 6, 2010, Congress passed Republic Act (R.A.) No.
10067,3 otherwise known as the "Tubbataha Reefs Natural Park
(TRNP) Act of 2009" "to ensure the protection and conservation of
the globally significant economic, biological, sociocultural,
educational and scientific values of the Tubbataha Reefs into
perpetuity for the enjoyment of present and future generations."
Under the "no-take" policy, entry into the waters of TRNP is strictly
regulated and many human activities are prohibited and penalized
or fined, including fishing, gathering, destroying and disturbing the
resources within the TRNP. The law likewise created the Tubbataha
Protected Area Management Board (TPAMB) which shall be the sole
policy-making and permit-granting body of the TRNP.
The USS Guardian is an Avenger-class mine countermeasures ship
of the US Navy. In December 2012, the US Embassy in the
Philippines requested diplomatic clearance for the said vessel "to
enter and exit the territorial waters of the Philippines and to arrive
at the port of Subic Bay for the purpose of routine ship
replenishment, maintenance, and crew liberty." 4 On January 6,
2013, the ship left Sasebo, Japan for Subic Bay, arriving on January
13, 2013 after a brief stop for fuel in Okinawa, Japan.1wphi1
On January 15, 2013, the USS Guardian departed Subic Bay for its
next port of call in Makassar, Indonesia. On January 17, 2013 at
2:20 a.m. while transiting the Sulu Sea, the ship ran aground on the
northwest side of South Shoal of the Tubbataha Reefs, about 80
miles east-southeast of Palawan. No cine was injured in the
incident, and there have been no reports of leaking fuel or oil.
On January 20, 2013, U.S. 7th Fleet Commander, Vice Admiral Scott
Swift, expressed regret for the incident in a press
5
statement. Likewise, US Ambassador to the Philippines Harry K.
Thomas, Jr., in a meeting at the Department of Foreign Affairs (DFA)
on February 4, "reiterated his regrets over the grounding incident
and assured Foreign Affairs Secretazy Albert F. del Rosario that the
United States will provide appropriate compensation for damage to
the reef caused by the ship." 6 By March 30, 2013, the US Navy-led
salvage team had finished removing the last piece of the grounded
ship from the coral reef.
On April 1 7, 2013, the above-named petitioners on their behalf and
in representation of their respective sector/organization and others,
including minors or generations yet unborn, filed the present
petition agairtst Scott H. Swift in his capacity as Commander of the
US 7th Fleet, Mark A. Rice in his capacity as Commanding Officer of
the USS Guardian and Lt. Gen. Terry G. Robling, US Marine Corps
Forces, Pacific and Balikatan 2013 Exercises Co-Director ("US
respondents"); President Benigno S. Aquino III in his capacity as
Commander-in-Chief of the Armed Forces of the Philippines (AFP),
DF A Secretary Albert F. Del Rosario, Executive Secretary Paquito
Ochoa, Jr., Secretary Voltaire T. Gazmin (Department of National
Defense), Secretary Jesus P. Paje (Department of Environment and
Natural Resources), Vice-Admiral Jose Luis M. Alano (Philippine Navy
Flag Officer in Command, AFP), Admiral Rodolfo D. Isorena
(Philippine Coast Guard Commandant), Commodore Enrico Efren
Evangelista (Philippine Coast Guard-Palawan), and Major General
Virgilio 0. Domingo (AFP Commandant), collectively the "Philippine
respondents."
The Petition
Petitioners claim that the grounding, salvaging and post-salvaging
operations of the USS Guardian cause and continue to cause
environmental damage of such magnitude as to affect the
provinces of Palawan, Antique, Aklan, Guimaras, Iloilo, Negros
Occidental, Negros Oriental, Zamboanga del Norte, Basilan, Sulu,
and Tawi-Tawi, which events violate their constitutional rights to a
balanced and healthful ecology. They also seek a directive from this
Court for the institution of civil, administrative and criminal suits for
acts committed in violation of environmental laws and regulations
in connection with the grounding incident.
Specifically, petitioners cite the following violations committed by
US respondents under R.A. No. 10067: unauthorized entry (Section
19); non-payment of conservation fees (Section 21 ); obstruction of
law enforcement officer (Section 30); damages to the reef (Section
20); and destroying and disturbing resources (Section 26[g]).
Furthermore, petitioners assail certain provisions of the Visiting
Forces Agreement (VFA) which they want this Court to nullify for
being unconstitutional.
The numerous reliefs sought in this case are set forth in the final
prayer of the petition, to wit: WHEREFORE, in view of the foregoing,
Petitioners respectfully pray that the Honorable Court: 1.
Immediately issue upon the filing of this petition a Temporary
Environmental Protection Order (TEPO) and/or a Writ of Kalikasan,
which shall, in particular,
a. Order Respondents and any person acting on their behalf, to
cease and desist all operations over the Guardian grounding
incident;
b. Initially demarcating the metes and bounds of the damaged area
as well as an additional buffer zone;
c. Order Respondents to stop all port calls and war games under
'Balikatan' because of the absence of clear guidelines, duties, and
liability schemes for breaches of those duties, and require
Respondents to assume responsibility for prior and future
environmental damage in general, and environmental damage
under the Visiting Forces Agreement in particular.
d. Temporarily define and describe allowable activities of
ecotourism, diving, recreation, and limited commercial activities by
fisherfolk and indigenous communities near or around the TRNP but
away from the damaged site and an additional buffer zone;
2. After summary hearing, issue a Resolution extending the TEPO
until further orders of the Court;
3. After due proceedings, render a Decision which shall include,
without limitation:
a. Order Respondents Secretary of Foreign Affairs, following the
dispositive portion of Nicolas v. Romulo, "to forthwith negotiate with
the United States representatives for the appropriate agreement on
[environmental guidelines and environmental accountability] under
Philippine authorities as provided in Art. V[] of the VFA ... "
b. Direct Respondents and appropriate agencies to commence
administrative, civil, and criminal proceedings against erring
officers and individuals to the full extent of the law, and to make
such proceedings public;
c. Declare that Philippine authorities may exercise primary and
exclusive criminal jurisdiction over erring U.S. personnel under the
circumstances of this case;
d. Require Respondents to pay just and reasonable compensation in
the settlement of all meritorious claims for damages caused to the
Tubbataha Reef on terms and conditions no less severe than those
applicable to other States, and damages for personal injury or
death, if such had been the case;
e. Direct Respondents to cooperate in providing for the attendance
of witnesses and in the collection and production of evidence,
including seizure and delivery of objects connected with the
offenses related to the grounding of the Guardian;
f. Require the authorities of the Philippines and the United States to
notify each other of the disposition of all cases, wherever heard,
related to the grounding of the Guardian;
g. Restrain Respondents from proceeding with any purported
restoration, repair, salvage or post salvage plan or plans, including
cleanup plans covering the damaged area of the Tubbataha Reef
absent a just settlement approved by the Honorable Court;
h. Require Respondents to engage in stakeholder and LOU
consultations in accordance with the Local Government Code and
R.A. 10067;
i. Require Respondent US officials and their representatives to place
a deposit to the TRNP Trust Fund defined under Section 17 of RA
10067 as a bona .fide gesture towards full reparations;
j. Direct Respondents to undertake measures to rehabilitate the
areas affected by the grounding of the Guardian in light of
Respondents' experience in the Port Royale grounding in 2009,
among other similar grounding incidents;
k. Require Respondents to regularly publish on a quarterly basis
and in the name of transparency and accountability such
environmental damage assessment, valuation, and valuation
methods, in all stages of negotiation;
l. Convene a multisectoral technical working group to provide
scientific and technical support to the TPAMB;
m. Order the Department of Foreign Affairs, Department of National
Defense, and the Department of Environment and Natural
Resources to review the Visiting Forces Agreement and the Mutual
Defense Treaty to consider whether their provisions allow for the
exercise of erga omnes rights to a balanced and healthful ecology
and for damages which follow from any violation of those rights;
n. Narrowly tailor the provisions of the Visiting Forces Agreement
for purposes of protecting the damaged areas of TRNP;
o. Declare the grant of immunity found in Article V ("Criminal
Jurisdiction") and Article VI of the Visiting Forces Agreement
unconstitutional for violating equal protection and/or for violating
the preemptory norm of nondiscrimination incorporated as part of
the law of the land under Section 2, Article II, of the Philippine
Constitution;
p. Allow for continuing discovery measures;
q. Supervise marine wildlife rehabilitation in the Tubbataha Reefs in
all other respects; and
4. Provide just and equitable environmental rehabilitation measures
and such other reliefs as are just and equitable under the
premises.7 (Underscoring supplied.)
Since only the Philippine respondents filed their comment 8 to the
petition, petitioners also filed a motion for early resolution and
motion to proceed ex parte against the US respondents. 9
Respondents' Consolidated Comment
In their consolidated comment with opposition to the application for
a TEPO and ocular inspection and production orders, respondents
assert that: ( 1) the grounds relied upon for the issuance of a TEPO
or writ of Kalikasan have become fait accompli as the salvage
operations on the USS Guardian were already completed; (2) the
petition is defective in form and substance; (3) the petition
improperly raises issues involving the VFA between the Republic of
the Philippines and the United States of America; and ( 4) the
determination of the extent of responsibility of the US Government
as regards the damage to the Tubbataha Reefs rests exdusively
with the executive branch.
The Court's Ruling
As a preliminary matter, there is no dispute on the legal standing of
petitioners to file the present petition.
Locus standi is "a right of appearance in a court of justice on a
given question."10 Specifically, it is "a party's personal and
substantial interest in a case where he has sustained or will sustain
direct injury as a result" of the act being challenged, and "calls for
more than just a generalized grievance." 11 However, the rule on
standing is a procedural matter which this Court has relaxed for
non-traditional plaintiffs like ordinary citizens, taxpayers and
legislators when the public interest so requires, such as when the
subject matter of the controversy is of transcendental importance,
of overreaching significance to society, or of paramount public
interest.12
In the landmark case of Oposa v. Factoran, Jr., 13 we recognized the
"public right" of citizens to "a balanced and healthful ecology
which, for the first time in our constitutional history, is solemnly
incorporated in the fundamental law." We declared that the right to
a balanced and healthful ecology need not be written in the
Constitution for it is assumed, like other civil and polittcal rights
guaranteed in the Bill of Rights, to exist from the inception of
mankind and it is an issue of transcendental importance with
intergenerational implications.1wphi1 Such right carries with it the
correlative duty to refrain from impairing the environment.14
On the novel element in the class suit filed by the petitioners
minors in Oposa, this Court ruled that not only do ordinary citizens
have legal standing to sue for the enforcement of environmental
rights, they can do so in representation of their own and future
generations. Thus:
Petitioners minors assert that they represent their generation as
well as generations yet unborn. We find no difficulty in ruling that
they can, for themselves, for others of their generation and for the
succeeding generations, file a class suit. Their personality to sue in
behalf of the succeeding generations can only be based on the
concept of intergenerational responsibility insofar as the right to a
balanced and healthful ecology is concerned. Such a right, as
hereinafter expounded, considers the "rhythm and harmony of
nature." Nature means the created world in its entirety. Such
rhythm and harmony indispensably include, inter alia, the judicious
disposition, utilization, management, renewal and conservation of
the country's forest, mineral, land, waters, fisheries, wildlife, off-
shore areas and other natural resources to the end that their
exploration, development and utilization be equitably accessible to
the present a:: well as future generations. Needless to say, every
generation has a responsibility to the next to preserve that rhythm
and harmony for the full 1:njoyment of a balanced and healthful
ecology. Put a little differently, the minors' assertion of their right to
a sound environment constitutes, at the same time, the
performance of their obligation to ensure the protection of that
right for the generations to come.15 (Emphasis supplied.)
The liberalization of standing first enunciated in Oposa, insofar as it
refers to minors and generations yet unborn, is now enshrined in
the Rules which allows the filing of a citizen suit in environmental
cases. The provision on citizen suits in the Rules "collapses the
traditional rule on personal and direct interest, on the principle that
humans are stewards of nature."16
Having settled the issue of locus standi, we shall address the more
fundamental question of whether this Court has jurisdiction over
the US respondents who did not submit any pleading or
manifestation in this case.
The immunity of the State from suit, known also as the doctrine of
sovereign immunity or non-suability of the State, 17 is expressly
provided in Article XVI of the 1987 Constitution which states:
Section 3. The State may not be sued without its consent.
In United States of America v. Judge Guinto, 18 we discussed the
principle of state immunity from suit, as follows:
The rule that a state may not be sued without its consent, now
expressed in Article XVI, Section 3, of the 1987 Constitution, is one
of the generally accepted principles of international law that we
have adopted as part of the law of our land under Article II, Section
2. x x x.
Even without such affirmation, we would still be bound by the
generally accepted principles of international law under the
doctrine of incorporation. Under this doctrine, as accepted by the
majority of states, such principles are deemed incorporated in the
law of every civilized state as a condition and consequence of its
membership in the society of nations. Upon its admission to such
society, the state is automatically obligated to comply with these
principles in its relations with other states.
As applied to the local state, the doctrine of state immunity is
based on the justification given by Justice Holmes that ''there can
be no legal right against the authority which makes the law on
which the right depends." [Kawanakoa v. Polybank, 205 U.S. 349]
There are other practical reasons for the enforcement of the
doctrine. In the case of the foreign state sought to be impleaded in
the local jurisdiction, the added inhibition is expressed in the
maxim par in parem, non habet imperium. All states are sovereign
equals and cannot assert jurisdiction over one another. A contrary
disposition would, in the language of a celebrated case, "unduly
vex the peace of nations." [De Haber v. Queen of Portugal, 17 Q. B.
171]
While the doctrine appears to prohibit only suits against the state
without its consent, it is also applicable to complaints filed against
officials of the state for acts allegedly performed by them in the
discharge of their duties. The rule is that if the judgment against
such officials will require the state itself to perform an affirmative
act to satisfy the same,. such as the appropriation of the amount
needed to pay the damages awarded against them, the suit must
be regarded as against the state itself although it has not been
formally impleaded. [Garcia v. Chief of Staff, 16 SCRA 120] In such
a situation, the state may move to dismiss the comp.taint on the
ground that it has been filed without its consent. 19 (Emphasis
supplied.)
Under the American Constitution, the doctrine is expressed in the
Eleventh Amendment which reads:
The Judicial power of the United States shall not be construed to
extend to any suit in law or equity, commenced or prosecuted
against one of the United States by Citizens of another State, or by
Citizens or Subjects of any Foreign State.
In the case of Minucher v. Court of Appeals, 20 we further expounded
on the immunity of foreign states from the jurisdiction of local
courts, as follows:
The precept that a State cannot be sued in the courts of a foreign
state is a long-standing rule of customary international law then
closely identified with the personal immunity of a foreign sovereign
from suit and, with the emergence of democratic states, made to
attach not just to the person of the head of state, or his
representative, but also distinctly to the state itself in its sovereign
capacity. If the acts giving rise to a suit arc those of a foreign
government done by its foreign agent, although not necessarily a
diplomatic personage, but acting in his official capacity, the
complaint could be barred by the immunity of the foreign sovereign
from suit without its consent. Suing a representative of a state is
believed to be, in effect, suing the state itself. The proscription is
not accorded for the benefit of an individual but for the State, in
whose service he is, under the maxim -par in parem, non habet
imperium -that all states are soverr~ign equals and cannot assert
jurisdiction over one another. The implication, in broad terms, is
that if the judgment against an official would rec 1uire the state
itself to perform an affirmative act to satisfy the award, such as the
appropriation of the amount needed to pay the damages decreed
against him, the suit must be regarded as being against the state
itself, although it has not been formally impleaded. 21 (Emphasis
supplied.)
In the same case we also mentioned that in the case of diplomatic
immunity, the privilege is not an immunity from the observance of
the law of the territorial sovereign or from ensuing legal liability; it
is, rather, an immunity from the exercise of territorial jurisdiction. 22
In United States of America v. Judge Guinto, 23 one of the
consolidated cases therein involved a Filipino employed at Clark Air
Base who was arrested following a buy-bust operation conducted
by two officers of the US Air Force, and was eventually dismissed
from his employment when he was charged in court for violation of
R.A. No. 6425. In a complaint for damages filed by the said
employee against the military officers, the latter moved to dismiss
the case on the ground that the suit was against the US
Government which had not given its consent. The RTC denied the
motion but on a petition for certiorari and prohibition filed before
this Court, we reversed the RTC and dismissed the complaint. We
held that petitioners US military officers were acting in the exercise
of their official functions when they conducted the buy-bust
operation against the complainant and thereafter testified against
him at his trial. It follows that for discharging their duties as agents
of the United States, they cannot be directly impleaded for acts
imputable to their principal, which has not given its consent to be
sued.
This traditional rule of State immunity which exempts a State from
being sued in the courts of another State without the former's
consent or waiver has evolved into a restrictive doctrine which
distinguishes sovereign and governmental acts (Jure imperil") from
private, commercial and proprietary acts (Jure gestionis). Under the
restrictive rule of State immunity, State immunity extends only to
acts Jure imperii. The restrictive application of State immunity is
proper only when the proceedings arise out of commercial
transactions of the foreign sovereign, its commercial activities or
economic affairs.24
In Shauf v. Court of Appeals, 25 we discussed the limitations of the
State immunity principle, thus:
It is a different matter where the public official is made to account
in his capacity as such for acts contrary to law and injurious to the
rights of plaintiff. As was clearly set forth by JustiGe Zaldivar in
Director of the Bureau of Telecommunications, et al. vs. Aligaen,
etc., et al. : "Inasmuch as the State authorizes only legal acts by its
officers, unauthorized acts of government officials or officers are
not acts of the State, and an action against the officials or officers
by one whose rights have been invaded or violated by such acts,
for the protection of his rights, is not a suit against the State within
the rule of immunity of the State from suit. In the same tenor, it has
been said that an action at law or suit in equity against a State
officer or the director of a State department on the ground that,
while claiming to act for the State, he violates or invades the
personal and property rights of the plaintiff, under an
unconstitutional act or under an assumption of authority which he
does not have, is not a suit against the State within the
constitutional provision that the State may not be sued without its
consent." The rationale for this ruling is that the doctrine of state
immunity cannot be used as an instrument for perpetrating an
injustice.
xxxx
The aforecited authorities are clear on the matter. They state that
the doctrine of immunity from suit will not apply and may not be
invoked where the public official is being sued in his private and
personal capacity as an ordinary citizen. The cloak of protection
afforded the officers and agents of the government is removed the
moment they are sued in their individual capacity. This situation
usually arises where the public official acts without authority or in
excess of the powers vested in him. It is a well-settled principle of
law that a public official may be liable in his personal private
capacity for whatever damage he may have caused by his act done
with malice and in bad faith, or beyond the scope of his authority or
jurisdiction.26 (Emphasis supplied.) In this case, the US respondents
were sued in their official capacity as commanding officers of the
US Navy who had control and supervision over the USS Guardian
and its crew. The alleged act or omission resulting in the
unfortunate grounding of the USS Guardian on the TRNP was
committed while they we:re performing official military duties.
Considering that the satisfaction of a judgment against said officials
will require remedial actions and appropriation of funds by the US
government, the suit is deemed to be one against the US itself. The
principle of State immunity therefore bars the exercise of
jurisdiction by this Court over the persons of respondents Swift,
Rice and Robling.
During the deliberations, Senior Associate Justice Antonio T. Carpio
took the position that the conduct of the US in this case, when its
warship entered a restricted area in violation of R.A. No. 10067 and
caused damage to the TRNP reef system, brings the matter within
the ambit of Article 31 of the United Nations Convention on the Law
of the Sea (UNCLOS). He explained that while historically, warships
enjoy sovereign immunity from suit as extensions of their flag
State, Art. 31 of the UNCLOS creates an exception to this rule in
cases where they fail to comply with the rules and regulations of
the coastal State regarding passage through the latter's internal
waters and the territorial sea.
According to Justice Carpio, although the US to date has not ratified
the UNCLOS, as a matter of long-standing policy the US considers
itself bound by customary international rules on the "traditional
uses of the oceans" as codified in UNCLOS, as can be gleaned from
previous declarations by former Presidents Reagan and Clinton, and
the US judiciary in the case of United States v. Royal Caribbean
Cruise Lines, Ltd.27
The international law of the sea is generally defined as "a body of
treaty rules arid customary norms governing the uses of the sea,
the exploitation of its resources, and the exercise of jurisdiction
over maritime regimes. It is a branch of public international law,
regulating the relations of states with respect to the uses of the
oceans."28 The UNCLOS is a multilateral treaty which was opened
for signature on December 10, 1982 at Montego Bay, Jamaica. It
was ratified by the Philippines in 1984 but came into force on
November 16, 1994 upon the submission of the 60th ratification.
The UNCLOS is a product of international negotiation that seeks to
balance State sovereignty (mare clausum) and the principle of
freedom of the high seas (mare liberum). 29 The freedom to use the
world's marine waters is one of the oldest customary principles of
international law.30 The UNCLOS gives to the coastal State
sovereign rights in varying degrees over the different zones of the
sea which are: 1) internal waters, 2) territorial sea, 3) contiguous
zone, 4) exclusive economic zone, and 5) the high seas. It also
gives coastal States more or less jurisdiction over foreign vessels
depending on where the vessel is located.31
Insofar as the internal waters and territorial sea is concerned, the
Coastal State exercises sovereignty, subject to the UNCLOS and
other rules of international law. Such sovereignty extends to the air
space over the territorial sea as well as to its bed and subsoil. 32
In the case of warships,33 as pointed out by Justice Carpio, they
continue to enjoy sovereign immunity subject to the following
exceptions:
Article
Non-compliance by warships with the laws and regulations of the
coastal State
If any warship does not comply with the laws and regulations of the
coastal State concerning passage through the territorial sea and
disregards any request for compliance therewith which is made to
it, the coastal State may require it to leave the territorial sea
immediately.
Article
Responsibility of the flag State for damage caused by a warship
or other government ship operated for non-commercial purposes
The flag State shall bear international responsibility for any loss or
damage to the coastal State resulting from the non-compliance by
a warship or other government ship operated for non-commercial
purposes with the laws and regulations of the coastal State
concerning passage through the territorial sea or with the
provisions of this Convention or other rules of international law.
Article
Immunities of warships and other government ships operated for
non-commercial purposes
With such exceptions as are contained in subsection A and in
articles 30 and 31, nothing in this Convention affects the
immunities of warships and other government ships operated for
non-commercial purposes. (Emphasis supplied.) A foreign warship's
unauthorized entry into our internal waters with resulting damage
to marine resources is one situation in which the above provisions
may apply. But what if the offending warship is a non-party to the
UNCLOS, as in this case, the US?
An overwhelming majority - over 80% -- of nation states are now
members of UNCLOS, but despite this the US, the world's leading
maritime power, has not ratified it.
While the Reagan administration was instrumental in UNCLOS'
negotiation and drafting, the U.S. delegation ultimately voted
against and refrained from signing it due to concerns over deep
seabed mining technology transfer provisions contained in Part XI.
In a remarkable, multilateral effort to induce U.S. membership, the
bulk of UNCLOS member states cooperated over the succeeding
decade to revise the objection.able provisions. The revisions
satisfied the Clinton administration, which signed the revised Part
XI implementing agreement in 1994. In the fall of 1994, President
Clinton transmitted UNCLOS and the Part XI implementing
30 agreement to the Senate requesting its advice and consent.
Despite consistent support from President Clinton, each of his
successors, and an ideologically diverse array of stakeholders, the
Senate has since withheld the consent required for the President to
internationally bind the United States to UNCLOS.
While UNCLOS cleared the Senate Foreign Relations Committee
(SFRC) during the 108th and 110th Congresses, its progress
continues to be hamstrung by significant pockets of political
31 ambivalence over U.S. participation in international institutions.
Most recently, 111 th Congress SFRC Chairman Senator John Kerry
included "voting out" UNCLOS for full Senate consideration among
his highest priorities. This did not occur, and no Senate action has
been taken on UNCLOS by the 112th Congress.34
Justice Carpio invited our attention to the policy statement given by
President Reagan on March 10, 1983 that the US will "recognize the
rights of the other , states in the waters off their coasts, as
reflected in the convention [UNCLOS], so long as the rights and
32
freedom of the United States and others under international law are
recognized by such coastal states", and President Clinton's
reiteration of the US policy "to act in a manner consistent with its
[UNCLOS] provisions relating to traditional uses of the oceans and
to encourage other countries to do likewise." Since Article 31
relates to the "traditional uses of the oceans," and "if under its
policy, the US 'recognize[s] the rights of the other states in the
waters off their coasts,"' Justice Carpio postulates that "there is
more reason to expect it to recognize the rights of other states in
their internal waters, such as the Sulu Sea in this case."
As to the non-ratification by the US, Justice Carpio emphasizes that
"the US' refusal to join the UN CLOS was centered on its
disagreement with UN CLOS' regime of deep seabed mining (Part
XI) which considers the oceans and deep seabed commonly owned
by mankind," pointing out that such "has nothing to do with its [the
US'] acceptance of customary international rules on navigation."
It may be mentioned that even the US Navy Judge Advocate
General's Corps publicly endorses the ratification of the UNCLOS, as
shown by the following statement posted on its official website:
The Convention is in the national interest of the United States
because it establishes stable maritime zones, including a maximum
outer limit for territorial seas; codifies innocent passage, transit
passage, and archipelagic sea lanes passage rights; works against
"jurisdictiomtl creep" by preventing coastal nations from expanding
their own maritime zones; and reaffirms sovereign immunity of
warships, auxiliaries anJ government aircraft.
xxxx
Economically, accession to the Convention would support our
national interests by enhancing the ability of the US to assert its
sovereign rights over the resources of one of the largest continental
shelves in the world. Further, it is the Law of the Sea Convention
that first established the concept of a maritime Exclusive Economic
Zone out to 200 nautical miles, and recognized the rights of coastal
states to conserve and manage the natural resources in this Zone.35
We fully concur with Justice Carpio's view that non-membership in
the UNCLOS does not mean that the US will disregard the rights of
the Philippines as a Coastal State over its internal waters and
territorial sea. We thus expect the US to bear "international
responsibility" under Art. 31 in connection with the USS Guardian
grounding which adversely affected the Tubbataha reefs. Indeed, it
is difficult to imagine that our long-time ally and trading partner,
which has been actively supporting the country's efforts to
preserve our vital marine resources, would shirk from its obligation
to compensate the damage caused by its warship while transiting
our internal waters. Much less can we comprehend a Government
exercising leadership in international affairs, unwilling to comply
with the UNCLOS directive for all nations to cooperate in the global
task to protect and preserve the marine environment as provided in
Article 197, viz:
Article 197
Cooperation on a global or regional basis
States shall cooperate on a global basis and, as appropriate, on a
regional basis, directly or through competent international
organizations, in formulating and elaborating international rules,
standards and recommended practices and procedures consistent
with this Convention, for the protection and preservation of the
marine environment, taking into account characteristic regional
features.
In fine, the relevance of UNCLOS provisions to the present
controversy is beyond dispute. Although the said treaty upholds the
immunity of warships from the jurisdiction of Coastal States while
navigating the.latter's territorial sea, the flag States shall be
required to leave the territorial '::;ea immediately if they flout the
laws and regulations of the Coastal State, and they will be liable for
damages caused by their warships or any other government vessel
operated for non-commercial purposes under Article 31.
Petitioners argue that there is a waiver of immunity from suit found
in the VFA. Likewise, they invoke federal statutes in the US under
which agencies of the US have statutorily waived their immunity to
any action. Even under the common law tort claims, petitioners
asseverate that the US respondents are liable for negligence,
trespass and nuisance.
We are not persuaded.
The VFA is an agreement which defines the treatment of United
States troops and personnel visiting the Philippines to promote
"common security interests" between the US and the Philippines in
the region. It provides for the guidelines to govern such visits of
military personnel, and further defines the rights of the United
States and the Philippine government in the matter of criminal
jurisdiction, movement of vessel and aircraft, importation and
exportation of equipment, materials and supplies.36 The invocation
of US federal tort laws and even common law is thus improper
considering that it is the VF A which governs disputes involving US
military ships and crew navigating Philippine waters in pursuance of
the objectives of the agreement.
As it is, the waiver of State immunity under the VF A pertains only
to criminal jurisdiction and not to special civil actions such as the
present petition for issuance of a writ of Kalikasan. In fact, it can be
inferred from Section 17, Rule 7 of the Rules that a criminal case
against a person charged with a violation of an environmental law
is to be filed separately:
SEC. 17. Institution of separate actions.-The filing of a petition for
the issuance of the writ of kalikasan shall not preclude the filing of
separate civil, criminal or administrative actions.
In any case, it is our considered view that a ruling on the
application or non-application of criminal jurisdiction provisions of
the VF A to US personnel who may be found responsible for the
grounding of the USS Guardian, would be premature and beyond
the province of a petition for a writ of Kalikasan. We also find it
unnecessary at this point to determine whether such waiver of
State immunity is indeed absolute. In the same vein, we cannot
grant damages which have resulted from the violation of
environmental laws. The Rules allows the recovery of damages,
including the collection of administrative fines under R.A. No.
10067, in a separate civil suit or that deemed instituted with the
criminal action charging the same violation of an environmental
law.37
Section 15, Rule 7 enumerates the reliefs which may be granted in
a petition for issuance of a writ of Kalikasan, to wit:
SEC. 15. Judgment.-Within sixty (60) days from the time the petition
is submitted for decision, the court shall render judgment granting
or denying the privilege of the writ of kalikasan.
The reliefs that may be granted under the writ are the following:
(a) Directing respondent to permanently cease and desist from
committing acts or neglecting the performance of a duty in
violation of environmental laws resulting in environmental
destruction or damage;
(b) Directing the respondent public official, govemment agency,
private person or entity to protect, preserve, rehabilitate or restore
the environment;
(c) Directing the respondent public official, government agency,
private person or entity to monitor strict compliance with the
decision and orders of the court;
(d) Directing the respondent public official, government agency, or
private person or entity to make periodic reports on the execution
of the final judgment; and
(e) Such other reliefs which relate to the right of the people to a
balanced and healthful ecology or to the protection, preservation,
rehabilitation or restoration of the environment, except the award
of damages to individual petitioners. (Emphasis supplied.)
We agree with respondents (Philippine officials) in asserting that
this petition has become moot in the sense that the salvage
operation sought to be enjoined or restrained had already been
accomplished when petitioners sought recourse from this Court.
But insofar as the directives to Philippine respondents to protect
and rehabilitate the coral reef stn icture and marine habitat
adversely affected by the grounding incident are concerned,
petitioners are entitled to these reliefs notwithstanding the
completion of the removal of the USS Guardian from the coral reef.
However, we are mindful of the fact that the US and Philippine
governments both expressed readiness to negotiate and discuss
the matter of compensation for the damage caused by the USS
Guardian. The US Embassy has also declared it is closely
coordinating with local scientists and experts in assessing the
extent of the damage and appropriate methods of rehabilitation.
Exploring avenues for settlement of environmental cases is not
proscribed by the Rules. As can be gleaned from the following
provisions, mediation and settlement are available for the
consideration of the parties, and which dispute resolution methods
are encouraged by the court, to wit:
RULE3
xxxx
SEC. 3. Referral to mediation.-At the start of the pre-trial
conference, the court shall inquire from the parties if they have
settled the dispute; otherwise, the court shall immediately refer the
parties or their counsel, if authorized by their clients, to the
Philippine Mediation Center (PMC) unit for purposes of mediation. If
not available, the court shall refer the case to the clerk of court or
legal researcher for mediation.
Mediation must be conducted within a non-extendible period of
thirty (30) days from receipt of notice of referral to mediation.
The mediation report must be submitted within ten (10) days from
the expiration of the 30-day period.
SEC. 4. Preliminary conference.-If mediation fails, the court will
schedule the continuance of the pre-trial. Before the scheduled
date of continuance, the court may refer the case to the branch
clerk of court for a preliminary conference for the following
purposes:
(a) To assist the parties in reaching a settlement;
xxxx
SEC. 5. Pre-trial conference; consent decree.-The judge shall put the
parties and their counsels under oath, and they shall remain under
oath in all pre-trial conferences.
The judge shall exert best efforts to persuade the parties to arrive
at a settlement of the dispute. The judge may issue a consent
decree approving the agreement between the parties in
accordance with law, morals, public order and public policy to
protect the right of the people to a balanced and healthful ecology.
xxxx
SEC. 10. Efforts to settle.- The court shall endeavor to make the
parties to agree to compromise or settle in accordance with law at
any stage of the proceedings before rendition of judgment.
(Underscoring supplied.)
The Court takes judicial notice of a similar incident in 2009 when a
guided-missile cruiser, the USS Port Royal, ran aground about half a
mile off the Honolulu Airport Reef Runway and remained stuck for
four days. After spending $6.5 million restoring the coral reef, the
US government was reported to have paid the State of Hawaii $8.5
million in settlement over coral reef damage caused by the
grounding.38
To underscore that the US government is prepared to pay
appropriate compensation for the damage caused by the USS
Guardian grounding, the US Embassy in the Philippines has
announced the formation of a US interdisciplinary scientific team
which will "initiate discussions with the Government of the
Philippines to review coral reef rehabilitation options in Tubbataha,
based on assessments by Philippine-based marine scientists." The
US team intends to "help assess damage and remediation options,
in coordination with the Tubbataha Management Office, appropriate
Philippine government entities, non-governmental organizations,
and scientific experts from Philippine universities."39
A rehabilitation or restoration program to be implemented at the
cost of the violator is also a major relief that may be obtained
under a judgment rendered in a citizens' suit under the Rules, viz:
RULES
SECTION 1. Reliefs in a citizen suit.-If warranted, the court may
grant to the plaintiff proper reliefs which shall include the
protection, preservation or rehabilitation of the environment and
the payment of attorney's fees, costs of suit and other litigation
expenses. It may also require the violator to submit a program of
rehabilitation or restoration of the environment, the costs of which
shall be borne by the violator, or to contribute to a special trust
fund for that purpose subject to the control of the court.1wphi1
In the light of the foregoing, the Court defers to the Executive
Branch on the matter of compensation and rehabilitation measures
through diplomatic channels. Resolution of these issues impinges
on our relations with another State in the context of common
security interests under the VFA. It is settled that "[t]he conduct of
the foreign relations of our government is committed by the
Constitution to the executive and legislative-"the political"
--departments of the government, and the propriety of what may
be done in the exercise of this political power is not subject to
judicial inquiry or decision."40
On the other hand, we cannot grant the additional reliefs prayed for
in the petition to order a review of the VFA and to nullify certain
immunity provisions thereof.
As held in BAYAN (Bagong Alyansang Makabayan) v. Exec. Sec.
Zamora,41 the VFA was duly concurred in by the Philippine Senate
and has been recognized as a treaty by the United States as
attested and certified by the duly authorized representative of the
United States government. The VF A being a valid and binding
agreement, the parties are required as a matter of international law
to abide by its terms and provisions.42 The present petition under
the Rules is not the proper remedy to assail the constitutionality of
its provisions. WHEREFORE, the petition for the issuance of the
privilege of the Writ of Kalikasan is hereby DENIED.
No pronouncement as to costs.
SO ORDERED.
RESIDENT MARINE MAMMALS V REYES
Before Us are two consolidated Petitions filed under Rule 65 of the
1997 Rules of Court, concerning Service Contract No. 46 (SC-
46), which allowed the exploration, development, and exploitation
of petroleum resources within Taon Strait, a narrow passage of
water situated between the islands of Negros and Cebu. 2
The Petition docketed as G.R. No. 180771 is an original Petition
for Certiorari, Mandamus, and Injunction, which seeks to enjoin
respondents from implementing SC-46 and to have it nullified for
willful and gross violation of the 1987 Constitution and certain
international and municipal laws.3
Likewise, the Petition docketed as G.R. No. 181527 is an original
Petition for Certiorari, Prohibition, and Mandamus, which seeks to
nullify the Environmental Compliance Certificate (ECC) issued by
the Environmental Management Bureau (EMB) of the Department of
Environment and Natural Resources (DENR), Region VII in
connection with SC-46; to prohibit respondents from implementing
SC-46; and to compel public respondents to provide petitioners
access to the pertinent documents involving the Taon Strait Oil
Exploration Project.4
ANTECEDENT FACTS AND PROCEEDINGS
Petitioners in G.R. No. 180771, collectively referred to as the
"Resident Marine Mammals" in the petition, are the toothed whales,
dolphins, porpoises, and other cetacean species, which inhabit the
waters in and around the Taon Strait. They are joined by Gloria
Estenzo Ramos (Ramos) and Rose-Liza Eisma-Osorio (Eisma-Osorio)
as their legal guardians and as friends (to be collectively known as
"the Stewards") who allegedly empathize with, and seek the
protection of, the aforementioned marine species. Also impleaded
as an unwilling co-petitioner is former President Gloria Macapagal-
Arroyo, for her express declaration and undertaking in the ASEAN
Charter to protect the Taon Strait, among others. 5
Petitioners in G.R. No. 181527 are the Central Visayas Fisherfolk
Development Center (FIDEC), a non-stock, non-profit, non-
governmental organization, established for the welfare of the
marginal fisherfolk in Region VII; and Cerilo D. Engarcial (Engarcial),
Ramon Yanong (Yanong) and Francisco Labid (Labid), in their
personal capacities and as representatives of the subsistence
fisherfolk of the municipalities of Aloguinsan and Pinamungajan,
Cebu.
Named as respondents in both petitions are the late Angelo T.
Reyes, as then Secretary of the Department of Energy (DOE); Jose
L. Atienza, as then Secretary of the DENR; Leonardo R. Sibbaluca,
as then DENR-Regional Director for Region VII and Chairman of the
Taon Strait Protected Seascape Management Board; Japan
Petroleum Exploration Co., Ltd. (JAPEX), a company organized and
existing under the laws of Japan with a Philippine branch office; and
Supply Oilfield Services, Inc. (SOS), as the alleged Philippine agent
of JAPEX.
In G.R. No. 181527, the following were impleaded as additional
public respondents: Alan C. Arranguez (Arranguez) and Antonio
Labios (Labios), in their capacities as then Director of the EMB,
Region VII and then Regional Director of the DOE, Region VII,
respectively.6
On June 13, 2002, the Government of the Philippines, acting
through the DOE, entered into a Geophysical Survey and
Exploration Contract-102 (GSEC-102) with JAPEX. This contract
involved geological and geophysical studies of the Taon Strait. The
studies included surface geology, sample analysis, and
reprocessing of seismic and magnetic data. JAPEX, assisted by DOE,
also conducted geophysical and satellite surveys, as well as oil and
gas sampling in Taon Strait.7
On December 21, 2004, DOE and JAPEX formally converted GSEC-
102 into SC-46 for the exploration, development, and production of
petroleum resources in a block covering approximately 2,850
square kilometers offshore the Taon Strait. 8
From May 9 to 18, 2005, JAPEX conducted seismic surveys in and
around the Taon Strait. A multi-channel sub-bottom profiling
covering approximately 751 kilometers was also done to determine
the area's underwater composition.9
JAPEX committed to drill one exploration well during the second
sub-phase of the project. Since the well was to be drilled in the
marine waters of Aloguinsan and Pinamungajan, where the Taon
Strait was declared a protected seascape in 1988, 10 JAPEX agreed
to comply with the Environmental Impact Assessment requirements
pursuant to Presidential Decree No. 1586, entitled "Establishing An
Environmental Impact Statement System, Including Other
Environmental Management Related Measures And For Other
Purposes."11
On January 31, 2007, the Protected Area Management Board 12 of
the Taon Strait (PAMB-Taon Strait) issued Resolution No. 2007-
001,13 wherein it adopted the Initial Environmental Examination
(IEE) commissioned by JAPEX, and favorably recommended the
approval of JAPEX's application for an ECC.
On March 6, 2007, the EMB of DENR Region VII granted an ECC to
the DOE and JAPEX for the offshore oil and gas exploration project
in Taon Strait.14 Months later, on November 16, 2007, JAPEX began
to drill an exploratory well, with a depth of 3,150 meters, near
Pinamungajan town in the western Cebu Province. 15 This drilling
lasted until February 8, 2008.16
It was in view of the foregoing state of affairs that petitioners
applied to this Court for redress, via two separate original petitions
both dated December 17, 2007, wherein they commonly seek that
respondents be enjoined from implementing SC-46 for, among
others, violation of the 1987 Constitution.
On March 31, 2008, SOS filed a Motion to Strike 17 its name as a
respondent on the ground that it is not the Philippine agent of
JAPEX. In support of its motion, it submitted the branch office
application of JAPEX,18 wherein the latter's resident agent was
clearly identified. SOS claimed that it had acted as a mere logistics
contractor for JAPEX in its oil and gas exploration activities in the
Philippines.
Petitioners Resident Marine Mammals and Stewards opposed SOS's
motion on the ground that it was premature, it was pro-forma, and
it was patently dilatory. They claimed that SOS admitted that "it is
in law a (sic) privy to JAPEX" since it did the drilling and other
exploration activities in Taon Strait under the instructions of its
principal, JAPEX. They argued that it would be premature to drop
SOS as a party as JAPEX had not yet been joined in the case; and Oilfield
Salcedo Village, Makati City
that it was "convenient" for SOS to ask the Court to simply drop its Services, Inc.
name from the parties when what it should have done was to either
notify or ask JAPEX to join it in its motion to enable proper JAPEX
substitution. At this juncture, petitioners Resident Marine Mammals Philippines 20th Floor Pearlbank Centre
and Stewards also asked the Court to implead JAPEX Philippines as Ltd.
a corespondent or as a substitute for its parent company, JAPEX. 19 146 Valero Street
Salcedo Village, Makati City
On April 8, 2008, the Court resolved to consolidate G.R. No. 180771
and G.R. No. 181527. JAPEX
Philippines 19th Floor Pearlbank Centre
On May 26, 2008, the FIDEC manifested20 that they were Ltd.
adopting in toto the Opposition to Strike with Motion to Implead c/o Atty.
filed by petitioners Resident Marine Mammals and Stewards in G.R. Maria Farah146 Valero Street
No. 180771. Z.G.
Nicolas-
Salcedo Village, Makati City
On June 19, 2008, public respondents filed their Manifestation 21 that Suchianco
they were not objecting to SOS's Motion to Strike as it was not
JAPEX's resident agent. JAPEX during all this time, did not file any Atty. Maria
Suite 2404 Discovery Centre
comment at all. Farah Z.G.
Nicolas-
25 ADB Avenue
Thus, on February 7, 2012, this Court, in an effort to ensure that all Suchianco
the parties were given ample chance and opportunity to answer the Resident
issues herein, issued a Resolution directing the Court's process Agent ofOrtigas Center, Pasig City
servicing unit to again serve the parties with a copy of the JAPEX
September 23, 2008 Resolution of the Court, which gave due Philippines
course to the petitions in G.R. Nos. 180771 and 181527, and which Ltd.
required the parties to submit their respective memoranda. The This Resolution was personally served to the above parties, at the
February 7, 2012 Resolution 22 reads as above addresses on February 23, 2012. On March 20, 2012, JAPEX
follows:chanroblesvirtuallawlibrary Philippines, Ltd. (JAPEX PH), by way of special appearance, filed a
Motion to Admit23 its Motion for Clarification,24 wherein JAPEX PH
G.R. No. 180771 (Resident Marine Mammals of the Protected requested to be clarified as to whether or not it should deem the
Seascape Taon Strait, e.g., Toothed Whales, Dolphins, Porpoises February 7, 2012 Resolution as this Court's Order of its inclusion in
and Other Cetacean Species, et al. vs. Hon. Angelo Reyes, in his the case, as it has not been impleaded. It also alleged that JAPEX
capacity as Secretary of the Department of Energy, et al.) and G.R. PH had already stopped exploration activities in the Taon Strait
No. 181527 (Central Visayas Fisherfolk Development Center, et al. way back in 2008, rendering this case moot.
vs. Hon. Angelo Reyes, et al.). - The Court Resolved to direct the
Process Servicing Unit to RE-SEND the resolution dated September On March 22, 2012, JAPEX PH, also by special appearance, filed a
23, 2008 to the following parties and counsel, together with this Motion for Extension of Time25 to file its Memorandum. It stated
resolution:chanroblesvirtuallawlibrary that since it received the February 7, 2012 Resolution on February
Atty. 23, 2012, it had until March 22, 2012 to file its Memorandum. JAPEX
Aristeo O.20th Floor Pearlbank Centre PH then asked for an additional thirty days, supposedly to give this
Cario Court some time to consider its Motion for Clarification.
Counsel for
Respondent 146 Valero Street On April 24, 2012, this Court issued a Resolution 26 granting JAPEX
Supply PH's Motion to Admit its Motion for Clarification. This Court,
addressing JAPEX PH's Motion for Clarification,
held:chanroblesvirtuallawlibrary
With regard to its Motion for Clarification (By Special Appearance)
dated March 19, 2012, this Court considers JAPEX Philippines. Ltd.
as a real party-in-interest in these cases. Under Section 2, Rule 3 of
the 1997 Rules of Court, a real party-in-interest is the party who
stands to be benefited or injured by the judgment in the suit, or the
party entitled to the avails of the suit. Contrary to JAPEX
Philippines, Ltd.'s allegation that it is a completely distinct
corporation, which should not be confused with JAPEX Company,
Ltd., JAPEX Philippines, Ltd. is a mere branch office, established by
JAPEX Company, Ltd. for the purpose of carrying out the latter's
business transactions here in the Philippines. Thus, JAPEX
Philippines, Ltd., has no separate personality from its mother
foreign corporation, the party impleaded in this case.
Moreover, Section 128 of the Corporation Code provides for the
responsibilities and duties of a resident agent of a foreign
corporation:chanroblesvirtuallawlibrary
SECTION 128. Resident agent; service of process. The Securities
and Exchange Commission shall require as a condition precedent to
the issuance of the license to transact business in the Philippines
by any foreign corporation that such corporation file with the
Securities and Exchange Commission a written power of attorney
designating some person who must be a resident of the Philippines,
on whom any summons and other legal processes may be served in
all actions or other legal proceedings against such corporation, and
consenting that service upon such resident agent shall be admitted
and held as valid as if served upon the duly authorized officers of
the foreign corporation at its home office. Any such foreign
corporation shall likewise execute and file with the Securities and
Exchange Commission an agreement or stipulation, executed by
the proper authorities of said corporation, in form and substance as
follows:
"The (name of foreign corporation) does hereby stipulate and
agree, in consideration of its being granted by the Securities and
Exchange Commission a license to transact business in the
Philippines, that if at any time said corporation shall cease to
transact business in the Philippines, or shall be without any resident
agent in the Philippines on whom any summons or other legal
processes may be served, then in any action or proceeding arising
out of any business or transaction which occurred in the Philippines,
service of any summons or other legal process may be made upon
the Securities and Exchange Commission and that such service
shall have the same force and effect as if made upon the duly-
authorized officers of the corporation at its home office."
Whenever such service of summons or other process shall be made
upon the Securities and Exchange Commission, the Commission
shall, within ten (10) days thereafter, transmit by mail a copy of
such summons or other legal process to the corporation at its home
or principal office. The sending of such copy by the Commission
shall be a necessary part of and shall complete such service. All
expenses incurred by the Commission for such service shall be paid
in advance by the party at whose instance the service is made.
In case of a change of address of the resident agent, it shall be his
or its duty to immediately notify in writing the Securities and
Exchange Commission of the new address.
It is clear from the foregoing provision that the function of a
resident agent is to receive summons or legal processes that may
be served in all actions or other legal proceedings against the
foreign corporation. These cases have been prosecuted in the
name of JAPEX Company, Ltd., and JAPEX Philippines Ltd., as its
branch office and resident agent, had been receiving the various
resolutions from this Court, as evidenced by Registry Return Cards
signed by its representatives.
And in the interest of justice, this Court resolved to grant JAPEX
PH's motion for extension of time to file its memorandum, and was
given until April 21, 2012, as prayed for, within which to comply
with the submission.27
Without filing its Memorandum, JAPEX PH, on May 14, 2012, filed a
motion, asking this Court for an additional thirty days to file its
Memorandum, to be counted from May 8, 2012. It justified its
request by claiming that this Court's April 24, 2012 Resolution was
issued past its requested deadline for filing, which was on April 21,
2012.28
On June 19, 2012, this Court denied JAPEX PH's second request for
additional time to file its Memorandum and dispensed with such
filing.
Since petitioners had already filed their respective
memoranda,29 and public respondents had earlier filed a
Manifestation30 that they were adopting their Comment dated
March 31, 2008 as their memorandum, this Court submitted the
case for decision.chanRoblesvirtualLawlibrary
Petitioners' Allegations
Protesting the adverse ecological impact of JAPEX's oil exploration
activities in the Taon Strait, petitioners Resident Marine Mammals
and Stewards aver that a study made after the seismic survey
showed that the fish catch was reduced drastically by 50 to 70
percent. They claim that before the seismic survey, the average
harvest per day would be from 15 to 20 kilos; but after the activity,
the fisherfolk could only catch an average of 1 to 2 kilos a day.
They attribute this "reduced fish catch" to the destruction of the
"payao" also known as the "fish aggregating device" or "artificial
reef."31Petitioners Resident Marine Mammals and Stewards also
impute the incidences of "fish kill"32observed by some of the local
fisherfolk to the seismic survey. And they further allege that the
ECC obtained by private respondent JAPEX is invalid because public I.
consultations and discussions with the affected stakeholders, a pre-
requisite to the issuance of the ECC, were not held prior to the II.
ECC's issuance.
In its separate petition, petitioner FIDEC confirms petitioners III.
Resident Marine Mammals and Stewards' allegations of reduced fish
catch and lack of public consultations or discussions with the
fisherfolk and other stakeholders prior to the issuance of the ECC.
Moreover, it alleges that during the seismic surveys and drilling, it
was barred from entering and fishing within a 7-kilometer radius
from the point where the oilrig was located, an area greater than IV.
the 1.5-kilometer radius "exclusion zone" stated in the IEE. 33 It also
agrees in the allegation that public respondents DENR and EMB
abused their discretion when they issued an ECC to public
respondent DOE and private respondent JAPEX without ensuring the
strict compliance with the procedural and substantive requirements
under the Environmental Impact Assessment system, the Fisheries
Code, and their implementing rules and regulations. 34 It further I.
claims that despite several requests for copies of all the documents
pertaining to the project in Taflon Strait, only copies of the PAMB-
Taon Strait Resolution and the ECC were given to the fisherfolk. 35
II.
Public Respondents' Counter-Allegations
Public respondents, through the Solicitor General, contend that
petitioners Resident Marine Mammals and Stewards have no legal III.
standing to file the present petition; that SC-46 does not violate the
1987 Constitution and the various laws cited in the petitions; that
the ECC was issued in accordance with existing laws and
regulations; that public respondents may not be compelled
by mandamus to furnish petitioners copies of all documents
relating to SC-46; and that all the petitioners failed to show that
they are entitled to injunctive relief. They further contend that the
issues raised in these petitions have been rendered moot and
academic by the fact that SC-46 had been mutually terminated by
the parties thereto effective June 21, 2008.36
ISSUES
The following are the issues posited by petitioners Resident Marine
Mammals and Stewards in G.R. No.
180771:chanroblesvirtuallawlibrary
WHETHER OR NOT PETITIONERS HAVE LOCUS STANDI TO
FILE THE INSTANT PETITION;
WHETHER OR NOT SERVICE CONTRACT NO. 46 IS
VIOLAT[IVE] OF THE 1987 PHILIPPINE CONSTITUTION AND
STATUTES;
WHETHER OR NOT THE ON-GOING EXPLORATION AND
PROPOSED EXPLOITATION FOR OIL AND NATURAL GAS AT, AROUND,
AND UNDERNEATH THE MARINE WATERS OF THE TANON STRAIT
PROTECTED SEASCAPE IS INCONSISTENT WITH THE PHILIPPINE
COMMITMENTS TO INTERNATIONAL ENVIRONMENTAL LAWS AND
INSTRUMENTS; AND
WHETHER OR NOT THE ISSUANCE OF THE ENVIRONMENTAL
COMPLIANCE CERTIFICATE (ECC) IN ENVIRONMENTALLY CRITICAL
AREAS AND HABITATS OF MARINE WILDLIFE AND ENDANGERED
SPECIES IS LEGAL AND PROPER.37
Meanwhile, in G.R. No. 181527, petitioner FIDEC presented the
following issues for our consideration:chanroblesvirtuallawlibrary
WHETHER OR NOT SERVICE CONTRACT NO. 46 EXECUTED
BETWEEN RESPONDENTS DOE AND JAPEX SHOULD BE NULLIFIED
AND SET ASIDE FOR BEING IN DIRECT VIOLATION OF SPECIFIC
PROVISIONS OF THE 1987 PHILIPPINE CONSTITUTION AND
APPLICABLE LAWS;
WHETHER OR NOT THE OFF-SHORE OIL EXPLORATION
CONTEMPLATED UNDER SERVICE CONTRACT NO. 46 IS LEGALLY
PERMISSIBLE WITHOUT A LAW BEING DULY PASSED EXPRESSLY FOR
THE PURPOSE;
WHETHER OR NOT THE OIL EXPLORATION BEING
CONDUCTED WITHIN THE TANON STRAIT PROTECTED SEASCAPE
VIOLATES THE RIGHTS AND LEGAL PROTECTION GRANTED TO
PETITIONERS UNDER THE CONSTITUTION AND APPLICABLE LAWS.
IV. WHETHER OR NOT THE ISSUANCE OF THE ENVIRONMENTAL
COMPLIANCE CERTIFICATE (ECC) FOR SUCH AN ENVIRONMENTALLY
CRITICAL PROJECT INSIDE AN ENVIRONMENTALLY CRITICAL AREA
SUCH AS THE TANON STRAIT PROTECTED SEASCAPE CONFORMED
TO LAW AND EXISTING RULES AND REGULATIONS ON THE MATTER.
V. WHETHER OR NOT THE RESPONDENTS MAY BE COMPELLED
BY MANDAMUS TO FURNISH PETITIONERS WITH COPIES OF THE
DOCUMENTS PERTAINING TO THE TANON STRAIT OIL EXPLORATION
PROJECT.38
In these consolidated petitions, this Court has determined that the
various issues raised by the petitioners may be condensed into two
primary issues:
I. Procedural Issue: Locus Standi of the Resident Marine
Mammals and Stewards, petitioners in G.R. No. 180771; and
II. Main Issue: Legality of Sendee Contract No. 46.
DISCUSSION
At the outset, this Court makes clear that the '"moot and academic
principle' is not a magical formula that can automatically dissuade
the courts in resolving a case." Courts have decided cases
otherwise moot and academic under the following exceptions:
1) There is a grave violation of the Constitution;
2) The exceptional character of the situation and the paramount
public interest is involved;
3) The constitutional issue raised requires formulation of controlling
principles to guide the bench, the bar, and the public; and
4) The case is capable of repetition yet evading review. 39
In this case, despite the termination of SC-46, this Court deems it
necessary to resolve these consolidated petitions as almost all of
the foregoing exceptions are present in this case. Both petitioners
allege that SC-46 is violative of the Constitution, the environmental
and livelihood issues raised undoubtedly affect the public's interest,
and the respondents' contested actions are capable of
repetition.chanRoblesvirtualLawlibrary
Procedural Issues
Locus Standi of Petitioners Resident Marine Mammals and
Stewards
The Resident Marine Mammals, through the Stewards, "claim" that
they have the legal standing to file this action since they stand to
be benefited or injured by the judgment in this suit. 40 Citing Oposa
v. Factoran, Jr.,41 they also assert their right to sue for the faithful
performance of international and municipal environmental laws
created in their favor and for their benefit. In this regard, they
propound that they have the right to demand that they be
accorded the benefits granted to them in multilateral international
instruments that the Philippine Government had signed, under the
concept of stipulation pour autrui.42
For their part, the Stewards contend that there should be no
question of their right to represent the Resident Marine Mammals
as they have stakes in the case as forerunners of a campaign to
build awareness among the affected residents of Taon Strait and
as stewards of the environment since the primary steward, the
Government, had failed in its duty to protect the environment
pursuant to the public trust doctrine. 43
Petitioners Resident Marine Mammals and Stewards also aver that
this Court may lower the benchmark in locus standi as an exercise
of epistolary jurisdiction.44
In opposition, public respondents argue that the Resident Marine
Mammals have no standing because Section 1, Rule 3 of the Rules
of Court requires parties to an action to be either natural or juridical
persons, viz.:chanroblesvirtuallawlibrary
Section 1. Who may be parties; plaintiff and defendant. - Only
natural or juridical persons, or entities authorized by law may be
parties in a civil action. The term "plaintiff may refer to the claiming
party, the counter-claimant, the cross-claimant, or the third (fourth,
etc.)-party plaintiff. The term "defendant" may refer to the original
defending party, the defendant in a counterclaim, the cross-
defendant, or the third (fourth, etc.)-party defendant.
The public respondents also contest the applicability of Oposa,
pointing out that the petitioners therein were all natural persons,
albeit some of them were still unborn.45
As regards the Stewards, the public respondents likewise challenge
their claim of legal standing on the ground that they are
representing animals, which cannot be parties to an action.
Moreover, the public respondents argue that the Stewards are not
the real parties-in-interest for their failure to show how they stand
to be benefited or injured by the decision in this case. 46

Invoking the alter ego principle in political law, the public
respondents claim that absent any proof that former President
Arroyo had disapproved of their acts in entering into and
implementing SC-46, such acts remain to be her own. 47
The public respondents contend that since petitioners Resident
Marine Mammals and Stewards' petition was not brought in the
name of a real party-in-interest, it should be dismissed for failure to
state a cause of action. 48
The issue of whether or not animals or even inanimate objects
should be given legal standing in actions before courts of law is not
new in the field of animal rights and environmental law. Petitioners
Resident Marine Mammals and Stewards cited the 1972 United
States case Sierra Club v. Rogers C.B. Morton,49 wherein Justice
William O. Douglas, dissenting to the conventional thought on legal
standing, opined:chanroblesvirtuallawlibrary
The critical question of "standing" would be simplified and also put
neatly in focus if we fashioned a federal rule that allowed
environmental issues to be litigated before federal agencies or
federal courts in the name of the inanimate object about to be
despoiled, defaced, or invaded by roads and bulldozers and where
injury is the subject of public outrage, x x x.
Inanimate objects are sometimes parties in litigation. A ship has a
legal personality, a fiction found useful for maritime purposes. The
corporation sole - a creature of ecclesiastical law - is an acceptable
adversary and large fortunes ride on its cases. The ordinary
corporation is a "person" for purposes of the adjudicatory
processes, whether it represents proprietary, spiritual, aesthetic, or
charitable causes.
So it should be as respects valleys, alpine meadows, rivers, lakes,
estuaries, beaches, ridges, groves of trees, swampland, or even air
that feels the destructive pressures of modern technology and
modem life. The river, for example, is the living symbol of all the
life it sustains or nourishesfish, aquatic insects, water ouzels,
otter, fisher, deer, elk, bear, and all other animals, including man,
who are dependent on it or who enjoy it for its sight, its sound, or
its life. The river as plaintiff speaks for the ecological unit of life
that is part of it. Those people who have a meaningful relation to
that body of waterwhether it be a fisherman, a canoeist, a
zoologist, or a loggermust be able to speak for the values which
the river represents and which are threatened with
destruction.50(Citations omitted.)
The primary reason animal rights advocates and environmentalists
seek to give animals and inanimate objects standing is due to the
need to comply with the strict requirements in bringing a suit to
court. Our own 1997 Rules of Court demand that parties to a suit be
either natural or juridical persons, or entities authorized by law. It
further necessitates the action to be brought in the name of the
real party-in-interest, even if filed by a
representative, viz.:chanroblesvirtuallawlibrary
Rule 3
Parties to Civil Actions
Section 1. Who may be parties; plaintiff and defendant. - Only
natural or juridical persons, or entities authorized by law may be
parties in a civil action. The term "plaintiff may refer to the claiming
party, the counter-claimant, the cross-claimant, or the third (fourth,
etc.)-party plaintiff. The term "defendant" may refer to the original
defending party, the defendant in a counterclaim, the cross-
defendant, or the third (fourth, etc.)-party defendant.
Sec. 2. Parties in interest. - A real party in interest is the party who
stands to be benefited or injured by the judgment in the suit, or the
party entitled to the avails of the suit. Unless otherwise authorized
by law or these Rules, every action must be prosecuted or
defended in the name of the real party in interest.
Sec. 3. Representatives as parties. - Where the action is allowed to
be prosecuted or defended by a representative or someone acting
in a fiduciary capacity, the beneficiary shall be included in the title
of the case and shall be deemed to be the real party in interest. A
representative may be a trustee of an express trust, a guardian, an
executor or administrator, or a party authorized by law or these
Rules. An agent acting in his own name and for the benefit of an
undisclosed principal may sue or be sued without joining the
principal except when the contract involves things belonging to the
principal.
It had been suggested by animal rights advocates and
environmentalists that not only natural and juridical persons should
be given legal standing because of the difficulty for persons, who
cannot show that they by themselves are real parties-in-interests,
to bring actions in representation of these animals or inanimate
objects. For this reason, many environmental cases have been
dismissed for failure of the petitioner to show that he/she would be
directly injured or affected by the outcome of the case. However, in
our jurisdiction, locus standi in environmental cases has been given
a more liberalized approach. While developments in Philippine legal
theory and jurisprudence have not progressed as far as Justice
Douglas's paradigm of legal standing for inanimate objects, the
current trend moves towards simplification of procedures and
facilitating court access in environmental cases.
Recently, the Court passed the landmark Rules of Procedure for
Environmental Cases,51 which allow for a "citizen suit," and
permit any Filipino citizen to file an action before our courts for
violations of our environmental laws:chanroblesvirtuallawlibrary
SEC. 5. Citizen suit. - Any Filipino citizen in representation of
others, including minors or generations yet unborn, may file
an action to enforce rights or obligations under
environmental laws. Upon the filing of a citizen suit, the court
shall issue an order which shall contain a brief description of the
cause of action and the reliefs prayed for, requiring all interested
parties to manifest their interest to intervene in the case within
fifteen (15) days from notice thereof. The plaintiff may publish the
order once in a newspaper of a general circulation in the Philippines
or furnish all affected barangays copies of said order.
Citizen suits filed under R.A. No. 8749 and R.A. No. 9003 shall be
governed by their respective provisions. 52 (Emphasis ours.)
Explaining the rationale for this rule, the Court, in the Annotations
to the Rules of Procedure for Environmental Cases,
commented:chanroblesvirtuallawlibrary
Citizen suit. To further encourage the protection of the
environment, the Rules enable litigants enforcing environmental
rights to file their cases as citizen suits. This provision liberalizes
standing for all cases filed enforcing environmental laws and
collapses the traditional rule on personal and direct interest, on
the principle that humans are stewards of nature. The
terminology of the text reflects the doctrine first enunciated
in Oposa v. Factoran, insofar as it refers to minors and generations
yet unborn.53(Emphasis supplied, citation omitted.)
Although this petition was filed in 2007, years before the effectivity
of the Rules of Procedure for Environmental Cases, it has been
consistently held that rules of procedure "may be retroactively
applied to actions pending and undetermined at the time of their
passage and will not violate any right of a person who may feel that
he is adversely affected, inasmuch as there is no vested rights in
rules of procedure."54
Elucidating on this doctrine, the Court, in Systems Factors
Corporation v. National Labor Relations Commission 55 held
that:chanroblesvirtuallawlibrary
Remedial statutes or statutes relating to remedies or modes of
procedure, which do not create new or take away vested rights, but
only operate in furtherance of the remedy or confirmation of rights
already existing, do not come within the legal conception of a
retroactive law, or the general rule against retroactive operation of
statutes. Statutes regulating the procedure of the courts will be
construed as applicable to actions pending and undetermined at
the time of their passage. Procedural laws are retroactive in that
sense and to that extent, x x x.
Moreover, even before the Rules of Procedure for Environmental
Cases became effective, this Court had already taken a permissive
position on the issue of locus standi in environmental cases.
In Oposa, we allowed the suit to be brought in the name of
generations yet unborn "based on the concept of intergenerational
responsibility insofar as the right to a balanced and healthful
ecology is concerned."56 Furthermore, we said that the right to a
balanced and healthful ecology, a right that does not even need to
be stated in our Constitution as it is assumed to exist from the
inception of humankind, carries with it the correlative duty to
refrain from impairing the environment. 57
In light of the foregoing, the need to give the Resident Marine
Mammals legal standing has been eliminated by our Rules, which
allow any Filipino citizen, as a steward of nature, to bring a suit to
enforce our environmental laws. It is worth noting here that the
Stewards are joined as real parties in the Petition and not just in
representation of the named cetacean species. The Stewards,
Ramos and Eisma-Osorio, having shown in their petition that there
may be possible violations of laws concerning the habitat of the
Resident Marine Mammals, are therefore declared to possess the
legal standing to file this petition.chanRoblesvirtualLawlibrary
Impleading Former President Gloria Macapagal-Arroyo as an
Unwilling Co-Petitioner
Petitioners Stewards in G.R. No. 180771 impleaded as an
unwilling co-petitioner former President Gloria Macapagal-Arroyo for
the following reasons, which we quote:chanroblesvirtuallawlibrary
Her Excellency Gloria Macapagal-Arroyo, also of legal age,
Filipino and resident of Malacaang Palace, Manila Philippines.
Steward Gloria Macapagal-Arroyo happens to be the incumbent
President of the Philippine Islands. She is personally impleaded in
this suit as an unwilling co-petitioner by reason of her express
declaration and undertaking under the recently signed ASEAN
Charter to protect Your Petitioners' habitat, among others. She is
meantime dominated as an unwilling co-petitioner due to lack of
material time in seeking her signature and imprimatur hereof and
due to possible legal complications that may hereafter arise by
reason of her official relations with public respondents under the
alter ego principle in political law.58cralawlawlibrary
This is incorrect.
Section 10, Rule 3 of the Rules of Court
provides:chanroblesvirtuallawlibrary
Sec. 10. Unwilling co-plaintiff. - If the consent of any party who
should be joined as plaintiff can not be obtained, he may be made
a defendant and the reason therefor shall be stated in the
complaint.
Under the foregoing rule, when the consent of a party who should
be joined as a plaintiff cannot be obtained, he or she may be made
a party defendant to the case. This will put the unwilling party
under the jurisdiction of the Court, which can properly implead him
or her through its processes. The unwilling party's name cannot be
simply included in a petition, without his or her knowledge and
consent, as such would be a denial of due process.
Moreover, the reason cited by the petitioners Stewards for including
former President Macapagal-Arroyo in their petition, is not sufficient
to implead her as an unwilling co-petitioner. Impleading the former
President as an unwilling co-petitioner, for an act she made in the
performance of the functions of her office, is contrary to the public
policy against embroiling the President in suits, "to assure the
exercise of Presidential duties and functions free from any
hindrance or distraction, considering that being the Chief Executive
of the Government is a job that, aside from requiring all of the
office holder's time, also demands undivided attention." 59
Therefore, former President Macapagal-Arroyo cannot be impleaded
as one of the petitioners in this suit. Thus, her name is stricken off
the title of this case.chanRoblesvirtualLawlibrary
Main Issue:
Legality of Service Contract No. 46
Service Contract No. 46 vis-a-vis
Section 2, Article XII of the
1987 Constitution
Petitioners maintain that SC-46 transgresses the Jura
Regalia Provision or paragraph 1, Section 2, Article XII of the 1987
Constitution because JAPEX is 100% Japanese-
owned.60 Furthermore, the FIDEC asserts that SC-46 cannot be
considered as a technical and financial assistance agreement
validly executed under paragraph 4 of the same provision. 61 The
petitioners claim that La Bugal-B'laan Tribal Association, Inc. v.
Ramos62 laid down the guidelines for a valid service contract, one of
which is that there must exist a general law for oil exploration
before a service contract may be entered into by the Government.
The petitioners posit that the service contract in La Bugal is
presumed to have complied with the requisites of (a) legislative
enactment of a general law after the effectivity of the 1987
Constitution (such as Republic Act No. 7942, or the Philippine
Mining Law of 1995, governing mining contracts) and (b)
presidential notification. The petitioners thus allege that the ruling
in La Bugal, which involved mining contracts under Republic Act No.
7942, does not apply in this case.63 The petitioners also argue that
Presidential Decree No. 87 or the Oil Exploration and Development
Act of 1972 cannot legally justify SC-46 as it is deemed to have
been repealed by the 1987 Constitution and subsequent laws,
which enunciate new policies concerning the environment. 64In
addition, petitioners in G.R. No. 180771 claim that paragraphs 2
and 3 of Section 2, Article XII of the 1987 Constitution mandate the
exclusive use and enjoyment by the Filipinos of our natural
resources,65 and paragraph 4 does not speak of service contracts
but of FTAAs or Financial Technical Assistance Agreements. 66
The public respondents again controvert the petitioners' claims and
asseverate that SC-46 does not violate Section 2, Article XII of the
1987 Constitution. They hold that SC-46 does not fall under the
coverage of paragraph 1 but instead, under paragraph 4 of Section
2, Article XII of the 1987 Constitution on FTAAs. They also insist that
paragraphs 2 and 3, which refer to the grant of exclusive fishing
right to Filipinos, are not applicable to SC-46 as the contract does
not grant exclusive fishing rights to JAPEX nor does it otherwise
impinge on the FIDEC's right to preferential use of communal
marine and fishing resources.67
Ruling of the Court
On the legality of Service Contract No. 46
vis-a-vis Section 2, Article XII of the 1987 Constitution
The petitioners insist that SC-46 is null and void for having violated
Section 2, Article XII of the 1987 Constitution, which reads as
follows:chanroblesvirtuallawlibrary
Section 2. All lands of the public domain, waters, minerals, coal,
petroleum, and other mineral oils, all forces of potential energy,
fisheries, forests or timber, wildlife, flora and fauna, and other
natural resources are owned by the State. With the exception of
agricultural lands, all other natural resources shall not be alienated.
The exploration, development, and utilization of natural resources
shall be under the full control and supervision of the State. The
State may directly undertake such activities, or it may enter into
co-production, joint venture, or production-sharing agreements with
Filipino citizens, or corporations or associations at least sixty per
centum of whose capital is owned by such citizens. Such
agreements may be for a period not exceeding twenty-five years,
renewable for not more than twenty-five years, and under such
terms and conditions as may be provided by law. In cases of water
rights for irrigation, water supply, fisheries, or industrial uses other
than the development of water power, beneficial use may be the
measure and limit of the grant.
The State shall protect the nation's marine wealth in its
archipelagic waters, territorial sea, and exclusive economic zone,
and reserve its use and enjoyment exclusively to Filipino citizens.
The Congress may, by law, allow small-scale utilization of natural
resources by Filipino citizens, as well as cooperative fish farming,
with priority to subsistence fishermen and fishworkers in rivers,
lakes, bays, and lagoons.
The President may enter into agreements with foreign-
owned corporations involving either technical or financial
assistance for large-scale exploration, development, and
utilization of minerals, petroleum, and other mineral oils
according to the general terms and conditions provided by
law, based on real contributions to the economic growth
and general welfare of the country. In such agreements, the
State shall promote the development and use of local scientific and
technical resources.
The President shall notify the Congress of every contract
entered into in accordance with this provision, within thirty
days from its execution. (Emphases ours.)
This Court has previously settled the issue of whether service
contracts are still allowed under the 1987 Constitution. In La Bugal,
we held that the deletion of the words "service contracts" in the
1987 Constitution did not amount to a ban on them per se. In fact,
in that decision, we quoted in length, portions of the deliberations
of the members of the Constitutional Commission (ConCom) to
show that in deliberating on paragraph 4, Section 2, Article XII, they
were actually referring to service contracts as understood in the
1973 Constitution, albeit with safety measures to eliminate or
minimize the abuses prevalent during the martial law regime, to
wit:chanroblesvirtuallawlibrary
Summation of the ConCom Deliberations
At this point, we sum up the matters established, based on a
careful reading of the ConCom deliberations, as follows:
In their deliberations on what was to become paragraph 4, the
framers used the term service contracts in referring to agreements
x x x involving either technical or financial assistance.
They spoke of service contracts as the concept was understood in
the 1973 Constitution.
It was obvious from their discussions that they were not about to
ban or eradicate service contracts.
Instead, they were plainly crafting provisions to put in place
safeguards that would eliminate or minimize the abuses prevalent
during the marital law regime. In brief, they were going to permit
service contracts with foreign corporations as contractors, but with
safety measures to prevent abuses, as an exception to the general
norm established in the first paragraph of Section 2 of Article XII.
This provision reserves or limits to Filipino citizens and corporations
at least 60 percent of which is owned by such citizens the
exploration, development and utilization of natural resources.
This provision was prompted by the perceived insufficiency of
Filipino capital and the felt need for foreign investments in the EDU
of minerals and petroleum resources.
The framers for the most part debated about the sort of safeguards
that would be considered adequate and reasonable. But some of
them, having more "radical" leanings, wanted to ban service
contracts altogether; for them, the provision would permit aliens to
exploit and benefit from the nation's natural resources, which they
felt should be reserved only for Filipinos.
In the explanation of their votes, the individual commissioners were
heard by the entire body. They sounded off their individual
opinions, openly enunciated their philosophies, and supported or
attacked the provisions with fervor. Everyone's viewpoint was
heard.
In the final voting, the Article on the National Economy and
Patrimony including paragraph 4 allowing service contracts with
foreign corporations as an exception to the general norm in
paragraph 1 of Section 2 of the same article was resoundingly
approved by a vote of 32 to 7, with 2 abstentions.
Agreements Involving Technical Or Financial Assistance Are
Service Contracts with Safeguards
From the foregoing, we are impelled to conclude that the
phrase agreements involving either technical or financial
assistance, referred to in paragraph 4, are in fact service contracts.
But unlike those of the 1973 variety, the new ones are between
foreign corporations acting as contractors on the one hand; and on
the other, the government as principal or "owner" of the works. In
the new service contracts, the foreign contractors provide capital,
technology and technical know-how, and managerial expertise in
the creation and operation of large-scale mining/extractive
enterprises; and the government, through its agencies (DENR,
MGB), actively exercises control and supervision over the entire
operation.68cralawlawlibrary
In summarizing the matters discussed in the ConCom, we
established that paragraph 4, with the safeguards in place,
is the exception to paragraph 1, Section 2 of Article XII. The
following are the safeguards this Court enumerated in La
Bugal:chanroblesvirtuallawlibrary
Such service contracts may be entered into only with respect to
minerals, petroleum and other mineral oils. The grant thereof is
subject to several safeguards, among which are these
requirements:
(1) The service contract shall be crafted in accordance with a
general law that will set standard or uniform terms, conditions and
requirements, presumably to attain a certain uniformity in
provisions and avoid the possible insertion of terms
disadvantageous to the country.
(2) The President shall be the signatory for the government
because, supposedly before an agreement is presented to the
President for signature, it will have been vetted several times over
at different levels to ensure that it conforms to law and can
withstand public scrutiny.
(3) Within thirty days of the executed agreement, the President
shall report it to Congress to give that branch of government an
opportunity to look over the agreement and interpose timely
objections, if any.69cralawlawlibrary
Adhering to the aforementioned guidelines, this Court finds that SC-
46 is indeed null and void for noncompliance with the requirements
of the 1987 Constitution.
1. The General Law on Oil Exploration
The disposition, exploration, development, exploitation, and
utilization of indigenous petroleum in the Philippines are governed
by Presidential Decree No. 87 or the Oil Exploration and
Development Act of 1972. This was enacted by then President
Ferdinand Marcos to promote the discovery and production of
indigenous petroleum through the utilization of government and/or
local or foreign private resources to yield the maximum benefit to
the Filipino people and the revenues to the Philippine
Government.70
Contrary to the petitioners' argument, Presidential Decree No. 87,
although enacted in 1972, before the adoption of the 1987
Constitution, remains to be a valid law unless otherwise repealed,
to wit:chanroblesvirtuallawlibrary
ARTICLE XVIII - TRANSITORY PROVISIONS
Section 3. All existing laws, decrees, executive orders,
proclamations, letters of instructions, and other executive
issuances not inconsistent with this Constitution shall remain
operative until amended, repealed, or revoked.
If there were any intention to repeal Presidential Decree No. 87, it
would have been done expressly by Congress. For instance,
Republic Act No. 7160, more popularly known as the Local
Government Code of 1991, expressly repealed a number of laws,
including a specific provision in Presidential Decree No.
87, viz.:chanroblesvirtuallawlibrary
SECTION 534. Repealing Clause. (a) Batas Pambansa Blg. 337,
otherwise known as the "Local Government Code," Executive Order
No. 112 (1987), and Executive Order No. 319 (1988) are hereby
repealed.
(b) Presidential Decree Nos. 684, 1191, 1508 and such other
decrees, orders, instructions, memoranda and issuances related to
or concerning the barangay are hereby repealed.
(c) The provisions of Sections 2, 3, and 4 of Republic Act No. 1939
regarding hospital fund; Section 3, a (3) and b (2) of Republic Act
No. 5447 regarding the Special Education Fund; Presidential Decree
No. 144 as amended by Presidential Decree Nos. 559 and 1741;
Presidential Decree No. 231 as amended; Presidential Decree No.
436 as amended by Presidential Decree No. 558; and Presidential
Decree Nos. 381, 436, 464, 477, 526, 632, 752, and 1136 are
hereby repealed and rendered of no force and effect.
(d) Presidential Decree No. 1594 is hereby repealed insofar as it
governs locally-funded projects.
(e) The following provisions are hereby repealed or amended
insofar as they are inconsistent with the provisions of this Code:
Sections 2, 16 and 29 of Presidential Decree No. 704; Section 12
of Presidential Decree No. 87, as amended; Sections 52, 53, 66,
67, 68, 69, 70, 71, 72, 73, and 74 of Presidential Decree No. 463, as
amended; and Section 16 of Presidential Decree No. 972, as
amended, and
(f) All general and special laws, acts, city charters, decrees,
executive orders, proclamations and administrative regulations, or
part or parts thereof which are inconsistent with any of the
provisions of this Code are hereby repealed or modified accordingly.
(Emphasis supplied.)
This Court could not simply assume that while Presidential Decree
No. 87 had not yet been expressly repealed, it had been impliedly
repealed. As we held in Villarea v. The Commission on
Audit,71 "[i]mplied repeals are not lightly presumed." It is a settled
rule that when laws are in conflict with one another, every effort
must be exerted to reconcile them. In Republic of the Philippines v.
Marcopper Mining Corporation,72 we
said:chanroblesvirtuallawlibrary
The two laws must be absolutely incompatible, and a clear finding
thereof must surface, before the inference of implied repeal may be
drawn. The rule is expressed in the maxim, interpretare et
concordare leqibus est optimus interpretendi, i.e., every statute
must be so interpreted and brought into accord with other laws as
to form a uniform system of jurisprudence. The fundament is that
the legislature should be presumed to have known the existing laws
on the subject and not have enacted conflicting statutes. Hence, all
doubts must be resolved against any implied repeal, and all efforts
should be exerted in order to harmonize and give effect to all laws
on the subject. (Citation omitted.)
Moreover, in cases where the statute seems to be in conflict with
the Constitution, but a construction that it is in harmony with the
Constitution is also possible, that construction should be
preferred.73This Court, in Pangandaman v. Commission on
Elections74 expounding on this point,
pronounced:chanroblesvirtuallawlibrary
It is a basic precept in statutory construction that a statute should
be interpreted in harmony with the Constitution and that the spirit,
rather than the letter of the law determines its construction; for
that reason, a statute must be read according to its spirit and
intent, x x x. (Citation omitted.)
Consequently, we find no merit in petitioners' contention that SC-
46 is prohibited on the ground that there is no general law
prescribing the standard or uniform terms, conditions, and
requirements for service contracts involving oil exploration and
extraction.
But note must be made at this point that while Presidential Decree
No. 87 may serve as the general law upon which a service contract
for petroleum exploration and extraction may be authorized, as will
be discussed below, the exploitation and utilization of this energy
resource in the present case may be allowed only through a law
passed by Congress, since the Taon Strait is a NIPAS75 area.
2. President was not the signatory to SC-46 and the same
was not submitted to Congress
While the Court finds that Presidential Decree No. 87 is sufficient to
satisfy the requirement of a general law, the absence of the two
other conditions, that the President be a signatory to SC-46, and
that Congress be notified of such contract, renders it null and void.
As SC-46 was executed in 2004, its terms should have conformed
not only to the provisions of Presidential Decree No. 87, but also to
those of the 1987 Constitution. The Civil Code
provides:chanroblesvirtuallawlibrary
ARTICLE 1306. The contracting parties may establish such
stipulations, clauses, terms and conditions as they may deem
convenient, provided they are not contrary to law, morals, good
customs, public order, or public policy. (Italics ours.)
In Heirs of San Miguel v. Court of Appeals,76 this Court held
that:chanroblesvirtuallawlibrary
It is basic that the law is deemed written into every contract.
Although a contract is the law between the parties, the provisions
of positive law which regulate contracts are deemed written therein
and shall limit and govern the relations between the parties, x x x.
(Citations omitted.)
Paragraph 4, Section 2, Article XII of the 1987 Constitution requires
that the President himself enter into any service contract for the
exploration of petroleum. SC-46 appeared to have been entered
into and signed only by the DOE through its then Secretary, Vicente
S. Perez, Jr., contrary to the said constitutional requirement.
Moreover, public respondents have neither shown nor alleged that
Congress was subsequently notified of the execution of such
contract.
Public respondents' implied argument that based on the "alter ego
principle," their acts are also that of then President Macapagal-
Arroyo's, cannot apply in this case. In Joson v. Torres,77 we
explained the concept of the alter ego principle or the doctrine of
qualified political agency and its limit in this
wise:chanroblesvirtuallawlibrary
Under this doctrine, which recognizes the establishment of a single
executive, all executive and administrative organizations are
adjuncts of the Executive Department, the heads of the various
executive departments are assistants and agents of the Chief
Executive, and, except in cases where the Chief Executive is
required by the Constitution or law to act in person or the
exigencies of the situation demand that he act personally,
the multifarious executive and administrative functions of the Chief
Executive are performed by and through the executive
departments, and the acts of the Secretaries of such departments,
performed and promulgated in the regular course of business, are,
unless disapproved or reprobated by the Chief Executive
presumptively the acts of the Chief Executive. (Emphasis ours,
citation omitted.)
While the requirements in executing service contracts in paragraph
4, Section 2 of Article XII of the 1987 Constitution seem like mere
formalities, they, in reality, take on a much bigger role. As we have
explained in La Bugal, they are the safeguards put in place by the
framers of the Constitution to "eliminate or minimize the abuses
prevalent during the martial law regime."78 Thus, they are not just
mere formalities, which will only render a contract unenforceable
but not void, if not complied with. They are requirements placed,
not just in an ordinary statute, but in the fundamental law, the non-
observance of which will nullify the contract. Elucidating on the
concept of a "constitution," this Court, in Manila Prince Hotel v.
Government Service Insurance
System,79 held:chanroblesvirtuallawlibrary
A constitution is a system of fundamental laws for the governance
and administration of a nation. It is supreme, imperious, absolute
and unalterable except by the authority from which it emanates. It
has been defined as the fundamental and paramount law of the
nation. It prescribes the permanent framework of a system of
government, assigns to the different departments their respective
powers and duties, and establishes certain fixed principles on which
government is founded. The fundamental conception in other words
is that it is a supreme law to which all other laws must conform and
in accordance with which all private rights must be determined and
all public authority administered. Under the doctrine of
constitutional supremacy, if a law or contract violates any
norm of the constitution that law or contract whether
promulgated by the legislative or by the executive branch
or entered into by private persons for private purposes is
null and void and without any force and effect. Thus, since
the Constitution is the fundamental, paramount and supreme law
of the nation, it is deemed written in every statute and contract.
(Emphasis ours.)
As this Court has held in La Bugal, our Constitution requires that
the President himself be the signatory of service agreements with
foreign-owned corporations involving the exploration, development,
and utilization of our minerals, petroleum, and other mineral oils.
This power cannot be taken lightly.
In this case, the public respondents have failed to show that the
President had any participation in SC-46. Their argument that their
acts are actually the acts of then President Macapagal-Arroyo,
absent proof of her disapproval, must fail as the requirement that
the President herself enter into these kinds of contracts is
embodied not just in any ordinary statute, but in the Constitution
itself. These service contracts involving the exploitation,
development, and utilization of our natural resources are of
paramount interest to the present and future generations. Hence,
safeguards were put in place to insure that the guidelines set by
law are meticulously observed and likewise to eradicate the
corruption that may easily penetrate departments and agencies by
ensuring that the President has authorized or approved of these
service contracts herself.
Even under the provisions of Presidential Decree No. 87, it is
required that the Petroleum Board, now the DOE, obtain the
President's approval for the execution of any contract under said
statute, as shown in the following
provision:chanroblesvirtuallawlibrary
SECTION 5. Execution of contract authorized in this Act. - Every
contract herein authorized shall, subject to the approval of the
President, be executed by the Petroleum Board created in this Act,
after due public notice pre-qualification and public bidding or
concluded through negotiations. In case bids are requested or if
requested no bid is submitted or the bids submitted are rejected by
the Petroleum Board for being disadvantageous to the Government,
the contract may be concluded through negotiation.
In opening contract areas and in selecting the best offer for
petroleum operations, any of the following alternative procedures
may be resorted to by the Petroleum Board, subject to prior
approval of the President [.]
Even if we were inclined to relax the requirement in La Bugal to
harmonize the 1987 Constitution with the aforementioned provision
of Presidential Decree No. 87, it must be shown that the
government agency or subordinate official has been authorized by
the President to enter into such service contract for the
government. Otherwise, it should be at least shown that the
President subsequently approved of such contract explicitly. None
of these circumstances is evident in the case at
bar.chanRoblesvirtualLawlibrary
Service Contract No. 46 vis-a-vis Other Laws
Petitioners in G.R. No. 180771 claim that SC-46 violates Section 27
of Republic Act. No. 9147 or the Wildlife Resources Conservation
and Protection Act, which bans all marine exploration and
exploitation of oil and gas deposits. They also aver that Section 14
of Republic Act No. 7586 or the National Integrated Protected Areas
System Act of 1992 (NIPAS Act), which allows the exploration of
protected areas for the purpose of information-gathering, has been
repealed by Section 27 of Republic Act No. 9147. The said
petitioners further claim that SC-46 is anathema to Republic Act No.
8550 or the Philippine Fisheries Code of 1998, which protects the
rights of the fisherfolk in the preferential use of municipal waters,
with the exception being limited only to research and survey
activities.80
The FIDEC, for its part, argues that to avail of the exceptions under
Section 14 of the NIPAS Act, the gathering of information must be in
accordance with a DENR-approved program, and the exploitation
and utilization of energy resources must be pursuant to a general
law passed by Congress expressly for that purpose. Since there is
neither a DENR-approved program nor a general law passed by
Congress, the seismic surveys and oil drilling operations were all
done illegally.81 The FIDEC likewise contends that SC-46 infringes on
its right to the preferential use of the communal fishing waters as it
is denied free access within the prohibited zone, in violation not
only of the Fisheries Code but also of the 1987 Constitutional
provisions on subsistence fisherfolk and social
justice.82 Furthermore, the FIDEC believes that the provisions in
Presidential Decree No. 87, which allow offshore drilling even in
municipal waters, should be deemed to have been rendered
inoperative by the provisions of Republic Act No. 8550 and Republic
Act No. 7160, which reiterate the social justice provisions of the
Constitution.83
The public respondents invoke the rules on statutory construction
and argue that Section 14 of the NIPAS Act is a more particular
provision and cannot be deemed to have been repealed by the
more general prohibition in Section 27 of Republic Act No. 9147.
They aver that Section 14, under which SC-46 falls, should instead
be regarded as an exemption to Section 27. 84
Addressing the claim of petitioners in G.R. No. 180771 that there
was a violation of Section 27 of Republic Act No. 9147, the public
respondents assert that what the section prohibits is the
exploration of minerals, which as defined in the Philippine Mining
Act of 1995, exclude energy materials such as coal, petroleum,
natural gas, radioactive materials and geothermal energy. Thus,
since SC-46 involves oil and gas exploration, Section 27 does not
apply.85
The public respondents defend the validity of SC-46 and insist that
it does not grant exclusive fishing rights to JAPEX; hence, it does
not violate the rule on preferential use of municipal waters.
Moreover, they allege that JAPEX has not banned fishing in the
project area, contrary to the FIDEC's claim. The public respondents
also contest the attribution of the declining fish catch to the seismic
surveys and aver that the allegation is unfounded. They claim that
according to the Bureau of Fisheries and Aquatic Resources' fish
catch data, the reduced fish catch started in the 1970s due to
destructive fishing practices.86
Ruling of the Court
On the legality of Service Contract No. 46 vis-a-vis Other
Laws
Although we have already established above that SC-46 is null and
void for being violative of the 1987 Constitution, it is our duty to
still rule on the legality of SC-46 vis-a-vis other pertinent laws, to
serve as a guide for the Government when executing service
contracts involving not only the Taon Strait, but also other similar
areas. While the petitioners allege that SC-46 is in violation of
several laws, including international ones, their arguments focus
primarily on the protected status of the Taon Strait, thus this Court
will concentrate on those laws that pertain particularly to the Taon
Strait as a protected seascape.
The Taon Strait is a narrow passage of water bounded by the
islands of Cebu in the East and Negros in the West. It harbors a rich
biodiversity of marine life, including endangered species of
dolphins and whales. For this reason, former President Fidel V.
Ramos declared the Taon Strait as a protected seascape in 1998
by virtue of Proclamation No. 1234 - Declaring the Taon Strait
situated in the Provinces of Cebu, Negros Occidental and Negros
Oriental as a Protected Area pursuant to the NIP AS Act and shall
be known as Taon Strait Protected Seascape. During former
President Joseph E. Estrada's time, he also constituted the Taon
Strait Commission via Executive Order No. 76 to ensure the
optimum and sustained use of the resources in that area without
threatening its marine life. He followed this with Executive Order
No. 177,87 wherein he included the mayor of Negros Occidental
Municipality/City as a member of the Taon Strait Commission, to
represent the LGUs concerned. This Commission, however, was
subsequently abolished in 2002 by then President Gloria
Macapagal-Arroyo, via Executive Order No. 72. 88
True to the constitutional policy that the "State shall protect and
advance the right of the people to a balanced and healthful ecology
in accord with the rhythm and harmony of nature," 89 Congress
enacted the NIPAS Act to secure the perpetual existence of all
native plants and animals through the establishment of a
comprehensive system of integrated protected areas. These areas
possess common ecological values that were incorporated into a
holistic plan representative of our natural heritage. The system
encompasses outstandingly remarkable areas and biologically
important public lands that are habitats of rare and endangered
species of plants and animals, biogeographic zones and related
ecosystems, whether terrestrial, wetland, or marine. 90 It classifies
and administers all the designated protected areas to maintain
essential ecological processes and life-support systems, to preserve
genetic diversity, to ensure sustainable use of resources found
therein, and to maintain their natural conditions to the greatest
extent possible.91 The following categories of protected areas were
established under the NIPAS Act:chanroblesvirtuallawlibrary
a. Strict nature reserve;
b. Natural park;
c. Natural monument;
d. Wildlife sanctuary;
e. Protected landscapes and seascapes;
f. Resource reserve;
g. Natural biotic areas; and
h. Other categories established by law, conventions or
international agreements which the Philippine Government is a
signatory.92
Under Section 4 of the NIPAS Act, a protected area refers to
portions of land and water, set aside due to their unique physical
and biological significance, managed to enhance biological
diversity and protected against human exploitation.
The Taon Strait, pursuant to Proclamation No. 1234, was set aside
and declared a protected area under the category of Protected
Seascape. The NIPAS Act defines a Protected Seascape to be an
area of national significance characterized by the harmonious
interaction of man and land while providing opportunities for public
enjoyment through recreation and tourism within the normal
lifestyle and economic activity of this areas;93 thus a management
plan for each area must be designed to protect and enhance the
permanent preservation of its natural conditions. 94 Consistent with
this endeavor is the requirement that an Environmental Impact
Assessment (EIA) be made prior to undertaking any activity outside
the scope of the management plan. Unless an ECC under the EIA
system is obtained, no activity inconsistent with the goals of the
NIPAS Act shall be implemented. 95
The Environmental Impact Statement System (EISS) was
established in 1978 under Presidential Decree No. 1586. It prohibits
any person, partnership or corporation from undertaking or
operating any declared environmentally critical project or areas
without first securing an ECC issued by the President or his duly
authorized representative.96 Pursuant to the EISS, which called for
the proper management of environmentally critical
areas,97 Proclamation No. 214698 was enacted, identifying the areas
and types of projects to be considered as environmentally critical
and within the scope of the EISS, while DENR Administrative Order
No. 2003-30 provided for its Implementing Rules and Regulations
(IRR).
DENR Administrative Order No. 2003-30 defines an environmentally
critical area as "an area delineated as environmentally sensitive
such that significant environmental impacts are expected if certain
types of proposed projects or programs are located, developed, or
implemented in it";99 thus, before a project, which is "any activity,
regardless of scale or magnitude, which may have significant
impact on the environment,"100 is undertaken in it, such project
must undergo an EIA to evaluate and predict the likely impacts of
all its stages on the environment. 101 An EIA is described in detail as
follows:chanroblesvirtuallawlibrary
h. Environmental Impact Assessment (EIA) - process that involves
evaluating and predicting the likely impacts of a project
(including cumulative impacts) on the environment during
construction, commissioning, operation and abandonment. It
also includes designing appropriate preventive, mitigating and
enhancement measures addressing these consequences to
protect the environment and the community's welfare. The
process is undertaken by, among others, the project proponent
and/or EIA Consultant, EMB, a Review Committee, affected
communities and other stakeholders.102
Under Proclamation No. 2146, the Taon Strait is an
environmentally critical area, having been declared as a
protected area in 1998; therefore, any activity outside the
scope of its management plan may only be implemented
pursuant to an ECC secured after undergoing an EIA to
determine the effects of such activity on its ecological
system.
The public respondents argue that they had complied with the
procedures in obtaining an ECC103 and that SC-46 falls under the
exceptions in Section 14 of the NIPAS Act, due to the following
reasons:
1) The Taon Strait is not a strict nature reserve or natural park;
2) Exploration is only for the purpose of gathering information on
possible energy resources; and
3) Measures are undertaken to ensure that the exploration is being
done with the least damage to surrounding areas. 104
We do not agree with the arguments raised by the public
respondents.
Sections 12 and 14 of the NIPAS Act
read:chanroblesvirtuallawlibrary
SECTION 12. Environmental Impact Assessment. - Proposals for
activities which are outside the scope of the management plan for
protected areas shall be subject to an environmental impact
assessment as required by law before they are adopted, and the
results thereof shall be taken into consideration in the decision-
making process.No actual implementation of such activities shall be
allowed without the required Environmental Compliance Certificate
(ECC) under the Philippine Environmental Impact Assessment (EIA)
system. In instances where such activities are allowed to be
undertaken, the proponent shall plan and carry them out in such
manner as will minimize any adverse effects and take preventive
and remedial action when appropriate. The proponent shall be
liable for any damage due to lack of caution or indiscretion.
SECTION 14. Survey for Energy Resources. - Consistent with the
policies declared in Section 2 hereof, protected areas, except strict
nature reserves and natural parks, may be subjected to exploration
only for the purpose of gathering information on energy resources
and only if such activity is carried out with the least damage to
surrounding areas. Surveys shall be conducted only in accordance
with a program approved by the DENR, and the result of such
surveys shall be made available to the public and submitted to the
President for recommendation to Congress. Any exploitation and
utilization of energy resources found within NIPAS areas shall be
allowed only through a law passed by Congress.
It is true that the restrictions found under the NIPAS Act are not
without exceptions. However, while an exploration done for the
purpose of surveying for energy resources is allowed under
Section 14 of the NIPAS Act, this does not mean that it is
exempt from the requirement to undergo an EIA under
Section 12. In Sotto v. Sotto,105 this Court explained why a statute
should be construed as a whole:chanroblesvirtuallawlibrary
A statute is passed as a whole and not in parts or sections and is
animated by one general purpose and intent. Consequently each
part or section should be construed in connection with every other
part or section and so as to produce a harmonious whole. It is not
proper to confine the attention to the one section to be construed.
It is always an unsafe way of construing a statute or contract to
divide it by a process of etymological dissection, into separate
words, and then apply to each, thus separated from its context,
some particular definition given by lexicographers, and then
reconstruct the instrument upon the basis of these definitions. An
instrument must always be construed as a whole, and the
particular meaning to be attached to any word or phrase is usually
to be ascertained from the context, the nature of the subject
treated of and the purpose or intention of the parties who executed
the contract, or of the body which enacted or framed the statute or
constitution, x x x.
Surveying for energy resources under Section 14 is not an
exemption from complying with the EIA requirement in
Section 12; instead, Section 14 provides
for additional requisites before any exploration for energy
resources may be done in protected areas.
The rationale for such additional requirements are incorporated in
Section 2 of the NIPAS Act, to wit:SECTION 2. Declaration of Policy -
Cognizant of the profound impact of man's activities on all
components of the natural environment particularly the effect of
increasing population, resource exploitation and industrial
advancement amd recognizing the critical importance of protecting
and maintaining the natural biological and physical diversities of
the environment notably on areas with biologically unique features
to sustain human life and development, as well as plant and animal
life, it is hereby declared the policy of the State to secure for the
Filipino people of present and future generations the perpetual
existence of all native plants and animals through the
establishment of a comprehensive system of integrated protected
areas within the classification of national park as provided for in the
Constitution.
It is hereby recognized that these areas, although distinct in
features, possess common ecological values that may be
incorporated into a holistic plan representative of our natural
heritage; that effective administration of this area is possible only
through cooperation among national government, local government
and concerned private organizations; that the use and enjoyment
of these protected areas must be consistent with the principles of
biological diversity and sustainable development.To this end, there
is hereby established a National Integrated Protected Areas System
(NIPAS), which shall encompass outstandingly remarkable areas
and biologically important public lands that are habitats of rare and
endangered species of plants and animals, biogeographic zones
and related ecosystems, whether terrestrial, wetland or marine, all
of which shall be designated as "protected areas."
The public respondents themselves admitted that JAPEX only
started to secure an ECC prior to the second sub-phase of SC-46,
which required the drilling of an oil exploration well. This means
that when the seismic surveys were done in the Taon Strait, no
such environmental impact evaluation was done. Unless seismic
surveys are part of the management plan of the Taon Strait, such
surveys were dona in violation of Section 12 of the NIPAS Act and
Section 4 of Presidential Decree No. 1586, which
provides:chanroblesvirtuallawlibrary
Section 4. Presidential Proclamation of Environmentally Critical
Areas and Projects. - The President of the Philippines may, on his
own initiative or upon recommendation of the National
Environmental Protection Council, by proclamation declare certain
projects, undertakings or areas in the country as environmentally
critical. No person, partnership or corporation shall undertake or
operate any such declared environmentally critical project or area
without first securing an Environmental Compliance Certificate
issued by the President or his duly authorized representative. For
the proper management of said critical project or area, the
President may by his proclamation reorganize such government
offices, agencies, institutions, corporations or instrumentalities
including the re-alignment of government personnel, and their
specific functions and responsibilities.
For the same purpose as above, the Ministry of Human Settlements
shall: (a) prepare the proper land or water use pattern for said
critical project(s) or area(s); (b) establish ambient environmental
quality standards; (c) develop a program of environmental
enhancement or protective measures against calamitous factors
such as earthquakes, floods, water erosion and others, and (d)
perform such other functions as may be directed by the President
from time to time.
The respondents' subsequent compliance with the EISS for the
second sub-phase of SC-46 cannot and will not cure this violation.
The following penalties are provided for under Presidential Decree
No. 1586 and the NIPAS Act.
Section 9 of Presidential Decree No. 1586 provides for the penalty
involving violations of the ECC
requirement:chanroblesvirtuallawlibrary
Section 9. Penalty for Violation. - Any person, corporation or
partnership found violating Section 4 of this Decree, or the terms
and conditions in the issuance of the Environmental Compliance
Certificate, or of the standards, rules and regulations issued by the
National Environmental Protection Council pursuant to this Decree
shall be punished by the suspension or cancellation of his/its
certificates and/or a fine in an amount not to exceed Fifty
Thousand Pesos (P50,000.00) for every violation thereof, at
the discretion of the National Environmental Protection
Council. (Emphasis supplied.)
Violations of the NIPAS Act entails the following fines and/or
imprisonment under SECTION 21. Penalties. - Whoever violates this
Act or any rules and regulations issued by the Department pursuant
to this Act or whoever is found guilty by a competent court of
justice of any of the offenses in the preceding section shall
be fined in the amount of not less than Five thousand pesos
(P5,000) nor more than Five hundred thousand pesos
(P500,000), exclusive of the value of the thing damaged or
imprisonment for not less than one (1) year but not more
than six (6) years, or both, as determined by the
court: Provided, that, if the area requires rehabilitation or
restoration as determined by the court, the offender shall
be required to restore or compensate for the restoration to
the damages: Provided, further, that court shall order the
eviction of the offender from the land and the forfeiture in
favor of the Government of all minerals, timber or any
species collected or removed including all equipment,
devices and firearms used in connection therewith, and any
construction or improvement made thereon by the offender.
If the offender is an association or corporation, the president or
manager shall be directly responsible for the act of his employees
and laborers: Provided, finally, that the DENR may impose
administrative fines and penalties consistent with this Act.
(Emphases supplied.)
Moreover, SC-46 was not executed for the mere purpose of
gathering information on the possible energy resources in the
Taon Strait as it also provides for the parties' rights and
obligations relating to extraction and petroleum production should
oil in commercial quantities be found to exist in the area. While
Presidential Decree No. 87 may serve as the general law
upon which a service contract for petroleum exploration
and extraction may be authorized, the exploitation and
utilization of this energy resource in the present case may
be allowed only through a law passed by Congress, since
the Taon Strait is a NIPAS area. 106Since there is no such law
specifically allowing oil exploration and/or extraction in the
Taon Strait, no energy resource exploitation and utilization
may be done in said protected seascape.
In view of the foregoing premises and conclusions, it is no longer
necessary to discuss the other issues raised in these consolidated
petitions.cralawred
WHEREFORE, the Petitions in G.R. Nos. 180771 and 181527
are GRANTED, Service Contract No. 46 is hereby declared NULL
AND VOID for violating the 1987 Constitution, Republic Act No.
7586, and Presidential Decree No. 1586.
SO ORDERED.chanroblesvirtuallawlibrary