Massacre.

He had a pending warrant of arrest issued by the trial court

in People of the Philippines v. Datu Andal Ampatuan, Jr., et al.8

Salibo presented himself before the police officers of Datu Hofer Police
Station to clear his name. There, he explained that he was not
Butukan S. Malang and that he could not have participated in the
November 23, 2009 Maguindanao Massacre because he was in Saudi
SECOND DIVISION Arabia at that time.9

To support his allegations, Salibo presented to the police "pertinent

G.R. No. 197597, April 08, 2015 portions of his passport, boarding passes and other
documents"10 tending to prove that a certain Datukan Malang Salibo
IN THE MATTER OF THE PETITION FOR HABEAS CORPUS OF was in Saudi Arabia from November 7 to December 19, 2009.11
DATUKAN MALANG SALIBO, DATUKAN MALANG
SALIBO, Petitioner, v. WARDEN, QUEZON CITY JAIL ANNEX, The police officers initially assured Salibo that they would not arrest
BJMP BUILDING, CAMP BAGONG DIWA, TAGUIG CITY AND ALL him because he was not Butukan S. Malang.12
OTHER PERSONS ACTING ON HIS BEHALF AND/OR HAVING
CUSTODY OF DATUKAN MALANG SALIBO, Respondents. Afterwards, however, the police officers apprehended Salibo and tore
off page two of his passport that evidenced his departure for Saudi
DECISION Arabia on November 7, 2009. They then detained Salibo at the Datu
Hofer Police Station for about three (3) days.13

LEONEN, J.:
Habeas corpus is the proper remedy for a person deprived of liberty
due to mistaken identity. In such cases, the person is not under any
lawful process and is continuously being illegally detained.
The police officers transferred Salibo to the Criminal Investigation and
Detection Group in Cotabato City, where he was detained for another
10 days. While in Cotabato City, the Criminal Investigation and
Detention Group allegedly made him sign and affix his thumbprint on
documents.14

This is a Petition for Review1 on Certiorari of the Court of Appeals On August 20, 2010, Salibo was finally transferred to the Quezon City
Decision2 reversing the Decision3 of the Regional Trial Court, Branch Jail Annex, Bureau of Jail Management and Penology Building, Camp
153, Pasig City (Taguig Hall of Justice) granting Datukan Malang Bagong Diwa, Taguig City, where he is currently detained.15
Salibo's Petition for Habeas Corpus.
On September 17, 2010, Salibo filed before the Court of Appeals the
From November 7, 2009 to December 19, 2009, Datukan Malang Urgent Petition for Habeas Corpus16questioning the legality of his
Salibo (Salibo) and other Filipinos were allegedly in Saudi Arabia for detention and deprivation of his liberty.17 He maintained that he is not
the Hajj Pilgrimage.4 "While in Saudi Arabia, . . . Salibo visited and the accused Butukan S. Malang.18
prayed in the cities of Medina, Mecca, Arpa, Mina and Jeddah."5 He
returned to the Philippines on December 20, 2009.6 In the Resolution19 dated September 21, 2010, the Court of Appeals
issued a Writ of Habeas Corpus, making the Writ returnable to the
On August 3, 2010, Salibo learned that police officers of Datu Hofer Second Vice Executive Judge of the Regional Trial Court, Pasig City
Police Station in Maguindanao suspected him to be Butukan S. (Taguig Hall of Justice).20 The Court of Appeals ordered the Warden of
Malang.7 the Quezon City Jail Annex to file a Return of the Writ one day before
the scheduled hearing and produce the person of Salibo at the 10:00
Butukan S. Malang was one of the 197 accused of 57 counts of murder a.m. hearing set on September 27, 2010.21
for allegedly participating in the November 23, 2009 Maguindanao
Proceedings before the trial court against Datukan Malang Salibo. Salibo, the trial court ruled, was not
restrained of his liberty under process issued by a court.30
On September 27, 2010, the jail guards of the Quezon City Jail Annex
brought Salibo before the trial court. The Warden, however, failed to
file a Return one day before the hearing. He also appeared without The trial court was likewise convinced that Salibo was not the Butukan
counsel during the hearing.22 S. Malang charged with murder in connection with the Maguindanao
Massacre. The National Bureau of Investigation Clearance dated
Thus, the trial court canceled the hearing and reset it to September August 27, 2009 showed that Salibo has not been charged of any
29, 2010 at 2:00 p.m.23 crime as of the date of the certificate.31 A Philippine passport bearing
Salibo's picture showed the name "Datukan Malang Salibo."32

On September 28, 2010, the Warden filed the Return of the Writ.
However, during the September 29, 2010 hearing on the Return, the
Warden appeared with Atty. Romeo L. Villante, Jr., Legal
Officer/Administering Officer of the Bureau of Jail Management and
Penology.24
Salibo questioned the appearance of Atty. Romeo L. Villante, Jr. on
behalf of the Warden and argued that only the Office of the Solicitor
General has the authority to appear on behalf of a respondent in a
habeas corpus proceeding.25
Moreover, the trial court said that Salibo "established that [he] was
out of the country"33 from November 7, 2009 to December 19, 2009.
This fact was supported by a Certification34 from Saudi Arabian Airlines
confirming Salibo's departure from and arrival in Manila on board its
flights.35 A Flight Manifest issued by the Bureau of Immigration and
Saudi Arabian Airlines Ticket No. 0652113 also showed this fact.36
Thus, in the Decision dated October 29, 2010, the trial court granted
Salibo's Petition for Habeas Corpus and ordered his immediate release
from detention.

The September 29, 2010 hearing, therefore, was canceled. The trial Proceedings before the Court of Appeals
court reset the hearing on the Return to October 1, 2010 at 9:00
a.m.26 On appeal37 by the Warden, however, the Court of Appeals reversed
and set aside the trial court's Decision.38 Through its Decision dated
The Return was finally heard on October 1, 2010. Assistant Solicitors April 19, 2011, the Court of Appeals dismissed Salibo's Petition for
Noel Salo and Isar Pepito appeared on behalf of the Warden of the Habeas Corpus.
Quezon City Jail Annex and argued that Salibo's Petition for Habeas
Corpus should be dismissed. Since Salibo was charged under a valid Contrary to the trial court's finding, the Court of Appeals found that
Information and Warrant of Arrest, a petition for habeas corpus was Salibo's arrest and subsequent detention were made under a valid
"no longer availing."27 Information and Warrant of Arrest.39 Even assuming that Salibo was
not the Butukan S. Malang named in the Alias Warrant of Arrest, the
Salibo countered that the Information, Amended Information, Warrant Court of Appeals said that "[t]he orderly course of trial must be
of Arrest, and Alias Warrant of Arrest referred to by the Warden all pursued and the usual remedies exhausted before the writ [of habeas
point to Butukan S. Malang, not Datukan Malang Salibo, as accused. corpus] may be invoked[.]"40 According to the Court of Appeals,
Reiterating that he was not Butukan S. Malang and that he was in Salibo's proper remedy was a Motion to Quash Information and/or
Saudi Arabia on the day of the Maguindanao Massacre, Salibo pleaded Warrant of Arrest.41
the trial court to order his release from detention.28
Salibo filed a Motion for Reconsideration,42 which the Court of Appeals
The trial court found that Salibo was not "judicially charged"29 under denied in the Resolution43 dated July 6, 2011.
any resolution, information, or amended information. The Resolution,
Information, and Amended Information presented in court did not Proceedings before this court
charge Datukan Malang Salibo as an accused. He was also not validly
arrested as there was no Warrant of Arrest or Alias Warrant of Arrest On July 28, 2011,44 petitioner Salibo filed before this court the Petition
for Review (With Urgent Application for a Writ of Preliminary grants the writ and requires the officer or person having custody of the
person allegedly restrained of liberty to file a return of the writ.53A
Mandatory Injunction). Respondent Warden filed a Comment,45 after hearing on the return of the writ is then conducted.54
which petitioner Salibo filed a Reply.46
The return of the writ may be heard by a court apart from that which
issued the writ.55 Should the court issuing the writ designate a lower
Petitioner Salibo maintains that he is not the Butukan S. Malang court to which the writ is made returnable, the lower court shall
charged with 57 counts of murder before the Regional Trial Court, proceed to decide the petition of habeas corpus. By virtue of the
Branch 221, Quezon City. Thus, contrary to the Court of Appeals' designation, the lower court "acquire[s] the power and authority to
finding, he, Datukan Malang Salibo, was not duly charged in court. He determine the merits of the [petition for habeas corpus.]"56 Therefore,
is being illegally deprived of his liberty and, therefore, his proper the decision on the petition is a decision appealable to the court that
remedy is a Petition for Habeas Corpus.47 has appellate jurisdiction over decisions of the lower court.57

Petitioner Salibo adds that respondent Warden erred in appealing the In Saulo v. Brig. Gen. Cruz, etc,58 "a petition for habeas corpus was
Decision of the Regional Trial Court, Branch 153, Pasig City before the filed before this Court . . . [o]n behalf of. . . Alfredo B. Saulo
Court of Appeals. Although the Court of Appeals delegated to the trial [(Saulo)]."59 This court issued a Writ of Habeas Corpus and ordered
court the authority to hear respondent Warden on the Return, the trial respondent Commanding General of the Philippine Constabulary to file
court's Decision should be deemed a Decision of the Court of Appeals. a Return of the Writ. This court made the Writ returnable to the Court
Therefore, respondent Warden should have directly filed his appeal of First Instance of Manila.60
before this court.48
After hearing the Commanding General on the Return, the Court of
As for respondent Warden, he maintains that petitioner Salibo was First Instance denied Saulo's Petition for Habeas Corpus.61
duly charged in court. Even assuming that he is not the Butukan S.
Malang named in the Alias Warrant of Arrest, petitioner Salibo should Saulo appealed before this court, arguing that the Court of First
have pursued the ordinary remedy of a Motion to Quash Information, Instance heard the Petition for Habeas Corpus "not by virtue of its
not a Petition for Habeas Corpus.49 original jurisdiction but merely delegation[.]"62 Consequently, "this
Court should have the final say regarding the issues raised in the
The issues for our resolution are: petition, and only [this court's decision] . . . should be regarded as
operative."63
First, whether the Decision of the Regional Trial Court, Branch 153,
Pasig City on petitioner Salibo's Petition for Habeas Corpus was This court rejected Sciulo's argument and stated that his "logic is more
appealable to the Court of Appeals; and Second, whether petitioner apparent than real."64 It ruled that when a superior court issues a writ
Salibo's proper remedy is to file a Petition for Habeas Corpus. of habeas corpus, the superior court only resolves whether the
respondent should be ordered to show cause why the petitioner or the
We grant the Petition. cralawlawli bra ry person in whose behalf the petition was filed was being detained or
deprived of his or her liberty.65 However, once the superior court
I makes the writ returnable to a lower court as allowed by the Rules of
Court, the lower court designated "does not thereby become merely a
Contrary to petitioner Salibo's claim, respondent Warden correctly recommendatory body, whose findings and conclusion[s] are devoid of
appealed before the Court of Appeals. effect[.]"66 The decision on the petition for habeas corpus is a decision
of the lower court, not of the superior court.
An application for a writ of habeas corpus may be made through a
petition filed before this court or any of its members,50 the Court of In Medina v. Gen. Yan,67 Fortunato Medina (Medina) filed before this
Appeals or any of its members in instances authorized by law,51 or the court a Petition for Habeas Corpus. This court issued a Writ of Habeas
Regional Trial Court or any of its presiding judges.52 The court or judge Corpus, making it returnable to the Court of First Instance of Rizal,
Quezon City. After trial on the merits, the Court of First Instance custody of any person is withheld from the person entitled
granted Medina's Petition for Habeas Corpus and ordered that Medina thereto."81 The primary purpose of the writ "is to inquire into all
be released from detention.68 manner of involuntary restraint as distinguished from voluntary, and to
relieve a person therefrom if such restraint is illegal."82 "Any restraint
The Office of the Solicitor General filed a Notice of Appeal before the which will preclude freedom of action is sufficient."83
Court of Appeals.69
The nature of the restraint of liberty need not be related to any offense
Atty. Amelito Mutuc, counsel for Medina, filed before the Court of so as to entitle a person to the efficient remedy of habeas corpus. It
Appeals a "Motion for Certification of Appeal to the Supreme Court." may be availed of as a post-conviction remedy84 or when there is an
The Court of Appeals, however, denied the Motion.70 alleged violation of the liberty of abode.85 In other words, habeas
corpus effectively substantiates the implied autonomy of citizens
This court ruled that the Court of Appeals correctly denied the "Motion constitutionally protected in the right to liberty in Article III, Section 1
for Certification of Appeal to the Supreme Court," citing Saulo as legal of the Constitution.86 Habeas corpus being a remedy for a
basis.71 The Court of First Instance of Rizal, in deciding Medina's constitutional right, courts must apply a conscientious and deliberate
Petition for Habeas Corpus, "acquired the power and authority to level of scrutiny so that the substantive right to liberty will not be
determine the merits of the case[.]"72Consequently, the decision of the further curtailed in the labyrinth of other processes.87
Court of First Instance of Rizal on Medina's Petition for Habeas Corpus
was appealable to the Court of Appeals.73 In Gumabon, et al. v. Director of the Bureau of Prisons,88 Mario
Gumabon (Gumabon), Bias Bagolbagol (Bagolbagol), Gaudencio
In this case, petitioner Salibo filed his Petition for Habeas Corpus Agapito (Agapito), Epifanio Padua (Padua), and Paterno Palmares
before the Court of Appeals. The Court of Appeals issued a Writ of (Palmares) were convicted of the complex crime of rebellion with
Habeas Corpus, making it returnable to the Regional Trial Court, murder. They commenced serving their respective sentences
Branch 153, Pasig City. The trial court then heard respondent Warden of reclusion perpetua.89
on his Return and decided the Petition on the merits.
While Gumabon, Bagolbagol, Agapito, Padua, and Palmares were
Applying Saulo and Medina, we rule that the trial court "acquired the serving their sentences, this court promulgated People v.
power and authority to determine the merits"74 of petitioner Salibo's Hernandez90 in 1956, ruling that the complex crime of rebellion with
Petition. The decision on the Petition for Habeas Corpus, therefore, murder does not exist.91
was the decision of the trial court, not of the Court of Appeals. Since
the Court of Appeals is the court with appellate jurisdiction over Based on the Hernandez ruling, Gumabon, Bagolbagol, Agapito, Padua,
decisions of trial courts,75 respondent Warden correctly filed the appeal and Palmares filed a Petition for Habeas Corpus. They prayed for their
before the Court of Appeals.cralawlawlibra ry release from incarceration and argued that the Hernandez doctrine
must retroactively apply to them.92
II
This court ruled that Gumabon, Bagolbagol, Agapito, Padua, and
Called the "great writ of liberty[,]"76 the writ of habeas corpus "was Palmares properly availed of a petition for habeas
devised and exists as a speedy and effectual remedy to relieve persons corpus.93 Citing Harris v. Nelson,94 this court said:chanrob lesvi rtua llawlib ra ry

from unlawful restraint, and as the best and only sufficient defense of [T]he writ of habeas corpus is the fundamental instrument for
personal freedom."77 The remedy of habeas corpus is safeguarding individual freedom against arbitrary and lawless state
extraordinary78 and summary79 in nature, consistent with the law's action. . . . The scope and flexibility of the writ — its capacity to reach
"zealous regard for personal liberty."80 all manner of illegal detention — its ability to cut through barriers of
form and procedural mazes — have always been emphasized and
Under Rule 102, Section 1 of the Rules of Court, the writ of habeas jealously guarded by courts and lawmakers. The very nature of the
corpus "shall extend to all cases of illegal confinement or detention by writ demands that it be administered with the initiative and flexibility
which any person is deprived of his liberty, or by which the rightful
essential to insure that miscarriages of justice within its reach are
surfaced and corrected.95 cralawlawli bra ry
In Rubi v. Provincial Board of Mindoro,96 the Provincial Board of
Mindoro issued Resolution No. 25, Series of 1917. The Resolution
ordered the Mangyans removed from their native habitat and
compelled them to permanently settle in an 800-hectare reservation in
Tigbao. Under the Resolution, Mangyans who refused to establish
themselves in the Tigbao reservation were imprisoned.97
Between the issuance of the writ and the final decision on the petition
for its issuance, it is the issuance of the writ that is essential. The
issuance of the writ sets in motion the speedy judicial inquiry on the
legality of any deprivation of liberty. Courts shall liberally issue writs of
habeas corpus even if the petition for its issuance "on [its] face [is]
devoid of merit[.]"108 Although the privilege of the writ of habeas
corpus may be suspended in cases of invasion, rebellion, or when the
public safety requires it,109 the writ itself may not be suspended.110

An application for habeas corpus was filed before this court on behalf III
of Rubi and all the other Mangyans being held in the
reservation.98 Since the application questioned the legality of It is true that a writ of habeas corpus may no longer be issued if the
deprivation of liberty of Rubi and the other Mangyans, this court issued person allegedly deprived of liberty is restrained under a lawful
a Writ of Habeas Corpus and ordered the Provincial Board of Mindoro process or order of the court.111 The restraint then has become
to make a Return of the Writ.99 legal,112 and the remedy of habeas corpus is rendered moot and
academic.113 Rule 102, Section 4 of the Rules of Court provides: cha nrob lesvi rtua llawli bra ry

A Writ of Habeas Corpus was likewise issued in Villavicencio v. SEC. 4. When writ not allowed or discharge authorized.—If it appears
Lukban.100 "[T]o exterminate vice,"101Mayor Justo Lukban of Manila that the person alleged to be restrained of his liberty is in the custody
ordered the brothels in Manila closed. The female sex workers of an officer under process issued by a court or judge or by virtue of a
previously employed by these brothels were rounded up and placed in judgment or order of a court of record, and that the court or judge had
ships bound for Davao. The women were expelled from Manila and jurisdiction to issue the process, render the judgment, or make the
deported to Davao without their consent.102 order, the writ shall not be allowed; or if the jurisdiction appears after
the writ is allowed, the person shall not be discharged by reason of
On application by relatives and friends of some of the deported any informality or defect in the process, judgment, or order. Nor shall
women, this court issued a Writ of Habeas Corpus and ordered Mayor anything in this rule be held to authorize the discharge of a person
Justo Lukban, among others, to make a Return of the Writ. Mayor charged with or convicted of an offense in the Philippines, or of a
Justo Lukban, however, failed to make a Return, arguing that he did person suffering imprisonment under lawful judgment.
not have custody of the women.103 In Ilagan v. Hon. Ponce Enrile,114 elements of the Philippine
Constabulary-Integrated National Police arrested Atty. Laurente C.
This court cited Mayor Justo Lukban in contempt of court for failure to Ilagan (Atty. Ilagan) by virtue of a Mission Order allegedly issued by
make a Return of the Writ.104 As to the legality of his acts, this court then Minister of National Defense, Juan Ponce Enrile (Minister Enrile).
ruled that Mayor Justo Lukban illegally deprived the women he had On the day of Atty. Ilagan's arrest,115from the Integrated Bar of the
deported to Davao of their liberty, specifically, of their privilege of Philippines Davao Chapter visited Atty. Ilagan in Camp Catitipan,
domicile.105 It said that the women, "despite their being in a sense where he was detained.115
lepers of society[,] are nevertheless not chattels but Philippine citizens
protected by the same constitutional guaranties as are other Among Atty. Ilagan's visitors was Atty. Antonio Arellano (Atty.
citizens[.]"106 The women had the right "to change their domicile from Arellano). Atty. Arellano, however, no longer left Camp Catitipan as
Manila to another locality."107 the military detained and arrested him based on an unsigned Mission
Order.116
The writ of habeas corpus is different from the final decision on the
petition for the issuance of the writ. It is the writ that commands the Three (3) days after the arrest of Attys. Ilagan and Arellano, the
production of the body of the person allegedly restrained of his or her military informed the Integrated Bar of the Philippines Davao Chapter
liberty. On the other hand, it is in the final decision where a court of the impending arrest of Atty. Marcos Risonar (Atty. Risonar). To
determines the legality of the restraint. verify his arrest papers, Atty. Risonar went to Camp Catitipan. Like
Atty. Arellano, the military did not allow Atty. Risonar to leave. He was
arrested based on a Mission Order signed by General Echavarria,
Regional Unified Commander.117
The Integrated Bar of the Philippines, the Free Legal Assistance Group,
and the Movement of Attorneys for Brotherhood, Integrity and
Nationalism filed before this court a Petition for Habeas Corpus in
behalf of Attys. Ilagan, Arellano, and Risonar.118
This court issued a Writ of Habeas Corpus and required Minister Enrile,
Armed Forces of the Philippines Acting Chief of Staff Lieutenant
General Fidel V. Ramos (General Ramos), and Philippine Constabulary-
Integrated National Police Regional Commander Brigadier General
Dionisio Tan-Gatue (General Tan-Gatue) to make a Return of the
Writ.119 This court set the hearing on the Return on May 23, 1985.120
In their Return, Minister Enrile, General Ramos, and General Tan-
Gatue contended that the privilege of the Writ of Habeas Corpus was
suspended as to Attys. Ilagan, Arellano, and Risonar by virtue of
Proclamation No. 2045-A.121 The lawyers, according to respondents,
allegedly "played active roles in organizing mass actions of the
Communist Party of the Philippines and the National Democratic
Front."122
After hearing respondents on their Return, this court ordered the
temporary release of Attys. Ilagan, Arellano, and Risonar on the
recognizance of their counsels, retired Chief Justice Roberto
Concepcion and retired Associate Justice Jose B.L. Reyes.123
Instead of releasing Attys. Ilagan, Arellano, and Risonar, however,
Minister Enrile, General Ramos, and General Tan-Gatue filed a Motion
for Reconsideration.124 They filed an Urgent Manifestation/Motion
stating that Informations for rebellion were filed against Attys. Ilagan,
Arellano, and Risonar. They prayed that this court dismiss the Petition
for Habeas Corpus for being moot and academic.125
The Integrated Bar of the Philippines, the Free Legal Assistance Group,
and the Movement of Attorneys for Brotherhood, Integrity and
Nationalism opposed the motion. According to them, no preliminary
investigation was conducted before the filing of the Information. Attys.
Ilagan, Arellano, and Risonar were deprived of their right to due
process. Consequently, the Information was void.126
This court dismissed the Petition for Habeas Corpus, ruling that it
became moot and academic with the filing of the Information against
Attys. Ilagan, Arellano, and Risonar in court:127
ChanRoble sVirtualawl ibra ry
As contended by respondents, the petition herein has been rendered
moot and academic by virtue of the filing of an Information against
them for Rebellion, a capital offense, before the Regional Trial Court of
Davao City and the issuance of a Warrant of Arrest against them. The
function of the special proceeding of habeas corpus is to inquire into
the legality of one's detention. Now that the detained attorneys'
incarceration is by virtue of a judicial order in relation to criminal cases
subsequently filed against them before the Regional Trial Court of
Davao City, the remedy of habeas corpus no longer lies. The Writ had
served its purpose.128 (Citations omitted)
This court likewise dismissed the Petitions for habeas corpus in Umil v.
Ramos.129 Roberto Umil, Rolando Dural, Renato Villanueva, Amelia
Roque, Wilfredo Buenaobra, Atty. Domingo Anonuevo, Ramon Casiple,
Vicky A. Ocaya, Deogracias Espiritu, and Narciso B. Nazareno were all
arrested without a warrant for their alleged membership in the
Communist Party of the Philippines/New People's Army.130
During the pendency of the habeas corpus proceedings, however,
Informations against them were filed before this court. The filing of the
Informations, according to this court, rendered the Petitions for habeas
corpus moot and academic, thus:131 ChanRobles Vi rtualaw lib rary
It is to be noted that, in all the petitions here considered, criminal
charges have been filed in the proper courts against the petitioners.
The rule is, that if a person alleged to be restrained of his liberty is in
the custody of an officer under process issued by a court or judge, and
that the court or judge had jurisdiction to issue the process or make
the order, or if such person is charged before any court, the writ of
habeas corpus will not be allowed.132 (Emphasis in the original)
In such cases, instead of availing themselves of the extraordinary
remedy of a petition for habeas corpus, persons restrained under a
lawful process or order of the court must pursue the orderly course of
trial and exhaust the usual remedies.133 This ordinary remedy is to file
a motion to quash the information or the warrant of arrest.134
At any time before a plea is entered,135 the accused may file a motion
to quash complaint or information based on any of the grounds
enumerated in Rule 117, Section 3 of the Rules of Court: chan roblesv irtuallawl ib rary
SEC. 3. Grounds.—The accused may move to quash the complaint or
information on any of the following grounds: c hanro blesvi rt uallawl ibra ry
(a) That the facts charged do not constitute an
offense;
(b)That the court trying the case has no
jurisdiction over the offense charged;
(c) That the court trying the case has no IV

jurisdiction over the person of the accused;. However, Ilagan142 and Umil do not apply to this case. Petitioner Salibo
(d)That the officer who filed the information had was not arrested by virtue of any warrant charging him of an offense.
He was not restrained under a lawful process or an order of a court.
no authority to do so; He was illegally deprived of his liberty, and, therefore, correctly availed
(e) That it does not conform substantially to the himself of a Petition for Habeas Corpus.
prescribed form;
The Information and Alias Warrant of Arrest issued by the Regional
(f) That more than one offense is charged except Trial Court, Branch 221, Quezon City in People of the Philippines v.
when a single punishment for various offenses Datu Andal Ampatuan, Jr., et al. charged and accused Butukan S.
Malang, not Datukan Malang Salibo, of 57 counts of murder in
is prescribed by law; connection with the Maguindanao Massacre.
(g)That the criminal action or liability has been
Furthermore, petitioner Salibo was not validly arrested without a
extinguished; warrant. Rule 113, Section 5 of the Rules of Court enumerates the
(h)That it contains averments which, if true, instances when a warrantless arrest may be made: chanroblesv irtuallaw lib rary

would constitute a legal excuse or justification; SEC. 5. Arrest without warrant; when lawful.—A peace officer or a
private person may, without a warrant, arrest a person:
and
chanroblesvi rtual lawlib rary

(a)When, in his presence, the person to be

(i) That the accused has been previously
arrested has committed, is actually
convicted or acquitted of the offense charged,
committing, or is attempting to commit an
or the case against him was dismissed or
offense;
otherwise terminated without his express
(b)When an offense has just been committed and
consent.
In filing a motion to quash, the accused "assails the validity of a
he has probable cause to believe based on-
criminal complaint or information filed against him [or her] for personal knowledge of facts or circumstances
insufficiency on its face in point of law, or for defects which are that the person to be arrested has committed
apparent in the face of the information."136 If the accused avails
himself or herself of a motion to quash, the accused "hypothetical[ly] it;
admits the facts alleged in the information."137 "Evidence aliunde or (c) When the person to be arrested is a prisoner
matters extrinsic from the information are not to be considered."138
who has escaped from a penal establishment
ChanRoble sVirtualawl ibra ry

"If the motion to quash is based on an alleged defect of the complaint or place where he is serving final judgment or
or information which can be cured by amendment, the court shall
order [the] amendment [of the complaint or information]."139 If the
is temporarily confined while his case is
motion to quash is based on the ground that the facts alleged in the pending, or has escaped while being
complaint or information do not constitute an offense, the trial court transferred from one confinement to another.
shall give the prosecution "an opportunity to correct the defect by In cases falling under paragraphs (a) and (b) above, the person
amendment."140 If after amendment, the complaint or information still arrested without a warrant shall be forthwith delivered to the nearest
suffers from the same defect, the trial court shall quash the complaint police station or jail and shall be proceeded against in accordance with
or information.141 section 7 of Rule 112.
It is undisputed that petitioner Salibo presented himself before the
Datu Hofer Police Station to clear his name and to prove that he is not
the accused Butukan S. Malang. When petitioner Salibo was in the
presence of the police officers of Datu Hofer Police Station, he was
neither committing nor attempting to commit an offense. The police
officers had no personal knowledge of any offense that he might have
committed. Petitioner Salibo was also not an escapee prisoner.
The police officers, therefore, had no probable cause to arrest
petitioner Salibo without a warrant. They deprived him of his right to
liberty without due process of law, for which a petition for habeas
corpus may be issued.
The arrest of petitioner Salibo is similar to the arrest of Atty. Risonar in
the "disturbing"143 case of Ilagan.144 Like petitioner Salibo, Atty.
Risonar went to Camp Catitipan to verify and contest any arrest papers
against him. Then and there, Atty. Risonar was arrested without a
warrant. In his dissenting opinion in Ilagan,145 Justice Claudio
Teehankee stated that the lack of preliminary investigation deprived
Atty. Risonar, together with Attys. Ilagan and Arellano, of his right to
due process of law — a ground for the grant of a petition for habeas
corpus:146
The majority decision holds that the filing of the information without
preliminary investigation falls within the exceptions of Rule 112, sec. 7
and Rule 113, sec. 5 of the 1985 Rules on Criminal Procedure. Again,
this is erroneous premise. The fiscal misinvoked and misapplied the
cited rules. The petitioners are not persons "lawfully arrested without a
warrant." The fiscal could not rely on the stale and inoperative PDA of
January 25, 1985. Otherwise, the rules would be rendered nugatory, if
all that was needed was to get a PDA and then serve it at one's whim
and caprice when the very issuance of the PDA is premised on its
imperative urgency and necessity as declared by the President himself.
The majority decision then relies on Rule 113, Sec. 5 which authorizes
arrests without warrant by a citizen or by a police officer who
witnessed the arrestee in flagrante delicto, viz. in the act of
committing the offense. Quite obviously, the arrest was not a citizen's
arrest nor were they caught in flagrante delicto violating the law. In
fact, this Court in promulgating the 1985 Rules on Criminal Procedure
have tightened and made the rules more strict. Thus, the Rule now
requires that an offense "has in fact just been committed." This
connotes immediacy in point of time and excludes cases under the old
rule where an offense "has in fact been committed" no matter how
long ago. Similarly, the arrestor must have "personal knowledge of
factsindicating that the [arrestee] has committed it" (instead of just
"reasonable ground to believe that the [arrestee] has committed it"
under the old rule). Clearly, then, an information could not just be filed
against the petitioners without due process and preliminary
investigation.147 (Emphasis in the original, citation omitted)
Petitioner Salibo's proper remedy is not a Motion to Quash Information
and/or Warrant of Arrest. None of the grounds for filing a Motion to
Quash Information apply to him. Even if petitioner Salibo filed a Motion
to Quash, the defect he alleged could not have been cured by mere
amendment of the Information and/or Warrant of Arrest. Changing the
name of the accused appearing in the Information and/or Warrant of
Arrest from "Butukan S. Malang" to "Datukan Malang Salibo" will not
cure the lack of preliminary investigation in this case.
A motion for reinvestigation will' not cure the defect of lack of
preliminary investigation. The Information and Alias Warrant of Arrest
were issued on the premise that Butukan S. Malang and Datukan
Malang Salibo are the same person. There is evidence, however, that
the person detained by virtue of these processes is not Butukan S.
Malang but another person named Datukan Malang Salibo.
Petitioner Salibo presented in evidence his Philippine passport,148 his
identification card from the Office on Muslim Affairs,149 his Tax
Identification Number card,150 and clearance from the National Bureau
of Investigation151 all bearing his picture and indicating the name
"Datukan Malang Salibo." None of these government-issued
documents showed that petitioner Salibo used the alias "Butukan S.
Malang."
Moreover, there is evidence that petitioner Salibo was not in the
country on November 23, 2009 when the Maguindanao Massacre
occurred.
A Certification152 from the Bureau of Immigration states that petitioner
Salibo departed for Saudi Arabia on November 7, 2009 and arrived in
the Philippines only on December 20, 2009. A Certification153 from
Saudi Arabian Airlines attests that petitioner Salibo departed for Saudi
Arabia on board Saudi Arabian Airlines Flight SV869 on November 7,
2009 and that he arrived in the Philippines on board Saudi Arabian
Airlines SV870 on December 20, 2009. cralawlawlib ra ry
V
People of the Philippines v. Datu Andal Ampatuan, Jr., et al. is
probably the most complex case pending in our courts. The case
involves 57 victims154 and 197 accused, two (2) of which have become
state witnesses.155 As of November 23, 2014, 111 of the accused have
been arraigned, and 70 have filed petitions for bail of which 42 have
already been resolved.156 To require petitioner Salibo to undergo trial
would be to further illegally deprive him of his liberty. Urgency dictates
that we resolve his Petition in his favor given the strong evidence that
he is not Butukan S. Malang.

In ordering petitioner Salibo's release, we are prejudging neither his

guilt nor his innocence. However, between a citizen who has shown
that he was illegally deprived of his liberty without due process of law
and the government that has all the "manpower and the resources at
[its] command"157 to properly indict a citizen but failed to do so, we
will rule in favor of the citizen.

Should the government choose to prosecute petitioner Salibo, it must

pursue the proper remedies against him as provided in our Rules. Until
then, we rule that petitioner Salibo is illegally deprived of his liberty.
His Petition for Habeas Corpus must be granted. cralawre d

WHEREFORE, the Petition for Review on Certiorari is GRANTED. The

Court of Appeals Decision dated April 19, 2011 is REVERSED and SET
ASIDE. Respondent Warden, Quezon City Jail Annex, Bureau of Jail
Management and Penology Building, Camp Bagong Diwa, Taguig,
is ORDERED to immediately RELEASE petitioner Datukan Maiang
Salibo from detention.

The Letter of the Court of Appeals elevating the records of the case to
this court is hereby NOTED.

SO ORDERED. chanroblesvi rtua llawli bra ry

 Republic of the Philippines While victims of enforced disappearances are separated from the rest
Supreme Court
Manila of the world behind secret walls, they are not separated from the
constitutional protection of their basic rights. The constitution is an
EN BANC
overarching sky that covers all in its protection. The case at bar
involves the rights to life, liberty and security in the first petition for
THE SECRETARY OF G.R. No. 180906 a writ of amparo filed before this Court.
NATIONAL DEFENSE, THE
CHIEF OF STAFF, ARMED Present: This is an appeal via Petition for Review under Rule 45 of the Rules
FORCES OF
THE PHILIPPINES, PUNO, C.J., of Court in relation to Section 19[1] of the Rule on the Writ
Petitioners, QUISUMBING, of Amparo, seeking to reverse and set aside on both questions of fact
YNARES-SANTIAGO,
and law, the Decision promulgated by the Court of Appeals in C.A.
CARPIO,
AUSTRIA-MARTINEZ, G.R. AMPARO No. 00001, entitled Raymond Manalo and Reynaldo
CORONA, Manalo, petitioners, versus The Secretary of National Defense, the
CARPIO MORALES,
AZCUNA, Chief of Staff, Armed Forces of the Philippines, respondents.
- versus - TINGA,
CHICO-NAZARIO, This case was originally a Petition for Prohibition, Injunction, and
VELASCO, JR.,
NACHURA, Temporary Restraining Order (TRO)[2] filed before this Court by
REYES, herein respondents (therein petitioners) on August 23, 2007 to stop
LEONARDO-DE CASTRO,
herein petitioners (therein respondents) and/or their officers and
and
RAYMOND MANALO and BRION, JJ. agents from depriving them of their right to liberty and other basic
REYNALDO MANALO, rights. Therein petitioners also sought ancillary remedies, Protective
Respondents. Promulgated:
October 7, 2008 Custody Orders, Appointment of Commissioner, Inspection and
x- - -- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Access Orders, and all other legal and equitable reliefs under Article
- - - - -x
VIII, Section 5(5)[3] of the 1987 Constitution and Rule 135, Section 6
DECISION of the Rules of Court. In our Resolution dated August 24, 2007, we
(1) ordered the Secretary of the Department of National Defense and
PUNO, C.J.: the Chief of Staff of the AFP, their agents, representatives, or
persons acting in their stead, including but not limited to the Citizens
Armed Forces Geographical Unit (CAFGU) to submit their
Comment; and (2) enjoined them from causing the arrest of therein
petitioners, or otherwise restricting, curtailing, abridging, or
depriving them of their right to life, liberty, and other basic rights as
guaranteed under Article III, Section 1[4] of the 1987 Constitution.[5]
While the August 23, 2007 Petition was pending, the Rule on the
Writ of Amparo took effect on October 24, 2007. Forthwith, therein
decision in favor of therein petitioners (herein respondents), the
petitioners filed a Manifestation and Omnibus Motion to Treat
dispositive portion of which reads, viz:
Existing Petition as Amparo Petition, to Admit Supporting
Affidavits, and to Grant Interim and Final Amparo Reliefs. They
prayed that: (1) the petition be considered a Petition for the Writ
of Amparo under Sec. 26[6] of the Amparo Rule; (2) the Court issue
the writ commanding therein respondents to make a verified return
within the period provided by law and containing the specific matter
required by law; (3) they be granted the interim reliefs allowed by
the Amparo Rule and all other reliefs prayed for in the petition but
not covered by the Amparo Rule; (4) the Court, after hearing, render
judgment as required in Sec. 18[7] of the Amparo Rule; and (5) all
other just and equitable reliefs.[8]
On October 25, 2007, the Court resolved to treat the August 23, 2007
Petition as a petition under the Amparo Rule and further
resolved, viz:
WHEREFORE, let a WRIT OF AMPARO be issued
to respondents requiring them to file with the CA
(Court of Appeals) a verified written return within
five (5) working days from service of the writ. We
REMAND the petition to the CA and designate the
Division of Associate Justice Lucas P. Bersamin to
conduct the summary hearing on the petition
on November 8, 2007 at 2:00 p.m. and decide the
petition in accordance with the Rule on the Writ of
Amparo.[9]
On December 26, 2007, the Court of Appeals rendered a
ACCORDINGLY, the PRIVILEGE OF THE
WRIT OF AMPARO is GRANTED.
The respondents SECRETARY OF NATIONAL
DEFENSE and AFP CHIEF OF STAFF are hereby
REQUIRED:
1. To furnish to the petitioners and to this Court
within five days from notice of this decision all
official and unofficial reports of the investigation
undertaken in connection with their case, except
those already on file herein;
2. To confirm in writing the present places of
official assignment of M/Sgt Hilario aka Rollie
Castillo and Donald Caigas within five days
from notice of this decision.
3. To cause to be produced to this Court all
medical reports, records and charts, reports of
any treatment given or recommended and
medicines prescribed, if any, to the petitioners,
 to include a list of medical and (sic) personnel
(military and civilian) who attended to them
from February 14, 2006 until August 12, 2007
within five days from notice of this decision.
The compliance with this decision shall be made
under the signature and oath of respondent AFP
Chief of Staff or his duly authorized deputy, the
latters authority to be express and made apparent on
the face of the sworn compliance with this directive.
SO ORDERED.[10]
Hence, this appeal. In resolving this appeal, we first unfurl
the facts as alleged by herein respondents:
Respondent Raymond Manalo recounted that about one or two
weeks before February 14, 2006, several uniformed and armed
soldiers and members of the CAFGU summoned to a meeting all the
residents of their barangay in San Idelfonso, Bulacan. Respondents
were not able to attend as they were not informed of the gathering,
but Raymond saw some of the soldiers when he passed by
the barangay hall.[11]
On February 14, 2006, Raymond was sleeping in their house in
Buhol na Mangga, San Ildefonso, Bulacan. At past noon, several
armed soldiers wearing white shirts, fatigue pants and army boots,
entered their house and roused him. They asked him if he was
Bestre, but his mother, Ester Manalo, replied that he was Raymond,
not Bestre. The armed soldier slapped him on both cheeks and
nudged him in the stomach. He was then handcuffed, brought to the
rear of his house, and forced to the ground face down. He was kicked
on the hip, ordered to stand and face up to the light, then forcibly
brought near the road. He told his mother to follow him, but three
soldiers stopped her and told her to stay.[12]
Among the men who came to take him, Raymond recognized
brothers Michael de la Cruz, Madning de la Cruz, Puti de la Cruz,
and Pula de la Cruz, who all acted as lookout.They were all members
of the CAFGU and residing in Manuzon, San Ildefonso, Bulacan. He
also recognized brothers Randy Mendoza and Rudy Mendoza, also
members of the CAFGU. While he was being forcibly taken, he also
saw outside of his house two barangay councilors, Pablo Cunanan
and Bernardo Lingasa, with some soldiers and armed men.[13]
The men forced Raymond into a white L300 van. Once inside, he
was blindfolded. Before being blindfolded, he saw the faces of the
soldiers who took him. Later, in his 18 months of captivity, he
learned their names. The one who drove the van was Rizal Hilario
alias Rollie Castillo, whom he estimated was about 40 years of age
or older. The leader of the team who entered his house and abducted
him was Ganata. He was tall, thin, curly-haired and a bit
old. Another one of his abductors was George who was tall, thin,
white-skinned and about 30 years old.[14]
The van drove off, then came to a stop. A person was brought inside
the van and made to sit beside Raymond. Both of them were beaten
up. On the road, he recognized the voice of the person beside him as
his brother Reynaldos. The van stopped several times until they up. When the guards got drunk, they also manhandled
finally arrived at a house. Raymond and Reynaldo were each brought respondents. During this time, Raymond was fed only at night,
to a different room. With the doors of their rooms left open, usually with left-over and rotten food.[17]
Raymond saw several soldiers continuously hitting his brother
On the third week of respondents detention, two men arrived while
Reynaldo on the head and other parts of his body with the butt of
Raymond was sleeping and beat him up. They doused him with urine
their guns for about 15 minutes. After which, Reynaldo was brought
and hot water, hit his stomach with a piece of wood, slapped his
to his (Raymonds) room and it was his (Raymonds) turn to be beaten
forehead twice with a .45 pistol, punched him on the mouth, and
up in the other room. The soldiers asked him if he was a member of
burnt some parts of his body with a burning wood. When he could no
the New Peoples Army. Each time he said he was not, he was hit
longer endure the torture and could hardly breathe, they
with the butt of their guns. He was questioned where his comrades
stopped. They then subjected Reynaldo to the same ordeal in another
were, how many soldiers he had killed, and how many NPA
room. Before their torturers left, they warned Raymond that they
members he had helped. Each time he answered none, they hit
would come back the next day and kill him.[18]
him.[15]

The following night, Raymond attempted to escape. He waited for

In the next days, Raymonds interrogators appeared to be high
the guards to get drunk, then made noise with the chains put on him
officials as the soldiers who beat him up would salute them, call
to see if they were still awake. When none of them came to check on
them sir, and treat them with respect. He was in blindfolds when
him, he managed to free his hand from the chains and jumped
interrogated by the high officials, but he saw their faces when they
through the window. He passed through a helipad and firing range
arrived and before the blindfold was put on. He noticed that the
and stopped near a fishpond where he used stones to break his
uniform of the high officials was different from those of the other
chains. After walking through a forested area, he came near a river
soldiers. One of those officials was tall and thin, wore white pants,
and an Iglesia ni Kristo church. He talked to some women who were
tie, and leather shoes, instead of combat boots. He spoke in Tagalog
doing the laundry, asked where he was and the road to Gapan. He
and knew much about his parents and family, and a habeas
was told that he was in Fort Magsaysay.[19] He reached the highway,
corpus case filed in connection with the respondents
but some soldiers spotted him, forcing him to run away. The soldiers
abduction.[16] While these officials interrogated him, Raymond was
chased him and caught up with him. They brought him to another
not manhandled. But once they had left, the soldier guards beat him
place near the entrance of what he saw was Fort Magsaysay. He was
boxed repeatedly, kicked, and hit with chains until his back
bled. They poured gasoline on him. Then a so-called Mam or Madam
suddenly called, saying that she wanted to see Raymond before he
was killed. The soldiers ceased the torture and he was returned
inside Fort Magsaysay where Reynaldo was detained.[20]
For some weeks, the respondents had a respite from all the
torture. Their wounds were treated. When the wounds were almost
healed, the torture resumed, particularly when respondents guards
got drunk.[21]
Raymond recalled that sometime in April until May 2006, he was
detained in a room enclosed by steel bars. He stayed all the time in
that small room measuring 1 x 2 meters, and did everything there,
including urinating, removing his bowels, bathing, eating and
sleeping. He counted that eighteen people[22] had been detained in
that bartolina, including his brother Reynaldo and himself.[23]
For about three and a half months, the respondents were detained
in Fort Magsaysay. They were kept in a small house with two rooms
and a kitchen. One room was made into the bartolina. The house was
near the firing range, helipad and mango trees. At dawn, soldiers
marched by their house. They were also sometimes detained in what
he only knew as the DTU.[24]
At the DTU, a male doctor came to examine respondents. He
checked their body and eyes, took their urine samples and marked
them. When asked how they were feeling, they replied that they had
a hard time urinating, their stomachs were aching, and they felt other
pains in their body. The next day, two ladies in white arrived. They
also examined respondents and gave them medicines, including
orasol, amoxicillin and mefenamic acid. They brought with them the
results of respondents urine test and advised them to drink plenty of
water and take their medicine. The two ladies returned a few more
times. Thereafter, medicines were sent through the master of the
DTU, Master Del Rosario alias Carinyoso at Puti. Respondents were
kept in the DTU for about two weeks. While there, he met a soldier
named Efren who said that Gen. Palparan ordered him to monitor
and take care of them.[25]
One day, Rizal Hilario fetched respondents in a Revo vehicle. They,
along with Efren and several other armed men wearing fatigue suits,
went to a detachment in Pinaud, San Ildefonso,
Bulacan. Respondents were detained for one or two weeks in a big
two-storey house. Hilario and Efren stayed with them. While there,
Raymond was beaten up by Hilarios men.[26]
From Pinaud, Hilario and Efren brought respondents to Sapang, San
Miguel, Bulacan on board the Revo. They were detained in a big
unfinished house inside the compound of Kapitan for about three
months. When they arrived in Sapang, Gen. Palparan talked to
them. They were brought out of the house to a basketball court in the
center of the compound and made to sit. Gen. Palparan was already
waiting, seated. He was about two arms length away from
respondents. He began by asking if respondents felt well already, to
which Raymond replied in the affirmative. He asked Raymond if he
knew him. Raymond lied that he did not. He then asked Raymond if
he would be scared if he were made to face Gen. Palparan. Raymond
responded that he would not be because he did not believe that Gen.
Palparan was an evil man.[27]
Raymond narrated his conversation with Gen. Palparan in his
affidavit, viz:
Tinanong ako ni Gen. Palparan, Ngayon na kaharap
mo na ako, di ka ba natatakot sa akin?
Sumagot akong, Siyempre po, natatakot din
Sabi ni Gen. Palparan: Sige, bibigyan ko kayo ng
isang pagkakataon na mabuhay, bastat sundin nyo
ang lahat ng sasabihin ko sabihin mo sa magulang
mo huwag pumunta sa mga rali, sa hearing, sa
Karapatan at sa Human Right dahil niloloko lang
kayo. Sabihin sa magulang at lahat sa bahay na
huwag paloko doon. Tulungan kami na kausapin si
Bestre na sumuko na sa gobyerno.[28]
Respondents agreed to do as Gen. Palparan told them as
they felt they could not do otherwise. At about 3:00 in the morning,
Hilario, Efren and the formers men - the same group that abducted
them - brought them to their parents house. Raymond was shown to
his parents while Reynaldo stayed in the Revo because he still could
not walk. In the presence of Hilario and other soldiers, Raymond
relayed to his parents what Gen. Palparan told him. As they were
afraid, Raymonds parents acceded. Hilario threatened Raymonds
parents that if they continued to join human rights rallies, they would
never see their children again. The respondents were then brought
back to Sapang.[29]
When respondents arrived back in Sapang, Gen. Palparan
was about to leave. He was talking with the four masters who were
there: Arman, Ganata, Hilario and Cabalse.[30] When Gen. Palparan
saw Raymond, he called for him. He was in a big white
vehicle. Raymond stood outside the vehicle as Gen. Palparan told
him to gain back his strength and be healthy and to take the medicine
he left for him and Reynaldo. He said the medicine was expensive at
Php35.00 each, and would make them strong. He also said that they
should prove that they are on the side of the military and warned that
they would not be given another chance.[31] During his testimony,
Raymond identified Gen. Palparan by his picture.[32]
One of the soldiers named Arman made Raymond take the medicine
left by Gen. Palparan. The medicine, named Alive, was green and
yellow. Raymond and Reynaldo were each given a box of this
medicine and instructed to take one capsule a day. Arman checked if
they were getting their dose of the medicine. The Alive made them
sleep each time they took it, and they felt heavy upon waking up.[33]
After a few days, Hilario arrived again. He took Reynaldo and left
Raymond at Sapang. Arman instructed Raymond that while in
Sapang, he should introduce himself as Oscar, a military trainee from
Sariaya, Quezon, assigned in Bulacan. While there, he saw again
Ganata, one of the men who abducted him from his house, and got
acquainted with other military men and civilians.[34]
After about three months in Sapang, Raymond was brought
to Camp Tecson under the 24th Infantry Battalion. He was fetched by
three unidentified men in a big white vehicle.Efren went with
them. Raymond was then blindfolded. After a 30-minute ride, his
blindfold was removed. Chains were put on him and he was kept in
the barracks.[35]
The next day, Raymonds chains were removed and he was ordered to
clean outside the barracks. It was then he learned that he was in a
detachment of the Rangers. There were many soldiers, hundreds of
them were training. He was also ordered to clean inside the
barracks. In one of the rooms therein, he met Sherlyn Cadapan from
Laguna. She told him that she was a student of the University of
the Philippines and was abducted in Hagonoy, Bulacan. She confided
that she had been subjected to severe torture and raped. She was
crying and longing to go home and be with her parents. During the
day, her chains were removed and she was made to do the
[36]
laundry.
After a week, Reynaldo was also brought to Camp Tecson. Two days
from his arrival, two other captives, Karen Empeo and Manuel
Merino, arrived. Karen and Manuel were put in the room with Allan
whose name they later came to know as Donald Caigas, called
master or commander by his men in the 24th Infantry
Battalion. Raymond and Reynaldo were put in the adjoining
room. At times, Raymond and Reynaldo were threatened, and
Reynaldo was beaten up. In the daytime, their chains were removed,
but were put back on at night. They were threatened that if they
escaped, their families would all be killed.[37]
On or about October 6, 2006, Hilario arrived in Camp Tecson. He
told the detainees that they should be thankful they were still alive
and should continue along their renewed life.Before the hearing of
November 6 or 8, 2006, respondents were brought to their parents to
instruct them not to attend the hearing. However, their parents had
already left for Manila. Respondents were brought back
to Camp Tecson. They stayed in that camp from September 2006 to
November 2006, and Raymond was instructed to continue using the
name Oscar and holding himself out as a military trainee. He got
acquainted with soldiers of the 24th Infantry Battalion whose names
and descriptions he stated in his affidavit.[38]
On November 22, 2006, respondents, along with Sherlyn, Karen, and
Manuel, were transferred to a camp of the 24th Infantry Battalion in
Limay, Bataan. There were many huts in the camp. They stayed in
that camp until May 8, 2007. Some soldiers of the battalion stayed
with them. While there, battalion soldiers whom Raymond knew as
Mar and Billy beat him up and hit him in the stomach with their
guns. Sherlyn and Karen also suffered enormous torture in the
camp. They were all made to clean, cook, and help in raising
livestock.[39]
Raymond recalled that when Operation Lubog was launched, Caigas
and some other soldiers brought him and Manuel with them to take
and kill all sympathizers of the NPA.They were brought to Barangay
Bayan-bayanan, Bataan where he witnessed the killing of an old man
doing kaingin. The soldiers said he was killed because he had a son
who was a member of the NPA and he coddled NPA members in his
house.[40] Another time, in another Operation Lubog, Raymond was
brought to Barangay Orion in a house where NPA men stayed. When
they arrived, only the old man of the house who was sick was
there. They spared him and killed only his son right before
Raymonds eyes.[41]
From Limay, Raymond, Reynaldo, Sherlyn, Karen, and Manuel were
transferred to Zambales, in a safehouse near the sea. Caigas and
some of his men stayed with them. A retired army soldier was in
charge of the house. Like in Limay, the five detainees were made to
do errands and chores. They stayed in Zambales from May 8 or 9,
2007 until June 2007.[42]
In June 2007, Caigas brought the five back to the camp in
Limay. Raymond, Reynaldo, and Manuel were tasked to bring food
to detainees brought to the camp. Raymond narrated what he
witnessed and experienced in the camp, viz:
Isang gabi, sinabihan kami ni Donald (Caigas) na
matulog na kami. Nakita ko si Donald na inaayos ang
kanyang baril, at nilagyan ng silenser. Sabi ni Donald
na kung mayroon man kaming makita o marinig,
walang nangyari. Kinaumagahan, nakita naming ang
bangkay ng isa sa mga bihag na dinala sa
kampo. Mayroong binuhos sa kanyang katawan at
itoy sinunog. Masansang ang amoy.
Makaraan ang isang lingo, dalawang bangkay and
ibinaba ng mga unipormadong sundalo mula sa 6 x 6
na trak at dinala sa loob ng kampo. May naiwang mga
bakas ng dugo habang hinihila nila ang mga
bangkay. Naamoy ko iyon nang nililinis ang bakas.
Makalipas ang isa o dalawang lingo, may dinukot sila
na dalawang Ita. Itinali sila sa labas ng kubo,
piniringan, ikinadena at labis na binugbog. Nakita
kong nakatakas ang isa sa kanila at binaril siya ng
sundalo ngunit hindi siya tinamaan. Iyong gabi nakita
kong pinatay nila iyong isang Ita malapit sa Post 3;
sinilaban ang bangkay at ibinaon ito.
Pagkalipas ng halos 1 buwan, 2 pang bangkay ang
dinala sa kampo. Ibinaba ang mga bangkay mula sa
pick up trak, dinala ang mga bangkay sa labas ng
bakod. Kinaumagahan nakita kong mayroong
sinilaban, at napakamasangsang ang amoy.
May nakilala rin akong 1 retiradong koronel at 1
kasama niya. Pinakain ko sila. Sabi nila sa akin na
 dinukot sila sa Bataan. Iyong gabi, inilabas sila at
hindi ko na sila nakita.
xxx xxx xxx
Ikinadena kami ng 3 araw. Sa ikatlong araw, nilabas
ni Lat si Manuel dahil kakausapin daw siya ni Gen.
Palparan. Nakapiring si Manuel, wala siyang suot
pang-itaas, pinosasan. Nilakasan ng mga sundalo
ang tunog na galing sa istiryo ng sasakyan. Di
nagtagal, narinig ko ang hiyaw o ungol ni
Manuel. Sumilip ako sa isang haligi ng kamalig at
nakita kong sinisilaban si Manuel.
Kinaumagahan, naka-kadena pa kami. Tinanggal
ang mga kadena mga 3 o 4 na araw
pagkalipas. Sinabi sa amin na kaya kami nakakadena
ay dahil pinagdedesisyunan pa ng mga sundalo kung
papatayin kami o hindi.
Tinanggal ang aming kadena. Kinausap kami ni
Donald. Tinanong kami kung ano ang sabi ni
Manuel sa amin. Sabi ni Donald huwag na raw
naming hanapin ang dalawang babae at si Manuel,
dahil magkakasama na yung tatlo. Sabi pa ni Donald
na kami ni Reynaldo ay magbagong buhay at ituloy
namin ni Reynaldo ang trabaho. Sa gabi, hindi na
kami kinakadena.[43]
On or about June 13, 2007, Raymond and Reynaldo were
brought to Pangasinan, ostensibly to raise poultry for Donald
(Caigas). Caigas told respondents to also farm his land, in exchange
for which, he would take care of the food of their family. They were
also told that they could farm a small plot adjoining his land and sell
their produce. They were no longer put in chains and were instructed
to use the names Rommel (for Raymond) and Rod (for Reynaldo)
and represent themselves as cousins from Rizal, Laguna.[44]
Respondents started to plan their escape. They could see the highway
from where they stayed. They helped farm adjoining lands for which
they were paid Php200.00 or Php400.00 and they saved their
earnings. When they had saved Php1,000.00 each, Raymond asked a
neighbor how he could get a cellular phone as he wanted to exchange
text messages with a girl who lived nearby. A phone was pawned to
him, but he kept it first and did not use it. They earned some more
until they had saved Php1,400.00 between them.
There were four houses in the compound. Raymond and Reynaldo
were housed in one of them while their guards lived in the other
three. Caigas entrusted respondents to Nonong, the head of the
guards. Respondents house did not have electricity. They used a
lamp. There was no television, but they had a radio. In the evening
of August 13, 2007, Nonong and his cohorts had a drinking
session. At about 1:00 a.m., Raymond turned up the volume of the
radio. When none of the guards awoke and took notice, Raymond
and Reynaldo proceeded towards the highway, leaving behind their
sleeping guards and barking dogs. They boarded a bus bound
for Manila and were thus freed from captivity.[45]
Reynaldo also executed an affidavit affirming the contents of
Raymonds affidavit insofar as they related to matters they witnessed
together. Reynaldo added that when they were taken from their
house on February 14, 2006, he saw the faces of his abductors before
he was blindfolded with his shirt. He also named the soldiers he got
acquainted with in the 18 months he was detained. When Raymond
attempted to escape from Fort Magsaysay, Reynaldo was severely
beaten up and told that they were indeed members of the NPA
because Raymond escaped. With a .45 caliber pistol, Reynaldo was
hit on the back and punched in the face until he could no longer bear
the pain.
At one point during their detention, when Raymond and Reynaldo
were in Sapang, Reynaldo was separated from Raymond and brought
to Pinaud by Rizal Hilario. He was kept in the house of Kapitan, a
friend of Hilario, in a mountainous area. He was instructed to use the
name Rodel and to represent himself as a military trainee from
Meycauayan, Bulacan. Sometimes, Hilario brought along Reynaldo
in his trips. One time, he was brought to a market in San Jose, del
Monte, Bulacan and made to wait in the vehicle while Hilario was
buying. He was also brought to Tondo, Manila where Hilario
delivered boxes of Alive in different houses. In these trips, Hilario
drove a black and red vehicle.Reynaldo was blindfolded while still in
Bulacan, but allowed to remove the blindfold once outside the
province. In one of their trips, they passed
by Fort Magsaysay and CampTecson where Reynaldo saw the sign
board, Welcome to Camp Tecson.[46]
Dr. Benito Molino, M.D., corroborated the accounts of respondents
Raymond and Reynaldo Manalo. Dr. Molino specialized in forensic
medicine and was connected with the Medical Action Group, an
organization handling cases of human rights violations, particularly
cases where torture was involved. He was requested by an NGO to
conduct medical examinations on the respondents after their
escape. He first asked them about their ordeal, then proceeded with
the physical examination. His findings showed that the scars borne
by respondents were consistent with their account of physical
injuries inflicted upon them. The examination was conducted
on August 15, 2007, two days after respondents escape, and the
results thereof were reduced into writing. Dr. Molino took
photographs of the scars. He testified that he followed the Istanbul
Protocol in conducting the examination.[47]
Petitioners dispute respondents account of their alleged abduction
and torture. In compliance with the October 25, 2007 Resolution of
the Court, they filed a Return of the Writ of Amparo admitting the
abduction but denying any involvement therein, viz:
13. Petitioners Raymond and Reynaldo Manalo were
not at any time arrested, forcibly abducted, detained,
held incommunicado, disappeared or under the
custody by the military. This is a settled issue laid to
rest in the habeas corpus case filed in their behalf by
petitioners parents before the Court of Appeals in
C.A.-G.R. SP No. 94431 against M/Sgt. Rizal
Hilario aka Rollie Castillo, as head of the
24th Infantry Battalion; Maj. Gen. Jovito Palparan, as
 Commander of the 7th Infantry Division in Luzon;
Lt. Gen. Hermogenes Esperon, in his capacity as the
Commanding General of the Philippine Army, and
members of the Citizens Armed Forces
Geographical Unit (CAFGU), namely: Michael dela
Cruz, Puti dela Cruz, Madning dela Cruz, Pula dela
Cruz, Randy Mendoza and Rudy Mendoza. The
respondents therein submitted a return of the writ On
July 4, 2006, the Court of Appeals dropped as party
respondents Lt. Gen. Hermogenes C. Esperon, Jr.,
then Commanding General of the Philippine Army,
and on September 19, 2006, Maj. (sic) Jovito S.
Palparan, then Commanding General, 7th Infantry
Division, Philippine Army, stationed at Fort
Magsaysay, Palayan City, Nueva Ecija, upon a
finding that no evidence was introduced to establish
their personal involvement in the taking of the
Manalo brothers. In a Decision dated June 27, 2007,
it exonerated M/Sgt. Rizal Hilario aka Rollie
Castillo for lack of evidence establishing his
involvement in any capacity in the disappearance of
the Manalo brothers, although it held that the
remaining respondents were illegally detaining the
Manalo brothers and ordered them to release the
latter.[48]
Attached to the Return of the Writ was the affidavit of
therein respondent (herein petitioner) Secretary of National Defense,
which attested that he assumed office only on August 8, 2007 and
was thus unaware of the Manalo brothers alleged abduction. He also
claimed that:
7. The Secretary of National Defense does not
engage in actual military directional operations,
neither does he undertake command directions of
the AFP units in the field, nor in any way
micromanage the AFP operations. The principal
responsibility of the Secretary of National
Defense is focused in providing strategic policy
direction to the Department (bureaus and
agencies) including the Armed Forces of
the Philippines;
8. In connection with the Writ of Amparo issued
by the Honorable Supreme Court in this case, I
have directed the Chief of Staff, AFP to institute
immediate action in compliance with Section
9(d) of the Amparo Rule and to submit report of
such compliance Likewise, in a Memorandum
Directive also dated October 31, 2007, I have
issued a policy directive addressed to the Chief
of Staff, AFP that the AFP should adopt the
following rules of action in the event the Writ
of Amparo is issued by a competent court against
any members of the AFP:
(1) to verify the identity of the aggrieved party;
(2) to recover and preserve evidence related to
the death or disappearance of the person
identified in the petition which may aid in
the prosecution of the person or persons
responsible;
(3) to identify witnesses and obtain statements
from them concerning the death or
disappearance;
(4) to determine the cause, manner, location
and time of death or disappearance as well
 as any pattern or practice that may have
brought about the death or disappearance;
(5) to identify and apprehend the person or
persons involved in the death or
disappearance; and
(6) to bring the suspected offenders before a
competent court.[49]
Therein respondent AFP Chief of Staff also submitted his
own affidavit, attached to the Return of the Writ, attesting that he
received the above directive of therein respondent Secretary of
National Defense and that acting on this directive, he did the
following:
3.1. As currently designated Chief of Staff, Armed
Forces of the Philippines (AFP), I have caused to be
issued directive to the units of the AFP for the
purpose of establishing the circumstances of the
alleged disappearance and the recent reappearance of
the petitioners.
3.2. I have caused the immediate investigation and
submission of the result thereof to Higher
headquarters and/or direct the immediate conduct of
the investigation on the matter by the concerned
unit/s, dispatching Radio Message on November 05,
2007, addressed to the Commanding General,
Philippine Army (Info: COMNOLCOM, CG, 71D
PA and CO 24 IB PA). A Copy of the Radio
Message is attached as ANNEX 3 of this Affidavit.
3.3. We undertake to provide result of the
investigations conducted or to be conducted by the
concerned unit relative to the circumstances of the
alleged disappearance of the persons in whose favor
the Writ of Amparo has been sought for as soon as
the same has been furnished Higher headquarters.
3.4. A parallel investigation has been directed to the
same units relative to another Petition for the Writ of
Amparo (G.R. No. 179994) filed at the instance of
relatives of a certain Cadapan and Empeo pending
before the Supreme Court.
3.5. On the part of the Armed Forces, this respondent
will exert earnest efforts to establish the surrounding
circumstances of the disappearances of the
petitioners and to bring those responsible, including
any military personnel if shown to have participated
or had complicity in the commission of the
complained acts, to the bar of justice, when
warranted by the findings and the competent
evidence that may be gathered in the process.[50]
Also attached to the Return of the Writ was the affidavit of
Lt. Col. Felipe Anontado, INF (GSC) PA, earlier filed in G.R. No.
179994, another amparo case in this Court, involving Cadapan,
Empeo and Merino, which averred among others, viz:
10) Upon reading the allegations in the Petition
implicating the 24th Infantry Batallion detachment as
detention area, I immediately went to the 24th IB
detachment in Limay, Bataan and found no
untoward incidents in the area nor any detainees by
the name of Sherlyn Cadapan, Karen Empeo and
Manuel Merino being held captive;
11) There was neither any reports of any death of
Manuel Merino in the 24th IB in Limay, Bataan;
 12) After going to the 24th IB in Limay, Bataan, we On May 26, 2006, Lt. Col. Jimenez was directed by the
made further inquiries with the Philippine National
Police, Limay, Bataan regarding the alleged Commanding General of the 7th Infantry Division, Maj. Gen. Jovito
detentions or deaths and were informed that none Palaran,[55] through his Assistant Chief of Staff,[56]to investigate the
was reported to their good office;
alleged abduction of the respondents by CAFGU auxiliaries under
st
13) I also directed Company Commander 1 Lt. his unit, namely: CAA Michael de la Cruz; CAA Roman de la Cruz,
Romeo Publico to inquire into the alleged
beachhouse in Iba, Zambales also alleged to be a aka Puti; CAA Maximo de la Cruz, aka Pula; CAA Randy Mendoza;
detention place where Sherlyn Cadapan, Karen ex-CAA Marcelo de la Cruz aka Madning; and a civilian named
Empeo and Manuel Merino were detained. As per
Rudy Mendoza. He was directed to determine: (1) the veracity of the
the inquiry, however, no such beachhouse was used
as a detention place found to have been used by abduction of Raymond and Reynaldo Manalo by the alleged
armed men to detain Cadapan, Empeo and elements of the CAFGU auxiliaries; and (2) the administrative
Merino.[51]
liability of said auxiliaries, if any.[57] Jimenez testified that this
particular investigation was initiated not by a complaint as was the
It was explained in the Return of the Writ that for lack of sufficient
usual procedure, but because the Commanding General saw news
time, the affidavits of Maj. Gen Jovito S. Palparan (Ret.), M/Sgt.
about the abduction of the Manalo brothers on the television, and he
Rizal Hilario aka Rollie Castillo, and other persons implicated by
was concerned about what was happening within his territorial
therein petitioners could not be secured in time for the submission of
jurisdiction.[58]
the Return and would be subsequently submitted.[52]
Jimenez summoned all six implicated persons for the purpose of
Herein petitioners presented a lone witness in the summary hearings,
having them execute sworn statements and conducting an
Lt. Col. Ruben U. Jimenez, Provost Marshall, 7th Infantry Division,
investigation on May 29, 2006.[59] The investigation started at 8:00 in
Philippine Army, based in FortMagsaysay, Palayan City, Nueva
the morning and finished at 10:00 in the evening.[60] The
Ecija. The territorial jurisdiction of this Division covers Nueva Ecija,
investigating officer, Technical Sgt. Eduardo Lingad, took the
Aurora, Bataan, Bulacan, Pampanga, Tarlac and a portion of
individual sworn statements of all six persons on that day. There
Pangasinan.[53] The 24th Infantry Battalion is part of the 7th Infantry
were no other sworn statements taken, not even of the Manalo
Division.[54]
family, nor were there other witnesses summoned and
investigated[61] as according to Jimenez, the directive to him was
only to investigate the six persons.[62]
Jimenez was beside Lingad when the latter took the
statements.[63] The six persons were not known to Jimenez as it was
in fact his first time to meet them.[64] During the entire time that he
was beside Lingad, a subordinate of his in the Office of the Provost
Marshall, Jimenez did not propound a single question to the six
persons.[65]
Jimenez testified that all six statements were taken on May 29, 2006,
but Marcelo Mendoza and Rudy Mendoza had to come back the next
day to sign their statements as the printing of their statements was
interrupted by a power failure. Jimenez testified that the two signed
on May 30, 2006, but the jurats of their statements indicated that
they were signed on May 29, 2006.[66] When the Sworn Statements
were turned over to Jimenez, he personally wrote his investigation
report. He began writing it in the afternoon of May 30, 2006 and
finished it on June 1, 2006.[67] He then gave his report to the Office
of the Chief of Personnel.[68]
As petitioners largely rely on Jimenezs Investigation Report
dated June 1, 2006 for their evidence, the report is herein
substantially quoted:
III. BACKGROUND OF THE CASE
4. This pertains to the abduction of RAYMOND
MANALO and REYNALDO MANALO who were
forcibly taken from their respective homes in Brgy.
Buhol na Mangga, San Ildefonso, Bulacan on 14
February 2006 by unidentified armed men and
thereafter were forcibly disappeared. After the said
incident, relatives of the victims filed a case for
Abduction in the civil court against the herein
suspects: Michael dela Cruz, Madning dela Cruz,
Puti Dela Cruz, Pula Dela Cruz, Randy Mendoza
and Rudy Mendoza as alleged members of the
Citizen Armed Forces Geographical Unit (CAFGU).
a) Sworn statement of CAA Maximo F. dela Cruz,
aka Pula dated 29 May 2006 in (Exhibit B) states
that he was at Sitio Mozon, Brgy. Bohol na Mangga,
San Ildefonso, Bulacan doing the concrete building
of a church located nearby his residence, together
with some neighbor thereat. He claims that on 15
February 2006, he was being informed by Brgy.
Kagawad Pablo Umayan about the abduction of the
brothers Raymond and Reynaldo Manalo. As to the
allegation that he was one of the suspects, he claims
that they only implicated him because he was a
CAFGU and that they claimed that those who
abducted the Manalo brothers are members of the
Military and CAFGU. Subject vehemently denied
any participation or involvement on the abduction of
said victims.
b) Sworn statement of CAA Roman dela Cruz y
Faustino Aka Puti dtd 29 May 2006 in (Exhibit C)
states that he is a resident of Sitio Muzon, Brgy.
Buhol na Mangga, San Ildefonso, Bulacan and a
CAA member based at Biak na Bato Detachment,
San Miguel, Bulacan. He claims that Raymond and
Reynaldo Manalo being his neighbors are active
members/sympathizers of the CPP/NPA and he also
knows their elder Rolando Manalo @ KA BESTRE
of being an NPA Leader operating in their
province. That at the time of the alleged abduction of
the two (2) brothers and for accusing him to be one
of the suspects, he claims that on February 14, 2006,
he was one of those working at the concrete chapel
being constructed nearby his residence. He claims
further that he just came only to know about the
incident on other day (15 Feb 06) when he was being
informed by Kagawad Pablo Kunanan. That subject
CAA vehemently denied any participation about the
incident and claimed that they only implicated him
because he is a member of the CAFGU.
c) Sworn Statement of CAA Randy Mendoza y
Lingas dated 29 May 2006 in (Exhibit O) states that
he is a resident of Brgy. Buhol na Mangga, San
Ildefonso, Bulacan and a member of CAFGU based
at Biak na Bato Detachment. That being a neighbor,
he was very much aware about the background of
the two (2) brothers Raymond and Reynaldo as
active supporters of the CPP NPA in their Brgy. and
he also knew their elder brother KUMANDER
BESTRE TN: Rolando Manalo. Being one of the
accused, he claims that on 14 February 2006, he was
at Brgy. Magmarate, San Miguel, Bulacan in the
house of his aunt and he learned only about the
incident when he arrived home in their place. He
claims further that the only reason why they
implicated him was due to the fact that his mother
has filed a criminal charge against their brother
Rolando Manalo @ KA BESTRE who is an NPA
Commander who killed his father and for that reason
they implicated him in support of their
brother. Subject CAA vehemently denied any
involvement on the abduction of said Manalo
brothers.
d) Sworn Statement of Rudy Mendoza y Lingasa
dated May 29, 2006 in (Exhibit E) states that he is a
resident of Brgy. Marungko, Angat, Bulacan. He
claims that Raymond and Reynaldo Manalo are
familiar to him being his barriomate when he was
still unmarried and he knew them since
childhood. Being one of the accused, he claims that
on 14 February 2006, he was at his residence in
Brgy. Marungko, Angat, Bulacan. He claims that he
was being informed only about the incident lately
and he was not aware of any reason why the two (2)
brothers were being abducted by alleged members of
the military and CAFGU. The only reason he knows
why they implicated him was because there are those
people who are angry with their family particularly
victims of summary execution (killing) done by their
brother @ KA Bestre Rolando Manalo who is an
NPA leader. He claims further that it was their
brother @ KA BESTRE who killed his father and he
was living witness to that incident. Subject civilian
vehemently denied any involvement on the
abduction of the Manalo brothers.
e) Sworn statement of Ex-CAA Marcelo dala Cruz
dated 29 May 2006 in (Exhibit F) states that he is a
resident of Sitio Muzon, Brgy. Buhol na Mangga,
San Ildefonso, Bulacan, a farmer and a former CAA
based at Biak na Bato, San Miguel, Bulacan. He
claims that Raymond and Reynaldo Manalo are
familiar to him being their barrio mate. He claims
further that they are active supporters of CPP/NPA
and that their brother Rolando Manalo @ KA
BESTRE is an NPA leader. Being one of the
accused, he claims that on 14 February 2006, he was
in his residence at Sitio Muzon, Brgy. Buhol na
Mangga, San Ildefonso, Bulacan. That he
vehemently denied any participation of the alleged
abduction of the two (2) brothers and learned only
about the incident when rumors reached him by his
barrio mates. He claims that his implication is
merely fabricated because of his relationship to
Roman and Maximo who are his brothers.
f) Sworn statement of Michael dela Cruz y Faustino
dated 29 May 2006 in (Exhibit G) states that he is a
resident of Sitio Muzon, Brgy. Buhol na Mangga,
San Ildefonso, Bulacan, the Chief of Brgy. Tanod
and a CAFGU member based at Biak na Bato
Detachment, San Miguel, Bulacan. He claims that he
knew very well the brothers Raymond and Reynaldo
Manalo in their barangay for having been the Tanod
Chief for twenty (20) years. He alleged further that
they are active supporters or sympathizers of the
CPP/NPA and whose elder brother Rolando Manalo
@ KA BESTRE is an NPA leader operating within
the area. Being one of the accused, he claims that on
14 Feb 2006 he was helping in the construction of
their concrete chapel in their place and he learned
only about the incident which is the abduction of
Raymond and Reynaldo Manalo when one of the
Brgy. Kagawad in the person of Pablo Cunanan
informed him about the matter. He claims further
that he is truly innocent of the allegation against him
as being one of the abductors and he considers
everything fabricated in order to destroy his name
that remains loyal to his service to the government
as a CAA member.
IV. DISCUSSION
5. Based on the foregoing statements of respondents
in this particular case, the proof of linking them to
the alleged abduction and disappearance of
Raymond and Reynaldo Manalo that transpired
on 14 February 2006 at Sitio Muzon, Brgy. Buhol na
Mangga, San Ildefonso, Bulacan, is
unsubstantiated. Their alleged involvement
theretofore to that incident is considered doubtful,
hence, no basis to indict them as charged in this
investigation.
Though there are previous grudges between each
families (sic) in the past to quote: the killing of the
father of Randy and Rudy Mendoza by @ KA
BESTRE TN: Rolando Manalo, this will not suffice
to establish a fact that they were the ones who did
the abduction as a form of revenge. As it was also
stated in the testimony of other accused claiming
that the Manalos are active sympathizers/supporters
of the CPP/NPA, this would not also mean,
however, that in the first place, they were in
connivance with the abductors. Being their
neighbors and as members of CAFGUs, they ought
to be vigilant in protecting their village from any
intervention by the leftist group, hence inside their
village, they were fully aware of the activities of
Raymond and Reynaldo Manalo in so far as their
connection with the CPP/NPA is concerned.
V. CONCLUSION
6. Premises considered surrounding this case shows
that the alleged charges of abduction committed by
the above named respondents has not been
established in this investigation. Hence, it lacks
merit to indict them for any administrative
 punishment and/or criminal liability. It is therefore OFFICIAL AND UNOFFICIAL REPORTS OF
concluded that they are innocent of the charge. THE INVESTIGATION UNDERTAKEN IN
CONNECTION WITH THEIR CASE, EXCEPT
VI. RECOMMENDATIONS THOSE ALREADY IN FILE WITH THE COURT;
(B) CONFIRM IN WRITING THE PRESENT
7. That CAAs Michael F. dela Cruz, Maximo F. PLACES OF OFFICIAL ASSIGNMENT OF
Dela Cruz, Roman dela Cruz, Randy Mendoza, and M/SGT. HILARIO aka ROLLIE CASTILLO AND
two (2) civilians Maximo F. Dela Cruz and Rudy L. DONALD CAIGAS; AND (C) CAUSE TO BE
Mendoza be exonerated from the case. PRODUCED TO THE COURT OF APPEALS ALL
MEDICAL REPORTS, RECORDS AND CHARTS,
8. Upon approval, this case can be dropped and AND REPORTS OF ANY TREATMENT GIVEN
closed.[69] OR RECOMMENDED AND MEDICINES
In this appeal under Rule 45, petitioners question the PRESCRIBED, IF ANY, TO THE MANALO
BROTHERS, TO INCLUDE A LIST OF
appellate courts assessment of the foregoing evidence and assail the MEDICAL PERSONNEL (MILITARY AND
December 26, 2007 Decision on the following grounds, viz: CIVILIAN) WHO ATTENDED TO THEM FROM
FEBRUARY 14, 2006 UNTIL AUGUST 12,
I. 2007.[70]

THE COURT OF APPEALS SERIOUSLY AND

GRIEVOUSLY ERRED IN BELIEVING AND The case at bar is the first decision on the application of the Rule on
GIVING FULL FAITH AND CREDIT TO THE
INCREDIBLE, UNCORROBORATED, the Writ of Amparo (Amparo Rule). Let us hearken to its beginning.
CONTRADICTED, AND OBVIOUSLY
SCRIPTED, REHEARSED AND SELF-SERVING The adoption of the Amparo Rule surfaced as a recurring proposition
AFFIDAVIT/TESTIMONY OF HEREIN
in the recommendations that resulted from a two-day National
RESPONDENT RAYMOND MANALO.
Consultative Summit on Extrajudicial Killings and Enforced
II. Disappearances sponsored by the Court on July 16-17,
2007. The Summit was envisioned to provide a broad and fact-based
THE COURT OF APPEALS SERIOUSLY AND perspective on the issue of extrajudicial killings and enforced
GRIEVOUSLY ERRED IN REQUIRING
RESPONDENTS (HEREIN PETITIONERS) TO: disappearances,[71] hence representatives from all sides of the
(A) FURNISH TO THE MANALO BROTHER(S) political and social spectrum, as well as all the stakeholders in the
AND TO THE COURT OF APPEALS ALL
justice system[72] participated in mapping out ways to resolve the
crisis.
On October 24, 2007, the Court promulgated the Amparo Rule in
light of the prevalence of extralegal killing and enforced
disappearances.[73] It was an exercise for the first time of the Courts
expanded power to promulgate rules to protect our peoples
constitutional rights, which made its maiden appearance in the 1987
Constitution in response to the Filipino experience of the martial law
regime.[74] As the Amparo Rule was intended to address the
intractable problem of extralegal killings and enforced
disappearances, its coverage, in its present form, is confined to these
two instances or to threats thereof. Extralegal killings are killings
committed without due process of law, i.e., without legal safeguards
or judicial proceedings.[75] On the other hand, enforced
disappearances are attended by the following characteristics: an
arrest, detention or abduction of a person by a government official or
organized groups or private individuals acting with the direct or
indirect acquiescence of the government; the refusal of the State to
disclose the fate or whereabouts of the person concerned or a refusal
to acknowledge the deprivation of liberty which places such persons
[76]
outside the protection of law.
The writ of amparo originated in Mexico. Amparo literally means
protection in Spanish.[77] In 1837, de Tocquevilles Democracy in
America became available in Mexico and stirred great interest. Its
description of the practice of judicial review in the U.S. appealed to
many Mexican jurists.[78] One of them, Manuel Crescencio Rejn,
drafted a constitutional provision for his native
state, Yucatan,[79] which granted judges the power to protect all
persons in the enjoyment of their constitutional and legal rights. This
idea was incorporated into the national constitution in 1847, viz:
The federal courts shall protect any inhabitant of
the Republic in the exercise and preservation of
those rights granted to him by this Constitution and
by laws enacted pursuant hereto, against attacks by
the Legislative and Executive powers of the federal
or state governments, limiting themselves to
granting protection in the specific case in litigation,
making no general declaration concerning the statute
or regulation that motivated the violation.[80]
Since then, the protection has been an important part of
Mexican constitutionalism.[81] If, after hearing, the judge determines
that a constitutional right of the petitioner is being violated, he orders
the official, or the officials superiors, to cease the violation and to
take the necessary measures to restore the petitioner to the full
enjoyment of the right in question. Amparo thus combines the
principles of judicial review derived from the U.S. with the
limitations on judicial power characteristic of the civil law tradition
which prevails in Mexico. It enables courts to enforce the
constitution by protecting individual rights in particular cases, but
prevents them from using this power to make law for the entire
nation.[82]
The writ of amparo then spread throughout the Western Hemisphere,
gradually evolving into various forms, in response to the particular
[83]
needs of each country. It became, in the words of a justice of
the Mexican Federal Supreme Court, one piece of Mexicos self-
attributed task of conveying to the worlds legal heritage that
institution which, as a shield of human dignity, her own painful
[84]
history conceived. What began as a protection against acts or
omissions of public authorities in violation of constitutional rights
later evolved for several purposes: (1) amparo libertad for the
protection of personal freedom, equivalent to the habeas corpus writ;
(2) amparo contra leyes for the judicial review of the
constitutionality of statutes; (3) amparo casacion for the judicial
review of the constitutionality and legality of a judicial decision;
(4) amparo administrativo for the judicial review of administrative
actions; and (5) amparo agrario for the protection of peasants rights
derived from the agrarian reform process.[85]
In Latin American countries, except Cuba, the writ of amparo has
been constitutionally adopted to protect against human rights abuses
especially committed in countries under military juntas. In general,
these countries adopted an all-encompassing writ to protect the
whole gamut of constitutional rights, including socio-economic
rights.[86] Other countries like Colombia, Chile, Germany and Spain,
however, have chosen to limit the protection of the writ
of amparo only to some constitutional guarantees or fundamental
[87]
rights.
In the Philippines, while the 1987 Constitution does not explicitly
provide for the writ of amparo, several of the
above amparo protections are guaranteed by our charter. The second
paragraph of Article VIII, Section 1 of the 1987 Constitution, the
Grave Abuse Clause, provides for the judicial power to determine
whether or not there has been a grave abuse of discretion amounting
to lack or excess of jurisdiction on the part of any branch or
instrumentality of the Government. The Clause accords a similar
general protection to human rights extended by the amparo contra
leyes, amparo casacion, and amparo administrativo. Amparo
libertad is comparable to the remedy of habeas corpus found in
several provisions of the 1987 Constitution.[88] The Clause is an
offspring of the U.S. common law tradition of judicial review, which
finds its roots in the 1803 case of Marbury v. Madison.[89]
While constitutional rights can be protected under the Grave Abuse
Clause through remedies of injunction or prohibition under Rule 65
of the Rules of Court and a petition for habeas corpus under Rule
102,[90] these remedies may not be adequate to address the pestering
problem of extralegal killings and enforced
disappearances. However, with the swiftness required to resolve a
petition for a writ of amparo through summary proceedings and the
availability of appropriate interim and permanent reliefs under
the AmparoRule, this hybrid writ of the common law and civil law
traditions - borne out of the Latin American and Philippine
experience of human rights abuses - offers a better remedy to
extralegal killings and enforced disappearances and threats
thereof. The remedy provides rapid judicial relief as it partakes of a
summary proceeding that requires only substantial evidence to make
the appropriate reliefs available to the petitioner; it is not an action to
determine criminal guilt requiring proof beyond reasonable doubt, or
liability for damages requiring preponderance of evidence, or
administrative responsibility requiring substantial evidence that will
require full and exhaustive proceedings.[91]
The writ of amparo serves both preventive and curative roles in
addressing the problem of extralegal killings and enforced
disappearances. It is preventive in that it breaks the expectation of
impunity in the commission of these offenses; it is curative in that it
facilitates the subsequent punishment of perpetrators as it will
inevitably yield leads to subsequent investigation and action. In the
long run, the goal of both the preventive and curative roles is to deter
the further commission of extralegal killings and enforced
disappearances.
In the case at bar, respondents initially filed an action for Prohibition,
Injunction, and Temporary Restraining Order[92] to stop petitioners
and/or their officers and agents from depriving the respondents of
their right to liberty and other basic rights on August 23,
2007,[93] prior to the promulgation of the Amparo Rule. They also
sought ancillary remedies including Protective Custody Orders,
Appointment of Commissioner, Inspection and Access Orders and
other legal and equitable remedies under Article VIII, Section 5(5) of
the 1987 Constitution and Rule 135, Section 6 of the Rules of
Court. When the Amparo Rule came into effect on October 24, 2007,
they moved to have their petition treated as an amparo petition as it
would be more effective and suitable to the circumstances of the
Manalo brothers enforced disappearance. The Court granted their
motion.
With this backdrop, we now come to the arguments of the
petitioner. Petitioners first argument in disputing the Decision of the
Court of Appeals states, viz:
The Court of Appeals seriously and grievously erred
in believing and giving full faith and credit to the
incredible uncorroborated, contradicted, and
obviously scripted, rehearsed and self-serving
affidavit/testimony of herein respondent Raymond
Manalo.[94]
In delving into the veracity of the evidence, we need to
mine and refine the ore of petitioners cause of action, to determine
whether the evidence presented is metal-strong to satisfy the degree
of proof required.
Section 1 of the Rule on the Writ of Amparo provides for
the following causes of action, viz:
Section 1. Petition. The petition for a writ
of amparo is a remedy available to any person
whose right to life, liberty and security is violated
 or threatened with violation by an unlawful act or
omission of a public official or employee, or of a
private individual or entity.
The writ shall cover extralegal killings and enforced
disappearances or threats thereof. (emphasis
supplied)
Sections 17 and 18, on the other hand, provide for the degree of
proof required, viz:
Sec. 17. Burden of Proof and Standard of Diligence
Required. The parties shall establish their claims
by substantial evidence.
xxx xxx xxx
Sec. 18. Judgment. If the allegations in the petition
are proven by substantial evidence, the court
shall grant the privilege of the writ and such reliefs
as may be proper and appropriate; otherwise, the
privilege shall be denied. (emphases supplied)
Substantial evidence has been defined as such relevant evidence as a
reasonable mind might accept as adequate to support a
conclusion.[95]
After careful perusal of the evidence presented, we affirm the
findings of the Court of Appeals that respondents were abducted
from their houses in Sito Muzon, Brgy. Buhol na Mangga, San
Ildefonso, Bulacan on February 14, 2006 and were continuously
detained until they escaped on August 13, 2007. The abduction,
detention, torture, and escape of the respondents were narrated by
respondent Raymond Manalo in a clear and convincing manner. His
account is dotted with countless candid details of respondents
harrowing experience and tenacious will to escape, captured through
his different senses and etched in his memory. A few examples are
the following: Sumilip ako sa isang haligi ng kamalig at nakita kong
sinisilaban si Manuel.[96] (N)ilakasan ng mga sundalo ang tunog na
galing sa istiryo ng sasakyan. Di nagtagal, narinig ko ang hiyaw o
ungol ni Manuel.[97] May naiwang mga bakas ng dugo habang
hinihila nila ang mga bangkay. Naamoy ko iyon nang nililinis ang
bakas.[98] Tumigil ako sa may palaisdaan kung saan ginamit ko ang
bato para tanggalin ang mga kadena.[99] Tinanong ko sa isang kapit-
bahay kung paano ako makakakuha ng cell phone; sabi ko gusto
kong i-text ang isang babae na nakatira sa malapit na lugar.[100]
We affirm the factual findings of the appellate court, largely based
on respondent Raymond Manalos affidavit and testimony, viz:
the abduction was perpetrated by armed men who
were sufficiently identified by the petitioners (herein
respondents) to be military personnel and CAFGU
auxiliaries. Raymond recalled that the six armed men
who barged into his house through the rear door were
military men based on their attire of fatigue pants and
army boots, and the CAFGU auxiliaries, namely:
Michael de la Cruz, Madning de la Cruz, Puti de la
Cruz and Pula de la Cruz, all members of the CAFGU
and residents of Muzon, San Ildefonso, Bulacan, and
the brothers Randy Mendoza and Rudy Mendoza,
also CAFGU members, served as lookouts during the
abduction. Raymond was sure that three of the six
military men were Ganata, who headed the abducting
team, Hilario, who drove the van, and
George. Subsequent incidents of their long captivity,
as narrated by the petitioners, validated their assertion
of the participation of the elements of the 7th Infantry
Division, Philippine Army, and their CAFGU
auxiliaries.
We are convinced, too, that the reason for the
abduction was the suspicion that the petitioners were
either members or sympathizers of the NPA,
considering that the abductors were looking for Ka
Bestre, who turned out to be Rolando, the brother of
petitioners.
The efforts exerted by the Military Command to look
into the abduction were, at best, merely
superficial. The investigation of the Provost Marshall
of the 7th Infantry Division focused on the one-sided
version of the CAFGU auxiliaries involved. This one-
sidedness might be due to the fact that the Provost
Marshall could delve only into the participation of
military personnel, but even then the Provost
Marshall should have refrained from outrightly
exculpating the CAFGU auxiliaries he perfunctorily
investigated
Gen. Palparans participation in the abduction was also
established. At the very least, he was aware of the
petitioners captivity at the hands of men in uniform
assigned to his command. In fact, he or any other
officer tendered no controversion to the firm claim of
Raymond that he (Gen. Palparan) met them in person
in a safehouse in Bulacan and told them what he
wanted them and their parents to do or not to be
doing. Gen. Palparans direct and personal role in the
abduction might not have been shown but his
knowledge of the dire situation of the petitioners
during their long captivity at the hands of military
personnel under his command bespoke of his
indubitable command policy that unavoidably
encouraged and not merely tolerated the abduction of
civilians without due process of law and without
probable cause.
In the habeas proceedings, the Court, through the
Former Special Sixth Division (Justices Buzon,
chairman; Santiago-Lagman, Sr., member; and
Romilla-Lontok, Jr., member/ponente.) found no
clear and convincing evidence to establish that M/Sgt.
Rizal Hilario had anything to do with the abduction or
the detention. Hilarios involvement could not, indeed,
be then established after Evangeline Francisco, who
allegedly saw Hilario drive the van in which the
petitioners were boarded and ferried following the
abduction, did not testify. (See the decision of the
habeas proceedings at rollo, p. 52)
However, in this case, Raymond attested that Hilario
drove the white L-300 van in which the petitioners
were brought away from their houses on February 14,
2006. Raymond also attested that Hilario participated
in subsequent incidents during the captivity of the
petitioners, one of which was when Hilario fetched
them from Fort Magsaysay on board a Revo and
conveyed them to a detachment in Pinaud, San
Ildefonso, Bulacan where they were detained for at
least a week in a house of strong materials (Exhibit
D, rollo, p. 205) and then Hilario (along with Efren)
brought them to Sapang, San Miguel, Bulacan on
board the Revo, to an unfinished house inside the
compound of Kapitan where they were kept for more
or less three months. (Exhibit D, rollo, p. 205) It was
 there where the petitioners came face to face with
Gen. Palparan. Hilario and Efren also brought the
petitioners one early morning to the house of the
petitioners parents, where only Raymond was
presented to the parents to relay the message from
Gen. Palparan not to join anymore rallies. On that
occasion, Hilario warned the parents that they would
not again see their sons should they join any rallies to
denounce human rights violations. (Exhibit D, rollo,
pp. 205-206) Hilario was also among four Master
Sergeants (the others being Arman, Ganata and
Cabalse) with whom Gen. Palparan conversed on the
occasion when Gen. Palparan required Raymond to
take the medicines for his health. (Exhibit D, rollo, p.
206) There were other occasions when the petitioners
saw that Hilario had a direct hand in their torture.
It is clear, therefore, that the participation of Hilario
in the abduction and forced disappearance of the
petitioners was established. The participation of other
military personnel like Arman, Ganata, Cabalse and
Caigas, among others, was similarly established.
xxx xxx xxx
As to the CAFGU auxiliaries, the habeas Court found
them personally involved in the abduction. We also
do, for, indeed, the evidence of their participation is
overwhelming.[101]
We reject the claim of petitioners that respondent Raymond Manalos
statements were not corroborated by other independent and credible
pieces of evidence.[102] Raymonds affidavit and testimony were
corroborated by the affidavit of respondent Reynaldo Manalo. The
testimony and medical reports prepared by forensic specialist Dr.
Molino, and the pictures of the scars left by the physical injuries
inflicted on respondents,[103] also corroborate respondents accounts
of the torture they endured while in detention. Respondent Raymond
Manalos familiarity with the facilities in Fort Magsaysay such as the
DTU, as shown in his testimony and confirmed by Lt. Col. Jimenez
to be the Division Training Unit,[104] firms up respondents story that
they were detained for some time in said military facility.
In Ortiz v. Guatemala,[105] a case decided by the Inter-American
Commission on Human Rights, the Commission considered similar
evidence, among others, in finding that complainant Sister Diana
Ortiz was abducted and tortured by agents of the Guatemalan
government. In this case, Sister Ortiz was kidnapped and tortured in
early November 1989. The Commissions findings of fact were
mostly based on the consistent and credible statements, written and
oral, made by Sister Ortiz regarding her ordeal.[106] These statements
were supported by her recognition of portions of the route they took
when she was being driven out of the military installation where she
was detained.[107] She was also examined by a medical doctor whose
findings showed that the 111 circular second degree burns on her
back and abrasions on her cheek coincided with her account of
cigarette burning and torture she suffered while in detention.[108]
With the secret nature of an enforced disappearance and the torture
perpetrated on the victim during detention, it logically holds that
much of the information and evidence of the ordeal will come from
the victims themselves, and the veracity of their account will depend Elaborating on the right to security, in
on their credibility and candidness in their written and/or oral general, respondents point out that this right is often associated with
statements. Their statements can be corroborated by other evidence liberty; it is also seen as an expansion of rights based on the
such as physical evidence left by the torture they suffered or prohibition against torture and cruel and unusual
landmarks they can identify in the places where they were punishment. Conceding that there is no right to security expressly
detained. Where powerful military officers are implicated, the mentioned in Article III of the 1987 Constitution, they submit that
hesitation of witnesses to surface and testify against them comes as their rights to be kept free from torture and
no surprise. from incommunicado detention and solitary detention places[112] fall
under the general coverage of the right to security of person under
We now come to the right of the respondents to the
the writ of Amparo. They submit that the Court ought to give an
privilege of the writ of amparo. There is no quarrel that the enforced
expansive recognition of the right to security of person in view of
disappearance of both respondents Raymond and Reynaldo Manalo
the State Policy under Article II of the 1987 Constitution which
has now passed as they have escaped from captivity and
enunciates that, The State values the dignity of every human person
surfaced. But while respondents admit that they are no longer in
and guarantees full respect for human rights. Finally, to justify a
detention and are physically free, they assert that they are not free in
liberal interpretation of the right to security of person, respondents
every sense of the word[109] as their movements continue to be
cite the teaching in Moncupa v. Enrile[113] that the right to liberty
restricted for fear that people they have named in their Judicial
may be made more meaningful only if there is no undue restraint by
Affidavits and testified against (in the case of Raymond) are still at
the State on the exercise of that liberty[114] such as a requirement to
large and have not been held accountable in any way. These people
report under unreasonable restrictions that amounted to a deprivation
are directly connected to the Armed Forces of the Philippines and
of liberty[115] or being put under monitoring and surveillance.[116]
are, thus, in a position to threaten respondents rights to life,
liberty and security.[110] (emphasis supplied) Respondents claim In sum, respondents assert that their cause of action consists in
that they are under threat of being once again abducted, kept the threat to their right to life and liberty, and a violation of their
captive or even killed, which constitute a direct violation of right to security.
their right to security of person.[111]

Let us put this right to security under the lens to determine if it
has indeed been violated as respondents assert. The right to
security or the right to security of person finds a textual hook in
Article III, Section 2 of the 1987 Constitution which provides, viz:
Sec. 2. The right of the people to be secure in their
persons, houses, papers and effects against
unreasonable searches and seizures of whatever
nature and for any purpose shall be inviolable, and
no search warrant or warrant of arrest shall issue
except upon probable cause to be determined
personally by the judge
At the core of this guarantee is the immunity of ones person,
including the extensions of his/her person houses, papers, and effects
against government intrusion. Section 2 not only limits the states
power over a persons home and possessions, but more importantly,
protects the privacy and sanctity of the person himself.[117] The
purpose of this provision was enunciated by the Court in People v.
CFI of Rizal, Branch IX, Quezon City, viz: [118]
The purpose of the constitutional guarantee against
unreasonable searches and seizures is to prevent
violations of private security in person and property
and unlawful invasion of the security of the home by
officers of the law acting under legislative or judicial
sanction and to give remedy against such usurpation
when attempted. (Adams v. New York, 192 U.S. 858;
Alvero v. Dizon, 76 Phil. 637 [1946]). The right to
privacy is an essential condition to the dignity and
happiness and to the peace and security of every
individual, whether it be of home or of persons and
correspondence. (Taada and Carreon, Political Law
of the Philippines, Vol. 2, 139 [1962]). The
constitutional inviolability of this great fundamental
right against unreasonable searches and seizures must
be deemed absolute as nothing is closer to a mans
soul than the serenity of his privacy and the
assurance of his personal security. Any interference
allowable can only be for the best causes and
reasons.[119] (emphases supplied)
While the right to life under Article III, Section
[120]
1 guarantees essentially the right to be alive[121] - upon which the
enjoyment of all other rights is preconditioned - the right to security
of person is a guarantee of the secure quality of this life, viz: The life
to which each person has a right is not a life lived in fear that his
person and property may be unreasonably violated by a powerful
ruler. Rather, it is a life lived with the assurance that the government
he established and consented to, will protect the security of his
person and property. The ideal of security in life and property
pervades the whole history of man. It touches every aspect of mans
existence.[122] In a broad sense, the right to security of person
emanates in a persons legal and uninterrupted enjoyment of his life,
his limbs, his body, his health, and his reputation. It includes the
right to exist, and the right to enjoyment of life while existing, and it
is invaded not only by a deprivation of life but also of those things
which are necessary to the enjoyment of life according to the nature,
temperament, and lawful desires of the individual.[123]
A closer look at the right to security of person would yield various
permutations of the exercise of this right.
First, the right to security of person is freedom from fear. In its
whereas clauses, the Universal Declaration of Human
Rights (UDHR) enunciates that a world in which human beings
shall enjoy freedom of speech and belief and freedom from
fear and want has been proclaimed as the highest aspiration of the
common people. (emphasis supplied) Some scholars postulate
that freedom from fear is not only an aspirational principle, but
essentially an individual international human right.[124] It is the right
to security of person as the word security itself means freedom from
fear.[125] Article 3 of the UDHR provides, viz:
Everyone has the right to life, liberty and security of
person.[126] (emphasis supplied)
In furtherance of this right declared in the UDHR, Article
9(1) of the International Covenant on Civil and Political
Rights (ICCPR) also provides for the right to security of person, viz:
1. Everyone has the right to liberty and security of
person. No one shall be subjected to arbitrary arrest
or detention. No one shall be deprived of his liberty
except on such grounds and in accordance with such
procedure as are established by law. (emphasis
supplied)
The Philippines is a signatory to both the UDHR and the
ICCPR.
In the context of Section 1 of the Amparo Rule, freedom from
fear is the right and any threat to the rights to life, liberty or
security is the actionable wrong. Fear is a state of mind, a
reaction; threat is a stimulus, a cause of action. Fear caused by the
same stimulus can range from being baseless to well-founded as
people react differently. The degree of fear can vary from one person
to another with the variation of the prolificacy of their imagination,
strength of character or past experience with the stimulus. Thus, in
the amparo context, it is more correct to say that the right to security
is actually the freedom from threat. Viewed in this light, the
threatened with violation Clause in the latter part of Section 1 of
the Amparo Rule is a form of violation of the right to security
mentioned in the earlier part of the provision.[127]
Second, the right to security of person is a guarantee of
bodily and psychological integrity or security. Article III, Section
II of the 1987 Constitution guarantees that, as a general rule, ones
body cannot be searched or invaded without a search
warrant.[128] Physical injuries inflicted in the context of extralegal
killings and enforced disappearances constitute more than a search or
invasion of the body. It may constitute dismemberment, physical
disabilities, and painful physical intrusion. As the degree of physical
injury increases, the danger to life itself escalates. Notably, in
criminal law, physical injuries constitute a crime against persons
because they are an affront to the bodily integrity or security of a
person.[129]
Physical torture, force, and violence are a severe invasion of bodily
integrity. When employed to vitiate the free will such as to force the
victim to admit, reveal or fabricate incriminating information, it
constitutes an invasion of both bodily and psychological integrity as
the dignity of the human person includes the exercise of free
will. Article III, Section 12 of the 1987 Constitution more
specifically proscribes bodily and psychological invasion, viz:
(2) No torture, force, violence, threat or intimidation,
or any other means which vitiate the free will shall
be used against him (any person under investigation
for the commission of an offense).Secret detention
places, solitary, incommunicado or other similar
forms of detention are prohibited.
Parenthetically, under this provision, threat and intimidation that
vitiate the free will - although not involving invasion of bodily
integrity - nevertheless constitute a violation of the right to security in
the sense of freedom from threat as afore-discussed.
Article III, Section 12 guarantees freedom from
dehumanizing abuses of persons under investigation for the
commission of an offense. Victims of enforced disappearances who
are not even under such investigation should all the more be protected
from these degradations.
An overture to an interpretation of the right to security of person
as a right against torture was made by the European Court of Human
Rights (ECHR) in the recent case of Popov v. Russia.[130] In this
case, the claimant, who was lawfully detained, alleged that the state
authorities had physically abused him in prison, thereby violating his
right to security of person. Article 5(1) of the European Convention
on Human Rights provides, viz: Everyone has the right to liberty
and security of person. No one shall be deprived of his liberty save
in the following cases and in accordance with a procedure prescribed
by law ... (emphases supplied) Article 3, on the other hand, provides
that (n)o one shall be subjected to torture or to inhuman or
degrading treatment or punishment. Although the application failed
on the facts as the alleged ill-treatment was found baseless, the
ECHR relied heavily on the concept of security in holding, viz:
...the applicant did not bring his allegations to
the attention of domestic authorities at the time
when they could reasonably have been expected to
take measures in order to ensure his security and to
investigate the circumstances in question.
xxx xxx xxx
... the authorities failed to ensure his security in
custody or to comply with the procedural obligation
under Art.3 to conduct an effective investigation into
his allegations.[131] (emphasis supplied)
The U.N. Committee on the Elimination of Discrimination against
Women has also made a statement that the protection of the bodily
integrity of women may also be related to the right to security and
liberty, viz:
gender-based violence which impairs or nullifies the
enjoyment by women of human rights and
 fundamental freedoms under general international law
or under specific human rights conventions is
discrimination within the meaning of article 1 of the
Convention (on the Elimination of All Forms of
Discrimination Against Women). These rights and
freedoms include . . . the right to liberty and security
of person.[132]
Third, the right to security of person is a guarantee of
protection of ones rights by the government. In the context of the
writ of amparo, this right is built into the guarantees of the right
to life and liberty under Article III, Section 1 of the 1987
Constitution and the right to security of person (as freedom from
threat and guarantee of bodily and psychological integrity) under
Article III, Section 2. The right to security of person in this third
sense is a corollary of the policy that the State guarantees full respect
for human rights under Article II, Section 11 of the 1987
Constitution.[133] As the government is the chief guarantor of order
and security, the Constitutional guarantee of the rights to life, liberty
and security of person is rendered ineffective if government does not
afford protection to these rights especially when they are under
threat. Protection includes conducting effective investigations,
organization of the government apparatus to extend protection to
victims of extralegal killings or enforced disappearances (or threats
thereof) and/or their families, and bringing offenders to the bar of
justice. The Inter-American Court of Human Rights stressed the
importance of investigation in the Velasquez Rodriguez
[134]
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.[135]
This third sense of the right to security of person as a
guarantee of government protection has been interpreted by the
United Nations Human Rights Committee[136] in not a few cases
involving Article 9[137] of the ICCPR. While the right to security of
person appears in conjunction with the right to liberty under Article
9, the Committee has ruled that the right to security of person can
exist independently of the right to liberty. In other words, there
need not necessarily be a deprivation of liberty for the right to
security of person to be invoked. In Delgado Paez v.
Colombia,[138] a case involving death threats to a religion teacher at a
secondary school in Leticia, Colombia, whose social views differed
from those of the Apostolic Prefect of Leticia, the Committee
held, viz:
The first sentence of article 9 does not stand
as a separate paragraph. Its location as a part of
paragraph one could lead to the view that the right to
security arises only in the context of arrest and
detention. The travaux prparatoires indicate that the
discussions of the first sentence did indeed focus on
matters dealt with in the other provisions of article
9. The Universal Declaration of Human Rights, in
article 3, refers to the right to life, the right to
liberty and the right to security of the
person. These elements have been dealt with in
separate clauses in the Covenant. Although in the
 Covenant the only reference to the right of
security of person is to be found in article 9, there
is no evidence that it was intended to narrow the
concept of the right to security only to situations
of formal deprivation of liberty. At the same
time, States parties have undertaken to guarantee
the rights enshrined in the Covenant.It cannot be
the case that, as a matter of law, States can ignore
known threats to the life of persons under their
jurisdiction, just because that he or she is not
arrested or otherwise detained. States parties are
under an obligation to take reasonable and
appropriate measures to protect them. An
interpretation of article 9 which would allow a
State party to ignore threats to the personal
security of non-detained persons within its
jurisdiction would render totally ineffective the
guarantees of the Covenant.[139] (emphasis
supplied)
The Paez ruling was reiterated in Bwalya v.
Zambia,[140] which involved a political activist and prisoner of
conscience who continued to be intimidated, harassed, and restricted
in his movements following his release from detention. In a catena
of cases, the ruling of the Committee was of a similar
import: Bahamonde v. Equatorial Guinea,[141] involving
discrimination, intimidation and persecution of opponents of the
ruling party in that state; Tshishimbi v. Zaire,[142] involving the
abduction of the complainants husband who was a supporter of
democratic reform in Zaire; Dias v. Angola,[143] involving
the murder of the complainants partner and the harassment he
(complainant) suffered because of his investigation of the murder;
and Chongwe v. Zambia,[144] involving an assassination attempt on
the chairman of an opposition alliance.
Similarly, the European Court of Human Rights (ECHR) has
interpreted the right to security not only as prohibiting the State from
arbitrarily depriving liberty, but imposing a positive duty on the
State to afford protection of the right to liberty.[145] The ECHR
interpreted the right to security of person under Article 5(1) of the
European Convention of Human Rights in the leading case on
disappearance of persons, Kurt v. Turkey.[146] In this case,
the claimants son had been arrested by state authorities and had not
been seen since. The familys requests for information and
investigation regarding his whereabouts proved futile. The claimant
suggested that this was a violation of her sons right to security of
person. The ECHR ruled, viz:
... any deprivation of liberty must not only
have been effected in conformity with the
substantive and procedural rules of national law but
must equally be in keeping with the very purpose of
Article 5, namely to protect the individual from
arbitrariness... Having assumed control over that
individual it is incumbent on the authorities to
account for his or her whereabouts.For this
reason, Article 5 must be seen as requiring the
authorities to take effective measures to
safeguard against the risk of disappearance and
to conduct a prompt effective investigation into
an arguable claim that a person has been taken
into custody and has not been seen
since.[147] (emphasis supplied)
 Applying the foregoing concept of the right to security of
person to the case at bar, we now determine whether there is a The possibility of respondents being executed stared them
continuing violation of respondents right to security. in the eye while they were in detention. With their escape, this
continuing threat to their life is apparent, moreso now that they have
First, the violation of the right to security as freedom from
surfaced and implicated specific officers in the military not only in
threat to respondents life, liberty and security.
their own abduction and torture, but also in those of other persons
known to have disappeared such as Sherlyn Cadapan, Karen Empeo,
While respondents were detained, they were threatened that if they
and Manuel Merino, among others.
escaped, their families, including them, would be killed. In
Raymonds narration, he was tortured and poured with gasoline after
Understandably, since their escape, respondents have been under
he was caught the first time he attempted to escape
concealment and protection by private citizens because of the threat
from Fort Magsaysay. A call from a certain Mam, who wanted to see
to their life, liberty and security. The threat vitiates their free will as
him before he was killed, spared him.
they are forced to limit their movements or activities.[149] Precisely
because respondents are being shielded from the perpetrators of their
This time, respondents have finally escaped. The condition of the
abduction, they cannot be expected to show evidence of overt acts of
threat to be killed has come to pass. It should be stressed that they
threat such as face-to-face intimidation or written threats to their life,
are now free from captivity not because they were released by virtue
liberty and security. Nonetheless, the circumstances of respondents
of a lawful order or voluntarily freed by their abductors. It ought to
abduction, detention, torture and escape reasonably support a
be recalled that towards the end of their ordeal, sometime in June
conclusion that there is an apparent threat that they will again be
2007 when respondents were detained in a camp in Limay, Bataan,
abducted, tortured, and this time, even executed. These constitute
respondents captors even told them that they were still deciding
threats to their liberty, security, and life, actionable through a
whether they should be executed. Respondent Raymond Manalo
petition for a writ of amparo.
attested in his affidavit, viz:
Kinaumagahan, naka-kadena pa kami. Tinanggal
Next, the violation of the right to security as protection by the
ang mga kadena mga 3 o 4 na araw
pagkalipas. Sinabi sa amin na kaya kami nakakadena government. Apart from the failure of military elements to provide
ay dahil pinagdedesisyunan pa ng mga sundalo kung protection to respondents by themselves perpetrating the abduction,
papatayin kami o hindi.[148]
detention, and torture, they also miserably failed in conducting an
effective investigation of respondents abduction as revealed by the
testimony and investigation report of petitioners own witness, Lt.
Col. Ruben Jimenez, Provost Marshall of the 7th Infantry Division.
The one-day investigation conducted by Jimenez was very limited,
superficial, and one-sided. He merely relied on the Sworn
Statements of the six implicated members of the CAFGU and
civilians whom he met in the investigation for the first time. He was
present at the investigation when his subordinate Lingad was taking
the sworn statements, but he did not propound a single question to
ascertain the veracity of their statements or their credibility. He did
not call for other witnesses to test the alibis given by the six
implicated persons nor for the family or neighbors of the
respondents.
In his affidavit, petitioner Secretary of National Defense attested that
in a Memorandum Directive dated October 31, 2007, he issued a
policy directive addressed to the AFP Chief of Staff, that the AFP
should adopt rules of action in the event the writ of amparo is issued
by a competent court against any members of the AFP, which should
essentially include verification of the identity of the aggrieved party;
recovery and preservation of relevant evidence; identification of
witnesses and securing statements from them; determination of the
cause, manner, location and time of death or disappearance;
identification and apprehension of the person or persons involved in
the death or disappearance; and bringing of the suspected offenders
before a competent court.[150] Petitioner AFP Chief of Staff also
submitted his own affidavit attesting that he received the above
directive of respondent Secretary of National Defense and that acting
on this directive, he immediately caused to be issued a directive to
the units of the AFP for the purpose of establishing the
circumstances of the alleged disappearance and the recent
reappearance of the respondents, and undertook to provide results of
the investigations to respondents.[151] To this day, however, almost a
year after the policy directive was issued by petitioner Secretary of
National Defense on October 31, 2007, respondents have not been
furnished the results of the investigation which they now seek
through the instant petition for a writ of amparo.
Under these circumstances, there is substantial evidence to warrant
the conclusion that there is a violation of respondents right to
security as a guarantee of protection by the government.
In sum, we conclude that respondents right to security as freedom
from threat is violated by the apparent threat to their life, liberty and
security of person. Their right to security as a guarantee of
protection by the government is likewise violated by the ineffective
investigation and protection on the part of the military.
Finally, we come to the reliefs granted by the Court of Appeals,
which petitioners question.
First, that petitioners furnish respondents all official and unofficial
reports of the investigation undertaken in connection with their
case, except those already in file with the court.
Second, that petitioners confirm in writing the present places of
official assignment of M/Sgt. Hilario aka Rollie Castillo and
Donald Caigas.
Third, that petitioners cause to be produced to the Court of Appeals
all medical reports, records and charts, and reports of any
treatment given or recommended and medicines prescribed, if
any, to the Manalo brothers, to include a list of medical personnel
(military and civilian) who attended to them from February 14,
2006 until August 12, 2007.
With respect to the first and second reliefs, petitioners argue that
the production order sought by respondents partakes of the
characteristics of a search warrant. Thus, they claim that the
requisites for the issuance of a search warrant must be complied with
prior to the grant of the production order, namely: (1) the application
must be under oath or affirmation; (2) the search warrant must
particularly describe the place to be searched and the things to be
seized; (3) there exists probable cause with one specific offense; and
(4) the probable cause must be personally determined by the judge
after examination under oath or affirmation of the complainant and
the witnesses he may produce.[152] In the case at bar, however,
petitioners point out that other than the bare, self-serving and vague
allegations made by respondent Raymond Manalo in his unverified
declaration and affidavit, the documents respondents seek to be
produced are only mentioned generally by name, with no other
supporting details. They also argue that the relevancy of the
documents to be produced must be apparent, but this is not true in
the present case as the involvement of petitioners in the abduction
has not been shown.
Petitioners arguments do not hold water. The production order under
the Amparo Rule should not be confused with a search warrant for
law enforcement under Article III, Section 2 of the 1987
Constitution. This Constitutional provision is a protection of the
people from the unreasonable intrusion of the government, not a
protection of the government from the demand of the people such as
respondents.
Instead, the amparo production order may be likened to the
production of documents or things under Section 1, Rule 27 of the
Rules of Civil Procedure which provides in relevant part, viz:
Section 1. Motion for production or inspection order.
Upon motion of any party showing good cause
therefor, the court in which an action is pending may
(a) order any party to produce and permit the
inspection and copying or photographing, by or on
behalf of the moving party, of any designated
documents, papers, books of accounts, letters,
photographs, objects or tangible things, not
privileged, which constitute or contain evidence
 material to any matter involved in the action and
which are in his possession, custody or control
[153]
In Material Distributors (Phil.) Inc. v. Judge Natividad,
respondent judge, under authority of Rule 27, issued a subpoena
duces tecum for the production and inspection of among others, the
books and papers of Material Distributors (Phil.) Inc. The company
questioned the issuance of the subpoena on the ground that it
violated the search and seizure clause. The Court struck down the
argument and held that the subpoena pertained to a civil procedure
that cannot be identified or confused with unreasonable searches
prohibited by the Constitution
Moreover, in his affidavit, petitioner AFP Chief of Staff himself
undertook to provide results of the investigations conducted or to be
conducted by the concerned unit relative to the circumstances of the
alleged disappearance of the persons in whose favor the Writ
of Amparo has been sought for as soon as the same has been
furnished Higher headquarters.
With respect to the second and third reliefs, petitioners assert that
the disclosure of the present places of assignment of M/Sgt. Hilario
aka Rollie Castillo and Donald Caigas, as well as the submission of a
list of medical personnel, is irrelevant, improper, immaterial, and
unnecessary in the resolution of the petition for a writ
of amparo. They add that it will unnecessarily compromise and
jeopardize the exercise of official functions and duties of military
officers and even unwittingly and unnecessarily expose them to
threat of personal injury or even death.
the
On the contrary, the disclosure of the present places of assignment of
M/Sgt. Hilario aka Rollie Castillo and Donald Caigas, whom
respondents both directly implicated as perpetrators behind their
abduction and detention, is relevant in ensuring the safety of
respondents by avoiding their areas of territorial jurisdiction. Such
disclosure would also help ensure that these military officers can be
served with notices and court processes in relation to any
investigation and action for violation of the respondents rights. The
list of medical personnel is also relevant in securing information to
create the medical history of respondents and make appropriate
medical interventions, when applicable and necessary.
In blatant violation of our hard-won guarantees to life, liberty and
security, these rights are snuffed out from victims of extralegal
killings and enforced disappearances. The writ of amparo is a tool
that gives voice to preys of silent guns and prisoners behind secret
walls.
WHEREFORE, premises considered, the petition
is DISMISSED. The Decision of the Court of Appeals dated
December 26, 2007 is affirmed.
 EN BANC
G.R. No. 182498
GEN. AVELINO I. RAZON, JR.,
Chief, Philippine National Police Present:
(PNP); Police Chief Superintendent
RAUL CASTAEDA, Chief, Criminal
Promulgated:
Investigation and Detection Group
PUNO, C.J.,
(CIDG); Police Senior
Superintendent LEONARDO A.
CARPIO,
ESPINA, Chief, Police Anti-Crime
December 3, 2009
and Emergency Response (PACER);
CORONA,
and GEN. JOEL R. GOLTIAO,
Regional Director of ARMM, PNP,
CARPIO MORALES,
Petitioners,
- versus -
CHICO-NAZARIO,

VELASCO, JR.,

NACHURA,
MARY JEAN B. TAGITIS, herein
LEONARDO-DE CASTRO,
represented by ATTY. FELIPE P.
ARCILLA, JR., Attorney-in-Fact, BRION,

Respondent. PERALTA,

BERSAMIN,
x-----------------------------------------------------------------------------------------
DEL CASTILLO,
x
ABAD, and
DECISION
VILLARAMA, JR., JJ.
BRION, J.:

We review in this petition for review on certiorari[1] the
decision dated March 7, 2008 of the Court of Appeals (CA) in C.A-
G.R. AMPARO No. 00009.[2] This CA decision confirmed the enforced
disappearance of Engineer Morced N. Tagitis (Tagitis) and granted
the Writ of Amparo at the petition of his wife, Mary Jean B. Tagitis
(respondent). The dispositive portion of the CA decision reads:
WHEREFORE, premises considered, petition
is hereby GRANTED. The Court hereby FINDS that
this is an enforced disappearance within the
meaning of the United Nations instruments, as used
in the Amparo Rules. The privileges of the writ
of amparo are hereby extended to Engr. Morced
Tagitis.
Consequently: (1) respondent GEN.
EDGARDO M. DOROMAL, Chief, Criminal
Investigation and Detention Group (CIDG) who
should order COL. JOSE VOLPANE PANTE, CIDG-9
Chief, Zamboanga City, to aid him; (2)
respondent GEN. AVELINO I. RAZON, Chief, PNP,
who should order his men, namely: (a)
respondent GEN. JOEL GOLTIAO, Regional Director
of ARMM PNP, (b) COL. AHIRON AJIRIM, both head
of TASK FORCE TAGITIS, and (c) respondent SR.
SUPERINTENDENT LEONARDO A. ESPINA, Chief,
Police Anti-Crime and Emergency Response, to aid
him as their superior- are hereby DIRECTED to
exert extraordinary diligence and efforts, not only
to protect the life, liberty and security of Engr.
Morced Tagitis, but also to extend the privileges of
the writ of amparo to Engr. Morced Tagitis and his
family, and to submit a monthly report of their
actions to this Court, as a way of PERIODIC
REVIEW to enable this Court to monitor the action
of respondents.
This amparo case is hereby DISMISSED as to
respondent LT. GEN. ALEXANDER YANO,
Commanding General, Philippine Army, and as to
respondent GEN. RUBEN RAFAEL, Chief Anti-Terror
Task Force Comet, Zamboanga City, both being with
the military, which is a separate and distinct
organization from the police and the CIDG, in terms
of operations, chain of command and budget.
This Decision reflects the nature of the Writ of Amparo a
protective remedy against violations or threats of violation
against the rights to life, liberty and security.[3] It embodies, as a
remedy, the courts directive to police agencies to undertake
specified courses of action to address the disappearance of an
individual, in this case, Engr. Morced N. Tagitis. It does not
determine guilt nor pinpoint criminal culpability for the
disappearance; rather, it determines responsibility, or at
least accountability, for the enforced disappearance for
purposes of imposing the appropriate remedies to address the
disappearance. Responsibility refers to the extent the actors
have been established by substantial evidence to have
participated in whatever way, by action or omission, in an
enforced disappearance, as a measure of the remedies this
Court shall craft, among them, the directive to file the
appropriate criminal and civil cases against the responsible
parties in the proper courts. Accountability, on the other hand,
refers to the measure of remedies that should be addressed to
those who exhibited involvement in the enforced
disappearance without bringing the level of their complicity to
the level of responsibility defined above; or who are imputed
with knowledge relating to the enforced disappearance and
who carry the burden of disclosure; or those who carry, but
have failed to discharge, the burden of extraordinary diligence
in the investigation of the enforced disappearance. In all these
cases, the issuance of the Writ of Amparo is justified by our
primary goal of addressing the disappearance, so that the life of
the victim is preserved and his liberty and security are restored.
We highlight this nature of a Writ of Amparo case at the outset
to stress that the unique situations that call for the issuance of
the writ, as well as the considerations and measures necessary
to address these situations, may not at all be the same as the
standard measures and procedures in ordinary court actions
and proceedings. In this sense, the Rule on the Writ
of 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 pictures of the
missing person, Engr. Morced Tagitis, for
dissemination to all parts of the country and to
neighboring countries. It had been three (3) months
since GEN. JOEL GOLTIAO admitted having
been informed on November 5, 2007 of the alleged
abduction of Engr. Morced Tagitis by alleged bad
elements of the CIDG. It had been more than one
(1) month since the Writ of Amparo had been
issued on December 28, 2007. It had been three (3)
weeks when battle formation was ordered
through Task Force Tagitis, on January 17, 2008. It
was only on January 28, 2008 when the Task Force
Tagitis requested for clear and recent photographs
of the missing person, Engr. Morced Tagitis, despite
the Task Force Tagitis claim that they already had
an all points bulletin, since November 5, 2007, on
the missing person, Engr. Morced Tagitis. How
could the police look for someone who disappeared
if no clear photograph had been disseminated?
(2) Furthermore, Task Force
Tagitis COL. AHIROM AJIRIM informed this Court
that P/Supt KASIM was designated as Col. Ahirom
Ajirims replacement in the latters official designated
post. Yet, P/Supt KASIMs subpoena was returned to
this Court unserved. Since this Court was made to
understand that it was P/Supt KASIM who was the
petitioners unofficial source of the military
intelligence information that Engr. Morced Tagitis
was abducted by bad elements of the CIDG (par. 15
of the Petition), the close contact between P/Supt
KASIM and Col. Ahirom Ajirim of TASK FORCE
TAGITIS should have ensured the appearance of Col.
KASIM in response to this courts subpoena and COL.
KASIM could have confirmed the military
intelligence information that bad elements of the
CIDG had abducted Engr. Morced Tagitis.
Testimonies for the Respondent
On January 7, 2008, the respondent, Mary Jean B. Tagitis,
testified on direct examination that she went to Jolo and
Zamboanga in her efforts to locate her husband. She said that a
friend from Zamboanga holding a high position in the military
(whom she did not then identify) gave her information that
allowed her to specify her allegations, particularly paragraph 15
of the petition.[29] This friend also told her that her husband
[was] in good hands.[30] The respondent also testified that she
sought the assistance of her former boss in Davao City, Land
Bank Bajada Branch Manager Rudy Salvador, who told her that
PNP CIDG is holding [her husband], Engineer Morced
Tagitis.[31] The respondent recounted that she went to Camp
Katitipan in Davao City where she met Col. Julasirim Ahadin
Kasim (Col. Kasim/Sr. Supt Kasim) who read to her and her
friends (who were then with her) a highly confidential report
that contained the alleged activities of Engineer Tagitis and
informed her that her husband was abducted because he is
under custodial investigation for being a liaison for J.I. or
Jemaah Islamiah.[32]
On January 17, 2008, the respondent on cross-examination
testified that she is Tagitis second wife, and they have been
married for thirteen years; Tagitis was divorced from his first
wife.[33] She last communicated with her husband on October
29, 2007 at around 7:31 p.m. through text messaging; Tagitis
was then on his way to Jolo, Sulu, from Zamboanga City.[34]
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
To read the Rules of Court requirement on pleadings while
petitioner to determine the fate or whereabouts of
the aggrieved party and the identity of the person addressing the unique Amparo situation, the test in reading the
responsible for the threat, act or omission; and 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
The framers of the Amparo Rule never intended Section 5(c)
to life, liberty and security through State or private party action. The
to be complete in every detail in stating the threatened or actual
petition should likewise be read in its totality, rather than in terms of
violation of a victims rights. As in any other initiatory pleading, the
its isolated component parts, to determine if the required elements
pleader must of course state the ultimate facts constituting the cause
namely, of the disappearance, the State or private action, and the
of action, omitting the evidentiary details.[76] In an Amparo petition,
actual or threatened violations of the rights to life, liberty or security
however, this requirement must be read in light of the nature and
are present.
purpose of the proceeding, which addresses a situation of
uncertainty; the petitioner may not be able to describe with certainty
In the present case, the petition amply recites in its
how the victim exactly disappeared, or who actually acted to kidnap,
paragraphs 4 to 11 the circumstances under which Tagitis suddenly
abduct or arrest him or her, or where the victim is detained, because
dropped out of sight after engaging in normal activities, and
these information may purposely be hidden or covered up by those
thereafter was nowhere to be found despite efforts to locate him. The
who caused the disappearance. In this type of situation, to require the
petition alleged, too, under its paragraph 7, in relation to paragraphs
level of specificity, detail and precision that the petitioners
15 and 16, that according to reliable information, police operatives
apparently want to read into the Amparo Rule is to make this Rule
were the perpetrators of the abduction. It also clearly alleged how
a token gesture of judicial concern for violations of the constitutional
Tagitis rights to life, liberty and security were violated when he was
rights to life, liberty and security.
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,
that investigations should have followed. That the petition did not
state the manner and results of the investigation
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
and petition when, instead of cooperating with authorities, the respondent
immediately invoked the Courts intervention.
that
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 The Desaparecidos
headquarters in Davao City, in Zamboanga City, in
Jolo, and in Camp Crame, Quezon City, and all these The present case is one of first impression in the use and
places have been visited by the [respondent] in
application of the Rule on the Writ of Amparo in an enforced
search for her husband, which entailed expenses for
her trips to these places thereby resorting her to disappearance situation. For a deeper appreciation of the application
borrowings and beggings [sic] for financial help of this Rule to an enforced disappearance situation, a brief look at the
from friends and relatives only to try complying to
historical context of the writ and enforced disappearances would be
the different suggestions of these police officers,
despite of which, her efforts produced no positive very helpful.
results up to the present time;

xxxx The phenomenon of enforced disappearance arising from

25. [The respondent] has exhausted all State action first attracted notice in Adolf Hitlers Nact und Nebel
administrative avenues and remedies but to no avail,
and under the circumstances, [respondent] has no Erlass or Night and Fog Decree of December 7, 1941.[82] The Third
other plain, speedy and adequate remedy to protect
and get the release of subject Engr. Morced Tagitis Reichs Night and Fog Program, a State policy, was directed at
from the illegal clutches of [the petitioners], their persons in occupied territories endangering German security; they
intelligence operatives and the like which are in total
violation of the subjects human and constitutional were transported secretly to Germany where they disappeared
rights, except the issuance of a WRIT OF AMPARO.
without a trace. In order to maximize the desired intimidating effect,
the policy prohibited government officials from providing
Based on these considerations, we rule that the respondents
information about the fate of these targeted persons.[83]
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.
 their families are unable to discover their
In the mid-1970s, the phenomenon of enforced whereabouts and the military authorities deny
disappearances resurfaced, shocking and outraging the world when having them in custody until they eventually
reappear in one detention center or another; and
individuals, numbering anywhere from 6,000 to 24,000, were
3) those of victims of salvaging who have
reported to have disappeared during the military regime in disappeared until their lifeless bodies are later
Argentina. Enforced disappearances spread in Latin America, and discovered.[88]

the issue became an international concern when the world noted its
widespread and systematic use by State security forces in that In the Philippines, enforced disappearances generally fall

continent under Operation Condor[84] and during the Dirty War[85] in within the first two categories,[89] and 855 cases were recorded

the 1970s and 1980s. The escalation of the practice saw political during the period of martial law from 1972 until 1986. Of this

activists secretly arrested, tortured, and killed as part of governments number, 595 remained missing, 132 surfaced alive and 127 were

counter-insurgency campaigns. As this form of political brutality found dead. During former President Corazon C. Aquinos term, 820

became routine elsewhere in the continent, the Latin American people were reported to have disappeared and of these, 612 cases

media standardized the term disappearance to describe the were documented. Of this number, 407 remain missing, 108 surfaced

phenomenon. The victims of enforced disappearances were called alive and 97 were found dead. The number of enforced

the desaparecidos,[86] which literally means the disappeared disappearances dropped during former President Fidel V. Ramos

ones.[87] In general, there are three different kinds of disappearance term when only 87 cases were reported, while the three-year term of

cases: former President Joseph E. Estrada yielded 58 reported

cases. KARAPATAN, a local non-governmental organization,
1) those of people arrested without witnesses or reports that as of March 31, 2008, the records show that there were a
without positive identification of the arresting
agents and are never found again; total of 193 victims of enforced disappearance under incumbent

2) those of prisoners who are usually arrested President Gloria M. Arroyos administration. The Commission on
without an appropriate warrant and held in Human Rights records show a total of 636 verified cases of enforced
complete isolation for weeks or months while
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
[94]
elemental definition of the concept of enforced disappearance:
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 denial of their right to information regarding the circumstances of the
twofold. The first is to ensure that all efforts disappeared family member. Thus, enforced disappearances have
at disclosure and investigation are undertaken under pain of indirect been said to be a double form of torture, with doubly paralyzing
contempt from this Court when governmental efforts are less than impact for the victims, as they are kept ignorant of their own fates,
what the individual situations require. The second is to address the while family members are deprived of knowing the whereabouts of
disappearance, so that the life of the victim is preserved and his or their detained loved ones and suffer as well the serious economic
her liberty and security restored. In these senses, our orders and hardship and poverty that in most cases follow the disappearance of
directives relative to the writ are continuing efforts that are not truly the household breadwinner.[102]
terminated until the extrajudicial killing or enforced disappearance is
fully addressed by the complete determination of the fate and the The UN General Assembly first considered the issue of
whereabouts of the victim, by the production of the disappeared Disappeared Persons in December 1978 under Resolution
person and the restoration of his or her liberty and security, and, in 33/173. The Resolution expressed the General Assemblys deep
the proper case, by the commencement of criminal action against the concern arising from reports from various parts of the world relating
guilty parties. to enforced or involuntary disappearances, and requested the UN
Commission on Human Rights to consider the issue of enforced
Enforced Disappearance disappearances with a view to making appropriate
Under International Law
recommendations.[103]

From the International Law perspective, involuntary or

In 1992, in response to the reality that the insidious practice
enforced disappearance is considered a flagrant violation of human
of enforced disappearance had become a global phenomenon, the
rights.[101] It does not only violate the right to life, liberty and security
UN General Assembly adopted the Declaration on the Protection
of the desaparecido; it affects their families as well through the
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
[118]
accepted as law. The material sources of custom include State
practice, State legislation, international and national judicial
decisions, recitals in treaties and other international instruments, a
pattern of treaties in the same form, the practice of international
organs, and resolutions relating to legal questions in the UN General
Assembly.[119] Sometimes referred to as evidence of international
[120]
law, these sources identify the substance and content of the
obligations of States and are indicative of the State practice
and opinio juris requirements of international law.[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 the Courts of Cambodia.[134] In addition, the implementing
concluded that the Universal Declaration has
become, in toto, a part of binding, customary legislation of State Parties to the Rome Statute of the ICC has given
international law. [Citations omitted] rise to a number of national criminal provisions also covering
Fourth, in interpreting Article 2 (right to an effective enforced disappearance.[135]
domestic remedy) of the International Convention on Civil and
Political Rights (ICCPR), to which the Philippines is both a signatory
While the Philippines is not yet formally bound by the terms
and a State Party, the UN Human Rights Committee, under the
of the Convention on enforced disappearance (or by the specific
Office of the High Commissioner for Human Rights, has stated that
terms of the Rome Statute) and has not formally declared enforced
the act of enforced disappearance violates Articles 6 (right to life), 7
disappearance as a specific crime, the above recital shows
(prohibition on torture, cruel, inhuman or degrading treatment or
that enforced disappearance as a State practice has been
punishment) and 9 (right to liberty and security of the person) of the
repudiated by the international community, so that the ban on it
ICCPR, and the act may also amount to a crime against humanity.[131]
is now a generally accepted principle of international law, which
we should consider a part of the law of the land, and which we
Fifth, Article 7, paragraph 1 of the 1998 Rome Statute
should act upon to the extent already allowed under our laws
establishing the International Criminal Court (ICC) also covers
and the international conventions that bind us.
enforced disappearances insofar as they are defined as crimes
The following civil or political rights under the Universal
against humanity,[132] i.e., crimes committed as part of a widespread
Declaration of Human Rights, the ICCPR and the International
or systematic attack against any civilian population, with knowledge
Convention on Economic, Social and Cultural Rights (ICESR) may be
of the attack. While more than 100 countries have ratified the Rome
infringed in the course of a disappearance:[136]
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 1) the right to recognition as a person before the
tribunals, including Sierra Leone Special Court, the Special Panels for law;
Serious Crimes in Timor-Leste, and the Extraordinary Chambers in
 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 effectivelythrough 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.
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]

These difficulties largely arise because the State itself the In addition, there are usually no witnesses to the crime; if

party whose involvement is alleged investigates enforced there are, these witnesses are usually afraid to speak out publicly or

disappearances. Past experiences in other jurisdictions show that the to testify on the disappearance out of fear for their own lives.[143] We

evidentiary difficulties are generally threefold. 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
[148]
occurred. Deniability is central to the policy of enforced
disappearances, as the absence of any proven disappearance makes
it easier to escape the application of legal standards ensuring the
victims human rights.[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
duty of public officials and employees to observe extraordinary
in the performance of duty.
diligence point, too, to the extraordinary measures expected in the
The respondent who is a public official or
employee must prove that extraordinary diligence protection of constitutional rights and in the consequent handling and
as required by applicable laws, rules and regulations investigation of extra-judicial killings and enforced disappearance
was observed in the performance of duty.
cases.
The respondent public official or employee
cannot invoke the presumption that official duty
has been regularly performed or evade Thus, in these proceedings, the Amparo petitioner needs only
responsibility or liability. to properly comply with the substance and form requirements of a
Section 18. Judgment. If the allegations in the Writ of Amparo petition, as discussed above, and prove the
petition are proven by substantial evidence, the
allegations by substantial evidence. Once a rebuttable case has been
court shall grant the privilege of the writ and such
reliefs as may be proper and proven, the respondents must then respond and prove their defenses
appropriate; otherwise, the privilege shall based on the standard of diligence required. The rebuttable case, of
be denied. [Emphasis supplied]
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
These characteristics namely, of being summary and the use investigating authorities to appropriately respond.
of substantial evidence as the required level of proof (in contrast to
the usual preponderance of evidence or proof beyond reasonable The landmark case of Ang Tibay v. Court of Industrial
Relations[151] provided the Court its first opportunity to define the
doubt in court proceedings) reveal the clear intent of the framers of
substantial evidence required to arrive at a valid decision in
the Amparo Rule to have the equivalent of an administrative
administrative proceedings. To directly quote Ang Tibay:
proceeding, albeit judicially conducted, in
addressing Amparo situations. The standard of diligence required the
 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]
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

[152]
In Secretary of Defense v. Manalo, which was the Courts
faced with a lack of direct evidence that the government of Honduras
first petition for a Writ of Amparo, we recognized that the full and
was involved in Velasquez Rodriguez disappearance adopted a
exhaustive proceedings that the substantial evidence standard
relaxed and informal evidentiary standard, and established the rule
regularly requires do not need to apply due to the summary nature
that presumes governmental responsibility for a disappearance if it
of Amparo proceedings. We said:
can be proven that the government carries out a general practice of
The remedy [of the writ of amparo] provides enforced disappearances and the specific case can be linked to that
rapid judicial relief as it partakes of a summary
proceeding that requires only substantial evidence to practice.[154] The IACHR took note of the realistic fact that enforced
make the appropriate reliefs available to the
petitioner; it is not an action to determine criminal disappearances could be proven only through circumstantial or
guilt requiring proof beyond reasonable doubt, or indirect evidence or by logical inference; otherwise, it was
liability for damages requiring preponderance of
evidence, or administrative responsibility impossible to prove that an individual had been made to
requiring substantial evidence that will require
disappear. It held:
 asserted that he had been told by a Honduran military officer about
130. The practice of international and domestic
courts shows that direct evidence, whether the disappearance, and a third witness who testified that he had
testimonial or documentary, is not the only type of spoken in prison to a man who identified himself as Manfredo.[156]
evidence that may be legitimately considered in
reaching a decision. Circumstantial evidence,
indicia, and presumptions may be considered, so
Velasquez stresses the lesson that flexibility is necessary under the
long as they lead to conclusions consistent with
unique circumstances that enforced disappearance cases pose to
the facts.
the courts; to have an effective remedy, the standard of evidence
131. Circumstantial or presumptive evidence is must be responsive to the evidentiary difficulties faced. On the one
especially important in allegations of
hand, we cannot be arbitrary in the admission and appreciation of
disappearances, because this type of repression is
evidence, as arbitrariness entails violation of rights and cannot be
characterized by an attempt to suppress all
information about the kidnapping or the used as an effective counter-measure; we only compound the
whereabouts and fate of the victim. [Emphasis problem if a wrong is addressed by the commission of another
supplied] wrong. On the other hand, we cannot be very strict in our
evidentiary rules and cannot consider evidence the way we do in
In concluding that the disappearance of Manfredo Velsquez
the usual criminal and civil cases; precisely, the proceedings before
(Manfredo) was carried out by agents who acted under cover of
us are administrative in nature where, as a rule, technical rules of
public authority, the IACHR relied on circumstantial evidence
evidence are not strictly observed. Thus, while we must follow the
including the hearsay testimony of Zenaida Velsquez, the victims
substantial evidence rule, we must observe flexibility in considering
sister, who described Manfredos kidnapping on the basis of
the evidence we shall take into account.
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
The fair and proper rule, to our mind, is to consider all the pieces of
that Manfredo was kidnapped by a special military squadron acting
evidence adduced in their totality, and to consider any evidence
under orders of the Chief of the Armed Forces.[155] The IACHR
otherwise inadmissible under our usual rules to be admissible if it is
likewise considered the hearsay testimony of a second witness who
consistent with the admissible evidence adduced. In other
words, we reduce our rules to the most basic test of reason i.e., to
Assessment of the Evidence
the relevance of the evidence to the issue at hand and its
consistency with all other pieces of adduced evidence. Thus, even The threshold question for our resolution is: was there an
hearsay evidence can be admitted if it satisfies this basic minimum
enforced disappearance within the meaning of this term under the
test.
UN Declaration we have cited?

The Convention defines enforced disappearance as the arrest,

We note in this regard that the use of flexibility in the consideration
detention, abduction or any other form of deprivation of liberty by
of evidence is not at all novel in the Philippine legal system. In child
agents of the State or by persons or groups of persons acting with the
abuse cases, Section 28 of the Rule on Examination of a Child
authorization, support or acquiescence of the State, followed by a
Witness[157] is expressly recognized as an exception to the hearsay
refusal to acknowledge the deprivation of liberty or by concealment
rule. This Rule allows the admission of the hearsay testimony of a
of the fate or whereabouts of the disappeared person, which place
child describing any act or attempted act of sexual abuse in any
such a person outside the protection of the law.[159] Under this
criminal or non-criminal proceeding, subject to certain prerequisites
definition, the elements that constitute enforced disappearance are
and the right of cross-examination by the adverse party. The
essentially fourfold:[160]
admission of the statement is determined by the court in light of
specified subjective and objective considerations that provide (a) arrest, detention, abduction or any form of
deprivation of liberty;
sufficient indicia of reliability of the child witness.[158] These
(b) carried out by agents of the State or persons
requisites for admission find their counterpart in the present case
or groups of persons acting with the
under the above-described conditions for the exercise of flexibility in authorization, support or acquiescence of the
State;
the consideration of evidence, including hearsay evidence, in (c) followed by a refusal to acknowledge the
detention, or a concealment of the fate of the
extrajudicial killings and enforced disappearance cases.
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 Q: And what was the content of that highly confidential
is allegedly parang liason ng J.I., sir. report?

Q: What is J.I.?
A: Those alleged activities of Engineer Tagitis,
sir.[161] [Emphasis supplied]
A: Jemaah Islamiah, sir.
She confirmed this testimony in her cross-examination:

Q: Was there any information that was read to you Q: You also mentioned that you went to Camp
during one of those visits of yours in that Katitipan in Davao City?
Camp?

A: Yes, maam.
A: Col. Casim did not furnish me a copy of his
report because he said those reports are
highly confidential, sir. Q: And a certain Col. Kasim told you that your
husband was abducted and under
custodial investigation?
Q: Was it read to you then even though you were
not furnished a copy?
A: Yes, maam.

A: Yes, sir. In front of us, my friends.

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 Q: Who were they?
Karingal instead. Enough na yun
na effort ko because I know that they would
deny it, maam.[164] 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?
On February 11, 2008, the respondent presented Mrs.
Talbin to corroborate her testimony that her husband was abducted A: Col. Kasim (PS Supt. Julasirim Ahadin Kasim) only, sir.
and held under custodial investigation by the PNP-CIDG Zamboanga
City, viz:
Q: Were you able to talk to him?

Q: You said that you went to Camp Katitipan in

Davao City sometime November 24, 2007, A: Yes, sir.
who was with you when you went there?

Q: The four of you?

A: Mary Jean Tagitis, sir.

A: Yes, sir.
Q: Only the two of you?

Q: What information did you get from Col. Kasim during that
A: No. We have some other companions. We were four at time?
that time, sir.
A: The first time we met with [him] I asked him if he A: As far as I can see it, sir, it is written in white
knew of the exact location, if he can furnish bond paper. I dont know if it was
us the location of Engr. Tagitis. And he was computerized but Im certain that it was
reading this report. He told us that Engr. typewritten. Im not sure if it used
Tagitis is in good hands. He is with the computer, fax or what, sir.
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 Q: When he was reading it to you, was he reading it
he was under surveillance from January line by line or he was reading in a summary
2007 up to the time that he was form?
abducted. He told us that he was under
custodial investigation. As Ive said earlier,
he was seen under surveillance from
A: Sometimes he was glancing to the report and talking to
January. He was seen talking to Omar [165]
us, sir.
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 xxxx
he be in custodial investigation. He said
Q: Were you informed as to the place where he was
until we can get some information. But he
being kept during that time?
also told us that he cannot give us that
report because it was a raw report. It was
not official, sir.
A: He did not tell us where he [Tagitis] was being
kept. But he mentioned this Talipapao,
Sulu, 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?
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
[167]
follow up as to its veracity.
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 officewith the results through hearings the CA may deem appropriate to
mandate to investigate and prevent crimes, effect the arrest of conduct. For purposes of these investigations, the PNP/PNP-CIDG
criminal offenders, bring offenders to justice and assist in their shall initially present to the CA a plan of action for further
prosecution. The PNP-CIDG, as Col. Jose Volpane Pante (then Chief investigation, periodically reporting the detailed results of its
of CIDG Region 9) testified, is the investigative arm of the PNP and investigation to the CA for its consideration and action.On behalf of
is mandated to investigate and prosecute all cases involving this Court, the CA shall pass upon: the need for the PNP and the
violations of the Revised Penal Code, particularly those considered PNP-CIDG to make disclosures of matters known to them as
as heinous crimes.[176] Under the PNP organizational structure, the indicated in this Decision and as further CA hearings may indicate;
PNP-CIDG is tasked to investigate all major crimes involving the petitioners submissions; the sufficiency of their investigative
violations of the Revised Penal Code and operates against organized efforts; and submit to this Court a quarterly report containing its
crime groups, unless the President assigns the case exclusively to the actions and recommendations, copy furnished the petitioners and the
National Bureau of Investigation (NBI).[177] No indication exists in respondent, with the first report due at the end of the first quarter
this case showing that the President ever directly intervened by counted from the finality of this Decision. The PNP and the PNP-
assigning the investigation of Tagitis disappearance exclusively to CIDG shall have one (1) full year to undertake their
the NBI. investigation. The CA shall submit its full report for the
consideration of this Court at the end of the 4th quarter counted from
Given their mandates, the PNP and PNP-CIDG officials and the finality of this Decision.
members were the ones who were remiss in their duties when the
government completely failed to exercise the extral'>To fully enforce WHEREFORE, premises considered, we DENY the
the Amparo remedy, we refer this case back to the CA for petitioners petition for review on certiorari for lack of merit,
appropriate proceedings directed at the monitoring of the PNP and and AFFIRM the decision of the Court of Appeals dated March 7,
the PNP-CIDG investigations and actions, and the validation of their 2008 under the following terms:
 with the obligation to disclose information known to
a. Recognition that the disappearance of Engineer
him and to his assets in relation with the enforced
Morced N. Tagitis is an enforced disappearance
disappearance of Engineer Morced N. Tagitis;
covered by the Rule on the Writ of Amparo;
f. Referring this case back to the Court of
b. Without any specific pronouncement on exact
Appeals for appropriate proceedings directed at the
authorship and responsibility, declaring the
monitoring of the PNP and PNP-CIDG
government (through the PNP and the PNP-CIDG)
investigations, actions and the validation of their
and Colonel Julasirim Ahadin Kasim accountable for
results; the PNP and the PNP-CIDG shall initially
the enforced disappearance of Engineer Morced N.
present to the Court of Appeals a plan of action for
Tagitis;
further investigation, periodically reporting their
c. Confirmation of the validity of the Writ
results to the Court of Appeals for consideration and
of Amparo the Court of Appeals issued;
action;
d. Holding the PNP, through the PNP Chief, and
g. Requiring the Court of Appeals to submit to this
the PNP-CIDG, through its Chief, directly
Court a quarterly report with its recommendations,
responsible for the disclosure of material facts
copy furnished the incumbent PNP and PNP-CIDG
known to the government and to their offices
Chiefs as petitioners and the respondent, with the
regarding the disappearance of Engineer Morced N.
first report due at the end of the first quarter counted
Tagitis, and for the conduct of proper investigations
from the finality of this Decision;
using extraordinary diligence, with the obligation to
h. The PNP and the PNP-CIDG shall have one (1)
show investigation results acceptable to this Court;
full year to undertake their investigations; the Court
e. Ordering Colonel Julasirim Ahadin Kasim
of Appeals shall submit its full report for the
impleaded in this case and holding him accountable
 consideration of this Court at the end of the
4th quarter counted from the finality of this Decision;

These directives and those of the Court of Appeals made

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

The dismissal of the Amparo petition with respect to General

Alexander Yano, Commanding General, Philippine Army, and
General Ruben Rafael, Chief, Anti-Terrorism Task Force Comet,
Zamboanga City, is hereby AFFIRMED.

SO ORDERED.
 TOLENTINO, MAJ. GEN.
JUANITO GOMEZ, MAJ. GEN.
Republic of the Philippines DELFIN BANGIT, LT. COL. NOEL
Supreme Court CLEMENT, LT. COL.
MELQUIADES FELICIANO,
Manila DIRECTOR GENERAL OSCAR
CALDERON,

Respondents.

x----------------------------------------
-x
EN BANC
EDITA T. BURGOS,

EDITA T. BURGOS, G.R. No. 183711 Petitioner,

G.R. No. 183712
Petitioner,

- versus -

- versus -

PRESIDENT GLORIA
MACAPAGAL ARROYO, GEN.
PRESIDENT GLORIA HERMOGENES ESPERON, JR.,
MACAPAGAL-ARROYO, GEN. LT. GEN. ROMEO P.
HERMOGENES ESPERON, JR., TOLENTINO, MAJ. GEN.
LT. GEN. ROMEO P. JUANITO GOMEZ, LT. COL.
MELQUIADES FELICIANO, LT. Respondents. PERALTA,*
COL. NOEL CLEMENT,
BERSAMIN,
Respondents.
DEL CASTILLO,
x----------------------------------------
-x ABAD,

EDITA T. BURGOS, VILLARAMA, JR.,

Petitioner, PEREZ,

MENDOZA, and

SERENO, JJ.

- versus -
G.R. No. 183713 Promulgated:

July 5, 2011

CHIEF OF STAFF OF THE Present: x-----------------------------------------------------------------------------------

------x
ARMED FORCES OF THE
PHILIPPINES, GEN.
HERMOGENES ESPERON, JR., CORONA, C.J.,
RESOLUTION
Commanding General of the
CARPIO,
Philippine Army, LT. GEN.
ALEXANDER YANO; Chief of VELASCO, JR.,
the Philippine National Police, BRION, J.:
DIRECTOR GENERAL AVELINO LEONARDO-DE CASTRO,
RAZON, JR.,
BRION,
 We review,[1] in light of the latest developments in this case,
the decision[2] dated July 17, 2008 of the Court of Appeals (CA) in
the consolidated petitions for Habeas Corpus,[3] Contempt[4] and
Writ of Amparo[5] filed by Edita T. Burgos (petitioner). The assailed
CA decision dismissed the petition for the issuance of the Writ
of Habeas Corpus; denied the petitioners motion to declare the
respondents in Contempt; and partially granted the privilege of the
Writ of Amparo.[6]
On June 22, 2010, we issued a Resolution[7] referring the
present case to the Commission on Human Rights (CHR), as the
Courts directly commissioned agency tasked with the continuation
of the investigation of Jonas Joseph T. Burgos abduction and the
gathering of evidence, with the obligation to report its factual
findings and recommendations to this Court. We found the referral
necessary as the investigation by the PNP-CIDG, by the AFP Provost
Marshal, and even by the CHR had been less than complete; for
one, there were very significant lapses in the handling of the
investigation. In particular, we highlighted the PNP-CIDGs failure to
identify the cartographic sketches of two (one male and one female)
of the five abductors of Jonas, based on their interview of
eyewitnesses to the abduction.[8] We held:
Considering the findings of the CA and our
review of the records of the present case, we
conclude that the PNP and the AFP have so far
failed to conduct an exhaustive and meaningful
investigation into the disappearance of Jonas
Burgos, and to exercise the extraordinary diligence
(in the performance of their duties) that the Rule
on the Writ of Amparo requires. Because of these
investigative shortcomings, we cannot rule on the
case until a more meaningful investigation, using
extraordinary diligence, is undertaken.
From the records, we note that there are
very significant lapses in the handling of the
investigation - among them the PNP-CIDGs failure
to identify the cartographic sketches of two (one
male and one female) of the five abductors of
Jonas based on their interview of eyewitnesses to
the abduction. This lapse is based on the
information provided to the petitioner by no less
than State Prosecutor Emmanuel Velasco of the
DOJ who identified the persons who were possibly
involved in the abduction, namely: T/Sgt. Jason
Roxas (Philippine Army), Cpl. Maria Joana
Francisco (Philippine Air Force), M/Sgt. Aron
Arroyo (Philippine Air Force), and an alias T.L., all
reportedly assigned with Military Intelligence
Group 15 of Intelligence Service of the AFP. No
search and certification were ever made on
whether these persons were AFP personnel or in
other branches of the service, such as the
Philippine Air Force. As testified to by the
petitioner, no significant follow through was also
made by the PNP-CIDG in ascertaining the
identities of the cartographic sketches of two of the
abductors despite the evidentiary leads provided by
State Prosecutor Velasco of the DOJ. Notably, the
PNP-CIDG, as the lead investigating agency in the
present case, did not appear to have lifted a finger
to pursue these aspects of the case.
We note, too, that no independent
investigation appeared to have been made by the
PNP-CIDG to inquire into the veracity of Lipios and
Manuels claims that Jonas was abducted by a
certain @KA DANTE and a certain @KA ENSO of
the CPP/NPA guerilla unit RYG. The records do not
indicate whether the PNP-CIDG conducted a
follow-up investigation to determine the identities
and whereabouts of @KA Dante and @KA
ENSO. These omissions were aggravated by the CA
finding that the PNP has yet to refer any case for
preliminary investigation to the DOJ despite its
representation before the CA that it had forwarded
all pertinent and relevant documents to the DOJ
for the filing of appropriate charges against @KA
DANTE and @KA ENSO.
While significant leads have been provided
to investigators, the investigations by the PNP-
CIDG, the AFP Provost Marshal, and even the
Commission on Human Rights (CHR) have been less
than complete. The PNP-CIDGs investigation
particularly leaves much to be desired in terms of
the extraordinary diligence that the Rule on the
Writ of Amparo requires.
Following the CHRs legal mandate, we gave the Commission the
following specific directives:[9]
(a) ascertaining the identities of the
persons appearing in the cartographic sketches of
the two alleged abductors as well as their
whereabouts;
(b) determining based on records, past and
present, the identities and locations of the persons
identified by State Prosecutor Velasco alleged to be
involved in the abduction of Jonas, namely: T/Sgt.
Jason Roxas (Philippine Army); Cpl. Maria Joana
Francisco (Philippine Air Force), M/Sgt. Aron
Arroyo (Philippine Air Force), and an alias T.L., all
 reportedly assigned with Military Intelligence
Group 15 of Intelligence Service of the AFP;
further proceedings and investigations, as may be
necessary, should be made to pursue the lead
allegedly provided by State Prosecutor Velasco on
the identities of the possible abductors;
(c) inquiring into the veracity of Lipios
and Manuels claims that Jonas was abducted by a
certain @KA DANTE and @KA ENSO of the
CPP/NPA guerilla unit RYG;
(d) determining based on records, past and
present, as well as further investigation, the
identities and whereabouts of @KA DANTE and
@KA ENSO; and
(e) undertaking all measures, in the
investigation of the Burgos abduction, that may be
necessary to live up to the extraordinary measures
we require in addressing an enforced disappearance
under the Rule on the Writ of Amparo.
In this same Resolution, we also affirmed the CAs dismissal
of the petitions for Contempt and for the issuance of a Writ
of Amparo with respect to President Macapagal-Arroyo, as she is
entitled as President to immunity from suit.[10]
On March 15, 2011, the CHR submitted to the Court
its Investigation Report on the Enforced Disappearance of Jonas
Burgos (CHR Report), in compliance with our June 22, 2010
Resolution.[11] In this Report, the CHR recounted the investigations
undertaken, whose pertinent details we quote below:
On June 26, 2010, the CHR issued
Resolution CHR IV No. A2010-100 to intensify the
investigation of the case of the Burgos enforced
disappearance; and for this purpose, created a
Special Investigation Teamheaded by
Commissioner Jose Manuel S. Mamauag.
xxx
In compliance with the directive
mentioned in the above-quoted En
Banc Resolution of the Supreme Court,
the Team conducted field investigations by: (1)
interviewing a) civilian authorities involved in the
first investigation of the instant case; b) military
men under detention for alleged violations of
Articles of War; c) Security Officers of Ever Gotesco
Mall, Commonwealth Avenue, Quezon City; d) two
(2) of the three (3) CIDG witnesses; e) two (2)
eyewitnesses who described to the police sketch
artist two (2) faces of a male and female abductors
of Jonas Burgos; f) Rebel-Returnees (RRs); g)
officers and men in the military and police service;
h) local officials and other government
functionaries; and i) ordinary citizens; (2) inquiring
into the veracity of CIDG witnesses Lipios and
Manuels claims that Jonas was abducted by a
certain @KA DANTE and @KA ENSO of the
CPP/NPA guerilla unit RYG; (3) securing case
records from the prosecution service and courts of
law; (4) visiting military and police units. Offices,
camps, detention centers, and jails and requesting
copies of documents and records in their
possession that are relevant to the instant case; (5)
searching for and interviewing witnesses and
informants; and (6) pursuing leads provided by
them.
S. Emails Star-Struck
38. Pursuing the lead mentioned in the
anonymous e-mail, which was attached to the
Burgos petition as Exhibit J, that the team leader
(T.L.) in the Jonas Burgos abduction was a certain
Army Captain, (promotable to Major), a good
looking guy (tisoy), and a potential showbiz
personality known otherwise as Captain Star-
struck, the Team requested the CHR Clearance
Section, Legal Division for any information leading
to T.L. or to all Philippine Army applicants for CHR
clearance whose ranks are Captains or Majors
promoted during the years 2007 to 2009.
39. Sometime in November 2010,
the Team was able to track down one CHR
clearance-applicant who most likely possesses
and/or matches the information provided in the
said lead.But when his photo/picture was
presented to the eyewitnesses, they failed to
identify him.
40. Undaunted with the negative
identification, the Team suspected that the team
leader might not have participated in the actual
abduction inside Hapag Kainan Restaurant, the
scene of the crime, but most probably was in one
of the three cars allegedly used during the
operation while giving orders or commanding the
actual abductors.
41. In relation to the above suspicion,
the Team has theorized that officers below the
rank of Captain might have perpetrated the actual
abduction.
42. The Team explored this possibility and
focused its attention on the officers of the 7th ID,
PA, namely: Lt. Vicente O. Dagdag, Jr., the S-4 of 65
IB who executed an affidavit relative to the alleged
stolen Plate No. TAB-194; 2Lt. Rey B. Dequito of
56th IB, the witness against Edmond Dag-Uamn for
the alleged crime of murder; and 1Lt. Usmalik
Tayaban, the Team Leader with the 56th IB who
issued a Custody Receipt in connection with the
Petition for Habeas Corpus filed in Angeles City
relative to the 2006 Emerito Lipio abduction case
against the police and military personnel.
T. Face-book account
43. Google search of the names of the
above mentioned individuals yielded negative
result except for 1Lt. Usmalik Tayaban, whose
name was connected to a social networking site,
the Face-book account of PMA BATCH SANGHAYA
2000.
44. In the Facebook account Sanghaya, the
contents of which is categorized as PUBLIC or open
to public viewing, it appears that Malik Tayaban is
a graduate of the Philippine Military Academy
(PMA) Batch Sanghaya of 2000. Other leads were
also discovered, such as the following: vernacular
description of tisoy which was mentioned by one
of the users in the comment portion of the account
which incidentally was also mentioned in the
anonymous e-mail as the team leader (T.L.); the
picture of a man sporting a back-pack, which was
also mentioned by witness Elsa. Per Elsas account,
the person in the cartographic sketch was wearing
a back-pack.
45. Aware of the intricacies of the above-
mentioned leads, the Team caused the
reproduction of all pictures in the Facebook
account for future reference; and requested the
NBI (Burgos) Team for a copy of the PMA Sanghaya
Batch 2000 Year Book, also for future reference.
U. The PMA Year Book
46. Through the efforts of the NBI (Burgos)
Team, the Team was able to get the PMA Year
Book of Sanghaya Batch 2000 and the location of
one important eyewitness in the abduction.
V. JEFFREY CABINTOY
47. On December 1, 2010,
the Team together with the NBI Team were able to
locate Jeffrey Cabintoy (Jeffrey), one of the two (2)
eyewitnesses who provided the police cartographic
artist with the description of two (2) principal
abductors of Jonas Burgos. Jeffrey narrated in
details (sic) the circumstances that happened
before and during the abduction.
48. On December 7, 2010, the Team and
Jeffrey went to the place of incident at Ever
Gotesco Mall, Quezon City to refresh his memory
and re-enact what transpired. In the afternoon of
the same date, the Team invited Jeffrey to the CHR
Central Office in Quezon City, where he was shown
for identification twenty (20) copies of colored
photographs/pictures of men and the almost two
hundred forty-four (244) photographs/pictures
stored in the computer and lifted from the profiles
of the Philippine Military Academy Year Book of
Batch Sanghaya 2000.
49. Jeffrey pointed to a man in the two (2)
colored group pictures/photographs, that he
identified as among the 8-man group who
abducted Jonas Burgos. For record and
identification purposes, the Team encircled the
face that Jeffrey identified in the two pictures;
then he affixed his signature on each picture. Also,
while leafing through the pictures of the PMA
graduates in the Year Book of Sanghaya 2000
Batch, the witness identified a picture, with a bold
and all-capitalized name HARRY AGAGEN BALIAGA
JR and the words Agawa, Besao, Mt. Province
printed there under the capitalized words
PHILIPPINE ARMY written on the upper portion, as
the same person he pointed out in the two group
pictures just mentioned above. Immediately
thereafter, the Team caused the production of the
photo identified by Jeffrey and asked him to affix
his signature, which he also did.
50. After examining each of these pictures,
Jeffrey declared that it dawned on him that based
on his recollection of faces involved in the
abduction of Jonas Burgos, he now remembers the
face of a man, other than the two (2) faces whose
description he already provided before to a police
sketch artist, who was part of the 8-man group of
abductors. And he also confirms it now that the
person he is referring to was indeed seen by him as
one of those who abducted Jonas Burgos at Hapag
Kainan Restaurant of Ever Gotesco
Mall, Commonwealth Avenue, Quezon City.
51. When asked how certain he was of the
person he identified, considering that the printed
copy of the photo lifted from the Face-
book Sanghaya Account was taken sometime in
the year 2010; while the picture appearing in the
computer was lifted from the PMA Sanghaya 2000
Batch Year Book, Jeffrey replied Ang taong ito ay
aking natatandaan sa kadahilanan na nuong una
siya ay nakaupo na katabi sa bandang kaliwa nang
taong dumukot at natapos silang mag usap lumapit
sa akin at pilit akong pinipigilan na wag daw
makialam at ang sabi nya sa akin ay WAG KA
DITONG MAKIALAM KASI ANG TAONG ITO AY
MATAGAL NA NAMING SINUSUBAYBAYAN DAHIL
SA DROGA kahit pa halos nagmamakaawa na nang
tulong ang taong dinukot; at matapos nuon ay
sapilitan na nilang binitbit sa labas ang biktima. ( I
remember this man for the reason that at first he
was seated at the left side of the person abducted;
and after they talked, he approached me and was
preventing me forcefully saying not to interfere
and he said to me: DONT YOU INTERFERE HERE
SINCE WE HAVE BEEN DOING SOME SURVEILLANCE
ON THIS MAN FOR SOME TIME ALREADY BECAUSE
OF DRUGS despite that the man was already
pleading for help, and after that, they forcibly
dragged the victim outside.)
52. When asked if he could identify the
picture of Jonas Burgos, Jeffrey affirmed that the
person in the picture is the person referred to by
him as the victim of abduction and his name is
Jonas Burgos. He further stated that he learned of
the victims name when he saw his picture flashed
on TV and hear his name. When asked if he is
willing to execute an affidavit on the facts that he
has just provided, he answered yes and at that
juncture the Team assisted him in the preparation
of his Sinumpaang Salaysay based on his personal
knowledge and in a language known to him. After
which, the Team asked Jeffrey to read, examine
and determine whether all the information he just
provided are reflected in his Sinumpaang
Salaysay and Jeffrey answered yes.Thereafter,
Jeffrey affixed his signature after being sworn to
before a lady CHR lawyer and a duly commissioned
Notary Public for and in Quezon City.
W. Daguman confirmed Tayabans and Baliagas
actual affiliation with the military and their
assignment at the 56th Infantry Battalion, 7th ID
53. On December 10, 2010, the Team went
to the Bulacan Provincial Jail to visit Edmond Dag-
Uman and asked him to identify his former
Company Commander at the 56th IB, 71 ID, Lt.
Usmalik Tayaban and to identify the pictures.
54. Edmond Dag-uman identified the
encircled in the picture as LT. HARRY A. BALIAGA,
JR., and the man with a receding hair as LT.
USMALIK TAYABAN, his former Company
Commander.
55. When asked if he was willing to reduce
in writing his precious statements and those that
just mentioned, he replied BAKA MAPAHAMAK
AKO NYAN! (That might endanger me!). Following
a lengthy discussion on the pros and cons of
executing a sworn statement and the assurance of
the Team to exclude his statements that are critical
to the military establishment, it dawned on Dag-
uman that his statement would be of help to the
Commission in bringing his case to the proper
authorities for review and appropriate action, that
he eventually expressed his willingness to do so.
56. After which the Team immediately
went to a Computer Caf nearby to encode
the Salaysay, then the printed copy was presented
to him for his determination whether he is in full
accord with the contents therein. Edmond spent
about thirty (30) minutes reading it and changed
the word Charlie to Bravo and then affixed his
initial on it. He also signed the Sinumpaang
Salaysay after being sworn to before a team
member authorized to administer oath.
X. Second visit to ELSA AGASANG and her
Supplemental Sworn Statement
57. On January 26, 2011, the Team along
with witness Jeffrey went to Bicol to meet witness
Elsa. The aim was to help Elsa recall the faces of
those she saw in the abduction by showing to her
recently-acquired pictures of suspects.
58. For the first time they would re-unite,
after almost four years since that fateful day of
 April 28, 2007, when both of them had the
experience of witnessing an abduction incident,
which rendered them jobless and unsafe.
59. The Team told Jeffrey to sit in front of
Elsa without introducing him to her. After about
half an hour into the conversation, she expressed
disbelief when she realized that she was facing in
person he co-worker that she knew very well.
60. On January 29, 2011, Elsa executed her
Karagdagang Sinumpaang Salaysay affirming her
Salaysay given before PCI Lino DL Banaag at the
CIDU, Quezon City Police District Office, Camp
Karingal, Quezon City; and corroborating the
material allegations contained in the Sinumpaang
Salaysay of Jeffrey.
On the basis of the evidence it had gathered, the CHR
submitted the following findings:[12]
Based on the facts developed by evidence
obtaining in this case, the CHR finds that the
enforced disappearance of Jonas Joseph T. Burgos
had transpired; and that his constitutional rights
to life liberty and security were violated by the
Government have been fully determined.
Jeffrey Cabintoy and Elsa Agasang have
witnessed on that fateful day of April 28, 2007 the
forcible abduction of Jonas Burgos by a group of
about seven (7) men and a woman from the
extension portion of Hapag Kainan Restaurant,
located at the ground floor of Ever Gotesco
Mall, Commonwealth Avenue, Quezon City.
xxxx
The eyewitnesses mentioned above
were Jeffrey Cabintoy (Jeffrey) and Elsa Agasang
(Elsa), who at the time of the abduction were
working as busboy and Trainee-Supervisor,
respectively, at Hapag Kainan Restaurant.
In his Sinumpaang Salaysay, Jeffrey had a
clear recollection of the face of HARRY AGAGEN
BALIAGA, JR. as one of the principal
abductors, apart from the faces of the two
abductors in the cartographic sketches that he
described to the police, after he was shown by
the Team the pictures in the PMA Year Book of
Batch Sanghaya 2000 and group pictures of men
taken some years thereafter.
The same group of pictures were shown
to detained former 56th IB Army
trooper Edmond M. Dag-uman (Dag-uman), who
also positively identified Lt. Harry Baliaga,
Jr.Dagumans Sinumpaang Salaysay states that he
came to know Lt. Baliaga as a Company
Commander in the 56th IB while he was still in the
military service (with Serial No. 800693, from
1997 to 2002) also with the 56th IB but under 1Lt.
Usmalik Tayaban, the Commander of Bravo
Company. When he was arrested and brought to
the 56th IB Camp in April 2005, he did not see Lt.
Baliaga anymore at the said camp. The similar
reaction that the pictures elicited from both Jeffrey
and Daguman did not pass unnoticed by
the Team. Both men always look pensive, probably
because of the pathetic plight they are in right
now. It came as a surprise therefore to
the Team when they could hardly hide their smile
upon seeing the face of Baliaga, as if they know the
man very well.
Moreover, when the Team asked how
Jeffrey how certain was he that it was indeed
Baliaga that he saw as among those who actually
participated in Jonas abduction, Jeffrey was able to
give a graphic description and spontaneously, to
boot, the blow by blow account of the incident,
including the initial positioning of the actors,
specially Baliaga, who even approached, talked to,
and prevented him from interfering in their
criminal act.
A Rebel-returnee (RR) named Maria Vita
Lozada y Villegas @KA MY, has identified the face
of the female in the cartographic sketch as a
certain Lt. Fernando. While Lozada refuses to
include her identification of Lt. Fernando in
her Sinumpaang Salaysay for fear of a backlash,
she told the Team that she was certain it was Lt.
Fernando in the cartographic sketch since both of
them were involved in counter-insurgency
operations at the 56th IB, while she was under the
care of the battalion from March 2006 until she
left the 56th IB Headquarters in October
2007.Lozadas involvement in counter-insurgency
operations together with Lt. Fernando was among
the facts gathered by the CHR Regional Office 3
Investigators, whose investigation into the
enforced disappearance of Jonas Joseph Burgos
was documented by way of an After Mission
Report dated August 13, 2008.
Most if not all the actual abductors would
have been identified had it not been for what is
otherwise called as evidentiary
difficulties shamelessly put up by some police and
military elites. The deliberate refusal of TJAG Roa
to provide the CHR with the requested
documents does not only defy the Supreme Court
directive to the AFP but ipso facto created a
disputable presumption that AFP personnel were
responsible for the abduction and that their
superiors would be found accountable, if not
responsible, for the crime committed. This
observation finds support in the disputable
presumption That evidence willfully suppressed
would be adverse if produced. (Paragraph (e),
Section 3, Rule 131 on Burden of Proof and
Presumptions, Revised Rules on Evidence of the
Rules of Court of the Philippines).
In saying that the requested document is
irrelevant, the Team has deemed that the
requested documents and profiles would help
ascertain the true identities of the cartographic
sketches of two abductors because a certain
Virgilio Eustaquio has claimed that one of the
intelligence operatives involved in the 2007 ERAP
5 case fits the description of his abductor.
As regards the PNP CIDG, the positive
identification of former 56th IB officer Lt. HARRY
A. BALIAGA, JR. as one of the principal abductors
has effectively crushed the theory of the CIDG
witnesses that the NPAs abducted Jonas. Baliagas
true identity and affiliation with the military have
been established by overwhelming evidence
corroborated by detained former Army trooper
Dag-uman.
For lack of material time, the Commission
will continue to investigate the enforced
disappearance of Jonas Burgos as an independent
body and pursuant to its mandate under the 1987
Constitution. Of particular importance are the
identities and locations of the persons appearing in
the cartographic sketches; the allegations that
CIDG Witnesses Emerito G. Lipio and Meliza
Concepcion-Reyes are AFP enlisted personnel and
the alleged participation of Delfin De Guzman @
Ka Baste in the abduction of Jonas Burgos whose
case for Murder and Attempted Murder was
dismissed by the court for failure of the lone
witness, an army man of the 56th IB to testify
against him.
following recommendations for the Courts consideration, viz:[13]
Interview with Virgilio Eustaquio, Chairman
of the Union Masses for Democracy and Justice
(UMDJ), revealed that the male abductor of Jonas
Burgos appearing in the cartographic sketch was
among the raiders who abducted him and four
others, identified as Jim Cabauatan, Jose
Curament, Ruben Dionisio and Dennis Ibona
otherwise known as ERAP FIVE.
Unfortunately, and as already pointed out
above, The Judge Advocate General (TJAG) turned
down the request of the Team for a profile of the
operatives in the so-called Erap 5 abduction on the
ground of relevancy and branded the request as a
fishing expedition per its Disposition Form dated
September 21, 2010.
Efforts to contact Virgilio Eustaquio to
secure his affidavit proved futile, as his present
whereabouts cannot be determined. And due to
lack of material time, the Commission decided to
pursue the same and determine the whereabouts
of the other members of the Erap 5 on its own
time and authority as an independent body.
Based on the above-cited findings, the CHR submitted the
i. To DIRECT the Department of Justice
(DOJ), subject to certain requirements, to
immediately admit witnesses Jeffrey T. Cabintoy
and Elsa B. Agasang to the Witness Protection,
Security and Benefit Program under Republic Act
No. 6981;
ii. To DIRECT the Department of Justice
(DOJ) to commence the filing of Criminal Charges
for Kidnapping/Enforced Disappearance and/or
Arbitrary Detention against 1LT. HARRY AGAGEN
BALIAGA, JR. of the Philippine Army, as Principal by
Direct Participation in the abduction of Jonas
Joseph T. Burgos on April 28, 2007 from Ever
Gotesco Mall, Commonwealth Avenue, Quezon
City;
iii. To DIRECT the Department of Justice to
cause the filing of Obstruction of Justice against
Emerito Lipio y Gonzales; Marlon Manuel y de
Leon; and Meliza Concepcion-Reyes for giving false
or fabricated information to the CIDG and for their
willful refusal to cooperate with the CHR Team in
the investigation of the herein enforced
disappearance;
iv. To DIRECT Cavite Provincial Prosecutor
Emmanuel Velasco to appear before the Supreme
Court and to divulge his source/informant as the
same does not fall under the privilege
communication rule;
v. To DIRECT the PNP-CIDG RC, NCRCIDU,
Atty. Joel Napoleon M. Coronel, to explain his
Memorandum to the CIDG-CIDD stating that the
witnesses were reportedly turned over by the
Bulacan PPO and Philippine Army to the CIDG for
investigation, considering that said witnesses were
not under police or military custody at the time of
the supposed turn-over in the evening of August
22, 2007 and to identify the PNP officer who
directed the CIDG operatives to fetch Emerito G.
Lipio in Bulacan and the two other CIDG witnesses
for tactical interrogation;
vi. To REQUIRE General Roa of the Judge
Advocate General Office, AFP, and the Deputy
Chief of Staff for Personnel, JI, AFP, to explain their
failure and/or refusal to provide the CHR with
copies of documents relevant to the case of Jonas
T. Burgos, particularly the following: (a) Profile
and Summary of Information and pictures of
T/Sgt. Jason Roxas (Philippine Army) and three (3)
other enlisted personnel mentioned in paragraph
(1) of the dispositive portion of the Supreme Court
En Banc Resolution issued on 22 June 2010 in the
instant consolidated cases, including a
certain 2Lt. Fernando, a lady officer involved in the
counter-insurgency operations of the 56th IB in
2006 to 2007; (b) copies of the records of the
2007 ERAP 5 incident in Kamuning, Quezon City
and the complete list of the intelligence operatives
involved in that said covert military operation,
including their respective Summary of
Information and individual pictures;
and (c) complete list of the officers,
women and men assigned at the 56th and 69th
Infantry Battalion and the 7th Infantry Division
from January 1, 2004 to June 30, 2007 with their
respective profiles, Summary of Information and
pictures; including the list of captured rebels and
rebels who surrendered to the said camps and
their corresponding pictures and copies of their
Tactical Interrogation Reports and the cases filed
against them, if any;

vii. To DIRECT the PNP-CIDG to comply with
its mandate under paragraph (3) of the dispositive
portion of the Supreme Court En Banc Resolution
promulgated on 22 June 2010 in the instant
consolidated cases;
viii. To DIRECT Harry A. Baliaga, Jr., the
Philippine Armys 56th Infantry Battalion in Bulacan
and 7th Infantry Division at Fort Magsaysay in Laur,
Nueva Ecija to produce the living body of the
victim Jonas Joseph T. Burgos before this Court;
ix. To DIRECT the Department of Justice to
review and determine the probable
liability/accountability of the officers and enlisted
personnel concerned of the Philippine Armys 56th
IB and the 7th ID, relative to the torture and/or
other forms of ill-treatment of Edmond M. Dag-
uman, while he was in detention at Fort
Magsaysay sometime in October 2005, as part of
the collateral discoveries in the conduct of this
investigation;
x. To DIRECT the Department of Justice to
review the case filed against Edmond Dag-uman
alias DELFIN DE GUZMAN with the Regional Trial
Court Branch 10 in Malolos City docketed as
Criminal Case Nos. 1844-M-2005 and 186-M-2006;
and the legal basis, if any, for his continued
detention at the Bulacan Provincial Jail in Malolos
City; and
xi. To DIRECT the Department of Interior
and Local Government (DILG) to study the
probable liability of Adelio A. Asuncion, former Jail
Warden of Bulacan Provincial Jail for his failure to
account the records of the inmates more
specifically the records of turn-over Edmond Dag-
uman from the 7th ID.
Pursuant to our June 22, 2010, the CHR furnished the
petitioner with the copy of its report, which the petitioner
apparently relied upon in filing a criminal complaint against Lt.
Harry A. Baliaga, Jr. and other members of the military.[14]
 OUR RULING
to the Amparo petition (CA-G.R. SP No. 00008-WA). This directive to
implead Lt. Baliaga is without prejudice to similar directives we may
issue with respect to others whose identities and participation may
A. Amparo
be disclosed in future investigations.

After reviewing the evidence in the present case, the CA

We also note that Office of the Judge Advocate General (TJAG)
findings and our findings in our June 22, 2010 Resolution heretofore
failed and/or refused to provide the CHR with copies of documents
mentioned, including the recent CHR findings that Lt. Harry A.
relevant to the case of Jonas, and thereby disobeyed our June 22,
Baliaga, Jr., (Lt. Baliaga) of the 56th Infantry Battalion, 7th Infantry
2010 Resolution. To recall, we issued a Resolution declaring the CHR
Division, Philippine Army is one of the abductors of Jonas, we
as the Courts directly commissioned agency tasked with the
resolve to hold in abeyance our ruling on the merits in
continuation of the investigation of Jonas abduction and the
the Amparo aspect of the present case and refer this case back to
gathering of evidence, with the obligation to report its factual
the CA in order to allow Lt. Baliaga and the
findings and recommendations to this Court. In this same
present Amparo respondents to file their respective Comments on
Resolution, we required the then incumbent Chiefs of the AFP and
the CHR Report within a non-extendible period of fifteen (15) days
the PNP to make available and to provide copies to the CHR, of all
from receipt of this Resolution. The CA shall continue with the
documents and records in their possession and as the CHR may
hearing of the Amparo petition in light of the evidence previously
require, relevant to the case of Jonas, subject to reasonable
submitted, the proceedings it already conducted and the
regulations consistent with the Constitution and existing laws.
subsequent developments in this case, particularly the CHR Report.
Thereafter, the CA shall rule on the merits of the Amparo petition. In its March 15, 2011 Report, the CHR recommended, for the Courts

For this purpose, we order that Lt. Baliaga be impleaded as a party consideration:[15]
vi. To REQUIRE General Roa of the Judge
Advocate General Office, AFP, and the
Deputy Chief of Staff for Personnel, JI, AFP,
to explain their failure and/or refusal to
provide the CHR with copies of documents
relevant to the case of Jonas T. Burgos,
particularly the following: (a) Profile
and Summary of Information and pictures
of T/Sgt. Jason Roxas (Philippine Army) and
three (3) other enlisted personnel
mentioned in paragraph (1) of the
dispositive portion of the Supreme Court
En Banc Resolution issued on 22 June 2010
in the instant consolidated cases, including
a certain 2Lt. Fernando, a lady officer
involved in the counter-insurgency
operations of the 56th IB in 2006 to
2007; (b) copies of the records of the
2007 ERAP 5 incident in Kamuning, Quezon
City and the complete list of the
intelligence operatives involved in that
said covert military operation, including
their respective Summary of
Information and individual pictures;
and (c) complete list of the officers,
women and men assigned at the 56th and
69th Infantry Battalion and the 7th
Infantry Division from January 1, 2004 to
June 30, 2007 with their respective
profiles, Summary of Information and
pictures; including the list of captured
rebels and rebels who surrendered to the
said camps and their corresponding
pictures and copies of their Tactical
Interrogation Reports and the cases filed
against them, if any.
Section 16 of the Rule on the Writ of Amparo provides that any
person who otherwise disobeys or resists a lawful process or order
of the court may be punished for contempt, viz:
SEC. 16. Contempt. The court, justice or judge may
order the respondent who refuses to make a
return, or who makes a false return, or any person
who otherwise disobeys or resists a lawful process
or order of the court to be punished for
contempt. The contemnor may be imprisoned or
imposed a fine
Acting on the CHRs recommendation and based on the above
considerations, we resolve to require General Roa of TJAG, AFP, and
the Deputy Chief of Staff for Personnel, JI, AFP, at the time of our
June 22, 2010 Resolution, and then incumbent Chief of Staff,
AFP,[16] to show cause and explain, within a non-extendible period
of fifteen (15) days from receipt of this Resolution, why they should
not be held in contempt of this Court for defying our June 22, 2010
Resolution.
B. Habeas Corpus
In light of the new evidence obtained by the CHR, particularly the
Cabintoy evidence that positively identified Lt. Baliaga as one of the
direct perpetrators in the abduction of Jonas and in the interest of
justice, we resolve to set aside the CAs dismissal of the habeas
corpus petition and issue anew the writ of habeas corpus returnable
to the Presiding Justice of the CA who shall immediately refer the
writ to the same CA division that decided the habeas corpus petition
(CA-GR SP No. 99839).
For this purpose, we also order that Lt. Baliaga be impleaded as a
party to the habeas corpus petition and require him together with
the incumbent Chief of Staff, AFP; the incumbent Commanding
General, Philippine Army; and the Commanding Officer of the
56th IB at the time of the disappearance of Jonas, Lt. Col. Feliciano to
produce the person of Jonas and to show cause why he should not
be released from detention.
The CA shall rule on the merits of the habeas corpus petition in light
of the evidence previously submitted to it, the proceedings already
conducted, and the subsequent developments in this case
(particularly the CHR report) as proven by evidence properly
adduced before it. The Court of Appeals and the parties may require
Prosecutor Emmanuel Velasco, Jeffrey Cabintoy, Edmund Dag-
uman, Melissa Concepcion Reyes, Emerito Lipio and Marlon Manuel
to testify in this case.
C. Petition for Contempt
In dismissing the petition, the CA held:[17]
Undoubtedly, the accusation against
respondents is criminal in nature. In view thereof,
the rules in criminal prosecution and corollary
 recognition of respondents constitutional rights
inevitably come into play. As held in People v.
Godoy:
In proceedings for criminal
contempt, the defendant is
presumed innocent and the
burden is on the prosecution to
prove the charges beyond
reasonable doubt.
Hence, assuming that there
circumstantial evidence to support petitioners
allegations, said circumstantial evidence falls short
of the quantum of evidence that is required to
establish the guilt of an accused in a criminal
proceeding, which is proof beyond reasonable
doubt.
The pertinent provision of the Rules of Court on contempt,
in relation to a Habeas Corpus proceeding, is Section 16, Rule 102,
which provides:
Sec. 16. Penalty for refusing to issue writ, or for
disobeying the same. - A clerk of a court who
refuses to issue the writ after allowance thereof and
demand therefor, or a person to whom a writ is
directed, who neglects or refuses to obey or make
return of the same according to the command
thereof, or makes false return thereof, or who,
upon demand made by or on behalf of the prisoner,
refuses to deliver to the person demanding, within
six (6) hours after the demand therefor, a true copy
of the warrant or order of commitment, shall forfeit
to the party aggrieved the sum of one thousand
pesos, to be recovered in a proper action, and may
also be punished by the court or judge as for
contempt. [emphasis supplied]
is
In Montenegro v. Montenegro,[18] we explained the types
and nature of contempt, as follows:
Contempt of court involves the doing of an
act, or the failure to do an act, in such a manner as
to create an affront to the court and the sovereign
dignity with which it is clothed. It is defined as
"disobedience to the court by acting in opposition
to its authority, justice and dignity."7 The power to
punish contempt is inherent in all courts, because it
is essential to the preservation of order in judicial
proceedings, and to the enforcement of judgments,
 orders and mandates of the courts; and,
consequently, to the due administration of justice. impede and obstruct the administration of justice by the

xxx Court. In People v. Godoy,[19] which the CA cited, we specifically held

that under paragraph (d) of Section 3, Rule 71 of the Rules of Court,
Contempt, whether direct or indirect, may
be civil or criminal depending on the nature and any improper conduct tending, directly or indirectly, to impede,
effect of the contemptuous act. Criminal contempt obstruct or degrade the administration of justice constitutes
is "conduct directed against the authority and
dignity of the court or a judge acting judicially; it criminal contempt.
is an act obstructing the administration of justice
which tends to bring the court into disrepute or
disrespect." On the other hand, civil contempt is
the failure to do something ordered to be done by A criminal contempt proceeding has been characterized
a court or a judge for the benefit of the opposing as sui generis as it partakes some of the elements of both a civil and
party therein and is therefore, an offense against
criminal proceeding, without completely falling under either
the party in whose behalf the violated order was
made. If the purpose is to punish, then it is proceeding. Its identification with a criminal proceeding is in the use
criminal in nature; but if to compensate, then it is of the principles and rules applicable to criminal cases, to the extent
civil. [emphasis supplied]
that criminal procedure is consistent with the summary nature of a
contempt proceeding. We have consistently held and established
that the strict rules that govern criminal prosecutions apply to a
prosecution for criminal contempt; that the accused is afforded
We agree with the CA that indirect contempt is the
many of the protections provided in regular criminal cases; and that
appropriate characterization of the charge filed by the petitioner
proceedings under statutes governing them are to be strictly
against the respondents and that the charge is criminal in
construed.[20]
nature. Evidently, the charge of filing a false return constitutes
improper conduct that serves no other purpose but to mislead,
 Contempt, too, is not presumed. In proceedings for criminal
contempt, the defendant is presumed innocent and the burden is
on the prosecution to prove the charges beyond reasonable
doubt.[21] The presumption of innocence can be overcome only by
proof of guilt beyond reasonable doubt, which means proof to the
satisfaction of the court and keeping in mind the presumption of
innocence that precludes every reasonable hypothesis except that
for which it is given. It is not sufficient for the proof to establish a
probability, even though strong, that the fact charged is more likely
true than the contrary. It must establish the truth of the fact to a
reasonable certainty and moral certainty a certainty that convinces
and satisfies the reason and conscience of those who are to act
upon it.[22]
For the petitioner to succeed in her petition to declare the
respondents in contempt for filing false returns in the habeas
corpus proceedings before the CA, she has the burden of proving
beyond reasonable doubt that the respondents had custody of
Jonas. As the CA did, we find that the pieces of evidence on
record as of the time of the CA proceedings were merely
circumstantial and did not provide a direct link between the
respondents and the abduction of Jonas; the evidence did not prove
beyond reasonable doubt that the respondents had a hand in the
abduction of Jonas, and consequently, had custody of him at the
time they filed their returns to the Writ of habeas corpus denying
custody of Jonas.
However, the subsequent developments in this case,
specifically, the investigative findings presented to us by the CHR
pointing to Lt. Baliaga as one of the abductors of Jonas, have given a
twist to our otherwise clear conclusion. Investigations will continue,
consistent with the nature of Amparo proceedings to be alive until a
definitive result is achieved, and these investigations may yet yield
additional evidence affecting the conclusion the CA made. For this
reason, we can only conclude that the CAs dismissal of the
contempt charge should be provisional, i.e., without prejudice to
the re-filing of the charge in the future should the petitioner find
this step warranted by the evidence in the proceedings related to
Jonass disappearance, including the criminal prosecutions that may
transpire.
 To adjust to the extraordinary nature of Amparo and habeas
corpus proceedings and to directly identify the parties bound by
these proceedings who have the continuing obligation to comply
with our directives, the AFP Chief of Staff, the Commanding General
of the Philippine Army, the Director General of the PNP, the Chief of
the PNP-CIDG and the TJAG shall be named as parties to this case
without need of naming their current incumbents, separately from
the then incumbent officials that the petitioner named in her
original Amparo and habeas corpus petitions, for possible
responsibility and accountability.
In light of the dismissal of the petitions against President Gloria
Macapagal-Arroyo who is no the longer the President of the Republic
of the Philippines, she should now be dropped as a party-respondent
in these petitions.
WHEREFORE, in the interest of justice and for the
foregoing reasons, we RESOLVE to:
I. IN G.R. NO. 183711 (HABEAS CORPUS PETITION, CA-G.R.
SP No. 99839)
a. ISSUE a Writ of Habeas
Corpus anew, returnable to the Presiding Justice of
the Court of Appeals who shall immediately refer
the writ to the same Division that decided the habeas
corpus petition;
b. ORDER Lt. Harry A. Baliaga, Jr. impleaded in
CA-G.R. SP No. 99839 and G.R. No. 183711,
and REQUIRE him, together with the incumbent
Chief of Staff, Armed Forces of the
Philippines; the incumbent Commanding General,
Philippine Army; and the Commanding Officer of
the 56th IB, 7th Infantry Division, Philippine Army at
the time of the disappearance of Jonas Joseph T.
Burgos, Lt. Col. Melquiades Feliciano, to produce
the person of Jonas Joseph T. Burgos under the
terms the Court of Appeals shall prescribe, and to
show cause why Jonas Joseph T. Burgos should not
be released from detention;
 c. REFER back the petition for habeas corpus to
the same Division of the Court of Appeals f. ORDER the dropping or deletion of former
which shall continue to hear this case after the President Gloria Macapagal-Arroyo as party-
required Returns shall have been filed and render a respondent, in light of the unconditional dismissal of
new decision within thirty (30) days after the case is the contempt charge against her.
submitted for decision; and
III. IN G.R. NO. 183713 (WRIT OF AMPARO
PETITION, CA-G.R. SP No. 00008-WA)
d. ORDER the Chief of Staff of the Armed Forces
of the Philippines and the Commanding General of g. ORDER Lt. Harry A. Baliaga, Jr., impleaded in
the Philippine Army to be impleaded as parties, CA-G.R. SP No. 00008-WA and G.R. No. 183713,
separate from the original respondents impleaded in without prejudice to similar directives we may issue
the petition, and the dropping or deletion of President with respect to others whose identities and
Gloria Macapagal-Arroyo as party-respondent. participation may be disclosed in future
investigations and proceedings;
II. IN G.R. NO. 183712 (CONTEMPT OF COURT CHARGE,
CA-G.R. SP No. 100230)
h. DIRECT Lt. Harry A. Baliaga, Jr., and
e. AFFIRM the dismissal of the petitioners the present Amparo respondents to file their
petition for Contempt in CA-G.R. SP No. 100230, Comments on the CHR report with the Court of
without prejudice to the re-filing of the contempt Appeals, within a non-extendible period of fifteen
charge as may be warranted by the results of the (15) days from receipt of this Resolution.
subsequent CHR investigation this Court has
ordered; and
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 non-extendible period of
fifteen (15) days from receipt of this Resolution,
why they should not be held in contempt of this
Court for their defiance of our June 22, 2010
Resolution; and (b) to submit to this Court, within a
non-extendible period of fifteen (15) days from
receipt of this Resolution, a copy of the documents
requested by the CHR, particularly:
1) The profile and Summary of Information
and pictures of T/Sgt. Jason Roxas
(Philippine Army); Cpl. Maria Joana
Francisco (Philippine Air Force); M/Sgt.
Aron Arroyo (Philippine Air Force); an alias
T.L. - all reportedly assigned with Military
Intelligence Group 15 of Intelligence
Service of the Armed Forces of the
Philippines - and 2Lt. Fernando, a lady
officer involved in the counter-insurgency
operations of the 56th IB in 2006 to 2007;
2) Copies of the records of the 2007 ERAP
5 incident in Kamuning, Quezon City and
the complete list of the intelligence
operatives involved in that said covert
military operation, including their respective
Summary of Information and individual
pictures; and
3) Complete list of the officers, women and
men assigned at the 56th and 69th Infantry
Battalion and the 7th Infantry Division from
January 1, 2004 to June 30, 2007 with their
respective profiles, Summary of Information
and pictures; including the list of captured
rebels and rebels who surrendered to the
said camps and their corresponding pictures
and copies of their Tactical Interrogation
Reports and the cases filed against them, if
any.
These documents shall be released exclusively to this
Court for our examination to determine their
 relevance to the present case and the advisability of SO ORDERED.
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 party-respondent;

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.
 Republic of the Philippines
Supreme Court For the protective writ of amparo to issue in enforced disappearance cases,
Manila
allegation and proof that the persons subject thereof are missing are not
EN BANC enough. It must also be shown by the required quantum of proof that their
disappearance was carried out by, or with the authorization, support or
EDGARDO NAVIA,[1] RUBEN G.R. No. 184467
acquiescence of, [the government] or a political organization, followed by a
DIO,[2] and ANDREW
BUISING, refusal to acknowledge [the same or] give information on the fate or
Petitioners, whereabouts of [said missing] persons.[3]
Present:
This petition for review on certiorari[4] filed in relation to Section 19
CARPIO, of A.M. No. 07-9-12-SC[5] challenges the July 24, 2008 Decision[6] of the
VELASCO, JR., Regional Trial Court (RTC), Branch 20, Malolos City which granted the
LEONARDO-DE CASTRO, Petition for Writ of Amparo[7] filed by herein respondent against the
BRION,
PERALTA, petitioners.
- versus - BERSAMIN, Factual Antecedents
DEL CASTILLO,
ABAD,
VILLARAMA, JR., On March 31, 2008, at around 8:30 p.m., a vehicle of Asian Land Strategies
PEREZ, Corporation[8] (Asian Land) arrived at the house of Lolita M. Lapore
MENDOZA, (Lolita) located at 7A Lot 9, Block 54, Grand Royale
SERENO,
Subdivision, Barangay Lugam, Malolos City. The arrival of the vehicle
REYES, and
VIRGINIA PARDICO, for and PERLAS-BERNABE, JJ. awakened Lolitas son, Enrique Lapore (Bong), and Benhur Pardico (Ben),
in who were then both staying in her house. When Lolita went out to
behalf and in representation of investigate, she saw two uniformed guards disembarking from the
BENHUR V. PARDICO Promulgated:
Respondent. June 19, 2012 vehicle. One of them immediately asked Lolita where they could find her
x----------------------------------------------------- son Bong.Before Lolita could answer, the guard saw Bong and told him
---x that he and Ben should go with them to the security office
DECISION of Asian Land because a complaint was lodged against them for theft of
electric wires and lamps in the subdivision.[9]
DEL CASTILLO, J.:
Shortly thereafter, Bong, Lolita and Ben were in the office of the security
[10]
department of Asian Land also located in Grand Royale Subdivision. The
supervisor of the security guards, petitioner Edgardo Navia (Navia), also
arrived thereat.
As to what transpired next, the parties respective versions diverge.
Version of the Petitioners
Petitioners alleged that they invited Bong and Ben to their office because
they received a report from a certain Mrs. Emphasis, a resident of Grand
Royale Subdivision, that she saw Bong and Ben removing a lamp from a
post in said subdivision.[11] The reported unauthorized taking of the lamp
was relayed thru radio to petitioners Ruben Dio (Dio) and Andrew Buising
(Buising), who both work as security guards at the Asian Land security
department. Following their departments standard operating procedure, Dio
and Buising entered the report in their logbook and proceeded to the house
of Mrs. Emphasis. It was there where Dio and Buising were able to confirm
who the suspects were. They thus repaired to the house of Lolita where
Bong and Ben were staying to invite the two suspects to their office. Bong
and Ben voluntarily went with them.
At the security office, Dio and Buising interviewed Bong and Ben. The
suspects admitted that they took the lamp but clarified that they were only
transferring it to a post nearer to the house of Lolita.[12] Soon, Navia arrived
and Buising informed him that the complainant was not keen in
participating in the investigation. Since there was no complainant, Navia
ordered the release of Bong and Ben. Bong then signed a statement to the
effect that the guards released him without inflicting any harm or injury to
him.[13] His mother Lolita also signed the logbook below an entry which
states that she will never again harbor or entertain Ben in her
house. Thereafter, Lolita and Bong left the security office.
Ben was left behind as Navia was still talking to him about those
who might be involved in the reported loss of electric wires and lamps
within the subdivision. After a brief discussion though, Navia allowed Ben
to leave. Ben also affixed his signature on the logbook to affirm the
statements entered by the guards that he was released unharmed and
without any injury.[14]
Upon Navias instructions, Dio and Buising went back to the house
of Lolita to make her sign the logbook as witness that they indeed released
Ben from their custody. Lolita asked Buising to read aloud that entry in the
logbook where she was being asked to sign, to which Buising obliged. Not
contented, Lolita put on her reading glasses and read the entry in the
logbook herself before affixing her signature therein. After which, the
guards left.
Subsequently, petitioners received an invitation[15] from the Malolos City
Police Station requesting them to appear thereat on April 17, 2008 relative
to the complaint of Virginia Pardico (Virginia) about her missing husband
Ben. In compliance with the invitation, all three petitioners appeared at the
Malolos City Police Station. However, since Virginia was not present
despite having received the same invitation, the meeting was reset to April
22, 2008.[16]
On April 22, 2008, Virginia attended the investigation. Petitioners informed
her that they released Ben and that they have no information as to his
present whereabouts.[17] They assured Virginia though that they will
cooperate and help in the investigation of her missing husband.[18]
Version of the Respondent
According to respondent, Bong and Ben were not merely
invited. They were unlawfully arrested, shoved into the Asian Land vehicle
and brought to the security office for investigation.Upon seeing Ben at the
security office, Navia lividly grumbled Ikaw na naman?[19] and slapped him
while he was still seated. Ben begged for mercy, but his pleas were met
with a flurry of punches coming from Navia hitting him on different parts of
his body.[20] Navia then took hold of his gun, looked at Bong, and
said, Wala kang nakita at wala kang narinig, papatayin ko na si Ben.[21]
Bong admitted that he and Ben attempted to take the lamp. He
explained that the area where their house is located is very dark and his
father had long been asking the administrator of Grand Royale Subdivision
to install a lamp to illumine their area. But since nothing happened, he took
it upon himself to take a lamp from one of the posts in the subdivision and
transfer it to a post near their house. However, the lamp Bong got was no
longer working. Thus, he reinstalled it on the post from which he took it and
no longer pursued his plan. [22]
Later on, Lolita was instructed to sign an entry in the guards
logbook where she undertook not to allow Ben to stay in her house
anymore.[23] Thereafter, Navia again asked Lolita to sign the logbook. Upon
Lolitas inquiry as to why she had to sign again, Navia explained that they
needed proof that they released her son Bong unharmed but that Ben had to
stay as the latters case will be forwarded to the barangay. Since she has
poor eyesight, Lolita obligingly signed the logbook without reading it and
then left with Bong.[24] At that juncture, Ben grabbed Bong and pleaded not
to be left alone. However, since they were afraid of Navia, Lolita and Bong
left the security office at once leaving Ben behind.[25]
Moments after Lolita and Bong reached their house, Buising
arrived and asked Lolita to sign the logbook again. Lolita asked Buising
why she had to sign again when she already twice signed the logbook at the
headquarters. Buising assured her that what she was about to sign only
pertains to Bongs release. Since it was dark and she has poor eyesight,
Lolita took Buisings word and signed the logbook without, again, reading
what was written in it. [26]
The following morning, Virginia went to the Asian Land security
office to visit her husband Ben, but only to be told that petitioners had
already released him together with Bong the night before. She then looked
for Ben, asked around, and went to the barangay. Since she could not still
find her husband, Virginia reported the matter to the police.
In the course of the investigation on Bens disappearance, it dawned
upon Lolita that petitioners took advantage of her poor eyesight and
naivete. They made her sign the logbook as a witness that they already
released Ben when in truth and in fact she never witnessed his actual
release. The last time she saw Ben was when she left him in petitioners
custody at the security office.[27]
Exasperated with the mysterious disappearance of her
husband, Virginia filed a Petition for Writ of Amparo[28] before the RTC of
Malolos City. Finding the petition sufficient in form and substance,
the amparo court issued an Order[29] dated June 26, 2008 directing, among
others, the issuance of a writ of amparo and the production of the body of
Ben before it on June 30, 2008. Thus:
WHEREFORE, conformably with Section 6 of
the Supreme Court Resolution [in] A.M. No. 07-[9]-12-
SC, also known as The Rule On The Writ Of Amparo, let
a writ of amparo be issued, as follows:
(1) ORDERING [petitioners] Edgardo
Navia, Ruben Dio and Andrew Buising of
the Asian Land Security Agency to produce
before the Court the body of aggrieved party
Benhur Pardico, on Monday, June 30, 2008,
at 10:30 a.m.;
(2) ORDERING the holding of a summary
hearing of the petition on the
aforementioned date and time, and
DIRECTING the [petitioners] to personally
appear thereat;
(3) COMMANDING [petitioners] Edgardo
Navia, Ruben Dio and Andrew Buising to
file, within a non-extendible period of
seventy-two (72) hours from service of the
writ, a verified written return with
supporting affidavits which shall, among
other things, contain the following:
a) The lawful defenses to show that the
[petitioners] did not violate or
threaten with violation the right to
life, liberty and security of the
aggrieved party, through any act or
omission;
b) The steps or actions taken by
the [petitioners] to determine the
fate or whereabouts of
the aggrieved party and the person
or persons responsible for the
threat, act or omission; and
c) All relevant information in
the possession of the [petitioners]
pertaining to the threat, act or
omission against the aggrieved
party.
(4) GRANTING, motu proprio, a
Temporary Protection Order prohibiting the
[petitioners], or any persons acting for and in
their behalf, under pain of contempt, from
threatening, harassing or inflicting any harm
to [respondent], his immediate family and
any [member] of his household.
The Branch Sheriff is directed to immediately serve
personally on the [petitioners], at their address indicated in
the petition, copies of the writ as well as this order,
together with copies of the petition and its annexes.[30]
 A Writ of Amparo[31] was accordingly issued and served on the (c) To hereby direct the Office of the
Provincial Prosecutor of Bulacan to investigate the
petitioners on June 27, 2008.[32] On June 30, 2008, petitioners filed their circumstances concerning the legality of the arrest of
Compliance[33] praying for the denial of the petition for lack of merit. [Benhur] Pardico by the [petitioners] in this case, utilizing
in the process, as part of said investigation, the pertinent
documents and admissions forming part of the record of
A summary hearing was thereafter conducted. Petitioners
this case, and take whatever course/s of action as may be
presented the testimony of Buising, while Virginia submitted the sworn warranted.
statements[34] of Lolita and Enrique which the two affirmed on the witness
Furnish immediately copies of this decision to the NBI,
stand.
through the Office of Director Nestor Mantaring, and to
the Provincial Prosecutor of Bulacan.
Ruling of the Regional Trial Court
SO ORDERED.[36]
On July 24, 2008, the trial court issued the challenged Decision[35] granting
the petition. It disposed as follows: Petitioners filed a Motion for Reconsideration[37] which was denied by the
trial court in an Order[38] dated August 29, 2008.
WHEREFORE, the Court hereby grants the
privilege of the writ of amparo, and deems it proper and
appropriate, as follows: Hence, this petition raising the following issues for our
consideration:
(a) To hereby direct the National Bureau of
Investigation (NBI) to immediately conduct a deep and
thorough investigation of the [petitioners] Edgardo Navia, 4.1. WHETHER X X X THE HONORABLE
TRIAL COURT GRAVELY ERRED IN RULING
Ruben Dio and Andrew Buising in connection with the
THAT RESPONDENT IS ENTITLED TO THE
circumstances surrounding the disappearance of [Benhur]
Pardico, utilizing in the process, as part of the PRIVILEGE OF THE WRIT OF AMPARO.
investigation, the documents forming part of the records
of this case; 4.1.1. WHETHER X X X
RESPONDENT WAS ABLE TO
ESTABLISH THAT PETITIONERS
(b) To hereby direct the NBI to extend to the
HAVE COMMITTED OR ARE
family of [Benhur] Pardico and the witnesses who
testified in this case protection as it may deem necessary COMMITTING ACTS IN
to secure their safety and security; and VIOLATION OF HER HUSBANDS
RIGHT TO
LIFE, LIBERTY, OR SECURITY.
 4.1.2. WHETHER X X X
RESPONDENT SUFFICIENTLY Our Ruling
ESTABLISHED THE FACT OF THE
DISAPPEARANCE OF BENHUR Virginias Petition for Writ of Amparo is fatally defective and must perforce
PARDICO.
be dismissed, but not for the reasons adverted to by the petitioners.
4.1.3. WHETHER X X X
RESPONDENT WAS ABLE TO A.M. No. 07-9-12-SC or The Rule on the Writ of Amparo was
ESTABLISH THAT THE ALLEGED
DISAPPEARANCE OF BENHUR promulgated to arrest the rampant extralegal killings and enforced
PARDICO WAS AT THE disappearances in the country. Its purpose is to provide an expeditious and
INSTANCE OF HEREIN
PETITIONERS.[39] effective relief to any person whose right to life, liberty and security is
Petitioners Arguments violated or threatened with violation by an unlawful act or omission of a
public official or employee, or of a private individual or entity. [40]

Petitioners essentially assail the sufficiency of

the amparo petition. They contend that the writ of amparo is available only
in cases where the factual and legal bases of the violation or threatened
violation of the aggrieved partys right to life, liberty and security are
clear. Petitioners assert that in the case at bench, Virginia miserably failed to
establish all these. First, the petition is wanting on its face as it failed to state
with some degree of specificity the alleged unlawful act or omission of the
petitioners constituting a violation of or a threat to Bens right to life, liberty
and security. And second, it cannot be deduced from the
evidence Virginia adduced that Ben is missing; or that petitioners had a
hand in his alleged disappearance. On the other hand, the entries in the
logbook which bear the signatures of Ben and Lolita are eloquent proof that
petitioners released Ben on March 31, 2008 at around 10:30
p.m. Petitioners thus posit that the trial court erred in issuing the writ and in
holding them responsible for Bens disappearance.
Here, Bens right to life, liberty and security is firmly settled as the
parties do not dispute his identity as the same person summoned and
questioned at petitioners security office on the night of March 31,
2008. Such uncontroverted fact ipso facto established Bens inherent and
constitutionally enshrined right to life, liberty and security. Article 6[41] of
the International Covenant on Civil and Political Rights[42] recognizes every
human beings inherent right to life, while Article 9[43] thereof ordains that
everyone has the right to liberty and security. The right to life must be
protected by law while the right to liberty and security cannot be impaired
except on grounds provided by and in accordance with law. This
overarching command against deprivation of life, liberty and security
without due process of law is also embodied in our fundamental law.[44]
 The pivotal question now that confronts us is whether Bens
disappearance as alleged in Virginias petition and proved during the
summary proceedings conducted before the court a quo, falls within the
ambit of A.M. No. 07-9-12-SC and relevant laws.
It does not. Section 1 of A.M. No. 07-9-12-SC provides:
SECTION 1. Petition. The petition for a writ
of amparo is a remedy available to any person whose
right to life, liberty and security is violated or threatened
with violation by an unlawful act or omission of a public
official or employee, or of a private individual or entity.
The writ shall cover extralegal killings and
enforced disappearances or threats thereof. (Emphasis
ours.)
While Section 1 provides A.M. No. 07-9-12-SCs coverage, said Rules does
not, however, define extralegal killings and enforced disappearances. This
omission was intentional as the Committee on Revision of the Rules of
Court which drafted A.M. No. 07-9-12-SC chose to allow it to evolve
through time and jurisprudence and through substantive laws as may be
promulgated by Congress.[45] Then, the budding jurisprudence
on amparo blossomed in Razon, Jr. v. Tagitis[46] when this Court defined
enforced disappearances. The Court in that case applied the generally
accepted principles of international law and adopted the International
Convention for the Protection of All Persons from Enforced
Disappearances definition of enforced disappearances, as the arrest,
detention, abduction or any other form of deprivation of liberty by agents of
the State or by persons or groups of persons acting with the authorization,
support or acquiescence of the State, followed by a refusal to acknowledge
the deprivation of liberty or by concealment of the fate or whereabouts of
the disappeared person, which place such a person outside the protection of
the law.[47]
Not long thereafter, another significant development affecting
A.M. No. 07-9-12-SC came about after Congress enacted Republic Act
(RA) No. 9851[48] on December 11, 2009.Section 3(g) thereof defines
enforced or involuntary disappearances as follows:
(g) "Enforced or involuntary disappearance of
persons" means the arrest, detention, or
abduction of persons by, or with the
authorization, support or acquiescence of, a
State or a political organization followed by a
refusal to acknowledge that deprivation of
freedom or to give information on the fate or
whereabouts of those persons, with the intention
of removing from the protection of the law for a
prolonged period of time.
Then came Rubrico v. Macapagal-Arroyo[49] where Justice Arturo
D. Brion wrote in his Separate Opinion that with the enactment of RA No.
9851, the Rule on the Writ of Amparo is now a procedural law anchored,
not only on the constitutional rights to the rights to life, liberty and security,
but on a concrete statutory definition as well of what an enforced or
involuntary disappearance is.[50] Therefore, A.M. No. 07-9-12-SCs
reference to enforced disappearances should be construed to mean the
enforced or involuntary disappearance of persons contemplated in Section
3(g) of RA No. 9851. Meaning, in probing enforced disappearance cases,
courts should read A.M. No. 07-9-12-SC in relation to RA No. 9851.
From the statutory definition of enforced disappearance, thus, we
can derive the following elements that constitute it:
(a) that there be an arrest, detention, abduction or
any form of deprivation of liberty;
(b) that it be carried out by, or with the authorization,
support or acquiescence of, the State or a political
organization;
(c) that it be followed by the State or political
organizations refusal to acknowledge or give
information on the fate or whereabouts of the person
subject of the amparo petition; and,
(d) that the intention for such refusal is to remove
subject person from the protection of the law for a
prolonged period of time.
As thus dissected, it is now clear that for the protective writ of amparo to
issue, allegation and proof that the persons subject thereof are missing are
not enough. It must also be shown and proved by substantial evidence that
the disappearance was carried out by, or with the authorization, support or
acquiescence of, the State or a political organization, followed by a refusal
to acknowledge the same or give information on the fate or whereabouts of
said missing persons, with the intention of removing them from the
protection of the law for a prolonged period of time. Simply put, the
petitioner in an amparo case has the burden of proving by substantial
evidence the indispensable element of government participation.
In the present case, we do not doubt Bongs testimony that Navia
had a menacing attitude towards Ben and that he slapped and inflicted fistic
blows upon him. Given the circumstances and the pugnacious character of
Navia at that time, his threatening statement, Wala kang nakita at wala
kang narinig, papatayin ko na si Ben, cannot be taken lightly. It
unambiguously showed his predisposition at that time. In addition, there is
nothing on record which would support petitioners assertion that they
released Ben on the night of March 31, 2008 unscathed from their
wrath. Lolita sufficiently explained how she was prodded into affixing her
signatures in the logbook without reading the entries therein. And so far, the
information petitioners volunteered are sketchy at best, like the alleged
complaint of Mrs. Emphasis who was never identified or presented in court
and whose complaint was never reduced in writing.
But lest it be overlooked, in an amparo petition, proof of
disappearance alone is not enough. It is likewise essential to establish that
such disappearance was carried out with the direct or indirect authorization,
support or acquiescence of the government. This indispensable element of
State participation is not present in this case. The petition does not contain
any allegation of State complicity, and none of the evidence presented tend
to show that the government or any of its agents orchestrated Bens
disappearance. In fact, none of its agents, officials, or employees were
impleaded or implicated in Virginias amparo petition whether as
responsible or accountable persons.[51] Thus, in the absence of an allegation
or proof that the government or its agents had a hand in Bens disappearance
or that they failed to exercise extraordinary diligence in investigating his
case, the Court
will definitely not hold the government or its agents either as responsible or
accountable persons.

We are aware that under Section 1 of A.M. No. 07-9-12-SC a writ

of amparo may lie against a private individual or entity. But even if the
person sought to be held accountable or responsible in an amparo petition is
a private individual or entity, still, government involvement in the
disappearance remains an indispensable element. Here, petitioners are mere
security guards at Grand Royale Subdivision in Brgy.
Lugam, Malolos City and their principal, the Asian Land, is a private
entity. They do not work for the government and nothing has been
presented that would link or connect them to some covert police, military or
governmental operation. As discussed above, to fall within the ambit of
A.M. No. 07-9-12-SC in relation to RA No. 9851, the disappearance must
be attended by some governmental involvement. This hallmark of State
participation differentiates an enforced disappearance case from an ordinary
case of a missing person.

WHEREFORE, the July 24, 2008 Decision of the Regional Trial Court,
Branch 20, Malolos City, is REVERSED and SET ASIDE. The Petition
for Writ of Amparo filed by Virginia Pardico is hereby DISMISSED.

SO ORDERED.
 Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 204528 February 19, 2013
SECRETARY LEILA M. DE LIMA, DIRECTOR NONNATUS R.
ROJAS and DEPUTY DIRECTOR REYNALDO 0.
ESMERALDA, Petitioners,
vs.
MAGTANGGOL B. GATDULA, Respondent.
RESOLUTION
LEONEN, J.:
Submitted for our resolution is a prayer for the issuance of a
temporary restraining order and/or writ of preliminary injunction to
enjoin "the Regional Trial Court, Branch 26, in Manila from
implementing its Decision x x x in Civil Case No. 12-127405
granting respondent's application for the issuance of inspection
and production orders x x x."1 This is raised through a Petition for
Review on Certiorari under Rule 45 from the "Decision" rendered
by the Regional Trial Court dated 20 March 2012.
From the records, it appears that on 27 February 2012,
respondent Magtanggol B. Gatdula filed a Petition for the
Issuance of a Writ of Amparo in the Regional Trial Court of
Manila.2 This case was docketed as In the Matter of the Petition
for Issuance of Writ of Amparo of Atty. Magtanggol B. Gatdula,
SP No. 12-127405. It was raffled to the sala of Judge Silvino T.
Pampilo, Jr. on the same day.
The Amparo was directed against petitioners Justice Secretary
Leila M. De Lima, Director Nonnatus R. Rojas and Deputy
Director Reynaldo O. Esmeralda of the National Bureau of
Investigation (DE LIMA, ET AL. for brevity). Gatdula wanted De
Lima, et al. "to cease and desist from framing up Petitioner
[Gatdula] for the fake ambush incident by filing bogus charges of
Frustrated Murder against Petitioner [Gatdula] in relation to the
alleged ambush incident."3
Instead of deciding on whether to issue a Writ of Amparo, the
judge issued summons and ordered De Lima, et al. to file an
Answer.4 He also set the case for hearing on 1 March 2012. The
hearing was held allegedly for determining whether a temporary
protection order may be issued. During that hearing, counsel for
De Lima, et al. manifested that a Return, not an Answer, is
appropriate for Amparo cases.5
In an Order dated 2 March 2012,6 Judge Pampilo insisted that
"[s]ince no writ has been issued, return is not the required
pleading but answer".7 The judge noted that the Rules of Court
apply suppletorily in Amparo cases.8 He opined that the Revised
Rules of Summary Procedure applied and thus required an
Answer.9
Judge Pampilo proceeded to conduct a hearing on the main case
on 7 March 2012.10 Even without a Return nor an Answer, he
ordered the parties to file their respective memoranda within five
(5) working days after that hearing. Since the period to file an
Answer had not yet lapsed by then, the judge also decided that
the memorandum of De Lima, et al. would be filed in lieu of their
Answer.11
On 20 March 2012, the RTC rendered a "Decision" granting the
issuance of the Writ of Amparo. The RTC also granted the interim
reliefs prayed for, namely: temporary protection, production and
inspection orders. The production and inspection orders were in
relation to the evidence and reports involving an on-going
investigation of the attempted assassination of Deputy Director
Esmeralda. It is not clear from the records how these pieces of
evidence may be related to the alleged threat to the life, liberty or
security of the respondent Gatdula.
In an Order dated 8 October 2012, the RTC denied the Motion for
Reconsideration dated 23 March 2012 filed by De Lima, et al.
Petitioners Sec. De Lima, et al. thus came to this Court assailing
the RTC "Decision" dated 20 March 2012 through a Petition for
Review on Certiorari (With Very Urgent Application for the
Issuance of a Temporary Restraining Order/Writ of Preliminary
Injunction) via Rule 45, as enunciated in Section 19 of the Rule
on the Writ of Amparo (A.M. No. 07-9- 12-SC, 25 September
2007), viz:
SEC. 19. Appeal. – Any party may appeal from the final
judgment or order to the Supreme Court under Rule 45. The
appeal may raise questions of fact or law or both. x x x (Emphasis
supplied).
It is the Court’s view that the "Decision" dated 20 March 2012
granting the writ of Amparo is not the judgment or final order
contemplated under this rule. Hence, a Petition for Review under
Rule 45 may not yet be the proper remedy at this time.
The RTC and the Parties must understand the nature of the
remedy of Amparo to put its procedures in the proper context.
The remedy of the Writ of Amparo is an equitable and
extraordinary remedy to safeguard the right of the people to life,
liberty12 and security13 as enshrined in the 1987
Constitution.14 The Rule on the Writ of Amparo was issued as an
exercise of the Supreme Court's power to promulgate rules
concerning the protection and enforcement of constitutional
rights.15 It aims to address concerns such as, among others,
extrajudicial killings and enforced disappearances.16
Due to the delicate and urgent nature of these controversies, the
procedure was devised to afford swift but decisive relief.17 It is
initiated through a petition18 to be filed in a Regional Trial Court,
Sandiganbayan, the Court of Appeals, or the Supreme
Court.19 The judge or justice then makes an "immediate"
evaluation20 of the facts as alleged in the petition and the
affidavits submitted "with the attendant circumstances
detailed".21 After evaluation, the judge has the option to issue the
Writ of Amparo22 or immediately dismiss the case. Dismissal is
proper if the petition and the supporting affidavits do not show
that the petitioner's right to life, liberty or security is under threat
or the acts complained of are not unlawful. On the other hand, the
issuance of the writ itself sets in motion presumptive judicial
protection for the petitioner. The court compels the respondents
to appear before a court of law to show whether the grounds for
more permanent protection and interim reliefs are necessary.
The respondents are required to file a Return23 after the issuance
of the writ through the clerk of court. The Return serves as the
responsive pleading to the petition.24 Unlike an Answer, the
Return has other purposes aside from identifying the issues in the
case. Respondents are also required to detail the actions they
had taken to determine the fate or whereabouts of the aggrieved
party.
If the respondents are public officials or employees, they are also
required to state the actions they had taken to: (i) verify the
identity of the aggrieved party; (ii) recover and preserve evidence
related to the death or disappearance of the person identified in
the petition; (iii) identify witnesses and obtain statements
concerning the death or disappearance; (iv) determine the cause,
manner, location, and time of death or disappearance as well as
any pattern or practice that may have brought about the death or
disappearance; and (vi) bring the suspected offenders before a
competent court.25 Clearly these matters are important to the
judge so that s/he can calibrate the means and methods that will
be required to further the protections, if any, that will be due to the
petitioner.
There will be a summary hearing26 only after the Return is filed
to determine the merits of the petition and whether interim reliefs
are warranted. If the Return is not filed, the hearing will be
done ex parte.27 After the hearing, the court will render
the judgment within ten (10) days from the time the petition is
submitted for decision.28
If the allegations are proven with substantial evidence, the court
shall grant the privilege of the writ and such reliefs as may be
proper and appropriate.29 The judgment should contain measures
which the judge views as essential for the continued protection of
the petitioner in the Amparo case. These measures must be
detailed enough so that the judge may be able to verify and
monitor the actions taken by the respondents. It is this judgment
that could be subject to appeal to the Supreme Court via Rule
45.30 After the measures have served their purpose, the judgment
will be satisfied. In Amparo cases, this is when the threats to the
petitioner’s life, liberty and security cease to exist as evaluated by
the court that renders the judgment. Parenthetically, the case
may also be terminated through consolidation should a
subsequent case be filed – either criminal or civil.31 Until the full
satisfaction of the judgment, the extraordinary remedy
of Amparo allows vigilant judicial monitoring to ensure the
protection of constitutional rights.
The "Decision" dated 20 March 2012 assailed by the
petitioners could not be the judgment or final order that is
appealable under Section 19 of the Rule on the Writ of Amparo.
This is clear from the tenor of the dispositive portion of the
"Decision", to wit:
The Branch Clerk of Court of Court [sic] is hereby DIRECTED to
issue the Writ of Amparo.
Likewise, the Branch Clerk of Court is hereby DIRECTED to
effect the service of the Writ of Amparo in an expeditious manner
upon all concerned, and for this purpose may call upon the
assistance of any military or civilian agency of the government.
This "Decision" pertained to the issuance of the writ under
Section 6 of the Rule on the Writ of Amparo, not
the judgment under Section 18. The "Decision" is thus an
interlocutory order, as suggested by the fact that temporary
protection, production and inspection orders were given together
with the decision. The temporary protection, production and
inspection orders are interim reliefs that may be granted by the
court upon filing of the petition but before final judgment is
rendered.32
The confusion of the parties arose due to the procedural
irregularities in the RTC.
First, the insistence on filing of an Answer was inappropriate. It is
the Return that serves as the responsive pleading for petitions for
the issuance of Writs of Amparo. The requirement to file an
Answer is contrary to the intention of the Court to provide a
speedy remedy to those whose right to life, liberty and security
are violated or are threatened to be violated. In utter disregard of
the Rule on the Writ of Amparo, Judge Pampilo insisted on
issuing summons and requiring an Answer.
Judge Pampilo’s basis for requiring an Answer was mentioned in
his Order dated 2 March 2012:
Under Section 25 of the same rule [on the Writ of Amparo], the
Rules of Court shall apply suppletorily insofar as it is not
inconsistent with the said rule.
Considering the summary nature of the petition, Section 5 of the
Revised Rules of Summary Procedure shall apply.
Section 5. Answer – Within ten (10) days from service of
summons, the defendant shall file his Answer to the complaint
and serve a copy thereof on the plaintiff. x x x
WHEREFORE, based on the foregoing, the respondents are
required to file their Answer ten (days) from receipt of this
Order.33
The 1991 Revised Rules of Summary Procedure is a special rule
that the Court has devised for the following circumstances:
SECTION 1. Scope. – This rule shall govern the summary
procedure in the Metropolitan Trial Courts, the Municipal Trial
Courts in Cities, the Municipal Trial Courts, and the Municipal
Circuit Trial Courts in the following cases falling within their
jurisdiction:
A. Civil Cases:
(1) All cases of forcible entry and unlawful
detainer, x x x.
(2) All other cases, except probate proceedings,
where the total amount of the plaintiff’s claim does
not exceed x x x.
B. Criminal Cases:
(1) Violations of traffic laws, rules and regulations;
(2) Violations of the rental law;
(3) Violations of municipal or city ordinances;
(4) All other criminal cases where the penalty
prescribed by law for the offense charged is
imprisonment not exceeding six months, or a fine
not exceeding one thousand pesos (P1,000.00),
or both, x x x.
xxxx
It is clear from this rule that this type of summary procedure only
applies to MTC/MTCC/MCTCs. It is mind-boggling how this rule
could possibly apply to proceedings in an RTC. Aside from that,
this Court limited the application of summary procedure to
certain civil and criminal cases. A writ of Amparo is a special
proceeding. It is a remedy by which a party seeks to establish a
status, a right or particular fact.34 It is not a civil nor a criminal
action, hence, the application of the Revised Rule on Summary
Procedure is seriously misplaced.
The second irregularity was the holding of a hearing on the main
case prior to the issuance of the writ and the filing of a Return.
Without a Return, the issues could not have been properly joined.
Worse, is the trial court’s third irregularity: it required a
memorandum in lieu of a responsive pleading (Answer) of De
Lima, et al.
The Return in Amparo cases allows the respondents to frame the
issues subject to a hearing. Hence, it should be done prior to the
hearing, not after. A memorandum, on the other hand, is a
synthesis of the claims of the party litigants and is a final pleading
usually required before the case is submitted for decision. One
cannot substitute for the other since these submissions have
different functions in facilitating the suit.
More importantly, a memorandum is a prohibited pleading under
the Rule on the Writ of Amparo.35
The fourth irregularity was in the "Decision" dated 20 March 2012
itself. In the body of its decision, the RTC stated:
"Accordingly this court GRANTS the privilege of the writ and
the interim reliefs prayed for by the petitioner." (Emphasis
supplied).
This gives the impression that the decision was
the judgment since the phraseology is similar to Section 18 of
the Rule on the Writ of Amparo:
"SEC. 18. Judgment. — The court shall render judgment within
ten (10) days from the time the petition is submitted for decision.
If the allegations in the petition are proven by substantial
evidence, the court shall grant the privilege of the writ and
such reliefs as may be proper and appropriate; otherwise, the
privilege shall be denied." (Emphasis supplied).
The privilege of the Writ of Amparo should be distinguished
from the actual order called the Writ of Amparo. The privilege
includes availment of the entire procedure outlined in A.M. No.
07-9-12-SC, the Rule on the Writ of Amparo. After examining the
petition and its attached affidavits, the Return and the evidence
presented in the summary hearing, the judgment should detail the
required acts from the respondents that will mitigate, if not totally
eradicate, the violation of or the threat to the petitioner's life,
liberty or security.
A judgment which simply grants "the privilege of the writ" cannot
be executed. It is tantamount to a failure of the judge to
1âwphi 1
intervene and grant judicial succor to the petitioner. Petitions filed
to avail of the privilege of the Writ of Amparo arise out of very real
and concrete circumstances. Judicial responses cannot be as
tragically symbolic or ritualistic as "granting the privilege of the
Writ of Amparo."
The procedural irregularities in the RTC affected the mode of
appeal that petitioners used in elevating the matter to this Court.
It is the responsibility of counsels for the parties to raise issues
using the proper procedure at the right time. Procedural rules are
meant to assist the parties and courts efficiently deal with the
substantive issues pertaining to a case. When it is the judge
himself who disregards the rules of procedure, delay and
confusion result.
The Petition for Review is not the proper remedy to assail the
interlocutory order denominated as "Decision" dated 20 March
2012. A Petition for Certiorari, on the other hand, is
prohibited.36 Simply dismissing the present petition, however, will
cause grave injustice to the parties involved. It undermines the
salutary purposes for which the Rule on the Writ of Amparo were
promulgated.
In many instances, the Court adopted a policy of liberally
construing its rules in order to promote a just, speedy and
inexpensive disposition of every action and proceeding.37 The
rules can be suspended on the following grounds: (1) matters of
life, liberty, honor or property, (2) the existence of special or
compelling circumstances, (3) the merits of the case, (4) a cause
not entirely attributable to the fault or negligence of the party
favored by the suspension of the rules, (5) a lack of any showing
that the review sought is merely frivolous and dilatory, and (6) the
other party will not be unjustly prejudiced thereby.38
WHEREFORE, in the interest of justice, as a prophylactic to the
irregularities committed by the trial court judge, and by virtue of its
powers under Article VIII, Section 5 (5) of the Constitution, the
Court RESOLVES to:
(1) NULLIFY all orders that are subject of
this Resolution issued by Judge Silvino T. Pampilo, Jr.
after respondent Gatdula filed the Petition for the
Issuance of a Writ of Amparo;
(2) DIRECT Judge Pampilo to determine within forty-eight
(48) hours from his receipt of this Resolution whether the
issuance of the Writ of Amparo is proper on the basis of
the petition and its attached affidavits.
The Clerk of Court is DIRECTED to cause the personal service of
this Resolution on Judge Silvino T. Pampilo, Jr. of Branch 26 of
the Regional Trial Court of Manila for his proper guidance
together with a WARNING that further deviation or improvisation
from the procedure set in A.M. No. 07-9-12-SC shall be meted
with severe consequences.

SO ORDERED.
 Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 193652 August 5, 2014
Infant JULIAN YUSA Y CARAM, represented by his mother,
MA. CHRISTINA YUSAY CARAM, Petitioner,
vs.
Atty. MARIJOY D. SEGUI, Atty. SALLY D. ESCUTIN, VILMA B.
CABRERA, and CELIA C. YANGCO,Respondents.
DECISION
VILLARAMA, JR., J.:
Before us is a petition for review on certiorari under Rule 45 of the
1997 Rules of Civil Procedure, as amended, and Section 191 of
the Rule on the Writ of Amparo2 seeking to set aside the August
17, 20103 and September 6, 20104Orders of the Regional Trial
Court (RTC), Branch 106 of Quezon City, in Sp. Proc. Case No.
Q-10-67604. The RTC had dismissed petitioner’s petition for the
issuance ofa writ of amparo which petitioner filed in order for her
to regain parental authority and custody of Julian Yusay Caram
(Baby Julian), her biological child, from the respondent officers of
the Department of Social Welfare and Development (DSWD). The
factual antecedents as gleaned from the records follow:
Petitioner Ma. Christina Yusay Caram(Christina) had an amorous
relationship with Marcelino Gicano Constantino III (Marcelino)
and eventually became pregnant with the latter’s child without the
benefit of marriage. After getting pregnant, Christina mislead
Marcelino into believing that she had an abortion when in fact she
proceeded to complete the term of her pregnancy. During this
time, she intended to have the child adopted through Sun and
Moon Home for Children (Sun and Moon) in Parañaque City to
avoid placing her family ina potentially embarrassing situation for
having a second illegitimate son.5
On July 26, 2009, Christina gavebirth to Baby Julian at Amang
Rodriguez Memorial MedicalCenter, Marikina City.6Sun and Moon
shouldered all the hospital and medical expenses. On August 13,
2009, Christina voluntarily surrendered Baby Julian by way of a
Deed of Voluntary Commitment7 to the DSWD.
On November 26, 2009, Marcelino suffered a heart attack and
died8 without knowing about the birth of his son. Thereafter,
during the wake, Christina disclosed to Marcelino’s family that
she and the deceased had a son that she gave up for adoption
due to financial distress and initial embarrassment. Marcelino’s
family was taken aback by the revelation and sympathized with
Christina. After the emotional revelation, they vowed to help her
recover and raise the baby.9 On November 27, 2009, the DSWD,
through Secretary Esperanza I. Cabral issued a
certificate10declaring Baby Julian as "Legally Available for
Adoption." A local matching conference was held on January 27,
2010 and on February 5, 2010, Baby Julian was "matched" with
the spouses Vergel and Filomina Medina (Medina Spouses) of
the Kaisahang Bahay Foundation. Supervised trial custody then
commenced.11
On May 5, 2010, Christina who had changed her mind about the
adoption, wrote a letter to the DSWDasking for the suspension of
Baby Julian’s adoption proceedings. She alsosaid she wanted her
family back together.12
On May 28, 2010, the DSWD, through respondent Atty. Marijoy
D. Segui, sent a Memorandum13 to DSWD Assistant Secretary
Vilma B. Cabrera informing her that the certificate declaring Baby
Julian legally available for adoption had attained finality on
November 13, 2009, or three months after Christina signed the
Deed of Voluntary Commitment which terminated her parental
authority and effectively made Baby Julian a ward of the State.
The said Memorandum was noted by respondent Atty. Sally D.
Escutin, Director IV of the Legal Service, DSWD.
On July 12, 2010, Noel Gicano Constantino, Marcelino’s brother,
sent a letter to Atty. Escutin informing her that a DNA testing was
scheduled on July 16, 2010 at the DNA Analysis Laboratory at
the University of the Philippines.14
On July 16, 2010, Assistant Secretary Cabrera sent a letter15 to
Noel Constantino stating that it would not allow Baby Julian to
undergo DNA testing. Assistant Secretary Cabrera informed Noel
Constantino that the procedures followed relative to the
certification on the availability of the child for adoption and the
child’s subsequent placement to prospective adoptive parents
were proper, and that the DSWD was no longer in the position to
stop the adoption process. Assistant Secretary Cabrera further
stated that should Christina wish to reacquire her parental
authority over Baby Julian or halt the adoption process, she may
bring the matter to the regular courts as the reglementary period
for her to regain her parental rights had already lapsed under
Section 7 of Republic Act (R.A.) No. 9523.16
On July 27, 2010, Christina filed a petition17 for the issuance of a
writ of amparo before the RTC of Quezon City seeking to obtain
custody of Baby Julian from Atty. Segui, Atty. Escutin, Assistant
Secretary Cabrera and Acting Secretary Celia C. Yangco, all of
the DSWD.
In her petition, Christina accused respondents of "blackmailing"
her into surrendering custody of her childto the DSWD utilizing
what she claims to be an invalid certificate of availability for
adoption which respondents allegedly used as basis to
misrepresent that all legal requisites for adoption of the minor
child had been complied with.
Christina argued that by making these misrepresentations, the
respondents had acted beyond the scope of their legal authority
thereby causing the enforced disappearance of the said child and
depriving her of her custodial rights and parental authority over
him.
On the basis of the said petition,the RTC, Branch 106 of Quezon
City, through its Presiding Judge, the Honorable Angelene Mary
W. Quimpo-Sale, issued a Writ of Amparo18 on July 28, 2010
commanding the four respondents to produce the body of Baby
Julian at a hearing scheduled on August 4, 2010. Respondents
were alsorequired to file their verified written return to the writ
pursuant to Section 919 of the Amparo Rule, within five working
days from the service of the writ.
The respondents complied with the writ and filed their Return20 on
August 2, 2010 praying that the petition be denied for being the
improper remedy to avail of in a case relating toa biological
parent’s custodial rights over her child.
On August 4, 2010, respondents appeared before the RTC but
respondents did not bring the child, stating that threats of
kidnapping were made on the child and his caregivers. To give
respondents another chance, the RTC reset the hearing to
August 5, 2010.
At the August 5, 2010 hearing, the Office of the Solicitor General
(OSG) entered its appearance as representative of the State and
prayed that its lawyers be given time to file their memorandum or
position paper in this case. In turn, the RTC acknowledged the
appearance of the OSG and allowed its representatives to
actively participate in the arguments raised during the said
hearing. Relative to the matter of the parties submitting additional
pleadings, Judge Sale narrowed the issues to be discussed by
providing for the following guidelines, thus:
To abbreviate the proceedings, in view of all the manifestations
and counter-manifestations made by the counsels, the court
enjoined the parties to file their respective position papers on the
following issues:
1. Whether or not this court has jurisdiction over the instant case;
2. Whether or not this petition isthe proper remedy based on the
facts of the case and prayer in the petition; and
3. Whether or not the prayer in the petition should be granted and
custody of the child be given to his biological mother.
The parties were given five (5) days from today to file their
respective position papers based on these three main issues.
They may include other related issues they deem essential for the
resolution of this case. Set this case for further hearing, if
necessary, on August 18, 2010 at 9:00 a.m.21
In the same order, Judge Sale alsoacknowledged that the child
subject of the case was brought before the court and the
petitioner was allowed to see him and take photographs of him.
On August 17, 2010, the RTC dismissed the petition for issuance
of a writ of amparo without prejudice to the filing of the
appropriate action in court. The RTC held that Christina availed of
the wrong remedy to regain custody of her child Baby
Julian.22 The RTC further stated that Christina should have filed a
civil case for custody of her child as laid down in the Family Code
and the Rule on Custody of Minors and Writ of Habeas Corpus in
Relation to Custody of Minors. If there is extreme urgency to
secure custody of a minor who has been illegallydetained by
another, a petition for the issuance of a writ of habeas corpus
may be availed of, either as a principal or ancillary remedy,
pursuant to the Rule on Custody of Minors and Writ of Habeas
Corpus inRelation to Custody of Minors.23
On August 20, 2010, Christina filed a motion for
reconsideration24 arguing that since the RTC assumed jurisdiction
of the petition for the issuance of a writ of amparo, the latter is
duty-bound to dispose the case on the merits.25 The RTC,
however, deniedChristina’s motion for reconsideration on
September 6, 2010 maintaining that the latter availed of the
wrong remedy and that the Supreme Court intended the writ of
amparo to address the problem of extrajudicial killings and
enforced disappearances.26
On September 28, 2010, Christina directly elevated the case
before this Court, via a petition for review on certiorari under Rule
45 of the 1997 Rules of Civil Procedure, as amended, in relation
to Section 19 of the Rule on the Writ of Amparo. In her petition,
Christina prayed that the Court (1) set aside the August 17, 2010
and September 6, 2010 Orders of the RTC, (2) declare R.A. No.
9523 unconstitutional for being contrary to A.M. No. 02-6-02-
SC,27 which was promulgated by the Supreme Court, and for
violating the doctrine of separation of powers, (3) declare the
"enforced separation" between her and Baby Julian as violative of
her rights to life, liberty and security, and (4) grant her the
privilege of availing the benefits of a writ of amparo so she could
be reunited with her son.28
The only relevant issue presented before the Court worthy of
attention is whether a petition for a writ of amparo is the proper
recourse for obtaining parental authority and custody of a minor
child. This Court will not belabor to discuss Christina’s
argumentsrelating to the supposedunconstitutionality or R.A. No.
9523 as Congress has the plenary power to repeal, alter and
modify existing laws29 and A.M. No. 02-6-02-SC functions only as
a means to enforce the provisions of all adoption and adoption-
related statutes before the courts.
Now, in her petition, Christina argues that the life, liberty and
security of Baby Julian is being violated or threatened by the
respondent DSWD officers’ enforcement of an illegal Deed of
Voluntary Commitment between her and Sun and Moon. She
claims thatshe had been "blackmailed" through the said Deed by
the DSWD officers and Sun and Moon’s representatives into
surrendering her child thereby causing the "forced separation" of
the said infant from his mother. Furthermore, she also reiterates
that the respondent DSWD officers acted beyond the scope of
their authority when they deprived her of Baby Julian’s custody.30
The Court rejects petitioner’s contentions and denies the petition.
Section 1 of the Rule on the Writ of Amparo provides as follows:
SECTION 1. Petition. – The petition for a writ of amparois a
remedy available to any person whose right to life, liberty and
security is violated or threatened with violation by an unlawful
actor 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.
In the landmark case of Secretary of National Defense, et al. v.
Manalo, et al.,31 this Court held:
[T]he AmparoRule 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 groupsor 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.
This pronouncement on the coverage of the writ was further
cemented in the latter case of Lozada, Jr. v. Macapagal-
Arroyo32 where this Court explicitly declared that as it stands, the
writ of amparo is confined only to cases of extrajudicial killings
and enforced disappearances, or to threats thereof. As to what
constitutes "enforced disappearance," the Court in Navia v.
Pardico33 enumerated the elementsconstituting "enforced
disappearances" as the term is statutorily defined in Section 3(g)
of R.A. No. 985134 to wit:
(a) that there be an arrest, detention, abduction or any
form of deprivation of liberty;
(b) that it be carried out by, or with the authorization,
support or acquiescence of, the State ora political
organization;
(c) that it be followed by the State or political
organization’s refusal to acknowledge or give information
on the fate or whereabouts of the person subject of the
amparopetition; and,
(d) that the intention for such refusal isto remove subject
person from the protection of the law for a prolonged
period of time.1âwphi 1
In this case, Christina alleged that the respondent DSWD officers
caused her "enforced separation" from Baby Julian and that their
action amounted to an "enforced disappearance" within the
context of the Amparo rule. Contrary to her position, however, the
respondent DSWD officers never concealed Baby Julian's
whereabouts. In fact, Christina obtained a copy of the DSWD's
May 28, 2010 Memorandum35 explicitly stating that Baby Julian
was in the custody of the Medina Spouses when she filed her
petition before the RTC. Besides, she even admitted in her
petition for review on certiorari that the respondent DSWD officers
presented Baby Julian before the RTC during the hearing held in
the afternoon of August 5, 2010.36 There is therefore, no "enforced
disappearance" as used in the context of the Amparo rule as the
third and fourth elements are missing.

Christina's directly accusing the respondents of forcibly

separating her from her child and placing the latter up for
adoption, supposedly without complying with the necessary legal
requisites to qualify the child for adoption, clearly indicates that
she is not searching for a lost child but asserting her parental
authority over the child and contesting custody over him.37 Since it
is extant from the pleadings filed that what is involved is the issue
of child custody and the exercise of parental rights over a child,
who, for all intents and purposes, has been legally considered a
ward of the State, the Amparo rule cannot be properly applied.

To reiterate, the privilege of the writ of amparo is a remedy

available to victims of extra-judicial killings and enforced
disappearances or threats of a similar nature, regardless of
whether the perpetrator of the unlawful act or omission is a public
official or employee or a private individual. It is envisioned
basically to protect and guarantee the right to life, liberty and
security of persons, free from fears and threats that vitiate the
quality of life.

WHEREFORE, the petition is DENIED. The August 17, 2010 and

September 6, 2010 Orders of the Regional Trial Court, Branch
106, Quezon City in Sp. Proc. Case No. Q-10-67604 are
AFFIRMED without prejudice to petitioner's right to avail of proper
legal remedies afforded to her by law and related rules.

No costs.

SO ORDERED.

FIRST DIVISION
G.R. No. 205039, October 21, 2015
SPOUSES ROZELLE RAYMOND MARTIN AND CLAUDINE
MARGARET SANTIAGO, Petitioners, v.RAFFY TULFO, BEN
TULFO, AND ERWIN TULFO, Respondents.
DECISION
PERLAS-BERNABE, J.:
Assailed in this petition for review on certiorari1 are
the Resolutions dated August 6, 2012 and January 7, 20133 of the
2 uttered did not involve any actual threat and that he merely expressed
Regional Trial Court of Quezon City4 (RTC) in SP No. Q-12-71275,
which (a) dismissed the petition for writ of amparo filed by petitioners-
spouses Rozelle Raymond Martin "Raymart" (Raymart) and Claudine
Margaret Santiago (Claudine; collectively, petitioners) and (b)
dissolved the temporary protection order (TPO) previously issued
therein.
The Facts
At around 11:40 in the morning of May 6, 2012, petitioners arrived at
the Ninoy Aquino International Airport Terminal 3 (NAIA 3) aboard a
Cebu Pacific Airline flight from a vacation with their family and friends.
They waited for the arrival of their baggage but were eventually
informed that it was offloaded and transferred to a different flight.
Aggrieved, petitioners lodged a complaint before the Cebu Pacific
complaint desk. As they were complaining, they noticed a man taking
photos of Claudine with his cellular phone. Ray mart approached the
man and asked what he was doing. Suddenly, the man, later identified
as Ramon "Mon" Tulfo (Mon), allegedly punched and kicked Raymart,
forcing the latter to fight back. When Claudine saw the commotion,
she approached Mon and the latter likewise allegedly kicked and
pushed her back against the counter. At that instance, Raymart rushed
to defend his wife, while one Edoardo Benjamin Atilano (Atilano) joined
in the brawl. Immediately thereafter, several airport security personnel
came to stop the altercation and brought them to the Airport Police
Department for investigation.5
Days after the incident, respondents Raffy, Ben, and Erwin
Tulfo (respondents), brothers of Mon, aired on their TV program
comments and expletives against petitioners, and threatened that they
will retaliate.6Terrified by the gravity of the threats
hurled, petitioners filed a petition for the issuance of a writ
of amparo against respondents on May 11, 2012 before the RTC.7
On May 23, 2012, Erwin Tulfo filed a Manifestation and Motion to Deny
Issuance of Protection Order and/or Dismissal of the Petition Motu
Proprio8 (May 23, 2012 Motion) which was opposed by petitionersfor
being a prohibited pleading.9
On May 24, 2012, then Presiding Judge Bayani Vargas (JudgeVargas)
issued a Resolution10 granting a TPO in favor of petitioners and
directed respondents to file their return/answer.11
In his return/answer,12 Ben Tulfo claimed that the statements he
his strong sentiments to defend his brother.13
On June 29, 2012, Judge Vargas submitted the case for resolution but
eventually retired on July 11, 2012. Consequently, Judge Maria
Filomena Singh (Judge Singh) was designated as the Acting Presiding
Judge who assumed office and handled the present case.14
The RTC Ruling
In a Resolution15 dated August 6, 2012, the RTC, through Judge Singh,
dismissed the petition and ordered the dissolution of the TPO.16 It held
that the petition is not a proper subject of a writ of amparosince the
rules were intended to apply solely to cases of extralegal killings and
enforced disappearances, noting that the purpose of the law is to,
among others, ascertain the whereabouts of an aggrieved party,
recover evidence related to the death or disappearance of the person
identified in the petition, and determine the facts surrounding the
death or disappearance of a missing person. Consequently, it held that
it did not have the authority to issue said writ in favor of petitioners.
In this relation, it explained that while it is true that the May 23, 2012
Motion was a motion to dismiss and as such, a prohibited pleading
under the rules, it still had the discretion to dismiss the case when in
its own determination the case is not covered by the same rule. It
expressed that the prohibition against motions to dismiss was meant
to expedite the proceedings; thus, in line with the same objective, it
has the primary duty to so declare if it cannot grant the remedy at the
outset so as not to waste the time and resources of the litigants and
the courts, both in a moot and academic exercise.17
Petitioners filed a motion for reconsideration,18 which was, however,
denied for lack of merit in a Resolution19 dated January 7, 2013;
hence, this petition.
The Issue Before the Court
The essential issue in this case is whether or not the RTC's dismissal
of petitioners' amparo petition was correct.
Petitioners argue that the issuance of a writ of amparo is not limited
to cases of extrajudicial killings, enforced disappearances, or threats
thereof.20 They submit that they need not undergo the human rights
abuses such as extrajudicial killings or enforced disappearances, as is
common to landmark decisions on military and police abuses, before
their right to life, liberty, and security may be protected by a writ
ofamparo.21 Further, they insist that the May 23, 2012 Motion was a
prohibited pleading and, hence, should not have been allowed.22
The Court's Ruling
The petition is bereft of merit.
In the landmark case of Secretary of National Defense v. Manalo
(Manalo),23 the Court has already explained that the writ of amparo,
under its present procedural formulation, namely, A.M. No. 07-9-12-
SC,24 otherwise known as "The Rule on the Writ of Amparo," was
intended to address and, thus, is presently confined to cases involving
extralegal killings and/or enforced disappearances, or threats thereof:
As the Amparo Rule was intended to address the intractable
problem of "extralegal killings" and "enforced disappearances,"
its coverage, in its present form, is confined to these two
instances or to threats thereof, x x x. (Emphasis and underscoring
supplied)
Cha nRobles Vi rtu alawlib rary
Indeed, while amparo (which literally means "protection" in Spanish)
has been regarded as a special remedy provided for the enforcement
of constitutional rights, the parameters of protection are not the same
in every jurisdiction. In Manalo, the origins of amparo were discussed
as follows:
The writ of amparo originated in Mexico. "Amparo" literally means
"protection" in Spanish. In 1837, de Tocqueville's Democracy in
America became available in Mexico and stirred great interest. Its
description of the practice of judicial review in the U.S. appealed to
many Mexican jurists. One of them, Manuel Crescencio Rejon, drafted
a constitutional provision for his native state, Yucatan, which granted
judges the power to protect all persons in the enjoyment of their
constitutional and legal rights. This idea was incorporated into the
national constitution in 1847, viz: chanRob lesvi rtua lLawl ibra ry
The federal courts shall protect any inhabitant of the Republic in the
exercise and preservation of those rights granted to him by this
Constitution and by laws enacted pursuant hereto, against attacks by
the Legislative and Executive powers of the federal or state
governments, limiting themselves to granting protection in the specific
case in litigation, making no general declaration concerning the statute
or regulation that motivated the violation. ChanRobles Vi rtualaw lib rary
Since then, the protection has been an important part of Mexican
constitutionalism. If, after hearing, the judge determines that a
constitutional right of the petitioner is being violated, he orders the
official, or the official's superiors, to cease the violation and to take the
necessary measures to restore the petitioner to the full enjoyment of
the right in question. Amparo thus combines the principles of judicial
review derived from the U.S. with the limitations on judicial power
characteristic of the civil law tradition which prevails in Mexico. It
enables courts to enforce the constitution by protecting individual
rights in particular cases, but prevents them from using this power to
make law for the entire nation.
The writ of amparo then spread throughout the Western Hemisphere,
gradually evolving into various forms, in response to the particular
needs of each country. It became, in the words of a justice of the
Mexican Federal Supreme Court, one piece of Mexico's self-attributed
"task of conveying to the world's legal heritage that institution which,
as a shield of human dignity, her own painful history conceived." What
began as a protection against acts or omissions of public authorities in
violation of constitutional rights later evolved for several purposes:
(1) amparo libertad for the protection of personal freedom, equivalent
to the habeas corpus writ; (2) amparo contra leyes for the judicial
review of the constitutionality of statutes; (3) amparo casacion for the
judicial review of the constitutionality and legality of a
judicial decision; (4) amparo administrativo for the judicial review of
administrative actions; and (5) amparo agrario for the protection of
peasants" rights derived from the agrarian reform process.
In Latin American countries, except Cuba, the writ of amparo has been
constitutionally adopted to protect against human rights abuses
especially committed in countries under military juntas. In general,
these countries adopted an all-encompassing writ to protect the whole
gamut of constitutional rights, including socio-economic rights. Other
countries like Colombia, Chile, Germany and Spain, however, have
chosen to limit the protection of the writ of amparo only to some
constitutional guarantees or fundamental rights.26
In our jurisdiction, the contextual genesis, at least, for the
present Amparo Rule has limited the remedy as a response to
extrajudicial killings and enforced disappearances, or threats thereof.
"Extrajudicial killings," according to case law, are generally
characterized as "killings committed without due process of law, i.e.,
without legal safeguards or judicial proceedings,"27 while "enforced
disappearances," according to Section 3 (g) of Republic Act No.
9851,28 otherwise known as the "Philippine Act on Crimes Against
International Humanitarian Law, Genocide, and Other Crimes Against
Humanity," "means the arrest, detention, or abduction of persons by,
or with the authorization, support or acquiescence of, a State or a
political organization followed by a refusal to acknowledge that
deprivation of freedom or to give information on the fate or
whereabouts of those persons, with the intention of removing from the
protection of the law for a prolonged period of time." In Navia v.
Pardico,29 the Court held that it must be shown and proved by
substantial evidence that the disappearance was carried out by, or
with the authorization, support or acquiescence of, the State or a
political organization, followed by a refusal to acknowledge the same
or give information on the fate or whereabouts of said missing
persons, with the intention of removing them from the protection of
the law for a prolonged period of time. Simply put, the petitioner in
an amparo case has the burden of proving by substantial evidence the
indispensable element of government participation.30 Notably, the
same requirement of government participation should also apply to
extralegal killings, considering that the writ of amparo was, according
to then Chief Justice Reynato S. Puno, who headed the Committee on
the Revision of the Rules of Court that drafted A.M. No. 07-9-12-SC,
intended to "hold public authorities, those who took their oath to
defend the constitution and enforce our laws, to a high standard of
official conduct and hold them accountable to our people. [In this light]
[t]he sovereign Filipino people should be assured that if their right[s]
to life and liberty are threatened or violated, they will find vindication
in our courts of justice."31 Stated differently, the writ of amparo is an
extraordinary remedy that is meant to balance out the government's
incredible power in order to curtail human rights abuses on its end.
Consistent therewith, the delimitation of our current writ of amparo to
extralegal killings and/or enforced disappearances, or threats thereof,
is explicit from Section 1 of A.M. No. 07-9-12-SC, which reads:
Section 1. Petition. - The petition for a writ of amparo is a remedy
available to any person whose right to life, liberty and security is
violated or threatened with violation by an unlawful act or omission of
a public official or employee, or of a private individual or entity.
The writ shall cover extralegal killings and enforced disappearances or
threats thereof.
While the foregoing rule, as per Section 1 of A.M. No. 07-9-12-SC's
first paragraph, does state that the writ is a remedy to protect the
right to life, liberty, and security of the person desiring to avail of it,
the same section's second paragraph qualifies that the protection of
such rights specifically pertain to extralegal killings and enforced
disappearances or threats thereof, which are more concrete cases that
involve protection to the rights to life, liberty and security. The two
paragraphs should indeed be read together in order to construe the
meaning of the provision. Clearly applicable is the statutory
construction rule that "clauses and phrases must not be taken as
detached and isolated expressions, but the whole and every part
thereof must be considered in fixing the meaning of any of its parts in
order to produce a harmonious whole. Every part of the statute [or, in
this case, procedural rule] must be interpreted with reference to the
context, i.e., that every part of the statute must be considered
together with other parts of the statute and kept subservient to the
general intent of the whole enactment."32
In this case, it is undisputed that petitioners' amparo petition before
the RTC does not allege any case of extrajudicial killing and/or
enforced disappearance, or any threats thereof, in the senses above-
described. Their petition is merely anchored on a broad invocation of
respondents' purported violation of their right to life and security,
carried out by private individuals without any showing of direct or
indirect government participation. Thus, it is apparent that
their amparo petition falls outside the purview of A.M. No. 07-9-12-SC
and, perforce, must fail. Hence, the RTC, through Judge Singh,
properly exercised its discretion to motu proprio dismiss the same
under this principal determination, regardless of the filing of the May
23, 2012 Motion. The court, indeed, has the discretion to determine
whether or not it has the authority to grant the relief in the first place.
And when it is already apparent that the petition falls beyond the
purview of the rule, it has the duty to dismiss the petition so as not to
prejudice any of the parties through prolonged but futile litigation.

WHEREFORE, the petition is DENIED. The petition for writ

of amparo filed by petitioners-spouses Rozelle Raymond Martin and
Claudine Margaret Santiago before the Regional Trial Court of Quezon
City, docketed as SP No. Q-12-71275, is hereby DISMISSED.

SO ORDERED. chanroblesvi rtua llawli bra ry


THIRD DIVISION
G.R. Nos. 221562-69, October 05, 2016
COMMO. LAMBERTO R. TORRES
(RET.), Petitioner, v. SANDIGANBAYAN (FIRST DIVISION) AND
PEOPLE OF THE PHILIPPINES, Respondents.
DECISION
VELASCO JR., J.:
The Case
Before the Court is a Petition for Certiorari filed under Rule 65 of the
Rules of Court for the annulment of Sandiganbayan Resolutions dated
August 27, 20151 and October 28, 2015,2 with prayer for the issuance
of a status quo order or a temporary restraining order against the
Sandiganbayan.
The Facts
From 1991 to 1993, petitioner Commo. Lamberto R. Torres was the
Assistant Chief of the Naval Staff for Logistics under the Flag Officer In
Command of the Philippine Navy. Sometime in July 1991 until June
1992, the Commission on Audit (COA) conducted a special audit at the
Headquarters of the Philippine Navy (HPN) pertaining to the
procurement of drugs and medicine by emergency mode purchase,
among others. On June 18, 1993, the COA issued Special Audit Report
No. 92-128, uncovering an alleged overpricing of medicines at the HPN
or its units, and triggering a Fact-Finding Investigation by the Office
ofthe Ombudsman.
On December 11, 1996, the Office of the Ombudsman commenced a
preliminary investigation against petitioner and several others or
Illegal Use of Public Funds and Violation of Sec. 3 (e) of Republic Act
No. (RA) 301 9, otherwise known as the Anti-Graft and Corrupt
Practices Act, docketed as case number OMB-4-97-0789; and for
Violation of Sec. 3 (e) of RA 3019, docketed as case number OMB-4-
97-0790, based on an Affidavit by COA auditors.
In OMB-4-97-0789, it was alleged that the purchase of additional
drugs and medicines worth P5.56 million was not properly supported
and accounted for, and that additional drugs and medicines purchased
were supposedly not included in the list of drugs and medicines
received by the Supply Accountable Officer of the Hospital for that
period. Petitioner was included as a respondent for being a signatory
of the checks involved.
In OMB-4-97-0790, it was alleged that supplies and materials
amounting to P6,663,440.70 were purchased but equipment were
delivered, instead of the items indicated in the purchase
orders. Petitionerwas included as a respondent in the OMB-4-97-0790
because he allegedly recommended the approval of the purchase
orders and signed the certificates of emergency purchases.
These cases, however, were dismissed against petitioner for lack of
probable cause in a Joint Resolutiondated March 8, 1999.
A few years after petitioner's retirement from the service in 2001,
Tanodbayan Simeon V. Marcelo issued an Internal Memorandum dated
October 11, 2004, recommending a new fact-finding investigation and
preliminary investigation relative to other transactions in other units
and offices of the Philippine Navy. Pursuant to this Internal
Memorandum, a new Affidavit Complaint dated February 22,
2006 was filed by the Ombudsman against petitioner and several
others, this time, for violation of Sections 3 (e) and (g) of RA 3019,
docketed as case number OMB-P-C-06-0129-A.
Notices of the new preliminary investigation were, however, sent
to petitioner's old address in Kawit, Cavite, which he had already
vacated in 1980. Thus, petitioner was not informed of the proceedings
in the new preliminary investigation. Unknown to petitioner, eight (8)
Informations were filed by the Ombudsman against him and the other
accused before the Sandiganbayan on August 5, 2011. The first set
of Informations, consisting of four (4) Informations docketed as Crim.
Case Nos. SB-11-CRM-0423, SB-11-CRM-0424, SB-11-CRM-0426 &
SB-11-CRM-0427, charged petitioner and others with violation of Sec.
3 (e) of RA 3019, while the remaining four (4) Informations, docketed
as Crim. Case Nos. SB-11-CRM-0429, SB-11-CRM-0430, SB-11-CRM-
0432 & SB-11-CRM-0433, charged petitioner and others with violation
of Sec. 3 (g) of RA 3019. Hence, it was inordinate and oppressive. Petitioner argued that "'there
was already this case to speak of pending against" him since both sets
Petitioner and his co-accused were charged for allegedly g1vmg of factfinding and preliminary investigations conducted by the
unwarranted benefit to several pharmaceutical companies, certifying Ombudsman were triggered by the same COA report.
the existence of an emergency, and approving the emergency
purchase of overpriced medicines without the proper bidding. It was The Ombudsman filed its Comment and/or Opposition, arguing that
determined that no emergency existed and the overpriced items the preliminary investigations conducted against petitioner in the
bought were only kept in stock and were, essentially, over-the-counter different periods (from 1996 to 1999 and from 2006 to 2011) involved
drugs. different transactions pursuant to the various findings embodied in the
COA Special Audit Report of 1993. In fact, so the Ombudsman argued,
More particularly, petitioner's participation is limited to his issuance of the COA Audit Report is not a prerequisite to any of its investigation
the Certificates of Emergency Purchase3 that do not indicate the actual and it may conduct fact-finding and/or preliminary investigation with
condition obtaining at the time of the purchase to justify the or without said repmi.
emergency purchase.
In his Reply to the Ombudsman's Comment and/or
It was only sometime in July 2014, when petitiOner was about to Opposition, petitioner insisted, among others, that it still took the
travel to the United States, that he learned of the Ombudsman another six (6) years to file the Informations against him.
pending cases before the Sandiganbayan by virtue of a hold departure
order issued against him. Thus, petitioner filed a Motion for Reduction Ruling of the Sandiganbayan
of Bail with Appearance of Counsel and Motion for Preliminary
Investigation before the Sandiganbayan. With his motion granted, the In a Resolution dated August 27, 2015, the Sandiganbayan
proceedings before the Sandiganbayan were deferred with respect denied petitioner's Motion to Quash and sustained the prosecution's
to petitioner and a new preliminary investigation for petitioner was position. The dispositive portion of the Resolution reads: ChanRobles Vi rtua lawlib rary

conducted. WHEREFORE, in light of all the foregoing, the Motion to Quash is

hereby DENIED.
Petitioner was thereafter allowed to file a Counter-Affidavit before the
Office of the Ombudsman, where he prayed for the dismissal of the SO ORDERED.
case on the ground that his constitutional rights to due process and Petitioner filed a Motion for Reconsideration, but the same was denied
speedy trial were violated by the inordinate delay of the case. in the Sandiganbayan Resolutiondated October 28, 2015.

In its May 7, 2015 Resolution, the Ombudsman nonetheless resolved
to maintain the Informations filed against petitioner. According to the
Ombudsman, the Affidavit Complaint filed on February 22, 2006, which
resulted in the filing of the August 5, 2011 Informations, was based on
a new investigation. Thus, petitioner's "inordinate delay" argument
does not apply.
Aggrieved, petitioner filed a Motion to Quash the Informations before
the Sandiganbayan, claiming that the Ombudsman had no authority to
file the Informations having conducted the fact-finding investigation
and preliminary investigation for too long, in violation of his rights to a
speedy trial and to due process. According to petitioner, the protracted
conduct of the fact-finding and preliminary investigations lasted for
eighteen (18) years.
Hence, this petition.
Petitioner asserts that the Sandiganbayan committed grave abuse of
discretion amounting to lack of jurisdiction when it denied his Motion
to Quash. He argues that the eight (8) Informations should have been
quashed by the Sandiganbayan considering that the Ombudsman had
lost its authority to file them since petitioner's constitutional rights to
both the speedy disposition of cases and to due process were grossly
violated by the inordinate delay of almost 18 years in conducting the
fact-finding and preliminary investigations. Petitioner further argues
that, with the Ombudsman losing its authority to file the Information,
the Sandiganbayan also lost its jurisdiction over the crimes charged in
consequence.
In its Comment,4 respondent People of the Philippines prays for the
dismissal of the petition, arguing that petitioner's constitutional rights
to speedy disposition of cases and to due process were not violated.
Respondent stresses that, prior to 2006, petitioner had no case to
speak of since it was only in 2007 when the Ombudsman
recommended his indictment. It differentiated COA's audit
investigation from 1993 to 1996 as administrative in nature, from the
preliminary investigation from 1996 to 2006 for the cases which were
dismissed in favor of petitioner, and from the preliminary investigation
conducted from 2006 to 2011 where petitioner's involvement was
established.
Respondent further asserts that the Sandiganbayan did not abuse its
discretion in issuing the assailed Resolution since it was "firmly
anchored on a judicious appreciation of the facts and relevant case
law."
Thereafter, petitioner filed a Reply to Comment (On Petition for
Certiorari With Application for Status Quo Order and/or Temporary
Restraining Order) asserting that respondent is guilty of "hair-splitting"
by distinguishing between the fact-finding investigations and
preliminary investigations conducted in 1999 and in 2006 since they
both originated from the June 18, 1993 COA Special Audit Report No.
92-128.
The Issue
Essentially, the principal issue is whether the Sandiganbayan
committed grave abuse of discretion in denying petitioner's Motion to
Quash, anchored on the alleged violation of petitioner's right to speedy
disposition of cases.
The Court's Ruling
The petition is meritorious.
There is grave abuse of discretion when an act of a court or tribunal is
whimsical, arbitrary, or capricious as to amount to an "an evasion of a
positive duty or a virtual refusal to perform a duty enjoined by law or
to act at all in contemplation of law, such as where the power is
exercised in an arbitrary and despotic manner by reason of passion or
hostility."5 Grave abuse of discretion was found in cases where a lower
court or tribunal violates or contravenes the Constitution, the law, or
existing jurisprudence.6
cha nro bleslaw
In his Motion to Quash, petitioner invoked Section 3, paragraph (d) of
Rule 117, asserting that the Ombudsman had lost its authority to file
the Infonnations against him for having conducted the fact-finding and
preliminary investigations too long. He raised a similar argument in the
present petition-that the Ombudsman had no more authority to file the
Informations since petitioner's rights to speedy disposition
of cases and to due process were violated.
In denying the Motion to Quash, the Sandiganbayan ruled: ChanRobles Vi rtua lawlib rary
Ultimately, the results of the 2006 preliminary investigation itself may
not be impugned due to inordinate delay that would rise to the level of
being violative of herein accused's right to speedy disposition
of cases protected under the Constitution. If ignorance is bliss, the
accused had been spared from the travails of the preliminary
investigation which started in 2006, not like the other respondents
who showed up or were involved therein. By this Court's reckoning it
took the OMB-MOLEO only two (2) years, six (6) months and nineteen
(days) [sic] from August 7, 2007 after the issues were joined with the
filing of the last counteraffidavit therein and the issuance of
the Resolution by Graft Investigator & Prosecution Officer Marissa S.
Bernal on February 25, 2010, which terminated the preliminary
investigation process, finding probable cause. Furthermore, as
requested by the accused, the OMB-Office of the Special Prosecutor
again conducted a new or another preliminary investigation upon order
of this Court, resulting in a new resolution, dated May 7, 2015, which
maintained the informations herein. This was approved by
Ombudsman Conchita Carpio Morales on May 15, 2015. This
investigation only took a little over than six (6) months and, therefore.
could not be said to be violative of movant's right to a speedy
disposition of his case. There is no showing that movant was made to
endure any vexatious process during the said periods of investigation.
We disagree.
In Isabelo A. Braza v. The Honorable Sandiganbayan (First
Division),7 this Court has laid down the guiding principle in determining
whether the right of an accused to the speedy disposition of cases had
been violated:ChanRob les Vi rtualaw lib rary
Section 16, Atiicle lil of the Constitution declares in no uncertain tenns
that "[A]ll persons shall have the right to a speedy disposition of
their cases before all judicial, quasi-judicial, or administrative bodies."
The right to a speedy disposition of a case is deemed violated only
when the proceedings are attended by vexatious, capricious, and
oppressive delays. or when unjustified postponements of the trial are
asked for and secured, or when without cause or justifiable motive, a
long period of time is allowed to elapse without the party having his
case tried. The constitutional guarantee to a speedy disposition
of cases is a relative or flexible concept. It is consistent with delays FIRST SET OF INVESTIGATIONS
and depends upon the circumstances. What the Constitution prohibits
are unreasonable, arbitrary and oppressive delays which render rights 1. For the Complaint Case
nugatory.
OMB purchase of filed on dismissed
In Dela Peña v. Sandiganbayan, the Court laid down certain guidelines -4- additional December on March 8,
to determine whether the right to a speedy disposition has been
violated, as follows: 97- drugs and 11, 1996. 1999 due to
0789 medicines lack of
ChanRobles Vi rt ualawlib ra ry

The concept of speedy disposition is relative or flexible. A mere

mathematical reckoning of the time involved is not sufficient.
(bas worth probable
Particular regard must be taken of the facts and circumstances
peculiar to each case. Hence, the doctrinal rule is that in the ed Php5.56 cause.
determination of whether that right has been violated, the factors that on Million which
may be considered and balanced are as follows: (1) the length of
the delay; (2) the reasons for the delay; (3) the assertion or Affid were not
failure to assert such right by the accused; and (4) the avit properly
prejudice caused by the delay. (Emphasis supplied)
In the present case, the lapse of time in the conduct of the
of supported
proceedings is tantamount to a vexatious, capricious, and oppressive COA and
delay, which We find to be in violation of petitioner's constitutional Audit accounted
right to speedy disposition of cases. Below is a summary of the
proceedings conducted: ChanRob les Vi rtualaw lib rary
ors) for.

PARTICULA DATE DATE OMB For the

RS STARTED ENDED -4- purchase of
97- supplies and
COA On the Conducted Issued on 0790 materials
Speci purchase of on July 1 to June 18, which were
al drugs and August 11, 1993. instead
Audit medicines, 1992. converted to
Repo supplies, equipment.
rt materials,
No. and Inter Recommendin Issued on Received by
92- equipment of nal g that a September the
128 the HPN for Mem preliminary 30, 2004. Ombudsma
the period of oran investigation n on
July 1991 to dum be conducted October 7,
June 1992. issue with respect 2004.
d by to the bidding.
Tano overpricing in
dbay the other OMB Conducted Sandiganbay Second
an offices and -P-C- pursuant to an Resolutio Ombudsma
Sime units in the 06- the nissued on n Resolutio
on V. Philippine 0129 Sandiganbaya November nfinding
Marc Navy in -A n Resolution 10, 2014. probable
elo relation to the (Sam ordering the cause
COA Special e Ombudsman issued on
Audit Report case to conduct a May 7,
No. 92-128. as preliminary 2015.
no. investigation
SECOND SET OF INVESTIGATIONS 2) insofar
as petitioner i
2. Giving Complaint First s concerned.
OMB unwarranted filed on Ombudsma
Respondents claim that the investigation conducted by the COA from
-P-C- benefit to February 22, n Resolutio 1993 to 1996 was a "special audit which is administrative in nature";
06- pharmaceutic 2006. nfinding thus, it should not be included in counting the number of years lapsed.
They further contend that the preliminary investigations conducted
0129 al companies, probable from 1996 to 2006 which pertain to the "overpricing of medicines"
-A certifying the cause procured through emergency purchase never included petitioner, but
existence of issued on involved other PN officials, employees, and a private individual.
Respondents maintain that it was only in 2006 that petitioner was
an February implicated in said questionable transactions. Moreover, the preliminary
emergency, 25, 2010. investigations conducted from 1993 to 1996 against petitioner refer to
different transactions, specifically, for Unaccounted Drugs and
and Medicines (docketed as OMB-4-97-0789) and for Conversion (docketed
approving the Information as OMB-4-97-0790), thus, cannot be considered in determining if his
emergency s filed on right to speedy disposition of caseshad been violated.

purchase of August 5, While it may be argued that there was a distinction between the two
overpriced 2011. sets of investigations conducted in 1996 and 2006, such that they
pertain to distinct acts of different personalities, it cannot be denied
medicines that the basis for both sets of investigations emanated from the same
without the COA Special Audit Report No. 92-128, which was issued as early as
June 18, 1993. Thus, the Ombudsman had more than enough time to
proper review the same and conduct the necessary investigation while the
individuals implicated therein, such as herein petitioner, were still in
active service.
Even assuming that the COA Special Audit Report No. 92-128 was only
turned over to the Ombudsman on December 11, 1996 upon the filing
of the Affidavit ofthe COA Auditors, still, it had been in the
Ombudsman's possession and had been the subject of their review and
scrutiny for at least eight (8) years before Tanodbayan Marcelo
ordered the conduct of a preliminary investigation, and at least sixteen
(16) years before the Ombudsman found probable cause on February
25, 2010.
Nevertheless, even if we start counting from Tanodbayan Marcelo's
issuance of Internal Memorandum on September 30, 2004, there was
still at least six (6) years which lapsed before the Ombudsman issued
a Resolution finding probable cause.
We find it necessary to emphasize that the speedy disposition
of cases covers not only the period within which the preliminary
investigation was conducted, but also all stages to which the accused
is subjected, even including fact-finding investigations conducted prior
to the preliminary investigation proper. We explained in Dansal v.
Fernandez, Sr.:8
Initially embodied in Section 16, Article IV of the 1973 Constitution,
the aforesaid constitutional provision is one of three provisions
mandating speedier dispensation of justice. It guarantees the right
of all persons to "a speedy disposition of their case"; includes
within its contemplation the periods before, during and after
trial, and affords broader protection than Section 14(2), which
guarantees just the right to a speedy trial. It is more embracing than
the protection under Article VII, Section 15, which covers only the
period after the submission of the case. The present constitutional
provision applies to civil, criminal and administrative cases. (citations
omitted; Emphasis supplied)
Considering that the subject transactions were allegedly committed in
1991 and 1992, and the fact-finding and preliminary investigations
were ordered to be conducted by Tanodbayan Marcelo in 2004, the
length of time which lapsed before the Ombudsman was able to
resolve the case and actually file the Informations
against petitioner was undeniably long-drawnout.
Any delay in the investigation and prosecution of cases must be duly
justified. The State must prove that the delay in the prosecution was
reasonable, or that the delay was not attributable to it.9 Our discussion
in Coscolluela v. Sandiganbayan (First Division)10 is instructive:
ChanRobles Vi rtua lawlib rary
Verily, the Office of the Ombudsman was created under the mantle of
the Constitution, mandated to be the "protector of the people" and as
such, required to "act promptly on complaints filed in any form or
manner against officers and employees of the Government, or of any
subdivision, agency or instrumentality thereof, in order to promote
efficient service."
This great responsibility cannot be simply brushed aside by ineptitude.
Precisely, the Office of the Ombudsman has the inherent duty
not only to carefully go through the particulars of case but also
to resolve the same within the proper length of time. Its dutiful
performance should not only be gauged by the quality of the
assessment but also by the reasonable promptness of its
dispensation. Thus, barring any extraordinary complication, such as
the degree of difficulty of the questions involved in the case or any
event external thereto that effectively stymied its normal work activity
- any of which have not been adequately proven by the prosecution in
the case at bar - there appears to be no justifiable basis as to why the
Office of the Ombudsman could not have earlier resolved the
preliminary investigation proceedings against the petitioners. (citation
omitted; Emphasis supplied)
In the present case, respondents failed to submit any justifiable reason
for the protracted conduct of the investigations and in the issuance of
the resolution finding probable cause. Instead, respondents submit
that "the cases subject of this petition involve issues arising from
complex procurement transactions that were conducted in such a way
as to conceal overpricing and other irregularities, by conniving PN
officers from different PN units and private individuals."
A review of the COA Special Audit Report No. 92-128, however, shows
that it clearly enumerated the scope of the audit, the transactions
involved, the scheme employed by the concemed PN officers, and the
possible basis for the filing of a complaint against the individuals
responsible for the overpricing. Respondents' argument that the case
involves "complex procurement transactions" appears to be
unsupported by the facts presented.
There is no question that petitiOner asserted his right to a speedy
disposition of cases at the earliest possible time. In his Counter-
Affidavit filed before the Ombudsman during the reinvestigation of the
case in 2014, petitioner had already argued that dismissal of the case
is proper because the long delayed proceedings violated his
constitutional right to a speedy disposition of cases. This shows
that petitionerwasted no time to assert his right to have
the cases against him dismissed.

As for the prejudice caused by the delay, respondents claim that no
prejudice was caused to petitionerfrom the delay in the second set of
investigations because he never participated therein and was actually
never even informed of the proceedings anyway. We cannot agree
with this position. A similar assertion was struck down by this Court
in Coscolluela, to wit:
ChanRobles Vi rtua lawlib rary
Lest it be misunderstood, the right to speedy disposition of cases is not
merely hinged towards the objective of spurring dispatch in the
administration of justice but also to prevent the oppression of the
citizen by holding a criminal prosecution suspended over him for an
indefinite time. Akin to the right to speedy trial, its "salutary objective"
is to assure that an innocent person may be free from the anxiety and
expense of litigation or, if otherwise, of having his guilt determined
within the shortest possible time compatible with the presentation and
consideration of whatsoever legitimate defense he may interpose. This
looming unrest as well as the tactical disadvantages carried by the
passage of time should be weighed against the State and in favor of
the individual. In the context of the right to a speedy trial, the Court
in Corpuz v. Sandiganbayan (Corpuz) illumined: ChanRob les Virtualawl ibra ry
A balancing test of applying societal interests and the rights of the
accused necessarily compels the court to approach speedy
trial cases on an ad hoc basis.
x x x Prejudice should be assessed in the light of the interest of the
defendant that the speedy trial was designed to protect, namely: to
prevent oppressive pre-trial incarceration; to minimize anxiety and
concerns of the accused to trial; and to limit the possibility that his
defense will be impaired. Of these, the most serious is the last,
because the inability of a defendant adequately to prepare his
case skews the fairness of the entire system. There is also
prejudice if the defense witnesses are unable to recall
accurately the events of the distant past. Even if the accused is
not imprisoned prior to trial, he is still disadvantaged by
restraints on his liberty and by living under a cloud of anxiety,
suspicion and often, hostility. His financial resources may be
drained, his association is curtailed, and he is subjected to
public obloquy.
Delay is a two-edge sword. It is the government that bears the burden
of proving its case beyond reasonable doubt. The passage of time may
make it difficult or impossible for the government to carry its burden.
The Constitution and the Rules do not require impossibilities or
extraordinary efforts, diligence or exertion from courts or the
prosecutor, nor contemplate that such right shall deprive the State of
a reasonable opportunity of fairly prosecuting criminals. As held in
Williams v. United States, for the government to sustain its right to try
the accused despite a delay, it must show two things: (a) that the
accused suffered no serious prejudice beyond that which ensued from
the ordinary and inevitable delay; and (b) that there was no more
delay than IS reasonably attributable to the ordinary processes of
justice.
Closely related to the length of delay is the reason or justification of
the State for such delay. Different weights should be assigned to
different reasons or justifications invoked by the State. For instance, a
deliberate attempt to delay the trial in order to hamper or prejudice
the defense should be weighted heavily against the State. Also, it is
improper for the prosecutor to intentionally delay to gain some tactical
advantage over the defendant or to harass or prejudice him. On the
other hand, the heavy case load of the prosecution or a missing
witness should be weighted less heavily against the State. x x x
(Emphasis supplied; citations omitted)
As the right to a speedy disposition of cases encompasses the broader
purview of the entire proceedings of which trial proper is but a stage.
the above-discussed effects in Corpuz should equally apply to the case
at bar.11 x x x (citations omitted; emphasis in the original)
Adopting respondents' position would defeat the very purpose of the
right against speedy disposition of cases. Upholding the same would
allow a scenario where the prosecution may deliberately exclude
certain individuals from the investigation only to file the
necessary cases at another, more convenient time, to the prejudice of
the accused. Clearly, respondents' assertion is subject to abuse and
cannot be countenanced.
In the present case, petitioner has undoubtedly been prejudiced by
virtue of the delay in the resolution of the cases filed against him.
Even though he was not initially included as a respondent in the
investigation conducted from 1996 to 2006 pertaining to the
"overpricing of medicines'' procured through emergency purchase, he
has already been deprived of the ability to adequately prepare his case
considering that he may no longer have any access to records or
contact with any witness in support of his defense. This is even
aggravated by the fact that petitioner had been retired for fifteen (15)
years. Even if he was never imprisoned and subjected to trial, it
cannot be denied that he has lived under a cloud of anxiety by virtue
of the delay in the resolution of his case.
WHEREFORE, the petition is hereby GRANTED.
The Resolutions dated August 27, 2015 and October 28, 2015 of the
Sandiganbayan First Division in Criminal Case Nos. SB-11-CRM-0423,
0424, 0426, 0427, 0429, 0430, 0432, and 0433 are
hereby ANNULLED and SET ASIDE.

The Sandiganbayan is likewise ordered to DISMISS Criminal Case

Nos. SB-11-CRM-0423, 0424, 0426, 0427, 0429, 0430, 0432, and
0433 for violation of the constitutional right to speedy disposition
of casesof petitioner Commo. Lamberto R. Torres (Ret.).

SO ORDERED. chanRoblesvirt ual Lawlib rary

 Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 16444 September 8, 1920
EMETERIA VILLAFLOR, petitioner,
vs.
RICARDO SUMMERS, sheriff of the City of
Manila, respondent.
Alfredo Calupitan, and Gibbs, McDonough & Johnson for
petitioner.
Assistant City of Fiscal Felix for respondent.
MALCOLM, J.:
The petitioner prays that a writ of habeas corpus issue to restore
her to her liberty.
The facts are not dispute. In a criminal case pending before the
Court of First Instance of the city of Manila, Emeteria Villaflor and
Florentino Souingco are charged with the crime of adultery. On
this case coming on for trial before the Hon. Pedro Concepcion,
Judge of First Instance, upon the petitioner of the assistant fiscal
for the city of Manila, the court ordered the defendant Emeteria
Villaflor, nor become the petitioner herein, to submit her body to
the examination of one or two competent doctors to determine if
she was pregnant or not. The accused refused to obey the order
on the ground that such examination of her person was a
violation of the constitutional provision relating to self-
incrimination. Thereupon she was found in contempt of court and
was ordered to be committed to Bilibid Prison until she should
permit the medical examination required by the court.
The sole legal issue from the admitted facts is whether the
compelling of a woman to permit her body to be examined by
physicians to determine if she is pregnant, violates that portion of
the Philippine Bill of Rights and that portion of our Code of
Criminal Procedure which find their origin in the Constitution of
the United States and practically all state constitutions and in the
common law rules of evidence, providing that no person shall be
compelled in any criminal case to be a witness against himself.
(President's Instructions to the Philippine Commission; Act of
Congress of July 1, 1902, section 5, paragraph 3; Act of
Congress of August 29, 1916, section 3; paragraph 3; Code of
Criminal Procedure, section 15 [4]; United States Constitution,
fifth amendment.) Counsel for petitioner argues that such bodily
exhibition is an infringement of the constitutional provision; the
representative of the city fiscal contends that it is not an
infringement of the constitutional provision. The trial judge in the
instant case has held with the fiscal; while it is brought to our
notice that a judge of the same court has held on an identical
question as contended for by the attorney for the accused and
petitioner.
The authorities are abundant but conflicting. What may be termed
the conservative courts emphasize greatly the humanitarianism of
the constitutional provisions and are pleased to extend the
privilege in order that its mantle may cover any fact by which the
accused is compelled to make evidence against himself.
(Compare State vs. Jacobs [1858], 50 N. C., 259 with State vs.
Ah Chuey [1879], 14 Nev., 79. See further State vs. Ah
Nordstrom [1893], 7 Wash., 506; State vs. Height [1902]. 117
Iowa., 650; Thornton vs. State [1903], 117 Wis., 338.) A case
concordant with this view and almost directly in point is
People vs. McCoy ([1873], 45 How. Pr., 216). A woman was
charged with the crime of infanticide. The corner directed two
physicians to go to the jail and examine her private parts to
determine whether she had recently been delivered of a child.
She objected to the examination, but being threatened with force,
yielded, and the examination was had. The evidence of these
physicians was offered at the trial and ruled out. The court said
that the proceeding was in violation of the spirit and meaning of
the Constitution, which declares that "no person shall be
compelled in any criminal case to be a witness against himself."
Continuing, the court said: "They might as well have sworn the
prisoner, and compelled her, by threats, to testify that she had
been pregnant, and had been delivered of a child, as to have
compelled her, by threats, to allow them to look into her person,
with the aid of a speculum, to ascertain whether she had been
pregnant and been delivered of a child. . . . Has this court the
right to compel the prisoner now to submit to an examination they
are of the opinion she is not a virgin, and has had a child? It is not
possible that this court has that right; and it is too clear to admit of
argument that evidence thus obtained would be inadmissible
against the prisoner."
It may be revealing a judicial secret, but nevertheless we cannot
refrain from saying that, greatly impressed with the weight of
these decisions, especially the one written by Mr. Justice
McClain, in State vs. Height, supra, the instant case was reported
by the writer with the tentative recommendation that the court
should lay down the general rule that a defendant can be
compelled to disclose only those parts of the body which are not
usually covered. Buth having disabused our minds of a too
sensitive appreciation of the rights of accused persons, and
having been able, as we think, to penetrate through the maze of
law reports to the policy which lies behind the constitutional
guaranty and the common law principle, we have come finally to
take our stand with what we believe to be the reason of the case.
In contradistinction to the cases above-mentioned are others
which seem to us more progressive in nature. Among these can
be prominently mentioned decisions of the United States
Supreme Court, and the Supreme Court of these Islands. Thus,
the always forward looking jurist, Mr. Justice Holmes, in the late
case of Holt vs. United States ([1910], 218 U. S., 245), in
resolving an objection based upon what he termed "an
extravagant extension of the Fifth Amendment," said: "The
prohibition of compelling a man in a criminal court to be a witness
against himself is a prohibition of the use of physical or moral
compulsion to extort communications from him, not an exclusion
of his body as evidence when it may be material." (See also, of
same general tenor, decision of Mr. Justice Day in Adams vs.
New York [1903], 192 U. S., 585.) The Supreme Court of the
Philippine Islands, in two decisions, has seemed to limit the
protection to a prohibition against compulsory testimonial self-
incrimination. The constitutional limitation was said to be "simply
a prohibition against legal process to extract from the defendant's
own lips, against his will, an admission of his guilt." (U. S. vs. Tan
Teng [1912], 23 Phil., 145; U. S. vs. Ong Siu Hong [1917], 36
Phil., 735, and the derivatory principle announced in 16 Corpus
Juris, 567, 568, citing the United States Supreme Court and the
Supreme Court of the Philippine Islands as authority.)
Although we have stated s proposition previously announced by
this court and by the highest tribunal in the United States, we
cannot unconcernedly leave the subject without further
consideration. Even in the opinion Mr. Justice Holmes, to which
we have alluded, there was inserted the careful proviso that "we
need not consider how far a court would go in compelling a man
to exhibit himself." Other courts have likewise avoided any
attempt to determine the exact location of the dividing line
between what is proper and what is improper in this very broad
constitutional field. But here before us is presented what would
seem to be the most extreme case which could be imagined.
While the United States Supreme Court could nonchalantly
decree that testimony that an accused person put on a blouse
and it fitted him is not a violation of the constitutional provision,
while the Supreme Court of Nuevada could go so far as to require
the defendant to roll up his sleeve in order to disclose tattoo
marks, and while the Supreme Court of the Philippine Islands
could permit substances taken from the person of an accused to
be offered in evidence, none of these even approach in apparent
harshness an order to make a woman, possibly innocent, to
disclose her body in all of its sanctity to the gaze of strangers. We
can only consistently consent to the retention of a principle which
would permit of such a result by adhering steadfastly to the
proposition that the purpose of the constitutional provision was
and is merely to prohibit testimonial compulsion.
So much for the authorities. For the nonce we would prefer to
forget them entirely, and here in the Philippines, being in the
agrreable state of breaking new ground, would rather desire our
decision to rest on a strong foundation of reason and justice than
on a weak one blind adherence to tradition and precedent.
Moreover, we believe that an unbiased consideration of the
history of the constitutional provisions will disclose that our
conclusion is in exact accord with the causes which led to its
adoption.
The maxim of the common law, Nemo tenetur seipsum accusare,
was recognized in England in early days, but not in the other legal
systems of the world, in a revolt against the thumbscrew and the
rack. A legal shield was raised against odious inquisitorial
methods of interrogating an accused person by which to extort
unwilling confessions with the ever present temptation to commit
the crime of perjury. The kernel of the privilege as disclosed by
the textwriters was testimonial compulsion. As forcing a man to
be a witness against himself was deemed contrary to the
fundamentals of republican government, the principle was taken
into the American Constitutions, and from the United States was
brought to the Philippine Islands, in exactly as wide — but no
wider — a scope as it existed in old English days. The provision
should here be approached in no blindly worshipful spirit, but with
a judicious and a judicial appreciation of both its benefits and its
abuses. (Read the scholarly articles of Prof. Wigmore in 5
Harvard L. R. [1891], p. 71, and 15 Harvard L. R., 1902, p. 610
found in 4 Wigmore on Evidence, pp. 3069 et seq., and U. S. vs.
Navarro [1904], Phil., 143.)
Perhaps the best way to test the correctness of our position is to
go back once more to elements and ponder on what is the prime
purpose of a criminal trial. As we view it, the object of having
criminal laws is to purgue the community of persons who violate
the laws to the great prejudice of their fellow men. Criminal
procedure, the rules of evidence, and constitutional provisions,
are then provided, not to protect the guilty but to protect the
innocent. No rule is intemended to be so rigid as to embarrass
the administration of justice in its endeavor to ascertain the truth.
No accused person should be afraid of the use of any method
which will tend to establish the truth. For instance, under the facts
before us, to use torture to make the defendant admit her guilt
might only result in including her to tell a falsehood. But no
evidence of physical facts can for any substantial reason be held
to be detrimental to the accused except in so far as the truth is to
be avoided in order to acquit a guilty person.
Obviously a stirring plea can be made showing that under the due
process of law cause of the Constitution every person has a
natural and inherent right to the possession and control of his
own body. It is extremely abhorrent to one's sense of decency
and propriety to have the decide that such inviolability of the
person, particularly of a woman, can be invaded by exposure to
another's gaze. As Mr. Justice Gray in Union Pacific Railway
Co. vs. Botsford ([1891], 141 U. S., 250) said, "To compel any
one, and especially a woman, to lay bare the body, or to submit to
the touch of a stranger, without lawful authority, is an indignity, an
assault, and a trespass." Conceded, and yet, as well suggested
by the same court, even superior to the complete immunity of a
person to be let alone is the inherent which the public has in the
orderly administration of justice. Unfortunately, all too frequently
the modesty of witnesses is shocked by forcing them to answer,
without any mental evasion, questions which are put to them; and
such a tendency to degrade the witness in public estimation does
not exempt him from the duty of disclosure. Between a sacrifice
of the ascertainment of truth to personal considerations, between
a disregard of the public welfare for refined notions of delicacy,
law and justice cannot hesitate.
The protection of accused persons has been carried to such an
unwarranted extent that criminal trials have sometimes seemed to
be like a game of shuttlecocks, with the judge as referee, the
lawyers as players, the criminal as guest of honor, and the public
as fascinated spectators. Against such a loose extension of Separate Opinions
constitutional guaranties we are here prepared to voice our
protest. CARSON, J., concurring:

Fully conscious that we are resolving a most extreme case in a I concur.

sense, which on first impression is a shock to one's sensibilities,
we must nevertheless enforce the constitutional provision in this I think, however, that the scope of our ruling in this matter should
jurisdiction in accord with the policy and reason thereof, be expressly limited, in positive and definite terms, so as to make
undeterred by merely sentimental influences. Once again we lay it clear that the examination of the person of the accused shall not
down the rule that the constitutional guaranty, that no person be carried beyond a mere ocular inspection, wherein the use of
shall be compelled in any criminal case to be a witness against instruments or of physical force upon the person of the accused
himself, is limited to a prohibition against compulsory testimonial would be prohibited.
self-incrimination. The corollary to the proposition is that, an
ocular inspection of the body of the accused is permissible. The
proviso is that torture of force shall be avoided. Whether facts fall
within or without the rule with its corollary and proviso must, of
course, be decided as cases arise.

It is a reasonable presumption that in an examination by

reputable and disinterested physicians due care will be taken not
to use violence and not to embarass the patient any more than is
absolutely necessary. Indeed, no objection to the physical
examination being made by the family doctor of the accused or by
doctor of the same sex can be seen.

Although the order of the trial judge, acceding to the request of

the assistant fiscal for an examination of the person of the
defendant by physicians was phrased in absolute terms, it should,
nevertheless, be understood as subject to the limitations herein
mentioned, and therefore legal. The writ of habeas corpus prayed
for is hereby denied. The costs shall be taxed against the
petitioner. So ordered.

Mapa, C.J., Araullo, Avanceña, Moir and Villamor, JJ., concur.

 Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 32025 September 23, 1929
FRANCISCO BELTRAN, petitioner,
vs.
FELIX SAMSON, Judge of the Second Judicial District, and
FRANCISCO JOSE, Provincial Fiscal of Isabela,respondents.
Gregorio P. Formoso and Vicente Formoso for petitioner.
The respondents in their own behalf.
ROMUALDEZ, J.:
This is a petition for a writ of prohibition, wherein the petitioner
complains that the respondent judge ordered him to appear
before the provincial fiscal to take dictation in his own handwriting
from the latter.
The order was given upon petition of said fiscal for the purpose of
comparing the petitioner's handwriting and determining whether
or not it is he who wrote certain documents supposed to be
falsified.
There is no question as to the facts alleged in the complaint filed
in these proceedings; but the respondents contend that the
petitioner is not entitled to the remedy applied for, inasmuch as
the order prayed for by the provincial fiscal and later granted by
the court below, and again which the instant action was brought,
is based on the provisions of section 1687 of the Administrative
Code and on the doctrine laid down in the cases of People vs.
Badilla (48 Phil., 718); United States vs. Tan Teng (23 Phil., 145);
United States vs. Ong Siu Hong (36 Phil., 735), cited by counsel
for the respondents, and in the case of Villaflor vs. Summers (41
Phil., 62) cited by the judge in the order in question.
Of course, the fiscal under section 1687 of the Administrative
Code, and the proper judge, upon motion of the fiscal, may
compel witnesses to be present at the investigation of any crime
or misdemeanor. But this power must be exercised without
prejudice to the constitutional rights of persons cited to appear.
And the petitioner, in refusing to perform what the fiscal
demanded, seeks refuge in the constitutional provision contained
in the Jones Law and incorporated in General Orders, No. 58.
Therefore, the question raised is to be decided by examining
whether the constitutional provision invoked by the petitioner
prohibits compulsion to execute what is enjoined upon him by the
order against which these proceedings were taken.
Said provision is found in paragraph 3, section 3 of the Jones
Law which (in Spanish) reads: "Ni se le obligara a declarar en
contra suya en ningun proceso criminal" and has been
incorporated in our Criminal Procedure (General Orders, No. 58)
in section 15 (No. 4 ) and section 56.
As to the extent of the privilege, it should be noted first of all, that
the English text of the Jones Law, which is the original one, reads
as follows: "Nor shall be compelled in any criminal case to be a
witness against himself."
This text is not limited to declaracion but says "to be a witness."
Moreover, as we are concerned with a principle contained both in
the Federal constitution and in the constitutions of several states
of the United States, but expressed differently, we should take it
that these various phrasings have a common conception.
In the interpretation of the principle, nothing turns upon
the variations of wording in the constitutional clauses; this
 much is conceded (ante, par. 2252). It is therefore
immaterial that the witness is protected by one
constitution from 'testifying', or by another from 'furnishing
evidence', or by another from 'giving evidence,' or by still
another from 'being a witness.' These various phrasings
have a common conception, in respect to the form of the
protected disclosure. What is that conception? (4
Wigmore on Evidence, p. 863, 1923 ed.)
As to its scope, this privilege is not limited precisely to testimony,
but extends to all giving or furnishing of evidence.
The rights intended to be protected by the constitutional
provision that no man accused of crime shall be
compelled to be a witness against himself is so sacred,
and the pressure toward their relaxation so great when
the suspicion of guilt is strong and the evidence
obscure, that is the duty of courts liberally to construe the
prohibition in favor of personal rights, and to refuse to
permit any steps tending toward their invasion.
Hence, there is the well-established doctrine that the
constitutional inhibition is directed not merely to giving of
oral testimony, but embraces as well the furnishing of
evidence by other means than by word of mouth, the
divulging, in short, of any fact which the accused has a
right to hold secret. (28 R. C. L., paragraph 20, page 434
and notes.) (Emphasis ours.)
The question, then, is reduced to a determination of whether the
writing from the fiscal's dictation by the petitioner for the purpose
of comparing the latter's handwriting and determining whether he
wrote certain documents supposed to be falsified, constitutes
evidence against himself within the scope and meaning of the
constitutional provision under examination.
Whenever the defendant, at the trial of his case, testifying in his
own behalf, denies that a certain writing or signature is in his own
hand, he may on cross-examination be compelled to write in open
court in order that the jury maybe able to compare his handwriting
with the one in question.
It was so held in the case of Bradford vs. People (43 Pacific
Reporter, 1013) inasmuch as the defendant, in offering himself as
witness in his own behalf, waived his personal privileges.
Of like character is the case of Sprouse vs. Com. (81 Va.,
374,378), where the judge asked the defendant to write his name
during the hearing, and the latter did so voluntarily.
But the cases so resolved cannot be compared to the one now
before us. We are not concerned here with the defendant, for it
does not appear that any information was filed against the
petitioner for the supposed falsification, and still less as it a
question of the defendant on trial testifying and under cross-
examination. This is only an investigation prior to the information
and with a view to filing it. And let it further be noted that in the
case of Sprouse vs. Com., the defendant performed the act
voluntarily.
We have also come upon a case wherein the handwriting or the
form of writing of the defendant was obtained before the criminal
action was instituted against him. We refer to the case of People
vs. Molineux (61 Northeastern Reporter, 286).
Neither may it be applied to the instant case, because there, as in
the aforesaid case of Sprouse vs. Com., the defendant voluntarily
offered to write, to furnish a specimen of his handwriting.
We cite this case particularly because the court there gives
prominence to the defendant's right to decline to write, and to the
fact that he voluntarily wrote. The following appears in the body of
said decision referred to (page 307 of the volume cited):
The defendant had the legal right to refuse to write for
Kinsley. He preferred to accede to the latter's request,
 and we can discover no ground upon which the writings
thus produced can be excluded from the case. (Emphasis
ours.)
For the reason it was held in the case of First National Bank vs.
Robert (41 Mich., 709; 3 N. W., 199), that the defendant could not
be compelled to write his name, the doctrine being stated as
follows:
The defendant being sworn in his own behalf denied the
endorsement.
He was then cross-examined the question in regard to his
having signed papers not in the case, and was asked in
particular whether he would not produce signatures made
prior to the note in suit, and whether he would not write
his name there in the court. The judge excluded all these
inquiries, on objection, and it is of these rulings that
complaint is made. The object of the questions was to
bring into the case extrinsic signatures, for the purpose of
comparison by the jury, and we think that the judge was
correct in ruling against it.
It is true that the eminent Professor Wigmore, in his work cited
(volume 4, page 878), says:
Measuring or photographing the party is not within the
privilege. Nor it is the removal or replacement of his
garments or shoes. Nor is the requirement that the party
move his body to enable the foregoing things to be done.
Requiring him to make specimens of handwriting is no
more than requiring him to move his body . . ." but he
cites no case in support of his last assertion on
specimens of handwriting. We note that in the same
paragraph 2265, where said authors treats of "Bodily
Exhibition." and under preposition "1. A great variety of
concrete illustrations have been ruled upon," he cites
many cases, among them that of People vs. Molineux (61
N. E., 286) which, as we have seen, has no application to
the case at bar because there the defendant voluntary
gave specimens of his handwriting, while here the
petitioner refuses to do so and has even instituted these
prohibition proceedings that he may not be compelled to
do so.
Furthermore, in the case before us, writing is something more
than moving the body, or the hands, or the fingers; writing is not a
purely mechanical act, because it requires the application of
intelligence and attention; and in the case at bar writing means
that the petitioner herein is to furnish a means to determine
whether or not he is the falsifier, as the petition of the respondent
fiscal clearly states. Except that it is more serious, we believe the
present case is similar to that of producing documents or chattels
in one's possession. And as to such production of documents or
chattels. which to our mind is not so serious as the case now
before us, the same eminent Professor Wigmore, in his work
cited, says (volume 4, page 864):
. . . 2264. Production or Inspection of Documents and
Chattels. — 1. It follows that the production of documents
or chattels by a person (whether ordinary witness or
party-witness) in response to a subpoena, or to a motion
to order production, or to other form of process treating
him as a witness ( i.e. as a person appearing before a
tribunal to furnish testimony on his moral responsibility for
truthtelling), may be refused under the protection of the
privilege; and this is universally conceded. (And he cites
the case of People vs. Gardner, 144 N. Y., 119; 38 N.E.,
1003)
We say that, for the purposes of the constitutional privilege, there
is a similarity between one who is compelled to produce a
document, and one who is compelled to furnish a specimen of his
handwriting, for in both cases, the witness is required to furnish
evidence against himself.
And we say that the present case is more serious than that of
compelling the production of documents or chattels, because
here the witness is compelled to write and create, by means of
the act of writing, evidence which does not exist, and which may
identify him as the falsifier. And for this reason the same eminent
author, Professor Wigmore, explaining the matter of the
production of documents and chattels, in the passage cited, adds:
For though the disclosure thus sought be not oral in form,
and though the documents or chattels be already in
existence and not desired to be first written and created
by testimonial act or utterance of the person in response
to the process, still no line can be drawn short of any
process which treats him as a witness; because in virtue it
would be at any time liable to make oath to the identity or
authenticity or origin of the articles produced. (Ibid., pp.
864-865.) (Emphasis ours.)
It cannot be contended in the present case that if permission to
obtain a specimen of the petitioner's handwriting is not granted,
the crime would go unpunished. Considering the circumstance
that the petitioner is a municipal treasurer, according to Exhibit A,
it should not be a difficult matter for the fiscal to obtained genuine
specimens of his handwriting. But even supposing it is impossible
to obtain specimen or specimens without resorting to the means
complained herein, that is no reason for trampling upon a
personal right guaranteed by the constitution. It might be true that
in some cases criminals may succeed in evading the hand of
justice, but such cases are accidental and do not constitute
the raison d' etre of the privilege. This constitutional privilege
exists for the protection of innocent persons.
With respect to the judgments rendered by this court and cited on
behalf of the respondents, it should be remembered that in the
case of People vs. Badilla (48 Phil., 718), it does not appear that
the defendants and other witnesses were questioned by the fiscal
against their will, and if they did not refuse to answer, they must
be understood to have waived their constitutional privilege, as
they could certainly do.
The privilege not to give self-incriminating evidence, while
absolute when claimed, maybe waived by any one
entitled to invoke it. (28 R. C. L., paragraph 29, page 442,
and cases noted.)
The same holds good in the case of United States vs. Tan Teng
(23 Phil., 145), were the defendant did not opposethe extraction
from his body of the substance later used as evidence against
him.
In the case of Villaflor vs. Summers (41 Phil., 62), it was plainly
stated that the court preferred to rest its decision on the reason of
the case rather than on blind adherence to tradition. The said
reason of the case there consisted in that it was the case of the
examination of the body by physicians, which could be and
doubtless was interpreted by this court, as being no compulsion
of the petitioner therein to furnish evidence by means
of testimonial act. In reality she was not compelled to execute any
positive act, much less a testimonial act; she was only enjoined
from something preventing the examination; all of which is very
different from what is required of the petitioner of the present
case, where it is sought to compel him to perform a positive,
testimonial act, to write and give a specimen of his handwriting for
the purpose of comparison. Besides, in the case of Villamor vs.
Summers, it was sought to exhibit something already in
existence, while in the case at bar, the question deals with
something not yet in existence, and it is precisely sought to
compel the petitioner to make, prepare, or produce by this
means, evidence not yet in existence; in short, to create this
evidence which may seriously incriminate him.
Similar considerations suggest themselves to us with regard to
the case of United States vs. Ong Siu Hong (36 Phil., 735),
wherein the defendant was not compelled to perform
any testimonial act, but to take out of his mouth the morphine he
had there. It was not compelling him to testify or to be a witness
or to furnish, much less make, prepare, or create through a
testimonial act, evidence for his own condemnation.

Wherefore, we find the present action well taken, and it is ordered

that the respondents and those under their orders desist and
abstain absolutely and forever from compelling the petitioner to
take down dictation in his handwriting for the purpose of
submitting the latter for comparison.

Without express pronouncement as to costs. So ordered.

 THIRD DIVISION
[G.R. No. 162571. June 15, 2005]
ARNEL L. AGUSTIN, petitioner, vs. HON. COURT OF
APPEALS AND MINOR MARTIN JOSE
PROLLAMANTE, REPRESENTED BY HIS
MOTHER/GUARDIAN FE ANGELA
PROLLAMANTE, respondents.
DECISION
CORONA, J.:
At issue in this petition for certiorari [1] is whether or not the
Court of Appeals (CA) gravely erred in exercising its
discretion, amounting to lack or excess of jurisdiction, in
issuing a decision[2] and resolution[3] upholding the resolution
and order of the trial court,[4] which denied petitioners motion
to dismiss private respondents complaint for support and
directed the parties to submit themselves to deoxyribonucleic
acid (DNA) paternity testing.
Respondents Fe Angela and her son Martin Prollamante
sued Martins alleged biological father, petitioner Arnel L.
Agustin, for support and support pendente lite before the
Regional Trial Court (RTC) of Quezon City, Branch 106.[5]
In their complaint, respondents alleged that Arnel courted
Fe in 1992, after which they entered into an intimate
relationship. Arnel supposedly impregnated Fe on her
34th birthday on November 10, 1999. Despite Arnels insistence
on abortion, Fe decided otherwise and gave birth to their child
out of wedlock, Martin, on August 11, 2000 at the Capitol
Medical Hospital in Quezon City. The babys birth certificate
was purportedly signed by Arnel as the father. Arnel
shouldered the pre-natal and hospital expenses but later
refused Fes repeated requests for Martins support despite his
adequate financial capacity and even suggested to have the
child committed for adoption. Arnel also denied having
fathered the child.
On January 19, 2001, while Fe was carrying five-month
old Martin at the Capitol Hills Golf and Country Club parking
lot, Arnel sped off in his van, with the open car door hitting Fes
leg. This incident was reported to the police. In July 2001, Fe
was diagnosed with leukemia and has, since then, been
undergoing chemotherapy. On March 5, 2002, Fe and Martin
sued Arnel for support.[6]
In his amended answer, Arnel denied having sired Martin
because his affair and intimacy with Fe had allegedly ended in
1998, long before Martins conception. He claimed that Fe had
at least one other secret lover. Arnel admitted that their
relationship started in 1993 but he never really fell in love with
(Fe) not only because (she) had at least one secret lover, a
certain Jun, but also because she proved to be scheming and
overly demanding and possessive. As a result, theirs was a
stormy on-and-off affair. What started as a romantic liaison
between two consenting adults eventually turned out to be a
case of fatal attraction where (Fe) became so obsessed with
(Arnel), to the point of even entertaining the idea of marrying
him, that she resorted to various devious ways and means to
alienate (him) from his wife and family. Unable to bear the
prospect of losing his wife and children, Arnel terminated the
affair although he still treated her as a friend such as by
referring potential customers to the car aircon repair
shop[7] where she worked. Later on, Arnel found out that Fe
had another erstwhile secret lover. In May 2000, Arnel and his
entire family went to the United States for a vacation. Upon
their return in June 2000, Arnel learned that Fe was telling
people that he had impregnated her. Arnel refused to
acknowledge the child as his because their last intimacy was
sometime in 1998.[8] Exasperated, Fe started calling Arnels
wife and family. On January 19, 2001, Fe followed Arnel to the
Capitol Hills Golf and Country Club parking lot to demand that
he acknowledge Martin as his child. According to Arnel, he
could not get through Fe and the discussion became so
heated that he had no alternative but to move on but without
bumping or hitting any part of her body.[9] Finally, Arnel
claimed that the signature and the community tax certificate
(CTC) attributed to him in the acknowledgment of Martins birth
certificate were falsified. The CTC erroneously reflected his
marital status as single when he was actually married and that
his birth year was 1965 when it should have been 1964.[10]
In his pre-trial brief filed on May 17, 2002, Arnel
vehemently denied having sired Martin but expressed
willingness to consider any proposal to settle the case.[11]
On July 23, 2002, Fe and Martin moved for the issuance
of an order directing all the parties to submit themselves to
DNA paternity testing pursuant to Rule 28 of the Rules of
Court.[12]
Arnel opposed said motion by invoking his constitutional
right against self-incrimination.[13] He also moved to dismiss
the complaint for lack of cause of action, considering that his
signature on the birth certificate was a forgery and that, under
the law, an illegitimate child is not entitled to support if not
recognized by the putative father.[14] In his motion, Arnel
manifested that he had filed criminal charges for falsification of
documents against Fe (I.S. Nos. 02-5723 and 02-7192) and a
petition for cancellation of his name appearing in Martins birth
certificate (docketed as Civil Case No. Q-02-46669). He
attached the certification of the Philippine National Police
Crime Laboratory that his signature in the birth certificate was
forged.
The trial court denied the motion to dismiss the complaint
and ordered the parties to submit themselves to DNA paternity
testing at the expense of the applicants. The Court of Appeals
affirmed the trial court.
Thus, this petition.
In a nutshell, petitioner raises two issues: (1) whether a
complaint for support can be converted to a petition for
recognition and (2) whether DNA paternity testing can be
ordered in a proceeding for support without violating
petitioners constitutional right to privacy and right against self-
incrimination.[15]
The petition is without merit.
First of all, the trial court properly denied the petitioners
motion to dismiss because the private respondents complaint
on its face showed that they had a cause of action against the
petitioner. The elements of a cause of action are: (1) the
plaintiffs primary right and the defendants corresponding
primary duty, and (2) the delict or wrongful act or omission of
the defendant, by which the primary right and duty have been
violated. The cause of action is determined not by the prayer
of the complaint but by the facts alleged.[16]
In the complaint, private respondents alleged that Fe had
amorous relations with the petitioner, as a result of which she
gave birth to Martin out of wedlock. In his answer, petitioner
admitted that he had sexual relations with Fe but denied that
he fathered Martin, claiming that he had ended the relationship
long before the childs conception and birth. It is undisputed
and even admitted by the parties that there existed a sexual
relationship between Arnel and Fe. The only remaining
question is whether such sexual relationship produced the
child, Martin. If it did, as respondents have alleged, then Martin
should be supported by his father Arnel. If not, petitioner and
Martin are strangers to each other and Martin has no right to
demand and petitioner has no obligation to give support.
 Preliminaries aside, we now tackle the main issues.
Petitioner refuses to recognize Martin as his own child and
denies the genuineness and authenticity of the childs birth
certificate which he purportedly signed as the father. He also
claims that the order and resolution of the trial court, as
affirmed by the Court of Appeals, effectively converted the
complaint for support to a petition for recognition, which is
supposedly proscribed by law. According to petitioner, Martin,
as an unrecognized child, has no right to ask for support and
must first establish his filiation in a separate suit under Article
283[17] in relation to Article 265[18] of the Civil Code and Section
1, Rule 105[19] of the Rules of Court.
The petitioners contentions are without merit.
The assailed resolution and order did not convert the
action for support into one for recognition but merely allowed
the respondents to prove their cause of action against
petitioner who had been denying the authenticity of the
documentary evidence of acknowledgement. But even if the
assailed resolution and order effectively integrated an action to
compel recognition with an action for support, such was valid
and in accordance with jurisprudence. In Tayag v. Court of
Appeals,[20] we allowed the integration of an action to compel
recognition with an action to claim ones inheritance:
In Paulino, we held that an illegitimate child, to be entitled to
support and successional rights from the putative or presumed
parent, must prove his filiation to the latter. We also said that it is
necessary to allege in the complaint that the putative father had
acknowledged and recognized the illegitimate child because such
acknowledgment is essential to and is the basis of the right to inherit.
There being no allegation of such acknowledgment, the action
becomes one to compel recognition which cannot be brought after
the death of the putative father. The ratio decidendi in Paulino,
therefore, is not the absence of a cause of action for failure of the
petitioner to allege the fact of acknowledgment in the complaint, but
the prescription of the action.
Applying the foregoing principles to the case at bar, although
petitioner contends that the complaint filed by herein private
respondent merely alleges that the minor Chad Cuyugan is an
illegitimate child of the deceased and is actually a claim for
inheritance, from the allegations therein the same may be considered
as one to compel recognition. Further, that the two causes of action,
one to compel recognition and the other to claim inheritance,
may be joined in one complaint is not new in our jurisprudence.
As early as [1922] we had occasion to rule thereon in Briz vs. Briz, et
al. (43 Phil. 763 [1922]) wherein we said:
The question whether a person in the position of the present plaintiff
can in any event maintain a complex action to compel recognition as
a natural child and at the same time to obtain ulterior relief in the
character of heir, is one which in the opinion of this court must be
answered in the affirmative, provided always that the conditions
justifying the joinder of the two distinct causes of action are present
in the particular case. In other words, there is no absolute
necessity requiring that the action to compel acknowledgment
should have been instituted and prosecuted to a successful
conclusion prior to the action in which that same plaintiff seeks
additional relief in the character of heir. Certainly, there is
nothing so peculiar to the action to compel acknowledgment as to
require that a rule should be here applied different from that
generally applicable in other cases. x x x
The conclusion above stated, though not heretofore explicitly
formulated by this court, is undoubtedly to some extent supported by
our prior decisions. Thus, we have held in numerous cases, and the
doctrine must be considered well settled, that a natural child
having a right to compel acknowledgment, but who has not been
in fact legally acknowledged, may maintain partition
proceedings for the division of the inheritance against his
coheirs x x x; and the same person may intervene in proceedings for
the distribution of the estate of his deceased natural father, or mother
x x x. In neither of these situations has it been thought necessary for
the plaintiff to show a prior decree compelling acknowledgment. The
obvious reason is that in partition suits and distribution proceedings
the other persons who might take by inheritance are before the court;
and the declaration of heirship is appropriate to such proceedings.
(Underscoring supplied)
Although the instant case deals with support rather than
inheritance, as in Tayag, the basis or rationale for integrating
them remains the same. Whether or not respondent Martin is
entitled to support depends completely on the determination of
filiation. A separate action will only result in a multiplicity of
suits, given how intimately related the main issues in both
cases are. To paraphrase Tayag, the declaration of filiation is
entirely appropriate to these proceedings.
On the second issue, petitioner posits that DNA is not
recognized by this Court as a conclusive means of proving
paternity. He also contends that compulsory testing violates
his right to privacy and right against self-incrimination as
guaranteed under the 1987 Constitution. These contentions
have no merit.
Given that this is the very first time that the admissibility of
DNA testing as a means for determining paternity has actually
been the focal issue in a controversy, a brief historical sketch
of our past decisions featuring or mentioning DNA testing is
called for.
In the 1995 case of People v. Teehankee[21] where the
appellant was convicted of murder on the testimony of three
eyewitnesses, we stated as an obiter dictum that while
eyewitness identification is significant, it is not as accurate and
authoritative as the scientific forms of identification evidence
such as the fingerprint or the DNA test result (emphasis
supplied).
Our faith in DNA testing, however, was not quite so
steadfast in the previous decade. In Pe Lim v. Court of
Appeals,[22] promulgated in 1997, we cautioned against the
use of DNA because DNA, being a relatively new science,
(had) not as yet been accorded official recognition by our
courts. Paternity (would) still have to be resolved by such
conventional evidence as the relevant incriminating acts,
verbal and written, by the putative father.
In 2001, however, we opened the possibility of admitting
DNA as evidence of parentage, as enunciated in Tijing v.
Court of Appeals:[23]
A final note. Parentage will still be resolved using conventional
methods unless we adopt the modern and scientific ways available.
Fortunately, we have now the facility and expertise in using DNA
test for identification and parentage testing. The University of the
Philippines Natural Science Research Institute (UP-NSRI) DNA
Analysis Laboratory has now the capability to conduct DNA typing
using short tandem repeat (STR) analysis. The analysis is based on
the fact that the DNA of a child/person has two (2) copies, one copy
from the mother and the other from the father. The DNA from the
mother, the alleged father and child are analyzed to establish
parentage. Of course, being a novel scientific technique, the use of
DNA test as evidence is still open to challenge. Eventually, as the
appropriate case comes, courts should not hesitate to rule on the
admissibility of DNA evidence. For it was said, that courts should
apply the results of science when competently obtained in aid of
situations presented, since to reject said result is to deny progress.
The first real breakthrough of DNA as admissible and
authoritative evidence in Philippine jurisprudence came in
2002 with our en banc decision in People v. Vallejo[24] where
the rape and murder victims DNA samples from the
bloodstained clothes of the accused were admitted in
evidence. We reasoned that the purpose of DNA testing (was)
to ascertain whether an association exist(ed) between the
evidence sample and the reference sample. The samples
collected (were) subjected to various chemical processes to
establish their profile.
A year later, in People v. Janson,[25] we acquitted the
accused charged with rape for lack of evidence because
doubts persist(ed) in our mind as to who (were) the real
malefactors. Yes, a complex offense (had) been perpetrated
but who (were) the perpetrators? How we wish we had DNA or
other scientific evidence to still our doubts!
In 2004, in Tecson, et al. v. COMELEC[26] where the
Court en banc was faced with the issue of filiation of then
presidential candidate Fernando Poe Jr., we stated:
In case proof of filiation or paternity would be unlikely to
satisfactorily establish or would be difficult to obtain, DNA testing,
which examines genetic codes obtained from body cells of the
illegitimate child and any physical residue of the long dead parent
could be resorted to. A positive match would clear up filiation or
paternity. In Tijing vs. Court of Appeals, this Court has
acknowledged the strong weight of DNA testing
Moreover, in our en banc decision in People v.
Yatar,[27] we affirmed the conviction of the accused for rape
with homicide, the principal evidence for which included DNA
test results. We did a lengthy discussion of DNA, the process
of DNA testing and the reasons for its admissibility in the
context of our own Rules of Evidence:
Deoxyribonucleic Acid, or DNA, is a molecule that encodes the
genetic information in all living organisms. A persons DNA is the
same in each cell and it does not change throughout a persons
lifetime; the DNA in a persons blood is the same as the DNA found
in his saliva, sweat, bone, the root and shaft of hair, earwax, mucus,
urine, skin tissue, and vaginal and rectal cells. Most importantly,
because of polymorphisms in human genetic structure, no two
individuals have the same DNA, with the notable exception of
identical twins.
xxx xxx xxx
In assessing the probative value of DNA evidence, courts should
consider, inter alia, the following factors: how the samples were
collected, how they were handled, the possibility of contamination of
the samples, the procedure followed in analyzing the samples,
whether proper standards and procedures were followed in
conducting the tests, and the qualification of the analyst who
conducted the tests.
In the case at bar, Dr. Maria Corazon Abogado de Ungria was duly
qualified by the prosecution as an expert witness on DNA print or
identification techniques. Based on Dr. de Ungrias testimony, it was
determined that the gene type and DNA profile of appellant are
identical to that of the extracts subject of examination. The blood
sample taken from the appellant showed that he was of the following
gene types: vWA 15/19, TH01 7/8, DHFRP29/10 and CSF1PO
10/11, which are identical with semen taken from the victims vaginal
canal. Verily, a DNA match exists between the semen found in the
victim and the blood sample given by the appellant in open court
during the course of the trial.
Admittedly, we are just beginning to integrate these advances in
science and technology in the Philippine criminal justice system, so
we must be cautious as we traverse these relatively uncharted waters.
Fortunately, we can benefit from the wealth of persuasive
jurisprudence that has developed in other jurisdictions. Specifically,
the prevailing doctrine in the U.S. has proven instructive.
In Daubert v. Merrell Dow (509 U.S. 579 (1993); 125 L. Ed. 2d 469)
it was ruled that pertinent evidence based on scientifically valid
principles could be used as long as it was relevant and reliable.
Judges, under Daubert, were allowed greater discretion over which
testimony they would allow at trial, including the introduction of
new kinds of scientific techniques. DNA typing is one such novel
procedure.
Under Philippine law, evidence is relevant when it relates directly to
a fact in issue as to induce belief in its existence or non-existence.
Applying the Daubert test to the case at bar, the DNA evidence
obtained through PCR testing and utilizing STR analysis, and which
was appreciated by the court a quo is relevant and reliable since it is
reasonably based on scientifically valid principles of human genetics
and molecular biology.
Significantly, we upheld the constitutionality of compulsory
DNA testing and the admissibility of the results thereof as
evidence. In that case, DNA samples from semen recovered
from a rape victims vagina were used to positively identify the
accused Joel Kawit Yatar as the rapist. Yatar claimed that the
compulsory extraction of his blood sample for DNA testing, as
well as the testing itself, violated his right against self-
incrimination, as embodied in both Sections 12 and 17 of
Article III of the Constitution. We addressed this as follows:
The contention is untenable. The kernel of the right is not against all
compulsion, but against testimonial compulsion. The right against
self-incrimination is simply against the legal process of extracting
from the lips of the accused an admission of guilt. It does not apply
where the evidence sought to be excluded is not an incrimination but
as part of object evidence.
Over the years, we have expressly excluded several kinds
of object evidence taken from the person of the accused from
the realm of self-incrimination. These include
photographs,[28]hair,[29] and other bodily substances.[30] We
have also declared as constitutional several procedures
performed on the accused such as pregnancy tests for women
accused of adultery,[31]expulsion of morphine from ones
mouth[32] and the tracing of ones foot to determine its identity
with bloody footprints.[33] In Jimenez v. Caizares,[34] we even
authorized the examination of a womans genitalia, in an action
for annulment filed by her husband, to verify his claim that she
was impotent, her orifice being too small for his penis. Some of
these procedures were, to be sure, rather invasive and
involuntary, but all of them were constitutionally sound. DNA
testing and its results, per our ruling in Yatar,[35] are now
similarly acceptable.
Nor does petitioners invocation of his right to privacy
persuade us. In Ople v. Torres,[36] where we struck down the
proposed national computerized identification system
embodied in Administrative Order No. 308, we said:
In no uncertain terms, we also underscore that the right to privacy
does not bar all incursions into individual privacy. The right is not
intended to stifle scientific and technological advancements that
enhance public service and the common good... Intrusions into the
right must be accompanied by proper safeguards that enhance public
service and the common good.
Historically, it has mostly been in the areas of legality of
searches and seizures,[37] and the infringement of privacy of
communication[38] where the constitutional right to privacy has
been critically at issue. Petitioners case involves neither and,
as already stated, his argument that his right against self-
incrimination is in jeopardy holds no water. His hollow
invocation of his constitutional rights elicits no sympathy here
for the simple reason that they are not in any way being
violated. If, in a criminal case, an accused whose very life is at
stake can be compelled to submit to DNA testing, we see no
reason why, in this civil case, petitioner herein who does not
face such dire consequences cannot be ordered to do the
same.
DNA paternity testing first came to prominence in the
United States, where it yielded its first official results sometime
in 1985. In the decade that followed, DNA rapidly found
widespread general acceptance.[39] Several cases decided by
various State Supreme Courts reflect the total assimilation of
DNA testing into their rules of procedure and evidence.
The case of Wilson v. Lumb[40] shows that DNA testing is
so commonly accepted that, in some instances, ordering the
procedure has become a ministerial act. The Supreme Court
of St. Lawrence County, New York allowed a party who had
already acknowledged paternity to subsequently challenge his
prior acknowledgment. The Court pointed out that, under the
law, specifically Section 516 of the New York Family Court Act,
the Family Court examiner had the duty, upon receipt of the
challenge, to order DNA tests:[41]
516-a. Acknowledgment of paternity. (a) An acknowledgment of
paternity executed pursuant to section one hundred eleven-k of the
social services law or section four thousand one hundred thirty-five-b
of the public health law shall establish the paternity of and liability
for the support of a child pursuant to this act. Such acknowledgment
must be reduced to writing and filed pursuant to section four
thousand one hundred thirty-five-b of the public health law with the
registrar of the district in which the birth occurred and in which the
birth certificate has been filed. No further judicial or administrative
proceedings are required to ratify an unchallenged acknowledgment
of paternity.
(b) An acknowledgment of paternity executed pursuant to section
one hundred eleven-k of the social services law or section four
thousand one hundred thirty-five-b of the public health law may be
rescinded by either signators filing of a petition with the court to
vacate the acknowledgment within the earlier of sixty days of the
date of signing the acknowledgment or the date of an administrative
or a judicial proceeding (including a proceeding to establish a
support order) relating to the child in which either signator is a party.
For purposes of this section, the "date of an administrative or a
judicial proceeding" shall be the date by which the respondent is
required to answer the petition. After the expiration of sixty days of
the execution of the acknowledgment, either signator may challenge
the acknowledgment of paternity in court only on the basis of fraud,
duress, or material mistake of fact, with the burden of proof on the
party challenging the voluntary acknowledgment. Upon receiving a
partys challenge to an acknowledgment, the court shall order
genetic marker tests or DNA tests for the determination of the
childs paternity and shall make a finding of paternity, if
appropriate, in accordance with this article. Neither signators
legal obligations, including the obligation for child support arising
from the acknowledgment, may be suspended during the challenge to
the acknowledgment except for good cause as the court may find. If
a party petitions to rescind an acknowledgment and if the court
determines that the alleged father is not the father of the child, or if
the court finds that an acknowledgment is invalid because it was
executed on the basis of fraud, duress, or material mistake of fact, the
court shall vacate the acknowledgment of paternity and shall
immediately provide a copy of the order to the registrar of the district
in which the childs birth certificate is filed and also to the putative
father registry operated by the department of social services pursuant
to section three hundred seventy-two-c of the social services law. In
addition, if the mother of the child who is the subject of the
acknowledgment is in receipt of child support services pursuant to
title six-A of article three of the social services law, the court shall
immediately provide a copy of the order to the child support
enforcement unit of the social services district that provides the
mother with such services.
(c) A determination of paternity made by any other state, whether
established through the parents acknowledgment of paternity or
through an administrative or judicial process, must be accorded full
faith and credit, if and only if such acknowledgment meets the
requirements set forth in section 452(a)(7) of the social security act.
(emphasis supplied)
DNA testing also appears elsewhere in the New York
Family Court Act:[42]
532. Genetic marker and DNA tests; admissibility of records or
reports of test results; costs of tests.
a) The court shall advise the parties of their right to one or more
genetic marker tests or DNA tests and, on the courts own motion or
the motion of any party, shall order the mother, her child and the
alleged father to submit to one or more genetic marker or DNA tests
of a type generally acknowledged as reliable by an accreditation
body designated by the secretary of the federal department of health
and human services and performed by a laboratory approved by such
an accreditation body and by the commissioner of health or by a duly
qualified physician to aid in the determination of whether the alleged
father is or is not the father of the child. No such test shall be
ordered, however, upon a written finding by the court that it is
not in the best interests of the child on the basis of res judicata,
equitable estoppel, or the presumption of legitimacy of a child
born to a married woman. The record or report of the results of any
such genetic marker or DNA test ordered pursuant to this section or
pursuant to section one hundred eleven-k of the social services law
shall be received in evidence by the court pursuant to subdivision (e)
of rule forty-five hundred eighteen of the civil practice law and rules
where no timely objection in writing has been made thereto and that
if such timely objections are not made, they shall be deemed waived
and shall not be heard by the court. If the record or report of the
results of any such genetic marker or DNA test or tests indicate
at least a ninety-five percent probability of paternity, the
admission of such record or report shall create a rebuttable
presumption of paternity, and shall establish, if unrebutted, the
paternity of and liability for the support of a child pursuant to
this article and article four of this act.
(b) Whenever the court directs a genetic marker or DNA test
pursuant to this section, a report made as provided in subdivision (a)
of this section may be received in evidence pursuant to rule forty-
five hundred eighteen of the civil practice law and rules if offered by
any party.
(c) The cost of any test ordered pursuant to subdivision (a) of this
section shall be, in the first instance, paid by the moving party. If the
moving party is financially unable to pay such cost, the court may
direct any qualified public health officer to conduct such test, if
practicable; otherwise, the court may direct payment from the funds
of the appropriate local social services district. In its order of
disposition, however, the court may direct that the cost of any such
test be apportioned between the parties according to their respective
abilities to pay or be assessed against the party who does not prevail
on the issue of paternity, unless such party is financially unable to
pay. (emphasis supplied)
In R.E. v. C.E.W.,[43] a decision of the Mississippi
Supreme Court, DNA tests were used to prove that H.W.,
previously thought to be an offspring of the marriage between
A.C.W. and C.E.W., was actually the child of R.E. with whom
C.E.W. had, at the time of conception, maintained an
adulterous relationship.
In Erie County Department of Social Services on behalf of
Tiffany M.H. v. Greg G.,[44] the 4th Department of the New York
Supreme Courts Appellate Division allowed G.G., who had
been adjudicated as T.M.H.s father by default, to have the said
judgment vacated, even after six years, once he had shown
through a genetic marker test that he was not the childs father.
In this case, G.G. only requested the tests after the
Department of Social Services, six years after G.G. had been
adjudicated as T.M.H.s father, sought an increase in his
support obligation to her.
 In Greco v. Coleman,[45] the Michigan Supreme Court
while ruling on the constitutionality of a provision of law
allowing non-modifiable support agreements pointed out that it
was because of the difficulty of determining paternity before
the advent of DNA testing that such support agreements were
necessary:
As a result of DNA testing, the accuracy with which paternity can be
proven has increased significantly since the parties in this lawsuit
entered into their support agreement(current testing methods can
determine the probability of paternity to 99.999999% accuracy).
However, at the time the parties before us entered into the disputed
agreement, proving paternity was a very significant obstacle to an
illegitimate child's access to child support. The first reported results
of modern DNA paternity testing did not occur until 1985. ("In fact,
since its first reported results in 1985, DNA matching has progressed
to 'general acceptance in less than a decade'"). Of course, while prior
blood-testing methods could exclude some males from being the
possible father of a child, those methods could not affirmatively
pinpoint a particular male as being the father. Thus, when the
settlement agreement between the present parties was entered in
1980, establishing paternity was a far more difficult ordeal than at
present. Contested paternity actions at that time were often no more
than credibility contests. Consequently, in every contested paternity
action, obtaining child support depended not merely on whether the
putative father was, in fact, the child's biological father, but rather on
whether the mother could prove to a court of law that she was only
sexually involved with one man--the putative father. Allowing
parties the option of entering into private agreements in lieu of
proving paternity eliminated the risk that the mother would be unable
meet her burden of proof.
It is worth noting that amendments to Michigans Paternity
law have included the use of DNA testing:[46]
722.716 Pretrial proceedings; blood or tissue typing determinations
as to mother, child, and alleged father; court order; refusal to submit
to typing or identification profiling; qualifications of person
conducting typing or identification profiling; compensation of
expert; result of typing or identification profiling; filing summary
report; objection; admissibility; presumption; burden of proof;
summary disposition.
Sec. 6.
(1) In a proceeding under this act before trial, the court, upon
application made by or on behalf of either party, or on its own
motion, shall order that the mother, child, and alleged father
submit to blood or tissue typing determinations, which may
include, but are not limited to, determinations of red cell
antigens, red cell isoenzymes, human leukocyte antigens, serum
proteins, or DNAidentification profiling, to determine whether
the alleged father is likely to be, or is not, the father of the child.
If the court orders a blood or tissue typing or DNA identification
profiling to be conducted and a party refuses to submit to the
typing or DNA identification profiling, in addition to any other
remedies available, the court may do either of the following:
(a) Enter a default judgment at the request of the appropriate
party.
(b) If a trial is held, allow the disclosure of the fact of the refusal
unless good cause is shown for not disclosing the fact of refusal.
(2) A blood or tissue typing or DNA identification profiling shall be
conducted by a person accredited for paternity determinations by a
nationally recognized scientific organization, including, but not
limited to, the American association of blood banks.
xxx xxx xxx
(5) If the probability of paternity determined by the qualified
person described in subsection (2) conducting the blood or tissue
typing or DNA identification profiling is 99% or higher, and
the DNA identification profile and summary report are
admissible as provided in subsection (4), paternity is presumed.
If the results of the analysis of genetic testing material from 2 or
more persons indicate a probability of paternity greater than
99%, the contracting laboratory shall conduct additional genetic
paternity testing until all but 1 of the putative fathers is
eliminated, unless the dispute involves 2 or more putative fathers
who have identical DNA.
(6) Upon the establishment of the presumption of paternity as
provided in subsection (5), either party may move for summary
disposition under the court rules. this section does not abrogate the
right of either party to child support from the date of birth of the
child if applicable under section 7. (emphasis supplied)
In Rafferty v. Perkins,[47] the Supreme Court of Mississippi
ruled that DNA test results showing paternity were sufficient to
overthrow the presumption of legitimacy of a child born during
the course of a marriage:
The presumption of legitimacy having been rebutted by the results of
the blood test eliminating Perkins as Justin's father, even considering
the evidence in the light most favorable to Perkins, we find that no
reasonable jury could find that Easter is not Justin's father based
upon the 99.94% probability of paternity concluded by the DNA
testing.
In S.J.F. and J.C.F. v. R.C.W.,[48] the North Dakota
Supreme Court upheld an order for genetic testing given by
the Court of Appeals, even after trial on the merits had
concluded without such order being given. Significantly, when
J.C.F., the mother, first filed the case for paternity and support
with the District Court, neither party requested genetic testing.
It was only upon appeal from dismissal of the case that the
appellate court remanded the case and ordered the testing,
which the North Dakota Supreme Court upheld.
The case of Kohl v. Amundson,[49] decided by the
Supreme Court of South Dakota, demonstrated that even
default judgments of paternity could be vacated after the
adjudicated father had, through DNA testing, established non-
paternity. In this case, Kohl, having excluded himself as the
father of Amundsons child through DNA testing, was able to
have the default judgment against him vacated. He then
obtained a ruling ordering Amundson to reimburse him for the
amounts withheld from his wages for child support. The Court
said (w)hile Amundson may have a remedy against the father
of the child, she submit(ted) no authority that require(d) Kohl to
support her child. Contrary to Amundson's position, the fact
that a default judgment was entered, but subsequently
vacated, (did) not foreclose Kohl from obtaining a money
judgment for the amount withheld from his wages.
In M.A.S. v. Mississippi Dept. of Human
Services,[50] another case decided by the Supreme Court of
Mississippi, it was held that even if paternity was established
through an earlier agreed order of filiation, child support and
visitation orders could still be vacated once DNA testing
established someone other than the named individual to be
the biological father. The Mississippi High Court reiterated this
doctrine in Williams v. Williams.[51]
The foregoing considered, we find no grave abuse of
discretion on the part of the public respondent for upholding
the orders of the trial court which both denied the petitioners
motion to dismiss and ordered him to submit himself for DNA
testing. Under Rule 65 of the 1997 Rules of Civil Procedure,
the remedy of certiorari is only available when any tribunal,
board or officer has acted without or in excess of its or his
jurisdiction, or with grave abuse of discretion amounting to lack
or excess of jurisdiction, and there is no appeal, nor any plain,
speedy and adequate remedy in the ordinary course of
law.[52] In Land Bank of the Philippines v. the Court of
Appeals[53] where we dismissed a special civil action for
certiorari under Rule 65, we discussed at length the nature of
such a petition and just what was meant by grave abuse of
discretion:
Grave abuse of discretion implies such capricious and whimsical
exercise of judgment as is equivalent to lack of jurisdiction or, in
other words, where the power is exercised in an arbitrary manner
by reason of passion, prejudice, or personal hostility, and it must
be so patent or gross as to amount to an evasion of a positive
duty or to a virtual refusal to perform the duty enjoined or to act
at all in contemplation of law.
The special civil action for certiorari is a remedy designed for the
correction of errors of jurisdiction and not errors of judgment.
The raison detre for the rule is when a court exercises its
jurisdiction, an error committed while so engaged does not deprive it
of the jurisdiction being exercised when the error is committed. If it
did, every error committed by a court would deprive it of its
jurisdiction and every erroneous judgment would be a void
judgment. In such a scenario, the administration of justice would not
survive. Hence, where the issue or question involved affects the
wisdom or legal soundness of the decisionnot the jurisdiction of the
court to render said decisionthe same is beyond the province of a
special civil action for certiorari.
The proper recourse of the aggrieved party from a decision of the CA
is a petition for review on certiorari under Rule 45 of the Revised
Rules of Court. On the other hand, if the error subject of the recourse
is one of jurisdiction, or the act complained of was perpetrated by a
quasi-judicial officer or agency with grave abuse of discretion
amounting to lack or excess of jurisdiction, the proper remedy
available to the aggrieved party is a petition for certiorari under Rule
65 of the said Rules. (emphasis supplied)
In the instant case, the petitioner has in no way shown
any arbitrariness, passion, prejudice or personal hostility that
would amount to grave abuse of discretion on the part of the
Court of Appeals. The respondent court acted entirely within
its jurisdiction in promulgating its decision and resolution, and
any error made would have only been an error in judgment. As
we have discussed, however, the decision of the respondent
court, being firmly anchored in law and jurisprudence, was
correct.
Epilogue
For too long, illegitimate children have been marginalized
by fathers who choose to deny their existence. The growing
sophistication of DNA testing technology finally provides a
much needed equalizer for such ostracized and abandoned
progeny. We have long believed in the merits of DNA testing
and have repeatedly expressed as much in the past. This case
comes at a perfect time when DNA testing has finally evolved
into a dependable and authoritative form of evidence
gathering. We therefore take this opportunity to forcefully
reiterate our stand that DNA testing is a valid means of
determining paternity.
WHEREFORE, in view of the foregoing, the petition is
hereby DENIED. The Court of Appeals decision dated January
28, 2004 in CA-G.R. SP No. 80961 is hereby AFFIRMED in
toto.
Costs against petitioner.
SO ORDERED.
 Republic of the Philippines Roger Chavez, Ricardo Sumilang alias "Romeo Vasquez",
SUPREME COURT Edgardo P. Pascual alias"Ging" Pascual, Pedro Rebullo alias
Manila "Pita", Luis Asistio alias "Baby" Asistio, Lorenzo
Meneses alias "Lory" Meneses, Peter Doe, Charlie Doe and Paul
EN BANC Doe.2

G.R. No. L-29169 August 19, 1968 Averred in the aforesaid information was that on or about the 14th
day of November, 1962, in Quezon City, the accused conspired,
ROGER CHAVEZ, petitioner, with intent of gain, abuse of confidence and without the consent
vs. of the owner thereof, Dy Sun Hiok y Lim, in asporting the motor
THE HONORABLE COURT OF APPEALS, THE PEOPLE OF vehicle above-described.
THE PHILIPPINES and THE WARDEN OF THE CITY JAIL OF
MANILA, respondents. Upon arraignment, all the accused, except the three Does who
have not been identified nor apprehended, pleaded not guilty.1äwphï1.ñët

Estanislao E. Fernandez and Fausto Arce for petitioner.

Office of the Solicitor General for respondents. On July 23, 1963, trial commenced before the judge presiding
Branch IX of the Court of First Instance of Rizal in Quezon City.
SANCHEZ, J.:
The trial opened with the following dialogue, which for the great
The thrust of petitioner's case presented in his original and bearing it has on this case, is here reproduced:.
supplementary petitions invoking jurisdiction of this Court is that
he is entitled, on habeas corpus, to be freed from imprisonment COURT:
upon the ground that in the trial which resulted in his
conviction1 he was denied his constitutional right not to be The parties may proceed.
compelled to testify against himself. There is his prayer, too, that,
should he fail in this, he be granted the alternative remedies of FISCAL GRECIA:
certiorari to strike down the two resolutions of the Court of
Appeals dismissing his appeal for failure to file brief, and of Our first witness is Roger Chavez [one of the accused].
mandamus to direct the said court to forward his appeal to this
Court for the reason that he was raising purely questions of law.
ATTY. CARBON [Counsel for petitioner Chavez]:
The indictment in the court below — the third amended
I am quite taken by surprise, as counsel for the accused
information — upon which the judgment of conviction herein
Roger Chavez, with this move of the Fiscal in presenting
challenged was rendered, was for qualified theft of a motor
him as his witness. I object.
vehicle, one (1) Thunderbird car, Motor No. H9YH-143003, with
Plate No. H-16648 Pasay City '62 together with its accessories
worth P22,200.00. Accused were the following: Petitioner herein, COURT:
 On what ground, counsel? .
ATTY. CARBON:
On the ground that I have to confer with my client. It is
really surprising that at this stage, without my being
notified by the Fiscal, my client is being presented as
witness for the prosecution. I want to say in passing that it
is only at this very moment that I come to know about this
strategy of the prosecution.
COURT (To the Fiscal):
You are not withdrawing the information against the
accused Roger Chavez by making [him a] state witness?.
FISCAL GRECIA:
I am not making him as state witness, Your Honor.
I am only presenting him as an ordinary witness.
ATTY. CARBON:
As a matter of right, because it will incriminate my client, I
object.
COURT:
The Court will give counsel for Roger Chavez fifteen
minutes within which to confer and explain to his client
about the giving of his testimony.
xxx xxx xxx
COURT: [after the recess]
Are the parties ready? .
FISCAL:
We are ready to call on our first witness, Roger Chavez.
ATTY. CARBON:
As per understanding, the proceeding was suspended in
order to enable me to confer with my client.
I conferred with my client and he assured me that he will
not testify for the prosecution this morning after I have
explained to him the consequences of what will transpire.
COURT:
What he will testify to does not necessarily incriminate
him, counsel.
And there is the right of the prosecution to ask anybody to
act as witness on the witness-stand including the
accused.
If there should be any question that is incriminating then
that is the time for counsel to interpose his objection and
the court will sustain him if and when the court feels that
the answer of this witness to the question would
incriminate him.
Counsel has all the assurance that the court will not
require the witness to answer questions which would
incriminate him.
But surely, counsel could not object to have the accused
called on the witnessstand.
 ATTY. CARBON:
I submit.
xxx xxx xxx
ATTY. CRUZ [Counsel for defendants Pascual and
Meneses]: .
MAY IT PLEASE THE COURT:
This incident of the accused Roger Chavez being called
to testify for the prosecution is something so sudden that
has come to the knowledge of this counsel.
This representation has been apprised of the witnesses
embraced in the information.
For which reason I pray this court that I be given at least
some days to meet whatever testimony this witness will
bring about. I therefore move for postponement of today's
hearing.
COURT:
The court will give counsel time within which to prepare
his cross-examination of this witness.
ATTY. CRUZ:
I labored under the impression that the witnesses for the
prosecution in this criminal case are those only listed in
the information.
I did not know until this morning that one of the accused
will testify as witness for the prosecution.
COURT:
That's the reason why the court will go along with
counsels for the accused and will give them time within
which to prepare for their cross-examination of this
witness.
The court will not defer the taking of the direct
examination of the witness.
Call the witness to the witness stand.
EVIDENCE FOR THE PROSECUTION
ROGER CHAVEZ, 31 years old, single, buy and sell
merchant, presently detained at the Manila Police
Department headquarters, after being duly sworn
according to law, declared as follows:
ATTY. IBASCO [Counsel for defendant Luis Asistio]:
WITH THE LEAVE OF THE COURT:
This witness, Roger Chavez is one of the accused in this
case No. Q-5311.
The information alleges conspiracy. Under Rule 123,
Section 12, it states:
'The act or declaration of a conspirator relating to the
conspiracy and during its existence, may be given in
evidence against the co-conspirator after the conspiracy
is shown by evidence other than such act or declaration.'
COURT:
 That is premature, counsel. Neither the court nor
counsels for the accused know what the prosecution
eventsto establish by calling this witness to the witness
stand.
ATTY. IBASCO:
I submit.
COURT: The Fiscal may proceed.3
And so did the trial proceed. It began with the "direct
examination" of Roger Chavez by "Fiscal Grecia".
Came the judgment of February 1, 1965. The version of the
prosecution as found by the court below may be briefly narrated
as follows:
A few days before November 12, 1962, Roger Chavez saw
Johnson Lee, a Chinese, driving a Thunderbird car. With Ricardo
Sumilang (movie actor Romeo Vasquez) in mind, whom he knew
was in the market for such a car, Chavez asked Lee whether his
car was for sale. Lee answered affirmatively and left his address
with Chavez. Then, on November 12, Chavez met Sumilang at a
barbershop informed him about the Thunderbird. But Sumilang
said that he had changed his mind about buying a new car.
Instead, he told Chavez that he wanted to mortgage his Buick car
for P10,000.00 to cover an indebtedness in Pasay City. Upon the
suggestion of Chavez, they went to see Luis Asistio, who he
knew was lending money on car mortgages and who, on one
occasion, already lent Romeo Vasquez P3,000.00 on the same
Buick car. Asistio however told the two that he had a better idea
on how to raise the money. His plan was to capitalize on Romeo
Vasquez' reputation as a wealthy movie star, introduce him as a
buyer to someone who was selling a car and, after the deed of
sale is signed, by trickery to run away with the car. Asistio would
then register it, sell it to a third person for a profit. Chavez known
to be a car agent was included in the plan. He furnished the name
of Johnson Lee who was selling his Thunderbird. 1äw phï1.ñët
In the morning of November 14, Chavez telephoned Johnson Lee
and arranged for an appointment. Sometime in the afternoon.
Chavez and Sumilang met Lee in his Thunderbird on Highway 54.
Sumilang was introduced as the interested buyer. Sumilang's
driver inspected the car, took the wheel for a while. After
Sumilang and Lee agreed on the purchase price (P21.000.00),
they went to Binondo to Johnson Lee's cousin, Dy Sun Hiok, in
whose name the car was registered. Thereafter, they went to see
a lawyer notary public in Quezon City, known to Chavez for the
drafting of the deed of sale. After the deed of sale was drawn up,
it was signed by Sumilang as the vendee, Dy Sun Hiok the
vendor, and Sumilang's driver and Johnson Lee the witnesses
thereto.
As payment was to be made at Eugene's restaurant in Quezon
City, all of them then drove in the Thunderbird car to that place.
The deed of sale and other papers remained in the pockets of
Johnson Lee.
At Eugene's, a man approached Sumilang with a note which
stated that the money was ready at the Dalisay Theater.
Sumilang then wrote on the same note that the money should be
brought to the restaurant. At the same time he requested Lee to
exhibit the deed of sale of the car to the note bearer.4
Then, the two Chinese were left alone in the restaurant. For
Sumilang, who had left the table to pose for pictures with some
fans and come back, again left never to return. So did Chavez,
who disappeared after he left on the pretext of buying cigarettes.
The two Chinese could not locate Sumilang and Chavez. They
went out to the place where the Thunderbird was parked, found
that it was gone. They then immediately reported its loss to the
police. Much later, the NBI recovered the already repainted car
and impounded it.
Right after the meeting at Eugene's, Chavez, Sumilang and
Asistio converged that same day at Barrio Fiesta, a restaurant at
Highway 54 near the Balintawak monument in Caloocan. There,
Asistio handed to Sumilang P1,000.00 cash and a golf set worth
P800.00 as the latter's share in the transaction. On the 14th of
November, the registration of the car was transferred in the name
of Sumilang in Cavite City, and three days later, in the name of
Asistio in Caloocan.
From the court's decision, Ricardo Sumilang's version,
corroborated in part by Asistio, may be condensed as follows:
In the last week of September, 1962, Sumilang saw Roger
Chavez at a gas station. The latter informed him that there was a
Thunderbird from Clark Field for sale for a price between
P20,000.00 and P22,000.00. Chavez said that it could be held for
him with a down payment of P10,000.00.
To raise this sum, Sumilang and Chavez, on October 1, went to
the house of a certain Nena Hernaez de los Reyes who wrote out
a check for P5,000.00 as a loan to Sumilang. That check was
exhibited in court. Sumilang and Chavez then went to Pasay City
to see a certain Mario Baltazar, an agent of the Pasay City
Mayor, and Narsing Cailles, Chief of the Fire Department.
Sumilang asked the two for a P10,000-loan backed up by the
P5,000.00-check aforesaid on condition that it should not be
cashed immediately as there were not enough funds therefor.
Baltazar and Cailles agreed to give the money the nextday as
long as the check would be left with them and Sumilang would
sign a promissory note for P10,000.00. Baltazar later informed
Sumilang that Chavez picked up the money the next day. Four or
five days afterwards, Chavez returned P4,000.00 to Sumilang
because P6,000.00 was enough for the deposit. And so,
Sumilang gave back the P4,000.00 to Baltazar.
About the end of October or at the beginning of November,
Chavez asked Sumilang for another P3,000.00. Sumilang sent
Chavez to Baltazar and Cailles, with a note requesting that they
accommodate him once more. He also sent a check, again
without funds. Baltazar gave the money after verifying the
authenticity of the note.
On November 14, Chavez appeared at Sumilang's house with the
news that the car was ready if Sumilang was ready with the rest
of the money. So Sumilang got P9,000.00 from his mother and
another P4,000.00 from his aparador. He immediately gave
P6,000.00 to Chavez, intending to pay out the balance upon the
car's delivery. It was then that Chavez told Sumilang that the car
was already bought by a Chinese who would be the vendor.
The purchase price finally agreed upon between Sumilang and
Johnson Lee was P21,000.00, plus P500.00 agents commission
at the expense of the buyer. Sumilang told Lee that he already
paid part of the price to Chavez.
At Eugene's, Chavez asked Sumilang for the balance. Sumilang
accommodated. There, Sumilang, also saw a friend, "Ging"
Pascual. In the course of their conversation at the bar, Sumilang
mentioned the proposed transaction thru Chavez. Pascual
warned that Chavez was a "smart" agent and advised that
Sumilang should have a receipt for his money. A certain Bimbo, a
friend of Pascual, offered to make out a receipt for Chavez to
sign.
After Sumilang returned from posing for some photographs with
some of his fans, Bimbo showed him the receipt already signed
by Chavez. Sumilang requested Pascual and Bimbo to sign the
receipt as witnesses. And they did. This receipt was offered as an
exhibit by the prosecution and by Sumilang.
When Sumilang was ready to leave Eugene's, Johnson Lee
turned over to him the deed of sale, the registration papers and
the keys to the car. After shaking hands with Lee, Sumilang drove
away in the car with his driver at the wheel.
Two or three days afterwards, Sumilang dropped by the Barrio
Fiesta on his way to a film shooting at Bulacan. He saw Asistio
with many companions. Asistio liked his Thunderbird parked
outside. Asistio offered to buy it from him for P22,500.00. As the
offer was good, and knowing Asistio's and his friends' reputation
for always getting what they wanted, Sumilang consented to the
sale. Asistio tendered a down payment of P1,000.00; the balance
he promised to pay the next day after negotiating with some
financing company. Before said balance could be paid, the car
was impounded.
The trial court gave evidence to Sumilang's averment,
strengthened by Baltazar's and Cailles' corroborations, that he
paid good money for the car. Sumilang was thus cleared. So was
Asistio whom the trial court believed to be a mere buyer of the
car. And so, the prosecution's theory of conspiracy was
discounted.
As to the other accused, the court found no case against Pedro
Rebullo alias "Pita" and Lorenzo Meneses alias "Lory". The
accused "Ging" Pascual was also acquitted for in the first place
he was not identified by Johnson Lee in court.
As to Roger Chavez, however, the court had this to say: "Roger
Chavez does not offer any defense. As a matter of fact, his
testimony as witness for the prosecution establishes his guilt
beyond reasonable doubt."5 The trial court branded him "a self-
confessed culprit".6 The court further continued:
It is not improbable that true to the saying that misery
loves company Roger Chavez tried to drag his co-
accused down with him by coloring his story with
fabrications which he expected would easily stick together
what with the newspaper notoriety of one and the
sensationalism caused by the other. But Roger
Chavez' accusations of Asistio's participation is utterly
uncorroborated. And coming, as it does, from a man who
has had at least two convictions for acts not very different
from those charged in this information, the Court would be
too gullible if it were to give full credence to his
words even if they concerned a man no less notorious
than himself.7
The trial court then came to the conclusion that if Johnson Lee
was not paid for his car, he had no one but Roger Chavez to
blame.
The sum of all these is that the trial court freed all the accused
except Roger Chavez who was found guilty beyond reasonable
doubt of the crime of qualified theft. He was accordingly
sentenced to suffer an indeterminate penalty of not less than ten
(10) years, one (1) day, as minimum and not more than fourteen
(14) years, eight (8) months and one (1) day as maximum, to
indemnify Dy Sun Hiok and/or Johnson Lee in the sum of
P21,000.00 without subsidiary imprisonment in case of
insolvency, to undergo the accessory penalties prescribed by law,
and to pay the costs. The Thunderbird car then in the custody of
the NBI was ordered to be turned over to Ricardo Sumilang, who
was directed to return to Asistio the sum of P1,000.00 unless the
latter chose to pay P21,500.00, representing the balance of the
contract price for the car.
The foregoing sentence was promulgated on March 8, 1965.
Roger Chavez appealed to the Court of Appeals.
On April 18, 1968, the Court of Appeals required Atty. Natividad
Marquez, counsel for Roger Chavez, to show cause within ten
days from notice why Chavez' appeal should not be considered
abandoned and dismissed. Reason for this is that said lawyer
received notice to file brief on December 28, 1967 and the period
for the filing thereof lapsed on January 27, 1968 without any brief
having been filed.
On May 13, 1968, Atty. Marquez registered a detailed written
explanation. She also stated that if she were allowed to file
appellant's brief she would go along with the factual findings of
the court below but will show however that its conclusion is
erroneous.8
On May 14, 1968, the Court of Appeals, despite the foregoing
explanation, resolved to dismiss the appeal. A move to reconsider
was unavailing. For, on June 21, 1968, the Court of Appeals,
through a per curiam resolution, disposed to maintain its May 14
resolution dismissing the appeal, directed the City Warden of
Manila where Chavez is confined by virtue of the warrant of arrest
issued by the Court of Appeals, to turn him over to Muntinlupa
Bilibid Prisons pending execution of the judgment below, and
ordered remand of the case to the Quezon City court for
execution of judgment.
It was at this stage that the present proceedings were
commenced in this Court.
Upon the petitions, the return, and the reply, and after hearing on
oral arguments, we now come to grips with the main problem
presented.
We concentrate attention on that phase of the issues which
relates petitioner's assertion that he was compelled to testify
against himself. For indeed if this one question is resolved in the
affirmative, we need not reach the others; in which case, these
should not be pursued here.
1. Petitioner's plea on this score rests upon his averment, with
proof, of violation of his right — constitutionally entrenched —
against self-incrimination. He asks that the hand of this Court be
made to bear down upon his conviction; that he be relieved of the
effects thereof. He asks us to consider the constitutional
injunction that "No person shall be compelled to be a witness
against himself,"9 fully echoed in Section 1, Rule 115, Rules of
Court where, in all criminal prosecutions, the defendant shall be
entitled: "(e) To be exempt from being a witness against himself."
.
It has been said that forcing a man to be a witness against
himself is at war with "the fundamentals of a republican
government"; 10 that [i]t may suit the purposes of despotic power
but it can not abide the pure atmosphere of political liberty and
personal freedom."11 Mr. Justice Abad Santos recounts the
historical background of this constitutional inhibition, thus: " "The
maxim Nemo tenetur seipsum accusare had its origin in a protest
against the inquisitorial and manifestly unjust methods of
interrogating accused persons, which has long obtained in the
continental system, and, until the expulsion of the Stuarts from
the British throne in 1688, and the erection of additional barriers
for the protection of the people against the exercise of arbitrary
power, was not uncommon even in England. While the
admissions of confessions of the prisoner, when voluntarily and
freely made, have always ranked high in the scale of incriminating
evidence, if an accused person be asked to explain his apparent
connection with a crime under investigation, the ease with which
the questions put to him may assume an inquisitorial character,
the temptation to press, the witness unduly, to browbeat him if he
be timid or reluctant, to push him into a corner, and to entrap him
into fatal contradictions, which is so painfully evident in many of
the earlier state trials, notably in those of Sir Nicholas
Throckmorton, and Udal, the Puritan minister, made the system
so odious as to give rise to a demand for its total abolition. The
change in the English criminal procedure in that particular seems
to be founded upon no statute and no judicial opinion, but upon a
general and silent acquiescence of the courts in a popular
demand. But, however adopted, it has become firmly embedded
in English, as well as in American jurisprudence. So deeply did
the iniquities of the ancient system impress themselves upon the
minds of the American colonists that the states, with one accord,
made a denial of the right to question an accused person a part of
their fundamental law, so that a maxim which in England was a
mere rule of evidence, became clothed in this country with the
impregnability of a constitutional enactment." (Brown vs. Walker,
161 U.S., 591, 597; 40 Law. ed., 819, 821)." 12 Mr. Justice
Malcolm, in expressive language, tells us that this maxim was
recognized in England in the early days "in a revolt against the
thumbscrew and the rack." 13 An old Philippine case
[1904] 14 speaks of this constitutional injunction as "older than the
Government of the United States"; as having "its origin in a
protest against the inquisitorial methods of interrogating the
accused person"; and as having been adopted in the Philippines
"to wipe out such practices as formerly prevailed in these Islands
of requiring accused persons to submit to judicial examinations,
and to give testimony regarding the offenses with which they
were charged."
So it is then that this right is "not merely a formal technical rule
the enforcement of which is left to the discretion of the court"; it is
mandatory; it secures to a defendant a valuable and substantive
right; 15 it is fundamental to our scheme of justice. Just a few
months ago, the Supreme Court of the United States (January 29,
1968), speaking thru Mr. Justice Harlan warned that "[t]he
constitutional privilege was intended to shield the guilty and
imprudent as well as the innocent and foresighted." 16
It is in this context that we say that the constitutional guarantee
may not be treated with unconcern. To repeat, it is mandatory; it
secures to every defendant a valuable and substantive right.
Tañada and Fernando (Constitution of the Philippines, 4th ed.,
vol. I, pp. 583-584) take note of U.S. vs. Navarro, supra, which
reaffirms the rule that the constitutional proscription was
established on broad grounds of public policy and humanity; of
policy because it would place the witness against the strongest
temptation to commit perjury, and of humanity because it would
be to extort a confession of truth by a kind of duress every
species and degree of which the law abhors. 17
Therefore, the court may not extract from a defendant's own lips
and against his will an admission of his guilt. Nor may a court as
much as resort to compulsory disclosure, directly or indirectly, of
facts usable against him as a confession of the crime or the
tendency of which is to prove the commission of a crime.
Because, it is his right to forego testimony, to remain silent,
unless he chooses to take the witness stand — with undiluted,
unfettered exercise of his own free, genuine will.
Compulsion as it is understood here does not necessarily
connote the use of violence; it may be the product of unintentional
statements. Pressure which operates to overbear his will, disable
him from making a free and rational choice, or impair his capacity
for rational judgment would in our opinion be sufficient. So is
moral coercion "tending to force testimony from the unwilling lips
of the defendant." 18
2. With the foregoing as guideposts, we now turn to the facts.
Petitioner is a defendant in a criminal case. He was called by the
prosecution as the first witness in that case to testify for the
People during the first day of trial thereof. Petitioner objected and
invoked the privilege of self-incrimination. This he broadened by
the clear cut statement that he will not testify. But petitioner's
protestations were met with the judge's emphatic statement that it
"is the right of the prosecution to ask anybody to act as witness
on the witness stand including the accused," and that defense
counsel "could not object to have the accused called on the
witness stand." The cumulative impact of all these is that
accused-petitioner had to take the stand. He was thus
peremptorily asked to create evidence against himself. The
foregoing situation molds a solid case for petitioner, backed by
the Constitution, the law, and jurisprudence.
Petitioner, as accused, occupies a different tier of protection from
an ordinary witness. Whereas an ordinary witness may be
compelled to take the witness stand and claim the privilege as
each question requiring an incriminating answer is shot at
him, 19 and accused may altogether refuse to take the witness
stand and refuse to answer any and all questions. 20 For, in
reality, the purpose of calling an accused as a witness for the
People would be to incriminate him. 21 The rule positively intends
to avoid and prohibit the certainly inhuman procedure of
compelling a person "to furnish the missing evidence necessary
for his conviction." 22 This rule may apply even to a co-defendant
in a joint trial.23
And the guide in the interpretation of the constitutional precept
that the accused shall not be compelled to furnish evidence
against himself "is not the probability of the evidence but it is
the capability of abuse." 24 Thus it is, that it was undoubtedly
erroneous for the trial judge to placate petitioner with these
words:.
What he will testify to does not necessarily incriminate
him, counsel.
And there is the right of the prosecution to ask anybody to
act as witness on the witness-stand including the
accused.
If there should be any question that is incriminating then
that is the time for counsel to interpose his objection and
the court will sustain him if and when the court feels that
the answer of this witness to the question would
incriminate him.
Counsel has all the assurance that the court will not
require the witness to answer questions which would
incriminate him.
But surely, counsel could not object to have the accused
called on the witness stand.
Paraphrasing Chief Justice Marshall in Aaron Burr's Trial,
Robertsons Rep. I, 208, 244, quoted in VIII Wigmore, p.
355, 25 While a defendant's knowledge of the facts remains
concealed within his bosom, he is safe; but draw it from thence,
and he is exposed" — to conviction.
The judge's words heretofore quoted — "But surely counsel could
not object to have the accused called on the witness stand" —
wielded authority. By those words, petitioner was enveloped by a
coercive force; they deprived him of his will to resist; they
foreclosed choice; the realities of human nature tell us that as he
took his oath to tell the truth, the whole truth and nothing but the
truth, no genuine consent underlay submission to take the
witness stand. Constitutionally sound consent was absent.
3. Prejudice to the accused for having been compelled over his
objections to be a witness for the People is at once apparent. The
record discloses that by leading questions Chavez, the accused,
was made to affirm his statement given to the NBI agents on July
17, 1963 at 5:00 o'clock in the afternoon. 26 And this statement
detailed the plan and execution thereof by Sumilang (Vasquez),
Asistio and himself to deprive the Chinese of his Thunderbird car.
And he himself proceeded to narrate the same anew in open
court. He identified the Thunderbird car involved in the case. 27
The decision convicting Roger Chavez was clearly of the view
that the case for the People was built primarily around the
admissions of Chavez himself. The trial court described Chavez
as the "star witness for the prosecution". Indeed, the damaging
facts forged in the decision were drawn directly from the lips of
Chavez as a prosecution witness and of course Ricardo Sumilang
for the defense. There are the unequivocal statements in the
decision that "even accused Chavez" identified "the very same
Thunderbird that Johnson Lee had offered for sale"; that Chavez
"testimony as witness for the prosecution establishes his guilt
beyond reasonable doubt and that Chavez is "a self-confessed
culprit".
1äw phï1.ñët
4. With all these, we have no hesitancy in saying that petitioner
was forced to testify to incriminate himself, in full breach of his
constitutional right to remain silent. It cannot be said now that he
has waived his right. He did not volunteer to take the stand and in
his own defense; he did not offer himself as a witness; on the
contrary, he claimed the right upon being called to testify. If
petitioner nevertheless answered the questions inspite of his fear
of being accused of perjury or being put under contempt, this
circumstance cannot be counted against him. His testimony is not
of his own choice. To him it was a case of compelled submission.
He was a cowed participant in proceedings before a judge who
possessed the power to put him under contempt had he chosen
to remain silent. Nor could he escape testifying. The court made it
abundantly clear that his testimony at least on direct examination
would be taken right then and thereon the first day of the trial.
It matters not that, after all efforts to stave off petitioner's taking
the stand became fruitless, no objections to questions
propounded to him were made. Here involve is not a mere
question of self-incrimination. It is a defendant's constitutional
immunity from being called to testify against himself. And the
objection made at the beginning is a continuing one. 1äwphï1.ñët
There is therefore no waiver of the privilege. "To be effective, a
waiver must be certain and unequivocal, and intelligently,
understandably, and willingly made; such waiver following only
where liberty of choice has been fully accorded. After a claim a
witness cannot properly be held to have waived his privilege on
vague and uncertain evidence." 28 The teaching in Johnson vs.
Zerbst 29 is this: "It has been pointed out that "courts indulge
every reasonable presumption against waiver" of fundamental
constitutional rights and that we "do not presume acquiescence in
the loss of fundamental rights." A waiver is ordinarily an
intentional relinquishment or abandonment of a known right or
privilege." Renuntiatio non praesumitur.
The foregoing guidelines, juxtaposed with the circumstances of
the case heretofore adverted to, make waiver a shaky defense. It
cannot stand. If, by his own admission, defendant proved his
guilt, still, his original claim remains valid. For the privilege, we
say again, is a rampart that gives protection - even to the guilty. 30
5. The course which petitioner takes is correct. Habeas corpus is
a high prerogative writ. 31 It is traditionally considered as an
exceptional remedy to release a person whose liberty is illegally
restrained such as when the accused's constitutional rights are
disregarded. 32 Such defect results in the absence or loss of
jurisdiction 33 and therefore invalidates the trial and the
consequent conviction of the accused whose fundamental right
was violated. 34 That void judgment of conviction may be
challenged by collateral attack, which precisely is the function of
habeas corpus. 35 This writ may issue even if another remedy
which is less effective may be availed of by the
defendant. 36Thus, failure by the accused to perfect his appeal
before the Court of Appeals does not preclude a recourse to the
writ. 37 The writ may be granted upon a judgment already
final. 38 For, as explained in Johnson vs. Zerbst, 39 the writ of
habeas corpus as an extraordinary remedy must be liberally
given effect 40 so as to protect well a person whose liberty is at
stake. The propriety of the writ was given the nod in that case,
involving a violation of another constitutional right, in this wise:
Since the Sixth Amendment constitutionally entitles one
charged with crime to the assistance of Counsel,
compliance with this constitutional mandate is an
essential jurisdictional prerequisite to a Federal Court's
authority. When this right is properly waived, the
assistance of Counsel is no longer a necessary element
of the Court's jurisdiction to proceed to conviction and
sentence. If the accused, however, is not represented by
Counsel and has not competently and intelligently waived
his constitutional right, the Sixth Amendment stands as a
jurisdictional bar to a valid conviction and sentence
depriving him of his liberty. A court's jurisdiction at the
beginning of trial may be lost "in the course of the
proceedings" due to failure to complete the court — as
the Sixth Amendment requires — by providing Counsel
for an accused who is unable to obtain Counsel, who has
not intelligently waived this constitutional guaranty, and
whose life or liberty is at stake. If this requirement of the
Sixth Amendment is not complied with, the court no
longer has jurisdiction to proceed. The judgment of
 conviction pronounced by a court without jurisdiction is cause or reason other than the said judgment in said Criminal
void, and one imprisoned thereundermay obtain release Case Q-5311 of the Court of First Instance of Rizal, Quezon City
of habeas corpus. 41 Branch, in which event the discharge herein directed shall be
effected when such other cause or reason ceases to exist.
Under our own Rules of Court, to grant the remedy to the
accused Roger Chavez whose case presents a clear picture of No costs. So ordered.
disregard of a constitutional right is absolutely proper. Section 1
of Rule 102 extends the writ, unless otherwise expressly provided
by law, "to all cases of illegal confinement or detention by which
any person is deprived of his liberty, or by which the rightful
custody of any person is withheld from the person entitled
thereto.

Just as we are about to write finis to our task, we are prompted to

restate that: "A void judgment is in legal effect no judgment. By it
no rights are divested. From it no rights can be obtained. Being
worthless in itself, all proceedings founded upon it are equally
worthless. It neither binds nor bars any one. All acts performed
under it and all claims flowing out of it are void. The parties
attempting to enforce it may be responsible as trespassers. ... " 42

6. Respondents' return 43 shows that petitioner is still serving

under a final and valid judgment of conviction for another offense.
We should guard against the improvident issuance of an order
discharging a petitioner from confinement. The position we take
here is that petitioner herein is entitled to liberty thru habeas
corpus only with respect to Criminal Case Q-5311 of the Court of
First Instance of Rizal, Quezon City Branch, under which he was
prosecuted and convicted.

Upon the view we take of this case, judgment is hereby rendered

directing the respondent Warden of the City Jail of Manila or the
Director of Prisons or any other officer or person in custody of
petitioner Roger Chavez by reason of the judgment of the Court
of First Instance of Rizal, Quezon City Branch, in Criminal Case
Q-5311, entitled "People of the Philippines, plaintiff, vs. Ricardo
Sumilang, et al., accused," to discharge said Roger Chavez from
custody, unless he is held, kept in custody or detained for any