SECOND DIVISION

[G.R. No. 122954. February 15, 2000]

NORBERTO FERIA Y PACQUING, petitioner, vs. THE COURT OF

APPEALS, THE DIRECTOR OF THE BUREAU OF CORRECTIONS,
MUNTINLUPA, METRO MANILA (IN PLACE OF THE JAIL WARDEN OF
THE MANILA CITY JAIL), THE PRESIDING JUDGE OF BRANCH II,
REGIONAL TRIAL COURT OF MANILA, and THE CITY PROSECUTOR,
CITY OF MANILA, respondents.

DECISION

QUISUMBING, J.:

The mere loss or destruction of the records of a criminal case subsequent to

conviction of the accused will not render the judgment of conviction void, nor
will it warrant the release of the convict by virtue of a writ of habeas corpus.
The proper remedy is the reconstitution of judicial records which is as much a
duty of the prosecution as of the defense.

Subject of this petition for review on certiorari are (1) the Decision dated April
28, 1995, of the Eighth Division of the Court of Appeals, which affirmed the
dismissal of the petition for habeas corpus filed by petitioner, and (2) the
Resolution of the Court of Appeals dated December 1, 1995, which denied the
Motion for Reconsideration. As hereafter elucidated, we sustain the judgment
of respondent appellate court.

Based on the available records and the admissions of the parties, the
antecedents of the present petition are as follows:

Petitioner Norberto Feria y Pacquing has been under detention since May 21,
1981, up to present by reason of his conviction of the crime of Robbery with
[1]

Homicide, in Criminal Case No. 60677, by the Regional Trial Court of Manila,
Branch 2, for the jeepney hold-up and killing of United States Peace Corps
Volunteer Margaret Viviene Carmona.

Some twelve (12) years later, or on June 9, 1993, petitioner sought to be

transferred from the Manila City Jail to the Bureau of Corrections in
Muntinlupa City, but the Jail Warden of the Manila City Jail informed the
[2]

Presiding Judge of the RTC-Manila, Branch 2, that the transfer cannot be

effected without the submission of the requirements, namely, the Commitment
Order or Mittimus, Decision, and Information. It was then discovered that the
[3]

entire records of the case, including the copy of the judgment, were missing.
In response to the inquiries made by counsel of petitioner, both the Office of
the City Prosecutor of Manila and the Clerk of Court of Regional Trial Court of
Manila, Branch 2 attested to the fact that the records of Criminal Case No.
60677 could not be found in their respective offices. Upon further inquiries, the
entire records appear to have been lost or destroyed in the fire which occurred
at the second and third floor of the Manila City Hall on November 3, 1986. [4]

On October 3, 1994, petitioner filed a Petition for the Issuance of a Writ

of Habeas Corpus with the Supreme Court against the Jail Warden of the
[5]

Manila City Jail, the Presiding Judge of Branch 2, Regional Trial Court of
Manila, and the City Prosecutor of Manila, praying for his discharge from
confinement on the ground that his continued detention without any valid
judgment is illegal and violative of his constitutional right to due process.

In its Resolution dated October 10, 1994, the Second Division of this Court
[6]

resolved -

" x x x (a) to ISSUE the Writ of Habeas Corpus; (b) to ORDER the
Executive Judge of the Regional Trial Court of Manila to conduct
an immediate RAFFLE of this case among the incumbent judges
thereof; and (c) to REQUIRE [1] the Judge to whom this case is
raffled to SET the case for HEARING on Thursday, October 13,
1994 at 8:30 A.M., try and decide the same on the merits and
thereafter FURNISH this Court with a copy of his decision
thereon; [2] the respondents to make a RETURN of the Writ on or
before the close of office hours on Wednesday, October 12, 1994
and APPEAR PERSONALLY and PRODUCE the person of
Norberto Feria y Pa[c]quing on the aforesaid date and time of
hearing to the Judge to whom this case is raffled, and [3] the
Director General, Philippine National Police, through his duly
authorized representative(s) to SERVE the Writ and Petition, and
make a RETURN thereof as provided by law and, specifically, his
duly authorized representative(s) to APPEAR PERSONALLY and
ESCORT the person of Norberto Feria y Pa[c]quing at the
aforesaid date and time of hearing."

The case was then raffled to Branch 9 of the Regional Trial Court of Manila,
which on November 15, 1994, after hearing, issued an Order dismissing the
[7]

case on the ground that the mere loss of the records of the case does not
invalidate the judgment or commitment nor authorize the release of the
petitioner, and that the proper remedy would be reconstitution of the records
of the case which should be filed with the court which rendered the decision.

Petitioner duly appealed said Order to the Court of Appeals, which on April 28,
1995, rendered the assailed Decision affirming the decision of the trial court
[8]

with the modification that "in the interest of orderly administration of justice"
and "under the peculiar facts of the case" petitioner may be transferred to the
Bureau of Corrections in Muntinlupa City without submission of the
requirements (Mittimus, Decision and Information) but without prejudice to the
reconstitution of the original records.

The Motion for Reconsideration of the aforesaid Order having been denied for
lack of merit, petitioner is now before us on certiorari, assigning the following
[9]

errors of law:
[10]

I. WHETHER OR NOT, UNDER THE PECULIAR

CIRCUMSTANCES OF THIS CASE, WHERE THE RECORDS
OF CONVICTION WERE LOST, THE PETITIONERS
CONTINUED INCARCERATION IS JUSTIFIED UNDER THE
LAW.

COROLLARY TO THIS, WHETHER OR NOT THE COURT OF

APPEALS RESOLUTION, AFFIRMING THE DENIAL OF HEREIN
APPELLANTS PETITION FOR HABEAS CORPUS IS, IN
CONTEMPLATION OF LAW, A JUDGMENT OR A SUBSTITUTE
JUDGMENT, WHICH CAN BE UTILIZED AS A SUFFICIENT
BASIS FOR HIS INCARCERATION.
 II. WHETHER OR NOT THE RECONSTITUTION OF OFFICIAL
RECORDS LOST/DESTROYED SHOULD BE INITIATED BY
THE GOVERNMENT AND ITS ORGANS, WHO ARE IN
CUSTODY OF SUCH, OR BY THE PRISONER, WHOSE
LIBERTY IS RESTRAINED.

Petitioner argues that his detention is illegal because there exists no copy of
a valid judgment as required by Sections 1 and 2 of Rule 120 of the Rules of
Court, and that the evidence considered by the trial court and Court of
[11]

Appeals in the habeas corpus proceedings did not establish the contents of
such judgment. Petitioner further contends that our ruling in Gunabe v.
Director of Prisons, 77 Phil. 993, 995 (1947), that "reconstitution is as much
the duty of the prosecution as of the defense" has been modified or
abandoned in the subsequent case of Ordonez v. Director of Prisons, 235
SCRA 152, 155 (1994), wherein we held that "[i]t is not the fault of the
prisoners that the records cannot now be found. If anyone is to be blamed, it
surely cannot be the prisoners, who were not the custodians of those
records."

In its Comment, the Office of the Solicitor General contends that the sole
[12]

inquiry in this habeas corpus proceeding is whether or not there is legal basis
to detain petitioner. The OSG maintains that public respondents have more
than sufficiently shown the existence of a legal ground for petitioners
continued incarceration, viz., his conviction by final judgment, and under
Section 4 of Rule 102 of the Rules of Court, the discharge of a person
suffering imprisonment under lawful judgment is not authorized. Petitioners
remedy, therefore, is not a petition for habeas corpus but a proceeding for the
reconstitution of judicial records.

The high prerogative writ of habeas corpus, whose origin is traced to antiquity,
was devised and exists as a speedy and effectual remedy to relieve persons
from unlawful restraint, and as the best and only sufficient defense of personal
freedom. It secures to a prisoner the right to have the cause of his detention
[13]

examined and determined by a court of justice, and to have the issue

ascertained as to whether he is held under lawful authority. Consequently,
[14]

the writ may also be availed of where, as a consequence of a judicial

proceeding, (a) there has been a deprivation of a constitutional right resulting
in the restraint of a person, (b) the court had no jurisdiction to impose the
sentence, or (c) an excessive penalty has been imposed, as such sentence is
void as to such excess. Petitioners claim is anchored on the first ground
[15]

considering, as he claims, that his continued detention, notwithstanding the

lack of a copy of a validjudgment of conviction, is violative of his constitutional
right to due process.

Based on the records and the hearing conducted by the trial court, there is
sufficient evidence on record to establish the fact of conviction of petitioner
which serves as the legal basis for his detention. Petitioner made judicial
admissions, both verbal and written, that he was charged with and convicted
of the crime of Robbery with Homicide, and sentenced to suffer imprisonment
"habang buhay".

In its Order dated October 17, 1994, the RTC-Manila, Branch 9, made the
finding that - [16]

"During the trial and on manifestation and arguments made by the

accused, his learned counsel and Solicitor Alexander G.
 Gesmundo who appeared for the respondents, it appears clear
and indubitable that:

(A) Petitioner had been charged with Robbery with

Homicide in Criminal Case No. 60677, Illegal
Possession of Firearm in Criminal Case No. 60678
and Robbery in Band in Criminal Case No. 60867. ...
In Criminal Case No. 60677 (Robbery with
Homicide) the accused admitted in open Court that
a decision was read to him in open Court by a
personnel of the respondent Court (RTC Branch
II) sentencing him to Life Imprisonment (Habang
buhay)..." (emphasis supplied)

Further, in the Urgent Motion for the Issuance of Commitment Order of the
Above Entitled Criminal Case dated June 8, 1993, petitioner himself stated
[17]

that -

"COMES NOW, the undersigned accused in the above entitled

criminal case and unto this Honorable Court most respectfully
move:

1. That in 1981 the accused was charge of (sic) Robbery with

Homicide;

2. That after four years of trial, the court found the accused
guilty and given a Life Sentence in a promulgation handed
down in 1985; (emphasis supplied)

3. That after the sentence was promulgated, the Presiding Judge

told the councel (sic) that accused has the right to appeal the
decision;

4. That whether the de oficio counsel appealed the decision is

beyond the accused comprehension (sic) because the last time
he saw the counsel was when the decision was promulgated.

5. That everytime there is change of Warden at the Manila City

Jail attempts were made to get the Commitment Order so that
transfer of the accused to the Bureau of Corrections can be
affected, but all in vain;"

Petitioners declarations as to a relevant fact may be given in evidence against

him under Section 23 of Rule 130 of the Rules of Court. This rule is based
upon the presumption that no man would declare anything against himself,
unless such declaration were true, particularly with respect to such grave
[18]

matter as his conviction for the crime of Robbery with Homicide. Further,
under Section 4 of Rule 129, "[a]n admission, verbal or written, made by a
party in the course of the proceedings in the same case, does not require
proof. The admission may be contradicted only by a showing that it was made
through palpable mistake or that no such admission was made." Petitioner
does not claim any mistake nor does he deny making such admissions.

The records also contain a certified true copy of the Monthly Report dated
January 1985 of then Judge Rosalio A. De Leon, attesting to the fact that
[19]

petitioner was convicted of the crime of Robbery with Homicide on January

11, 1985. Such Monthly Report constitutes an entry in official records under
Section 44 of Rule 130 of the Revised Rules on Evidence, which is prima
facie evidence of facts therein stated.

Public respondents likewise presented a certified true copy of Peoples Journal

dated January 18, 1985, page 2, issued by the National Library, containing a
[20]

short news article that petitioner was convicted of the crime of Robbery with
Homicide and was sentenced to "life imprisonment." However, newspaper
articles amount to "hearsay evidence, twice removed" and are therefore not
[21]

only inadmissible but without any probative value at all whether objected to or
not, unless offered for a purpose other than proving the truth of the matter
[22]

asserted. In this case, the news article is admissible only as evidence that
such publication does exist with the tenor of the news therein stated.

As a general rule, the burden of proving illegal restraint by the respondent

rests on the petitioner who attacks such restraint. In other words, where the
return is not subject to exception, that is, where it sets forth process which on
its face shows good ground for the detention of the prisoner, it is incumbent
on petitioner to allege and prove new matter that tends to invalidate the
apparent effect of such process. If the detention of the prisoner is by reason
[23]

of lawful public authority, the return is considered prima facie evidence of the
validity of the restraint and the petitioner has the burden of proof to show that
the restraint is illegal. Thus, Section 13 of Rule 102 of the Rules of Court
provides:

"SEC. 13. When the return evidence, and when only a plea.If it
appears that the prisoner is in custody under a warrant of
commitment in pursuance of law, the return shall be considered
prima facie evidence of the cause of restraint, but if he is
restrained of his liberty by any alleged private authority, the return
shall be considered only as a plea of the facts therein set forth,
and the party claiming the custody must prove such facts."

Public respondents having sufficiently shown good ground for the detention,
petitioners release from confinement is not warranted under Section 4 of Rule
102 of the Rules of Court which provides that -

"Sec. 4. When writ not allowed or discharge authorized. - If it

appears that the person alleged to be restrained of his liberty is in
the custody of an officer under process issued by a court or judge
or by virtue of a judgment or order of a court of record, and that
the court or judge had jurisdiction to issue the process, render the
judgment, or make the 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 any informality or defect in the
process, judgment, or order. Nor shall anything in this rule be held
to authorize the discharge of a person charged with or convicted
of an offense in the Philippines, or of a person suffering
imprisonment under lawful judgment."

In the case of Gomez v. Director of Prisons, 77 Phil. 458 (1946), accused was
convicted by the trial court of the crime of rape, and was committed to the
New Bilibid Prison. Pending appeal with the Court of Appeals, the records of
the case were, for reasons undisclosed, completely destroyed or lost.
Accused then filed a petition for the issuance of the writ of habeas corpuswith
the Supreme Court. The Court denied the petition, ruling thus:
 "The petition does not make out a case. The Director of Prisons is
holding the prisoner under process issued by a competent court in
pursuance of a lawful, subsisting judgment. The prisoner himself
admits the legality of his detention. The mere loss or destruction
of the record of the case does not invalidate the judgment or the
commitment, or authorize the prisoners release."

Note further that, in the present case, there is also no showing that petitioner
duly appealed his conviction of the crime of Robbery with Homicide, hence for
all intents and purposes, such judgment has already become final and
executory. When a court has jurisdiction of the offense charged and of the
party who is so charged, its judgment, order, or decree is not subject to
collateral attack by habeas corpus. Put another way, in order that a judgment
[24]

may be subject to collateral attack by habeas corpus, it must be void for lack
of jurisdiction. Thus, petitioners invocation of our ruling in Reyes v. Director
[25]

of Prisons, supra, is misplaced. In the Reyes case, we granted the writ and
ordered the release of the prisoner on the ground that "[i]t does not appear
that the prisoner has been sentenced by any tribunal duly established by a
competent authority during the enemy occupation" and not because there
were no copies of the decision and information. Here, a copy of the mittimus is
available. And, indeed, petitioner does not raise any jurisdictional issue.

The proper remedy in this case is for either petitioner or public respondents to
initiate the reconstitution of the judgment of the case under either Act No.
3110, the general law governing reconstitution of judicial records, or under
[26]

the inherent power of courts to reconstitute at any time the records of their
finished cases in accordance with Section 5 (h) of Rule 135 of the Rules of
Court. Judicial records are subject to reconstitution without exception,
[27]

whether they refer to pending cases or finished cases. There is no sense in

[28]

limiting reconstitution to pending cases; finished cases are just as important

as pending ones, as evidence of rights and obligations finally adjudicated. [29]

Petitioner belabors the fact that no initiative was taken by the Government to
reconstitute the missing records of the trial court. We reiterate, however, that
"reconstitution is as much the duty of the prosecution as of the
defense." Petitioners invocation of Ordoez v. Director of Prisons, 235 SCRA
[30]

152 (1994), is misplaced since the grant of the petition for habeas
corpustherein was premised on the loss of records prior to the filing of
Informations against the prisoners, and therefore "[t]he government has failed
to show that their continued detention is supported by a valid conviction or by
the pendency of charges against them or by any legitimate cause
whatsoever." In this case, the records were lost after petitioner, by his own
admission, was already convicted by the trial court of the offense charged.
Further, the same incident which gave rise to the filing of the Information for
Robbery with Homicide also gave rise to another case for Illegal Possession
of Firearm, the records of which could be of assistance in the reconstitution
[31]

of the present case.

WHEREFORE, the petition is DENIED for lack of merit, and the decision of
the Court of Appeals is AFFIRMED.

SO ORDERED.

Bellosillo, (Chairman), Mendoza, Buena, and De Leon, Jr., JJ., concur.

FIRST DIVISION
 [G.R. No. 137560. January 19, 2000]

IN RE: PETITION FOR HABEAS CORPUS OF DAVID CRUZ y GONZAGA

MARIA CRUZ y GONZAGA and DAVID CRUZ y GONZAGA, petitioners, vs.

COURT OF APPEALS, SUPERINTENDENT OF THE NATIONAL
PENITENTIARY, DIRECTOR OF THE BUREAU OF
CORRECTIONS, respondents. Misoedp

DECISION

PUNO, J.:

This is a consolidated petition for certiorari and habeas corpus. The petition
for certiorari was filed by David Cruz y Gonzaga questioning the Resolution of the
Court of Appeals in CA-G.R. CR No. 16944 which dismissed his appeal from the
judgment of conviction of the Regional Trial Court, Branch 167, Pasig, Metro Manila
for failure to file appellant's brief. The petition for habeas corpus was filed by David
Cruz's mother, Maria Cruz y Gonzaga, against respondents Superintendent of the
National Penitentiary and the Director of the Bureau of Corrections. [1]

Petitioner David Cruz y Gonzaga was charged before the Regional Trial Court,
Branch 167, Pasig, Metro Manila with a violation of Republic Act (R.A.) No. 6425,
the Dangerous Drugs Act of 1972. He allegedly sold to another person on April 11,
1992 dried marijuana fruiting tops weighing 2.70 grams. On September 23, 1993, the
trial court found David Cruz guilty of the crime charged and sentenced him to suffer
life imprisonment with all the accessory penalties of the law and to pay a fine of
P20,000.00 and the costs.

David Cruz seasonably appealed to this Court. The First Division accepted his appeal
and the case was docketed as G.R. No. 113390. Meanwhile, David Cruz was
transferred from the Municipal Jail to the New Bilibid Prisons. His counsel of record,
Atty. Carmelo L. Arcilla, was notified and required to file the appellant's brief within
thirty (30) days from notice. The notice was, however, returned unserved.

On October 3, 1994, we issued a Resolution referring the appeal to the Court of

Appeals in view of the effectivity of Republic Act No. 7659 and the promulgation of
the case of People v. Martin Simon y Sunga. We noted that as the quantity of the
[2]

marijuana involved in the case was less than 750 grams, the imposable penalty on the
appellant was not life imprisonment but one within the range of prision
correccional to reclusion temporal, in accordance with the People v. Simon y
Sunga ruling.

A second notice to file appellant's brief was sent to the new address of David Cruz's
counsel, as furnished by Cruz. The notice was again returned unserved.

On September 19, 1995, David Cruz filed with us an "Urgent Motion to Withdraw
Appeal." Attached to the motion was the Indorsement of Assistant Director Jesus P.
Villanueva, Bureau of Corrections, stating that the legal effects of the Motion were
adequately explained to Cruz. The motion was referred to the Court of Appeals. Misedp

On October 24, 1995, the Court of Appeals, Seventh Division, issued a Resolution
holding in abeyance its resolution on the motion to withdraw appeal "until the
situation is explained to him by the Director, National [sic] Bilibid Prison." The
Director was ordered to submit a written report, together with the reply of David Cruz,
within ten (10) days from receipt thereof. In the same Resolution, the Court of
Appeals also noted that:

"The penalty imposable for the offense charged against David Cruz,
considering the quantity of the prohibited drug involved, is 6 months
of arresto mayor, as the minimum, to four (4) years and two (2) months
of prision correccional, as the maximum, pursuant to the Sunga case.

"By 1996, David Cruz shall have served the maximum penalty
imposable. We seriously doubt if this was explained to him.

x....x....x.

"SO ORDERED." [3]

No report was submitted by the Director, New Bilibid Prisons. [4]

A third notice to file appellant's brief was sent to David Cruz's counsel which he
received on June 8, 1996. Despite this receipt, no appellant's brief was filed.

On September 18, 1996, the Court of Appeals issued another Resolution declaring
David Cruz's appeal as abandoned and dismissed the same. The dispositive portion of
this Resolution reads as follows:

"For failure to file appellant's brief despite receipt by accused-appellant's

counsel on June 8, 1996 of the notice to do so, the court resolved to
consider the appeal ABANDONED and accordingly DISMISSED
pursuant to Section 8, Rule 124 of the 1985 Rules on Criminal
Procedure." [5]

This Resolution became final and executory on October 14, 1996. Judgment was
entered on April 1, 1997. In 1998, petitioner Maria Cruz sought the assistance of the
[6]

Office of Legal Aid of the University of the Philippines College of Law. Hence, this
petition.

Petitioners claim that:

"I. The Court of Appeals committed grave abuse of discretion in

considering petitioner's appeal abandoned despite its October 24, 1995
Resolution.

"II. The correct penalty to be imposed should be determined in a new

trial. Jjsc

"III. There is no lawful writ or process which justifies petitioner's

restraint of liberty." [7]

The petition for certiorari must be dismissed.

Respondent Court of Appeals did not err in declaring the appeal of petitioner David
Cruz as abandoned and dismissed. Section 8 of Rule 124 of the 1985 Rules on
Criminal Procedure, as amended, provides:

"Sec. 8. Dismissal of appeal for abandonment or failure to prosecute.-

The appellate, court may, upon motion of the appellee or on its own
motion and notice to the appellant, dismiss the appeal if the
appellant fails to file his brief within the time prescribed by this
 Rule, except in case the appellant is represented by a counsel de
oficio.

"The court may also, upon motion of the appellee or on its own motion,
dismiss the appeal if the appellant escapes from prison or confinement or
jumps bail or flees to a foreign country during the pendency of the
appeal." [8]

An appeal may be dismissed by the Court of Appeals, upon motion of the appellee or
upon the court's own motion, if the appellant fails to file his brief within the
prescribed time. The only exception is when the appellant is represented by counsel de
officio.

Petitioner David Cruz was represented not by counsel de officio, but by counsel of his
own choice. His lawyer, Atty. Carmelo Arcilla, was counsel de parte before the trial
court, before this Court on appeal, and before the Court of Appeals. There is nothing
in the records that would show that Atty. Arcilla withdrew his representation of
petitioner. On the contrary, the notice from the Court of Appeals requiring the filing
of the appellant's brief was received by Atty. Arcilla. And despite this receipt, still no
appellant's brief was filed. It was more than three (3) months later that the appellate
court issued the questioned Resolution. By dismissing David Cruz's appeal, the Court
of Appeals acted within its discretion.

A new trial to determine his penalty cannot be granted petitioner. A motion for new
trial may be granted by the Court of Appeals only on the ground of newly discovered
evidence material to the accused's defense. This is clear from Section 14, Rule 124 of
the 1985 Rules on Criminal Procedure, to wit:

"Sec. 14. Motion for new trial.-At any time after the appeal from the
lower court has been perfected and before the judgment of the appellate
court convicting the accused becomes final, the latter may move for a
new trial on the ground of newly discovered evidence material to his
defense, the motion to conform to the provisions of Section 4, Rule
121." Scjj

Maria Cruz's petition for habeas corpus, on the other hand, must be granted. Her son,
David, was tried and convicted by the trial court for violation of Article II, Section 4
of the Dangerous Drugs Act of 1972. He was convicted on September 27, 1993 and
sentenced to life imprisonment and its accessory penalties. He was committed to the
National Penitentiary on October 13, 1993. On December 31, 1993, Republic Act
(R.A.) No. 769 took effect. This law amended provisions of several penal laws,
including the Dangerous Drugs Act of 1972.

Before R. A. No. 7659, Article II, Section 4 of the Dangerous Drugs Act of 1972
provided:

"Sec 4. Sale, Administration, Delivery, Distribution and Transportation

of Prohibited Drugs. --. The penalty of life imprisonment to death and a
fine ranging from twenty thousand to thirty thousand pesos shall be
imposed upon any person who, unless authorized by law, shall sell,
administer, deliver, give away to another, distribute, dispatch in transit or
transport any prohibited drug, or shall act as a broker in any of such
transactions. If the victim of the offense is a minor, or should a
prohibited drug involved in any offense under this Section be the
proximate cause of the death of a victim thereof, the maximum penalty
herein provided shall, be imposed."
With the effectivity of R. A. No. 7659, Section 4, Article II now reads:

"Sec. 4. Sale; Administration, Delivery, Distribution and

Transportation of Prohibited Drugs. - The penalty of
reclusion perpetua to death, and a fine ranging from five hundred
thousand pesos to ten million pesos shall be imposed upon any person
who, unless authorized by law, shall sell, administer, deliver, give away
to another, distribute, dispatch in transit or transport any prohibited drug,
or shall act as a broker in any of such transactions.

"Notwithstanding the provisions of Section 20 of this Act to the

contrary, if the victim of the offense is a minor, or should a prohibited
drug involved in any offense under this Section be the proximate cause
of the death of a victim thereof, the maximum penalty herein provided
shall be imposed."

R.A. No. 7659 also added the following provision:

"Sec. 17. Section - 20, Article IV of Republic Act No. 6425, as amended,
known as the Dangerous Drugs Act of 1972, is hereby amended to read
as follows: Supremex

"Sec. 20. Application of Penalties, Confiscation and

Forfeiture of the Proceeds or Instrument of the Crime.-The
penalties for offenses under Sections 3, 4, 7, 8 and 9 of
Article II and Sections 14, 14-A, 15 and 16 of Article III of
this Act shall be applied if the dangerous drugs involved is
in any of the following quantities:

"1. x x x

xxx

5. 750 grams or more of indian hemp or

marijuana; x x x."

"Otherwise, if the quantity involved is less than the

foregoing quantities, the penalty shall range from prision
correccional to reclusion perpetua depending upon the
quantity.

"x x x."

The penalty for the illegal sale of marijuana under the old law was "life imprisonment
to death." Under R.A. 7659, the penalty depended on the quantity of the drug. The
sale of "750 grams or more of Indian hemp or marijuana" became punishable
by reclusion perpetua, to death. The penalty for the sale of less than 750 grams of
[9]

marijuana was reduced to a range "from prision correccional to reclusion perpetua,

depending upon the quantity" of the drug.

In the 1994 case of People v. Simon y Sunga, we held that for drugs with quantities
[10]

weighing 750 grams or more, and for drugs with quantities weighing below 750
grams, reclusion perpetua could not be imposed twice. The penalty of "prision
[11]

correccional" to reclusion perpetua" for drug offenses where the quantity involved is
less than those enumerated in the first paragraph of Section 17 of R.A. 7659 was
construed as "prision correccional to reclusion temporal." This was the range of the
imposable penalty for drugs weighing less than 750 grams and the proper penalty
depended on the quantity of the drug involved. If the drug weighs less than 250
grams, the penalty to be imposed is prision correctional; from 250 grams to 499
grams, prision mayor; and from 500 grams to 749 grams, reclusion temporal. [12]

In the instant case, the amount of marijuana for which David Cruz was convicted is
2.70 grams. The imposable penalty for this amount under the Simon ruling is prision
correctional which has a duration of six (6) months and one (1) day to six (6) years.
Presently, David Cruz has already served six (6) years and three (3) months of his
sentence which is way beyond the last day of prision correccional. The continued
detention of Cruz at, the National Penitentiary has been admitted by the Solicitor
General as already illegal. David Cruz should therefore be released from prison
[13]

without further delay. Courtx

An application for the writ of habeas corpus is made upon verified petition setting
forth: (1) that the person in whose behalf the application is made is imprisoned or
restrained of his liberty; (2) the officer or name of the person by whom he is
imprisoned or restrained; (3) the place where he is imprisoned or restrained of his
liberty; and (4) a copy of the commitment or cause of detention of such person. The [14]

writ of habeas corpus extends to all cases of illegal confinement or detention by which
any person is deprived of his liberty.[15]

IN VIEW WHEREOF, the petition is GRANTED. Let a writ of habeas corpus issue
immediately. The Director, Bureau of Corrections, is commanded to forthwith execute
the writ for the discharge of DAVID CRUZ y GONZAGA from confinement and
RELEASE him, unless he is being detained for some other lawful cause, and to make
due return of the writ. With costs de officio.

FURTHER, in view of the Court of Appeals' dismissal of petitioner's appeal on the

ground of abandonment for failure to file appellant's brief, Atty. Carmelo L. Arcilla is
hereby ordered to explain within fifteen (l5) days from receipt of this decision why no
disciplinary action should be taken against him by this Court.

SO ORDERED. Edpsc

Davide, Jr., C.J., (Chairman), Kapunan, Pardo, and Yares-Santiago, JJ., concur.

SECOND DIVISION

[G.R. No. 125901. March 8, 2001]

EDGARDO A. TIJING and BIENVENIDA R. TIJING, petitioners,

vs. COURT OF APPEALS (Seventh Division) and ANGELITA
DIAMANTE, respondents.

DECISION
QUISUMBING, J.:

For review is the decision of the Court of Appeals dated March 6, 1996, in CA-
G.R. SP No. 39056, reversing the decision of the Regional Trial Court in a petition
for habeas corpus of Edgardo Tijing, Jr., allegedly the child of petitioners.
Petitioners are husband and wife. They have six children. The youngest is
Edgardo Tijing, Jr., who was born on April 27, 1989, at the clinic of midwife and
registered nurse Lourdes Vasquez in Sta. Ana, Manila. Petitioner Bienvenida served
as the laundrywoman of private respondent Angelita Diamante, then a resident of
Tondo, Manila.
According to Bienvenida in August 1989, Angelita went to her house to fetch her
for an urgent laundry job. Since Bienvenida was on her way to do some marketing,
she asked Angelita to wait until she returned. She also left her four-month old son,
Edgardo, Jr., under the care of Angelita as she usually let Angelita take care of the
child while Bienvenida was doing laundry.
When Bienvenida returned from the market, Angelita and Edgardo, Jr., were
gone. Bienvenida forthwith proceeded to Angelitas house in Tondo, Manila, but did
not find them there. Angelitas maid told Bienvenida that her employer went out for a
stroll and told Bienvenida to come back later. She returned to Angelitas house after
three days, only to discover that Angelita had moved to another place.Bienvenida then
complained to her barangay chairman and also to the police who seemed unmoved by
her pleas for assistance.
Although estranged from her husband, Bienvenida could not imagine how her
spouse would react to the disappearance of their youngest child and this made her
problem even more serious. As fate would have it, Bienvenida and her husband
reconciled and together, this time, they looked for their missing son in other
places. Notwithstanding their serious efforts, they saw no traces of his whereabouts.
Four years later or in October 1993, Bienvenida read in a tabloid about the death
of Tomas Lopez, allegedly the common-law husband of Angelita, and whose remains
were lying in state in Hagonoy, Bulacan. Bienvenida lost no time in going to
Hagonoy, Bulacan, where she allegedly saw her son Edgardo, Jr., for the first time
after four years. She claims that the boy, who was pointed out to her by Benjamin
Lopez, a brother of the late Tomas Lopez, was already named John Thomas
Lopez.[1] She avers that Angelita refused to return to her the boy despite her demand to
do so.
Bienvenida and Edgardo filed their petition for habeas corpus with the trial court
in order to recover their son. To substantiate their petition, petitioners presented two
witnesses, namely, Lourdes Vasquez and Benjamin Lopez. The first witness,
Vasquez, testified that she assisted in the delivery of one Edgardo Tijing, Jr. on April
27, 1989 at her clinic in Sta. Ana, Manila. She supported her testimony with her
clinical records.[2] The second witness, Benjamin Lopez, declared that his brother, the
late Tomas Lopez, could not have possibly fathered John Thomas Lopez as the latter
was sterile. He recalled that Tomas met an accident and bumped his private part
against the edge of a banca causing him excruciating pain and eventual loss of his
child-bearing capacity. Benjamin further declared that Tomas admitted to him that
John Thomas Lopez was only an adopted son and that he and Angelita were not
blessed with children.[3]
For her part, Angelita claimed that she is the natural mother of the child. She
asserts that at age 42, she gave birth to John Thomas Lopez on April 27, 1989, at the
clinic of midwife Zosima Panganiban in Singalong, Manila. She added, though, that
she has two other children with her real husband, Angel Sanchez. [4] She said the birth
of John Thomas was registered by her common-law husband, Tomas Lopez, with the
local civil registrar of Manila on August 4, 1989.
On March 10, 1995, the trial court concluded that since Angelita and her
common-law husband could not have children, the alleged birth of John Thomas
Lopez is an impossibility.[5] The trial court also held that the minor and Bienvenida
showed strong facial similarity. Accordingly, it ruled that Edgardo Tijing, Jr., and
John Thomas Lopez are one and the same person who is the natural child of
petitioners.The trial court decreed:
WHEREFORE, PREMISES CONSIDERED, judgment is hereby rendered
GRANTING the petition for Habeas Corpus, as such, respondent Angelita Diamante
is ordered to immediately release from her personal custody minor John Thomas D.
Lopez, and turn him over and/or surrender his person to petitioners, Spouses Edgardo
A. Tijing and Bienvenida R. Tijing, immediately upon receipt hereof.

Branch Sheriff of this Court, Carlos Bajar, is hereby commanded to implement the
decision of this Court by assisting herein petitioners in the recovery of the person of
their minor son, Edgardo Tijing Jr., the same person as John Thomas D. Lopez.

SO ORDERED.[6]

Angelita seasonably filed her notice of appeal.[7] Nonetheless, on August 3, 1994,

the sheriff implemented the order of the trial court by taking custody of the minor. In
his report, the sheriff stated that Angelita peacefully surrendered the minor and he
turned over the custody of said child to petitioner Edgardo Tijing.[8]
On appeal, the Court of Appeals reversed and set aside the decision rendered by
the trial court. The appellate court expressed its doubts on the propriety of the habeas
corpus. In its view, the evidence adduced by Bienvenida was not sufficient to
establish that she was the mother of the minor. It ruled that the lower court erred in
declaring that Edgardo Tijing, Jr., and John Thomas Lopez are one and the same
person,[9] and disposed of the case, thus:

IN VIEW OF THE FOREGOING, the decision of the lower court dated March 10,
1995 is hereby REVERSED, and a new one entered dismissing the petition in Spec.
Proc. No. 94-71606, and directing the custody of the minor John Thomas Lopez to be
returned to respondent Angelita Diamante, said minor having been under the care of
said respondent at the time of the filing of the petition herein.

SO ORDERED.[10]

Petitioners sought reconsideration of the abovequoted decision which was

denied. Hence, the instant petition alleging:
I

THAT THE RESPONDENT COURT OF APPEALS COMMITTED A GRAVE

ERROR WHEN IT DECLARED THAT THE PETITIONERS ACTION FOR
HABEAS CORPUS IS MERELY SECONDARY TO THE QUESTION OF
FILIATION THAT THE PETITIONERS HAD LIKEWISE PROVEN.
II

THAT THE RESPONDENT COURT OF APPEALS ERRED IN REVERSING

THE DECISION OF THE REGIONAL TRIAL COURT DISMISSING THE
PETITION FOR HABEAS CORPUS AND DIRECTING THAT THE
CUSTODY OF THE MINOR JOHN THOMAS LOPEZ WHO WAS PROVEN
TO THE SAME MINOR AS EDGARDO R. TIJING, JR., BE RETURNED TO
THE PRIVATE RESPONDENT.[11]

In our view, the crucial issues for resolution are the following:
(1) Whether or not habeas corpus is the proper remedy?
(2) Whether or not Edgardo Tijing, Jr., and John Thomas Lopez are one and the same person
and is the son of petitioners?
We shall discuss the two issues together since they are closely related.
 The writ of habeas corpus extends 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. [12] Thus, it is the proper legal
remedy to enable parents to regain the custody of a minor child even if the latter be in
the custody of a third person of his own free will. It may even be said that in custody
cases involving minors, the question of illegal and involuntary restraint of liberty is
not the underlying rationale for the availability of the writ as a remedy. Rather, it is
prosecuted for the purpose of determining the right of custody over a child. [13] It must
be stressed too that in habeas corpus proceedings, the question of identity is relevant
and material, subject to the usual presumptions including those as to identity of the
person.
In this case, the minors identity is crucial in determining the propriety of the writ
sought. Thus, it must be resolved first whether the Edgardo Tijing, Jr., claimed by
Bienvenida to be her son, is the same minor named John Thomas Lopez, whom
Angelita insists to be her offspring. We must first determine who between Bienvenida
and Angelita is the minors biological mother. Evidence must necessarily be adduced
to prove that two persons, initially thought of to be distinct and separate from each
other, are indeed one and the same.[14] Petitioners must convincingly establish that the
minor in whose behalf the application for the writ is made is the person upon whom
they have rightful custody. If there is doubt on the identity of the minor in whose
behalf the application for the writ is made, petitioners cannot invoke with certainty
their right of custody over the said minor.
True, it is not the function of this Court to examine and evaluate the probative
value of all evidence presented to the concerned tribunal which formed the basis of its
impugned decision, resolution or order.[15] But since the conclusions of the Court of
Appeals contradict those of the trial court, this Court may scrutinize the evidence on
the record to determine which findings should be preferred as more conformable to
the evidentiary facts.
A close scrutiny of the records of this case reveals that the evidence presented by
Bienvenida is sufficient to establish that John Thomas Lopez is actually her missing
son, Edgardo Tijing, Jr.
First, there is evidence that Angelita could no longer bear children. From her very
lips, she admitted that after the birth of her second child, she underwent ligation at the
Martinez Hospital in 1970, before she lived with Tomas Lopez without the benefit of
marriage in 1974. Assuming she had that ligation removed in 1978, as she claimed,
she offered no evidence she gave birth to a child between 1978 to 1988 or for a period
of ten years. The midwife who allegedly delivered the child was not presented in
court. No clinical records, log book or discharge order from the clinic were ever
submitted.
Second, there is strong evidence which directly proves that Tomas Lopez is no
longer capable of siring a son. Benjamin Lopez declared in court that his brother,
Tomas, was sterile because of the accident and that Tomas admitted to him that John
Thomas Lopez was only an adopted son. Moreover, Tomas Lopez and his legal wife,
Maria Rapatan Lopez, had no children after almost fifteen years together.Though
Tomas Lopez had lived with private respondent for fourteen years, they also bore no
offspring.
Third, we find unusual the fact that the birth certificate of John Thomas Lopez
was filed by Tomas Lopez instead of the midwife and on August 4, 1989, four months
after the alleged birth of the child.Under the law, the attending physician or midwife
in attendance at birth should cause the registration of such birth. Only in default of the
physician or midwife, can the parent register the birth of his child. The certificate
must be filed with the local civil registrar within thirty days after the
birth.[16] Significantly, the birth certificate of the child stated Tomas Lopez and private
respondent were legally married on October 31, 1974, in Hagonoy, Bulacan, which is
false because even private respondent had admitted she is a common-law wife.[17] This
false entry puts to doubt the other data in said birth certificate.
Fourth, the trial court observed several times that when the child and Bienvenida
were both in court, the two had strong similarities in their faces, eyes, eyebrows and
head shapes. Resemblance between a minor and his alleged parent is competent and
material evidence to establish parentage.[18] Needless to stress, the trial courts
conclusion should be given high respect, it having had the opportunity to observe the
physical appearances of the minor and petitioner concerned.
Fifth, Lourdes Vasquez testified that she assisted in Bienvenidas giving birth to
Edgardo Tijing, Jr., at her clinic. Unlike private respondent, she presented clinical
records consisting of a log book, discharge order and the signatures of petitioners.
All these considered, we are constrained to rule that subject minor is indeed the
son of petitioners. The writ of habeas corpus is proper to regain custody of said child.
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[19] 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.[20] Of course, being a novel scientific technique, the use of DNA
test as evidence is still open to challenge.[21] 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. [22] Though it is
not necessary in this case to resort to DNA testing, in future it would be useful to all
concerned in the prompt resolution of parentage and identity issues.
WHEREFORE, the instant petition is GRANTED. The assailed DECISION of
the Court of Appeals is REVERSED and decision of the Regional Trial Court is
REINSTATED. Costs against the private respondent.
SO ORDERED.
Bellosillo, (Chairman), Mendoza, Buena, and De Leon, Jr., JJ., concur.

FIRST DIVISION

[G.R. No. 139789. May 12, 2000]

ERLINDA K. ILUSORIO, petitioner, vs. ERLINDA I. BILDNER and SYLVIA

K. ILUSORIO, JOHN DOE and JANE DOE, respondents. Mesm

[G.R. No. 139808. May 12, 2000]

POTENCIANO ILUSORIO, MA. ERLINDA I. BILDNER, and SYLVIA

ILUSORIO, petitioners, vs. COURT OF APPEALS and ERLINDA K.
ILUSORIO, respondents.

DECISION

PARDO, J.:
May a wife secure a writ of habeas corpus to compel her husband to live with
her in conjugal bliss? The answer is no. Marital rights including coverture and
living in conjugal dwelling may not be enforced by the extra-ordinary writ
of habeas corpus.

A writ of habeas corpus extends to all cases of illegal confinement or

detention, or by which the rightful custody of a person is withheld from the
[1]

one entitled thereto. Slx[2]

"Habeas corpus is a writ directed to the person detaining another,

commanding him to produce the body of the prisoner at a designated time and
place, with the day and cause of his capture and detention, to do, submit to,
and receive whatsoever the court or judge awarding the writ shall consider in
that behalf." [3]

It is a high prerogative, common-law writ, of ancient origin, the great object of

which is the liberation of those who may be imprisoned without sufficient
cause. It is issued when one is deprived of liberty or is wrongfully prevented
[4]

from exercising legal custody over another person. [5]

The petition of Erlinda K. Ilusorio is to reverse the decision of the Court of

[6] [7]

Appeals and its resolution dismissing the application for habeas corpus to
[8]

have the custody of her husband, lawyer Potenciano Ilusorio and enforce
consortium as the wife.

On the other hand, the petition of Potenciano Ilusorio is to annul that portion
[9]

of the decision of the Court of Appeals giving Erlinda K. Ilusorio visitation

rights to her husband and to enjoin Erlinda and the Court of Appeals from
enforcing the visitation rights.

The undisputed facts are as follows: Scslx

Erlinda Kalaw Ilusorio is the wife of lawyer Potenciano Ilusorio.

Potenciano Ilusorio is about 86 years of age possessed of extensive property

valued at millions of pesos. For many years, lawyer Potenciano Ilusorio was
Chairman of the Board and President of Baguio Country Club.

On July 11, 1942, Erlinda Kalaw and Potenciano Ilusorio contracted

matrimony and lived together for a period of thirty (30) years. In 1972, they
separated from bed and board for undisclosed reasons. Potenciano lived at
Urdaneta Condominium, Ayala Ave., Makati City when he was in Manila and
at Ilusorio Penthouse, Baguio Country Club when he was in Baguio City. On
the other hand, Erlinda lived in Antipolo City.

Out of their marriage, the spouses had six (6) children, namely: Ramon
Ilusorio (age 55); Erlinda Ilusorio Bildner (age 52); Maximo (age 50); Sylvia
(age 49); Marietta (age 48); and Shereen (age 39).

On December 30, 1997, upon Potencianos arrival from the United States, he
stayed with Erlinda for about five (5) months in Antipolo City. The children,
Sylvia and Erlinda (Lin), alleged that during this time, their mother gave
Potenciano an overdose of 200 mg instead of 100 mg Zoloft, an
antidepressant drug prescribed by his doctor in New York, U.S.A. As a
consequence, Potencianos health deteriorated.
On February 25, 1998, Erlinda filed with the Regional Trial Court, Antipolo City
a petition for guardianship over the person and property of Potenciano
[10]

Ilusorio due to the latters advanced age, frail health, poor eyesight and
impaired judgment.

On May 31, 1998, after attending a corporate meeting in Baguio City,

Potenciano Ilusorio did not return to Antipolo City and instead lived at
Cleveland Condominium, Makati. Slxsc

On March 11, 1999, Erlinda filed with the Court of Appeals a petition
for habeas corpus to have the custody of lawyer Potenciano Ilusorio. She
alleged that respondents refused petitioners demands to see and visit her
[11]

husband and prohibited Potenciano from returning to Antipolo City.

After due hearing, on April 5, 1999, the Court of Appeals rendered decision
the dispositive portion of which reads:

"WHEREFORE, in the light of the foregoing disquisitions,

judgment is hereby rendered:

"(1) Ordering, for humanitarian consideration and upon petitioners

manifestation, respondents Erlinda K. Ilusorio Bildner and Sylvia
Ilusorio-Yap, the administrator of Cleveland Condominium or
anywhere in its place, his guards and Potenciano Ilusorios staff
especially Ms. Aurora Montemayor to allow visitation rights to
Potenciano Ilusorios wife, Erlinda Ilusorio and all her children,
notwithstanding any list limiting visitors thereof, under penalty of
contempt in case of violation of refusal thereof; xxx

"(2) ORDERING that the writ of habeas corpus previously issued

be recalled and the herein petition for habeas corpus be DENIED
DUE COURSE, as it is hereby DISMISSED for lack of unlawful
restraint or detention of the subject of the petition.

"SO ORDERED." [12]

Hence, the two petitions, which were consolidated and are herein jointly
decided.

As heretofore stated, a writ of habeas corpus extends to all cases of illegal

confinement or detention, or by which the rightful custody of a person is
[13]

withheld from the one entitled thereto. It is available where a person continues
to be unlawfully denied of one or more of his constitutional freedoms, where
there is denial of due process, where the restraints are not merely involuntary
but are unnecessary, and where a deprivation of freedom originally valid has
later become arbitrary. It is devised as a speedy and effectual remedy to
[14]

relieve persons from unlawful restraint, as the best and only sufficient defense
of personal freedom. Jksm [15]

The essential object and purpose of the writ of habeas corpus is to inquire into
all manner of involuntary restraint, and to relieve a person therefrom if such
restraint is illegal. [16]

To justify the grant of the petition, the restraint of liberty must be an illegal and
involuntary deprivation of freedom of action. The illegal restraint of liberty
[17]

must be actual and effective, not merely nominal or moral. [18]

The evidence shows that there was no actual and effective detention or
deprivation of lawyer Potenciano Ilusorios liberty that would justify the
issuance of the writ. The fact that lawyer Potenciano Ilusorio is about 86 years
of age, or under medication does not necessarily render him mentally
incapacitated. Soundness of mind does not hinge on age or medical condition
but on the capacity of the individual to discern his actions.

After due hearing, the Court of Appeals concluded that there was no unlawful
restraint on his liberty.

The Court of Appeals also observed that lawyer Potenciano Ilusorio did not
request the administrator of the Cleveland Condominium not to allow his wife
and other children from seeing or visiting him. He made it clear that he did not
object to seeing them.

As to lawyer Potenciano Ilusorios mental state, the Court of Appeals observed

that he was of sound and alert mind, having answered all the relevant
questions to the satisfaction of the court.

Being of sound mind, he is thus possessed with the capacity to make choices.
In this case, the crucial choices revolve on his residence and the people he
opts to see or live with. The choices he made may not appeal to some of his
family members but these are choices which exclusively belong to
Potenciano. He made it clear before the Court of Appeals that he was not
prevented from leaving his house or seeing people. With that declaration, and
absent any true restraint on his liberty, we have no reason to reverse the
findings of the Court of Appeals.

With his full mental capacity coupled with the right of choice, Potenciano
Ilusorio may not be the subject of visitation rights against his free choice.
Otherwise, we will deprive him of his right to privacy. Needless to say, this will
run against his fundamental constitutional right. Es m

The Court of Appeals exceeded its authority when it awarded visitation rights
in a petition for habeas corpus where Erlinda never even prayed for such
right. The ruling is not consistent with the finding of subjects sanity.

When the court ordered the grant of visitation rights, it also emphasized that
the same shall be enforced under penalty of contempt in case of violation or
refusal to comply. Such assertion of raw, naked power is unnecessary.

The Court of Appeals missed the fact that the case did not involve the right of
a parent to visit a minor child but the right of a wife to visit a husband. In case
the husband refuses to see his wife for private reasons, he is at liberty to do
so without threat of any penalty attached to the exercise of his right.

No court is empowered as a judicial authority to compel a husband to live with

his wife. Coverture cannot be enforced by compulsion of a writ of habeas
corpus carried out by sheriffs or by any other mesne process. That is a matter
beyond judicial authority and is best left to the man and womans free choice.

WHEREFORE, in G. R. No. 139789, the Court DISMISSES the petition for

lack of merit. No costs.
In G. R. No. 139808, the Court GRANTS the petition and nullifies the decision
of the Court of Appeals insofar as it gives visitation rights to respondent
Erlinda K. Ilusorio. No costs.

SO ORDERED.

Davide, Jr., C.J., (Chairman), Puno, Kapunan, and Ynares-Santiago,

JJ., concu
Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. L-63345 January 30, 1986

EFREN C. MONCUPA, petitioner,

vs.
JUAN PONCE ENRILE, FABIAN C. VER, GALILEO KINTANAR, FERNANDO GOROSPE, AND JOSE
CASTRO, respondents.

Lorenzo M. Tanada, Jose W. Diokno and Joker Arroyo for petitioner,

GUTIERREZ, JR., J.:

As early as 1919, in the leading case of Villavicencio v. Lukban (39 Phil. 778, 790), this Court ruled:

A prime specification of al application for a writ of habeas corpus is restraint of liberty. The essential
object and purpose of the writ of habeas corpus is to inquire into all manner of involuntary restraint
as distinguished from voluntary, and to relieve a person therefrom if such restraint is illegal. Any
restraint which will preclude freedom of action is sufficient. ...

This latitudinarian scope of the writ of habeas-corpus has, in law, remained undiminished up to the present. The
respondents' contention that the petition has become moot and academic must necessarily be denied. Efren C.
Moncupa may have been released from his detention cell. The restraints attached to his temporary release, however,
preclude freedom of action and under the Villavicencio v. Lukban rule warrant this Court's inquiry into the nature of
his involuntary restraint and our relieving him of such restraints as may be illegal.

Petitioner Efren C. Moncupa, together with others, was arrested on April 22, 1982 at about 10:50 P.M., at the corner
of D. Street and Quezon Avenue, Quezon City. Moncupa D. Tuazon was brought to MIG-15 Camp Bago Bantay,
Quezon City where he was detained. On April 23, 1982, on the allegation that he was a National Democratic Front
(NDF) staff member, a Presidential Commitment Order (PCO) was issued against him and eight (8) other persons.

After two separate investigations, conducted first, by Lieutenant Colonel Gerardo Lantoria, Jr., Chief of Task Force
Makabansa Investigation Group and second, by Investigating Fiscal Amado Costales of Quezon City, it was
ascertained that the petitioner was not a member of any subversive organization. Both investigators recommended
the prosecution of the petitioner only for illegal possession of firearms and illegal possession of subversive
documents under Presidential Decree No. 33.

Consequently, two separate informations were filed against the petitioner, one, for illegal possession of firearms
before the Court of First Instance of Rizal and the other for violation of P.D. 33 before the City Court of Quezon City.
Against the other accused, however, the cases filed were for violation of P.D. 885 as amended. Significantly, the
petitioner was excluded from the charge under the Revised Anti-Subversion Law. During the pendency of this
petition, it is significant that his arraignment and further proceedings have not been pursued. And yet, the petitioner's
motions for bail were denied by the lower court.

Hence, the petitioner filed the instant petition.

The respondents, in their return of the writ justified the validity of petitioner's detention on the ground that the privilege
of the writ had been suspended as to the petitioner. However, on August 30, 1983, the respondents filed a motion to
dismiss stating that on May 11, 1983, the petitioner was temporarily released from detention on orders of the Minister
temporary of National Defense with the approval of the President. The respondents stated. "Since the petitioner is
free and no longer under the custody of the respondents, the present petition for habeas corpus may be deemed
moot and academic as in similar cases.

The issue to be resolved is whether or not the instant petition has become moot and academic in view of the
petitioner's temporary release.

It is to be noted that attached to the petitioner's temporary release are restrictions imposed on him. These are:
1) His freedom of movement is curtailed by the condition that petitioner gets the approval of respondents for any
travel outside Metro Manila.

2) His liberty of abode is restricted because prior approval of respondents is also required in case petitioner wants to
change his place of residence.

3) His freedom of speech is muffled by the prohibition that he should not "participate in any interview conducted by
any local or foreign mass media representatives nor give any press release or information that is inimical to the
interest of national security."

4) He is required to report regularly to respondents or their representatives.

The petitioner argues that although admittedly his temporary release is an improvement upon his actual detention,
the restrictions imposed by the respondents constitute an involuntary and illegal restraint on his freedom.

The petitioner stresses that his temporary release did not render the instant petitioner moot and academic but that "it
merely shifted the inquiry from the legality of his actual detention to the legality of the conditions imposed by the
respondents."

We agree with the petitioner.

The reservation of the military in the form of restrictions attached to the temporary release of the petitioner constitute
restraints on the liberty of Mr. Moncupa. Such restrictions limit the freedom of movement of the petitioner. It is not
physical restraint alone which is inquired into by the writ of habeas corpus.

In Villavicencio v. Lukban, the women who had been illegally seized and transported against their will to Davao were
no longer under any official restraint. Unlike petitioner Moncupa, they were free to change their domicile without
asking for official permission. Indeed, some of them managed to return to Manila. Yet, the Court condemned the
involuntary restraints caused by the official action, fined the Mayor of Manila and expressed the hope that its
"decision may serve to bulwark the fortifications of an orderly government of laws and to protect individual liberty from
Megal encroachment."

In the light of the above ruling, the present petition for habeas corpus has not become moot and academic. Other
precedents for such a conclusion are not wanting.

The decision in Caunca v. Salazar (82 Phil. 851) states:

An employment agency, regardless of the amount it may advance to a prospective employee or

maid, has absolutely no power to curtail her freedom of movement. The fact that no physical force
has been exerted to keep her in the house of the respondent does not make less real the
deprivation of her personal freedom of movement, freedom to transfer from one place to another,
from to choose one's residence. Freedom may be lost due to external moral compulsion, to
founded or groundless fear, to erroneous belief in the existence of the will. If the actual effect of
such psychological spell is to place a person at the mercy of another, the victim is entitled to the
protection of courts of justice as much as the individual who is illigally deprived of liberty by
deprived or physical coercion.

In Tibo v. The Provincial Commander (85 SCRA 564), this Court ruled:

Although the release in the custody of the Deputy Minister did not signify that petitioners could once
again enjoy their full freedom, the application could have been dismissed, as it could be withdrawn
by the parties themselves. That is a purely voluntary act. When the hearing was held on September
7, 1978, it turned out that counsel for petitioner Bonifacio V. Tupaz could have academic in a hasty
manner when he set forth the above allegations in his manifestation of August 30, 1978, for
Attorney Jose C. Espinas, who appeared for petitioners, while conceding that there was such a
release from confinement, also alleged that it was conditioned on their restricting their activities as
labor union leaders to the premises of the Trade Unions of the Philippines and ABSOLUTE
Services, presumably in Macaraig as well as the Ministry of labor. As the voting was to take place
in the business firm in Bataan, the acts set would nullify whatever efforts they could have exerted.
To that extent, and with the prohibition against their going to Bataan, the restraint on liberty was
undeniable. If so, the moot and academic character of the petition was far from clear.

More recently, we had occasion to rule squarely on whether or not a temporary release from detention renders the
petition for writ of habeas corpus moot and academic. As in this case of Moncupa, the petitioners in Toyoto, et al v.
Hon. Fidel Ramos, et al, G.R. No. 69270, October 15, 1985, were temporarily released from detention. The
respondents filed a motion to dismiss the petition for habeas corpus on the ground that the petitioners had been
temporarily released and their case had, therefore, become moot and academic. The petitioners insisted, however,
that their case may be considered moot and academic only "if their release would be permanent." In ruling for the
petitioners, we said:

Ordinarily, a petition for habeas corpus becomes moot and academic when the restraint on the
liberty of the petitioners is lifted either temporarily or permanently. We have so held in a number of
cases. But the instant case presents a different situation. The question to be resolved is whether
the State can reserve the power to re-arrest a person for an offense after a court of competent
jurisdiction has absolved him of the offense. An affirmative answer is the one suggested by the
respondents because the release of the petitioners being merely 'temporary' it follows that they can
be re-arrested at anytime despite their acquittal by a court of competent jurisdiction. We hold that
such a reservation is repugnant to the government of laws and not of men principle. Under this
 principle the moment a person is acquitted on a criminal charge he can no longer be detained or re-
arrested for the same offense. This concept is so basic and elementary that it needs no
elaboration.

In effect the principle is clear. A release that renders a petition for a writ of habeas corpus moot and academic must
be one which is free from involuntary restraints. Where a person continues to be unlawfully denied one or more of his
constitutional freedoms, where there is present a denial of due process, where the restraints are not merely
involuntary but appear to be unnecessary, and where a deprivation of freedom originally valid has, in the light of
subsequent developments, become arbitrary, the person concerned or those applying in his behalf may still avail
themselves of the privilege of the writ.

The respondents have failed to show why the writ may not issue and why the restraints on the petitioner's freedom of
movement should not be lifted.

WHEREFORE, the PETITION is GRANTED. The conditions attached to the temporary release of the petitioner are
declared null and void. The temporary release of the petitioner is declared ABSOLUTE. No costs,

SO ORDERED.

Teehankee, Concepcion, Jr., Abad Santos, Melencio-Herrera, Escolin De la Fuente, Cuevas, Alampay and Patajo,
JJ., concur.

Aquino, C.J., took no part.

Plana, J., I reserve my vote.

[ GR No. L-2690, Jan 01, 1949 ]

BARTOLOME CAUNCA v. JULIA SALAZAR

82 Phil. 851 Unrep. (Reporters Office)

PERFECTO, J.:
HABEAS CORPUS; EMPLOYMENT AS MAID IN EMPLOYMENT AGENCY. An
employment agency, regardless of the amount it may advance to a prospective employee or
maid, has absolutely no power to curtail her freedom of movement. The fact that no physical
force has been exerted to keep her in the house of the respondent does not make less real
the deprivation of her personal freedom of movement, freedom to transfer from one place to
another, freedom to choose one's residence. Freedom may be lost due to external moral
compulsion, to founded or groundless fear, to erroneous belief in the existence of an
imaginary power of an impostor to cause harm if not blindly obeyed, to any other
psychological element that may curtail the mental faculty of choice or the unhampered
exercise of the will. If the actual effect of such psychological spell is to place a person at the
mercy of another, the victim is entitled to the protection of courts of justice as much as the
individual who is illegally deprived of liberty by duress or physical coercion. (Decision
signed by only one Justice: Perfecto, J.)

DECISION

Estelita Flores, 21, orphan of father and mother, illiterate, was brought from her native
torni, Buruanga, Capiz, by Estrella Justo, maid recruiter, to Manila, where she arrived on
December 24, 1948, and stayed in the house of Julia Salazar at 1343 Felix Huertas St., where
the latter is running the Far Eastern Employment Bureau.

On December 26, 1948, when her cousin Bartolome Caunca went to pay her a visit, Estelita
manifested her earnest desire to go along with him, but was prevented by Julia Salazar and
Estrella Justo, both demanding the condition that the sum of P83.85 advanced for the fare
and other transportation expenses of Estelita from Buruanga to Manila be paid first before
she could leave the house of Julia Salazar.

Although there is no evidence that any physical force has been used to prevent her from
leaving the house, Estelita failed to leave it. Bartolome testified that, although Estelita was
embracing him in her desire to go with him, he/was unable to take her with him because of
respondents' opposition and of the many peoolo in the house. Considering the crass
ignorance of Estelita, her low mentality, her apparent undernoursihment and weak vitality,
her pusillanimous character, she is so timid that she hardly dared to speak during her
testimony, given in Hiligaynon, the only language she knows,--there should not be any
doubt that by sheer mental anu social superiority. respondent Julia Salazar is an able and
very intelligent businesswoman, respondents exerted moral compulsion strong enough to
have effectively deprived Estelita of her personal liberty and of the freedom to go along with
her cousin.

Bartolome promised Estelita to take steps to seek her release and filed the petition giving
rise to this proceeding for a writ of habeas corpus.

The writ was issued on the very morning when the petition was filed on December 31, 1948,
ordering respondents to bring to this Court the person of Estelita at 2 o'clock that afternoon,
the hour set for the hearing of the case. At said hearing both Estelita and respondent Julia
Salasar failed to appear. The latter, according to Estrella Justo, brought Estelita that
morning to Silang, Cavite, and would not return until the evening. Continuation of the
hearing was set for January 1, 1949, at 9 o'clock in the morning.

Julia Salazar appeared at said hour and explained that she had no sufficient time to bring
Estelita, because the latter was left in Silang, and requested for time to bring the girl to this
Court, She was granted time to bring the girl at 5 o'clock in the afternoon of January 1, 1949,
and at the hearing which started at said hour the testimonies of Estelita and Julia Salazar, as
the last witnesses, were taken.

Upon the evidence, there is no question that Estelita is restrained of her personal liberty and
not free to go with her cousin at her will. The fact that no physical force has been exerted to
keep her in the house of Julia Salazar, at 1343 Felix Huertas St., or to stay in Silang, Cavite,
in the house of Julia Salazar's cousin, a place that Estelita could not identify better than just
describing it as a place very far from Manila, does not make less real the deprivation of
Estelita's personal freedom which includes the freedom of movement, freedom to transfer
from one place to another, freedom to choose one's residence. Freedom may be lost due to
external moral compulsion, to founded or groundless fear, to erroneous belief in the
existence of an imaginary power of an impostor to cause harm if not blindly obeyed, to any
other psychological element that may curtail the mental faculty of choice or the unhampered
exercise of the will. If the actual effect of such psychological spell is to place a person at the
mercy of another, the victim is entitled to the protection of courts of justice as much as the
individual who is illegally deprived of liberty by duress or physical coercion.

On the hypothesis that Estelita is really indebted in the amount of P83.85, such is not a
valid reason for the respondents to obstruct, impede or interfere with Estelita's desire to
leave the house of Julia Salazar and to live in the residence of his cousin Bartolome. Said
indebtedness may be multiplied by thousands or millions, but would not in any way subtract
an iota from Estelita's fundamental right to have a free choice of abode.

An employment agency, regardless of the amount it may advance to a prospective employee

has absolutely no power to curtail the freedom of movement of said employee. The fact that
power to control said freedom may be an effective means of avoiding monetary losses to the
agency is no reason for jeopardizing a fundamental human right. The fortunes of business
can not be controlled by controlling a fundamental human freedom. Human dignity is not a
merchandise appropriate for commercial barters or business bargains. Fundamental
freedoms are beyond the province of commerce or any other business enterprise.

In the scale of values, there is no acceptable equivalence between matters involving human
dignity and those belonging to the domain of business. The latter are characterized by
transience and precariousness, while the former are the nearest things to what are
everlasting, if ever there are any, in humanity. Human dignity and human freedoms are
essentially spiritual, notwithstanding their material manifestations in the external world,
and the universal concept of the spirit is inseparable from the idea of the eternal, of the
unlimited by space or time. Money, power, domination, satisfaction of the pleasures of the
flesh, like all lusts, belong to the ephemeral and perishable, an order of things which has no
possible equation with the moral values of the spirit, among which are human freedoms.

The petition is granted and it is accordingly ordered that Estelita Flores be allowed to go
with her cousin Bartolome Caunca or to any place of her choice, and respondents are
ordered not to impede, obstruct or, in any way, interfere with such freedom of Estelita
Flores.
This decision shall be executed today, January 1, 1949, immediately upon its promulgation
at the close of the hearing of this case.

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. L-54558 May 22, 1987

EDUARDO B. OLAGUER, OTHONIEL V. JIMENEZ, ESTER MISA-JIMENEZ, CARLOS LAZARO, REYNALDO

MACLANG, MAGDALENA DE LOS SANTOS-MACLANG, TEODORICO N. DIESMOS, RENE J. MARCIANO,
DANILO R. DE OCAMPO, VICTORIANO C. AMADO and MAC ACERON, petitioners,
vs.
MILITARY COMMISSION NO. 34, THE TRIAL COUNSEL OF MILITARY COMMISSION NO. 34, and THE
MINISTER OF NATIONAL DEFENSE, respondents.

No. L-69882 May 22, 1987

EDUARDO OLAGUER, OTHONIEL JIMENEZ, REYNALDO MACLANG and ESTER MISA-JIMENEZ, petitioners,
vs.
THE CHIEF OF STAFF, AFP, MILITARY COMMISSION NO. 34, JUDGE ADVOCATE GENERAL, AFP, MINISTER
OF NATIONAL DEFENSE and THE DIRECTOR OF PRISONS, respondents.

Sabino Padilla, Jr. and Jose B. Puerto for petitioner Othoniel Jimenez.

Fulgencio Factoran for petitioners Maclang and Magdalena de los Santos-Maclang

Rene Saguisag for petitioner Mac Aceron.

Joaquin Misa for petitioner Ester Misa-Jimenez.

Jejomar Binay for petitioners Reynaldo Maclang and Magdalena de los Santos-Maclang.

Jaime Villanueua for petitioner Danilo R. de Ocampo.

Joker P. Arroyo, Lorenzo M. Tanada and Rene Sarmiento for petitioners Eduardo Olaguer and Othoniel Jimenez.

Wigberto Tanada for petitioners Olaguer and Maclang

GANCAYCO, J.:

Filed with this Court are two Petitions wherein the fundamental question is whether or not a military tribunal has the
jurisdiction to try civilians while the civil courts are open and functioning. The two Petitions have been consolidated
inasmuch as the issues raised therein are interrelated.

On December 24, 1979, the herein petitioners Eduardo B. Olaguer, Othoniel V. Jimenez, Ester Misa-Jimenez, Carlos
Lazaro, Reynaldo Maclang, Magdalena De Los Santos Maclang, Teodorico N. Diesmos, Rene J. Marciano, Danilo R.
De Ocampo and Victoriano C. Amado were arrested by the military authorities. They were all initially detained at
Camp Crame in Quezon City. They were subsequently transferred to the detention center at Camp Bagong Diwa in
Bicutan except for petitioner Olaguer who remained in detention at Camp Crame. Petitioner Mac Aceron voluntarily
surrendered to the authorities sometime in June, 1980 and was, thereafter, also incarcerated at Camp Bagong Diwa.
All of the petitioners are civilians.

On May 30, 1980, the petitioners were charged for subversion 1 upon the recommendation of the respondent Judge Advocate
General and the approval of the respondent Minister of National Defense.2 The case was designated as Criminal Case No. MC-34-1.

On June 13. 1980, the respondent Chief of Staff of the Armed Forces of the Philippines created the respondent
3

Military Commission No 34 to try tile criminal case filed against the petitioners. On July 30, 1980, an amended
4

charge sheet was filed for seven (7) offenses, namely: (1) unlawful possession of explosives and incendiary devices;
(2) conspiracy to assassinate President, and Mrs. Marcos; (3) conspiracy to assassinate cabinet members Juan
Ponce Enrile, Francisco Tatad and Vicente Paterno; (4) conspiracy to assassinate Messrs. Arturo Tangco, Jose Roño
and Onofre Corpus; (5) arson of nine buildings; (6) attempted murder of Messrs. Leonardo Perez, Teodoro Valencia
and Generals Romeo Espino and Fabian Ver; and (7) conspiracy and proposal to commit rebellion, and inciting to
rebellion. Sometime thereafter, trial ensued.
5

In the course of the proceedings, particularly on August 19, 1980, the petitioners went to this Court and filed the
instant Petition for prohibition and habeas corpus." They sought to enjoin the respondent Military Commission No.
6

34 from proceeding with the trial of their case. They likewise sought their release from detention by way of a writ
of habeas corpus. The thrust of their arguments is that military commissions have no jurisdiction to try civilians for offenses alleged to
have been committed during the period of martial law. They also maintain that the proceedings before the respondent Military Commission
No. 34 are in gross violation of their constitutional right to due process of law.

On September 23, 1980, the respondents filed their Answer to the Petition. On November 20, 1980, the petitioners
7

submmitted their reply to the Answer. In a Motion filed with this Court on July 25, 1981, petitioner Olaguer requested
8

that the Petition be considered withdrawn as far as he is concerned. In the Resolution of this Court dated July 30,
9

1981, the said prayer was granted." 10 On August 31, 1984, the respondents filed a Rejoinder to the Reply submitted by the
petitioners. 11

On December 4, 1984, pending the resolution of the Petition, the respondent Military Commission No. 34 passed sentence convicting the
petitioners and imposed upon them the penalty of death by electrocution. Thus, on February 14, 1985, petitioners Olaguer, Maclang and
Othoniel and Ester Jimenez went to this Court and filed the other instant Petition, this time for habeas corpus, certiorari, prohibition
and mandamus. They also sought the issuance of a writ of preliminary injunction.12 The respondents named in the Petition are the Chief of
Staff of the Armed Forces of the Philippines, Military Commission No. 34, the Judge Advocate General, the Minister of National Defense and
the Director of the Bureau of Prisons.

In sum, the second Petition seeks to enjoin the said respondents from taking any further action on the case against
the petitioners, and from implementing the judgment of conviction rendered by the respondent Military Commission
No. 34 for the reason that the same is null and void. The petitioners also seek the return of all property taken from
them by the respondents concerned. Their other arguments in the earlier Petition are stressed anew.

On August 9, 1985, the respondents filed their Answer to the Petition. 13 On September 12, 1985, this Court issued a
temporary restraining order enjoining the respondents from executing the Decision of the respondent Military Commission No. 34 14 On
February 18, 1986, the petitioners submitted an extensive Brief. 15 Thereafter, and in due time, the cases were submitted for decision.

In resolving these two Petitions, We have taken into account several supervening events which have occurred
hitherto, to wit —

(1) On January 17, 1981, President Ferdinand E. Marcos issued Proclamation No. 2045 officially
lifting martial law in the Philippines. The same Proclamation revoked General Order No. 8 (creating
military tribunals) and directed that "the military tribunals created pursuant thereto are hereby
dissolved upon final determination of case's pending therein which may not be transferred to the
civil courts without irreparable prejudice to the state in view of the rules on double jeopardy, or
other circumstances which render prosecution of the cases difficult, if not impossible."; and

(2) Petitioner Ester Misa-Jimenez was granted provisional liberty in January, 1981. On the other
hand, petitioners Eduardo Olaguer and Othoniel Jimenez obtained provisional liberty on January
23, 1986. 16The rest of the petitioners have been released sometime before or after President Corazon C. Aquino
assumed office in February, 1986.

The sole issue in habeas corpus proceedings is detention. 17 When the release of the persons in whose behalf the application
for a writ of habeas corpus was filed is effected, the Petition for the issuance of the writ becomes moot and academic. 18 Inasmuch as the
herein petitioners have been released from their confinement in military detention centers, the instant Petitions for the issuance of a writ
of habeas corpus should be dismissed for having become moot and academic.

We come now to the other matters raised in the two Petitions. The main issue raised by the petitioners is whether or
not military commissions or tribunals have the jurisdiction to try civilians for offenses allegedly committed during
martial law when civil courts are open and functioning.

The petitioners maintain that military commissions or tribunals do not have such jurisdiction and that the proceedings
before the respondent Military Commission No. 34 are in gross violation of their constitutional right to due process of
law. The respondents, however, contend otherwise.

The issue on the jurisdiction of military commissions or tribunals to try civilians for offenses allegedly committed
before, and more particularly during a period of martial law, as well as the other issues raised by the petitioners, have
been ruled upon by a divided Supreme Court in Aquino, Jr. v. Military Commission No. 2. 19 The pertinent portions of the
main opinion of the Court are as follows —

We hold that the respondent Military Commission No. 2 has been lawfully constituted and validly vested with
jurisdiction to hear the cases against civilians, including the petitioner.

l. The Court has previously declared that the proclamation of Martial Law ... on September 21,
1972, ... is valid and constitutional and that its continuance is justified by the danger posed to the
public safety. 20

2. To preserve the safety of the nation in times of national peril, the President of the Philippines
necessarily possesses broad authority compatible with the imperative requirements of the
emergency. On the basis of this, he has authorized in General Order No. 8 . . . the Chief of Staff,
Armed Forces of the Philippines, to create military tribunals to try and decide cases "of military
personnel and such other cases as may be referred to them." In General Order No. 12 ... , the
military tribunals were vested with jurisdiction "exclusive of the civil courts," among others, over
crimes against public order, violations of the Anti-Subversion Act, violations of the laws on firearms,
and other crimes which, in the face of the emergency, are directly related to the quelling of the
rebellion and preservation of the safety and security of the Republic. ... These measures he had the
authority to promulgate, since this Court recognized that the incumbent President (President
Marcos), under paragraphs 1 and 2 of Section 3 of Article XVII of the new (1973) Constitution, had
the authority to "promulgate proclamations, orders and decrees during the period of martial law
essential to the security and preservation of the Republic, to the defense of the political and social
liberties of the people and to the institution of reforms to prevent the resurgence of the rebellion or
insurrection or secession or the threat thereof ... " 21
 3. Petitioner nevertheless insists that he being a civilian, his trial by military commission deprives
him of his right to due process, since in his view the due process guaranteed by the Constitution to
persons accused of "ordinary" crimes means judicial process. This argument ignores the reality of
the rebellion and the existence of martial law. It is, of course, essential that in a martial law
situation, the martial law administrator must have ample and sufficient means to quell the rebellion
and restore civil order. Prompt and effective trial and punishment of offenders have been
considered as necessary in a state of martial law, as a mere power of detention may be wholly
inadequate for the exigency. " ... martial law ... creates an exception to the general rule of
22

exclusive subjection to the civil jurisdiction, and renders offenses against the law of war, as well as
those of a civil character, triable, ... by military tribunals. "Public danger warrants the substitution of
23

executive process for judicial process." . ... "The immunity of civilians from military jurisdiction
24

must, however, give way in areas governed by martial law. When it is absolutely imperative for
public safety, legal processes can be superseded and military tribunals authorized to exercise the
jurisdiction normally vested in courts. . ..."
25

xxx xxx xxx

5. ... The guarantee of due process is not a guarantee of any particular form of tribunal in criminal
cases. A military tribunal of competent jurisdiction, accusation in due form, notice and opportunity
to defend and trial before an impartial tribunal, adequately meet the due process requirement. Due
process of law does not necessarily mean a judicial proceeding in the regular courts. ... 26

This ruling has been affirmed, although not unanimously, in at least six other cases, to wit: Gumaua
v.Espino, Buscayno v. Enrile, Sison v. Enrile, Luneta v. Special Military Commission No. 1, Ocampo v. Military
27 28 29 30

Commission No. 25, and Buscayno v. Military Commission Nos. 1, 2, 6 and 25.
31 32

These rulings notwithstanding, the petitioners anchor their argument on their prayer that the ruling in Aquino, Jr. be
appraised anew and abandoned or modified accordingly. After a thorough deliberation on the matter, We find cogent
basis for re-examining the same.

Some recent pronouncements of this Court could be considered as attempts to either abandon or modify the ruling in
Aquino, Jr.

In De Guzman v. Hon. Leopando, et al., an officer of the Armed Forces of the Philippines and several other persons
33

were charged with Serious Illegal Detention before the Court of First Instance of Maguindanao sometime in October,
1982. The military officer sought to effect the transfer of the case against him to the General Court Martial for trial
pursuant to the provisions of Presidential Decree No. 1850. The trial court disallowed such transfer for the reason that
the said Decree is unconstitutional inasmuch as it violates the due process and equal protection clauses of the
Constitution, as well as the constitutional provisions on social justice, the speedy disposition of cases, the republican
form of government, the integrity and independence of the judiciary, and the supremacy of civilian authority over the
military,

When the matter was elevated to this Court by way of a Petition for certiorari, prohibition and mandamus, the Court
decided that a ruling on the constitutional issues raised was not necessary. With the view that practical and
procedural difficulties will result from the transfer sought, this Court resolved to dismiss the Petition for lack of merit.

In Animas v. The Minister of National Defense, a military officer and several civilians were charged with murder
34

alleged to have been committed sometime in November, 1971. All of the said accused were recommended for
prosecution before a military tribunal. in the course of the proceedings, the said accused went to this Court on a
Petition for certiorari and challenged the jurisdiction of the military tribunal over their case. The petitioners contended
that General Order No. 59 upon which the jurisdiction of the military tribunal is anchored refers only to the crime of
illegal possession of firearms and explosives in relation to other crimes committed with a political complexion. They
stressed that the alleged murder was devoid of any political complexion.

This Court, speaking through Mr. Justice Hugo E. Gutierrez, Jr., ordered the transfer of the criminal proceedings to
the civil courts after noting that with martial law having been lifted in the country in 1981, all cases pending before the
military tribunals should, as a general rule, be transferred to the civil courts. The Court was also of the view that the
crime alleged to have been committed did not have any political complexion. We quote the pertinent portions of the
Decision of the Court, to wit —

Inspite or because of the ambiguous nature of ... civilian takeover of jurisdiction was concerned and
notwithstanding the shilly-shallying and vacillation characteristic of its implementation, this Court
relied on the enunciated policy of normalization in upholding the primacy of civil courts. This policy
meant that as many cases as possible involving civilians being tried by military tribunals as could
be transferred to civil courts should be turned over immediately. In case of doubt, the presumption
was in favor of civil courts always trying civilian accused.

xxx xxx xxx

The crime for which the petitioners were charged was committed ... long before the proclamation of
martial law. ... Now that it is already late 1986, and martial law is a thing of the past, hopefully never
more to return, there is no more reason why a murder committed in 1971 should still be retained, at
this time, by a military tribunal.

We agree with the dissenting views of then Justice, now Chief Justice Claudio Teehankee and Madame Justice
35

Cecilia Munoz Palma in Aquino, Jr. in so far as they hold that military commissions or tribunals have no jurisdiction
36

to try civilians for alleged offenses when the civil courts are open and functioning.
Due process of law demands that in all criminal prosecutions (where the accused stands to lose either his life or his
liberty), the accused shall be entitled to, among others, a trial. The trial contemplated by the due process clause of
37

the Constitution, in relation to the Charter as a whole, is a trial by judicial process, not by executive or military
process. Military commissions or tribunals, by whatever name they are called, are not courts within the Philippine
judicial system. As explained by Justice Teehankee in his separate dissenting opinion-

... Civilians like (the) petitioner placed on trial for civil offenses under general law are entitled to trial
by judicial process, not by executive or military process.

Judicial power is vested by the Constitution exclusively in the Supreme Court and in such inferior
courts as are duly established by law. Judicial power exists only in the courts, which have
"exclusive power to hear and determine those matters which affect the life or liberty or property of a
citizen.38

Since we are not enemy-occupied territory nor are we under a military government and even on the
premise that martial law continues in force, the military tribunals cannot try and exercise jurisdiction
over civilians for civil offenses committed by them which are properly cognizable by the civil courts
that have remained open and have been regularly functioning. ... 39

And in Toth v. Quarles, the U.S. Supreme Court furtherstressed that the assertion of military
40

authority over civilians cannot rest on the President's power as Commander-in-Chief or on any
theory of martial law.

xxx xxx xxx

The U.S. Supreme Court aptly pointed out ... , in ruling that discharged army veterans (estimated to
number more than 22.5 million) could not be rendered "helpless before some latter-day revival of
old military charges" and subjected to military trials for offenses committed while they were in the
military service prior to their discharge, that "the presiding officer at a court martial is not a judge
whose objectivity and independence are protected by tenure and undiminished salary and nurtured
by the judicial tradition, but is a military law officer. Substantially different rules of evidence and
procedure apply in military trials. Apart from these differences, the suggestion of the possibility of
influence on the actions of the court martial by the officer who convenes it, selects its members and
the counsel on both sides, and who usually has direct command authority over its members is a
pervasive one in military law, despite strenuous efforts to eliminate the danger."

The late Justice Black ... added that (A) Court-Martial is not yet an independent instrument of
justice but remains to a significant degree a specialized part of the over-all mechanism by which
military discipline is preserved," and that ex-servicemen should be given "the benefits of a civilian
court trial when they are actually civilians ... Free countries of the world have tried to restrict military
tribunals to the narrowest jurisdiction deemed absolutely essential to maintaining discipline among
troops in active service.

Moreover, military tribunals pertain to the Executive Department of the Government and are simply instrumentalities
of the executive power, provided by the legislature for the President as Commander-in-Chief to aid him in properly
commanding the army and navy and enforcing discipline therein, and utilized under his orders or those of his
authorized military representatives. Following the principle of separation of powers underlying the existing
41

constitutional organization of the Government of the Philippines, the power and the duty of interpreting the laws as
when an individual should be considered to have violated the law) is primarily a function of the judiciary. It is not,
42

and it cannot be the function of the Executive Department, through the military authorities. And as long as the civil
courts in the land remain open and are regularly functioning, as they do so today and as they did during the period of
martial law in the country, military tribunals cannot try and exercise jurisdiction over civilians for offenses committed
by them and which are properly cognizable by the civil courts. To have it otherwise would be a violation of the
43

constitutional right to due process of the civilian concerned.

In addition to this pronouncement, We take note of the observation made by the Solicitor General to the effect that
the death penalty imposed upon the petitioners by the respondent Military Commission No. 34 appears to have been
rendered too hastily to the prejudice to the petitioners, and in complete disregard of their constitutional right to adduce
evidence on their behalf. We quote the pertinent portions of the Manifestation submitted by the Solicitor General, to
wit —

Prior to the session of December 4, 1984, when the respondent Commission rendered its
sentence, petitioners have requested the prosecution to provide them with copies of the complete
record of trial, including the evidences presented against them, but the prosecution dillydallied and
failed to provide them with the document requested. According to petitioners, they needed the
documents to adequately prepare for their defense.

But a few days before December 4, 1984 the prosecution suddenly furnished them with certain
transcripts of the proceedings which were not complete. Petitioner Othoniel Jimenez was
scheduled to start with the presentation of his evidence on said date and he requested that his first
witness be served with subpoena. The other petitioners, as agreed upon, were to present their
evidence after the first one, Othoniel Jimenez, has finished presenting his evidence. But on that
fateful day, December 4, 1984, the witness requested to be served with subpoena was not around,
because as shown by the records, he was not even served with the requested subpoena. But in
spite of that, respondent Military Commission proceeded to ask each one of the petitioners if they
are ready to present their evidence.

Despite their explanation that Othoniel Jimenez cannot proceed because the prosecution, which
performs the duties and functions of clerk of court, failed to subpoena his witness, and that the
 other petitioners were not ready because it was not yet their turn to do so, the Commission abruptly
decided that petitioners are deemed to have waived the presentation of evidence in their behalf,
and considered the case submitted for resolution.

After a recess of only twenty-five (25) minutes, the session was resumed and the Commission
rendered its sentence finding petitioners guilty of all the charges against them and imposing upon
them the penalty of death by electrocution. 44

Thus, even assuming arguendo that the respondent Military Commission No. 34 does have the jurisdiction to try the
petitioners, the Commission should be deemed ousted of its jurisdiction when, as observed by the Solicitor General,
the said tribunal acted in disregard of the constitutional rights of the accused. Indeed, it is well-settled that once a
deprivation of a constitutional right is shown to exist, the tribunal that rendered the judgment in question is deemed
ousted of jurisdiction.45

Moreover, We find that Proclamation No. 2045 (dated January 17, 1981) officially lifting martial law in the Philippines
and abolishing all military tribunals created pursuant to the national emergency effectively divests the respondent
Military Commission No. 34 (and all military tribunals for that matter) of its supposed authority to try civilians, including
the herein petitioners.

The main opinion in Aquino, Jr. is premised on the theory that military tribunals have the jurisdiction to try civilians as
long as the period of national emergency (brought about by public disorder and similar causes) lasts. Undoubtedly,
Proclamation No. 2045 is an acknowledgment on the part of the Executive Department of the Government that the
national emergency no longer exists. Thereafter, following the theory relied upon in the main opinion, all military
tribunals should henceforth be considered functus officio in their relationship with civilians.

By virtue of the proclamation itself, all cases against civilians pending therein should eventually be transferred to the
civil courts for proper disposition. The principle of double jeopardy would not be an obstacle to such transfer because
an indispensable element of double jeopardy is that the first tribunal which tried the case must be of competent
jurisdiction. As discussed earlier, the military tribunals are devoid of the required jurisdiction.
46

We take this opportunity to reiterate that as long as the civil courts in the land are open and functioning, military
tribunals cannot try and exercise jurisdiction over civilians for offenses committed by them. Whether or not martial law
has been proclaimed throughout the country or over a part thereof is of no moment. The imprimatur for this
observation is found in Section 18, Article VII of the 1987 Constitution, to wit —

A state of martial law, does not suspend the operation of the Constitution, nor supplant the
functioning of the civil courts or legislative assemblies, nor authorize the conferment of jurisdiction
on military courts and agencies over civilians where civil courts are able to function, nor
automatically suspend the privilege of the writ. (Emphasis supplied.)

This provision in the fundamental law is just one of the many steps taken by the Filipino people towards the
restoration of the vital role of the judiciary in a free country-that of the guardian of the Constitution and the dispenser
of justice without fear or favor.

No longer should military tribunals or commissions exercise jurisdiction over civilians for offenses allegedly committed
by them when the civil courts are open and functioning. No longer may the exclusive judicial power of the civil courts,
beginning with the Supreme Court down to the lower courts be appropriate by any military body or tribunal, or even
47

diluted under the guise of a state of martial law, national security and other similar labels.

At this juncture, We find it appropriate to quote a few paragraphs from the ponencia of Mr. Justice Gutierrez inAnimas
v. The Minister of National Defense , viz —
48

The jurisdiction given to military tribunals over common crimes and civilian(s) accused at a time
when all civil courts were fully operational and freely functioning constitutes one of the saddest
chapters in the history of the Philippine judiciary.

The downgrading of judicial prestige caused by the glorification of military tribunals, the instability
and insecurity felt by many members of the judiciary due to various causes both real and imagined,
and the many judicial problems spawned by extended authoritarian rule which effectively eroded
judicial independence and self-respect will require plenty of time and determined efforts to cure.

The immediate return to civil courts of all cases which properly belong to them is only a beginning.

And in his separate concurring opinion in Animas, Mr. Chief Justice Teehankee had this to say —

I only wish to add that the great significance of our judgment in this case is that we reestablish and
reinstate the fundamental principle based on civilian supremacy over the military as urged in vain in
my dissent in the case of Benigno S. Aquino, Jr. vs. Military Commission No. 2, et al. that "Civilians
placed on trial for offenses under general law are entitled to trial by judicial process, not by
executive or military process. Judicial power is vested by the Constitution exclusively in the
Supreme Court and in such inferior courts as are duly established by law. Military commissions, or
tribunals, are not courts and do not form part of the judicial system. Since we are not enemy-
occupied territory nor are we under a military government and even on the premise that martial law
continues in force, the military tribunals cannot try and exercise jurisdiction over civilians for civil
offenses committed by them which are properly cognizable by the civil courts that have remained
open and have been regularly functioning.
 xxx xxx xxx

The terrible consequences of subjecting civilians to trial by military process is best exemplified in
the sham military trial of the martyred former Senator Benigno S. Aquino, Jr., whereby he was
deprived (1) by the summary ex parte investigation by the Chief prosecution staff of the JAGO of
his right to be informed of the charges against him and of his right to counsel as expressly
recognized by Section 20 of the Bill of Rights of the 1973 Constitution; (2) of his vested statutory
right to a preliminary investigation of the subversion charges against him before the proper court of
first instance as required under Section 5 of the Anti-Subversion Act, R.A. 1700 and of the other
charges against him before the proper civilian officials and to confront and cross-examine the
witnesses against him under R.A. 5180; (3) of the right to be tried by judicial process, by the regular
independent courts of justice, with all the specific constitutional, statutory and procedural
safeguards embodied in the judicial process and presided over not by military officers; and (4) of
the right to appeal to the regular appellate courts and to judicial review by this Court in the event of
conviction and imposition of a sentence of death or life imprisonment which the charges carry and
wherein a qualified majority of ten (10) votes for affirmance of the death penalty is required. In fine,
he was denied due process of law as guaranteed under the Bill of Rights which further ordains that
"No person shall be held to answer for a criminal offense without due process of law."Worse, his
trial by a military tribunal created by the then President and composed of the said President's own
military subordinates without tenure and of non-lawyers (except the law member) and of whose
decision the President is the final reviewing authority as Commander-in-Chief of the Armed Forces
deprived him of a basic constitutional right to be heard by a fair and impartial tribunal, considering
that the said President had publicly declared the evidence against petitioner "not only strong (but)
overwhelming" and thereby prejudged and predetermined his guilt, and none of his military
subordinates could be expected to go against their Commander-in-Chief's declaration.

Hopefully, an these aberrations now belong to the dead and nightmarish past, when time-tested
doctrines, to borrow a phrase from the then Chief Justice, "shrivelled in the effulgence of the
overpowering rays of martial rule. 49

As stated earlier, We have been asked to re-examine a previous ruling of the Court with a view towards abandoning
or modifying the same. We do so now but not without careful reflection and deliberation on Our part. Certainly, the
rule of stare decisis is entitled to respect because stability in jurisprudence is desirable. Nonetheless, reverence for
precedent, simply as precedent, cannot prevail when constitutionalism and the public interest demand otherwise.
Thus, a doctrine which should be abandoned or modified should be abandoned or modified accordingly. After all,
more important than anything else is that this Court should be right. 50

Accordingly, it is Our considered opinion, and We so hold, that a military commission or tribunal cannot try and
exercise jurisdiction, even during the period of martial law, over civilians for offenses allegedly committed by them as
long as the civil courts are open and functioning, and that any judgment rendered by such body relating to a civilian is
null and void for lack of jurisdiction on the part of the military tribunal concerned. For the same reasons, Our
51

pronouncement in Aquino, Jr. v. Military Commission No. 2 and all decided cases affirming the same, in so far as
52

they are inconsistent with this pronouncement, should be deemed abandoned.

WHEREFORE, in view of the foregoing, the Petitions for habeas corpus are DISMISSED for having become moot
and academic. The Petitions for certiorari and prohibition are hereby GRANTED. The creation of the respondent
Military Commission No. 34 to try civilians like the petitioners is hereby declared unconstitutional and all its
proceedings are deemed null and void. The temporary restraining order issued against the respondents enjoining
them from executing the Decision of the respondent Military Commission No. 34 is hereby made permanent and the
said respondents are permanently prohibited from further pursuing Criminal Case No. MC-34-1 against the
petitioners. The sentence rendered by the respondent Military Commission No. 34 imposing the death penalty on the
petitioners is hereby vacated for being null and void, and all the items or properties taken from the petitioners in
relation to the said criminal case should be returned to them immediately. No pronouncement as to costs.

SO ORDERED.

Yap, Fernando, Narvasa, Melencio-Herrera, Gutierrez, Jr., Cruz, Paras, Feliciano, Bidin, Sarmiento and Cortes, JJ.,
concur.

Padilla, J., took no part.

Separate Opinions

TEEHANKEE, C. J., concurring:

I hail the Court's unanimous judgment 1 vacating and setting aside the penalty of death by electrocution summarily imposed by
respondent military commission on December 4, 1984 upon the principal petitioners Eduardo Olaguer, Othoniel Jimenez, Reynaldo Maclang
and Ester Misa Jimenez for lack of jurisdiction of military commissions over civilians, and expressly overturning and rejecting the contrary
1975 ruling in Benigno S. Aquino, Jr. vs. Military Commission No. 22 and subsequent cases, issued during the darkest chapter of our history
when time-tested doctrines guaranteeing a person's right to due process in preservation of his life and liberty, shrivelled in the effulgence of
the overpowering rays of martial rule." We uphold once again the supremacy of the Constitution and of the Rule of Law and of civilian
authority over the military.
1. As petitioners submitted in apparent futility at the time in view of the Aquino ruling, they were denied from the very
beginning elementary due process which guarantees their constitutional right to an impartial trial because,
prescinding from civilians' right to trial by judicial, not military, process, the President (Commander-in-Chief) and the
Defense Minister who were the supposed targets of petitioners' conspiracy, were also the very authorities who
personally approved the filing of the charges against them and referred them to the respondent commission for trial,
and as reviewing authorities, had the power to reverse or modify every judgment of respondent commission, even a
judgment of acquittal; furthermore, the President and the Defense Minister had the power directly or indirectly to
substitute at pleasure the members of respondent commission, assign them as subordinates to more hazardous or
difficult duties and to promote or prevent their promotion to higher rank. They could hardly be expected to go against
their superiors' declaration of the "overwhelming" evidence against the accused. As stressed in my dissent in Aquino:

Petitioner's plea that his trial by a military tribunal created by the President and composed of the
President's own military subordinates without tenure and of non-lawyers (except the law member)
and of whose decision the President is the final reviewing authority as Commander-in-Chief of the
Armed Forces deprives him of a basic constitutional right to be heard by a fair and impartial tribunal
considering that the President has publicly declared the evidence against petitioner "not only strong
(but) overwhelming" and in petitioner's view thereby prejudged and predetermined his guilt merits
consideration.

In Petitioner's view, he has been publicly indicted and his guilt prejudged by the President when in
a nationwide press conference on August 24, 1971 following the Plaza Miranda bombing three
days earlier of the Liberal Party proclamation meeting, the President charged him and disclosed
evidence in the possession of the government linking petitioner to some illegal and subversive
activities, in 1965-1971, which are virtually the same charges now filed against him before
respondent military commission, and declared the evidence against petitioner "not only strong (but)
over- whelming The President explained on the same occasion that in not acting against petitioner,
he had erred on the side of generosity as wen as of liberality hoping that good sense may someday
catch up with him" since petitioner was "the only opposition senator left in the Senate" after the
[Plaza Miranda] bombing, but that he did not know "what will happen later on, because, of course,
the military insist that we must not make any exceptions to the general rule.

While one may agree that the President as Commander-in-Chief would discharge his duty as the
final reviewing authority with fealty to his oath "to do justice to every man," particularly because of
his renowned legal sagacity and experience, still under the enviromental facts where the military
appears to have been impressed by the President's appraisal of the evidence and without casting
any reflection on the integrity of the members of respondent military commission which petitioner
himself acknowledges, the doctrine consistently held by the Court that "elementary due process
requires a hearing before an impartial and disinterested tribunal" and that "An suitors ... are entitled
to nothing short of the cold neutrality of an independent, wholly free, disinterested and impartial
tribunal" cans for application in the present case.3

The then President had himself acknowledged the indispensability of the judicial process, stating in the same
nationwide press conference of August 24, 1971 that:

I am a lawyer, my training is oriented towards the protection of the Bin of Rights, because if you will
remember, I have repeatedly said, that if it were not for the Bill of Rights I would not be here now. If
it were not for the judicial process, I would not be President of the Republic of the Philippines. ...
4

Yet, he denied to Aquino the very self-same right to due process and judicial process.

2. The total unacceptability of military trials for civilians may be appreciated from the fate and ordeal of petitioners.
Since their arrest on December 24, 1979, they had been continuously confined for over five years (without physical
access to lawyers, witnesses and court records in the case of Eduardo Olaguer ) and spent seven Christmases in
5

confinement, before their provisional release on January 23, 1986 (save petitioner Ester Misa Jimenez whose
provisional release was earlier granted in January, 1981). The extreme difficulties encountered by civilian counsels in
defending them before respondent military commission can best be seen from their written motions/manifestations of
withdrawal as such counsel. Former Senator Lorenzo M. Tanada and Atty. Wigberto Tanada had previously
withdrawn as civilian counsel for petitioner Eduardo Olaguer.

Civilian counsel Sabino Padilla, Jr. for petitioner Othoniel Jimenez was likewise constrained to file on January 10,
1983 his Motion to Withdraw Appearance, stating the following:

1. In the hearing of March 2, 1982, the prosecution moved for the discharge of the accused Carlos
Lazaro and Teodorico Diesmos The prosecution alleged that the requirements of Sec. 9, Rule 119
of the Rules of Court had been complied with. Considering that trial had commenced one year and
a half before the prosecution made this move, the defense vehemently objected. This Military
Commission ruled:

LAW MEMBER:

Please, just listen. We are of the view that this Commission has no authority to
discharge the accused Carlos Lazaro and accused Teodorico Diesmos from the
Charge Sheet to be utilized as state witnesses. In the same manner that the
herein accused have been included in the Charge Sheet upon the approval of the
appointing authority, the exclusion or discharge of any of them should likewise
carry the approval of the appointing authority. Therefore, the matter of the
discharge of the said two (2) accused should be addressed to the appointing
authority for his consideration. (Tsn, March 2, 1982, pp. 42-43)
 xxx xxx xxx

3. At the start of the hearing last December 13, 1982, the prosecution informed this Military
Commission and the defense that on December 11, 1982 (a Saturday), the Minister of National
Defense had ordered the discharge of the accused Lazaro and Diesmos and that the prosecution
would be presenting these accused in that hearing.

In view of the vital implications of such a discharge on the conduct of the defense of the other
accused, all three counsel of choice immediately moved that the hearing be postponed or that
witnesses other than Lazaro and Diesmos be presented in that hearing, to allow counsel to take to
the Supreme Court the ruling of the Minister of National Defense as well as this Military
Commission's abdication of a trial court's jurisdiction to grant or deny a prosecution motion to
discharge an accused.

To the complete surprise and dismay of defense counsel of choice, the prosecution insisted on
presenting Lazaro and Diesmos before the other accused could take to the Supreme Court the
legality and propriety of their discharge as accused to be state witnesses. Counsel of choice had no
alternative but to withdraw from the proceedings that day.

Subsequent events disclosed why Lazaro and Diesmos had to be presented as witnesses on that
day, December 13, 1982. They were to recite, as indeed they recited, a newly fabricated and
fantastic story linking (three years after the fact) the present accused with the accused in the We
Forum case, who were being arraigned that afternoon in the Court of First Instance of Quezon City.
Pursuant to this scenario, all the newspapers the following day carried the same release that the
accused herein and those in the We Forum were members of one conspiracy.

It has thus become abundantly clear to the undersigned counsel that under the present
circumstances any further participation on his part in the proceedings before this Military
Commission would not only be futile but also bring disgrace and dishonor to himself and to the
legal profession .6

Civilian counsel Joaquin L. Misa for his close kin, Ester Misa Jimenez, after prefatory remarks that he "had never
appeared before in a military court land] entertained a degree of confidence in the quality of military justice land] was
reared with a healthy regard for military officers" stated in his written manifestation dated January 10, 1983 that:

... many events in the course of these proceedings have eroded the confidence of the undersigned
in ultimately obtaining justice from this Honorable Commission.

The last straws so to speak, were the events of December 13, 1982. Three hearings of this case
prior to the December 13 hearing were cancelled or postponed upon motion of the Prosecution on
the shallow and never explained excuse that their next supposed witness, Col. Beroya, was not
available.On December 13, the Prosecution read into the record an alleged resolution on the state
witness question by the Minister of National Defense (Note that up to this writing the undersigned
has not been served with a copy of that alleged resolution perhaps because it was written on
stationery marked CONFIDENTIAL). After the supposed resolution by the Minister of National
Defense was read into the record, the undersigned moved for a postponement of even one week to
afford the undersigned the opportunity to either ask for a reconsideration by the Minister or raise
the matter to the Supreme Court on Certiorari. The Prosecution's objection was so vehement that it
was incomprehensible to the undersigned why a simple motion could evoke such a violent
reaction from the Prosecution (Cols. Ridao and Disierto seemed to be outdoing each other in the
decibels of their objections). This was especially baffling to the undersigned because theretofore in
several instances when the undersigned inquired if there had been a ruling by "the higher
authorities" on the question of the state witnesses, The Prosecution always assured the
undersigned and the other civilian defense counsel that if a ruling is made, and it is adverse to the
defense we will be given enough time to deal with the problem.

As the Commission well knows the defense motion for postponement was denied and two (2)
accused who were released from the case testified in the absence of all the civilian defense
counsel. Only upon reading the newspaper the next day was the indecent haste of the Prosecution
to present the two (2) witnesses explained. The Prosecution, and the Commission by going along
with the Prosecution, apparently wanted to time the newly fabricated testimony of Diesmos and
Lazaro linking this case with the We Forum case the arraignment of which was held on December
13, in the afternoon.

The orchestration and synchronization of such testimony in this case (at the expense of denying
the accused recourse against the resolution of the Minister) with the arraignment in the We Forum
case taken together with the Identically worded newspaper stories appearing in all the dailies now
in publication has made it clear to the undersigned that this case will not be decided on its merits
but on the convenience that it affords to the pursuit of the government's objectives. 7

Respondent military commission furthermore on December 4, 1984 summarily called all proceedings to a halt, denied
any continuation of the case and abruptly declared the case submitted without any evidence for the defense,
notwithstanding that it had not subpoenaed the first defense witness for petitioner Othoniel Jimenez as duly
requested, while the other petitioners were not expected to be ready with their witnesses until later hearings; and
after a mere 25-minute recess, rendered its "judgment" imposing the death penalty by electrocution on all the above-
named petitioners. No objection to this bizzarre procedure came from military counsels who were assigned to
represent petitioners after their civilian counsels' withdrawal, for as the Solicitor General now manifested, "the records
show, they more often than not practically acted for the prosecution rather than as defense counsels. " a 7
3. I hail the Court's reinstatement of the settled ruling in this jurisdiction that deprivation and disregard of the
constitutional rights of an accused ousts the court or tribunal of jurisdiction, which had been greatly eroded. This
reenforces the 1987 Constitution's reaffirmation of the role of the Supreme Court as the guarantor of the constitutional
and human rights of all persons within its jurisdiction with the function of seeing to it that these rights are respected
and enforced. As the Court stressed in Gumabon vs. Director of Bureau of Prisons "Once a deprivation of a
8

constitutional right is shown to exist, the court that rendered the judgment is deemed ousted of jurisdiction and
habeas corpus is the appropriate remedy to assail the legality of the detention. So accused persons who are
9

deprived of their constitutional right of a speedy trial should be set at liberty. 10 Likewise persons detained indefinitely without
charges so much so that the detention becomes punitive and not merely preventive in character are entitled to regain their freedom, for the
spirit and the letter of our Constitution negates as contrary to the precepts of human rights and freedom that a person be detained indefinitely
without any charges.

4. Indeed, Art. VII, section 18 of the 1987 Constitution, drawing upon the sad lessons of the excessive concentration
of powers in the Chief Executive in the previous Constitutions which enabled him to exercise absolute power to the
point of taking over the entire government, has provided for measures to curtail such abuse of executive power. The
late former Chief Justice Roberto Concepcion, pillar and champion of the Rule of Law, chairman of the 1986
Constitutional Commission's Judiciary Committee and Chief Justice of the Supreme Court at the time of the
imposition of martial law in 1972, summarized these salutary changes, in his last public address, as follows:

1. Under the New Constitution, martial law does not suspend the operation of the New Constitution
or supplant the functioning of the civil courts or legislative assemblies. Neither does it authorize the
conferment of jurisdiction on military courts and agencies over civilians when civil courts are able to
function.

2. Martial law does not supplant the civil courts when the same are able to function.

3. Martial law does not automatically suspend the privilege of the writ of habeas corpus.

4. Martial law may not be declared upon the ground of imminent danger of invasion or rebellion. in
the event of such danger, the President may call the armed forces to prevent or suppress the
danger, without declaring martial law or suspending the privilege of the will it.

5. Within forty-eight (48) hours after the proclamation of martial law, the President shall report the
same to Congress in person or in writing.

6. Congress may, by a majority vote of all its members, revoke the proclamation of martial law or
the suspension of the privilege of the writ, which action of Congress may not be set aside by the
President.

7. The proclamation of martial law or suspension or the privilege of the writ by the President, may
not exceed sixty (60) days without the concurrence of Congress.

8. The Supreme Court has been expressly authorized to "review in an appropriate proceeding filed
by any citizen the sufficiency of the factual basis of the proclamation of martial law or of the
suspension of the privilege of the writ or the extension thereof, and must promulgate its decision
thereon within thirty (30) days from its filing."

9. Under the "1973 Constitution," as amended, at least ten (10) votes of the members of the
Supreme Court were necessary to invalidate or declare a law unconstitutional, regardless of the
number of vacancies in the Supreme Court or the number of its members who participated in the
deliberations on the issues involved in the case, and voted thereon. Under the New Constitution a
simple majority of the members who took part in such deliberation and cast their votes thereon is
sufficient.

10. In the case of suspension of the privilege of the writ, the same does not apply to persons who
have not been placed under the custody of a court of justice.

11. In case of suspension of the privilege of the writ, the person detained must be released unless
judicially charged within three (3) days. 11

These substantial checks by the legislature as well as by the judiciary on the Chief Executive's power to proclaim martial law or to suspend
the privilege of the writ of habeas corpus were meant to forestall a recurrence of the long and horrible nightmare of the past regime when one
single clause, the Commander-in-Chief clause of the Constitution then in force that authorized the President to declare martial law was held
to have nullified the entire Constitution and the Bill of Rights and justified the then President's taking over "absolute command" of the nation
and that the people could "only trust and pray that, giving him their own loyalty with utmost patriotism, (he) will not fail them." Thus, persons
held under Presidential Commitment or Detention Orders were detained indefinitely without charges, yet had no recourse to the courts. Even
if they were acquitted in court, the military would not release them until and unless the then President lifted the preventive detention
order. 12 It was a long and horrible nightmare when our people's rights, freedoms and liberties were sacrificed at the altar of "national
security" even though it involved nothing more than the President-dictator's perpetuation in office and the security of his relatives and some
officials in high positions and their protection from public accountability of their acts of venality and deception in government, many of which
were of public knowledge.

Draconian decrees were issued whereby many were locked up indefinitely for "rumor-mongering," "unlawful use of
means of publication and unlawful utterances, and alarms and scandals." While the people for the most part suffered
in silence and waited, others never gave up the struggle for truth, freedom, justice and democracy, a common
commitment which is what makes a people a nation instead of a gathering of self-seeking individuals. The national
will was systematically undermined to the point, of national mockery, that the day of imposition of martial law was
proclaimed as "National Thanksgiving Day." As the Court observed through Mr. Justice Gutierrez in Animas vs.
Minister of National Defense, 13 the era of martial law when military tribunals, against all tenets of due process, were conferred
jurisdiction over common crimes and civilians, their glorification with the downgrading of judicial prestige and "the many judicial problems
spawned by extended authoritarian rule which effectively eroded judicial independence and self-respect will require plenty of time and
determined efforts to cure."

5. The treacherous assassination on August 21, 1983 of the martyred Benigno S. Aquino, Jr., within minutes of his
arrival at the Manila International Airport, although ringed with 2,000 soldiers, shocked and outraged the conscience
of the nation. After three years of exile following almost eight years of detention since martial law, Aquino, although
facing the military commission's predetermined death sentence, supra, yet refused proper travel documents, was
returning home "to strive for genuine national reconciliation founded on justice." The late Senator Jose W. Diokno
who passed away this year was among the first victims of the martial law coup d'etat to be locked up with Senator
Aquino. In March, 1973, all of their personal effects, including their eyeglasses were ominously returned to their
homes. Their wives' visitation privileges were suspended and they lost all contact for over a month. It turned out that
Aquino had smuggled out of his cell a written statement critical of the martial law regime. In swift retribution, both of
them were flown out blindfolded to the army camp at Fort Laur in Nueva Ecija and kept in solitary confinement in dark
boarded cells with hardly any ventilation. When their persons were produced before the Court on habeas corpus
proceedings, they were a pitiable sight having lost about 30 to 40 lbs. in weight. Senator Diokno was to be released in
September, 1974 after almost two years of detention. No charges of any kind were ever filed against him. His only
fault was that he was a possible rival for the presidency.

Horacio Morales, Jr., 1977 TOYM awardee for government service and then executive vice-president of the
Development Academy of the Philippines, was among the hard-working government functionaries who had been
radicalized and gave up their government positions. Morales went underground on the night he was supposed to
receive his TOYM award, declaring that "(F)or almost ten years, I have been an official in the reactionary government,
serviced the Marcos dictatorship and all that it stands for, serving a ruling system that has brought so much suffering
and misery to the broad masses of the Filipino people. (1) refuse to take any more part of this. I have had enough of
this regime's tyranny and treachery, greed and brutality, exploitation and oppression of the people," and "(I)n rejecting
my position and part in the reactionary government, I am glad to be finally free of being a servant of foreign and local
vested interest. I am happy to be fighting side by side with the people." He was apprehended in 1982 and was
charged with the capital crime of subversion, until he was freed in March, 1986 after President Corazon C. Aquino's
assumption of office, together with other political prisoners and detainees and prisoners of conscience in fulfillment of
her campaign pledge.

Countless others forfeited their lives and stand as witnesses to the tyranny and repression of the past regime. Driven
by their dreams to free our motherland from poverty, oppression, iniquity and injustice, many of our youthful leaders
were to make the supreme sacrifice. To mention a few: U.P. Collegian editor Abraham Sarmiento, Jr., worthy son of
an illustrious member of the Court pricked the conscience of many as he asked on the front page of the college
paper: Sino ang kikibo kung hindi tayo kikibo? Sino ang kikilos kung hindi tayo kikilos? Kung hindi ngayon, kailan
pa? 13a He was locked up in the military camp and released only when he was near death from a severe attack of asthma, to which he
succumbed. Another TOYM awardee, Edgar Jopson, an outstanding honor student at the Ateneo University, instinctively pinpointed the gut
issue in 1971-he pressed for a "non-partisan Constitutional Convention;" and demanded that the then president-soon-to-turn dictator "put
down in writing" that he was not going to manipulate the Constitution to remove his disqualification to run for a third term or perpetuate
himself in office and was called down as "son of a grocer." When as he feared, martial law was declared, Jopson went underground to
continue the struggle and was to be waylaid and killed at the age of 34 by 21 military troops as the reported head of the rebel movement in
Mindanao. 14 Another activist honor student leader, Emmanuel Yap, son of another eminent member of the Court, was to disappear on
Valentine's Day in 1976 at the young age of 24, reportedly picked up by military agents in front of Channel 7 in Quezon City, and never to be
seen again.

One of our most promising young leaders, Evelio B. Javier, 43, unarmed, governor of the province of Antique at 28, a
Harvard-trained lawyer, was mercilessly gunned down with impunity in broad daylight at 10 a.m. in front of the
provincial capitol building by six mad-dog killers who riddled his body with 24 bullets fired from M-16 armalite rifles
(the standard heavy automatic weapon of our military). He was just taking a breather and stretching his legs from the
tedious but tense proceedings of the canvassing of the returns of the presidential snap election in the capitol building.
This was to be the last straw and the bloodless EDSA revolt was soon to unfold. The Court in Javier vs.
Comelec, 15 through Mr. Justice Cruz, "said these meager words in tribute to a fallen hero who was struck down in the vigor of his youth
because he dared to speak against tyranny. Where many kept a meekly silence for fear of retaliation, and still others feigned and fawned in
hopes of safety and even reward, he chose to fight. He was not afraid. Money did not tempt him. Threats did not daunt him. Power did not
awe him. His was a singular and all-exacting obsession: the return of freedom to his country. And though he fought not in the barricades of
war amid the sound and smoke of shot and shell, he was a soldier nonetheless, fighting valiantly for the liberties of his people against the
enemies of his race, unfortunately of his race too, who would impose upon the land a perpetual night of dark enslavement. He did not see the
breaking of the dawn, sad to say, but in a very real sense Evelio B. Javier made that dawn draw nearer because he was, like Saul and
Jonathan, "swifter than eagles and stronger than lions." "

6. The greatest threat to freedom is the shortness of human memory. We must note here the unforgettable and noble
sacrifices of the countless brave and patriotic men and women who feel as martyrs and victims during the long dark
years of the deposed regime. In vacating the death sentence imposed on the petitioners who survived the holocaust,,
we render them simple justice and we redeem and honor the memory of those who selflessly offered their lives for
the restoration of truth, decency, justice and freedom in our beloved land. Due recognition must be given also that
85% of the Armed Forces of the Philippines readily joined the EDSA revolt and redeemed the honor of the military by
recognizing civilian supremacy and the supreme mandate given by the people to the true winners of the elections.
Witness the testimony of Gen. Fidel V. Ramos now chief of the new Armed Forces of the Philippines, as he
recounted early last year his breakaway from the past regime:

The Armed Forces of the Philippines had ceased to be the real armed forces supposed to be the
defender of the people. There had developed an elite group within the AFP . . . and the AFP no
longer represented its rank and file and officers corps.

Mr. Marcos was no longer the same President that we used to know, to whom we pledged our
loyalty and dedicated our services. He was no longer the able and capable commander-in-chief
whom we used to count on. He had already put his personal interest, his family interest, above the
interest of the people.

The small people in the AFP and the Integrated National Police were now being pushed around by
powerful military officers motivated by very selfish desires and intentions. Many of those officers
were now practically the servants of powerful politicians. 16
The present PC/INP Chief, Major General Renato de Vina, on the 85th anniversary of the Philippine Constabulary last August 8th publicly
stated that "for the perfidy of a few, we owe the whole nation a sincere apology and a commitment to intensively pursue our new program of
reforms, to weed out the misfits who bring discredit to our organization," and solemnly pledged that "now and forever, your PC/INP stands
ready and committed to fight lawlessness, injustice and oppression, as well as the sinister forces that continue to threaten our stability and
progress as a free country. We make this solemn pledge here and now, before our entire nation, before our Commander-in-Chief who is the
personification of our national honor and unity, before God who has always blessed our people ... — to consecrate our lives to the protection
and preservation of our national Ideals-of unity, peace, justice and democracy."

7. The people by their overwhelming ratification of the 1987 Constitution at the plebiscite held last February 2nd
unequivocally reaffirmed their collective act of installing our new government following the bloodless EDSA revolt.
They re fused to be deterred by the last-ditch efforts of the forces of the Right and of the Left to derail our return to
fun normalcy and the restoration of our democratic institutions. They proclaimed a renewed and vigorous faith in the
democratic process. Among the great changes introduced in the 1987 Constitution to harness the Presidential power
to impose martial law and strengthen the system of checks and balances in our government were those made by the
venerable late Chief Justice Roberto Concepcion and his fellow members of the 1986 Constitutional Commission,
hereinabove enumerated. 17 With their work completed, and the 1987 Constitution decisively approved and ratified by the people, Chief
Justice Concepcion could then claim his eternal rest on last May 3rd and leave us this legacy and caueat: "One thing," he said, "I have
learned during the martial law regime, and that is-that a Constitution is as good only as it is enforced. ... the Primacy of the Law depends
ultimately upon the people; upon their awareness of this fact and their willingness and readiness to assume the corresponding responsibility,
in short, upon their political maturity." 18

Separate Opinions

TEEHANKEE, C. J., concurring:

I hail the Court's unanimous judgment 1 vacating and setting aside the penalty of death by electrocution summarily imposed by
respondent military commission on December 4, 1984 upon the principal petitioners Eduardo Olaguer, Othoniel Jimenez, Reynaldo Maclang
and Ester Misa Jimenez for lack of jurisdiction of military commissions over civilians, and expressly overturning and rejecting the contrary
1975 ruling in Benigno S. Aquino, Jr. vs. Military Commission No. 22 and subsequent cases, issued during the darkest chapter of our history
when time-tested doctrines guaranteeing a person's right to due process in preservation of his life and liberty, shrivelled in the effulgence of
the overpowering rays of martial rule." We uphold once again the supremacy of the Constitution and of the Rule of Law and of civilian
authority over the military.

1. As petitioners submitted in apparent futility at the time in view of the Aquino ruling, they were denied from the very
beginning elementary due process which guarantees their constitutional right to an impartial trial because,
prescinding from civilians' right to trial by judicial, not military, process, the President (Commander-in-Chief) and the
Defense Minister who were the supposed targets of petitioners' conspiracy, were also the very authorities who
personally approved the filing of the charges against them and referred them to the respondent commission for trial,
and as reviewing authorities, had the power to reverse or modify every judgment of respondent commission, even a
judgment of acquittal; furthermore, the President and the Defense Minister had the power directly or indirectly to
substitute at pleasure the members of respondent commission, assign them as subordinates to more hazardous or
difficult duties and to promote or prevent their promotion to higher rank. They could hardly be expected to go against
their superiors' declaration of the "overwhelming" evidence against the accused. As stressed in my dissent in Aquino:

Petitioner's plea that his trial by a military tribunal created by the President and composed of the
President's own military subordinates without tenure and of non-lawyers (except the law member)
and of whose decision the President is the final reviewing authority as Commander-in-Chief of the
Armed Forces deprives him of a basic constitutional right to be heard by a fair and impartial tribunal
considering that the President has publicly declared the evidence against petitioner "not only strong
(but) overwhelming" and in petitioner's view thereby prejudged and predetermined his guilt merits
consideration.

In Petitioner's view, he has been publicly indicted and his guilt prejudged by the President when in
a nationwide press conference on August 24, 1971 following the Plaza Miranda bombing three
days earlier of the Liberal Party proclamation meeting, the President charged him and disclosed
evidence in the possession of the government linking petitioner to some illegal and subversive
activities, in 1965-1971, which are virtually the same charges now filed against him before
respondent military commission, and declared the evidence against petitioner "not only strong (but)
over- whelming The President explained on the same occasion that in not acting against petitioner,
he had erred on the side of generosity as wen as of liberality hoping that good sense may someday
catch up with him" since petitioner was "the only opposition senator left in the Senate" after the
[Plaza Miranda] bombing, but that he did not know "what will happen later on, because, of course,
the military insist that we must not make any exceptions to the general rule.

While one may agree that the President as Commander-in-Chief would discharge his duty as the
final reviewing authority with fealty to his oath "to do justice to every man," particularly because of
his renowned legal sagacity and experience, still under the enviromental facts where the military
appears to have been impressed by the President's appraisal of the evidence and without casting
any reflection on the integrity of the members of respondent military commission which petitioner
himself acknowledges, the doctrine consistently held by the Court that "elementary due process
requires a hearing before an impartial and disinterested tribunal" and that "An suitors ... are entitled
to nothing short of the cold neutrality of an independent, wholly free, disinterested and impartial
tribunal" cans for application in the present case. 3
The then President had himself acknowledged the indispensability of the judicial process, stating in the same
nationwide press conference of August 24, 1971 that:

I am a lawyer, my training is oriented towards the protection of the Bin of Rights, because if you will
remember, I have repeatedly said, that if it were not for the Bill of Rights I would not be here now. If
it were not for the judicial process, I would not be President of the Republic of the Philippines. . . .
4

Yet, he denied to Aquino the very self-same right to due process and judicial process.

2. The total unacceptability of military trials for civilians may be appreciated from the fate and ordeal of petitioners.
Since their arrest on December 24, 1979, they had been continuously confined for over five years (without physical
access to lawyers, witnesses and court records in the case of Eduardo Olaguer ) and spent seven Christmases in
5

confinement, before their provisional release on January 23, 1986 (save petitioner Ester Misa Jimenez whose
provisional release was earlier granted in January, 1981). The extreme difficulties encountered by civilian counsels in
defending them before respondent military commission can best be seen from their written motions/manifestations of
withdrawal as such counsel. Former Senator Lorenzo M. Tanada and Atty. Wigberto Tanada had previously
withdrawn as civilian counsel for petitioner Eduardo Olaguer.

Civilian counsel Sabino Padilla, Jr. for petitioner Othoniel Jimenez was likewise constrained to file on January 10,
1983 his Motion to Withdraw Appearance, stating the following:

1. In the hearing of March 2, 1982, the prosecution moved for the discharge of the accused Carlos
Lazaro and Teodorico Diesmos The prosecution alleged that the requirements of Sec. 9, Rule 119
of the Rules of Court had been complied with. Considering that trial had commenced one year and
a half before the prosecution made this move, the defense vehemently objected. This Military
Commission ruled:

LAW MEMBER:

Please, just listen. We are of the view that this Commission has no authority to
discharge the accused Carlos Lazaro and accused Teodorico Diesmos from the
Charge Sheet to be utilized as state witnesses. In the same manner that the
herein accused have been included in the Charge Sheet upon the approval of the
appointing authority, the exclusion or discharge of any of them should likewise
carry the approval of the appointing authority. Therefore, the matter of the
discharge of the said two (2) accused should be addressed to the appointing
authority for his consideration. (Tsn, March 2, 1982, pp. 42-43)

xxx xxx xxx

3. At the start of the hearing last December 13, 1982, the prosecution informed this Military
Commission and the defense that on December 11, 1982 (a Saturday), the Minister of National
Defense had ordered the discharge of the accused Lazaro and Diesmos and that the prosecution
would be presenting these accused in that hearing.

In view of the vital implications of such a discharge on the conduct of the defense of the other
accused, all three counsel of choice immediately moved that the hearing be postponed or that
witnesses other than Lazaro and Diesmos be presented in that hearing, to allow counsel to take to
the Supreme Court the ruling of the Minister of National Defense as well as this Military
Commission's abdication of a trial court's jurisdiction to grant or deny a prosecution motion to
discharge an accused.

To the complete surprise and dismay of defense counsel of choice, the prosecution insisted on
presenting Lazaro and Diesmos before the other accused could take to the Supreme Court the
legality and propriety of their discharge as accused to be state witnesses. Counsel of choice had no
alternative but to withdraw from the proceedings that day.

Subsequent events disclosed why Lazaro and Diesmos had to be presented as witnesses on that
day, December 13, 1982. They were to recite, as indeed they recited, a newly fabricated and
fantastic story linking (three years after the fact) the present accused with the accused in the We
Forum case, who were being arraigned that afternoon in the Court of First Instance of Quezon City.
Pursuant to this scenario, all the newspapers the following day carried the same release that the
accused herein and those in the We Forum were members of one conspiracy.

It has thus become abundantly clear to the undersigned counsel that under the present
circumstances any further participation on his part in the proceedings before this Military
Commission would not only be futile but also bring disgrace and dishonor to himself and to the
legal profession .6

Civilian counsel Joaquin L. Misa for his close kin, Ester Misa Jimenez, after prefatory remarks that he "had never
appeared before in a military court land] entertained a degree of confidence in the quality of military justice land] was
reared with a healthy regard for military officers" stated in his written manifestation dated January 10, 1983 that:

... many events in the course of these proceedings have eroded the confidence of the undersigned
in ultimately obtaining justice from this Honorable Commission.
 The last straws so to speak, were the events of December 13, 1982. Three hearings of this case
prior to the December 13 hearing were cancelled or postponed upon motion of the Prosecution on
the shallow and never explained excuse that their next supposed witness, Col. Beroya, was not
available.On December 13, the Prosecution read into the record an alleged resolution on the state
witness question by the Minister of National Defense (Note that up to this writing the undersigned
has not been served with a copy of that alleged resolution perhaps because it was written on
stationery marked CONFIDENTIAL). After the supposed resolution by the Minister of National
Defense was read into the record, the undersigned moved for a postponement of even one week to
afford the undersigned the opportunity to either ask for a reconsideration by the Minister or raise
the matter to the Supreme Court on Certiorari. The Prosecution's objection was so vehement that it
was incomprehensible to the undersigned why a simple motion could evoke such a violent
reaction from the Prosecution (Cols. Ridao and Disierto seemed to be outdoing each other in the
decibels of their objections). This was especially baffling to the undersigned because theretofore in
several instances when the undersigned inquired if there had been a ruling by "the higher
authorities" on the question of the state witnesses, The Prosecution always assured the
undersigned and the other civilian defense counsel that if a ruling is made, and it is adverse to the
defense we will be given enough time to deal with the problem.

As the Commission well knows the defense motion for postponement was denied and two (2)
accused who were released from the case testified in the absence of all the civilian defense
counsel. Only upon reading the newspaper the next day was the indecent haste of the Prosecution
to present the two (2) witnesses explained. The Prosecution, and the Commission by going along
with the Prosecution, apparently wanted to time the newly fabricated testimony of Diesmos and
Lazaro linking this case with the We Forum case the arraignment of which was held on December
13, in the afternoon.

The orchestration and synchronization of such testimony in this case (at the expense of denying
the accused recourse against the resolution of the Minister) with the arraignment in the We Forum
case taken together with the Identically worded newspaper stories appearing in all the dailies now
in publication has made it clear to the undersigned that this case will not be decided on its merits
but on the convenience that it affords to the pursuit of the government's objectives. 7

Respondent military commission furthermore on December 4, 1984 summarily called all proceedings to a halt, denied
any continuation of the case and abruptly declared the case submitted without any evidence for the defense,
notwithstanding that it had not subpoenaed the first defense witness for petitioner Othoniel Jimenez as duly
requested, while the other petitioners were not expected to be ready with their witnesses until later hearings; and
after a mere 25-minute recess, rendered its "judgment" imposing the death penalty by electrocution on all the above-
named petitioners. No objection to this bizzarre procedure came from military counsels who were assigned to
represent petitioners after their civilian counsels' withdrawal, for as the Solicitor General now manifested, "the records
show, they more often than not practically acted for the prosecution rather than as defense counsels. " a 7

3. I hail the Court's reinstatement of the settled ruling in this jurisdiction that deprivation and disregard of the
constitutional rights of an accused ousts the court or tribunal of jurisdiction, which had been greatly eroded. This
reenforces the 1987 Constitution's reaffirmation of the role of the Supreme Court as the guarantor of the constitutional
and human rights of all persons within its jurisdiction with the function of seeing to it that these rights are respected
and enforced. As the Court stressed in Gumabon vs. Director of Bureau of Prisons "Once a deprivation of a
8

constitutional right is shown to exist, the court that rendered the judgment is deemed ousted of jurisdiction and
habeas corpus is the appropriate remedy to assail the legality of the detention. So accused persons who are
9

deprived of their constitutional right of a speedy trial should be set at liberty. 10 Likewise persons detained indefinitely without
charges so much so that the detention becomes punitive and not merely preventive in character are entitled to regain their freedom, for the
spirit and the letter of our Constitution negates as contrary to the precepts of human rights and freedom that a person be detained indefinitely
without any charges.

4. Indeed, Art. VII, section 18 of the 1987 Constitution, drawing upon the sad lessons of the excessive concentration
of powers in the Chief Executive in the previous Constitutions which enabled him to exercise absolute power to the
point of taking over the entire government, has provided for measures to curtail such abuse of executive power. The
late former Chief Justice Roberto Concepcion, pillar and champion of the Rule of Law, chairman of the 1986
Constitutional Commission's Judiciary Committee and Chief Justice of the Supreme Court at the time of the
imposition of martial law in 1972, summarized these salutary changes, in his last public address, as follows:

1. Under the New Constitution, martial law does not suspend the operation of the New Constitution
or supplant the functioning of the civil courts or legislative assemblies. Neither does it authorize the
conferment of jurisdiction on military courts and agencies over civilians when civil courts are able to
function.

2. Martial law does not supplant the civil courts when the same are able to function.

3. Martial law does not automatically suspend the privilege of the writ of habeas corpus.

4. Martial law may not be declared upon the ground of imminent danger of invasion or rebellion. in
the event of such danger, the President may call the armed forces to prevent or suppress the
danger, without declaring martial law or suspending the privilege of the will it.

5. Within forty-eight (48) hours after the proclamation of martial law, the President shall report the
same to Congress in person or in writing.

6. Congress may, by a majority vote of all its members, revoke the proclamation of martial law or
the suspension of the privilege of the writ, which action of Congress may not be set aside by the
President.
 7. The proclamation of martial law or suspension or the privilege of the writ by the President, may
not exceed sixty (60) days without the concurrence of Congress.

8. The Supreme Court has been expressly authorized to "review in an appropriate proceeding filed
by any citizen the sufficiency of the factual basis of the proclamation of martial law or of the
suspension of the privilege of the writ or the extension thereof, and must promulgate its decision
thereon within thirty (30) days from its filing."

9. Under the "1973 Constitution," as amended, at least ten (10) votes of the members of the
Supreme Court were necessary to invalidate or declare a law unconstitutional, regardless of the
number of vacancies in the Supreme Court or the number of its members who participated in the
deliberations on the issues involved in the case, and voted thereon. Under the New Constitution a
simple majority of the members who took part in such deliberation and cast their votes thereon is
sufficient.

10. In the case of suspension of the privilege of the writ, the same does not apply to persons who
have not been placed under the custody of a court of justice.

11. In case of suspension of the privilege of the writ, the person detained must be released unless
judicially charged within three (3) days. 11

These substantial checks by the legislature as well as by the judiciary on the Chief Executive's power to proclaim
martial law or to suspend the privilege of the writ of habeas corpus were meant to forestall a recurrence of the long
and horrible nightmare of the past regime when one single clause, the Commander-in-Chief clause of the Constitution
then in force that authorized the President to declare martial law was held to have nullified the entire Constitution and
the Bill of Rights and justified the then President's taking over "absolute command" of the nation and that the people
could "only trust and pray that, giving him their own loyalty with utmost patriotism, (he) will not fail them." Thus,
persons held under Presidential Commitment or Detention Orders were detained indefinitely without charges, yet had
no recourse to the courts. Even if they were acquitted in court, the military would not release them until and unless
the then President lifted the preventive detention order. 12 It was a long and horrible nightmare when our people's rights,
freedoms and liberties were sacrificed at the altar of "national security" even though it involved nothing more than the President-dictator's
perpetuation in office and the security of his relatives and some officials in high positions and their protection from public accountability of
their acts of venality and deception in government, many of which were of public knowledge.

Draconian decrees were issued whereby many were locked up indefinitely for "rumor-mongering," "unlawful use of
means of publication and unlawful utterances, and alarms and scandals." While the people for the most part suffered
in silence and waited, others never gave up the struggle for truth, freedom, justice and democracy, a common
commitment which is what makes a people a nation instead of a gathering of self-seeking individuals. The national
will was systematically undermined to the point, of national mockery, that the day of imposition of martial law was
proclaimed as "National Thanksgiving Day." As the Court observed through Mr. Justice Gutierrez in Animas vs.
Minister of National Defense, 13 the era of martial law when military tribunals, against all tenets of due process, were conferred
jurisdiction over common crimes and civilians, their glorification with the downgrading of judicial prestige and "the many judicial problems
spawned by extended authoritarian rule which effectively eroded judicial independence and self-respect will require plenty of time and
determined efforts to cure."

5. The treacherous assassination on August 21, 1983 of the martyred Benigno S. Aquino, Jr., within minutes of his
arrival at the Manila International Airport, although ringed with 2,000 soldiers, shocked and outraged the conscience
of the nation. After three years of exile following almost eight years of detention since martial law, Aquino, although
facing the military commission's predetermined death sentence, supra, yet refused proper travel documents, was
returning home "to strive for genuine national reconciliation founded on justice." The late Senator Jose W. Diokno
who passed away this year was among the first victims of the martial law coup d'etat to be locked up with Senator
Aquino. In March, 1973, all of their personal effects, including their eyeglasses were ominously returned to their
homes. Their wives' visitation privileges were suspended and they lost all contact for over a month. It turned out that
Aquino had smuggled out of his cell a written statement critical of the martial law regime. In swift retribution, both of
them were flown out blindfolded to the army camp at Fort Laur in Nueva Ecija and kept in solitary confinement in dark
boarded cells with hardly any ventilation. When their persons were produced before the Court on habeas corpus
proceedings, they were a pitiable sight having lost about 30 to 40 lbs. in weight. Senator Diokno was to be released in
September, 1974 after almost two years of detention. No charges of any kind were ever filed against him. His only
fault was that he was a possible rival for the presidency.

Horacio Morales, Jr., 1977 TOYM awardee for government service and then executive vice-president of the
Development Academy of the Philippines, was among the hard-working government functionaries who had been
radicalized and gave up their government positions. Morales went underground on the night he was supposed to
receive his TOYM award, declaring that "(F)or almost ten years, I have been an official in the reactionary government,
serviced the Marcos dictatorship and all that it stands for, serving a ruling system that has brought so much suffering
and misery to the broad masses of the Filipino people. (1) refuse to take any more part of this. I have had enough of
this regime's tyranny and treachery, greed and brutality, exploitation and oppression of the people," and "(I)n rejecting
my position and part in the reactionary government, I am glad to be finally free of being a servant of foreign and local
vested interest. I am happy to be fighting side by side with the people." He was apprehended in 1982 and was
charged with the capital crime of subversion, until he was freed in March, 1986 after President Corazon C. Aquino's
assumption of office, together with other political prisoners and detainees and prisoners of conscience in fulfillment of
her campaign pledge.

Countless others forfeited their lives and stand as witnesses to the tyranny and repression of the past regime. Driven
by their dreams to free our motherland from poverty, oppression, iniquity and injustice, many of our youthful leaders
were to make the supreme sacrifice. To mention a few: U.P. Collegian editor Abraham Sarmiento, Jr., worthy son of
an illustrious member of the Court pricked the conscience of many as he asked on the front page of the college
paper: Sino ang kikibo kung hindi tayo kikibo? Sino ang kikilos kung hindi tayo kikilos? Kung hindi ngayon, kailan
pa? 13a He was locked up in the military camp and released only when he was near death from a severe attack of asthma, to which he
succumbed. Another TOYM awardee, Edgar Jopson, an outstanding honor student at the Ateneo University, instinctively pinpointed the gut
issue in 1971-he pressed for a "non-partisan Constitutional Convention;" and demanded that the then president-soon-to-turn dictator "put
down in writing" that he was not going to manipulate the Constitution to remove his disqualification to run for a third term or perpetuate
himself in office and was called down as "son of a grocer." When as he feared, martial law was declared, Jopson went underground to
continue the struggle and was to be waylaid and killed at the age of 34 by 21 military troops as the reported head of the rebel movement in
Mindanao. 14 Another activist honor student leader, Emmanuel Yap, son of another eminent member of the Court, was to disappear on
Valentine's Day in 1976 at the young age of 24, reportedly picked up by military agents in front of Channel 7 in Quezon City, and never to be
seen again.

One of our most promising young leaders, Evelio B. Javier, 43, unarmed, governor of the province of Antique at 28, a
Harvard-trained lawyer, was mercilessly gunned down with impunity in broad daylight at 10 a.m. in front of the
provincial capitol building by six mad-dog killers who riddled his body with 24 bullets fired from M-16 armalite rifles
(the standard heavy automatic weapon of our military). He was just taking a breather and stretching his legs from the
tedious but tense proceedings of the canvassing of the returns of the presidential snap election in the capitol building.
This was to be the last straw and the bloodless EDSA revolt was soon to unfold. The Court in Javier vs.
Comelec, 15 through Mr. Justice Cruz, "said these meager words in tribute to a fallen hero who was struck down in the vigor of his youth
because he dared to speak against tyranny. Where many kept a meekly silence for fear of retaliation, and still others feigned and fawned in
hopes of safety and even reward, he chose to fight. He was not afraid. Money did not tempt him. Threats did not daunt him. Power did not
awe him. His was a singular and all-exacting obsession: the return of freedom to his country. And though he fought not in the barricades of
war amid the sound and smoke of shot and shell, he was a soldier nonetheless, fighting valiantly for the liberties of his people against the
enemies of his race, unfortunately of his race too, who would impose upon the land a perpetual night of dark enslavement. He did not see the
breaking of the dawn, sad to say, but in a very real sense Evelio B. Javier made that dawn draw nearer because he was, like Saul and
Jonathan, "swifter than eagles and stronger than lions." "

6. The greatest threat to freedom is the shortness of human memory. We must note here the unforgettable and noble
sacrifices of the countless brave and patriotic men and women who feel as martyrs and victims during the long dark
years of the deposed regime. In vacating the death sentence imposed on the petitioners who survived the holocaust,,
we render them simple justice and we redeem and honor the memory of those who selflessly offered their lives for
the restoration of truth, decency, justice and freedom in our beloved land. Due recognition must be given also that
85% of the Armed Forces of the Philippines readily joined the EDSA revolt and redeemed the honor of the military by
recognizing civilian supremacy and the supreme mandate given by the people to the true winners of the elections.
Witness the testimony of Gen. Fidel V. Ramos now chief of the new Armed Forces of the Philippines, as he
recounted early last year his breakaway from the past regime:

The Armed Forces of the Philippines had ceased to be the real armed forces supposed to be the
defender of the people. There had developed an elite group within the AFP ... and the AFP no
longer represented its rank and file and officers corps.

Mr. Marcos was no longer the same President that we used to know, to whom we pledged our
loyalty and dedicated our services. He was no longer the able and capable commander-in-chief
whom we used to count on. He had already put his personal interest, his family interest, above the
interest of the people.

The small people in the AFP and the Integrated National Police were now being pushed around by
powerful military officers motivated by very selfish desires and intentions. Many of those officers
were now practically the servants of powerful politicians. 16

The present PC/INP Chief, Major General Renato de Vina, on the 85th anniversary of the Philippine Constabulary
last August 8th publicly stated that "for the perfidy of a few, we owe the whole nation a sincere apology and a
commitment to intensively pursue our new program of reforms, to weed out the misfits who bring discredit to our
organization," and solemnly pledged that "now and forever, your PC/INP stands ready and committed to fight
lawlessness, injustice and oppression, as well as the sinister forces that continue to threaten our stability and
progress as a free country. We make this solemn pledge here and now, before our entire nation, before our
Commander-in-Chief who is the personification of our national honor and unity, before God who has always blessed
our people ... — to consecrate our lives to the protection and preservation of our national Ideals-of unity, peace,
justice and democracy."

7. The people by their overwhelming ratification of the 1987 Constitution at the plebiscite held last February 2nd
unequivocally reaffirmed their collective act of installing our new government following the bloodless EDSA revolt.
They re fused to be deterred by the last-ditch efforts of the forces of the Right and of the Left to derail our return to
fun normalcy and the restoration of our democratic institutions. They proclaimed a renewed and vigorous faith in the
democratic process. Among the great changes introduced in the 1987 Constitution to harness the Presidential power
to impose martial law and strengthen the system of checks and balances in our government were those made by the
venerable late Chief Justice Roberto Concepcion and his fellow members of the 1986 Constitutional Commission,
hereinabove enumerated. 17 With their work completed, and the 1987 Constitution decisively approved and ratified by the people, Chief
Justice Concepcion could then claim his eternal rest on last May 3rd and leave us this legacy and caueat: "One thing," he said, "I have
learned during the martial law regime, and that is-that a Constitution is as good only as it is enforced. ... the Primacy of the Law depends
ultimately upon the people; upon their awareness of this fact and their willingness and readiness to assume the corresponding responsibility,
in short, upon their political maturity." 18

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. L-2349 October 22, 1948

FRED M. HARDEN, petitioner,

vs.
THE DIRECTOR OF PRISONS, respondent.
Vicente J. Francisco for petitioner.
First Assistant Solicitor General Roberto A. Gianzon and Solicitor Felix V. Makasiar for respondent.
Claro M. Recto for the intervenor.

TUASON, J.:

The petitioner, Fred M. Harden, is being confined in prison for contempt of court by virtue of an order of the following
tenor:

It appearing that the defendant Fred M. Harden has not up to this date complied with the orders of this court
of October 7, 1947 and March 27, 1948;

As prayed for, the court orders the arrest of the defendant Fred M. Harden as well as his confinement at the
New Bilibid Prisons, Muntinlupa, Rizal, until he complies with the aforementioned orders.

The proceedings for contempt arose in a civil case between Mrs. Harden as plaintiff and the petitioner and another
person as defendants, commenced on July 12, 1941, and involving the administration of a conjugal partnership,
payment of alimony, and accounting. In that case, a receiver was appointed and a preliminary injunction was issued
restraining Fred M. Harden and his codefendant, Jose Salumbides, from transferring or alienating, except for a
valuable consideration and with the consent of the court first had and obtained, moneys, shares of stock, and other
properties and assets, real or personal, belonging to the aforesaid partnership, and which might be found in the
names of said defendants or either of them.

On various dates in 1946, Fred M. Harden transferred to the Hongkong & Shanghai Banking Corporation and the
Chartered Bank of India, Australia & China, both in Hongkong, over P1,000,000 in drafts or cash; to Virginia
Recreation Center, Long Beach, California, P20,196.80, and to an unknown person, P50,000.

On September 9, 1947, Mrs. Harden moved the court to order Harden to return all these amounts and to redeposit
them with the Manila branch of the Chartered Bank of India, Australia & China. On October 7, 1947, Judge Peña
granted the motion in an order worded as follows:

Wherefore, finding the motion of the plaintiff of September 9, 1947, to be well founded, for the purpose of
preserving the status quo and in order that the amounts above referred to may stand ready to answer for
any legitimate claims of the Government in the form of taxes, the aforementioned motion is hereby ordered
to return, within a period of 15 days from the receipt of a copy hereof, the amount of P1,000,608.66 to the
Philippines and to redeposit the same with the accounts of the Plaza Lunch at the Manila Branch of the
Chartered Bank of India, Australia and China, with the understanding that upon failure to comply with this
order he will be declared in contempt of court.

After a petition for certiorari was instituted by Harden in the Supreme Court and decided, and after various motions
were filed and heard, Judge Peña, on March 27, 1948, entered an order, which was a modification of that of October
7, 1947, directing Harden "to deposit with the Manila Branch of the Chartered Bank of India, Australia & China within
five days from receipt of a copy of this order the money and drafts that he has actually in Hongkong, without prejudice
to passing upon later on the different amounts that the defendant has spent according to his attorney, after he has
submitted to the court an itemized account of those expenses.

In the same order there was this decree:

With respect to the plaintiff's motion filed on March 16, 1948 praying that Fred M. Harden be ordered to
deliver the certificate covering the 368,553 Balatoc Mining Company shares either to the Clerk of this Court
or to the receiver in this case for safekeeping after his compliance with the order of January 17, 1948, the
Court, after considering the different pleadings filed, denies defendant's motion for extension of time to
register the said certificate of stock, thereby maintaining its order of January 17, 1948. The said defendant is
further ordered, after the registration of the said certificate, to deposit the same with the Manila Branch of the
Chartered Bank of India, Australia and China.

The last part of the order was the culmination of another series of motions with their corresponding hearings. The
facts taken from the pleading were in brief as follows:

In a motion dated May 28, 1947, the receiver appointed in the main case prayed that the certificates of stock of the
conjugal partnership, among them 368,553 shares of the Balatoc Mining Co., alleged to be in the possession of
defendant Harden, be ordered turned over to him (receiver) so that he might have them registered in pursuance of
the provisions of Republic Act No. 62. On June 7, 1947, the court "authorized" Harden "to register not later than June
30, 1947 the stock certificates in his possession, notifying the court afterwards of such action.

On July 28, 1947, Mrs. Harden complained that her husband failed to comply with the above order and prayed that he
be ordered to show cause why he should not be declared in contempt. On August 1, 1947, Harden filed a perfunctory
compliance, and in order dated August 2, 1947, he was required to "make a detailed report of the stock certificates
which have been duly registered in accordance with Republic Act No. 62." In his "compliance" dated August 7, 1947,
Harden stated that he had been granted an extension until December 31, 1947, within which to register the Balatoc
Mining Co. shares under Republic Act No. 62.

In a motion dated January 7, 1948, the receiver informed the court that, notwithstanding the expiration on December
31, 1947, of Harden's extended time to comply with Republic Act No. 62, the records of the Balatoc Mining Co.
showed that the certificate had not been registered as of January 7, 1948; and upon his request, an order dated
January 17, 1948, was issued giving Harden "an extension until March 31, 1948 within which to comply with the
Order dated June 7, 1947."

In a motion dated March 15, 1948, Mrs. Harden prayed for the reasons therein stated, that defendant Harden "be
ordered to deliver the certificates covering the 368,553 Balatoc Mining Co. shares either to the Clerk of this Court or
to the Receiver herein for safekeeping, immediately after registering them pursuant to Republic Act No. 62." On
March 24, 1948, Harden filed a motion stating that the registration of shares of stock under Republic Act No. 62 had
been extended until June 30, 1948, and prayed that he "be allowed to register the stock certificates in question within
such period as by law or regulations is or may be provided."

It was at this stage of the case that the present petitioner was committed to jail.

Broadly speaking, the grounds for relief by habeas corpus are only (1) deprivation of any fundamental or
constitutional rights, (2) lack of jurisdiction of the court to impose the sentence, or (3) excessive penalty. (Santiago vs.
Director of Prisons, 1 L-1083, Jan. 30, 1947, 44 Off. Gaz., 1231.)

The fact that the property is in a foreign country is said to deprive the court of jurisdiction, the remedy in such case
being, it is contended, ancillary receivership. We can not agree with this view.

While a court can not give its receiver authority to act in another state without the assistance of the courts thereof (53
C. J., 390-391), yet it may act directly upon the parties before it with respect to property beyond the territorial limits of
its jurisdiction, and hold them in contempt if they resist the court's orders with reference to its custody or disposition
(Id. 118)

Whether the property was removed before or after the appointment of the receiver is likewise immaterial.

In Sercomb vs. Catlin, 21 N. E., 606-608, the Supreme Court of Illinois said:

It is true that the property attached is beyond the jurisdiction of the courts of this state, but the appellant, who
caused it to be attached, is in this state, and within the jurisdiction of its courts. If the superior court had no
power to reach the goods in Newton's hands, it had the power to reach appellant, who sought to prevent its
receiver from getting possession of the goods. It makes no difference that the property was in a foreign
jurisdiction.

The facts of that case as stated in the decision were as follows:

On April 14, 1887, in the case of Ada S. Havens et al. vs. Caleb Clapp et al. then pending in said superior
court, the appellee was appointed receiver of all the property and effects, real and personal, of the
defendants therein, Caleb Clapp and Thomas Davies. Prior to that date Clapp and Davies had forwarded, on
consignment, to Elijah E. Newton, an auctioneer and commission merchant in Washington city, in the District
of Columbia, a lot of jewelry, watches and silverware, to be by him disposed of for their benefit. So far as
appears to the contrary, the goods so consigned were still in the possession of Newton at Washington when
the order was entered on April 7, 1887, for the commitment of appellant for contempt. Within a week or 10
days after his appointment as receiver, appellee gave notice of such appointment to Newton, and demanded
a return of the goods. On May 18, 1887, the Meriden Britannia Company, a corporation organized under the
laws of the state of Connecticut, being a creditor of Clapp and Davies, commenced an attachment suit
against them for the amount of its claim in the Supreme Court of the District of Columbia, and attached the
goods in the hands of Newton.

The penalty complained of is neither cruel, unjust nor excessive. In Ex-parte Kemmler, 136 U. S., 436, the United
States Supreme Court said that "punishments are cruel when they involve torture or a lingering death, but the
punishment of death is not cruel, within the meaning of that word as used in the constitution. It implies there
something inhuman and barbarous, something more than the mere extinguishment of life.

The punishment meted out to the petitioner is not excessive. It is suitable and adapted to its objective; and it accords
with section 7, Rule 64, of the Rules of Court which provides that "when the contempt consists in the omission to do
an act which is yet in the power of the accused to perform, he may be imprisoned by order of a superior court until he
performs it.

If the term of imprisonment in this case is indefinite and might last through the natural life of the petitioner, yet by the
terms of the sentence the way is left open for him to avoid serving any part of it by complying with the orders of the
court, and in this manner put an end to his incarceration. In these circumstances, the judgment can not be said to be
excessive or unjust. (Davis vs. Murphy [1947] 188 P., 2nd, 229-231.) As stated in a more recent case (De Wees
[1948], 210 S.W., 2d, 145-147), "to order that one be imprisoned for an indefinite period in civil contempt is purely a
remedial measure. Its purpose is to coerce the contender to do an act within his or her power to perform. He must
have the means by which he may purge himself of the contempt." The latter decision cites Stanley vs. South Jersey
Realty Co., 83 N.J. Eq. 300, 90 A., 1042, 1043, in which the theory is expressed in this language:

In a "civil contempt" the proceeding is remedial, it is a step in the case the object of which is to coerce one
party for the benefit of the other party to do or to refrain from doing some act specified in the order of the
court. Hence, if imprisonment be ordered, it is remedial in purpose and coercive in character, and to that end
must relate to something to be done by the defendant by the doing of which he many discharge himself. As
quaintly expressed, the imprisoned man "carries the keys to his prison in his own pocket."

The failure of the order of commitment to state that the acts which the contemner fails to do are still in his power to
perform, does not void the order of imprisonment. Section 7 of Rule 64 does not require such finding to appear in the
order, unlike section 1219 of the Code of Civil Procedure of California on which the petitioner's contention is rested.
Petitioner is in error in saying that section 237 of the former Philippine Code of Civil Procedure, from which section 7
of Rule 64, supra, has been copied, was of California origin. Former Justice Fisher is authority for the statement that
section 237 of Act No. 190 was borrowed from section 1456 of the Ohio Code of Civil Procedure. (Fisher's Code of
Civil Procedure, 3rd ed., p. 136.) The exact similarity in substance though not in language between the two provisions
is a confirmation of this statement.

At any rate, the order of commitment contains the alleged missing element if it is taken, as it should be taken, in
connection with the orders of October 7, 1947, and March 27, 1948, and with the charges for contempt. It expressly
gives non-compliance with the two last mentioned orders as the grounds for the warrant of commitment, and thus by
reference makes them part of it. The orders of October 7, 1947, and March 27, 1948, in turn clearly specify the acts
with the petitioner was commanded to fulfill. It is equally clear from these orders that in the opinion of the court the
petitioner is in a position to bring back to the Philippines from Hongkong part of the cash and the Balatoc shares he
had remitted to that colony.

Whether or not in truth the court's findings are supported by sufficient evidence is a different matter; it is a matter of
fact which can not be reviewed by habeas corpus.

In a long line of decisions, this Court has steadfastly held that habeas corpus does not lie to correct errors of fact or
law. (Slade Perkins vs. Director of Prisons, 58 Phil., 271; Quintos vs. Director of Prisons, 55 Phil., 304; Toronto Felipe
vs. Director of Prisons, 24 Phil., 121; Gutierrez Repide vs. Peterson, 3 Phil., 276; Santiago vs. Director of Prisons, L-
1083, 1 44 Off. Gaz., 1231; McMicking vs. Schields, 238 U.S. 99. 41 Phil., 971; Tinsley vs. Anderson, 43 Law. ed.,
91.) When a court has jurisdiction of the offense charged and of the party who is so charged, its judgment, order or
decree is not subject to collateral attack by habeas corpus. the writ of habeas corpus can not be made to perform the
function of a writ of error; and this holds true even if the judgment, orders or decree was erroneous, provided it is
within the jurisdiction of the court which rendered such judgment or issued such an order or decree. (Slade Perkins
vs. Director of Prisons, supra; Santiago vs. Director of Prisons, supra.) So whether the act charged has been
committed or can still be performed is conclusively determined by the order or judgment of the trial court in the
proceeding wherein the petitioner for habeas corpus is adjudged in contempt. (Ex-parte Fisher, 206 S.W. 2d. 1000.).

The petition is denied with costs.

Moran, C.J., Ozaeta, Paras, Feria, Pablo, Bengzon, Briones and Montemayor, JJ., concur.

Separate Opinions

PERFECTO, J., dissenting:

Since May 4, 1948, Fred M. Harden has been placed under arrest and confined at the Bilibid Prisons, Muntinglupa,
under the charge of the Director of Prisons.

Respondent's authority for confining petitioner is based on the order of Judge Emilio Pena, of the Court of First
Instance of Manila, issued on April 28, 1948, which reads as follows:

It appearing that the defendant Fred M. Harden of the defendant to this date complied with the orders of this
court of October 7, 1947, and March 27, 1948;

As prayed for, the court orders the arrest of the defendant Fred M. Harden as well as his confinement at the
New Bilibid Prisons, Muntinlupa, Rizal, until he complies with the aforementioned orders.

The order of October 7, 1947, requires Harden to return from abroad within a period of 15 days, the amount of
P1,000,608.66 to the Philippines and to redeposit the same with the accounts of the Plaza Lunch of the Manila
branch of the Chartered Bank of India, Australia and China.

The order of March 27, 1948, requires Harden to deposit with the same bank the money and drafts that he has
actually in Hongkong and the certificate covering 368,553 Balatoc Mining Company shares, after registering them, as
required in the order of January 18, 1948.

The trial court ordered petitioner's confinement of an indefinite period of time which means that it may last until his
death, in virtue of the provisions of section 7 of Rule 64 which reads as follows:

SEC. 7. Imprisonment until ordered obeyed. — When the contempt consists in the omission to do an act
which is yet in the power of the accused to perform, he may be imprisoned by order of a superior court until
he performs it.

The reglementary provision is null and void per se and, therefore, should be denied compliance. Perhaps, there is no
other provision in our statute books more revolting to conscience, more shocking to the most elemental sense of
justice, and most unreasonably Draconian.
The provision is characterized by such an extreme of arbitrariness that is comprehensible only under a dictatorial
system of government.

Petitioner has been and is claiming that he has no means of complying with the orders for non-compliance of which
he is committed to imprisonment for an indefinite period of time. The trial court does not believe him, and we presume
that said court was justified by evidence.

But our presumption cannot take the place of absolute infallibility. When there are conflicting claims as to facts, courts
decide the issue sometimes on a mere preponderance of evidence and sometimes, as in criminal cases, on evidence
carrying conviction beyond all reasonable doubt.

A decision based on a preponderance of evidence does not carry absolute certainty. A decision based on a
conclusion of fact beyond all reasonable doubt is stronger, yet no one is too crazy to believe that it carries absolute
certainly or the mark of infallibility. Judicial history is full of bloody pages about many individuals who have been
burned, decapitated by guillotine, hanged or shot, killed by garrote or electrocuted, because tribunals found them
guilty beyond all reasonable doubt, but later on found to be absolutely innocent. Some of them have been and are
loved and enshrined as martyrs, heroes, and among them are counted the greatest moral figures humanity has ever
produced.

Because in petitioner's case the lower court had to act only and must have acted on a mere preponderance of
evidence, the possibility of error is greater in criminal cases where conviction beyond all reasonable doubt is required.
Therefore, although the preponderance of evidence may militate against petitioner, such legal situation does not
preclude the possibility that truth, as an absolute, may after all support petitioner's claim. In such case, unless a
miracle should supervene to rescue him from his plight, he will remain confined for the rest of his days, an
imprisonment more perpetual than reclusion perpetua, the longest imprisonment allowed by law for the worst
criminals, kidnapers, robbers, parriciders, traitors.

Should petitioner have embezzled or stolen the money and certificate of shares required of him to be deposited in a
bank he can be punished with years of imprisonment but not nearing even reclusion perpetua. There is no offense or
crime for mere disobedience that is punished by reclusion perpetua or by many years of imprisonment.

But petitioner, for a mere disobedience, which ultimately may not be disobedience at all, is exposed to suffer
imprisonment for life. This, certainly, is a flagrant violation of the constitutional inhibition that no cruel and unusual
punishment shall be inflicted. (Section 1 [19], Article III of the Constitution.) This is also a denial to petitioner of the
equal protection of the laws which is the first guarantee in our Bill of Rights. (Section 1 [1], Article III of the
Constitution.)

The authors of the rules could not have conceived or imagined any contempt of court of such perversity that would
require a heavier punishment than a fine of P1,000 and six months imprisonment, the maximum penalty provided by
section 6 of Rule 64. In the present case, petitioner has already suffered the maximum imprisonment of six months ,
and is exposed to remain in prison for many more years. Is there a conscience too callous to fail to see the
unbearable discrimination of the law against petitioner? Punishments are cruel when they involve torture or a
lingering death or when they employ something inhuman or barbarous, as stated in the Kemmler case (136 U. S.
436), an authority invoked in the majority decision. But there is anything more inhuman, barbarous, more torturing,
giving the feeling of lingering death, than to compel a person to unjustly endure an indefinite number of years of
imprisonment, when the only offense that he has committed is that of contempt and the most serious case of
contempt cannot be punished with imprisonment longer than six months? We have to be blind to fail to see this.

The argument that the incarceration is not cruel because the sentence left the doors open for petitioner to avoid
serving any part of it by complying with the orders of the court has absolutely no merit, because there is absolutely no
reasonable ground in the philosophy of law that would leave to the offender's discretion the length of his
imprisonment or the measures of his punishment. Aside from the unscientific view revealed by the argument, it has
the short-sightedness of failing to see the possibilities of error of judgment on the question as to whether the accused
is yet in a position to actually perform the acts ordered.

The allegation that the imprisonment or an indefinite period is purely a remedial measure which assumes that the
offender must have the means by which he may purge himself with the contempt is pure rhetoric that has no ground
in fact as can be seen by any reasonable man. It fails to understand the true situation of a simple disobedience
punished with imprisonment that has no possible end except death.

We held that the lower court erred in issuing the order of April 28, 1948, in so far as it orders that petitioner be
confined for an indefinite period of time.

We disagree with the pronouncement in the majority opinion, limiting the scope of the writ of habeas corpus and
issuing in favor of the lower court in patent of infallibility on the factual question of whether or not the act ordered to
be performed is still in the hands of petitioner to perform. Such pronouncement are not supported by law nor by any
principle of substantial justice. Regardless of the length of the chain of erroneous decisions supporting such
pronouncements, the errors shall continue to be errors. The length of the chain may only emphasize the amount of
injustices perpetrated under such pronouncements.

Assuming that the lower court found petitioner guilty of contempt, it could have punished petitioner up to the
maximum penalties provided by section 6 of Rule 64 but never more. Considering that petitioner has already
undergone the maximum of six months imprisonment, even on the assumption that he is guilty, he is entitled to be
released from confinement.

We vote to grant the petition and to immediately release Fred M. Harden from confinement and from the custody of
respondent Director of Prisons.
 Republic of the Philippines
SUPREME COURT
Manila

SECOND DIVISION

G.R. No. 114046 October 24, 1994

HONORATO GALVEZ and GODOFREDO DIEGO, petitioners,

vs.
COURT OF APPEALS (17TH DIVISION), First Asst. Provincial Prosecutor. DENNIS M. VILLA-IGNACIO of
Pasig, Rizal; THE PEOPLE OF THE PHILIPPINES; and PNP P/SR. SUPT. RICARDO F. DE LEON, Camp
Commander and Head of the PNP Custodial Group, Camp Crame, Cubao, Quezon City, respondents.

Emerito M. Salva & Associates; Juanito L. Andrade; and Lazaro Law Firm for petitioners.

REGALADO, J.:

Submitted for resolution in the present special civil action are: (1) the basic petition for certiorari and mandamus with
a petition for habeas corpus, to review the resolution issued by respondent Court of Appeals, dated
February 18, 1994, in CA-G.R. SP No. 33261; (2) the Urgent Motion and Supplemental Urgent Motion for
1 2 3

Immediate Action on Petition for Habeas corpus; and (3) the Urgent Petition to Declare Judge Jaime N. Salazar, Jr.
and First Assistant Provincial Prosecutor Dennis M. Villa-Ignacio for Contempt and to Annul Proceedings (with
Immediate Prayer for another Cease and Desist Order). 4

On November 12, 1993, petitioners Honorato Galvez, the incumbent Mayor of San Ildefonso, Bulacan, and one
Godofredo Diego were charged in three separate informations with homicide and two counts of frustrated homicide
fot has been the rule that under the first paragraph of Section 14, Rule 110, the amendment of the information may
also be made even if it may result in altering the nature of the charge so long as it Regional Trial Court of Malolos,
Bulacan, Branch 14, and docketed as Criminal Cases Nos. 3642-M-93 to 3644-M-93. Both accused posted their
5

respective cash bail bonds and were subsequently released from detention.

On November 15, 1993, Bulacan Provincial Prosecutor Liberato L. Reyes filed a Motion to Defer Arraignment and
Subsequent Proceedings to enable him "to review the evidence on record and determine once more the proper
crimes chargeable against the accused," which was granted by Judge Villajuan in an order dated November 16,
6

1993. Thereafter, pursuant to Department Order No. 369 of the Department of Justice, respondent Prosecutor
7

Dennis M. Villa-Ignacio was designated Acting Provincial Prosecutor of Bulacan and was instructed to conduct a re-
investigation of the aforesaid criminal cases filed against herein petitioners.
8

By virtue of a Manifestation with Ex-parte Motion dated November 23, 1993 filed by respondent prosecutor, the
9

proceedings were again ordered suspended by Judge Villajuan until after the prosecution's request for change of
venue shall have been resolved by the Supreme Court, and the preliminary investigation being conducted by the
former shall have been terminated. It appears that on December 2, 1993, private complainants, through their
10

counsel, Atty. Silvestre R. Bello III, had filed with the Supreme Court a Petition for Change of Venue of Criminal
Cases Nos. 3642-M-93 to 3644-M-93, purportedly to safeguard the lives of the victims and their witnesses, and to
prevent a miscarriage of justice.11

On December 15, 1993, before petitioners could be arraigned in Criminal Cases Nos. 3642-M-93 to 3644-M-93,
respondent prosecutor filed an Ex
parte Motion to Withdraw Informations in said cases. This motion was granted by Judge Villajuan also on December
12

15, 1993 and the cases were considered withdrawn from the docket of the court. On the same day, Prosecutor
13

Villa-Ignacio filed four new informations against herein petitioners for murder, two counts of frustrated murder, and
violation of Presidential Decree No. 1866 for illegal possession of firearms which were subsequently raffled to the
14

sala of Judge Victoria Pornillos of Branch 10, Regional

Trial Court of Malolos, Bulacan and were docketed therein as Criminal Cases Nos. 4004-M-93 to 4007-M-93. No bail
having been recommended for the crime of murder, Judge Pornillos ordered the arrest of herein petitioners. On 15

December 23, 1993, said presiding judge issued an order setting the arraignment of the accused for December 27,
1993. 16

On December 27, 1993, the scheduled arraignment before Judge Pornillos were reset due to the absence of
respondent prosecutor. On even date, petitioners filed before Judge Villajuan a Motion for Reconsideration of his
order of December 15, 1993 which granted the motion to withdraw the original informations. 17

Thereafter, a Motion to Quash the new informations for lack

of jurisdiction was filed by petitioners before Judge Pornillos on January 3, 1994. At the court session set for the
18

arraignment of petitioners on January 24, 1994, Judge Pornillos issued an order denying the motion to quash and, at
the same time, directed that a plea of not guilty be entered for petitioners when the latter refused to enter their plea.19

In the meantime, and prior to the arraignment of herein petitioners before Judge Pornillos, an order was issued on
January 20, 1994 by Judge Villajuan granting the motion for reconsideration filed by petitioners, ordering the
reinstatement of Criminal Cases Nos. 3642-M-93 to 3644-M-93, and setting the arraignment of the accused therein
for February 8, 1994. On said date, however, the arraignment was suspended and, in the meanwhile, petitioners
20

filed a petition for certiorari, prohibition and mandamus with respondent Court of Appeals, assailing the order dated
January 24, 1994 issued by Judge Pornillos which denied petitioners' motion to quash filed in Criminal Cases Nos.
4004-M-93 and 4007-M-93. As earlier stated, respondent court dismissed the petition in its questioned resolution of
February 18, 1994, hence this petition.

I. On the Main Petition

The main issue in this case involves a determination of the set

of informations under which herein petitioners should be tried, that is, (a) the first set of informations for homicide and
frustrated homicide in Criminal
Cases Nos. 3642-M-93 to 3644-M-93, or (b) the subsequent informations for murder, frustrated murder, and illegal
possession of firearms in Criminal Cases Nos. 4004-M-93 to 4007-M-93. Several corollary but equally important
issues have likewise been addressed to us for resolution, to wit:

1. Whether the ex parte motion to withdraw the original informations is null and void on the ground
that (a) there was no notice and hearing as required by Sections 4, 5 and 6, Rule 15 of the Rules of
Court; and (b) the appropriate remedy which should have been adopted by the prosecution was to
amend the informations by charging the proper offenses pursuant to Section 14 of Rule 110;

2. Whether the order granting the withdrawal of the original informations was immediately final and
executory;

3. Whether Judge Pornillos was correct in denying the motion to quash and thereby acquired
jurisdiction over the new informations considering that (a) the designated public prosecutor
allegedly had no authority to file the second set of informations; and (b) the filing thereof constituted
forum shopping; and

4. Whether the arraignment proceeding held on January 24, 1994 in Criminal Cases Nos. 4004-M-
93 to 4007-M-93 was valid.

We shall discuss these issues seriatim.

1. It is petitioners' submission that the prosecution's failure to serve them a copy of the motion to withdraw the original
informations and to set said motion for hearing constitutes a violation of their right to be informed of the proceedings
against them, as well as a violation of Sections 4, 5 and 6, Rule 15 of the Rules of Court. Hence, so they contend,
the ex parte motion should be considered as a worthless scrap of paper and Judge Villajuan had no authority to act
on it. Ergo, the order granting the same is null and void.

Petitioners advance the theory that respondent prosecutor should have amended the original informations instead of
withdrawing the same and filing new ones. They postulate that the principle of nolle prosequi does not apply in this
case since the withdrawal or dismissal of an information is addressed solely to the sound and judicious discretion of
the court which has the option to grant or deny it and the prosecution cannot impose its opinion on the court. It is
further stressed that in case there is a need to change the nature of the offense charged, that is, from homicide to
murder, by adding the qualifying circumstance of treachery, the only legal and proper remedy is through the filing of
the corresponding amended information; and that the withdrawal of an information is allowed only where the new
information involves a different offense which does not include or is not included in the offense originally charged.

Normally, an accused would not object to the dismissal of an information against him because it is to his best interest
not to oppose the same. Contrarily, if the accused should deem such conditional or provisional dismissal to be unjust
and prejudicial to him, he could object to such dismissal and insist that the case be heard and decided on the
merits. However, considering that in the original cases before Branch 14 of the trial court petitioners had not yet
21

been placed in jeopardy, and the ex parte motion to withdraw was filed and granted before they could be arraigned,
there would be no imperative need for notice and hearing thereof. In actuality, the real grievance of herein accused is
not the dismissal of the original three informations but the filing of four new informations, three of which charge graver
offenses and the fourth, an additional offense. Had these new informations not been filed, there would obviously have
been no cause for the instant petition. Accordingly, their complaint about the supposed procedural lapses involved in
the motion to dismiss filed and granted in Criminal Cases Nos. 3642-M-93 to 3644-M-93 does not impress us as a
candid presentation of their real position.

Petitioners' contention that the dismissal of the original informations and the consequent filing of the new ones
substantially affected their right to bail is too strained and tenuous an argument. They would want to ignore the fact
that had the original informations been amended so as to charge the capital offense of murder, they still stood to
likewise be deprived of their right to bail once it was shown that the evidence of guilt is strong. Petitioners could not
be better off with amended informations than with the subsequent ones. It really made no difference considering that
where a capital offense is charged and the evidence of guilt is strong, bail becomes a matter of discretion under
either an amended or a new information.

Contrary to petitioners' submission, the absence of notice and hearing does not divest a trial court of authority to pass
on the merits of the motion. It has been held that —

The order of the court granting the motion to dismiss despite absence of a notice of hearing, or
proof of service thereof, is merely an irregularity in the proceedings. It cannot deprive a competent
court of jurisdiction over the case. The court still retains its authority to pass on the merits of the
motion. The remedy of the aggrieved party in such cases is either to have the order set aside or the
irregularity otherwise cured by the court which dismissed the complaint, or to appeal from the
dismissal and not certiorari.22

Besides, when petitioners were given by Judge Villajuan the opportunity to file a motion for reconsideration, even
assuming the alleged procedural infirmity in his issuance of the order of dismissal, the same was thereby deemed
cured. This is especially so in this case since, on his order, the original informations were reinstated in Branch 14 of
the trial court.

The rule is now well settled that once a complaint or information is filed in court any disposition of the case, whether
as to its dismissal or the conviction or the acquittal of the accused, rests in the sound discretion of the court. Although
the prosecutor retains the direction and control of the prosecution of criminal cases even when the case is already in
court, he cannot impose
his opinion upon the tribunal. For while it is true that the prosecutor has the quasi-judicial discretion to determine
whether or not a criminal case should be filed in court, once the case had already been brought therein any
disposition the prosecutor may deem proper thereafter should be addressed to the court for its consideration and
approval. The only qualification is that the action of the court must not impair the substantial rights of the accused or
23

the right of the People to due process of law.

We reiterate once again the doctrine we enunciated and explained in Crespo vs. Mogul, etc., et al.: 24

Whether the accused had been arraigned or not and whether it was due to a reinvestigation by the
fiscal or a review by the Secretary of Justice whereby a motion to dismiss was submitted to the
Court, the Court in the exercise of its discretion may grant the motion or deny it and require that the
trial on the merits proceed for the proper determination of the case.

xxx xxx xxx

The rule therefore in this jurisdiction is that once a complaint or information is filed in Court any
disposition of the case as to its dismissal or the conviction or acquittal of the accused rests in the
sound discretion of the Court. Although the fiscal retains the direction and control of the prosecution
of criminal cases even while the case is already in Court he cannot impose his opinion on the trial
court. The court is the best and sole judge on what to do with the case before it. The determination
of the case is within its exclusive jurisdiction and competence. A motion to dismiss the case filed by
the fiscal should be addressed to the Court who has the option to grant or deny the same. It does
not matter if this is done before or after the arraignment of the accused or that the motion was filed
after a reinvestigation or upon instructions of the Secretary of Justice who reviewed the records of
the investigation.

In such an instance, before a re-investigation of the case may be conducted by the public prosecutor, the permission
or consent of the court must be secured. And, if after such re-investigation the prosecution finds a cogent basis to
withdraw the information or otherwise cause the dismissal of the case, such proposed course of action may be taken
but shall likewise be addressed to the sound discretion of the court. 25

It is not denied that in the present case, the court granted the motion of respondent prosecutor for the suspension of
the proceedings until the
re-investigation thereof shall have been terminated. Thereafter, the prosecutor arrived at a finding that petitioners
should have been charged with murder, frustrated murder, and illegal possession of firearms. This prompted him to
file an ex parte motion to withdraw the original informations for homicide and frustrated homicide. Although the motion
did not state the reasons for the withdrawal of the informations, nevertheless, the court in the exercise of its discretion
granted the same, as a consequence of which a new set of informations was thereafter filed and raffled to another
branch of the court. Petitioners now question the propriety of the procedure adopted by the prosecution, insisting that
an amendment, not a new information, was required under the circumstances.

It must here be emphasized that respondent prosecutor sought, and was subsequently granted, permission by the
court to dismiss the original informations. It cannot therefore be validly claimed that the prosecutor exceeded his
authority in withdrawing those informations because the same bore the imprimatur of the court. The issue is thus
focused on whether or not under the given situation the court acted correctly in dismissing the original informations
rather than ordering the amendment thereof.

It has been observed that while the Rules of Court gives the accused the right to move for the quashal of the
information, it is silent with respect to the right of the prosecutor to ask for a dismissal or withdrawal thereof. A
26

perusal of the 1985 Rules on Criminal Procedure will show that there are only two provisions concerning the
dismissal of an information other than on motion of the accused, namely, Section 14 of Rule 110 and Section 11 of
Rule 119. But then, it may be contended that these rules speak of a dismissal by the court when there is a mistake in
charging the proper offense, but make no mention of a dismissal made upon application of the prosecution. That is
not necessarily so.

It is true that Section 11, Rule 119 is virtually a restatement of Section 14, Rule 110, providing as it does that:

Sec. 11. When mistake has been made in charging the proper offense. — When it becomes
manifest at any time before judgment, that a mistake has been made in charging the proper
offense, and the accused cannot be convicted of the offense charged, or of any other offense
necessarily included therein, the accused shall not be discharged, if there appears to be good
cause to detain him. In such case, the court shall commit the accused to answer for the proper
offense and dismiss the original case upon the filing of the proper information. (Emphasis supplied.)

Rule 119 is the rule specifically governing the trial stage where evidence is necessarily being presented, hence the
trial court is now in a better position to conclude that manifestly the accused cannot be convicted of the offense
charged or of one that it necessarily includes. It would primarily be the function of the court to motu proprio order the
dismissal of the case and direct the filing of the appropriate information. We do not discount the possibility of either
the prosecution or the defense initiating such dismissal and substitution at that stage, although, from a realistic point
of view, that would be a rare situation. This provision, therefore, is more directly and principally directed to the trial
court to invest it with the requisite authority to direct by itself the dismissal and refiling of the informations therein
contemplated.
Rule 110, on the other hand, provides the procedural governance for the prosecution of offenses. Section 14 thereof,
quoted infra, provides in its second paragraph the procedure and requisites for the substitution of a defective
information by the correct one. Although, just like Section 11 of Rule 119 the permissible stage for effecting that
substitution is "at any time before judgment," unlike the latter situation it is sufficient that "it appears . . . that a mistake
has been made in charging the proper offense, . . . ." The situation under said Section 14 contemplates a longer time
span, inclusive of the period from the filing of the information up to and before trial. Since no evidence has been
presented at that stage, the error would appear or be discoverable from a review of the records of the preliminary
investigation. Of course, that fact may be perceived by the trial judge himself but, again, realistically it will be the
prosecutor who can initially determine the same. That is why such error need not be manifest or evident, nor is it
required that such nuances as offenses includible in the offense charged be taken into account. It necessarily follows,
therefore, that the prosecutor can and should institute remedial measures for the dismissal of the original information
and the refiling of the correct one, otherwise he would be recreant to his duties.

It is interesting to note that in the American jurisdiction, such right is specifically recognized under Rule 48 (a) of the
Federal Rules of Criminal Procedure which provides that the entry of a nolle prosequi by the Government is a
permissible right, although requiring in all cases the approval of the court in the exercise of its judicial discretion. As27

a matter of fact, the prosecuting attorney is given the broad power, sole authority and discretion to enter a nolle
prosequi provided he does not act arbitrarily and subject to the discretion of the court.
28

In several cases, we have also impliedly recognized the propriety of such a procedure particularly in those instances
where the prosecution is allowed to dismiss or withdraw an information on the ground of insufficiency of evidence. We
have even gone further by imposing upon the fiscal, as he was then called, the duty to move for the dismissal of the
information if he is convinced that the evidence is insufficient to establish, at least prima facie, the guilt of the
accused. 29

In this case now before us, what is involved is a dismissal effected at the instance of the prosecutor by reason of a
mistake in charging the proper offense, in order that new informations can be filed. The problem that may be posited,
and should now be resolved, is when the fiscal may be allowed to move to dismiss an information and when he
should merely move to amend it.

Section 14 of Rule 110, which is invoked by petitioners, reads as follows:

Sec. 14. Amendment. — The information or complaint may be amended, in substance or form,
without leave of court, at any time before the accused pleads; and thereafter and during the trial as
to all matters of form, by leave and at the discretion of the court, when the same can be done
without prejudice to the rights of the accused.

If it appears at any time before judgment that a mistake has been made in charging the proper
offense, the court shall dismiss the original complaint or information upon the filing of a new one
charging the proper offense in accordance with Rule 119, Section 11, provided the accused would
not be placed thereby in double jeopardy, and may also require the witnesses to give bail for their
appearance at the trial.

The first paragraph provides the rule for amendment of the information or complaint, while the second paragraph
refers to the substitution of the information or complaint. Under the second paragraph, the court can order the filing of
another information to charge the proper offense, provided the accused would not be placed thereby in double
jeopardy and that could only be true if the offense proved does not necessarily include or is not necessarily included
in the offense charged in the original information.

It has been the rule that under the first paragraph of Section 14, Rule 110, the amendment of the information may
also be made even if it may result in altering the nature of the charge so long as it can be done without prejudice to
the rights of the accused. Hence, in the case of Dimalibot vs. Salcedo, the accused therein were originally charged
30

with homicide and were released on bail. However, the then provincial fiscal, after a review of the affidavits of the
witnesses for the prosecution, discovered that the killing complained of was perpetrated with the qualifying
circumstances of treachery, taking advantage of superior strength, and employing means to weaken the defense of
the victim. Consequently, an amended information for murder was filed against the accused who were ordered re-
arrested without the amount of bail being fixed, the new charge being a capital offense.

The Court ruled therein that the amendment was proper, pursuant to Section 13, Rule 106 of the 1940 Rules of Court
(now Section 14, Rule 110 of the 1985 Rules on Criminal Procedure), thus:

Here these rules properly apply, since it is undisputed that the herein accused were not yet
arraigned before the competent court when the complaint for homicide was amended so as to
charge the crime of murder. Upon the authority of said rules, the amendment could therefore be
made even as to substance in order that the proper charge may be made. The claim that such
amendment can only refer to matters of specification affecting the elements constituting the crime
is not correct, for there is nothing in the rule to show that the nature of the amendment should only
be limited to matters of specification. The change may also be made even if it may result in altering
the nature of the charge so long as it can be done without prejudice to the rights of the defendant.

Be that as it may, it is quite plausible under Section 14 of Rule 110 that, instead of an amendment, an information for
homicide may also be dismissed before the accused pleads, to give way to the filing of a new information for murder.
This may be deduced from the pronouncement of the Court in the aforecited case of Dimalibot, to wit:

This clearly appears from the second part of Section 13 of Rule 106 which says that, if it appears
before judgment that a mistake has been made in charging the proper offense, the court may
dismiss the original information and order the filing of a new one provided the defendant may not
be placed in double jeopardy. If a new information may be ordered at any time before judgment no
 reason is seen why the court may not order the amendment of the information if its purpose is to
make it conformable to the true nature of the crime committed. . . .

In the subsequent case of Teehankee, Jr. vs. Madayag, et al., however, Section 14 of Rule 110 was clarified to
31

mean as follows:

It may accordingly be posited that both amendment and substitution of the information may be
made before or after the defendant pleads, but they differ in the following respects:

1. Amendment may involve either formal or substantial changes, while substitution necessarily
involves a substantial change from the original charge;

2. Amendment before plea has been entered can be effected without leave of court, but substitution
of information must be with leave of court as the original information has to be dismissed;

3. Where the amendment is only as to form, there is no need for another preliminary investigation
and the retaking of the plea of the accused; in substitution of information, another preliminary
investigation is entailed and the accused has to plead anew to the new information; and

4. An amended information refers to the same offense charged in the original information or to an
offense which necessarily includes or is necessarily included in the original charge, hence
substantial amendments to the information after the plea has been taken cannot be made over the
objection of the accused, for if the original information would be withdrawn, the accused could
invoke double jeopardy. On the other hand, substitution requires or presupposes that the new
information involves a different offense which does not include or is not necessarily included in the
original charge, hence the accused cannot claim double jeopardy.

In determining, therefore, whether there should be an amendment under the first paragraph of
Section 14, Rule 110, or a substitution of information under the second paragraph thereof, the rule
is that where the second information involves the same offense, or an offense which necessarily
includes or is necessarily included in the first information, an amendment of the information is
sufficient; otherwise, where the new information charges an offense which is distinct and different
from that initially charged, a substitution is in order.

In any event, we are inclined to uphold the propriety of the withdrawal of the original informations, there having been
no grave abuse of discretion on the part of the court in granting the motion and, more importantly, in consideration of
the fact that the motion to withdraw was filed and granted before herein petitioners were arraigned, hence before they
were placed in jeopardy. Thus, even if a substitution was made at such stage, petitioners cannot validly claim double
jeopardy, which is precisely the evil sought to be prevented under the rule on substitution, for the simple reason that
no first jeopardy had as yet attached. Consequently, we hold that although the offenses charged under the three new
informations necessarily include those charged under the original informations, the substitution of informations was
not a fatal error. A contrary ruling, to paraphrase from our former pronouncements, would sacrifice substantial justice
for formal nuances on the altar of procedural technicalities. Furthermore, petitioner's right to speedy trial was never
violated since the new informations were filed immediately after the motion to withdraw the original informations was
granted.

2. The controversy over the jurisdiction of Judge Pornillos to entertain and act upon the new informations for murder,
frustrated murder and illegal possession of firearms, is grounded on three points of disagreement.

Firstly, it is argued that the new informations were prematurely filed considering that the order granting the withdrawal
of the original informations had not yet become final and executory and that, as a matter of fact, the same was
subsequently reconsidered and the case reinstated by Judge Villajuan. Therefore, so petitioners postulate, Judge
Pornillos could not acquire jurisdiction over the same offense involving the same incident and the same accused.

Secondly, petitioners contend that the dismissal of the original informations and the filing of new ones which were
raffled to another branch of the court constituted forum shopping, and was tainted with malice considering the
indecent haste with which the motion to withdraw the informations was filed, the order granting the same was issued,
and the new informations were filed, all of which took place on the same day. Pursuant to the doctrinal ruling that the
court first acquiring jurisdiction excludes the other courts, it is theorized that the cognizance of the case taken by
Judge Villajuan barred Judge Pornillos from assuming jurisdiction thereover.

Finally, the designation of respondent Prosecutor Dennis Villa-Ignacio (who was then First Assistant Provincial
Prosecutor of Pasig, Rizal) as Acting Provincial Prosecutor of Bulacan was arbitrary and without any justifiable
reason. It follows, therefore, so petitioners vigorously argue, that in the absence of such authority, the informations
should be considered null and void by reason of which Judge Pornillos did not acquire jurisdiction over the same.

On the other hand, respondents question the propriety of petitioners' filing of a petition for certiorari prohibition
and mandamus in the Court of Appeals against the order of the lower court denying petitioners' motion to quash,
claiming that the proper remedy was to proceed to trial on the merits and thereafter raise on appeal, as special
defenses, the grounds invoked in the motion to quash.

It is a general rule that a nolle prosequi or dismissal entered before the accused is placed on trial and before he is
called on to plead is not equivalent
to an acquittal, and does not bar a subsequent prosecution for the same offense. It is not a final disposition of the
32 33

case. Rather, it partakes of the nature of a nonsuit or discontinuance in a civil suit and leaves the matter in the
34

same condition in which it was before the commencement of the prosecution. 35

A dismissal is different from an acquittal. An order of dismissal which is actually an acquittal is immediately final and
cannot be reconsidered. Furthermore, an acquittal is always based on the merits, that is, the defendant is acquitted
36

because the evidence does not show that defendant's guilt is beyond reasonable doubt; but a dismissal does not
decide the case on the merits or that the defendant is not guilty. Dismissals terminate the proceedings, either
because the court is not a court of competent jurisdiction, or the evidence does not show that the offense was
committed within the territorial jurisdiction of the court, or the complaint or information is not valid or sufficient in form
and substance. For dismissal to be a bar under double jeopardy, it must have the effect of acquittal.
37

All these go to show, therefore, that the dismissal of Criminal Cases

Nos. 3642-M-93 to 3644-M-93 did not amount to an acquittal of herein petitioners. Consequently, the same did not
immediately become final, hence petitioners could still file a motion for the reconsideration thereof. Moreover, such
dismissal does not constitute a proper basis for a claim of double jeopardy. Since jeopardy had not yet attached,
38

herein petitioners were not prejudiced by the filing of the new informations even though the order of dismissal in the
prior case had not yet become final. Neither did it affect the jurisdiction of the court in the subsequent case.

In American legal practice, where a motion for an order of nolle prosequi is made, the only power to deny the motion
would be based on failure of the district attorney to judiciously exercise his discretion. In most cases, the motion will
39

be readily granted and should not be refused unless the court has some knowledge that it is based on an improper
reason or a corrupt motive. But such a motion to dismiss will not also be approved unless the court is satisfied that
the administration of justice requires that the prosecution be ended, or if there appears to be a clear violation of the
law. Whatever may be the reason therefor, a denial of the motion to withdraw should not be construed as a
40

denigration of the authority of the special prosecutor to control and direct the prosecution of the case, since the
41

disposition of the case already rests in the sound discretion of the court.

This brings us to the question as to whether or not an order of dismissal may be subsequently set aside and the
information reinstated. Again, in American jurisprudence, the authorities differ somewhat as to whether a nolle
prosequi may be set aside and the cause reinstated. Some cases hold that the nolle prosequi may be recalled and
42

that the accused may be tried on the same information, but before it can be retraced, set aside, cancelled, or struck
43

off, the permission or assent of the court must be had and obtained, and such cancellation or retraction must be duly
entered. According to other authorities, however, the entry of an unconditional nolle prosequi, not on the ground that
the information is insufficient on its face, is an end to the prosecution of that information, and such nolle
prosequi cannot afterward be vacated and further proceedings had in that case. 44

Still in some cases, it has been held that a nolle prosequi may be set aside by leave of court, so as to reinstate
proceedings on the information, or unless it was entered by mistake. In our jurisdiction, we follow the rule which
45

allows an order of dismissal to be set aside by leave of court. In one case, it was held that in the absence of any
statutory provision to the contrary, the court may, in the interest of justice, dismiss a criminal case provisionally, that
is, without prejudice to reinstating it before the order becomes final or to the subsequent filing of a new information for
the offense. 46

The rule that in cases of concurrent jurisdiction the court first acquiring jurisdiction will retain it to the end to the
exclusion of other tribunals, is not to be given unyielding effect in all cases and it does not apply where the jurisdiction
of the first court has come to an end in any legal way, such as by nolle prosequi. The rule on exclusions is intended
47

to prevent confusion and conflicts in jurisdiction and to prevent a person from being twice tried for the same offense,
but no accused has a vested right to be tried in any particular court of concurrent jurisdiction; and when one court of
concurrent jurisdiction voluntarily relinquishes it by a nolle prosequi or dismissal of the case, there can be no legal or
logical reason for preventing the other court from proceeding. With much more reason will this rule apply where only
48

branches of the same court, and not different courts, are involved in the jurisdictional conflict.

There was no forum shopping in the lower court with respect to the case involved. While the procedure adopted by
the prosecution was somewhat cumbersome, it was not in bad faith and, accordingly, it did not affect the legality of
the proceedings. There is no showing, and petitioners failed to prove otherwise, that the assignment by raffle of the
new informations to another branch of the same court was intended to prejudice herein petitioners, or to place them
under less favorable circumstances, or to find a court which would act favorably on the prosecution's case.

The authority of the special prosecutor appointed by the Secretary of Justice to sign and file informations has long
been recognized in this jurisdiction and it has been held that such information cannot be quashed on that account.
There is nothing so sacrosanct in the signing of complaints, holding of investigations, and conducting prosecutions
that only an officer appointed by the President or one expressly empowered by law be permitted to assume these
functions. And any irregularity in the appointment does not necessarily invalidate the same if he may be considered
49

a de facto officer. 50

Of course, where the person who signed the information was disqualified from appointment to such position, the
information is invalid and the court does not acquire jurisdiction to try the accused thereon. Such is not, however,
51

the situation obtaining in the case at bar. It will be noted that respondent prosecutor was designated by the Secretary
of Justice to handle the re-investigation
and prosecution of the case against petitioners pursuant to Department Order No. 369. Petitioners failed to show any
irregularity in the issuance of said directive.

At any rate, the power of supervision and control vested in the Secretary of Justice under Presidential Decree No.
1275 had been broadened beyond the confines of the old law, that is, Section 1679 of the Revised Administrative
Code, wherein the power of the Secretary was then limited only to certain instances. Pertinently, in Aguinaldo, et al.
vs. Domagas, et al., we said: 52

The Court notes, however; that Department of Justice Order No. 85 was issued pursuant to, among
others, P.D. No. 1275 issued on 11 April 1978 which provides:

Sec. 1. Creation of the National Prosecution Service; Supervision and Control of

the Secretary of Justice. — There is hereby created and established a National
 Prosecution Service under the supervision and control of the Secretary of
Justice, to be composed of the Prosecution Staff in the Office of the Secretary of
Justice and such number of Regional State Prosecution Offices, and Provincial
and City Fiscal's Offices as are hereinafter provided, which shall be primarily
responsible for the investigation and prosecution of all cases involving violations
of penal laws.

The power of supervision and control vested in the Secretary of Justice includes
the authority to act directly on any matter within the jurisdiction of the Prosecution
Staff, the Regional State Prosecution Office or the Office of the Provincial or City
Fiscal and to review, modify or revoke any decision or action of the Chief of said
staff or office.

The power of supervision and control vested in the Secretary of Justice under P.D. No. 1275 had
thus been broadened beyond the confines of the old law, i.e., Section 1679 of the Revised
Administrative Code of 1917, where the power of the Secretary of Justice to designate acting
fiscals or prosecutors to handle a particular case was limited to instances "when a provincial fiscal
shall be disqualified by personal interest to act in a particular case or when for any reason he shall
be unable, or shall fail to discharge any of the duties of his position." Indeed, the limitation upon
which petitioners rely no longer subsisted under P.D. No. 1275.

Having been duly designated in accordance with law, the panel of prosecutors had complete
control of the investigation and prosecution of the case. . . .

3. Petitioners similarly dispute the legality of their arraignment on January 24, 1994, when Judge Pornillos entered a
plea of not guilty for them after they refused to plead, without furnishing them copies of the information with the list of
witnesses, after merely reading the informations against them and asking whether they understood the same, which
were allegedly in palpable violation of Section 1, Rule 116. Petitioners aver that they were requesting for the
suspension of the arraignment as they wanted to have a final copy of the order of January 24, 1994 which was
merely read in open court, and to take the necessary steps to question the same by way of a motion for
reconsideration or an appeal.

In criminal cases, it is the duty of the accused, in addition to the other pleas authorized by law, to plead whether he is
guilty or not of the crime charged. In that way and in that way only can an issue be created upon which the trial shall
proceed. Section 1 (c) of Rule 116 is quite explicit that where the accused refuses to plead, a plea of not guilty shall
53

be entered for him. Hence, under such mandatory language, if the accused refuses to plead, the court must enter a
plea of not guilty. The words are so plain and unambiguous that no construction is necessary. It actually calls for a
literal application thereof. Any explanation or defense which petitioners would want to invoke can be properly raised
during the trial, but they cannot refuse to enter their plea. Nonetheless, the alleged defect in their arraignment on
January 24, 1994 is deemed to have been cured when they were again arraigned on February 18, 1994 with the
assistance of counsel de oficio, and the information was read to them in the vernacular.

In conclusion, considering that Branch 10 of the same trial court handling Criminal Cases Nos. 4004-M-93 to 4007-M-
93 legally acquired jurisdiction over the new informations which we have likewise declared valid, petitioners may be
prosecuted thereunder.

II. On the Petition for Habeas corpus

This petition is predicated mainly on petitioners' asseveration that the court which issued the warrant for their arrest
had no jurisdiction over the case, hence their detention should be deemed illegal.

We have earlier declared that Branch 10 of the trial court acquired jurisdiction over the new set of informations.
Consequently, the warrant of arrest issued on the bases of said informations filed therein and the subsequent
detention of herein petitioners pursuant thereto are valid. What instead has to be resolved is the corollary issue of
whether the petition for habeas corpus was properly filed together with their present petition
for certiorari and mandamus.

The writs of habeas corpus and certiorari may be ancillary to each other where necessary to give effect to the
supervisory powers of the higher courts. A writ of habeas corpus reaches the body and the jurisdictional matters, but
not the record. A writ of certiorari reaches the record but not the body. Hence, a writ of habeas corpus may be used
with the writ of certiorari for the purpose of review. However, habeas corpus does not lie where the petitioner has
54

the remedy of appeal or certiorari because it will not be permitted to perform the functions of a writ of error or appeal
for the purpose of reviewing mere errors or irregularities in the proceedings of a court having jurisdiction over the
person and the subject matter. 55

Neither can we grant the writ at this stage since a writ of habeas corpus is not intended as a substitute for the
functions of the trial court. In the absence of exceptional circumstances, the orderly course of trial should be pursued
and the usual remedies exhausted before the writ may be invoked. Habeas corpus is not ordinarily available in
advance of trial to determine jurisdictional questions that may arise. It has to be an exceptional case for the writ
56

of habeas corpus to be available to an accused before trial. In the absence of special circumstances requiring
57

immediate action, a court will not grant the writ and discharge the prisoner in advance of a determination of his case
in court. In the case under consideration, petitioners have dismally failed to adduce any justification or exceptional
58

circumstance which would warrant the grant of the writ, hence their petition therefor has to be denied.

In addition, a petition for habeas corpus is not the appropriate vehicle for asserting a right to bail or vindicating its
denial. In the case of Enrile vs. Salazar, etc., et al., we held that:
59
 The criminal case before the respondent Judge was the normal venue for invoking the petitioner's
right to have provisional liberty pending trial and judgment. The original jurisdiction to grant or deny
bail rested with said respondent. The correct course was for petitioner to invoke that jurisdiction by
filing a petition to be admitted to bail, claiming a right to bail per se by reason of the weakness of
the evidence against him. Only after that remedy was denied by the trial court should the review
jurisdiction of this Court have been invoked, and even then, not without first applying to the Court of
Appeals if appropriate relief was also available there.

III. On the Motion to Cite for Contempt

The records show that on February 24, 1994, this Court issued a temporary restraining order, pursuant to its
resolution in Administrative Matter No. 94-1-13-RTC which is a petition for change of venue filed by the Vinculados,
requiring Judges Felipe N. Villajuan and Victoria Villalon-Pornillos to cease and desist from hearing the criminal
cases involving herein petitioners which were pending before them. 60

Subsequently, another resolution was issued in said cases, dated

March 1, 1994, with the following directive:

ACCORDINGLY, without prejudice to the final determination as to which of the two (2) sets of
information will be upheld or prevail, the Executive Judge of the Regional Trial Court of Malolos,
Bulacan is hereby directed to transfer all the aforementioned criminal cases filed against Mayor
Honorato Galvez, et al. now in the Regional Trial Court of Malolos, Bulacan, to the Executive
Judge, Regional Trial Court of Quezon City for raffle as one (1) single case among its branches
and for the branch concerned, after raffle, to proceed with all deliberate dispatch after the issues
raised in CA-G.R. SP No. 33261 have been resolved with finality. 61

As a consequence, the seven informations which were docketed as Criminal Cases Nos. Q-94-55481 to Q-94-55487
were assigned to and are now pending trial on the merits before Branch 103 of the Regional Trial Court of Quezon
City, presided over by Judge Jaime N. Salazar, Jr. Petitioners now assert that Judge Salazar and Prosecutor Villa-
Ignacio proceeded with the trial of the cases despite the aforestated directives in the above cited resolutions. We find
no merit in the motion to cite them for contempt.

The records reveal that there was a manifestation dated May 31, 1994 filed by the Solicitor General wherein the
62

latter manifested his conformity to the agreement made between the prosecution and the defense before Judge
Salazar, the pertinent part of which agreement is as follows:

1. During the hearing on May 26, 1994, the prosecution, through Senior State Prosecutor Dennis
Villa-Ignacio, the defense through Justice Alfredo Lazaro, and this Honorable Court agreed that the
trial in these cases shall proceed on condition that: (a) the defense shall not be deemed to have
waived any issue or objection it has raised before the Supreme Court in G.R. No. 114046; and (b)
that the trial shall also be without prejudice to whatever decision and resolution the Supreme Court
may render in the case before it.

Counsel for petitioners, retired Justice Alfredo Lazaro, takes issue with said agreement on the pretension that the
same is not the true agreement of the parties, but he failed to state what they actually agreed upon. Withal, the
resolutions of this Court in the petition for change of venue, as well as the cease and desist order issued therein, are
clearly directed against the two aforenamed regional trial judges in Malolos, Bulacan. By no stretch of the imagination
can we interpret the same to include Judge Jaime N. Salazar, Jr. of Quezon City.

For that matter, the issues involved in this petition for certiorari do not necessarily require a suspension of the
proceedings before the present trial court considering that the main petition hinges only on a determination of which
set of informations shall constitute the indictments against petitioners and for which charges they shall stand trial.
Whichever set of informations prevails, the evidence of the prosecution and defense will more or less be the same
and can be utilized for the charges therein. Hence, no cogent reason exists for the suspension of the proceedings
before the court below.

As a final word, while it may well be that both sets of information validly exist for the nonce, to allow both of them to
subsist will only serve to confuse and complicate the proceedings in the cases therein. Brushing aside procedural
technicalities, therefore, it becomes exigent to now consider and declare the four informations for murder, frustrated
murder and illegal possession of firearms as having amended and superseded the original three informations for
homicide and frustrated homicide, there being no substantial rights of herein petitioners which may be affected
thereby. Correspondingly, the three informations for homicide and frustrated homicide should be ordered withdrawn
from the Quezon City trial court's docket.

WHEREFORE, judgment is hereby rendered DISMISSING the petition for certiorari and mandamus together with the
petition for habeas corpus; DENYING, for lack of merit, the motion to cite respondent judge and prosecutor for
contempt and to annul proceedings; and ORDERING the withdrawal and invalidation of the three informations for
homicide and frustrated homicide against petitioners from the docket of Branch 103 of the Regional Trial Court of
Quezon City.

SO ORDERED.

Narvasa, C.J., Puno and Mendoza, JJ., concur.

Republic of the Philippines

SUPREME COURT
Manila
 EN BANC

G.R. No. L-29169 August 19, 1968

ROGER CHAVEZ, petitioner,

vs.
THE HONORABLE COURT OF APPEALS, THE PEOPLE OF THE PHILIPPINES and THE WARDEN OF THE
CITY JAIL OF MANILA, respondents.

Estanislao E. Fernandez and Fausto Arce for petitioner.

Office of the Solicitor General for respondents.

SANCHEZ, J.:

The thrust of petitioner's case presented in his original and supplementary petitions invoking jurisdiction of this Court
is that he is entitled, on habeas corpus, to be freed from imprisonment upon the ground that in the trial which resulted
in his conviction1 he was denied his constitutional right not to be compelled to testify against himself. There is his
prayer, too, that, should he fail in this, he be granted the alternative remedies of certiorari to strike down the two
resolutions of the Court of Appeals dismissing his appeal for failure to file brief, and of mandamus to direct the said
court to forward his appeal to this Court for the reason that he was raising purely questions of law.

The indictment in the court below — the third amended information — upon which the judgment of conviction herein
challenged was rendered, was for qualified theft of a motor 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, Roger Chavez, Ricardo Sumilang alias "Romeo Vasquez", Edgardo P.
Pascual alias"Ging" Pascual, Pedro Rebullo alias "Pita", Luis Asistio alias "Baby" Asistio, Lorenzo
Meneses alias "Lory" Meneses, Peter Doe, Charlie Doe and Paul Doe.2

Averred in the aforesaid information was that on or about the 14th day of November, 1962, in Quezon City, the
accused conspired, with intent of gain, abuse of confidence and without the consent of the owner thereof, Dy Sun
Hiok y Lim, in asporting the motor vehicle above-described.

Upon arraignment, all the accused, except the three Does who have not been identified nor apprehended, pleaded
not guilty.
1äwphï1.ñët

On July 23, 1963, trial commenced before the judge presiding Branch IX of the Court of First Instance of Rizal in
Quezon City.

The trial opened with the following dialogue, which for the great bearing it has on this case, is here reproduced:.

COURT:

The parties may proceed.

FISCAL GRECIA:

Our first witness is Roger Chavez [one of the accused].

ATTY. CARBON [Counsel for petitioner Chavez]:

I am quite taken by surprise, as counsel for the accused Roger Chavez, with this move of the Fiscal in
presenting him as his witness. I object.

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. 1äwphï1.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".
1äwphï1.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 void, and one imprisoned
thereundermay obtain release of habeas corpus. 41

Under our own Rules of Court, to grant the remedy to the accused Roger Chavez whose case presents a clear
picture of 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 cause or reason other than the said judgment in said Criminal Case Q-
5311 of the Court of First Instance of Rizal, Quezon City Branch, in which event the discharge herein directed shall
be effected when such other cause or reason ceases to exist.

No costs. So ordered.

Concepcion, C.J., Reyes, J.B.L., Dizon, Makalintal, Zaldivar, Angeles and Fernando, JJ., concur. Castro, J., concurs
in a separate opinion.
Separate Opinions

CASTRO, J., dissenting :

In 1901, early in the history of constitutional government in this country, this Court reversed the conviction of an
accused who, having pleaded "not guilty," was required by the judge to testify and answer the complaint. The case
was that of United States v. Junio, reported in the first volume of the Philippine Reports, on page 50 thereof.

Resolution of the case did not require an extended opinion (it consumed no more than a page in the Reports). For
indeed the facts fitted exactly into the prohibition contained in The President's Instruction to the (Second) Philippine
Commission1 "that no person shall ... be compelled in any criminal case to be a witness against himself.".

There was no need either for a dissertation on the Rights of Man, though occasion for this was not lacking as the
predominant American members of the Court were under a special commission to prepare the Filipinos for self-
government. The privilege against self-incrimination was fully understood by the Filipinos, whose own history
provided the necessary backdrop for this privilege. 2

The Supreme Court simply said, "The judge had no right to compel the accused to make any statement whatever,"
and declared the proceedings void.

Nor was there a similar judicial error likely to be committed in the years to come, what with the constant reminder of a
Bill of Rights enshrined in successive organic acts intended for the Philippines. 3 This is not to say that the Philippine
history of the privilege ended with the Junio case. To be sure, violations of the privilege took other, and perhaps
subtle, forms4 but not the form directly prohibited by the privilege. Even in the recent case of Cabal v. Kapunan5 it was
assumed as a familiar learning that the accused in a criminal case cannot be required to give testimony and that if his
testimony is needed at all against his co-accused, he must first be discharged.6 If Cabal, the respondent in an
administrative case, was required by an investigating committee to testify, it was because it was thought that
proceedings for forfeiture of illegally acquired property under Republic Act 1379 7 were civil and not criminal in nature.
Thus Mr. Justice (now Chief Justice) Concepcion could confidently say:

At the outset, it is not disputed that the accused in a criminal case may refuse not only to answer
incriminatory questions but also to take the witness stand. (3 Whartons Criminal Evidence, pp. 1959-1960;
98 C.J.S., p. 264). Hence, the issue before us boils down to whether or not the proceedings before the
aforementioned Committee is civil or criminal in character.

Today, perhaps because of long separation from our past, we need what Holmes called "education in the obvious,
more than investigation of the obscure."8 The past may have receded so far into the distance that our perspectives
may have been altered and our vision blurred.

When the court in the case at bar required the petitioner to testify, it in effect undid the libertarian gains made over
half a century and overturned the settled law. The past was recreated with all its vividness and all its horrors: John
Lilburne in England in 1637, refusing to testify before the Council of the Star Chamber and subsequently condemned
by it to be whipped and pilloried for his "boldness in refusing to take a legal oath;" 9 the Filipino priests Gomez, Burgos
and Zamora in 1872 condemned by the Inquisition to die by their own testimony. 10

It is for this reason that I deem this occasion important for the expression of my views on the larger question of
constitutional dimension.

No doubt the constitutional provision that "No person shall be compelled to be a witness against himself" 11 may, on
occasion, save a guilty man from his just deserts, but it is aimed against a more far reaching evil — recurrence of the
Inquisition and the Star Chamber, even if not in their stark brutality. Prevention of the greater evil was deemed of
more importance than occurrence of the lesser evil. 12 As Dean Griswold put the matter with eloquence:.

[T]he privilege against self-incrimination is one of the great landmarks in man's struggle to make himself
civilized ... [W]e do not make even the most hardened criminal sign his own death warrant, or dig his own
grave, or pull the lever that springs the trap on which he stands. We have through the course of history
developed considerable feeling of the dignity and intrinsic importance of the individual man. Even the evil
man is a human being. 13

The Government must thus establish guilt by evidence independently and freely secured; it can not by coercion prove
a charge against an accused out of his own mouth. 14

This is not what was done here. What was done here was to force the petitioner to take the witness stand and state
his part in the crime charged as "star witness for the prosecution," to use the very words of the decision, and, by
means of his testimony, prove his guilt. Thus, the trial court said in its decision:

Roger Chavez does not offer any defense. As a matter of fact, his testimony as a witness for the prosecution
establishes his guilt beyond reasonable doubt.

The petitioner has been variously described by the trial court as "a car agent ... well versed in this kind of chicanery"
"a self-confessed culprit," and "a man with at least two convictions for acts not very different from those charged in
[the] information." But if he has thus been described it was on the basis of evidence wrung from his lips. If he was
ultimately found guilty of the charge against him it was because of evidence which he was forced to give. In truth he
was made the "star witness for the prosecution" against himself.
But neither torture nor an oath nor the threat of punishment such as imprisonment for contempt can be used to
compel him to provide the evidence to convict himself. No matter how evil he is, he is still a human being.

The fact that the judgment of conviction became final with the dismissal of the appeal to the Court of Appeals for
failure of the petitioner's former counsel to file a brief, 15 is of no moment. That judgment is void, and it is precisely the
abiding concern of the writ of habeas corpus to provide redress for unconstitutional and wrongful convictions.
Vindication of due process, it has been well said, is precisely the historic office of the Great Writ. 16

In many respects, this case is similar to that of Fay v. Noia. 17 Noia was convicted of murder in 1942 with Santo
Caminito and Frank Bonino in the County Court of Kings County, New York, in the killing of one Hemmeroff during
the commission of a robbery. The sole evidence against each defendant was his signed confession. Caminito and
Bonino, but not Noia appealed their convictions to the Appellate Division of the New York Supreme Court. These
appeals were unsuccessful but subsequent legal proceedings resulted in the releases of Caminito and Bonino upon
findings that their confessions had been coerced and their conviction therefore procured in violation of the Fourteenth
Amendment. Although Noia's confession was found to have been coerced, the United States District Court for the
Southern District of New York held that, because of Noia's failure to appeal, he must be denied reliefin view of the
provision of 28 U.S.C. sec. 2254 that "An application for a writ of habeas corpus in behalf of a person in custody
pursuant to the judgment of a State court shall not be granted unless it appears that the applicant has exhausted the
remedies available in the courts of the State. ..." The Court of Appeals for the Second Circuit reversed the judgment
of the District Court and ordered Noia's conviction set aside, with direction to discharge him from custody unless
given a new trial forthwith. From that judgment the State appealed.

As the Supreme Court of the United States phrased the issue, the "narrow question is whether the respondent Noia
may be granted federal habeas corpus relief from imprisonment under a New York conviction now admitted by the
State to rest upon a confession obtained from him in violation of the Fourteenth Amendment, after he was denied
state post-conviction relief because the coerced confession claim had been decided against him at the trial and Noia
had allowed the time for a direct appeal to lapse without seeking review by a state appellate court."

In affirming the judgment of the Court of Appeals, the United States Supreme Court, through Mr. Justice Brennan,
spoke in enduring language that may well apply to the case of Roger Chavez. Said the Court: 1äwphï1.ñët

Today as always few indeed is the number of State prisoners who eventually win their freedom by means of
federal habeas corpus. These few who are ultimately successful are persons whom society has grievously
wronged and for whom belated liberation is little enough compensation. Surely no fair minded person will
contend that those who have been deprived of their liberty without due process of law ought nevertheless to
languish in prison. Noia, no less than his co-defendants Caminito and Bonino, is conceded to have been the
victim of unconstitutional state action. Noia's case stands on its own; but surely no just and humane legal
system can tolerate a result whereby a Caminito and a Bonino are at liberty because their confessions were
found to have been coerced yet Noia, whose confession was also coerced, remains in jail for life. For such
anomalies, such affronts to the conscience of a civilized society, habeas corpus is predestined by its
historical role in the struggle for personal liberty to be the ultimate remedy. If the States withhold effective
remedy, the federal courts have the power and the duty to provide it. Habeas Corpus is one of the precious
heritages of Anglo-American civilization. We do no more today than confirm its continuing efficacy.

A fitting conclusion of this separate opinion may perhaps be found in two memorable admonitions from Marjorie G.
Fribourg and Justice William O. Douglas.

Mrs. Fribourg, in her inimitable phrase, warns us that —

... Time has taught its age-old lesson. Well-meaning people burnt witches. Well-meaning prosecutors have
convicted the innocent. Well-meaning objectives espoused by those not grounded in history can lure us from
protecting our heritage of equal justice under the law. They can entice us, faster than we like to believe, into
endangering our liberties.18

And these are the unforgettable words of Justice Douglas:

The challenge to our liberties comes frequently not from those who consciously seek to destroy our system
of government, but from men of goodwill - good men who allow their proper concerns to blind them to the
fact that what they propose to accomplish involves an impairment of liberty.

xxx xxx xxx

The motives of these men are often commendable. What we must remember, however, is that preservation
of liberties does not depend on motives. A suppression of liberty has the same effect whether the
suppressor be a reformer or an outlaw. The only protection against misguided zeal is constant alertness to
infractions of the guarantees of liberty contained in our Constitution. Each surrender of liberty to the
demands of the moment makes easier another, larger surrender. The battle over the Bill of Rights is a never
ending one. 1äwphï1.ñët

xxx xxx xxx

The liberties of any person are the liberties of all of us.

xxx xxx xxx

In short, the liberties of none are safe unless the liberties of all are protected.
 But even if we should sense no danger to our own liberties, even if we feel secure because we belong to a
group that is important and respected, we must recognize that our Bill of Rights is a code of fair play for the
less fortunate that we in all honor and good conscience must observe.19

Republic of the Philippines

SUPREME COURT
Manila

FIRST DIVISION

G.R. No. 118644 July 7, 1995

DIRECTOR EPIMACO A. VELASCO, as Director of the National Bureau of Investigation (NBI), NATIONAL
BUREAU OF INVESTIGATION SPECIAL OPERATIONS GROUP (SOG), SPECIAL INVESTIGATORS III FLOR L.
RESURRECCION and ANTONIO M. ERUM, JR., and THE PEOPLE OF THE PHILIPPINES, petitioners,
vs.
COURT OF APPEALS, FELICITAS S. CUYAG, for and in behalf of LAWRENCE A. LARKINS, respondents.

DAVIDE, JR., J.:

The high prerogative writ of habeas corpus, whose origin is lost in antiquity, was devised and exists as a speedy and
1

effectual remedy to relieve persons from unlawful restraint and as the best and only sufficient defense of personal
freedom. More specifically, its vital purposes are to obtain immediate relief from illegal confinement, to liberate those
2

who may be imprisoned without sufficient cause, and to deliver them from unlawful custody. It is then essentially a
writ of inquiry and is granted to test the right under which a person is detained. 3

Under our Constitution, the privilege of the writ of habeas corpus cannot be suspended except in cases of invasion or
rebellion when the public safety requires it. Pursuant to Section 1, Rule 102 of the Rules of Court, it extends, except
4

as otherwise 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. It is not available,
however, under the instances enumerated in Section 4 of the said Rule which reads:

Sec. 4. When writ not allowed or discharge authorized. — If it appears that the person alleged to be
restrained of his liberty is in the custody of an officer under process issued by a court or judge or by
virtue of a judgment or order of a court of record, and that the court or judge had jurisdiction to
issue the process, render the judgment, or make the 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 any
informality or defect in the process, judgment, or order. Nor shall anything in this rule be held to
authorize the discharge of a person charged with or convicted of an offense in the Philippines, or of
a person suffering imprisonment under lawful judgment.

In this petition for review, the petitioners want us to set aside and reverse the decision of 1 February 1995 of the
Court of Appeals in CA-G.R. SP No. 36273, a petition for habeas corpus and certiorari with a prayer for a temporary
5

restraining order, ordering the herein petitioners to immediately release Lawrence A. Larkins from their custody and
declaring moot the alternative relief of certiorari.

The antecedent facts of the case as culled from the challenged decision and the pleadings of the parties are neither
complicated nor disputed.

On 16 September 1993, a warrant of arrest was issued by Judge Manuel Padolina of Branch 162 of the Regional
Trial Court (RTC) of Pasig, Metro Manila, against accused Lawrence Larkins in Criminal Cases Nos. 101189-92 for
violations of B.P. Blg. 22.

On 20 November 1994, a certain Desiree Alinea executed and filed before the National Bureau of Investigation (NBI)
a complaint-affidavit accusing Larkins of the crime of rape allegedly committed against her on 19 November 1994 at
2:00 a.m. in Victoria Valley Subdivision, Valley Golf, Antipolo, Rizal. 6

Acting on the basis of the complaint of Alinea, petitioners Special Investigators Flor L. Resurreccion and Antonio M.
Erum, Jr. proceeded to the office of Larkins in Makati, Metro Manila, on 21 November 1994 and arrested the latter,
who was thereupon positively identified by Alinea as her rapist. Larkins was then detained at the Detention Cell of
7

the NBI, Taft Avenue, Manila.

On 22 November 1994, Larkins posted his bail of P4,000.00 in Criminal Cases Nos. 101189-92. Judge Padolina
forthwith issued an order recalling and setting aside the warrant of arrest issued on 16 September 1993 and directing
the Jail Warden of the NBI Detention Cell to release Larkins from confinement "unless otherwise detained for some
other cause."

Special Investigators Resurreccion and Erum refused to release Larkins because he was still detained for another
cause, specifically for the crime of rape for which he would be held for inquest.

On 23 November 1994, a complaint against Larkins for rape was executed by Alinea. It contains a certification by
8

Assistant Provincial Prosecutor Ma. Paz Reyes Yson that it is "filed pursuant to Section 7, Rule 112 of the 1985 Rules
on Criminal Procedure, as amended, the accused not having opted to avail of his right to preliminary investigation
and not having executed a waiver pursuant to Article 125 of the RPC. . . ." The complaint was filed with the RTC of
Antipolo on 2 December 1994, docketed therein as Criminal Case No. 94-11794, and assigned to Branch 71 of the
court, presided by Judge Felix S. Caballes.

On 2 December 1994, Larkins, through his counsel Mauricio C. Ulep, filed an Urgent Motion for Bail wherein he
9

alleged, inter alia, that the evidence of guilt against him for rape is not strong, as he had no carnal knowledge of the
complainant and the medical report indicates that her hymen was neither lacerated nor ruptured; that he is entitled as
a matter of right to bail; and that he has no intention of going out of the country or hiding away from the law.

On 6 December 1994, Larkins, through his new counsel, Atty. Theodore O. Te, filed in Criminal Case No. 94-11794
an Urgent Omnibus Motion for the Dismissal of the Complaint and for Immediate Release, principally based on the
10

alleged illegality of his warrantless arrest. This motion met vigorous opposition from the private complainant. 11

In the order of 5 January 1995, the trial court denied the aforesaid motions, thus:
12

After a careful appreciation of the arguments of the prosecution and the defense, the Court finds no
legal or valid grounds to dismiss the complaint or release the accused, or to grant him bail. The
filing of this case against the accused, which is [a] very serious offense, justifies the grant of the
motion of the prosecution for the issuance of a hold departure order.

WHEREFORE, the motions of the accused are hereby denied for lack of merit, and as prayed for
by the prosecution the Bureau of Immigration and Deportation is hereby directed to include the
name of the accused, Lawrence A. Larkins, in its hold order departure list until further order from
this Court.

Unable to accept the ruling, Larkins' common-law wife, Felicitas S. Cuyag, filed before the Court of Appeals a petition
for habeas corpus with certiorari. Impleaded as respondents were the herein petitioners and Judge Felix S. Caballes.

Subsequently, the Court of Appeals issued a resolution ordering the respondents therein to appear and produce
13

Lawrence A. Larkins before the court on 31 January 1995 at 10:30 a.m. and to show cause why Larkins' liberty is
being restrained.

On the said date, Special Investigators Resurreccion and Erum appeared and produced Larkins at the hearing. Atty.
Orlando Dizon of the NBI acted as their counsel. The Office of the Solicitor General representing the People of the
14

Philippines made no appearance. Neither did Judge Caballes, for he had not received a copy of the resolution. On
15

the other hand, the petitioner therein, Felicitas S. Cuyag, appeared with her counsel, who manifested that should the
court order the release of Larkins the alternative prayer for certiorari would be deemed abandoned. 16

After hearing the arguments of the parties, the Court of Appeals rendered the challenged decision, holding that:

From the arguments presented by the parties, we resolve to order the immediate release of Larkins
from his present confinement on the ground that the complaint presented to the NBI by complainant
Desiree Alinea on the basis of which Larkins was detained without a warrant of arrest for rape did
not meet the legal requirements provided for in Rule 113 of the Rules of Court.

Furthermore, on the day the detention of Larkins commenced, i.e., immediately after the NBI was
served with the Order of the Pasig RTC for his release on bail in connection with the BP 22 cases,
no other criminal complaint or information had been filed or pending in any court. It was only
sometime between November 25, 1994 (when filing of the complaint was approved by the Rizal
Provincial Prosecutor) and November 29, 1994 (the date appearing on the Urgent Motion for Bail
filed by Larkins's former counsel, said Atty. Ulep) that the complaint for rape was filed with the
Antipolo RTC.

The petitioners insist that the respondent court erred in granting the petition for habeas corpus because Larkins had
already been charged with the crime of rape and the trial court had denied his application for bail. They further claim
that the warrantless arrest in this case is valid for it was made under Section 5(b), Rule 113 of the Rules of Court.

On the other hand, the private respondent contends that habeas corpus is rendered unavailing not by the mere filing
of an information, but by the issuance of a warrant of arrest or warrant of commitment, which are the only two
processes recognized by law to justify deprivation of liberty, and the order of Judge Caballes of 5 January 1995
denying the petition for bail does not qualify as such. She asserts that the petitioners have
miscomprehended Paredes vs. Sandiganbayan because that case did not rule that the writ is no longer available
17

after an information (or criminal complaint for rape as in this case) is filed against the person detained; what it stated
is that the writ of habeas corpus will not issue when the person alleged to be restrained of his liberty is in the custody
of an officer under a process issued by the court which has jurisdiction to do so. She submits that the controlling
doctrine is that enunciated in Ilagan vs. Ponce Enrile, adverted to in Sanchez vs. Demetriou, that "[t]he filing of
18 19

charges, and the issuance of the corresponding warrant of arrest, against a person invalidly detained will cure the
defect of that detention or at least deny him the right to be released because of such defect."

We find for the petitioners.

But, before we take up the substantive merits of this petition, we shall first delve into the propriety of the petition
for habeas corpus and certiorari filed by private respondent Cuyag with the Court of Appeals.

Concededly, the private respondent has the personality to institute on behalf of her common-law spouse, Lawrence
Larkins, the habeas corpus aspect of the petition, as she falls within the purview of the term "some person" under
Section 3, Rule 102 of the Rules of Court, which means any person who has a legally justified interest in the freedom
of the person whose liberty is restrained or who shows some authorization to make the application. She is not,
20

however, the real party in interest in the certiorari aspect of the petition. Only Larkins could institute a petition
for certiorari to set aside the order denying his motions for bail and for the dismissal of the complaint against him.

It does not, however, follow that if certiorari is available to Larkins, an application for a writ of habeas corpus will
absolutely be barred. While ordinarily, the writ of habeas corpus will not be granted when there is an adequate
remedy by writ of error or appeal or by writ of certiorari, it may, nevertheless, be available in exceptional cases, for
the writ should not be considered subservient to procedural limitations which glorify form over substance. It must be
21

kept in mind that although the question most often considered in both habeas corpus and certiorari proceedings is
whether an inferior court has exceeded its jurisdiction, the former involves a collateral attack on the judgment and
"reaches the body but not the record," while the latter assails directly the judgment and "reaches the record but not
the body."22

And now on the merits of the petition.

The Court of Appeals granted the writ of habeas corpus because it found that the warrantless arrest of Larkins for the
crime of rape "did not meet the legal requirements provided for in Rule 113 of the Rules of Court." It could have in
mind Section 5 thereof on lawful warrantless arrest.

Even if the arrest of a person is illegal, supervening events may bar his release or discharge from custody. What is to
be inquired into is the legality of his detention as of, at the earliest, the filing of the application for a writ of habeas
corpus, for even if the detention is at its inception illegal, it may, by reason of some supervening events, such as the
instances mentioned in Section 4 of Rule 102, be no longer illegal at the time of the filing of the application. Among
such supervening events is the issuance of a judicial process preventing the discharge of the detained person. Thus,
in Sayo vs. Chief of Police of Manila, this Court held:
23

[W]e hold that petitioners are being illegally restrained of their liberty, and their release is hereby
ordered unless they are now detained by virtue of a process issued by a competent court of justice.
(emphasis supplied)

Another is the filing of a complaint or information for the offense for which the accused is detained, as in the instant
case. By then, the restraint of liberty is already by virtue of the complaint or information and, therefore, the writ
of habeas corpus is no longer available. Section 4 of Rule 102 reads in part as follows: "Nor shall anything in this rule
be held to authorize the discharge of a person charged with . . . an offense in the Philippines."

Thus, in Matsura vs. Director of Prisons, where petitioners Macario Herce and Celso Almadovar claimed to have
24

been illegally detained for more than one year without any complaint or information filed against them, this Court
denied the petition for a writ of habeas corpus, for at the time they filed the petition they had already been charged
with the crime of treason and confined by reason thereof. Harvey vs. Defensor-Santiago reiterates Matsura.
25

In Cruz vs. Montoya, this Court dismissed the petition for habeas corpus for having become academic because the
26

information for estafa against the party whose liberty was allegedly illegally restrained had already been filed and a
warrant for his arrest had been issued, and whatever illegality might have originally infected his detention had been
cured.

In Umil vs. Ramos this Court, applying the last sentence of Section 4 of Rule 102, held that the writ of habeas
27

corpus should not be allowed after the party sought to be released had been charged before any court. Thus:

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. Section 4, Rule 102, Rules of Court, as
amended is quite explicit in providing that:

Sec. 4. . . . Nor shall anything in this rule be held to authorize the discharge of a person charged
with or convicted of an offense in the Philippines or of a person suffering from imprisonment under
lawful judgment. (emphasis supplied)
28

It may also be said that by filing his motion for bail, Larkins admitted that he was under the custody of the court and
voluntarily submitted his person to its jurisdiction. In De Asis vs. Romero, this Court stated:
29

De Asis could have, right after his arrest, objected to the regularity of the issuance of the warrant of
arrest in question. Instead he not only filed a petition for bail with the lower court, thereby accepting
the court's jurisdiction over his person, but he also pleaded, on arraignment, to the information filed
against him. (emphasis supplied)

The filing of a petition or motion for bail in cases where no bail is recommended has the same legal import and effect
as the posting of bail in cases where bail is recommended. It is settled that the giving or posting of bail by the
accused is tantamount to submission of his person to the jurisdiction of the court. In the case of Carrington
vs. Peterson, this Court declared:
30

When a defendant in a criminal case is brought before a competent court by virtue of a warrant of
arrest or otherwise, in order to avoid the submission of his body to the jurisdiction of the court he
must raise the question of the court's jurisdiction over his person at the very earliest opportunity. If
he gives bail, demurs to the complaint or files any dilatory plea or pleads to the merits, he thereby
gives the court jurisdiction over his person. (State ex rel. John Brown vs. Fitzgerald, 51 Minn., 534)
In United States vs. Grant, this Court held:
31

Conceding again that the warrant issued in this case was void for the reason that no probable
cause was found by the court before issuing it, the defendant waived all his rights to object to the
same by appearing and giving bond.

While it may be true that on 6 December 1994, or four days after the filing of the Urgent Motion for Bail, Larkins, thru
a new counsel, filed an Urgent Omnibus Motion for Dismissal of the Complaint and for Immediate Release based on
the alleged illegality of his warrantless arrest, the said motion was a mere afterthought which came too late in the
day. By then, the trial court had firmly acquired jurisdiction over his person.

Moreover, the trial court's order of 5 January 1995 denying the urgent motion for bail was an unequivocal assertion of
its authority to keep in custody the person of Larkins. This order comes under the purview of the word order under the
first sentence of Section 4 of Rule 102 reading: "If it appears that the person alleged to be restrained of his liberty is in
the custody of an officer . . .
by virtue of [an] order of a court of record, and that the court or judge had jurisdiction to . . . make the order, the writ
shall not be allowed. . . ."

The foregoing renders untenable the private respondent's claim that it is the rule in Ilagan vs. Enrile which must
32

govern, that the writ may not be allowed only where the person alleged to be restrained of his liberty is in the custody
of an officer under process issued by the court or judge, and that there are only two recognized processeswhich
justify deprivation of liberty, viz., (1) commitment order and (2) warrant of arrest. The contention is not only a
deliberate misreading of Section 4 of Rule 102 limiting its application to the first part of the first sentence and
disregarding the rest, but is also an undue and unwarranted restriction of the term process. A commitment order and
a warrant of arrest are but species of judicial process.

In Malaloan vs. Court of Appeals, this Court stated:

33

Invariably a judicial process is defined as a writ, warrant, subpoena, or other formal writing issued
by authority of law; also, the means of accomplishing an end, including judicial proceedings, or all
writs, warrants, summonses and orders of courts of justice or judicial officers. It is likewise held to
include a writ, summons or order issued in a judicial proceeding to acquire jurisdiction of a person
or his property, to expedite the cause or enforce the judgment, or a writ, warrant, mandate or other
process issuing from a court of justice.

In Macondray & Co., Inc. vs. Bernabe, this Court quoted Corpus Juris' definition of the term "process," to wit:
34

As a legal term, process is a generic word of very comprehensive signification and many meanings.
In its broadest sense, it is equivalent to, or synonymous with "proceedings" or procedure and
embraces all the steps and proceedings in a cause from its commencement to its conclusion.
Sometimes the term is also broadly defined as the means whereby a court compels a compliance
with its demands. (50 C.J. 441)

We thus rule that the order of 5 January 1995 of the trial court also qualifies as a process within the meaning of
Section 4 of Rule 102.

Hence, even granting that Larkins was illegally arrested, still the petition for a writ of habeas corpus will not prosper
because his detention has become legal by virtue of the filing before the trial court of the complaint against him and
by the issuance of the 5 January 1995 order.

Even as we thus decide in favor of the petitioners, we are, nevertheless, disturbed by certain incidents relative to the
warrantless arrest of Larkins. Firstly, assuming that it was lawful, the facts before us disclose that the arresting
officers failed to strictly comply with (1) the last paragraph of Section 5, Rule 113 of the Rules of Court requiring that
the person lawfully arrested without a warrant shall forthwith be delivered to the nearest police station or jail and shall
be proceeded against in accordance with Section 7, Rule 112; and (2) Article 125 of the Revised Penal Code, as
amended, providing that he be delivered to the proper judicial authorities within thirty-six hours, the crime with which
Larkins was charged being punishable by an afflictive penalty. Although the arrest was made in Makati where there is
a police station and a municipal (now city) jail, Larkins was brought to the NBI Detention Cell at Taft Avenue, Manila,
and though the complaint of the offended party was executed on 23 November 1994, it was not until 2 December
1994 that the said complaint was actually filed in court.

Unless satisfactorily explained, the non-compliance by the arresting officers with the said provisions merits nothing
but disapproval from the Court. In the performance of their duty and in their commendable pursuit to stamp out crimes
and bring criminals to the bar of justice, law enforcement authorities should make no shortcuts, but must comply with
all procedures to safeguard the constitutional and statutory rights of accused persons. The rule of law must always be
upheld. What this Court said in Beltran vs. Garcia needs to be repeated:
35

It certainly does not speak well of officialdom, whether civilian or military, if a person deprived of his
liberty had to go to court before his rights are respected. The good name of the administration is
jeopardized, without any fault on its part, by such inefficiency or inattention to duty. Every
precaution should be taken against its repetition. Otherwise, the parties responsible for this state of
affairs would justly lay themselves open to the accusation that the greatest danger to constitutional
rights comes from public officials, men of zeal, concededly well-meaning, but without sufficient
understanding of the implication of the rule of law.

We also note that the trial court did not conduct a hearing of the urgent motion for bail, as required under Section 5,
Rule 114 of the Rules of Court. The grant or denial of bail must be based upon the court's determination as to
whether or not the evidence of guilt is strong. This discretion may only be exercised after evidence is submitted at the
hearing conducted for that
purpose. The court's order granting or refusing bail must contain a summary of the evidence for the prosecution
36

followed by its conclusion whether or not the evidence of guilt is strong; otherwise, the order would be defective and
voidable. In fact, even if the prosecutor refuses to adduce evidence in opposition to the application to grant and fix
37

bail, the court may ask the prosecution such questions as would ascertain the strength of the State's evidence or
judge the adequacy of the amount of bail. It was thus incumbent upon the trial court to receive the evidence for the
38

prosecution on the urgent motion for bail. For this procedural shortcoming, Larkins should also be partly blamed. He
did not press for a hearing after the scheduled hearing on 5 December 1994 was cancelled because, as he claimed,
the presiding Judge was out of the country. 39

WHEREFORE, the instant petition is GRANTED, and the decision of the Court of Appeals of 1 February 1995 in CA-
G.R. SP No. 36273 is hereby SET ASIDE and ANNULLED.

No pronouncement as to costs.

SO ORDERED.

Padilla, Bellosillo, Quiason and Kapunan, JJ., concur.

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. L-59118 March 3, 1988

JUAN DIZON AND SOLEDAD RAMOS, petitioners,

vs.
BRIG. GEN. VICENTE EDUARDO AND COL. TEDDY CARIAN, respondents.

Free Legal Assistance Group for petitioners.

The Solicitor General for respondents.

RESOLUTION

TEEHANKEE, C. J.:

"This is a case of disappeared persons" (desaparecidos). This was the opening plea filed six years ago by the late Senator Jose Wright
Diokno as lead counsel 1on behalf of the parents of the two young persons Eduardo Dizon, 30 years of age at the time, single and described
in the petition as "a community leader and a self-employed businessman (despite his having only one arm)" and Isabel Ramos, 22 years of
age at the time, single and a former architecture student. The two had been arrested with others by the military, detained in the military
camp, and then claimed by the military to have been released after nine days. But they were not released to their parents, who had been
visiting them, nor to any other responsible person — and were never seen or heard from by anyone since then.

Senator Diokno passed away a year ago last February 27th. He, together with the martyred Senator Benigno "Ninoy"
Aquino, Jr. were the first victims of martial law imposed in September 1972 by then President Ferdinand E. Marcos,
destroying in one fell swoop the Philippines' 75 years of stable democratic traditions and established reputation as the
showcase of democracy in Asia. They were the first to be arrested in the d ark of the night of September 22, 1972, as
the military authorities spread out through the metropolis upon orders of the President-turned-dictator to lock up the
opposition together with newspaper editors, journalists and columnists and detain them at various army camps. What
was the martial law government's justification for the arrest and detention of Diokno and Aquino? The government's
return to their petitions for habeas corpus claimed that they were "regarded as participants or as having given aid and
comfort "in the conspiracy to seize political and state power and to take over the government by force.'" The fact is 2

that they just happened to be the foremost contenders for the Presidency of the Republic in the scheduled November
1973 Presidential elections, at which time Mr. Marcos would have finished his second 4-year term and barred under
the prevailing 1935 Constitution from running for a third term. In their petitions for habeas corpus, they challenged the
proclamation of martial law and their arbitrary detention, invoking the Constitution and the Bill of Rights.

It was to take almost two years for Diokno to regain his liberty. No charges of any sort were ever filed against him. His
continued arbitrary detention without any charges for close to two years was getting more and more untenable. As
the separate opinion-resolution of then Chief Justice Querube C. Makalintal stated, a vote of seven-to-five of the
3

Court's twelve members then in favor of granting Diokno's motion to withdraw his petition filed earlier was not
deemed sufficient by the majority which scheduled the promulgation of the Court's action and resolution dismissing all
the petitions and upholding the validity of the martial law proclamation for September 12, 1974, which was the last
day before Justice Calixto Zaldivar's compulsory retirement from the Court upon reaching the age of 70. But as the
said opinion-resolution further stated: "Before they could be promulgated, however, a major development
supervened: petitioner Diokno was released by the President in the morning of September 11, 1974. In view thereof
all the members of this Court except Justice Castro agreed to dismiss Diokno's petition on the ground that it had
become moot, with those who originally voted to grant the motion for withdrawal citing said motion as an additional
ground for such dismissal.

What is not found in the proceedings or opinions and which should now be made part of the record for the sake of
historical truth is that what precipitated the sudden order releasing Diokno on September 11, 1974 was that Mme.
Justice Cecilia Munoz-Palma, who had been appointed to the Court with two others on October 21, 1973, had
submitted a dissent with her separate opinion assailing Diokno's continued detention for two years without charges as
a violation of the Universal Declaration of Human Rights. This promptly reached the big ears of Mr. Marcos and he
forthwith issued the release order and aborted Justice Palma's dissent. The Court's 11-member opinion-resolution
4

dismissing all petitions and upholding the validity of the proclamation of martial law with eight separate opinions was
ultimately released on September 17, 1974. 5

Senator Ninoy Aquino underwent an even more tortuous ordeal. He was charged on August 11, 1973 with murder,
subversion and illegal possession of firearms and found guilty and sentenced to death by a military commission,
notwithstanding his being a civilian and the fact that said general offenses were allegedly committed before the
imposition of martial law, and could not fall within the jurisdiction of military commissions, which are not courts but
mere adjuncts of the Commander-in-Chief to enforce military discipline. Mr. Marcos had publicly pronounced the
evidence against Ninoy as "not only strong but overwhelming" in a nation-wide press conference on August 24, 1971
following the Plaza Miranda bombing three days earlier of the LP proclamation meeting, yet had not charged him
before the civil courts. Ninoy had contended correctly but in vain that he had been publicly indicted and his guilt
prejudged by Mr. Marcos' and he could not possibly get due process and a fair trial before a group of Mr. Marcos'
military subordinates. In 1980. After over eight years of detention, Ninoy Aquino was allowed to leave to undergo
6

heart surgery in the U.S. After three years of exile, he sought to return and as is now history, he was to die within 60
seconds of his being led away by soldiers from his plane that had just landed at the MIA on August 21,1983 at past 1
p.m.

Diokno and Ninoy had undergone untold hardships of solitary confinement and deprivation during their long
detention. In fact, at one time they themselves had disappeared — were also desaparecidos. Their wives filed in early
April, 1973 an urgent petition, stating that after their visitation privileges were stopped since March 10, 1973 and
February 25, 1973, respectively, their husbands had disappeared from their detention cells and that they had lost all
contact with them for over a month and, worse, that all their personal effects and clothes, including their eyeglasses,
toothbrushes and medicines had been ominously returned without any explanation to their homes. It turned out that
Ninoy had been able to smuggle out of his solitary cell a written statement critical of Mr. Marcos and his martial law
regime. He and Diokno were thereafter secretly flown out, manacled and blindfolded, by the military to the army camp
at Fort Magsaysay in Nueva Ecija where they were stripped naked and isolated in boarded cells with hardly any light
or ventilation.

On the same day, April 6, 1973, the Court forthwith "upon humanitarian consideration .... resolved unanimously to
grant ... (their) prayer to be allowed to visit their husbands, subject to such precautions as respondents may deem
necessary." Again, we must record here for the sake of historical truth, and so that such undue interference and
pressure upon the Court may never again come to pass, that upon the issuance of the Resolution, the then Acting
Solicitor General (in the absence of then Solicitor General Mendoza), upon orders of the powers that were, sought
audience with the then Chief Justice (who convened the members of the Court), in an attempt to convince the Court
to recall the Resolution, citing reasons of national security and personal safety of the detainees and that "compliance
with the Resolution will encroach upon and dangerously erode the martial law powers exclusively vested in the
President by the 1935 and 1973 Constitution." -a The Court, as one, maintained its Resolution (telling him to file a
6

proper motion for reconsideration, which he did on April 10, 1973 and was to be rendered moot afterwards). To do
otherwise would have been craven submission and abdication. When their wives finally got to see Diokno and Ninoy
on April 8,1973 for thirty minutes after a four-hour automobile trip to the concentration camp at Fort Magsaysay, they
were a pitiable sight, having lost about 30 to 40 pounds in weight.

After Diokno's release on September 11, 1974, in the words of living legend Justice J.B.L. Reyes "(I)t is a measure of
his soul's greatness that after being unjustly imprisoned for two years and released without any charges being
preferred against him, Ka Pepe wasted no time in protests or recriminations but immediately proceeded to organize
and guide the Free Legal Assistance Group (FLAG) dedicated to the gratuitous defense and vindication of others
who, like him, would be persecuted, oppressed and denied justice. To this task he dedicated the rest of his life, even
when nailed to the bed of suffering that brought him to an early grave." It is fitting that his selfless dedication to the
7

cause of the poor, the deprived and the oppressed and to pro bono service be herein duly acknowledged, albeit
posthumously. He knew only too well, having experienced it himself with his wife and family, the mental anguish and
torture and the sustained shock undergone by the spouses and families of persons who have disappeared — "the
crushing reality of loss coupled with the unreality of death that afflicts the families of those who have disappeared The
result is a form of mental torture brought about by either the suspension of bereavement or the feeling of
helplessness — and paralyzing uncertainty about what to do to protect their loved ones." He wished at the very least
8

to alleviate their pain and anguish. Illustrious son of an illustrious father, Justice Ramon Diokno, he left a legacy of
9

hope and faith in the Filipino, as he wrote:

When martial law was imposed, what happened to the law?

And so law in the land died. I grieve for it but I do not despair over it. I know, with a certainty no
argument can turn, no wind can shake, that from its dust will rise a new and better law: more just,
more human and more humane. When that will happen, I know not. That it will happen, I know . 10

This application for the issuance of a writ of habeas corpus had been filed on December 17,1981 by petitioners, Juan
Dizon and Soledad Ramos, on behalf of their son, Eduardo Dizon and their daughter, Isabel Ramos, respectively,
who were arrested on September 15,1981 by Philippine Constabulary (PC) elements of the Pampanga PC Command
then led by respondent Provincial Commander Col. Teddy Carian at Barrio Sto. Rosario, Sta. Ana, Pampanga without
warrant of arrest or Presidential Order of Arrest They were detained by the respondents at the PC Stockade at San
Fernando, Pampanga under the jurisdiction of respondents Brig. Gen. Vicente Eduardo, then Regional Commander
of the area, holding office at Camp Olivas, and Col. Teddy Carian for interrogation and investigation without
assistance of counsel. The desaparecidos were allegedly released nine days later, or on September 24,1981, as per
their release papers of the same date. However, they were never seen nor heard from since their supposed release.
11

Alleging that the signatures of the desaparecidos on their release papers were falsified and thus, they were never
released by the military said release being a scheme of the respondents to prolong their detention, torture and
interrogation, the petitioners-parents filed the petition at bar on December 17,1981.
The Court issued the writ of habeas corpus on December 29, 1981. In the return of the writ filed on behalf of
respondents on January 5,1982, by then Solicitor General Estelito P. Mendoza, and verified by respondent, then
Provincial Commander Col. Carian, respondents insisted that the detainees were indeed released on September
24,1981, and submitted the supporting affidavits dated December 30, 1981 of Major Reynaldo C. Cabauatan and lst
Lt. Roque S. Maranon, both assigned with respondent Carian's Provincial Headquarters. Respondents denied
12

petitioners' allegation of falsification of the detainees' signatures on their release papers, claiming that the same were
signed in their presence and asked for dismissal of the petition.

Diokno invoked the United Nations General Assembly Resolution expressing deep concern over such cases of
involuntary disappearances and calling on all governments to stamp it out, as follows:

RESOLUTION ON DISAPPEARED PERSONS

December 20, 1978

The General Assembly.

Recalling the provisions of the Universal Declaration of Human Rights, and in particular Articles 3,
5, 9, 10 and 11, concerning, inter alia, the right to life, liberty and security of person, freedom from
torture, freedom from arbitrary arrest and detention, and the right to a fair and public trial; and the
provisions of articles 6,7,9 and 10 of the International Covenant on Civil and Political Rights, which
define and establish safeguards for certain of these rights;

Deeply concerned by reports from various parts of the world relating to enforced or involuntary
disappearances of persons as a result of excesses on the part of law enforcement or security
authorities or similar organizations, often while such persons are subject to detention or
imprisonment, as well as of unlawful actions or widespread violence;

Concerned also at reports of difficulties in obtaining reliable information from competent authorities
as to the circumstances of such persons, including reports of the persistent refusal of such
authorities or organizations to acknowledge that they hold such persons in their custody or
otherwise to account for them;

Mindful of the danger to the life, liberty and physical ty of such persons arising from the persistent
failure of these authorities or organizations to acknowledge that such persons are held in custody
or otherwise to account for them;

Deeply moved by the anguish and sorrow which such stances cause to the relatives of disappeared
persons, especially to spouses, children and parents;

1. Call upon Governments:

(a) In the event reports of enforced or involuntary disappearances, to devote appropriate resources
to searching for such persons and to undertake speedy and impartial investigations;

(b) To ensure that law enforcement and security authorities or organizations are fully accountable,
especially in law, in the discharge of their duties, such accountability to include legal responsibility
for unjustifiable excesses which might lead to enforced or involuntary disappearances and to other
violations of human rights;

(c) To ensure that the human rights of all persons, including those subjected to any form of
detention and imprisonment, are fully respected;

(d) To cooperate with other Governments, relevant United Nations organs, specialized agencies,
inter-governmental organizations and humanitarian bodies in a common effort to search for, locate
or account for such persons in the event of reports of enforced or involuntary disappearances;

2. Requests the Commission on Human Rights to consider the question of disappeared persons
with a view to making appropriate recommendations;

3. Urges the Secretary-General to continue to use his good offices in cases of enforced or
involuntary disappearances of persons, drawing, as appropriate, upon the relevant experience of
the International Committee of the Red Cross and of other humanitarian organizations;

4. Requests the Secretary-General to draw the concerns expressed in this resolution to the
attention of all Governments, regional and inter-regional organizations and specialized agencies for
the purpose of conveying on an urgent basis the need for disinterested humanitarian action to
respond to the situation of persons who have disappeared.

— UN Document A/RES 33/173

Diokno posed on behalf of the desaparecidos the following vital questions in the case at bar: When respondents'
defense to a petition for habeas corpus is that they released the detainees for whom the petition was filed, but the
allegation of release is disputed by petitioners, and it is not denied that the detainees have not been seen or heard
from since their supposed release, do petitioners have the burden in law of proving that the detainees are still
detained by respondents or does the burden shift to respondents of proving that they did release the detainees?
Secondly, if respondents have the burden of proving by clear and convincing evidence that they released the
detainees, have they in fact discharged that burden in this case? And lastly, if respondents have not satisfied the
Court that they released the detainees, but nevertheless refuse or are unable to produce their bodies, what relief may
the Court grant petitioners?

I. On the first question, we have applied the general rule in a number of cases that the release of a detained person
renders the petition for habeas corpus moot and academic. Respondents make such a plea in line with their return
that they had released the desaparecidos after nine days. But their return begs the question. The cited general rule
postulates that the release of the detainees is an established fact and not in dispute, and that they do not continue to
be missing persons or desaparecidos. Where, however, there are grounds for grave doubts about the alleged release
of the detainees, which we share, particularly, where the standard and prescribed procedure in effecting the release
has not been followed, then the burden of proving by clear and convincing evidence the alleged release is shifted to
the respondents. Release is an affirmative defense and "each party must prove his own affirmative allegations," just
13

as the burden of proof of self-defense in a killing rests on the accused. Moreover, evidence of release lies particularly
within respondents' power.

II. This brings us to the second question: Have the respondents proved the alleged release by clear and convincing
evidence? Diokno submitted a negative answer thereto on the following grounds:

1. The signatures of the detainees on their release papers were falsified. (Petitioners submitted specimen signatures
of the desaparecidos Eduardo Dizon and Isabel Ramos, attached as Annexes "B" and "C", respectively, of the
petition. At the hearing of the case on January 7, 1982, the records of the PC/INP Command, San Fernando,
Pampanga were submitted to this Court by the Solicitor General. On page 33 thereof, is found the application for
registration as voter of Eduardo Dizon which was filed with the Election Registrar of Sta. Ana, Pampanga, on October
29,1977, while on page 88- 95, are found the statement of Isabel Ramos when she previously surrendered to the
Bataan PC Command in 1978, the booking sheet and arrest report, and on pages 51-62 and 73-84 are copies other
statement executed on September 16,1981, after her second arrest. A xerox copy of the voting record of Eduardo
14

Dizon, when he voted at Sta. Ana, Pampanga in the 1981 presidential election was also submitted. The documents
bear the signatures of the undisputed detainess. Diokno submitted that even the signatures of the detainees on
documents that respondents themselves submitted are markedly different from the signatures on their supposed
release certificates. With respect to Eduardo Dizon, Diokno noted particularly the very poor line quality of Dizon's
signature on the release certificate when compared to the speed and freedom of his signature on his voter's
application form . With respect to Isabel Ramos, the final letter's' in Ramos in the waiver of detention and certificate
15

of release do not contain any retrace or flourish, whereas in all her signatures on her statements the final letter "s"
has a retrace like an "x" as the last stroke.
16

The Solicitor General, in turn, in the Answer filed as Supplement to the Return on behalf of respondents disputes
Diokno's conclusions about the falsity of the detainees' signatures on the release certificates and questions the
reliability of the specimen signatures used, adding that "it is not possible to make any comparison of signatures for
the purpose of determining genuineness on the basis of xerox copies. 17

2. Respondents did not follow the prescribed standard procedure for releasing detainees:

a) Respondents did not release the detainees to their parents though the latter had been visiting them and, in fact
Dizon's father was in the camp on the very day he was supposedly released. Failing this, they should be released to
another responsible person in the community. This is the standard practice, as shown by the certificate of release of
Isabel Ramos when she was first taken into custody in 1978 as well as the certificates of release of the other alleged
"Communist Terrorists" arrested with the two desaparecidos who were released a day ahead.

b) Defense Ministry regulations require that releases be reported to the Ministry within 72 hours. Respondent Carian
did not report the supposed releases to the Ministry. In fact, he did not even report their "releases" to his regional
commander, respondent Gen. Eduardo.

c) Respondent Carian's command could not readily furnish copies of the detainees' release certificates to their
parents when the latter asked for them. They took one month to produce the certificate of Isabel and three monthsto
produce that of Eduardo.

d) Respondent Col. Carian had no authority, inherent or delegated, to release the detainees. In respondents' return, it
was stated that the two were arrested in flagrante delicto with unlicensed firearms and explosives. Under General
Order No. 67 (October 8, 1980), only the President or his duly authorized representative could have released the two
before trial. Respondent Carian's records also fail to show that he consulted with respondent General Eduardo, much
less with Defense Minister Enrile, before he supposedly released the detainees.

3. The inherent implausibility of respondent Carian's reason for supposedly releasing the detainees — that they had
agreed to act as spies.

a) Respondent Carian says he knew that Isabel had once before been detained for subversive activities. It is unlikely
that Isabel would have agreed to become a spy and even more unlikely that respondent Carian would have believed
her if she had.

b) Respondent Carian knew that the probability of the detainees' keeping their supposed bargain was remote. Yet, he
took no precautions to insure compliance. Worse, when they broke the supposed bargain by failing to report as he
says they agreed to, he took no steps to look for them.

c) If respondent Carian wanted the detainees to become spies, he certainly made sure neither
would be effective.
—He did not follow the prescribed procedure in releasing them. That made the release and consequently the
detainees themselves--immediately suspect.

—He required them to report to his command twice a month. That made it virtually certain that their activities would
be discovered, and soon, by their comrades.

—He eagerly revealed the supposed bargain in his defense in this case, making it a matter of public record. That
effectively stifled any possibility of the supposed bargain's ever being carried out.

—It appears clear that no bargain was ever made with the detainees for them to be released in order for them to act
as spies. The given reason for their release in order to act as spies appears far from credible — considering that
respondents were admittedly aware the risk that the detainees "would renege on their promise." The burden of
18

proving their actual release remains undischarged!

4. What is likewise difficult of comprehension is that according to the affidavits of Major Cabauatan and Lt. Maranon,
elements of their command after encountering a group of "heavily armed men" captured the detainees with other
alleged Comminist Terrorists; with one casualty on the latter's side, yet all of them except the two detainees "were
released on or before September 23, 1981, having been found out that no sufficient evidence would be established to
warrant their further detention" (see fn. 12, supra) and on September 24,1981, the two desaparecidos were likewise
supposedly released. This appears to be a result of respondents' own decision, without proper referral to the proper
prosecution authorities to make the judgment. This was in effect admitted by the Solicitor General in his
Supplemental Answer stating that:

The release of Eduardo Dizon and Isabel Ramos was part of a military operation against the NPA.
The Pampanga PC Commander, respondent Lt. Col. Carian, had authority from higher
headquarters to do what was essential in connection with that military operation. This was
confirmed during the hearing by respondent Gen. Eduardo. Respondent Carian used sound
discretion in releasing the two. Instead of attempting to prosecute them with evidence perhaps
inadequate to convict although adequate prima facie, he decided to derive benefit from the situation
by using them to obtain information on NPA activities. 19

Having been supposedly found with explosives and unlicensed firearms in an encounter, such decision to release
them instead and enlist them as spies again appears to strain credulity. More so in the case of Isabel Ramos who at
19 years in 1978 had already reneged on her alleged promise to spy for respondents. And in the case of Eduardo
Dizon, while the military regarded him as a suspected "Communist Terrorist", his claim as a community leader seems
to have valid basis for the Solicitor General himself had appointed him as KBL watcher in the 1980 elections and his
father had sought the Solicitor General's assistance several times to find Eduardo. Nor have respondents questioned
petitioners' good faith and their efforts to find their missing children.

III. The Court regrets that it cannot grant the relief sought by petitioners. It is not the repository of all remedies for
every grievance. But the Court does state that under the facts and circumstances above set forth, it is far from
satisfied and as already indicated shares the grave doubts about public respondents' allegation that they had
released the desaparecidos on September 24, 1981, nine days after they were taken into custody. Petitioners'
charges of falsification of the detainees' alleged signatures on the certificates of release, compounded by the
irregularities and failure of respondents to follow the prescribed procedure in effecting the release for purposes of
authentication and to produce and furnish the parents upon request copies of the release certificates (taking one
month in the case of Isabel Ramos and three months in the case of Eduardo Dizon) need thorough investigation. If
duly determined, they would involve, as indicated by Diokno, prosecution for criminal contempt, falsification of public
document, perjury and violation of Article 125 of the Revised Penal Code requiring delivery of detained persons to the
judicial authority within the periods therein fixed, and worse. This connotes that the respondents with their
subordinates who executed the supporting affidavits, Major Cabauatan and Lt. Maranon, were involved in a grand
conspiracy for the purpose. The Court cannot make this determination. It is not a trier of facts, nor does it have the
means and facilities to conduct such investigation of the grave charges at bar as well as of the whereabouts and fate
of the desaparecidos.

While the case was pending under the martial law regime of Mr. Marcos whom the people finally ousted on February
25, 1986, the Court was hard put to refer the charges to an independent government entity or agency to conduct such
investigation. Diokno in his traverse of February 24,1982 to the return had in expressing hope that
the desaparecidos might still be alive as against the Solicitor General's conjecture that they may have met their death
after their alleged release, cited documented cases of other detainees who were arrested and hidden by the military
for periods from four months to almost a year, then allowed to surface, such as that of:

Delfin Delica, a former university student arrested on October 11, 1975, along the highway in
Bulacan, Central Luzon. He was confined incommunicado for nearly a year in a 'safehouse' of the
Constabulary Anti- Narcotics Unit (CANU), which is also involved in anti-subversive operations,
before his relatives were informed of his whereabouts and were allowed to see him. ...

Another prisoner arrested and kept in isolation by CANU was Francisco Pascual, Jr., a pastor at
the Four-square Church and student at the University of the Philippines, Los Baños. Pascual was
held incommunicado for four and a half-months in a safehouse and tortured by CANU agents led
by Lieutenant Colonel Saturnino Domingo, deputy CANU chief. Pascual, however, managed to
escape from the "safehouse" to tell of his ordeal.

A more recent case ... is that of Sixto Carlos, Jr. Arrested on April 23, 1979, in Mandaluyong, Metro
Manila, with no witnesses, Sixto Carlos, Jr. was held incommunicado and blindfolded in a small,
dark room where he was tortured for several days. His tormentors refused to allow him to take
medication prescribed for his heart ailment, although they had found the results of his ECG test in
his wallet. It was four months before his family learned of his whereabouts.
 ... Sixto Carlos, Jr.'s father is a retired Colonel and was at one time the armed forces Judge
Advocate General. Normally the military officers who arrested Sixto, Jr. would have given due
regard to this fact and informed the retired colonel of his son's whereabouts and well-being. But
even the armed forces chief of staff, General Romeo Espino, and Defense minister Juan Ponce
Enrile categorically denied having Sixto, Jr. in custody despite persistent appeals by the family.

... it took a personal audience by Sixto, Jr.'s wife with President Marcos to get definitive information
that the prisoner was alive and in military custody. Only upon Marcos' order was the wife — and
she alone — first allowed to visit her husband at the heavily-secured military Security Unit detention
area in Fort Bonifacio. Sixto, Jr.'s lawyer, Jose W. Diokno, later managed to see him once; Sixto,
Jr. was pressured to dismiss Diokno as his lawyer, under threat of losing the visiting privilege of his
wife and children if he did not do so.

— Disappearances: A Workbook, New York: Amnesty International USA, 1981, pp. 71-72. 20

Fortunately, after the historic February 1986 peaceful revolution which saw the ouster of the Marcos dictatorship and
the restoration of freedom and democracy in our beloved land, President Corazon C. Aquino immediately moved to
restore fundamental democratic structures and processes. One such step, among many, was the creation on March
18, 1986 of the Presidential Committee On Human Rights (PCHR) with Diokno himself as chairman to affirm "the
21

new governments commitment to "uphold and respect the people's civil liberties and human rights,'" and "the United
Nations General Assembly's Resolution of 14 December 1984, encouraging all member states to take steps for the
establishment or, where they already exist, the strengthening of national institutions for protection of human
rights," and was primarily charged with the investigation, among others, of "complaints it may receive, cases known
22

to it or to its members, and such cases as the President may, from time to time assign to it, of unexplained or forced
disappearances (extra-judicial killings, salvaging, massacres, torture, hamletting, food blockades) and other violations
of human rights, past or present, committed by officers or agents of the national government or persons acting in their
place or stead or under their orders, express or implied."

More, the 1987 Constitution which was overwhelmingly ratified on February 2,1987 expressly mandated the creation
of the Commission on Human Rights as an independent office in place of a mere Presidential Committee. The
23

Constitution vested the Commission on Human Rights with broader powers than its predecessor committee, such as
to investigate, on its own or on complaint by any party, all forms of human rights violations involving civil and political
rights; to exercise visitorial powers over jails, prisons, or detention facilities; to establish a continuing program of
research, education, and information to enhance respect for the primacy of human rights; to recommend to the
Congress effective measures to promote human rights and to provide for compensation to victims of violations of
human rights, on their families; to monitor the government's compliance with international treaty, obligations on
human rights and grant immunity from prosecution to any person whose testimony or whose possession of
documents or other evidence is necessary or convenient to determine the truth in any investigation conducted by it or
under its authority. On May 5, 1987, President Corazon C. Aquino issued Executive Order No. 163 declaring the
effectivity of the creation of the Commission On Human Rights as provided for in the 1987 Constitution. This case (as
well as all other cases, past and present) may therefore be properly referred to said Commission for a full and
thorough investigation and determination of the facts and circumstances surrounding the disappearance of Eduardo
Dizon and Isabel Ramos and of the related grave charges of petitioners against the respondents and the other
officers above-named.

ACCORDINGLY, the Court Resolved to refer this case to the Commission on Human Rights for investigation and
appropriate action as may be warranted by its findings, and to furnish the Court with a report of the outcome of its
investigation and action taken thereon. This Resolution is immediately executory.

Yap, Fernan, Narvasa, Cruz, Paras, Feliciano, Gancayco, Padilla, Bidin, Sarmiento and Cortes, JJ., concur.

Griño-Aquino, J., took no part.

Separate Opinions

MELECIO-HERRERA, J., concurring:

Except for the obiter in pp. 2-9.

Gutierrez, Jr., J., concur.

Separate Opinions

MELECIO-HERRERA, J., concurring:

Except for the obiter in pp. 2-9.

Gutierrez, Jr., J., concur.

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. 93559 April 26, 1991

MAJOR ROMEO G. ELEPANTE, petitioner,

vs.
HONORABLE JOB B. MADAYAG, 1st Vice Executive Judge, Branch 145, Makati, Metro Manila REGIONAL
TRIAL COURT, and MAJ. GEN. RODOLFO BIAZON, Commanding General, National Capital Region Defense
Command, respondents.

Michael P. Moralde for petitioner.

PARAS, J.:

This is a petition for certiorari questioning the decision* dated May 24, 1990, of the Regional Trial Court, Branch 145,
National Capital Judicial Region, Makati, Metro Manila dismissing Major Romeo Elepante's petition for habeas
corpus.

It appears on record that on May 11, 1990, Major Romeo Elepante filed a petition for habeas corpus with this Court
docketed as G.R. No. 93172.

On May 15, 1990, the Court resolved to issue a writ returnable to the Executive Judge of the Regional Trial Court,
Makati, Metro Manila. Also this Court directed the latter to hear and decide the case.

In an order dated May 17, 1990, Executive Judge Santiago Ranada, Jr., assigned the case to Judge Job Madayag.
The latter heard the case with the conformity of the parties' lawyers.

In the hearing on May 24, 1990, Romeo Elepante testified that he is a Major in the Philippine Navy (Marines) and the
Executive Officer of the Metropolitan Citizens Military Training Command; that on April 15, 1990, at about 3:00 o'clock
in the morning, he was awakened in his house by a platoon of armed soldiers led by Captain Doctor who informed
him that he was invited by the Intelligence Service of the Armed Forces of the Philippines; that the soldiers brought
him to the National Capital Region Defense Command where he was detained; that there was no warrant for his
arrest; that he was investigated for five (5) days and confined as prisoner at Fort Bonifacio; that no formal charges
have been filed against him.

Except for a xerox copy of an order of arrest and confinement dated April 14, 1990, issued by Colonel Jorge Agcaoili,
the Adjutant General of the Armed Forces of the Philippines, which was marked as Exhibit "1", Assistant Solicitor
General Zoilo A. Andin respondent's counsel, did not offer other documentary nor testimonial evidence.

On even date May 24, 1990, the trial court rendered a decision dismissing for lack of merit the petition for habeas
corpus. The trial court opined that Major Elepante was arrested because of his involvement in
several coupattempts. Citing Article 70 of the Articles of War, the trial court stated that it is the Chief of Staff of the
Armed Forces of the Philippines who can order his release. It also pointed out that military procedure does not
require that a formal charge must be filed before a military officer may be arrested and confined on orders of his
commanding officer.

On June 11, 1990, Major Elepante filed this petition for review on certiorari, alleging inter alia, that there is no criminal
complaint filed against him so that his continued detention is a violation of the Constitution. He also argues that
confinement or detention is allowed under Article 70 of the Articles of War if a case is filed against a military officer.

In compliance with this Court's resolution En Banc dated June 21, 1990, the Office of the Solicitor General filed its
comment. In his comment the Solicitor General pointed out that counsel for petitioner received on May 29, 1990, a
copy of the trial court's decision dated May 24, 1990, so that when he filed this petition on June 11, 1990, the
assailed decision had attained finality. Citing Rule 41, Section 18 of the Revised Rules of Court, appeal in habeas
corpus should be filed within forty-eight (48) hours from notice of the judgment. The Solicitor General also argued that
petitioner may be confined or restricted on the mere suspicion of having committed a crime or offense he being a
military officer subject to the provisions of Article 2 of the Articles of War and Section 8 of the Manual of Court Martial.

The first issue to be resolved is timeliness of the instant petition for review on certiorari.

Section 18 of Rule 41 of the Revised Rules of Court, explicitly provides, viz:

Sec. 18. Appeal in habeas corpus cases, how taken. — An appeal in habeas corpus cases shall be
perfected by filing with the clerk of the court or the judge who rendered the judgment, within forty-eight (48)
hours from notice of such judgment, a statement that the person making it appeals therefrom.
As interpreted in the case of Saulo v. Brig. Gen. Cruz (109 Phil. 379 [1960]), which also involved a habeas
corpuscase, this Court ruled that the requirement under Section 18 of Rule 41 of the Old Rules of Court which
provides that an appeal in habeas corpus should be perfected within twenty-four (24) hours (now forty-eight hours
under Rule 41, Section 18 of the Revised Rules of Court), is not only mandatory but jurisdictional. Hence, this Court
has no other alternative but to dismiss the appeal filed out of time.

The Saulo case was cited in Medina v. Yan (60 SCRA 73 [19741) where the Court ruled that appeal in habeas
corpus from the decision of the CFI shall be taken to the Court of Appeals where it involves factual questions or
directly to the Supreme Court on pure questions of law. Amplifying the Saulo ruling, this Court ruled that the decision
of the Judge to whom the writ is made returnable, either for the release of the detainee or for sustaining his detention,
if not appealed on time, can become final just like an ordinary case.

In computing the forty-eight (48) hour period of appeal, this Court in Kabigting v. Director of Prisons (6 SCRA 281
[1962]), ruled that the date on which the decision was promulgated and/or served is not counted and the period starts
to run the following day unless the same by a Sunday or legal holiday in which case the period of appeal is to be
considered from the succeeding day. To perfect an appeal, a notice of appeal is required to be filed with the Clerk of
Court or Judge who rendered the judgment (Rule 41, Section 18, Revised Rules of Court).

In the case at bar, counsel for petitioner received on May 29, 1990 a copy of the trial court's decision dated May 24,
1990 (Rollo, p. 8). Clearly when he filed the instant petition on June 11, 1990, thirteen (13) days had lapsed, so it
1âwphi1

was filed outside the forty-eight (48) hour reglementary period. This being so, the decision sought to be reviewed is
already final so that this Court following the Saulo ruling, has no alternative but to dismiss the instant petition.

However, this Court as protector of the rights of the people, must stress the point that if the participation of petitioner
in several coup attempts for which he is confined on orders of Adjutant General Jorge Agcaoili cannot be established
and no charges can be filed against him or the existence of a prima facie case warranting trial before a military
commission is wanting, it behooves respondent then Major General Rodolfo Biazon (now General) to release
petitioner. Respondents must also be reminded that even if a military officer is arrested pursuant to Article 70 of then
Articles of War, indefinite confinement is not sanctioned, as Article 71 thereof, mandates that immediate steps must
be taken to try the person accused or to dismiss the charge and release him. Any officer who is responsible for
unnecessary delay in investigating or carrying the case to a final conclusion may even be punished as a court martial
may direct.

PREMISES CONSIDERED, (a) the petition is hereby DISMISSED for the decision sought to be reviewed is already
final and (b) General Rodolfo Biazon or his successor is directed to take appropriate action.

SO ORDERED.

Fernan, C.J., Narvasa, Melencio-Herrera, Gutierrez, Jr., Cruz, Feliciano, Gancayco, Padilla, Bidin, Sarmiento, Griño-
Aquino, Medialdea, Regalado and Davide, Jr., JJ., concur.

EN BANC

P/SUPT. FELIXBERTO G.R. No. 182165

CASTILLO, POLICE OFFICERS
ROMEO BAGTAS, RUPERTO Present:
BORLONGAN, EDMUNDO
DIONISIO, RONNIE MORALES, PUNO, CJ,
ARNOLD TRIA, and GILBERTO CARPIO,
PUNZALAN, ENGR. RICASOL P. CORONA*
MILLAN, ENGR. REDENTOR S. CARPIO MORALES,
DELA CRUZ, MR. ANASTACIO CHICO-NAZARIO,
L. BORLONGAN, MR. ARTEMIO VELASCO, JR.,*
ESGUERRA, TISOY, and JOHN NACHURA,
DOES, LEONARDO-DE CASTRO,
Petitioners, BRION,
PERALTA,*
BERSAMIN,
- versus - DEL CASTILLO,
ABAD,
VILLARAMA, JR., JJ.

DR. AMANDA T. CRUZ, NIXON

T. CRUZ, and FERDINAND T. Promulgated:
CRUZ,
 Respondents. November 25, 2009

X--------------------------------------------------x

DECISION

CARPIO MORALES, J.

Petitioners[1], employees and members of the local police force of the City
Government of Malolos, challenge the March 28, 2008 Decision of the Regional
Trial Court (RTC) of Malolos, Branch 10 in a petition for issuance of writs
of amparo and habeas data instituted by respondents.

The factual antecedents.

Respondent Amanda Cruz (Amanda) who, along with her husband Francisco G.
Cruz (Spouses Cruz), leased a parcel of land situated at Barrio Guinhawa, Malolos
(the property), refused to vacate the property, despite demands by the lessor
Provincial Government of Bulacan (the Province) which intended to utilize it for
local projects.

The Province thus filed a complaint for unlawful detainer against the
Spouses Cruz before the then Municipal Trial Court (MTC) of Bulacan, Bulacan.

By Decision of September 5, 1997, the MTC rendered judgment against the

Spouses Cruz, which judgment, following its affirmance by the RTC, became final
and executory.

The finality of the decision in the ejectment case notwithstanding, the spouses Cruz
refused to vacate the property. They thereupon filed cases against the
Province[2] and the judges who presided over the case.[3] Those cases were
dismissed except their petition for annulment of judgment lodged before Branch 18
of the RTC of Malolos, and a civil case for injunction 833-M-2004 lodged before
Branch 10 of the same RTC Malolos.
The Spouses Cruz sought in the case for injunction the issuance of a permanent
writ of injunction to prevent the execution of the final and executory judgment
against them.

By Order of July 19, 2005, the RTC, finding merit in the Spouses Cruzes allegation
that subsequent events changed the situation of the parties to justify a suspension
of the execution of the final and executory judgment, issued a permanent writ of
injunction, the dispositive portion of which reads:

WHEREFORE, the foregoing petitioners Motion for Reconsideration

of the Order dated August 10, 2004 is hereby GRANTED. Order dated
August 10, 2004 is hereby RECONSIDEREDand SET ASIDE.
Further, the verified petition dated November 05, 2002 are
hereby REINSTATED and MADE PERMANENT until the MTC-
Bulacan, Bulacan finally resolves the pending motions of petitioners
with the same determines the metes and bounds of 400 sq. meters leased
premises subject matter of this case with immediate dispatch.
Accordingly, REMAND the determination of the issues raised by the
 petitioners on the issued writ of demolition to the MTC of Bulacan,
Bulacan.
SO ORDERED.[4] (Emphasis in the original; underscoring supplied)

Finding that the fallo of the RTC July 19, 2005 Order treats, as a suspensive
condition for the lifting of the permanent injunction, the determination of the
boundaries of the property, the Province returned the issue for the consideration of
the MTC. In a Geodetic Engineers Report submitted to the MTC on August 31,
2007, the metes and bounds of the property were indicated.

The MTC, by Order of January 2, 2008, approved the Report and ruled that the
permanent injunction which the RTC issued is ineffective. On motion of the
Province, the MTC, by Order of January 21, 2008, thus issued a Second Alias Writ
of Demolition.
On receiving notice of the January 2, 2008 MTC Order, the Spouses Cruz
filed a motion before Branch 10 of the RTC for the issuance of a temporary
restraining order (TRO) which it set for hearing on January 25, 2008 on which
date, however, the demolition had, earlier in the day, been implemented. Such
notwithstanding, the RTC issued a TRO.[5] The Spouses Cruz, along with their
sons-respondents Nixon and Ferdinand, thereupon entered the property, placed
several container vans and purportedly represented themselves as owners of the
property which was for lease.

On February 21, 2008, petitioners Police Superintendent Felixberto Castillo et al.,

who were deployed by the City Mayor in compliance with a memorandum issued
by Governor Joselito R. Mendoza instructing him to protect, secure and maintain
the possession of the property, entered the property.

Amanda and her co-respondents refused to turn over the property,

however. Insisting that the RTC July 19, 2005 Order of Permanent Injunction
enjoined the Province from repossessing it, they shoved petitioners, forcing the
latter to arrest them and cause their indictment for direct assault, trespassing and
other forms of light threats.

Respondents later filed on March 3, 2008 a Respectful Motion-Petition for Writ of

Amparo and Habeas Data, docketed as Special Civil Action No. 53-M-2008,
which was coincidentally raffled to Branch 10 of the RTC Malolos.

Respondents averred that despite the Permanent Injunction, petitioners unlawfully

entered the property with the use of heavy equipment, tore down the barbed wire
fences and tents,[6] and arrested them when they resisted petitioners entry; and that
as early as in the evening of February 20, 2008, members of the Philippine
National Police had already camped in front of the property.

On the basis of respondents allegations in their petition and the supporting

affidavits, the RTC, by Order of March 4, 2008, issued writs
of amparo and habeas data.[7]

The RTC, crediting respondents version in this wise:

Petitioners have shown by preponderant evidence that the facts and

circumstances of the alleged offenses examined into on Writs of Amparo
 and Habeas Data that there have been an on-going hearings on the
verified Petition for Contempt, docketed as Special Proceedings No.
306-M-2006, before this Court for alleged violation by the respondents
of the Preliminary Injunction Order dated July 16, 2005 [sic] in Sp. Civil
Action No. 833-M-2002, hearings were held on January 25, 2008,
February 12 and 19, 2008, where the respondents prayed for an April 22,
2008 continuance, however, in the pitch darkness of February 20, 2008,
police officers, some personnel from the Engineering department, and
some civilians proceeded purposely to the Pinoy Compound, converged
therein and with continuing threats of bodily harm and danger and stone-
throwing of the roofs of the homes thereat from voices around its
premises, on a pretext of an ordinary police operation when enterviewed
[sic] by the media then present, but at 8:00 a.m. to late in the afternoon
of February 21, 2008, zoomed in on the petitioners, subjecting them to
bodily harm, mental torture, degradation, and the debasement of a
human being, reminiscent of the martial law police brutality, sending
chill in any ordinary citizen,[8]

rendered judgment, by Decision of March 28, 2008, in favor of

respondents, disposing as follows:

WHEREFORE, premises considered, the Commitment Orders and

waivers in Crim. Cases Nos. 08-77 for Direct assault; Crim. Case No.
08-77 for Other Forms of Trespass; and Crim. Case No. 08-78 for Light
Threats are hereby DECLARED illegal, null and void, as petitioners
were deprived of their substantial rights, induced by duress or a well-
founded fear of personal violence. Accordingly, the commitment orders
and waivers are hereby SET ASIDE. The temporary release of the
petitioners is declared ABSOLUTE.

Without any pronouncement as to costs.

SO ORDERED.[9] (Emphasis in the original; underscoring supplied)

Hence, the present petition for review on certiorari, pursuant to Section 19[10] of
The Rule on the Writ of Amparo (A.M. No. 07-9-12-SC),[11] which is essentially
reproduced in the Rule on the Writ of Habeas Data (A.M. No. 08-1-16-SC).[12]

In the main, petitioners fault the RTC for

giving due course and issuing writs of amparo and habeas data when
from the allegations of the petition, the same ought not to have been
issued as (1) the petition in [sic] insufficient in substance as the same
involves property rights; and (2) criminal cases had already been filed
and pending with the Municipal Trial Court in Cities, Branch 1, City of
Malolos. (Underscoring supplied)

The petition is impressed with merit.

The Court is, under the Constitution, empowered to promulgate rules for the
protection and enforcement of constitutional rights.[13] In view of the heightening
prevalence of extrajudicial killings and enforced disappearances, the Rule on the
Writ of Amparo was issued and took effect on October 24, 2007 which coincided
with the celebration of United Nations Day and affirmed the Courts commitment
towards internationalization of human rights. More than three months later or on
February 2, 2008, the Rule on the Writ of Habeas Data was promulgated.

Section 1 of the Rule on the Writ of Amparo provides:

Section 1. Petition. The petition for a writ of amparo is a remedy

available to any person whose right to life, liberty and security is
violated or threatened with violation by an unlawful act or
omission of a public official or employee, or of a private individual or
entity. The writ shall cover extralegal killings and enforced
disappearances or threats thereof. (Emphasis and underscoring supplied)

Section 1 of the Rule on the Writ of Habeas Data provides:

Section 1. Habeas Data. The writ of habeas data is a remedy available to

any person whose right to privacy in life, liberty or security is
violated or threatened by an unlawful act or omission of a public
official or employee or of a private individual or entity engaged in the
gathering, collecting or storing of data or information regarding the
person, family, home and correspondence of the aggrieved party.
(Emphasis and underscoring supplied)

From the above-quoted provisions, the coverage of the writs is limited to the
protection of rights to life, liberty and security. And the writs cover not only
actual but also threats of unlawful acts or omissions.

Secretary of National Defense v. Manalo[14] teaches:

As the Amparo Rule was intended to address the intractable problem of

extralegal killings and enforced disappearances, its coverage, in its
present form, is confined to these two instances or to threats
thereof. Extralegal killings are killings committed without due process of
law, i.e., without legal safeguards or judicial proceedings. On the other
hand, enforced disappearances are attended by the following
characteristics: an arrest, detention or abduction of a person by a
government official or organized groups or private individuals acting
with the direct or indirect acquiescence of the government; the refusal of
the State to disclose the fate or whereabouts of the person concerned or a
refusal to acknowledge the deprivation of liberty which places such
persons outside the protection of law.[15] (Underscoring supplied,
citations omitted)

To thus be covered by the privilege of the writs, respondents must meet the
threshold requirement that their right to life, liberty and security is violated or
threatened with an unlawful act or omission. Evidently, the present controversy
arose out of a property dispute between the Provincial Government and
respondents. Absent any considerable nexus between the acts complained of and
its effect on respondents right to life, liberty and security, the Court will not delve
on the propriety of petitioners entry into the property.
Apropos is the Courts ruling in Tapuz v. Del Rosario:[16]

To start off with the basics, the writ of amparo was originally conceived
as a response to the extraordinary rise in the number of killings and
enforced disappearances, and to the perceived lack of available and
effective remedies to address these extraordinary concerns. It is intended
to address violations of or threats to the rights to life, liberty or security,
as an extraordinary and independent remedy beyond those available
under the prevailing Rules, or as a remedy supplemental to these
Rules. What it is not, is a writ to protect concerns that are purely
property or commercial. Neither is it a writ that we shall issue on
amorphous and uncertain grounds. Consequently, the Rule on the
Writ of Amparo in line with the extraordinary character of the writ and
the reasonable certainty that its issuance demands requires that every
petition for the issuance of the writ must be supported by justifying
allegations of fact, to wit:

xxxx
The writ shall issue if the Court is preliminarily satisfied with the prima
facie existence of the ultimate facts determinable from the supporting
affidavits that detail the circumstances of how and to what extent a threat
to or violation of the rights to life, liberty and security of the aggrieved
party was or is being committed.[17] (Emphasis and italics in the original,
citation omitted)

Tapuz also arose out of a property dispute, albeit between private individuals, with
the petitioners therein branding as acts of terrorism the therein respondents alleged
entry into the disputed land with armed men in tow. The Court therein held:

On the whole, what is clear from these statements both sworn and
unsworn is the overriding involvement of property issues as the petition
traces its roots to questions of physical possession of the property
disputed by the private parties. If at all, issues relating to the right to life
or to liberty can hardly be discerned except to the extent that the
occurrence of past violence has been alleged. The right to security, on
the other hand, is alleged only to the extent of the treats and harassments
implied from the presence of armed men bare to the waist and the
alleged pointing and firing of weapons. Notably, none of the
supporting affidavits compellingly show that the threat to the rights
to life, liberty and security of the petitioners is imminent or
continuing.[18] (Emphasis in the original; underscoring supplied)

It bears emphasis that respondents petition did not show any actual violation,
imminent or continuing threat to their life, liberty and security. Bare allegations
that petitioners in unison, conspiracy and in contempt of court, there and then
willfully, forcibly and feloniously with the use of force and intimidation entered
and forcibly, physically manhandled the petitioners (respondents) and arrested the
herein petitioners (respondents)[19] will not suffice to prove entitlement to the
remedy of the writ of amparo. No undue confinement or detention was present. In
fact, respondents were even able to post bail for the offenses a day after their
arrest.[20]
Although respondents release from confinement does not necessarily hinder
supplication for the writ of amparo, absent any evidence or even an allegation in
the petition that there is undue and continuing restraint on their liberty, and/or that
there exists threat or intimidation that destroys the efficacy of their right to be
secure in their persons, the issuance of the writ cannot be justified.

That respondents are merely seeking the protection of their property rights is
gathered from their Joint Affidavit, viz:

xxxx

11. Kami ay humarang at humiga sa harap ng mga heavy equipment na

hawak hawak ang nasabing kautusan ng RTC Branch 10 (PERMANENT
INJUNCTION at RTC ORDERS DATED February 12, 17 at 19 2008)
upang ipaglaban ang dignidad ng kautusan ng korte, ipaglaban ang
prinsipyo ng SELF-HELP at batas ukol sa PROPERTY RIGHTS, Wala
kaming nagawa ipagtanggol ang aming karapatan sa lupa na 45 years
naming IN POSSESSION. (Underscoring supplied)

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

As for respondents assertion of past incidents[21] wherein the Province allegedly

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

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

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

It thus appears that respondents are not without recourse and have in fact taken full
advantage of the legal system with the filing of civil, criminal and administrative
charges.[23]

It need not be underlined that respondents petitions for writs

of amparo and habeas data are extraordinary remedies which cannot be used as
tools to stall the execution of a final and executory decision in a property dispute.

AT ALL EVENTS, respondents filing of the petitions for writs

of amparo and habeas data should have been barred, for criminal proceedings
against them had commenced after they were arrested in flagrante delicto and
proceeded against in accordance with Section 6, Rule 112[24] of the Rules of Court.
Validity of the arrest or the proceedings conducted thereafter is a defense that may
be set up by respondents during trial and not before a petition for writs
of amparo and habeas data. The reliefs afforded by the writs may, however, be
made available to the aggrieved party by motion in the criminal proceedings.[25]

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

of Branch 10 of the Regional Trial Court of Malolos is DECLARED NULL AND
VOID, and its March 28, 2008 Decision is REVERSED and SET ASIDE. Special
Civil Action No. 53-M-2008 is DISMISSED.

SO ORDERED.
Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. 182795 June 5, 2008

ARMANDO Q. CANLAS, MIGUEL D. CAPISTRANO, MARRIETA PIA, petitioners,

vs.
NAPICO HOMEOWNERS ASS’N., I – XIII, INC., ET AL., respondents.

RESOLUTION

REYES, R.T., J.:

THE present petition filed on May 26, 2008 seeks the issuance of a Writ of Amparo upon the following premise:

Petitioners were deprived of their liberty, freedom and/or rights to shelter enshrined and embodied in our
Constitution, as the result of these nefarious activities of both the Private and Public Respondents. This
ardent request filed before this Honorable Supreme Court is the only solution to this problem via this newly
advocated principles incorporated in the Rules – the "RULE ON THE WRIT OF AMPARO."1

It appears that petitioners are settlers in a certain parcel of land situated in Barangay Manggahan, Pasig City. Their
dwellings/houses have either been demolished as of the time of filing of the petition, or is about to be demolished
pursuant to a court judgment.

While they attempted to focus on issuance of what they claimed to be fraudulent and spurious land titles, to wit:

Petitioners herein are desirous to help the government, the best way they can, to unearth these so-called
"syndicates" clothed with governmental functions, in cahoots with the "squatting syndicates" - - - - the low
so defines. If only to give its proper meanings, the Government must be the first one to cleans (sic) its ranks
from these unscrupulous political protégées. If unabated would certainly ruin and/or destroy the efficacy of
the Torrens System of land registration in this Country. It is therefore the ardent initiatives of the herein
Petitioners, by way of the said prayer for the issuance of the Writ of Amparo, that these unprincipled Land
Officials be summoned to answer their participation in the issuances of these fraudulent and
spurious titles, NOW, in the hands of the Private Respondents. The Courts of Justice, including this
Honorable Supreme Court, are likewise being made to believe that said titles in the possession of
the Private Respondents were issued untainted with frauds.2

what the petition ultimately seeks is the reversal of this Court’s dismissal of petitions in G.R. Nos. 177448, 180768,
177701, 177038, thus:

That, Petitioners herein knew before hand that: there can be no motion for reconsideration for the second or
third time to be filed before this Honorable Supreme Court. As such therefore, Petitioners herein are aware
of the opinion that this present petition should not in any way be treated as such motions fore
reconsideration. Solely, this petition is only for the possible issuance of the writ of amparo, although it might
affect the previous rulings of this Honorable Supreme Court in these cases, G.R. Nos. 177448, 180768,
177701 and 177038. Inherent in the powers of the Supreme Court of the Philippines is to modify,
reverse and set aside, even its own previous decision, that can not be thwarted nor influenced by
any one, but, only on the basis of merits and evidence. This is the purpose of this petition for
the Writ of Amparo.3

We dismiss the petition.

The Rule on the Writ of Amparo provides:

 Section 1. Petition. – The petition for a writ of amparo is a remedy available to any person whose right to
life, liberty and security is violated or threatened with violation by an unlawful act or omission of a public
official or employee, or of a private individual or entity.

The writ shall cover extralegal killings and enforced disappearances or threats thereof. (Emphasis supplied.)

The threatened demolition of a dwelling by virtue of a final judgment of the court, which in this case was affirmed with
finality by this Court in G.R. Nos. 177448, 180768, 177701, 177038, is not included among the enumeration of rights
as stated in the above-quoted Section 1 for which the remedy of a writ of amparo is made available. Their claim to
their dwelling, assuming they still have any despite the final and executory judgment adverse to them, does not
constitute right to life, liberty and security. There is, therefore, no legal basis for the issuance of the writ of amparo.

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

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

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

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

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

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

WHEREFORE, the petition is DISMISSED.

SO ORDERED.

Puno, C.J., Quisumbing, Ynares-Santiago, Carpio, Austria-Martinez, Corona, Carpio-Morales*, Azcuna, Tinga, Chico-
Nazario, Velasco, Jr. **, Nachura***, Leonardo-de-Castro, Brion, JJ., concur.

EN BANC
 REVEREND FATHER ROBERT P. G. R. No. 182161
REYES,

Petitioner,
Present:

PUNO, C.J.,
CARPIO,
CORONA,
CARPIO MORALES,
CHICO-NAZARIO,
VELASCO, JR.,
- versus -
NACHURA,
LEONARDO-DE CASTRO,
BRION,
PERALTA,
BERSAMIN,
DEL CASTILLO,
ABAD, and
VILLARAMA, JR., JJ.
COURT OF APPEALS, SECRETARY
RAUL M. GONZALEZ, IN HIS Promulgated:
CAPACITY AS THE SECRETARY OF
THE DEPARTMENT OF JUSTICE,
AND COMMISSIONER MARCELINO December 3, 2009
C. LIBANAN, IN HIS CAPACITY AS
THE COMMISSIONER OF THE
BUREAU OF IMMIGRATION,

Respondents.

x--------------------------------------------------------------------------------------------x

DECISION

LEONARDO-DE CASTRO, J.:

For resolution is the petition for review under Rule 45 of the Rules of Court,
assailing the February 4, 2008 Decision[1] of the Court of Appeals (CA) in CA-G.R.
No. 00011 which dismissed the petition for the issuance of the writ
of amparo under A.M. No. 07-9-12-SC, as amended. It also assails the CAs
Resolution dated March 25, 2008, denying petitioners motion for reconsideration
of the aforesaid February 4, 2008 Decision.
The undisputed facts as found by the CA are as follows:

Petitioner was among those arrested in the Manila Peninsula

Hotel siege on November 30, 2007. In the morning of November 30,
2007, petitioner together with fifty (50) others, were brought
to Camp Crame to await inquest proceedings. In the evening of the
same day, the Department of Justice (DOJ) Panel of Prosecutors,
composed of Emmanuel Y. Velasco, Phillip L. Dela Cruz and Aristotle M.
Reyes, conducted inquest proceedings to ascertain whether or not
there was probable cause to hold petitioner and the others for trial on
charges of Rebellion and/or Inciting to Rebellion.

On December 1, 2007, upon the request of the Department of

Interior and Local Government (DILG), respondent DOJ Secretary Raul
Gonzales issued Hold Departure Order (HDO) No. 45 ordering
respondent Commissioner of Immigration to include in the Hold
Departure List of the Bureau of Immigration and Deportation (BID) the
name of petitioner and 49 others relative to the aforementioned case in
the interest of national security and public safety.

On December 2, 2007, after finding probable cause against

petitioner and 36 others for the crime of Rebellion under Article 134 of
the Revised Penal Code, the DOJ Panel of Prosecutors filed an
Information docketed as I.S. No. 2007-1045 before the Regional Trial
Court, Branch 150 of Makati City.

On December 7, 2007, petitioner filed a Motion for Judicial

Determination of Probable Cause and Release of the Accused Fr. Reyes
Upon Recognizance asserting that the DOJ panel failed to produce any
evidence indicating his specific participation in the crime charged; and
that under the Constitution, the determination of probable cause must
be made personally by a judge.

On December 13, 2007, the RTC issued an Order dismissing the

charge for Rebellion against petitioner and 17 others for lack of
probable cause. The trial court ratiocinated that the evidence submitted
by the DOJ Panel of Investigating Prosecutors failed to show that
petitioner and the other accused-civilians conspired and confederated
with the accused-soldiers in taking arms against the government; that
petitioner and other accused-civilians were arrested because they
ignored the call of the police despite the deadline given to them to
come out from the 2nd Floor of the Hotel and submit themselves to the
police authorities; that mere presence at the scene of the crime and
expressing ones sentiments on electoral and political reforms did not
make them conspirators absent concrete evidence that the accused-
civilians knew beforehand the intent of the accused-soldiers to commit
rebellion; and that the cooperation which the law penalizes must be
one that is knowingly and intentionally rendered.

On December 18, 2007, petitioners counsel Atty. Francisco L.

Chavez wrote the DOJ Secretary requesting the lifting of HDO No. 45 in
view of the dismissal of Criminal Case No. 07-3126.

On even date, Secretary Gonzales replied to petitioners letter

stating that the DOJ could not act on petitioners request until Atty.
Chavezs right to represent petitioner is settled in view of the fact that a
certain Atty. J. V. Bautista representing himself as counsel of petitioner
had also written a letter to the DOJ.

On January 3, 2008, petitioner filed the instant petition claiming

that despite the dismissal of the rebellion case against petitioner, HDO
No. 45 still subsists; that on December 19, 2007, petitioner was held by
BID officials at the NAIA as his name is included in the Hold Departure
List; that had it not been for the timely intervention of petitioners
counsel, petitioner would not have been able to take his scheduled
flight to Hong Kong; that on December 26, 2007, petitioner was able to
fly back to the Philippines from Hong Kong but every time petitioner
would present himself at the NAIA for his flights abroad, he stands to be
detained and interrogated by BID officers because of the continued
inclusion of his name in the Hold Departure List; and that the Secretary
of Justice has not acted on his request for the lifting of HDO No.
45. Petitioner further maintained that immediate recourse to the
Supreme Court for the availment of the writ is exigent as the continued
restraint on petitioners right to travel is illegal.

On January 24, 2008, respondents represented by the Office of

the Solicitor General (OSG) filed the Return of the Writ raising the
following affirmative defenses: 1) that the Secretary of Justice is
authorized to issue Hold Departure Orders under the DOJ Circulars No.
17, Series of 1998[2] and No. 18 Series of 2007[3] pursuant to his mandate
under the Administrative Code of 1987 as ahead of the principal law
 agency of the government; 2) that HDO No. 45 dated December 1, 2007
was issued by the Sec. Gonzales in the course of the preliminary
investigation of the case against herein petitioner upon the request of
the DILG; 3) that the lifting of HDO No. 45 is premature in view of public
respondents pending Motion for Reconsideration dated January 3, 2008
filed by the respondents of the Order dated December 13, 2007 of the
RTC dismissing Criminal Case No. 07-3126 for Rebellion for lack of
probable cause; 4) that petitioner failed to exhaust administrative
remedies by filing a motion to lift HDO No. 45 before the DOJ; and 5)
that the constitutionality of Circulars No. 17 and 18 can not be attacked
collaterally in an amparo proceeding.

During the hearing on January 25, 2008 at 10:00 a.m. at the Paras
Hall of the Court of Appeals, counsels for both parties
appeared. Petitioners counsel Atty. Francisco Chavez manifested that
petitioner is currently in Hong Kong; that every time petitioner would
leave and return to the country, the immigration officers at the NAIA
detain and interrogate him for several minutes because of the existing
HDO; that the power of the DOJ Secretary to issue HDO has no legal
basis; and that petitioner did not file a motion to lift the HDO before
the RTC nor the DOJ because to do so would be tantamount to
recognizing the power of the DOJ Secretary to issue HDO.

For respondents part, the Office of the Solicitor-General (OSG)

maintained that the Secretary of the DOJs power to issue HDO springs
from its mandate under the Administrative Code to investigate and
prosecute offenders as the principal law agency of the government;
that in its ten-year existence, the constitutionality of DOJ Circular No.
17 has not been challenged except now; and that on January 3, 2008,
the DOJ Panel of Investigating Prosecutors had filed a Motion for
Reconsideration of the Order of Dismissal of the trial court.

On February 1, 2008, petitioner filed a Manifestation attaching

thereto a copy of the Order dated January 31, 2008 of the trial court
denying respondent DOJs Motion for Reconsideration for utter lack of
merit. The trial court also observed that the said Motion should be
dismissed outright for being filed out of time. [4]

The petition for a writ of amparo is anchored on the ground that

respondents violated petitioners constitutional right to travel. Petitioner argues
that the DOJ Secretary has no power to issue a Hold Departure Order (HDO) and
the subject HDO No. 45 has no legal basis since Criminal Case No. 07-3126 has
already been dismissed.

On February 4, 2008, the CA rendered the assailed Decision dismissing the

petition and denying the privilege of the writ of amparo.

Petitioners Motion for Reconsideration[5] thereon was also denied in the

assailed Resolution[6] dated March 25, 2008.

Hence, the present petition which is based on the following grounds:

I.

THE DOJ SECRETARYS ARROGATION OF POWER AND

USURPATION OF AUTHORITY TO ISSUE A HOLD DEPARTURE ORDER
CANNOT BE JUSTIFIED THROUGH A RATIONALE THAT IT HAS
SUPPOSEDLY BEEN REGULARLY EXERCISED IN THE PAST OR HAS NEVER
BEEN QUESTIONED (IN THE PAST).

II.

THE DOJ HAS CLAIMED A POWER TO ISSUE AN HDO

INDEPENDENT OF THAT OF THE REGIONAL TRIAL COURTS, HENCE,
PETITIONER CANNOT MERELY RELY ON THE RESIDUAL POWER OF THE
RTC MAKATI IN CRIMINAL CASE NO. 07-3126 TO ASSAIL SUCH CLAIMED
POWER.

III.

THE UTMOST EXIGENCY OF THE PETITION IS EXEMPLIFIED BY THE

CONTINUING ACTUAL RESTRAINT ON PETITIONERS RIGHT TO TRAVEL
THROUGH THE MAINTENANCE OF HIS NAME IN THE HDO LIST AND
DOES NOT SIMPLY HINGE ON THE QUESTION OF WHETHER OR NOT
PETITIONER WAS ABLE TO TRAVEL DESPITE SUCH A RESTRAINT.
 IV.

DOJ CIRCULAR 17 SERIES OF 1998 PROVIDES NO STATUTORY

BASIS FOR THE DOJ SECRETARYS CLAIMED POWER TO ISSUE AN HDO
FOR IT IS NOT A STATUTE. THE CIRCULAR ITSELF APPEARS NOT TO BE
BASED ON ANY STATUTE, HENCE, IT DOES NOT HAVE THE FORCE OF
LAW AND NEED NOT BE ATTACKED IN A DIRECT PROCEEDING.[7]

Petitioner maintains that the writ of amparo does not only exclusively apply
to situations of extrajudicial killings and enforced disappearances but
encompasses the whole gamut of liberties protected by the
Constitution. Petitioner argues that [liberty] includes the right to exist and the
right to be free from arbitrary personal restraint or servitude and includes the
right of the citizens to be free to use his faculties in all lawful ways. Part of the
right to liberty guaranteed by the Constitution is the right of a person to travel.

In their Comment,[8] both respondents Secretary Gonzalez and

Commissioner Libanan argue that: 1) HDO No. 45 was validly issued by the
Secretary of Justice in accordance with Department of Justice Circular No. 17,
Series of 1998,[9] and Circular No. 18, Series of 2007,[10] which were issued
pursuant to said Secretarys mandate under the Administrative Code of 1987, as
head of the principal law agency of the government, to investigate the
commission of crimes, prosecute offenders, and provide immigration regulatory
services; and; 2) the issue of the constitutionality of the DOJ Secretarys authority
to issue hold departure orders under DOJ Circulars Nos. 17 and 18 is not within
the ambit of a writ of amparo.

The case hinges on the issue as to whether or not petitioners right to liberty
has been violated or threatened with violation by the issuance of the subject
HDO, which would entitle him to the privilege of the writ of amparo.

The petition must fail.

Section 1 of the Rule on the Writ of Amparo provides:

SECTION 1. Petition. The petition for a writ of amparo is a remedy

available to any person whose right to life, liberty and security is
violated or threatened with violation by an unlawful act or omission of a
public official or employee, or of a private individual or entity.
 The writ shall cover extralegal killings and enforced
disappearances or threats thereof.

The Court, in Secretary of National Defense et al. v. Manalo et al.,[11] made a

categorical pronouncement that the Amparo Rule in its present form is confined
to these two instances of extralegal killings and enforced disappearances, or to
threats thereof, thus:

x x x As the Amparo Rule was intended to address the intractable

problem of extralegal killings and enforced disappearances, its
coverage, in its present form, is confined to these two instances or to
threats thereof. Extralegal killings are killings committed without due
process of law, i.e., without legal safeguards or judicial proceedings. On
the other hand, enforced disappearances are attended by the following
characteristics: an arrest, detention or abduction of a person by a
government official or organized groups or private individuals acting
with the direct or indirect acquiescence of the government; the refusal
of the State to disclose the fate or whereabouts of the person
concerned or a refusal to acknowledge the deprivation of liberty which
places such persons outside the protection of law.[12]

In Tapuz v. Del Rosario,[13] the Court laid down the basic principle regarding
the rule on the writ of amparo as follows:

To start off with the basics, the writ of amparo was originally
conceived as a response to the extraordinary rise in the number of
killings and enforced disappearances, and to the perceived lack of
available and effective remedies to address these extraordinary
concerns. It is intended to address violations of or threats to the rights
to life, liberty or security, as an extraordinary and independent
remedy beyond those available under the prevailing Rules, or as a
remedy supplemental to these Rules. What it is not, is a writ to protect
concerns that are purely property or commercial. Neither is it a writ
that we shall issue on amorphous and uncertain
grounds. Consequently, the Rule on the Writ of Amparo in line with the
extraordinary character of the writ and the reasonable certainty that its
issuance demands requires that every petition for the issuance of the
writ must be supported by justifying allegations of fact, to wit:

(a) The personal circumstances of the petitioner;

 (b) The name and personal circumstances of the respondent
responsible for the threat, act or omission, or, if the name is unknown
or uncertain, the respondent may be described by an assumed
appellation;

(c) The right to life, liberty and security of the aggrieved party
violated or threatened with violation by an unlawful act or omission of
the respondent, and how such threat or violation is committed with the
attendant circumstances detailed in supporting affidavits;

(d) The investigation conducted, if any, specifying the names,

personal circumstances, and addresses of the investigating authority or
individuals, as well as the manner and conduct of the investigation,
together with any report;

(e) The actions and recourses taken by the petitioner to

determine the fate or whereabouts of the aggrieved party and the
identity of the person responsible for the threat, act or omission; and

(f) The relief prayed for.

The petition may include a general prayer for other just and equitable
reliefs.[14]

The writ shall issue if the Court is preliminarily satisfied with

the prima facie existence of the ultimate facts determinable from the
supporting affidavits that detail the circumstances of how and to what
extent a threat to or violation of the rights to life, liberty and security of
the aggrieved party was or is being committed. (Emphasis supplied)

Here, petitioner invokes this extraordinary remedy of the writ of amparo for
the protection of his right to travel. He insists that he is entitled to the protection
covered by the Rule on the Writ of Amparo because the HDO is a continuing actual
restraint on his right to travel. The Court is thus called upon to rule whether or not
the right to travel is covered by the Rule on the Writ of Amparo.

The rights that fall within the protective mantle of the Writ of Amparo under
Section 1 of the Rules thereon are the following: (1) right to life; (2) right to liberty;
and (3) right to security.
 In Secretary of National Defense et al. v. Manalo et al.,[15] the Court
explained the concept of right to life in this wise:

While the right to life under Article III, Section 1 guarantees

essentially the right to be alive- upon which the enjoyment of all other
rights is preconditioned - the right to security of person is a guarantee
of the secure quality of this life, viz: The life to which each person has a
right is not a life lived in fear that his person and property may be
unreasonably violated by a powerful ruler. Rather, it is a life lived with
the assurance that the government he established and consented to,
will protect the security of his person and property. The ideal of security
in life and property pervades the whole history of man. It touches every
aspect of mans existence. In a broad sense, the right to security of
person emanates in a persons legal and uninterrupted enjoyment of his
life, his limbs, his body, his health, and his reputation. It includes the
right to exist, and the right to enjoyment of life while existing, and it is
invaded not only by a deprivation of life but also of those things which
are necessary to the enjoyment of life according to the nature,
temperament, and lawful desires of the individual.[16]

The right to liberty, on the other hand, was defined in the City of Manila, et
al. v. Hon. Laguio, Jr.,[17] in this manner:

Liberty as guaranteed by the Constitution was defined by Justice

Malcolm to include the right to exist and the right to be free from
arbitrary restraint or servitude. The term cannot be dwarfed into mere
freedom from physical restraint of the person of the citizen, but is
deemed to embrace the right of man to enjoy the facilities with which
he has been endowed by his Creator, subject only to such restraint as
are necessary for the common welfare. x x x

Secretary of National Defense et al. v. Manalo et al.[18] thoroughly

expounded on the import of the right to security, thus:

A closer look at the right to security of person would yield various

permutations of the exercise of this right.

First, the right to security of person is freedom from fear. In its

whereas clauses, the Universal Declaration of Human Rights (UDHR)
enunciates that a world in which human beings shall enjoy freedom of
speech and belief and freedom from fear and want has been
proclaimed as the highest aspiration of the common people. (emphasis
supplied) Some scholars postulate that freedom from fear is not only an
aspirational principle, but essentially an individual international human
right. It is the right to security of person as the word security itself
means freedom from fear. Article 3 of the UDHR provides, viz:

Everyone has the right to life, liberty and security of

person.
xxx

The Philippines is a signatory to both the UDHR and the ICCPR.

In the context of Section 1 of the Amparo Rule, freedom from

fear is the right and any threat to the rights to life, liberty or security is
the actionable wrong. Fear is a state of mind, a reaction; threat is a
stimulus, a cause of action. Fear caused by the same stimulus can range
from being baseless to well-founded as people react differently. The
degree of fear can vary from one person to another with the variation
of the prolificacy of their imagination, strength of character or past
experience with the stimulus. Thus, in the amparo context, it is more
correct to say that the right to security is actually the freedom from
threat. Viewed in this light, the threatened with violation Clause in the
latter part of Section 1 of the Amparo Rule is a form of violation of the
right to security mentioned in the earlier part of the provision.

Second, the right to security of person is a guarantee of bodily

and psychological integrity or security. Article III, Section II of the 1987
Constitution guarantees that, as a general rule, ones body cannot be
searched or invaded without a search warrant. Physical injuries inflicted
in the context of extralegal killings and enforced disappearances
constitute more than a search or invasion of the body. It may constitute
dismemberment, physical disabilities, and painful physical intrusion. As
the degree of physical injury increases, the danger to life itself
escalates. Notably, in criminal law, physical injuries constitute a crime
against persons because they are an affront to the bodily integrity or
security of a person.

xxx

Third, the right to security of person is a guarantee of

protection of ones rights by the government. In the context of the writ
of amparo, this right is built into the guarantees of the right to life
and liberty under Article III, Section 1 of the 1987 Constitution and the
right to security of person (as freedom from threat and guarantee of
 bodily and psychological integrity) under Article III, Section 2. The right
to security of person in this third sense is a corollary of the policy that
the State guarantees full respect for human rights under Article II,
Section 11 of the 1987 Constitution. As the government is the chief
guarantor of order and security, the Constitutional guarantee of the rights
to life, liberty and security of person is rendered ineffective if
government does not afford protection to these rights especially when
they are under threat. Protection includes conducting effective
investigations, organization of the government apparatus to extend
protection to victims of extralegal killings or enforced disappearances
(or threats thereof) and/or their families, and bringing offenders to the
bar of justice. x x x (emphasis supplied) [19]
The right to travel refers to the right to move from one place to
another.[20] As we have stated in Marcos v. Sandiganbayan,[21] xxx a persons right
to travel is subject to the usual constraints imposed by the very necessity of
safeguarding the system of justice. In such cases, whether the accused should be
permitted to leave the jurisdiction for humanitarian reasons is a matter of the courts
sound discretion. [22]

Here, the restriction on petitioners right to travel as a consequence of the

pendency of the criminal case filed against him was not unlawful. Petitioner has
also failed to establish that his right to travel was impaired in the manner and to
the extent that it amounted to a serious violation of his right to life, liberty and
security, for which there exists no readily available legal recourse or remedy.

In Canlas et al. v. Napico Homeowners Association I XIII, Inc. et al.,[23] this

Court ruled that:

This new remedy of writ of amparo which is made available by

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

We find the direct recourse to this Court inappropriate, considering the

provision of Section 22 of the Rule on the Writ of Amparo which reads:

Section 22. Effect of Filing of a Criminal Action. When a criminal

action has been commenced, no separate petition for the writ shall be
filed. The reliefs under the writ shall be available by motion in the
criminal case.
 The procedure under this Rule shall govern the disposition of the
reliefs available under the writ of amparo.

Pursuant to the aforementioned Section 22, petitioner should have filed

with the RTC-Makati a motion to lift HDO No. 45 in Criminal Case No. 07-
3126.Petitioner, however, did not file in the RTC-Makati a motion to lift the DOJs
HDO, as his co-accused did in the same criminal case. Petitioner argues that it was
not the RTC-Makati but the DOJ that issued the said HDO, and that it is his
intention not to limit his remedy to the lifting of the HDO but also to question
before this Court the constitutionality of the power of the DOJ Secretary to issue
an HDO.[24] We quote with approval the CAs ruling on this matter:

The said provision [Section 22] is an affirmation by the Supreme

Court of its pronouncement in Crespo v. Mogul[25] that once a complaint
or information is filed in court, any disposition of the case such as its
dismissal or its continuation rests on the sound discretion of the
court. Despite the denial of respondents MR of the dismissal of the case
against petitioner, the trial court has not lost control over Criminal Case
No. 07-3126 which is still pending before it. By virtue of its residual
power, the court a quo retains the authority to entertain incidents in
the instant case to the exclusion of even this Court. The relief petitioner
seeks which is the lifting of the HDO was and is available by motion in
the criminal case. (Sec. 22, Rule on the Writ of amparo, supra).[26]

Even in civil cases pending before the trial courts, the Court has no
authority to separately and directly intervene through the writ of amparo, as
elucidated in Tapuz v. Del Rosario,[27] thus:

Where, as in this case, there is an ongoing civil process dealing

directly with the possessory dispute and the reported acts of violence
and harassment, we see no point in separately and directly intervening
through a writ of amparo in the absence of any clear prima
facie showing that the right to life, liberty or
security the personal concern that the writ is intended to protect is
immediately in danger or threatened, or that the danger or threat is
continuing. We see no legal bar, however, to an application for the
issuance of the writ, in a proper case, by motion in a pending case on
appeal or on certiorari, applying by analogy the provisions on the co-
existence of the writ with a separately filed criminal case.
 Additionally, petitioner is seeking the extraordinary writ of amparo due to
his apprehension that the DOJ may deny his motion to lift the HDO. [28] Petitioners
apprehension is at best merely speculative. Thus, he has failed to show any clear
threat to his right to liberty actionable through a petition for a writ of
amparo. The absence of an actual controversy also renders it unnecessary for us
on this occasion to pass upon the constitutionality of DOJ Circular No. 17, Series
of 1998 (Prescribing Rules and Regulations Governing the Issuance of Hold
Departure Orders); and Circular No. 18, Series of 2007 (Prescribing Rules and
Regulations Governing the Issuance and Implementation of Watchlist Orders and
for Other Purposes).

WHEREFORE, the petition is DISMISSED. The assailed Decision of the CA

dated February 4, 2008 in CA-G.R. No. 00011 is hereby AFFIRMED.

SO ORDERED.

EN BANC
G.R. No. 182498
GEN. AVELINO I. RAZON,
JR., Chief, Philippine Present:
National Police (PNP); Police
Chief Superintendent RAUL
CASTAEDA, Chief, Criminal PUNO, C.J.,
Investigation and Detection
Group (CIDG); Police Senior CARPIO,
Superintendent LEONARDO
A. ESPINA, Chief, Police CORONA,
Anti-Crime and Emergency
Response (PACER); and CARPIO MORALES,
GEN. JOEL R. GOLTIAO,
CHICO-NAZARIO,
Regional Director of ARMM,
PNP, VELASCO, JR.,
Petitioners,
- versus - NACHURA,

LEONARDO-DE CASTRO,

BRION,
MARY JEAN B. TAGITIS, herein PERALTA,
represented by ATTY. FELIPE
P. ARCILLA, JR., Attorney-in- BERSAMIN,
Fact, DEL CASTILLO,
Respondent. ABAD, and

VILLARAMA, JR., JJ.

 Promulgated:

December 3, 2009

x-----------------------------------------------------------------------------------------x
DECISION
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 petitioner to determine the
fate or whereabouts of the aggrieved party and the identity of the
person responsible for the threat, act or omission; and

The framers of the Amparo Rule never intended Section 5(c) to be complete
in every detail in stating the threatened or actual violation of a victims rights. As in
any other initiatory pleading, the pleader must of course state the ultimate facts
constituting the cause of action, omitting the evidentiary details.[76] In
an Amparopetition, however, this requirement must be read in light of the nature
and purpose of the proceeding, which addresses a situation of uncertainty; the
petitioner may not be able to describe with certainty how the victim exactly
disappeared, or who actually acted to kidnap, abduct or arrest him or her, or where
the victim is detained, because these information may purposely be hidden or
covered up by those who caused the disappearance. In this type of situation, to
require the level of specificity, detail and precision that the petitioners apparently
want to read into the Amparo Rule is to make this Rule a token gesture of judicial
concern for violations of the constitutional rights to life, liberty and security.

To read the Rules of Court requirement on pleadings while addressing the

unique Amparo situation, the test in reading the petition should be to determine
whether it contains the details available to the petitioner under the
circumstances, while presenting a cause of action showing a violation of the
victims rights to life, liberty and security through State or private party action. The
petition should likewise be read in its totality, rather than in terms of its isolated
component parts, to determine if the required elements namely, of the
disappearance, the State or private action, and the actual or threatened violations of
the rights to life, liberty or security are present.

In the present case, the petition amply recites in its paragraphs 4 to 11 the
circumstances under which Tagitis suddenly dropped out of sight after engaging in
normal activities, and thereafter was nowhere to be found despite efforts to locate
him. The petition alleged, too, under its paragraph 7, in relation to paragraphs 15
and 16, that according to reliable information, police operatives were the
perpetrators of the abduction. It also clearly alleged how Tagitis rights to life,
liberty and security were violated when he was forcibly taken and boarded on a
motor vehicle by a couple of burly men believed to be police intelligence
operatives, and then taken into custody by the respondents police intelligence
operatives since October 30, 2007, specifically by the CIDG, PNP Zamboanga
City, x x x held against his will in an earnest attempt of the police to involve and
connect [him] with different terrorist groups.[77]

These allegations, in our view, properly pleaded ultimate facts within the
pleaders knowledge about Tagitis disappearance, the participation by agents of the
State in this disappearance, the failure of the State to release Tagitis or to provide
sufficient information about his whereabouts, as well as the actual violation of his
right to liberty. Thus, the petition cannot be faulted for any failure in its statement
of a cause of action.

If a defect can at all be attributed to the petition, this defect is its lack of
supporting affidavit, as required by Section 5(c) of the Amparo Rule. Owing to the
summary nature of the proceedings for the writ and to facilitate the resolution of
the petition, the Amparo Rule incorporated the requirement for supporting
affidavits, with the annotation that these can be used as the affiants direct
testimony.[78] This requirement, however, should not be read as an absolute one
that necessarily leads to the dismissal of the petition if not strictly
followed. Where, as in this case, the petitioner has substantially complied with the
requirement by submitting a verifiedpetition sufficiently detailing the facts relied
upon, the strict need for the sworn statement that an affidavit represents is
essentially fulfilled. We note that the failure to attach the required affidavits was
fully cured when the respondent and her witness (Mrs. Talbin) personally testified
in the CA hearings held on January 7 and 17 and February 18, 2008 to swear to
and flesh out the allegations of the petition. Thus, even on this point, the petition
cannot be faulted.

Section 5(d) of the Amparo Rule requires that prior investigation of an

alleged disappearance must have been made, specifying the manner and results of
the investigation. Effectively, this requirement seeks to establish at the earliest
opportunity the level of diligence the public authorities undertook in relation with
the reported disappearance.[79]
We reject the petitioners argument that the respondents petition did not
comply with the Section 5(d) requirements of the Amparo Rule, as the petition
specifies in its paragraph 11 that Kunnong and his companions immediately
reported Tagitis disappearance to the police authorities in Jolo, Sulu as soon as
they were relatively certain that he indeed had disappeared. The police, however,
gave them the ready answer that Tagitis could have been abducted by the Abu
Sayyaf group or other anti-government groups. The respondent also alleged in
paragraphs 17 and 18 of her petition that she filed a complaint with the PNP Police
Station in Cotobato and in Jolo, but she was told of an intriguing tale by the police
that her husband was having a good time with another woman. The disappearance
was alleged to have been reported, too, to no less than the Governor of the ARMM,
followed by the respondents personal inquiries that yielded the factual bases for
her petition.[80]

These allegations, to our mind, sufficiently specify that reports have been
made to the police authorities, and that investigations should have followed. That
the petition did not state the manner and results of the investigation that
the Amparo Rule requires, but rather generally stated the inaction of the police,
their failure to perform their duty to investigate, or at the very least, their reported
failed efforts, should not be a reflection on the completeness of the petition. To
require the respondent to elaborately specify the names, personal circumstances,
and addresses of the investigating authority, as well the manner and conduct of the
investigation is an overly strict interpretation of Section 5(d), given the
respondents frustrations in securing an investigation with meaningful results.
Under these circumstances, we are more than satisfied that the allegations of the
petition on the investigations undertaken are sufficiently complete for purposes of
bringing the petition forward.

Section 5(e) is in the Amparo Rule to prevent the use of a petition that
otherwise is not supported by sufficient allegations to constitute a proper cause of
action as a means to fish for evidence.[81] The petitioners contend that the
respondents petition did not specify what legally available efforts were taken by
the respondent, and that there was an undue haste in the filing of the petition when,
instead of cooperating with authorities, the respondent immediately invoked the
Courts intervention.

We do not see the respondents petition as the petitioners view it.

Section 5(e) merely requires that the Amparo petitioner (the respondent in
the present case) allege the actions and recourses taken to determine the fate or
whereabouts of the aggrieved party and the identity of the person responsible for
the threat, act or omission. The following allegations of the respondents petition
duly outlined the actions she had taken and the frustrations she encountered, thus
compelling her to file her petition.
xxxx
7. Soon after the student left the room, Engr. Tagitis went out of the pension house to take his early lunch but while out on the
street, a couple of burly men believed to be police intelligence operatives, forcibly took him and boarded the latter on a
motor vehicle then sped away without the knowledge of his student, Arsimin Kunnong;

xxxx

10. When Kunnong could not locate Engr. Tagitis, the former sought the help of another IDB scholar and reported the matter to the
local police agency;

11. Arsimin Kunnong, including his friends and companions in Jolo, exerted efforts in trying to locate the whereabouts of Engr.
Tagitis and when he reported the matter to the police authorities in Jolo, he was immediately given a ready answer that
Engr. Tagitis could [have been] abducted by the Abu Sayyaf group and other groups known to be fighting against the
government;
12. Being scared with these suggestions and insinuations of the police officers, Kunnong reported the matter to the
[respondent](wife of Engr. Tagitis) by phone and other responsible officers and coordinators of the IDB Scholarship
Programme in the Philippines who alerted the office of the Governor of ARMM who was then preparing to attend the OIC
meeting in Jeddah, Saudi Arabia;

13. [The respondent], on the other hand, approached some of her co-employees with the Land Bank in Digos branch,
Digos City, Davao del Sur, who likewise sought help from some of their friends in the military who could help them
find/locate the whereabouts of her husband;

xxxx
15. According to reliable information received by the [respondent], subject Engr. Tagitis is in the custody of police intelligence
operatives, specifically with the CIDG, PNP Zamboanga City, being held against his will in an earnest attempt of the police
to involve and connect Engr. Tagitis with the different terrorist groups;

xxxx
17. [The respondent] filed her complaint with the PNP Police Station at the ARMM in Cotobato and in Jolo, as suggested by her
friends, seeking their help to find her husband, but [the respondents] request and pleadings failed to produce any
positive results
xxxx
20. Lately, [respondent] was again advised by one of the [petitioners] to go to the ARMM Police Headquarters again in Cotobato City
and also to the different Police Headquarters including the police headquarters in Davao City, in Zamboanga City, in Jolo,
and in Camp Crame, Quezon City, and all these places have been visited by the [respondent] in search for her husband,
which entailed expenses for her trips to these places thereby resorting her to borrowings and beggings [sic] for financial
help from friends and relatives only to try complying to the different suggestions of these police officers, despite of
which, her efforts produced no positive results up to the present time;

xxxx
25. [The respondent] has exhausted all administrative avenues and remedies but to
no avail, and under the circumstances, [respondent] has no other plain, speedy and
adequate remedy to protect and get the release of subject Engr. Morced Tagitis
from the illegal clutches of [the petitioners], their intelligence operatives and the
like which are in total violation of the subjects human and constitutional rights,
except the issuance of a WRIT OF AMPARO.

Based on these considerations, we rule that the respondents petition for the
Writ of Amparo is sufficient in form and substance and that the Court of Appeals
had every reason to proceed with its consideration of the case.

The Desaparecidos

The present case is one of first impression in the use and application of the
Rule on the Writ of Amparo in an enforced disappearance situation. For a deeper
appreciation of the application of this Rule to an enforced disappearance situation,
a brief look at the historical context of the writ and enforced disappearances would
be very helpful.

The phenomenon of enforced disappearance arising from State action first

attracted notice in Adolf Hitlers Nact und Nebel Erlass or Night and Fog Decree of
December 7, 1941.[82] The Third Reichs Night and Fog Program, a State policy,
was directed at persons in occupied territories endangering German security; they
were transported secretly to Germany where they disappeared without a trace. In
order to maximize the desired intimidating effect, the policy prohibited
government officials from providing information about the fate of these targeted
persons.[83]

In the mid-1970s, the phenomenon of enforced disappearances resurfaced,

shocking and outraging the world when individuals, numbering anywhere from
6,000 to 24,000, were reported to have disappeared during the military regime in
Argentina. Enforced disappearances spread in Latin America, and the issue became
an international concern when the world noted its widespread and systematic use
by State security forces in that continent under Operation Condor[84] and during the
Dirty War[85] in the 1970s and 1980s. The escalation of the practice saw political
activists secretly arrested, tortured, and killed as part of governments counter-
insurgency campaigns. As this form of political brutality became routine elsewhere
in the continent, the Latin American media standardized the term disappearance to
describe the phenomenon. The victims of enforced disappearances were called
the desaparecidos,[86] which literally means the disappeared ones.[87] In general,
there are three different kinds of disappearance cases:

1) those of people arrested without witnesses or without positive identification

of the arresting agents and are never found again;

2) those of prisoners who are usually arrested without an appropriate warrant

and held in complete isolation for weeks or months while their families are
unable to discover their whereabouts and the military authorities deny having
them in custody until they eventually reappear in one detention center or
another; and

3) those of victims of salvaging who have disappeared until their lifeless bodies
are later discovered.[88]

In the Philippines, enforced disappearances generally fall within the first two
categories,[89] and 855 cases were recorded during the period of martial law from
1972 until 1986. Of this number, 595 remained missing, 132 surfaced alive and
127 were found dead. During former President Corazon C. Aquinos term, 820
people were reported to have disappeared and of these, 612 cases were
documented. Of this number, 407 remain missing, 108 surfaced alive and 97 were
found dead. The number of enforced disappearances dropped during former
President Fidel V. Ramos term when only 87 cases were reported, while the three-
year term of former President Joseph E. Estrada yielded 58 reported
cases. KARAPATAN, a local non-governmental organization, reports that as of
March 31, 2008, the records show that there were a total of 193 victims of enforced
disappearance under incumbent President Gloria M. Arroyos administration. The
Commission on Human Rights records show a total of 636 verified cases of
enforced disappearances from 1985 to 1993. Of this number, 406 remained
missing, 92 surfaced alive, 62 were found dead, and 76 still have undetermined
status.[90] Currently, the United Nations Working Group on Enforced or
Involuntary Disappearance[91] reports 619 outstanding cases of enforced or
involuntary disappearances covering the period December 1, 2007 to November
30, 2008.[92]

Enforced Disappearances
Under Philippine Law

The Amparo Rule expressly provides that the writ shall cover extralegal
killings and enforced disappearances or threats thereof.[93] We note that although
the writ specifically covers enforced disappearances, this concept is neither defined
nor penalized in this jurisdiction. The records of the Supreme Court Committee on
the Revision of Rules (Committee) reveal that the drafters of the Amparo Rule
initially considered providing an elemental definition of the concept of enforced
disappearance:[94]
JUSTICE MARTINEZ: I believe that first and foremost we should come up or
formulate a specific definition [for] extrajudicial killings and enforced
disappearances. From that definition, then we can proceed to formulate the rules,
definite rules concerning the same.

CHIEF JUSTICE PUNO: As things stand, there is no law penalizing

extrajudicial killings and enforced disappearances so initially also we have to
[come up with] the nature of these extrajudicial killings and enforced
disappearances [to be covered by the Rule] because our concept of killings
and disappearances will define the jurisdiction of the courts. So well have to
agree among ourselves about the nature of killings and disappearances for
instance, in other jurisdictions, the rules only cover state actors. That is an
element incorporated in their concept of extrajudicial killings and enforced
disappearances. In other jurisdictions, the concept includes acts and omissions not
only of state actors but also of non state actors. Well, more specifically in the case
of the Philippines for instance, should these rules include the killings, the
disappearances which may be authored by let us say, the NPAs or the leftist
organizations and others. So, again we need to define the nature of the
extrajudicial killings and enforced disappearances that will be covered by these
rules. [Emphasis supplied] [95]

In the end, the Committee took cognizance of several bills filed in the House
of Representatives[96] and in the Senate[97] on extrajudicial killings and enforced
disappearances, and resolved to do away with a clear textual definition of these
terms in the Rule. The Committee instead focused on the nature and scope of the
concerns within its power to address and provided the appropriate remedy therefor,
mindful that an elemental definition may intrude into the ongoing legislative
efforts.[98]

As the law now stands, extra-judicial killings and enforced disappearances in

this jurisdiction are not crimes penalized separately from the component criminal
acts undertaken to carry out these killings and enforced disappearances and are
now penalized under the Revised Penal Code and special laws. [99] The simple
reason is that the Legislature has not spoken on the matter; the determination of
what acts are criminal and what the corresponding penalty these criminal acts
should carry are matters of substantive law that only the Legislature has the power
to enact under the countrys constitutional scheme and power structure.

Even without the benefit of directly applicable substantive laws on extra-

judicial killings and enforced disappearances, however, the Supreme Court is not
powerless to act under its own constitutional mandate to promulgate rules
concerning the protection and enforcement of constitutional rights, pleading,
practice and procedure in all courts,[100] since extrajudicial killings and enforced
disappearances, by their nature and purpose, constitute State or private party
violation of the constitutional rights of individuals to life, liberty and
security. Although the Courts power is strictly procedural and as such does not
diminish, increase or modify substantive rights, the legal protection that the Court
can provide can be very meaningful through the procedures it sets in addressing
extrajudicial killings and enforced disappearances. The Court, through its
procedural rules, can set the procedural standards and thereby directly compel the
public authorities to act on actual or threatened violations of constitutional rights.
To state the obvious, judicial intervention can make a difference even if only
procedurally in a situation when the very same investigating public authorities may
have had a hand in the threatened or actual violations of constitutional rights.

Lest this Court intervention be misunderstood, we clarify once again that we

do not rule on any issue of criminal culpability for the extrajudicial killing or
enforced disappearance. This is an issue that requires criminal action before our
criminal courts based on our existing penal laws. Our intervention is in
determining whether an enforced disappearance has taken place and who is
responsible or accountable for this disappearance, and to define and impose the
appropriate remedies to address it. The burden for the public authorities to
discharge in these situations, under the Rule on the Writ of Amparo, is
twofold. The first is to ensure that all efforts at disclosure and investigation are
undertaken under pain of indirect contempt from this Court when governmental
efforts are less than what the individual situations require. The second is to address
the disappearance, so that the life of the victim is preserved and his or her liberty
and security restored. In these senses, our orders and directives relative to the writ
are continuing efforts that are not truly terminated until the extrajudicial killing or
enforced disappearance is fully addressed by the complete determination of the fate
and the whereabouts of the victim, by the production of the disappeared person and
the restoration of his or her liberty and security, and, in the proper case, by the
commencement of criminal action against the guilty parties.

Enforced Disappearance
Under International Law

From the International Law perspective, involuntary or enforced

disappearance is considered a flagrant violation of human rights.[101] It does not
only violate the right to life, liberty and security of the desaparecido; it affects
their families as well through the denial of their right to information regarding the
circumstances of the disappeared family member. Thus, enforced disappearances
have been said to be a double form of torture, with doubly paralyzing impact for
the victims, as they are kept ignorant of their own fates, while family members are
deprived of knowing the whereabouts of their detained loved ones and suffer as
well the serious economic hardship and poverty that in most cases follow the
disappearance of the household breadwinner.[102]

The UN General Assembly first considered the issue of Disappeared Persons

in December 1978 under Resolution 33/173. The Resolution expressed the General
Assemblys deep concern arising from reports from various parts of the world
relating to enforced or involuntary disappearances, and requested the UN
Commission on Human Rights to consider the issue of enforced disappearances
with a view to making appropriate recommendations.[103]

In 1992, in response to the reality that the insidious practice of enforced

disappearance had become a global phenomenon, the UN General Assembly
adopted the Declaration on the Protection of All Persons from Enforced
Disappearance (Declaration).[104] This Declaration, for the first time, provided in
its third preambular clause a working description of enforced disappearance, as
follows:
Deeply concerned that in many countries, often in a persistent manner,
enforced disappearances occur, in the sense that persons are arrested, detained
or abducted against their will or otherwise deprived of their liberty by
officials of different branches or levels of Government, or by organized
groups or private individuals acting on behalf of, or with the support, direct
or indirect, consent or acquiescence of the Government, followed by a refusal
to disclose the fate or whereabouts of the persons concerned or a refusal to
acknowledge the deprivation of their liberty, which places such persons outside
the protection of the law. [Emphasis supplied]

Fourteen years after (or on December 20, 2006), the UN General Assembly
adopted the International Convention for the Protection of All Persons from
Enforced Disappearance (Convention).[105] The Convention was opened for
signature in Paris, France on February 6, 2007.[106] Article 2 of the Convention
defined enforced disappearance as follows:
For the purposes of this Convention, enforced disappearance is
considered to be the arrest, detention, abduction or any other form of deprivation
of liberty by agents of the State or by persons or groups of persons acting with the
authorization, support or acquiescence of the State, followed by a refusal to
acknowledge the deprivation of liberty or by concealment of the fate or
whereabouts of the disappeared person, which place such a person outside the
protection of the law. [Emphasis supplied]

The Convention is the first universal human rights instrument to assert that there is
a right not to be subject to enforced disappearance[107] and that this right is non-
derogable.[108] It provides that no one shall be subjected to enforced disappearance
under any circumstances, be it a state of war, internal political instability, or any
other public emergency. It obliges State Parties to codify enforced disappearance
as an offense punishable with appropriate penalties under their criminal law. [109] It
also recognizes the right of relatives of the disappeared persons and of the society
as a whole to know the truth on the fate and whereabouts of the disappeared and on
the progress and results of the investigation.[110] Lastly, it classifies enforced
disappearance as a continuing offense, such that statutes of limitations shall not
apply until the fate and whereabouts of the victim are established.[111]

Binding Effect of UN
Action on the Philippines

To date, the Philippines has neither signed nor ratified the Convention, so that the
country is not yet committed to enact any law penalizing enforced disappearance
as a crime. The absence of a specific penal law, however, is not a stumbling block
for action from this Court, as heretofore mentioned; underlying every enforced
disappearance is a violation of the constitutional rights to life, liberty and security
that the Supreme Court is mandated by the Constitution to protect through its rule-
making powers.
 Separately from the Constitution (but still pursuant to its terms), the Court is
guided, in acting on Amparo cases, by the reality that the Philippines is a member
of the UN, bound by its Charter and by the various conventions we signed and
ratified, particularly the conventions touching on humans rights. Under the UN
Charter, the Philippines pledged to promote universal respect for, and observance
of, human rights and fundamental freedoms for all without distinctions as to race,
sex, language or religion.[112] Although no universal agreement has been reached
on the precise extent of the human rights and fundamental freedoms guaranteed to
all by the Charter,[113] it was the UN itself that issued the Declaration on enforced
disappearance, and this Declaration states:[114]
Any act of enforced disappearance is an offence to dignity. It is condemned as
a denial of the purposes of the Charter of the United Nations and as a grave
and flagrant violation of human rights and fundamental freedoms
proclaimed in the Universal Declaration of Human Rights and reaffirmed and
developed in international instruments in this field. [Emphasis supplied]

As a matter of human right and fundamental freedom and as a policy matter made
in a UN Declaration, the ban on enforced disappearance cannot but have its effects
on the country, given our own adherence to generally accepted principles of
international law as part of the law of the land.[115]

In the recent case of Pharmaceutical and Health Care Association of the

Philippines v. Duque III,[116] we held that:
Under the 1987 Constitution, international law can become part of the
sphere of domestic law either by transformation or incorporation. The
transformation method requires that an international law be transformed into a
domestic law through a constitutional mechanism such as local legislation. The
incorporation method applies when, by mere constitutional declaration,
international law is deemed to have the force of domestic law. [Emphasis
supplied]

We characterized generally accepted principles of international law as norms of

general or customary international law that are binding on all states. We held
further:[117]
[G]enerally accepted principles of international law, by virtue of the
incorporation clause of the Constitution, form part of the laws of the land even if
they do not derive from treaty obligations. The classical formulation in
international law sees those customary rules accepted as binding result from
the combination [of] two elements: the established, widespread, and
consistent practice on the part of States; and a psychological element known
as the opinion juris sive necessitates (opinion as to law or necessity). Implicit in
the latter element is a belief that the practice in question is rendered
obligatory by the existence of a rule of law requiring it. [Emphasis in the
original]

The most widely accepted statement of sources of international law today is

Article 38(1) of the Statute of the International Court of Justice, which provides
that the Court shall apply international custom, as evidence of a general practice
accepted as law.[118] The material sources of custom include State practice, State
legislation, international and national judicial decisions, recitals in treaties and
other international instruments, a pattern of treaties in the same form, the practice
of international organs, and resolutions relating to legal questions in the UN
General Assembly.[119] Sometimes referred to as evidence of international
law,[120] these sources identify the substance and content of the obligations of
States and are indicative of the State practice and opinio juris requirements of
international law.[121]We note the following in these respects:

First, barely two years from the adoption of the Declaration, the
Organization of American States (OAS) General Assembly adopted the Inter-
American Convention on Enforced Disappearance of Persons in June
1994.[122] State parties undertook under this Convention not to practice, permit, or
tolerate the forced disappearance of persons, even in states of emergency or
suspension of individual guarantees.[123] One of the key provisions includes the
States obligation to enact the crime of forced disappearance in their respective
national criminal laws and to establish jurisdiction over such cases when the crime
was committed within their jurisdiction, when the victim is a national of that State,
and when the alleged criminal is within its territory and it does not proceed to
extradite him, which can be interpreted as establishing universal jurisdiction
among the parties to the Inter-American Convention.[124] At present, Colombia,
Guatemala, Paraguay, Peru and Venezuela have enacted separate laws in
accordance with the Inter-American Convention and have defined activities
involving enforced disappearance to be criminal.[125]

Second, in Europe, the European Convention on Human Rights has no

explicit provision dealing with the protection against enforced disappearance. The
European Court of Human Rights (ECHR), however, has applied the Convention in
a way that provides ample protection for the underlying rights affected by enforced
disappearance through the Conventions Article 2 on the right to life; Article 3 on
the prohibition of torture; Article 5 on the right to liberty and security; Article 6,
paragraph 1 on the right to a fair trial; and Article 13 on the right to an effective
remedy. A leading example demonstrating the protection afforded by the European
Convention is Kurt v. Turkey,[126] where the ECHR found a violation of the right to
liberty and security of the disappeared person when the applicants son disappeared
after being taken into custody by Turkish forces in the Kurdish village of Agilli in
November 1993. It further found the applicant (the disappeared persons mother) to
be a victim of a violation of Article 3, as a result of the silence of the authorities
and the inadequate character of the investigations undertaken. The ECHR also saw
the lack of any meaningful investigation by the State as a violation of Article
13.[127]

Third, in the United States, the status of the prohibition on enforced

disappearance as part of customary international law is recognized in the most
recent edition of Restatement of the Law: The Third,[128] which provides that [a]
State violates international law if, as a matter of State policy, it practices,
encourages, or condones (3) the murder or causing the disappearance of
individuals.[129] We significantly note that in a related matter that finds close
identification with enforced disappearance the matter of torture the United States
Court of Appeals for the Second Circuit Court held in Filartiga v. Pena-
Irala[130] that the prohibition on torture had attained the status of customary
international law. The court further elaborated on the significance of UN
declarations, as follows:
These U.N. declarations are significant because they specify with great
precision the obligations of member nations under the Charter. Since their
adoption, "(m)embers can no longer contend that they do not know what human
rights they promised in the Charter to promote. Moreover, a U.N. Declaration is,
according to one authoritative definition, "a formal and solemn instrument,
suitable for rare occasions when principles of great and lasting importance are
being enunciated. Accordingly, it has been observed that the Universal
Declaration of Human Rights "no longer fits into the dichotomy of binding treaty
against non-binding pronouncement,' but is rather an authoritative statement of the
international community." Thus, a Declaration creates an expectation of
adherence, and "insofar as the expectation is gradually justified by State practice,
a declaration may by custom become recognized as laying down rules binding
upon the States." Indeed, several commentators have concluded that the Universal
Declaration has become, in toto, a part of binding, customary international law.
[Citations omitted]
Fourth, in interpreting Article 2 (right to an effective domestic remedy) of
the International Convention on Civil and Political Rights (ICCPR), to which the
Philippines is both a signatory and a State Party, the UN Human Rights
Committee, under the Office of the High Commissioner for Human Rights, has
stated that the act of enforced disappearance violates Articles 6 (right to life), 7
(prohibition on torture, cruel, inhuman or degrading treatment or punishment) and
9 (right to liberty and security of the person) of the ICCPR, and the act may also
amount to a crime against humanity.[131]

Fifth, Article 7, paragraph 1 of the 1998 Rome Statute establishing the

International Criminal Court (ICC) also covers enforced disappearances insofar as
they are defined as crimes against humanity,[132] i.e., crimes committed as part of
a widespread or systematic attack against any civilian population, with knowledge
of the attack. While more than 100 countries have ratified the Rome
Statute,[133] the Philippines is still merely a signatory and has not yet ratified it. We
note that Article 7(1) of the Rome Statute has been incorporated in the statutes
of other international and hybrid tribunals, including Sierra Leone Special Court,
the Special Panels for Serious Crimes in Timor-Leste, and the Extraordinary
Chambers in the Courts of Cambodia.[134] In addition, the implementing legislation
of State Parties to the Rome Statute of the ICC has given rise to a number of
national criminal provisions also covering enforced disappearance.[135]

While the Philippines is not yet formally bound by the terms of the
Convention on enforced disappearance (or by the specific terms of the Rome
Statute) and has not formally declared enforced disappearance as a specific crime,
the above recital shows that enforced disappearance as a State practice has
been repudiated by the international community, so that the ban on it is now
a generally accepted principle of international law, which we should consider a
part of the law of the land, and which we should act upon to the extent already
allowed under our laws and the international conventions that bind us.
The following civil or political rights under the Universal Declaration of
Human Rights, the ICCPR and the International Convention on Economic, Social
and Cultural Rights (ICESR) may be infringed in the course of a disappearance:[136]
 1) the right to recognition as a person before the law;

2) the right to liberty and security of the person;

3) the right not to be subjected to torture and other cruel, inhuman or

degrading treatment or punishment;

4) the right to life, when the disappeared person is killed;

5) the right to an identity;

6) the right to a fair trial and to judicial guarantees;

7) the right to an effective remedy, including reparation and

compensation;

8) the right to know the truth regarding the circumstances of a

disappearance.

9) the right to protection and assistance to the family;

10) the right to an adequate standard of living;

11) the right to health; and

12) the right to education [Emphasis supplied]

Article 2 of the ICCPR, which binds the Philippines as a state party, provides:
Article 2

3. Each State Party to the present Covenant undertakes:

(a) To ensure that any person whose rights or freedoms as herein

recognized are violated shall have an effective remedy,
notwithstanding that the violation has been committed by persons
acting in an official capacity;

(b) To ensure that any person claiming such a remedy shall have his
right thereto determined by competent judicial, administrative or
legislative authorities, or by any other competent authority provided
for by the legal system of the State, and to develop the possibilities of
judicial remedy;

(c) To ensure that the competent authorities shall enforce such

remedies when granted. [Emphasis supplied]

In General Comment No. 31, the UN Human Rights Committee opined that the
right to an effective remedy under Article 2 of the ICCPR includes the obligation of
the State to investigate ICCPR violations promptly, thoroughly, and
effectively, viz:[137]

15. Article 2, paragraph 3, requires that in addition to effective

protection of Covenant rights, States Parties must ensure that
individuals also have accessible and effective remedies to vindicate
those rights The Committee attaches importance to States Parties'
establishing appropriate judicial and administrative mechanisms for
addressing claims of rights violations under domestic
law Administrative mechanisms are particularly required to give effect
to the general obligation to investigate allegations of violations
promptly, thoroughly and effectively through independent and
impartial bodies. A failure by a State Party to investigate allegations of
violations could in and of itself give rise to a separate breach of the
Covenant. Cessation of an ongoing violation is an essential element of
the right to an effective remedy. [Emphasis supplied]

The UN Human Rights Committee further stated in the same General

Comment No. 31 that failure to investigate as well as failure to bring to justice the
perpetrators of ICCPR violations could in and of itself give rise to a separate
breach of the Covenant, thus:[138]

18. Where the investigations referred to in paragraph 15 reveal

violations of certain Covenant rights, States Parties must ensure that
those responsible are brought to justice.As with failure to investigate,
failure to bring to justice perpetrators of such violations could in and
of itself give rise to a separate breach of the Covenant. These
obligations arise notably in respect of those violations recognized as
criminal under either domestic or international law, such as torture
and similar cruel, inhuman and degrading treatment (article 7),
summary and arbitrary killing (article 6) and enforced disappearance
(articles 7 and 9 and, frequently, 6). Indeed, the problem of impunity
for these violations, a matter of sustained concern by the Committee,
may well be an important contributing element in the recurrence of the
violations. When committed as part of a widespread or systematic
attack on a civilian population, these violations of the Covenant are
crimes against humanity (see Rome Statute of the International
Criminal Court, article 7). [Emphasis supplied]

In Secretary of National Defense v. Manalo,[139] this Court, in ruling that the

right to security of persons is a guarantee of the protection of ones right by the
government, held that:
 The right to security of person in this third sense is a corollary of the
policy that the State guarantees full respect for human rights under
Article II, Section 11 of the 1987 Constitution. As the government is the
chief guarantor of order and security, the Constitutional guarantee of
the rights to life, liberty and security of person is rendered ineffective if
government does not afford protection to these rights especially when
they are under threat. Protection includes conducting effective
investigations, organization of the government apparatus to extend
protection to victims of extralegal killings or enforced disappearances
(or threats thereof) and/or their families, and bringing offenders to
the bar of justice. The Inter-American Court of Human Rights stressed
the importance of investigation in the Velasquez Rodriguez Case, viz:

(The duty to investigate) must be undertaken in

a serious manner and not as a mere formality
preordained to be ineffective. An investigation must have
an objective and be assumed by the State as its own legal
duty, not as a step taken by private interests that
depends upon the initiative of the victim or his family or
upon their offer of proof, without an effective search for
the truth by the government. [Emphasis supplied]

Manalo significantly cited Kurt v. Turkey,[140] where the ECHR interpreted the right
to security not only as a prohibition on the State against arbitrary deprivation of
liberty, but also as the imposition of a positive duty to afford protection to the
right to liberty. The Court notably quoted the following ECHR ruling:

[A]ny deprivation of liberty must not only have been effected in

conformity with the substantive and procedural rules of national law
but must equally be in keeping with the very purpose of Article 5,
namely to protect the individual from arbitrariness... Having assumed
control over that individual, it is incumbent on the authorities to
account for his or her whereabouts. For this reason, Article 5 must be
seen as requiring the authorities to take effective measures to
safeguard against the risk of disappearance and to conduct a prompt
effective investigation into an arguable claim that a person has been
taken into custody and has not been seen since. [Emphasis supplied]

These rulings effectively serve as the backdrop for the Rule on the Writ
of Amparo, which the Court made effective on October 24, 2007. Although
the Amparo Rule still has gaps waiting to be filled through substantive law, as
evidenced primarily by the lack of a concrete definition of enforced
disappearance, the materials cited above, among others, provide ample
guidance and standards on how, through the medium of the Amparo Rule, the
Court can provide remedies and protect the constitutional rights to life,
liberty and security that underlie every enforced disappearance.

Evidentiary Difficulties Posed

by the Unique Nature of an
Enforced Disappearance

Before going into the issue of whether the respondent has discharged the
burden of proving the allegations of the petition for the Writ of Amparo by the
degree of proof required by the Amparo Rule, we shall discuss briefly the unique
evidentiary difficulties presented by enforced disappearance cases; these
difficulties form part of the setting that the implementation of the Amparo Rule
shall encounter.

These difficulties largely arise because the State itself the party whose
involvement is alleged investigates enforced disappearances. Past experiences in
other jurisdictions show that the evidentiary difficulties are generally threefold.

First, there may be a deliberate concealment of the identities of the direct

perpetrators.[141] Experts note that abductors are well organized, armed and
usually members of the military or police forces, thus:

The victim is generally arrested by the security forces or by persons

acting under some form of governmental authority. In many countries
the units that plan, implement and execute the program are generally
specialized, highly-secret bodies within the armed or security forces.
They are generally directed through a separate, clandestine chain of
command, but they have the necessary credentials to avoid or prevent
any interference by the "legal" police forces. These authorities take
their victims to secret detention centers where they subject them to
interrogation and torture without fear of judicial or other controls.[142]

In addition, there are usually no witnesses to the crime; if there are, these
witnesses are usually afraid to speak out publicly or to testify on the disappearance
out of fear for their own lives.[143] We have had occasion to note this difficulty
in Secretary of Defense v. Manalo[144] when we acknowledged that where powerful
military officers are implicated, the hesitation of witnesses to surface and testify
against them comes as no surprise.

Second, deliberate concealment of pertinent evidence of the

disappearance is a distinct possibility; the central piece of evidence in an
enforced disappearance i.e., the corpus delicti or the victims body is usually
concealed to effectively thwart the start of any investigation or the progress of
one that may have begun.[145] The problem for the victims family is the States
virtual monopoly of access to pertinent evidence. The Inter-American Court of
Human Rights (IACHR) observed in the landmark case of Velasquez
Rodriguez[146] that inherent to the practice of enforced disappearance is the
deliberate use of the States power to destroy the pertinent evidence. The IACHR
described the concealment as a clear attempt by the State to commit the perfect
crime.[147]

Third is the element of denial; in many cases, the State authorities

deliberately deny that the enforced disappearance ever occurred.[148] Deniability
is central to the policy of enforced disappearances, as the absence of any proven
disappearance makes it easier to escape the application of legal standards
ensuring the victims human rights.[149] Experience shows that government officials
typically respond to requests for information about desaparecidos by saying that
they are not aware of any disappearance, that the missing people may have fled
the country, or that their names have merely been invented.[150]

These considerations are alive in our minds, as these are the difficulties we
confront, in one form or another, in our consideration of this case.

Evidence and Burden of Proof in

Enforced Disappearances Cases

Sections 13, 17 and 18 of the Amparo Rule define the nature of

an Amparo proceeding and the degree and burden of proof the parties to the
case carry, as follows:
Section 13. Summary Hearing. The hearing on the petition shall
be summary. However, the court, justice or judge may call for a
preliminary conference to simplify the issues and determine the
possibility of obtaining stipulations and admissions from the parties.
xxxx
Section 17. Burden of Proof and Standard of Diligence Required. The
parties shall establish their claims by substantial evidence.
The respondent who is a private individual must prove that
ordinary diligence as required by applicable laws, rules and regulations
was observed in the performance of duty.
The respondent who is a public official or employee must prove
that extraordinary diligence as required by applicable laws, rules and
regulations was observed in the performance of duty.
The respondent public official or employee cannot invoke the
presumption that official duty has been regularly performed or evade
responsibility or liability.
Section 18. Judgment. If the allegations in the petition are proven by
substantial evidence, the court shall grant the privilege of the writ and
 such reliefs as may be proper and appropriate; otherwise, the privilege
shall be denied. [Emphasis supplied]

These characteristics namely, of being summary and the use of substantial

evidence as the required level of proof (in contrast to the usual preponderance of
evidence or proof beyond reasonable doubt in court proceedings) reveal the clear
intent of the framers of the Amparo Rule to have the equivalent of an
administrative proceeding, albeit judicially conducted, in
addressing Amparo situations. The standard of diligence required the duty of
public officials and employees to observe extraordinary diligence point, too, to the
extraordinary measures expected in the protection of constitutional rights and in
the consequent handling and investigation of extra-judicial killings and enforced
disappearance cases.

Thus, in these proceedings, the Amparo petitioner needs only to properly

comply with the substance and form requirements of a Writ of Amparo petition, as
discussed above, and prove the allegations by substantial evidence. Once a
rebuttable case has been proven, the respondents must then respond and prove their
defenses based on the standard of diligence required. The rebuttable case, of
course, must show that an enforced disappearance took place under circumstances
showing a violation of the victims constitutional rights to life, liberty or security,
and the failure on the part of the investigating authorities to appropriately respond.

The landmark case of Ang Tibay v. Court of Industrial Relations[151] provided

the Court its first opportunity to define the substantial evidence required to arrive
at a valid decision in administrative proceedings. To directly quote Ang Tibay:

Substantial evidence is more than a mere scintilla. It means such relevant

evidence as a reasonable mind might accept as adequate to support a
conclusion. [citations omitted] The statute provides that the rules of evidence
prevailing in courts of law and equity shall not be controlling. The obvious
purpose of this and similar provisions is to free administrative boards from the
compulsion of technical rules so that the mere admission of matter which would
be deemed incompetent in judicial proceedings would not invalidate the
administrative order. [citations omitted] But this assurance of a desirable
flexibility in administrative procedure does not go so far as to justify orders
without a basis in evidence having rational probative force. [Emphasis supplied]

In Secretary of Defense v. Manalo,[152] which was the Courts first petition for
a Writ of Amparo, we recognized that the full and exhaustive proceedings that the
substantial evidence standard regularly requires do not need to apply due to the
summary nature of Amparo proceedings. We said:
The remedy [of the writ of amparo] provides rapid judicial relief as it
partakes of a summary proceeding that requires only substantial evidence to make
the appropriate reliefs available to the petitioner; it is not an action to determine
criminal guilt requiring proof beyond reasonable doubt, or liability for damages
requiring preponderance of evidence, or administrative responsibility requiring
 substantial evidence that will require full and exhaustive
proceedings. [Emphasis supplied]
Not to be forgotten in considering the evidentiary aspects
of Amparo petitions are the unique difficulties presented by the nature of enforced
disappearances, heretofore discussed, which difficulties this Court must frontally
meet if the Amparo Rule is to be given a chance to achieve its objectives. These
evidentiary difficulties compel the Court to adopt standards appropriate and
responsive to the circumstances, without transgressing the due process
requirements that underlie every proceeding.

In the seminal case of Velasquez Rodriguez,[153] the IACHR faced with a

lack of direct evidence that the government of Honduras was involved in
Velasquez Rodriguez disappearance adopted a relaxed and informal evidentiary
standard, and established the rule that presumes governmental responsibility for a
disappearance if it can be proven that the government carries out a general practice
of enforced disappearances and the specific case can be linked to that
practice.[154] The IACHR took note of the realistic fact that enforced
disappearances could be proven only through circumstantial or indirect evidence
or by logical inference; otherwise, it was impossible to prove that an individual
had been made to disappear. It held:

130. The practice of international and domestic courts shows that direct
evidence, whether testimonial or documentary, is not the only type of
evidence that may be legitimately considered in reaching a
decision. Circumstantial evidence, indicia, and presumptions may be
considered, so long as they lead to conclusions consistent with the
facts.

131. Circumstantial or presumptive evidence is especially important in

allegations of disappearances, because this type of repression is
characterized by an attempt to suppress all information about the
kidnapping or the whereabouts and fate of the victim. [Emphasis
supplied]

In concluding that the disappearance of Manfredo Velsquez (Manfredo)

was carried out by agents who acted under cover of public authority, the IACHR
relied on circumstantial evidence including the hearsay testimony of Zenaida
Velsquez, the victims sister, who described Manfredos kidnapping on the basis of
conversations she had with witnesses who saw Manfredo kidnapped by men in
civilian clothes in broad daylight. She also told the Court that a former Honduran
military official had announced that Manfredo was kidnapped by a special military
squadron acting under orders of the Chief of the Armed Forces. [155] The IACHR
likewise considered the hearsay testimony of a second witness who asserted that
he had been told by a Honduran military officer about the disappearance, and a
third witness who testified that he had spoken in prison to a man who identified
himself as Manfredo.[156]
Velasquez stresses the lesson that flexibility is necessary under the unique
circumstances that enforced disappearance cases pose to the courts; to have an
effective remedy, the standard of evidence must be responsive to the evidentiary
difficulties faced. On the one hand, we cannot be arbitrary in the admission and
appreciation of evidence, as arbitrariness entails violation of rights and cannot be
used as an effective counter-measure; we only compound the problem if a wrong
is addressed by the commission of another wrong. On the other hand, we cannot
be very strict in our evidentiary rules and cannot consider evidence the way we
do in the usual criminal and civil cases; precisely, the proceedings before us are
administrative in nature where, as a rule, technical rules of evidence are not
strictly observed. Thus, while we must follow the substantial evidence rule, we
must observe flexibility in considering the evidence we shall take into account.

The fair and proper rule, to our mind, is to consider all the pieces of evidence
adduced in their totality, and to consider any evidence otherwise inadmissible
under our usual rules to be admissible if it is consistent with the admissible
evidence adduced. In other words, we reduce our rules to the most basic test of
reason i.e., to the relevance of the evidence to the issue at hand and its
consistency with all other pieces of adduced evidence. Thus, even hearsay
evidence can be admitted if it satisfies this basic minimum test.

We note in this regard that the use of flexibility in the consideration of evidence is
not at all novel in the Philippine legal system. In child abuse cases, Section 28 of
the Rule on Examination of a Child Witness[157] is expressly recognized as an
exception to the hearsay rule. This Rule allows the admission of the hearsay
testimony of a child describing any act or attempted act of sexual abuse in any
criminal or non-criminal proceeding, subject to certain prerequisites and the right
of cross-examination by the adverse party. The admission of the statement is
determined by the court in light of specified subjective and objective
considerations that provide sufficient indicia of reliability of the child
witness.[158] These requisites for admission find their counterpart in the present
case under the above-described conditions for the exercise of flexibility in the
consideration of evidence, including hearsay evidence, in extrajudicial killings and
enforced disappearance cases.

Assessment of the Evidence

The threshold question for our resolution is: was there an enforced
disappearance within the meaning of this term under the UN Declaration we have
cited?

The Convention defines enforced disappearance as the arrest, detention,

abduction or any other form of deprivation of liberty by agents of the State or by
persons or groups of persons acting with the authorization, support or acquiescence
of the State, followed by a refusal to acknowledge the deprivation of liberty or by
concealment of the fate or whereabouts of the disappeared person, which place
such a person outside the protection of the law. [159] Under this definition, the
elements that constitute enforced disappearance are essentially fourfold:[160]
(a) arrest, detention, abduction or any form of deprivation of liberty;

(b) carried out by agents of the State or persons or groups of persons acting
with the authorization, support or acquiescence of the State;
(c) followed by a refusal to acknowledge the detention, or a concealment of the
fate of the disappeared person; and

(d) placement of the disappeared person outside the protection of the law.
[Emphasis supplied]

We find no direct evidence indicating how the victim actually

disappeared. The direct evidence at hand only shows that Tagitis went out of the
ASY Pension House after depositing his room key with the hotel desk and was
never seen nor heard of again. The undisputed conclusion, however, from all
concerned the petitioner, Tagitis colleagues and even the police authorities is that
Tagistis disappeared under mysterious circumstances and was never seen
again. The respondent injected the causal element in her petition and testimony, as
we shall discuss below.

We likewise find no direct evidence showing that operatives of PNP CIDG

Zamboanga abducted or arrested Tagitis. If at all, only the respondents allegation
that Tagistis was under CIDG Zamboanga custody stands on record, but it is not
supported by any other evidence, direct or circumstantial.

In her direct testimony, the respondent pointed to two sources of information

as her bases for her allegation that Tagistis had been placed under government
custody (in contrast with CIDG Zamboanga custody). The first was an unnamed
friend in Zamboanga (later identified as Col. Ancanan), who occupied a high
position in the military and who allegedly mentioned that Tagitis was in good
hands. Nothing came out of this claim, as both the respondent herself and her
witness, Mrs. Talbin, failed to establish that Col. Ancanan gave them any
information that Tagitis was in government custody. Col. Ancanan, for his part,
admitted the meeting with the respondent but denied giving her any information
about the disappearance.

The more specific and productive source of information was Col.

Kasim, whom the respondent, together with her witness Mrs. Talbin, met in Camp
Katitipan in Davao City. To quote the relevant portions of the respondents
testimony:

Q: Were you able to speak to other military officials regarding the

whereabouts of your husband particularly those in charge of any
records or investigation?

A: I went to Camp Katitipan in Davao City. Then one military officer, Col.
Casim, told me that my husband is being abducted [sic] because
 he is under custodial investigation because he is
allegedly parang liason ng J.I., sir.

Q: What is J.I.?

A: Jemaah Islamiah, sir.

Q: Was there any information that was read to you during one of those
visits of yours in that Camp?

A: Col. Casim did not furnish me a copy of his report because he said
those reports are highly confidential, sir.

Q: Was it read to you then even though you were not furnished a
copy?

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

Q: And what was the content of that highly confidential report?

A: Those alleged activities of Engineer Tagitis, sir.[161] [Emphasis supplied]

She confirmed this testimony in her cross-examination:

Q: You also mentioned that you went to Camp Katitipan in Davao City?

A: Yes, maam.

Q: And a certain Col. Kasim told you that your husband was abducted
and under custodial investigation?

A: Yes, maam.
Q: And you mentioned that he showed you a report?

A: Yes, maam.

Q: Were you able to read the contents of that report?

A: He did not furnish me a copy of those [sic] report because those

[sic] were highly confidential. That is a military report, maam.

Q: But you were able to read the contents?

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

Q: How many were you when you went to see Col. Kasim?

A: There were three of us, maam.

Q: Who were your companions?

A: Mrs. Talbin, tapos yung dalawang friends nya from Mati City, Davao
Oriental, maam.[162]

xxxx

Q: When you were told that your husband is in good hands, what was
your reaction and what did you do?

A: May binasa kasi sya that my husband has a parang meeting with
other people na parang mga terorista na mga tao. Tapos at the
end of the report is [sic] under custodial investigation. So I told
him Colonel, my husband is sick. He is diabetic at nagmemaintain
yun ng gamot. Pakisabi lang sa naghohold sa asawa ko na bigyan
siya ng gamot, maam.[163]

xxxx
 Q: You mentioned that you received information that Engineer Tagitis is
being held by the CIDG in Zamboanga, did you go to CIDG
Zamboanga to verify that information?

A: I did not go to CIDG Zamboanga. I went to Camp Karingal

instead. Enough na yun na effort ko because I know that they
would deny it, maam.[164]

On February 11, 2008, the respondent presented Mrs. Talbin to corroborate

her testimony that her husband was abducted and held under custodial
investigation by the PNP-CIDG Zamboanga City, viz:

Q: You said that you went to Camp Katitipan in Davao City sometime
November 24, 2007, who was with you when you went there?

A: Mary Jean Tagitis, sir.

Q: Only the two of you?

A: No. We have some other companions. We were four at that time, sir.

Q: Who were they?

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

Q: Were you able to talk, see some other officials at Camp Katitipan
during that time?

A: Col. Kasim (PS Supt. Julasirim Ahadin Kasim) only, sir.

Q: Were you able to talk to him?

A: Yes, sir.
Q: The four of you?

A: Yes, sir.

Q: What information did you get from Col. Kasim during that time?

A: The first time we met with [him] I asked him if he knew of the exact
location, if he can furnish us the location of Engr. Tagitis. And he
was reading this report. He told us that Engr. Tagitis is in good
hands. He is with the military, but he is not certain whether he
is with the AFP or PNP. He has this serious case. He was charged
of terrorism because he was under surveillance from January
2007 up to the time that he was abducted. He told us that he
was under custodial investigation. As Ive said earlier, he was
seen under surveillance from January. He was seen talking to
Omar Patik, a certain Santos of Bulacan who is also a Balik Islam
and charged with terrorism. He was seen carrying boxes of
medicines. Then we asked him how long will he be in custodial
investigation. He said until we can get some information.But he
also told us that he cannot give us that report because it was a
raw report. It was not official, sir.

Q: You said that he was reading a report, was that report in document
form, in a piece of paper or was it in the computer or what?

A: As far as I can see it, sir, it is written in white bond paper. I dont know
if it was computerized but Im certain that it was typewritten. Im
not sure if it used computer, fax or what, sir.

Q: When he was reading it to you, was he reading it line by line or he

was reading in a summary form?

A: Sometimes he was glancing to the report and talking to us, sir.[165]

xxxx
 Q: Were you informed as to the place where he was being kept during
that time?

A: He did not tell us where he [Tagitis] was being kept. But he

mentioned this Talipapao, Sulu, sir.

Q: After that incident, what did you do if any?

A: We just left and as Ive mentioned, we just waited because that raw
information that he was reading to us [sic] after the custodial
investigation, Engineer Tagitis will be released. [Emphasis
supplied][166]

Col. Kasim never denied that he met with the respondent and her friends,
and that he provided them information based on the input of an unnamed asset. He
simply claimed in his testimony that the informal letter he received from his
informant in Sulu did not indicate that Tagitis was in the custody of the CIDG. He
also stressed that the information he provided the respondent was merely a raw
report from barangay intelligence that still needed confirmation and follow up as
to its veracity.[167]

To be sure, the respondents and Mrs. Talbins testimonies were far from
perfect, as the petitioners pointed out. The respondent mistakenly characterized
Col. Kasim as a military officer who told her that her husband is being abducted
because he is under custodial investigation because he is allegedly parang liason
ng J.I.The petitioners also noted that Mrs. Talbins testimony imputing certain
statements to Sr. Supt. Kasim that Engr. Tagitis is with the military, but he is not
certain whether it is the PNP or AFP is not worthy of belief, since Sr. Supt. Kasim
is a high ranking police officer who would certainly know that the PNP is not part
of the military.

Upon deeper consideration of these inconsistencies, however, what appears

clear to us is that the petitioners never really steadfastly disputed or presented
evidence to refute the credibility of the respondent and her witness, Mrs.
Talbin. The inconsistencies the petitioners point out relate, more than anything
else, to details that should not affect the credibility of the respondent and Mrs.
Talbin; the inconsistencies are not on material points.[168] We note, for example,
that these witnesses are lay people in so far as military and police matters are
concerned, and confusion between the police and the military is not unusual. As a
rule, minor inconsistencies such as these indicate truthfulness rather than
prevarication[169]and only tend to strengthen their probative value, in contrast to
testimonies from various witnesses dovetailing on every detail; the latter cannot
but generate suspicion that the material circumstances they testified to were
integral parts of a well thought of and prefabricated story.[170]
 Based on these considerations and the unique evidentiary situation in
enforced disappearance cases, we hold it duly established that Col. Kasim
informed the respondent and her friends, based on the informants letter, that
Tagitis, reputedly a liaison for the JI and who had been under surveillance
since January 2007, was in good hands and under custodial investigation for
complicity with the JI after he was seen talking to one Omar Patik and a
certain Santos of Bulacan, a Balik Islam charged with terrorism. The
respondents and Mrs. Talbins testimonies cannot simply be defeated by Col.
Kasims plain denial and his claim that he had destroyed his informants letter, the
critical piece of evidence that supports or negates the parties conflicting claims.
Col. Kasims admitted destruction of this letter effectively, a suppression of this
evidence raises the presumption that the letter, if produced, would be proof of what
the respondent claimed.[171] For brevity, we shall call the evidence of what Col.
Kasim reported to the respondent to be the Kasim evidence.

Given this evidence, our next step is to decide whether we can accept this
evidence, in lieu of direct evidence, as proof that the disappearance of Tagitis was
due to action with government participation, knowledge or consent and that he was
held for custodial investigation. We note in this regard that Col. Kasim was never
quoted to have said that the custodial investigation was by the CIDG
Zamboanga. The Kasim evidence only implies government intervention through
the use of the term custodial investigation, and does not at all point to CIDG
Zamboanga as Tagitis custodian.

Strictly speaking, we are faced here with a classic case of hearsay

evidence i.e., evidence whose probative value is not based on the personal
knowledge of the witnesses (the respondent, Mrs. Talbin and Col. Kasim himself)
but on the knowledge of some other person not on the witness stand (the
informant).[172]

To say that this piece of evidence is incompetent and inadmissible evidence

of what it substantively states is to acknowledge as the petitioners effectively
suggest that in the absence of any direct evidence, we should simply dismiss the
petition. To our mind, an immediate dismissal for this reason is no different from a
statement that the Amparo Rule despite its terms is ineffective, as it cannot allow
for the special evidentiary difficulties that are unavoidably present
in Amparosituations, particularly in extrajudicial killings and enforced
disappearances. The Amparo Rule was not promulgated with this intent or with the
intent to make it a token gesture of concern for constitutional rights. It was
promulgated to provide effective and timely remedies, using and profiting from
local and international experiences in extrajudicial killings and enforced
disappearances, as the situation may require. Consequently, we have no choice but
to meet the evidentiary difficulties inherent in enforced disappearances with the
flexibility that these difficulties demand.

To give full meaning to our Constitution and the rights it protects, we hold
that, as in Velasquez, we should at least take a close look at the available evidence
to determine the correct import of every piece of evidence even of those usually
considered inadmissible under the general rules of evidence taking into account the
surrounding circumstances and the test of reason that we can use as basic minimum
admissibility requirement. In the present case, we should at least determine
whether the Kasim evidence before us is relevant and meaningful to the
disappearance of Tagistis and reasonably consistent with other evidence in the
case.

The evidence about Tagitis personal circumstances surrounded him with an

air of mystery. He was reputedly a consultant of the World Bank and a Senior
Honorary Counselor for the IDB who attended a seminar in Zamboanga and
thereafter proceded to Jolo for an overnight stay, indicated by his request to
Kunnong for the purchase of a return ticket to Zamboanga the day after he arrived
in Jolo. Nothing in the records indicates the purpose of his overnight sojourn in
Jolo. A colleague in the IDB, Prof. Matli, early on informed the Jolo police that
Tagitis may have taken funds given to him in trust for IDB scholars. Prof Matli
later on stated that he never accused Tagitis of taking away money held in trust,
although he confirmed that the IDB was seeking assistance in locating funds of
IDB scholars deposited in Tagitis personal account. Other than these pieces of
evidence, no other information exists in the records relating to the personal
circumstances of Tagitis.

The actual disappearance of Tagitis is as murky as his personal

circumstances. While the Amparo petition recited that he was taken away by burly
men believed to be police intelligence operatives, no evidence whatsoever was
introduced to support this allegation. Thus, the available direct evidence is that
Tagitis was last seen at 12.30 p.m. of October 30, 2007 the day he arrived in Jolo
and was never seen again.

The Kasim evidence assumes critical materiality given the dearth of direct
evidence on the above aspects of the case, as it supplies the gaps that were never
looked into and clarified by police investigation. It is the evidence, too, that colors
a simple missing person report into an enforced disappearance case, as it injects the
element of participation by agents of the State and thus brings into question how
the State reacted to the disappearance.

Denials on the part of the police authorities, and frustration on the part of the
respondent, characterize the attempts to locate Tagitis. Initially in Jolo, the police
informed Kunnong that Tagitis could have been taken by the Abu Sayyaf or other
groups fighting the government. No evidence was ever offered on whether there
was active Jolo police investigation and how and why the Jolo police arrived at
this conclusion. The respondents own inquiry in Jolo yielded the answer that he
was not missing but was with another woman somewhere. Again, no evidence
exists that this explanation was arrived at based on an investigation. As already
related above, the inquiry with Col. Ancanan in Zamboanga yielded ambivalent
results not useful for evidentiary purposes. Thus, it was only the inquiry from Col.
Kasim that yielded positive results. Col. Kasims story, however, confirmed only
the fact of his custodial investigation (and, impliedly, his arrest or abduction),
without identifying his abductor/s or the party holding him in custody. The more
significant part of Col. Kasims story is that the abduction came after Tagitis was
seen talking with Omar Patik and a certain Santos of Bulacan, a Balik Islam
charged with terrorism. Mrs. Talbin mentioned, too, that Tagitis was being held at
Talipapao, Sulu. None of the police agencies participating in the investigation ever
pursued these leads. Notably, TASK FORCE TAGITIS to which this information
was relayed did not appear to have lifted a finger to pursue these aspects of the
case.

More denials were manifested in the Returns on the writ to the CA made by
the petitioners. Then PNP Chief Gen. Avelino I. Razon merely reported the
directives he sent to the ARMM Regional Director and the Regional Chief of the
CIDG on Tagitis, and these reports merely reiterated the open-ended initial report
of the disappearance. The CIDG directed a search in all of its divisions with
negative results. These, to the PNP Chief, constituted the exhaustion of all possible
efforts. PNP-CIDG Chief General Edgardo M. Doromal, for his part, also reported
negative results after searching all divisions and departments [of the CIDG] for a
person named Engr. Morced N. Tagitis . . . and after a diligent and thorough
research, records show that no such person is being detained in the CIDG or any of
its department or divisions. PNP-PACER Chief PS Supt. Leonardo A. Espina and
PNP PRO ARMM Regional Director PC Superintendent Joel R. Goltiao did no
better in their affidavits-returns, as they essentially reported the results of their
directives to their units to search for Tagitis.

The extent to which the police authorities acted was fully tested when the
CA constituted TASK FORCE TAGITIS, with specific directives on what to
do. The negative results reflected in the Returns on the writ were again replicated
during the three hearings the CA scheduled. Aside from the previously mentioned
retraction that Prof. Matli made to correct his accusation that Tagitis took money
held in trust for students, PS Supt. Ajirim reiterated in his testimony that the CIDG
consistently denied any knowledge or complicity in any abduction and said that
there was no basis to conclude that the CIDG or any police unit had anything to do
with the disappearance of Tagitis; he likewise considered it premature to conclude
that Tagitis simply ran away with the money in his custody. As already noted
above, the TASK FORCE notably did not pursue any investigation about the
personal circumstances of Tagitis, his background in relation to the IDB and the
background and activities of this Bank itself, and the reported sighting of Tagistis
with terrorists and his alleged custody in Talipapao, Sulu. No attempt appears to
have ever been made to look into the alleged IDB funds that Tagitis held in trust,
or to tap any of the assets who are indispensable in investigations of this nature.
These omissions and negative results were aggravated by the CA findings that it
was only as late as January 28, 2008 or three months after the disappearance that
the police authorities requested for clear pictures of Tagitis. Col. Kasim could not
attend the trial because his subpoena was not served, despite the fact that he was
designated as Ajirims replacement in the latters last post. Thus, Col. Kasim was
not then questioned. No investigation even an internal one appeared to have been
made to inquire into the identity of Col. Kasims asset and what he indeed wrote.

We glean from all these pieces of evidence and developments a

consistency in the governments denial of any complicity in the disappearance
of Tagitis, disrupted only by the report made by Col. Kasim to the respondent
at Camp Katitipan. Even Col. Kasim, however, eventually denied that he ever
made the disclosure that Tagitis was under custodial investigation for complicity in
terrorism. Another distinctive trait that runs through these developments is the
governments dismissive approach to the disappearance, starting from the initial
response by the Jolo police to Kunnongs initial reports of the disappearance, to the
responses made to the respondent when she herself reported and inquired about her
husbands disappearance, and even at TASK FORCE TAGITIS itself.

As the CA found through TASK FORCE TAGITIS, the investigation was at

best haphazard since the authorities were looking for a man whose picture they
initially did not even secure. The returns and reports made to the CA fared no
better, as the CIDG efforts themselves were confined to searching for custodial
records of Tagitis in their various departments and divisions. To point out the
obvious, if the abduction of Tagitis was a black operation because it was
unrecorded or officially unauthorized, no record of custody would ever appear in
the CIDG records; Tagitis, too, would not be detained in the usual police or CIDG
detention places.In sum, none of the reports on record contains any meaningful
results or details on the depth and extent of the investigation made. To be sure,
reports of top police officials indicating the personnel and units they directed to
investigate can never constitute exhaustive and meaningful investigation, or equal
detailed investigative reports of the activities undertaken to search for
Tagitis. Indisputably, the police authorities from the very beginning failed to come
up to the extraordinary diligence that the Amparo Rule requires.

CONCLUSIONS AND THE AMPARO REMEDY

Based on these considerations, we conclude that Col. Kasims disclosure,

made in an unguarded moment, unequivocally point to some government
complicity in the disappearance. The consistent but unfounded denials and the
haphazard investigations cannot but point to this conclusion. For why would the
government and its officials engage in their chorus of concealment if the intent had
not been to deny what they already knew of the disappearance? Would not an in-
depth and thorough investigation that at least credibly determined the fate of
Tagitis be a feather in the governments cap under the circumstances of the
disappearance? From this perspective, the evidence and developments, particularly
the Kasim evidence, already establish a concrete case of enforced disappearance
that the Amparo Rule covers. From the prism of the UN Declaration, heretofore
cited and quoted,[173] the evidence at hand and the developments in this case
confirm the fact of the enforced disappearance and government complicity, under a
background of consistent and unfounded government denials and haphazard
handling. The disappearance as well effectively placed Tagitis outside the
protection of the law a situation that will subsist unless this Court acts.

This kind of fact situation and the conclusion reached are not without
precedent in international enforced disappearance rulings. While the facts are not
exactly the same, the facts of this case run very close to those of Timurtas v.
Turkey,[174] a case decided by ECHR. The European tribunal in that case acted on
the basis of the photocopy of a post-operation report in finding that Abdulvahap
Timurtas (Abdulvahap) was abducted and later detained by agents (gendarmes) of
the government of Turkey. The victim's father in this case brought a claim against
Turkey for numerous violations of the European Convention, including the right to
life (Article 2) and the rights to liberty and security of a person (Article 5). The
applicant contended that on August 14, 1993, gendarmes apprehended his son,
Abdulvahap for being a leader of the Kurdish Workers Party (PKK) in the Silopi
region. The petition was filed in southeast Turkey nearly six and one half years
after the apprehension. According to the father, gendarmes first detained
Abdulvahap and then transferred him to another detainment facility. Although
there was no eyewitness evidence of the apprehension or subsequent
detainment, the applicant presented evidence corroborating his version of
events, including a photocopy of a post-operation report signed by the
commander of gendarme operations in Silopi, Turkey. The report included a
description of Abdulvahap's arrest and the result of a subsequent interrogation
during detention where he was accused of being a leader of the PKK in the Silopi
region. On this basis, Turkey was held responsible for Abdulvahaps enforced
disappearance.

Following the lead of this Turkish experience - adjusted to the

Philippine legal setting and the Amparo remedy this Court has established, as
applied to the unique facts and developments of this case we believe and so
hold that the government in general, through the PNP and the PNP-CIDG,
and in particular, the Chiefs of these organizations together with Col. Kasim,
should be held fully accountable for the enforced disappearance of Tagitis.

The PNP and CIDG are accountable because Section 24 of Republic Act No.
6975, otherwise known as the PNP Law,[175] specifies the PNP as the governmental
office with the mandate to investigate and prevent crimes, effect the arrest of
criminal offenders, bring offenders to justice and assist in their prosecution. The
PNP-CIDG, as Col. Jose Volpane Pante (then Chief of CIDG Region 9) testified, is
the investigative arm of the PNP and is mandated to investigate and prosecute all
cases involving violations of the Revised Penal Code, particularly those considered
as heinous crimes.[176] Under the PNP organizational structure, the PNP-CIDG is
tasked to investigate all major crimes involving violations of the Revised Penal
Code and operates against organized crime groups, unless the President assigns the
case exclusively to the National Bureau of Investigation (NBI).[177] No indication
exists in this case showing that the President ever directly intervened by assigning
the investigation of Tagitis disappearance exclusively to the NBI.

Given their mandates, the PNP and PNP-CIDG officials and members were
the ones who were remiss in their duties when the government completely failed to
exercise the extral'>To fully enforce the Amparo remedy, we refer this case back to
the CA for appropriate proceedings directed at the monitoring of the PNP and the
PNP-CIDG investigations and actions, and the validation of their results through
hearings the CA may deem appropriate to conduct. For purposes of these
investigations, the PNP/PNP-CIDG shall initially present to the CA a plan of
action for further investigation, periodically reporting the detailed results of its
investigation to the CA for its consideration and action. On behalf of this Court,
the CA shall pass upon: the need for the PNP and the PNP-CIDG to make
disclosures of matters known to them as indicated in this Decision and as further
CA hearings may indicate; the petitioners submissions; the sufficiency of their
investigative efforts; and submit to this Court a quarterly report containing its
actions and recommendations, copy furnished the petitioners and the respondent,
with the first report due at the end of the first quarter counted from the finality of
this Decision. The PNP and the PNP-CIDG shall have one (1) full year to
undertake their investigation. The CA shall submit its full report for the
consideration of this Court at the end of the 4th quarter counted from the finality of
this Decision.

WHEREFORE, premises considered, we DENY the petitioners petition for

review on certiorari for lack of merit, and AFFIRM the decision of the Court of
Appeals dated March 7, 2008 under the following terms:

a. Recognition that the disappearance of Engineer Morced N. Tagitis is

an enforced disappearance covered by the Rule on the Writ
of Amparo;
b. Without any specific pronouncement on exact authorship and
responsibility, declaring the government (through the PNP and the
PNP-CIDG) and Colonel Julasirim Ahadin Kasim accountable for the
enforced disappearance of Engineer Morced N. Tagitis;
c. Confirmation of the validity of the Writ of Amparo the Court of
Appeals issued;
d. Holding the PNP, through the PNP Chief, and the PNP-CIDG,
through its Chief, directly responsible for the disclosure of material
facts known to the government and to their offices regarding the
disappearance of Engineer Morced N. Tagitis, and for the conduct of
proper investigations using extraordinary diligence, with the
obligation to show investigation results acceptable to this Court;
e. Ordering Colonel Julasirim Ahadin Kasim impleaded in this case and
holding him accountable with the obligation to disclose information
known to him and to his assets in relation with the enforced
disappearance of Engineer Morced N. Tagitis;
f. Referring this case back to the Court of Appeals for appropriate
proceedings directed at the monitoring of the PNP and PNP-CIDG
investigations, actions and the validation of their results; the PNP and
the PNP-CIDG shall initially present to the Court of Appeals a plan of
action for further investigation, periodically reporting their results to
the Court of Appeals for consideration and action;
g. Requiring the Court of Appeals to submit to this Court a quarterly
report with its recommendations, copy furnished the incumbent PNP
and PNP-CIDG Chiefs as petitioners and the respondent, with the first
report due at the end of the first quarter counted from the finality of
this Decision;
h. The PNP and the PNP-CIDG shall have one (1) full year to undertake
their investigations; the Court of Appeals shall submit its full report
for the consideration of this Court at the end of the 4 th 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.
SECOND DIVISION

REPUBLIC OF THE PHILIPPINES, G.R. No. 166676

Petitioner,
Present:

QUISUMBING, J., Chairperson,

CARPIO MORALES,
- versus -
TINGA,

VELASCO, JR., and

BRION, JJ.

Promulgated:
JENNIFER B. CAGANDAHAN,

Respondent.
September 12, 2008

x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x

DECISION
QUISUMBING, J.:

This is a petition for review under Rule 45 of the Rules of Court raising
purely questions of law and seeking a reversal of the Decision[1] dated January 12,
2005 of the Regional Trial Court (RTC), Branch 33 of Siniloan, Laguna, which
granted the Petition for Correction of Entries in Birth Certificate filed by Jennifer B.
Cagandahan and ordered the following changes of entries in Cagandahans birth
certificate: (1) the name Jennifer Cagandahan changed to Jeff Cagandahan and (2)
gender from female to male.

The facts are as follows.

On December 11, 2003, respondent Jennifer Cagandahan filed a Petition for

Correction of Entries in Birth Certificate[2] before the RTC, Branch 33 of Siniloan,
Laguna.

In her petition, she alleged that she was born on January 13, 1981 and was
registered as a female in the Certificate of Live Birth but while growing up, she
developed secondary male characteristics and was diagnosed to have Congenital
Adrenal Hyperplasia (CAH) which is a condition where persons thus afflicted
possess both male and female characteristics. She further alleged that she was
diagnosed to have clitoral hyperthropy in her early years and at age six, underwent
an ultrasound where it was discovered that she has small ovaries. At age thirteen,
tests revealed that her ovarian structures had minimized, she has stopped growing
and she has no breast or menstrual development. She then alleged that for all
interests and appearances as well as in mind and emotion, she has become a male
person.Thus, she prayed that her birth certificate be corrected such that her gender
be changed from female to male and her first name be changed from Jennifer to
Jeff.

The petition was published in a newspaper of general circulation for three

(3) consecutive weeks and was posted in conspicuous places by the sheriff of the
court. The Solicitor General entered his appearance and authorized the Assistant
Provincial Prosecutor to appear in his behalf.

To prove her claim, respondent testified and presented the testimony of Dr.
Michael Sionzon of the Department of Psychiatry, University of
the PhilippinesPhilippine General Hospital. Dr. Sionzon issued a medical
certificate stating that respondents condition is known as CAH. He explained that
genetically respondent is female but because her body secretes male hormones, her
female organs did not develop normally and she has two sex organs female and
male. He testified that this condition is very rare, that respondents uterus is not
fully developed because of lack of female hormones, and that she has no monthly
period. He further testified that respondents condition is permanent and
recommended the change of gender because respondent has made up her mind,
adjusted to her chosen role as male, and the gender change would be advantageous
to her.

The RTC granted respondents petition in a Decision dated January 12,

2005 which reads:
The Court is convinced that petitioner has satisfactorily shown that he is
entitled to the reliefs prayed [for]. Petitioner has adequately presented to the Court
very clear and convincing proofs for the granting of his petition. It was medically
proven that petitioners body produces male hormones, and first his body as well
as his action and feelings are that of a male. He has chosen to be male. He is a
normal person and wants to be acknowledged and identified as a male.
 WHEREFORE, premises considered, the Civil Register of Pakil, Laguna
is hereby ordered to make the following corrections in the birth [c]ertificate of
Jennifer Cagandahan upon payment of the prescribed fees:

a) By changing the name from Jennifer Cagandahan to JEFF

CAGANDAHAN; and

b) By changing the gender from female to MALE.

It is likewise ordered that petitioners school records, voters registry,

baptismal certificate, and other pertinent records are hereby amended to conform
with the foregoing corrected data.

SO ORDERED.[3]

Thus, this petition by the Office of the Solicitor General (OSG) seeking a
reversal of the abovementioned ruling.

The issues raised by petitioner are:

THE TRIAL COURT ERRED IN GRANTING THE PETITION
CONSIDERING THAT:
I.
THE REQUIREMENTS OF RULES 103 AND 108 OF THE RULES OF
COURT HAVE NOT BEEN COMPLIED WITH; AND,

II.
CORRECTION OF ENTRY UNDER RULE 108 DOES NOT ALLOW CHANGE
OF SEX OR GENDER IN THE BIRTH CERTIFICATE, WHILE
RESPONDENTS MEDICAL CONDITION, i.e., CONGENITAL ADRENAL
HYPERPLASIA DOES NOT MAKE HER A MALE.[4]

Simply stated, the issue is whether the trial court erred in ordering the
correction of entries in the birth certificate of respondent to change her sex or
gender, from female to male, on the ground of her medical condition known as
CAH, and her name from Jennifer to Jeff, under Rules 103 and 108 of the Rules of
Court.

The OSG contends that the petition below is fatally defective for non-
compliance with Rules 103 and 108 of the Rules of Court because while the local
civil registrar is an indispensable party in a petition for cancellation or correction
of entries under Section 3, Rule 108 of the Rules of Court, respondents petition
before the court a quo did not implead the local civil registrar.[5] The OSG further
contends respondents petition is fatally defective since it failed to state that
respondent is a bona fide resident of the province where the petition was filed for
at least three (3) years prior to the date of such filing as mandated under Section
2(b), Rule 103 of the Rules of Court.[6] The OSG argues that Rule 108 does not
allow change of sex or gender in the birth certificate and respondents claimed
medical condition known as CAH does not make her a male.[7]

On the other hand, respondent counters that although the Local Civil
Registrar of Pakil, Laguna was not formally named a party in the Petition for
Correction of Birth Certificate, nonetheless the Local Civil Registrar was furnished
a copy of the Petition, the Order to publish on December 16, 2003 and all
pleadings, orders or processes in the course of the proceedings,[8] respondent is
actually a male person and hence his birth certificate has to be corrected to reflect
his true sex/gender,[9]change of sex or gender is allowed under Rule 108,[10] and
respondent substantially complied with the requirements of Rules 103 and 108 of
the Rules of Court.[11]

Rules 103 and 108 of the Rules of Court provide:

Rule 103
CHANGE OF NAME
SECTION 1. Venue. A person desiring to change his name shall present the
petition to the Regional Trial Court of the province in which he resides, [or, in the
City of Manila, to the Juvenile and Domestic Relations Court].

SEC. 2. Contents of petition. A petition for change of name shall be signed and
verified by the person desiring his name changed, or some other person on his
behalf, and shall set forth:

(a) That the petitioner has been a bona fide resident of the province where
the petition is filed for at least three (3) years prior to the date of such
filing;

(b) The cause for which the change of the petitioner's name is sought;

(c) The name asked for.

SEC. 3. Order for hearing. If the petition filed is sufficient in form and substance,
the court, by an order reciting the purpose of the petition, shall fix a date and
place for the hearing thereof, and shall direct that a copy of the order be published
before the hearing at least once a week for three (3) successive weeks in some
newspaper of general circulation published in the province, as the court shall
deem best. The date set for the hearing shall not be within thirty (30) days prior to
an election nor within four (4) months after the last publication of the notice.

SEC. 4. Hearing. Any interested person may appear at the hearing and oppose the
petition. The Solicitor General or the proper provincial or city fiscal shall appear
on behalf of the Government of the Republic.

SEC. 5. Judgment. Upon satisfactory proof in open court on the date fixed in the
order that such order has been published as directed and that the allegations of the
petition are true, the court shall, if proper and reasonable cause appears for
changing the name of the petitioner, adjudge that such name be changed in
accordance with the prayer of the petition.

SEC. 6. Service of judgment. Judgments or orders rendered in connection with

this rule shall be furnished the civil registrar of the municipality or city where the
court issuing the same is situated, who shall forthwith enter the same in the civil
register.

Rule 108
CANCELLATION OR CORRECTION OF ENTRIES
IN THE CIVIL REGISTRY
SECTION 1. Who may file petition. Any person interested in any act, event, order
or decree concerning the civil status of persons which has been recorded in the
civil register, may file a verified petition for the cancellation or correction of any
entry relating thereto, with the Regional Trial Court of the province where the
corresponding civil registry is located.

SEC. 2. Entries subject to cancellation or correction. Upon good and valid

grounds, the following entries in the civil register may be cancelled or corrected:
 (a) births; (b) marriages; (c) deaths; (d) legal separations; (e) judgments of
annulments of marriage; (f) judgments declaring marriages void from the
beginning; (g) legitimations; (h) adoptions; (i) acknowledgments of natural
children; (j) naturalization; (k) election, loss or recovery of citizenship; (l) civil
interdiction; (m) judicial determination of filiation; (n) voluntary emancipation of
a minor; and (o) changes of name.

SEC. 3. Parties. When cancellation or correction of an entry in the civil register is

sought, the civil registrar and all persons who have or claim any interest which
would be affected thereby shall be made parties to the proceeding.

SEC. 4. Notice and publication. Upon the filing of the petition, the court shall, by
an order, fix the time and place for the hearing of the same, and cause reasonable
notice thereof to be given to the persons named in the petition. The court shall
also cause the order to be published once a week for three (3) consecutive weeks
in a newspaper of general circulation in the province.

SEC. 5. Opposition. The civil registrar and any person having or claiming any
interest under the entry whose cancellation or correction is sought may, within
fifteen (15) days from notice of the petition, or from the last date of publication of
such notice, file his opposition thereto.

SEC. 6. Expediting proceedings. The court in which the proceedings is brought

may make orders expediting the proceedings, and may also grant preliminary
injunction for the preservation of the rights of the parties pending such
proceedings.

SEC. 7. Order. After hearing, the court may either dismiss the petition or issue an
order granting the cancellation or correction prayed for. In either case, a certified
copy of the judgment shall be served upon the civil registrar concerned who shall
annotate the same in his record.

The OSG argues that the petition below is fatally defective for non-
compliance with Rules 103 and 108 of the Rules of Court because respondents
petition did not implead the local civil registrar. Section 3, Rule 108 provides that
the civil registrar and all persons who have or claim any interest which would be
affected thereby shall be made parties to the proceedings. Likewise, the local civil
registrar is required to be made a party in a proceeding for the correction of name
in the civil registry. He is an indispensable party without whom no final
determination of the case can be had.[12] Unless all possible indispensable parties
were duly notified of the proceedings, the same shall be considered as falling much
too short of the requirements of the rules.[13] The corresponding petition should
also implead as respondents the civil registrar and all other persons who may have
or may claim to have any interest that would be affected thereby. [14] Respondent,
however, invokes Section 6,[15] Rule 1 of the Rules of Court which states that
courts shall construe the Rules liberally to promote their objectives of securing to
the parties a just, speedy and inexpensive disposition of the matters brought before
it. We agree that there is substantial compliance with Rule 108 when respondent
furnished a copy of the petition to the local civil registrar.

The determination of a persons sex appearing in his birth certificate is a

legal issue and the court must look to the statutes. In this connection, Article 412
of the Civil Code provides:

ART. 412. No entry in a civil register shall be changed or corrected without a judicial
order.
 Together with Article 376[16] of the Civil Code, this provision was amended
by Republic Act No. 9048[17] in so far as clerical or typographical errors are
involved. The correction or change of such matters can now be made through
administrative proceedings and without the need for a judicial order. In effect,
Rep. Act No. 9048 removed from the ambit of Rule 108 of the Rules of Court the
correction of such errors. Rule 108 now applies only to substantial changes and
corrections in entries in the civil register.[18]

Under Rep. Act No. 9048, a correction in the civil registry involving the
change of sex is not a mere clerical or typographical error. It is a substantial
change for which the applicable procedure is Rule 108 of the Rules of Court.[19]

The entries envisaged in Article 412 of the Civil Code and correctable under
Rule 108 of the Rules of Court are those provided in Articles 407 and 408 of the
Civil Code:
ART. 407. Acts, events and judicial decrees concerning the civil status of persons shall be
recorded in the civil register.

ART. 408. The following shall be entered in the civil register:

(1) Births; (2) marriages; (3) deaths; (4) legal separations; (5) annulments of marriage;
(6) judgments declaring marriages void from the beginning; (7) legitimations; (8)
adoptions; (9) acknowledgments of natural children; (10) naturalization; (11) loss, or
(12) recovery of citizenship; (13) civil interdiction; (14) judicial determination of filiation;
(15) voluntary emancipation of a minor; and (16) changes of name.

The acts, events or factual errors contemplated under Article 407 of the
Civil Code include even those that occur after birth.[20]

Respondent undisputedly has CAH. This condition causes the early or

inappropriate appearance of male characteristics. A person, like respondent, with
this condition produces too much androgen, a male hormone. A newborn who has
XX chromosomes coupled with CAH usually has a (1) swollen clitoris with the
urethral opening at the base, an ambiguous genitalia often appearing more male
than female; (2) normal internal structures of the female reproductive tract such as
the ovaries, uterus and fallopian tubes; as the child grows older, some features start
to appear male, such as deepening of the voice, facial hair, and failure to
menstruate at puberty. About 1 in 10,000 to 18,000 children are born with CAH.

CAH is one of many conditions[21] that involve intersex anatomy. During the
twentieth century, medicine adopted the term intersexuality to apply to human
beings who cannot be classified as either male or female.[22] The term is now of
widespread use. According to Wikipedia, intersexuality is the state of a living thing
of a gonochoristic species whose sex chromosomes, genitalia, and/or secondary
sex characteristics are determined to be neither exclusively male nor female. An
organism with intersex may have biological characteristics of both male and
female sexes.

Intersex individuals are treated in different ways by different cultures. In

most societies, intersex individuals have been expected to conform to either a male
or female gender role.[23] Since the rise of modern medical science in Western
societies, some intersex people with ambiguous external genitalia have had their
genitalia surgically modified to resemble either male or female genitals. [24] More
commonly, an intersex individual is considered as suffering from a disorder which
is almost always recommended to be treated, whether by surgery and/or by taking
lifetime medication in order to mold the individual as neatly as possible into the
category of either male or female.

In deciding this case, we consider the compassionate calls for recognition of

the various degrees of intersex as variations which should not be subject to outright
denial. It has been suggested that there is some middle ground between the sexes, a
no-mans land for those individuals who are neither truly male nor truly
female.[25] The current state of Philippine statutes apparently compels that a person
be classified either as a male or as a female, but this Court is not controlled by
mere appearances when nature itself fundamentally negates such rigid
classification.

In the instant case, if we determine respondent to be a female, then there is

no basis for a change in the birth certificate entry for gender. But if we determine,
based on medical testimony and scientific development
showing the respondent to be other than female, then a change in the

subjects birth certificate entry is in order.

Biologically, nature endowed respondent with a mixed (neither consistently

and categorically female nor consistently and categorically male)
composition.Respondent has female (XX) chromosomes. However, respondents
body system naturally produces high levels of male hormones (androgen). As a
result, respondent has ambiguous genitalia and the phenotypic features of a male.

Ultimately, we are of the view that where the person is biologically or

naturally intersex the determining factor in his gender classification would be what
the individual, like respondent, having reached the age of majority, with good
reason thinks of his/her sex. Respondent here thinks of himself as a male and
considering that his body produces high levels of male hormones (androgen) there
is preponderant biological support for considering him as being male. Sexual
development in cases of intersex persons makes the gender classification at birth
inconclusive. It is at maturity that the gender of such persons, like respondent, is
fixed.

Respondent here has simply let nature take its course and has not taken
unnatural steps to arrest or interfere with what he was born with. And accordingly,
he has already ordered his life to that of a male. Respondent could have undergone
treatment and taken steps, like taking lifelong medication,[26] to force his body into
the categorical mold of a female but he did not. He chose not to do so. Nature has
instead taken its due course in respondents development to reveal more fully his
male characteristics.
 In the absence of a law on the matter, the Court will not dictate on
respondent concerning a matter so innately private as ones sexuality and lifestyle
preferences, much less on whether or not to undergo medical treatment to reverse
the male tendency due to CAH. The Court will not consider respondent as having
erred in not choosing to undergo treatment in order to become or remain as a
female. Neither will the Court force respondent to undergo treatment and to take
medication in order to fit the mold of a female, as society commonly currently
knows this gender of the human species. Respondent is the one who has to live
with his intersex anatomy. To him belongs the human right to the pursuit of
happiness and of health. Thus, to him should belong the primordial choice of what
courses of action to take along the path of his sexual development and
maturation. In the absence of evidence that respondent is an incompetent [27] and in
the absence of evidence to show that classifying respondent as a male will harm
other members of society who are equally entitled to protection under the law, the
Court affirms as valid and justified the respondents position and his personal
judgment of being a male.

In so ruling we do no more than give respect to (1) the diversity of nature;

and (2) how an individual deals with what nature has handed out. In other words,
we respect respondents congenital condition and his mature decision to be a
male. Life is already difficult for the ordinary person. We cannot but respect how
respondent deals with his unordinary state and thus help make his life easier,
considering the unique circumstances in this case.

As for respondents change of name under Rule 103, this Court has held that
a change of name is not a matter of right but of judicial discretion, to be exercised
in the light of the reasons adduced and the consequences that will follow.[28] The
trial courts grant of respondents change of name from Jennifer to Jeff implies a
change of a feminine name to a masculine name. Considering the consequence that
respondents change of name merely recognizes his preferred gender, we find merit
in respondents change of name. Such a change will conform with the change of the
entry in his birth certificate from female to male.

WHEREFORE, the Republics petition is DENIED. The Decision

dated January 12, 2005 of the Regional Trial Court, Branch 33 of Siniloan,
Laguna, is AFFIRMED. No pronouncement as to costs.

SO ORDERED.
Republic of the Philippines
SUPREME COURT
Manila

G.R. No. L-32181 March 5, 1986

REPUBLIC OF THE PHILIPPINES, petitioner,

vs.
LEONOR VALENCIA, as Natural mother and guardian of her minor children, BERNARDO GO and JESSICA
GO; and THE HON. AGAPITO HONTANOSAS, Judge of the COURT OF FIRST INSTANCE OF CEBU, Branch
XI.

GUTIERREZ, JR., J.:

This is a petition to review the decision of respondent Judge Agapito Hontanosas of the Court of First Instance of
Cebu, Branch XI who ordered the Local Civil Registrar of Cebu to make the necessary cancellation and/or correction
in the entries of birth of Bernardo Go and Jessica Go in the Civil Registry of the City of Cebu.
Respondent Leonor Valencia, for and in behalf of her minor children, Bernardo Go and Jessica Go filed with the
Court of First Instance of Cebu a petition for the cancellation and/or correction of entries of birth of Bernardo Go and
Jessica Go in the Civil Registry of the City of Cebu. The case was docketed as Special Proceedings No. 3043-R.

The Solicitor General filed an opposition to the petition alleging that the petition for correction of entry in the Civil
Registry pursuant to Article 412 of the New Civil Code of the Philippines in relation to Rule 108 of the Revised Rules
of Court, contemplates a summary proceeding and correction of mere clerical errors, those harmless and innocuous
changes such as the correction of a name that is merely mispelled, occupation of parents, etc., and not changes or
corrections involving civil status, nationality, or citizenship which are substantial and controversial.

Finding the petition to be sufficient in form and substance, the trial court issued an order directing the publication of
the petition and the date of hearing thereof in the Cebu Advocate, a newspaper of general circulation in the city and
province of Cebu, once a week for three (3) consecutive weeks, and notice thereof, duly served on the Solicitor
General, the Local Civil Registrar of Cebu City and Go Eng.

Respondent Leonor Valencia, filed her reply to the opposition wherein she admitted that the present petition seeks
substantial changes involving the civil status and nationality or citizenship of respondents, but alleged that substantial
changes in the civil registry records involving the civil status of parents, their nationality or citizenship may be allowed
if- (1) the proper suit is filed, and (2) evidence is submitted, either to support the allegations of the petition or to
disprove the same; that respondents have complied with these requirements by filing the present special proceeding
for cancellation or correction of entries in the civil registry pursuant to Rule 108 of the Revised Rules of Court and that
they have caused reasonable notice to be given to the persons named in the petition and have also caused the order
for the hearings of their petition to be published for three (3) consecutive weeks in a newspaper of general circulation
in the province.

Subsequently, the Local Civil Registrar of Cebu City filed a motion to dismiss on the ground that since the petition
seeks to change the nationality or citizenship of Bernardo Go and Jessica Go from "Chinese" to "Filipino" and their
status from "Legitimate" to Illegitimate", and changing also the status of the mother from "married" to "single" the
corrections sought are not merely clerical but substantial, involving as they do the citizenship and status of the
petitioning minors and the status of their mother.

The lower court denied the motion to dismiss.

After trial on the merits during which the parties were given all the opportunity to present their evidence and refute the
evidence and arguments of the other side, the lower court rendered a decision the dispositive portion of which reads:

WHEREFORE, Judgment is hereby rendered granting the instant petition and ordering the Local
Civil Registrar of the City of Cebu to make the necessary cancellation and/or correction on the
following entries:

A. In the Record of Birth of BERNARDO GO, to register said Bernardo Go as 'FILIPINO' instead of
'CHINESE'; as 'ILLEGITIMATE instead of LEGITIMATE', and his father's (GO ENG) and mother's
(LEONOR VALENCIA) civil status as 'SINGLE instead of MARRIED';

B. In the Record of Birth of JESSICA GO to register said Jessica Go as 'FILIPINO' instead of

'CHINESE'; as 'ILLEGITIMATE' instead of 'LEGITIMATE' and father's (GO ENG) and mother's
(LEONOR VALENCIA) civil status as 'SINGLE instead of MARRIED': and

C. In both Records of Birth of Bernardo Go and Jessica Go to change the entry on Petitioner's
Citizenship from 'CHINESE to FILIPINO'.

Pursuant to Section 6, Rule 103 of the Rules of Court, the Clerk of Court is hereby directed to
furnish a copy of this decision to the Office of the Local Civil Registrar of Cebu City, who shall
forthwith enter the cancellation and/'or correction of entries of birth of Bernardo Go and Jessica Go
in the Civil Registry as adverted to above.

From the foregoing decision, oppositor-appellant Republic of the Philippines appealed to us by way of this petition for
review on certiorari.

The petitioner Republic of the Philippines raises a lone error for the grant of this petition, stating that:

THE LOWER COURT ERRED IN ORDERING THE CORRECTION OF THE PETITIONER'S

CITIZENSHIP AND CIVIL STATUS AND THE CITIZENSHIP AND CIVIL STATUS OF HER MINOR
CHILDREN BERNARDO GO AND JESSICA GO.

The petitioner premises its case on precedents from the 1954 case of Ty Kong Tin v. Republic (94 Phil. 321) to the
1981 case of Republic v. Caparosso (107 SCRA 67), that entries which can be corrected under Article 412 of the
New Civil Code as implemented by Rule 108 of the Revised Rules of Court refer to those mistakes that are clerical in
nature or changes that are harmless and innocuous (Wong v. Republic, 115 SCRA 496). In Republic v. Medina(119
SCRA 270) citing the case of Chua Wee, et al, v. Republic (38 SCRA 409), there was this dicta:

From the time the New Civil Code took effect on August 30, 1950 until the promulgation of the
Revised Rules of Court on January 1, 1964, there was no law nor rule of court prescribing the
procedure to secure judicial authorization to effect the desired innocuous rectifications or
alterations in the civil register pursuant to Article 412 of the New Civil Code. Rule 108 of the Revise
Rules of Court now provides for such a procedure which should be limited solely to the
implementation of Article 412, the substantive law on the matter of correcting entries in the civil
 register. Rule 108, lie all the other provisions of the Rules of Court, was promulgated by the
Supreme Court pursuant to its rule- making authority under Sec. 13 of Art. VIII of the Constitution,
which directs that such rules of court 'shall not diminish or increase or modify substantive rights.' If
Rule 108 were to be extended beyond innocuous or harmless changes or corrections of errors
which are visible to the eye or obvious to the understanding, so as to comprehend substantial and
controversial alterations concerning citizenship, legitimacy or paternity or filiation, or legitimacy of
marriage, said Rule 108 would thereby become unconstitutional for it would be increasing or
modifying substantive rights, which changes are not authorized under Article 412 of the New Civil
Code.

xxx xxx xxx

It is undoubtedly true that if the subject matter of a petition is not for the correction of clerical errors of a harmless and
innocuous nature, but one involving nationality or citizenship, which is indisputably substantial as well as
controverted, affirmative relief cannot be granted in a proceeding summary in nature. However, it is also true that a
right in law may be enforced and a wrong may be remedied as long as the appropriate remedy is used. This Court
adheres to the principle that even substantial errors in a civil registry may be corrected and the true facts established
provided the parties aggrieved by the error avail themselves of the appropriate adversary proceeding. As a matter of
fact, the opposition of the Solicitor General dated February 20, 1970 while questioning the use of Article 412 of the
Civil Code in relation to Rule 108 of the Revised Rules of Court admits that "the entries sought to be corrected should
be threshed out in an appropriate proceeding.

What is meant by "appropriate adversary proceeding?" Black's Law Dictionary defines "adversary proceeding as
follows:

One having opposing parties; contested, as distinguished from an ex parte application, one of
which the party seeking relief has given legal warning to the other party, and afforded the latter an
opportunity to contest it. Excludes an adoption proceeding." (Platt v. Magagnini, 187 p. 716, 718,
110 Was. 39).

The private respondent distinguishes between summary proceedings contemplated under Article 412 of the Civil
Code and fullblown adversary proceedings which are conducted under Rule 108 of the Rules of Court.

She states:

It will please be considered that the nature of the matters that may be changed or corrected are of
two kinds. It may either be mistakes that are clerical in nature or substantial ones. Under the first
category are those 'harmless and innocuous changes, such as correction of a name that is clearly
misspelled, occupation of the parents, etc.,' (Ansaldo v. Republic, No. L-10276, Feb. 14, 1958, 54
O.G. 5886) or 'one' that is visible to the eyes or obvious to the understanding'. (Black v. Republic,
No. L-10869, Nov. 28, 1958, 104 Phil. 848).

To the second category falls those which affect the civil status or citizenship or nationality of a party
(Ty Kong Tin v. Republic, No. L-5609, Feb. 5, 1954, 94 Phil. 321: Tan Su v. Republic, No. L-12140,
April 29, 1959, 105 Phil. 578: Black v. Republic, No. L-10869, Nov. 28, 1958, 104 Phil. 848;
Bantoco Coo v. Republic, No. L-14978, May 23,1961, 2 SCRA 42: Barillo v. Republic, No. L-14823,
Dec. 28, 1961, 3 SCRA 725).

Changes or corrections in the entries in the civil registry were governed, at first, by Act No. 3753
(Civil Registry Law) which placed these matters exclusively upon the sound judgment and
discretion of the civil registrars. With the effectivity of the New Civil Code on August 30, 1950, these
matters were governed by Article 412 thereof which prescribes judicial order before an entry in a
civil register shall be changed or corrected. This requirement was deemed necessary to forestall
the commission of fraud or other mischief in these matters.

But even then, it is not any correction that can be considered under Article 412 of he Civil Code.
The nature of the corrections sought has to be considered and if found to refer only to clerical
errors the same may be allowed under said article which was construed to contemplate only a
summary proceeding.

And so in the Ty Kong Tin case, this Honorable Court took occasion to draw a distinction between
what entries in the civil register could be corrected under Article 412 of the New Civil Code and
what could not. In the process, to our mind, this Honorable Court set down propositions which hold
true not only in that case but also in the subsequent cases for the latter merely reiterated the Ty
Kong Tin decision. These are:

First, that proceedings under Article 412 of the New Civil Code are summary:

Second, that corrections in the entires in the civil register may refer to either mere mistakes that are
clerical in nature or substantial ones which affects the civil status or -the nationality or citizenship of
the persons involved; and

Third, that if the change or correction sought refers to mere correction of mistakes that are clerical
in nature the same may be done, under Article 412 of the Civil Code; otherwise, if it refers to a
substantial change which affects the civil status or citizenship of a party. the matter should be
threshed out in a proper action.
 To our humble estimation, these propositions do not altogether bar or preclude substantial changes
or corrections involving such details as the civil status or nationality of a party. As a matter of fact,
just three years after the Ty Kong Tin decision, this Honorable Court allowed a party to correct
mistakes involving such substantial matters as his birthplace and citizenship in the birth certificates
of his two sons. (Lim v. Republic, No. L-8932, May 31, 1957, 101 Phil. 1235)

Only that where the correction pertains to matters which are important and controversial certain
conditions sine que non have to be complied with. Thus it was held:

If it refers to a substantial change which affects the status or citizenship of a party, the matter
should be threshed out in a proper action ... .' (Ty Kong Tin v. Republic, supra)

. . . . for changes involving the civil status of the parents, their nationality or citizenship, those are
grave and important matters which may have a bearing and effect on the citizenship and nationality
not only of said parents, but of the offsprings, and to seek said changes, it is not only the State, but
also all parties concerned and affected should be made parties defendants or respondents, and
evidence should be submitted, either to support the allegations of the petition or complaint, or also
to disprove the same so that any order or decision in the case may be made in the entry in a civil
register that will affect or even determine conclusively the citizenship or nationality of a person
therein involved. (Ansaldo v. Republic, 54 O.G. 5886; Emphasis supplied; Reiterated in the cases
of: Tan Su v. Republic, supra; Bantoto Coo v. Republic, supra; Barillo v. Republic, supra; San Luis
de Castro v. Republic, L-17431, April 30, 1963; Ilu Lin v. Republic, L- 18213, Dec. 24, 1963; Reyes
v. Republic, No.
L-17642, Nov. 27, 1964; Calicdan Baybayan v. Republic, L-20707, March 18, 1966; Tan v.
Republic, L-19847, April 29, 1966).

If at all what is forbidden is, in the words of Mr. Justice J.B.L. Reyes, 'only the entering of material
corrections or amendments in the record of birth by virtue of a judgment in a summary action
against the Civil Registrar. (Matias v. Republic, No.
L-26982, May 8, 1969.

It will thus be gleaned from the foregoing that corrections involving such matters as the civil status
of the parents, their nationality or citizenship may be allowed provided the proper suit is filed.

The court's role in hearing the petition to correct certain entries in the civil registry is to ascertain the truth about the
facts recorded therein. Under our system of administering justice, truth is best ascertained or approximated by trial
conducted under the adversary system,

Excerpts from the Report on Professional Responsibility issued jointly by the Association of American Law Schools
and the American Bar Association explain why:

An adversary presentation seems the only effective means for combatting this natural human
tendency to judge too swiftly in terms of the familiar that which is not yet fully known. The
arguments of counsel hold the case, as it were, in suspension between two opposing
interpretations of it. While the proper classification of the case is thus kept unresolved, there is time
to explore all of its peculiarities and nuances.

These are the contributions made by partisan advocacy during the public hearing of the cause.
When we take into account the preparation that must precede the hearing, the essential quality of
the advocate's contribution becomes even more apparent. Preceding the hearing inquiries must be
instituted to determine what facts can be proved or seem sufficiently established to warrant a
formal test of their truth during the hearing. There must also be a preliminary analysis of the issues,
so that the hearing may have form and direction. These preparatory measures are indispensable
whether or not the parties involved in the controversy are represented by advocates.

Where that representation is present there is an obvious advantage in the fact that the area of
dispute may be greatly reduced by an exchange of written pleadings or by stipulations of counsel.
Without the participation of someone who can act responsibly for each of the parties, this essential
narrowing of the issues becomes impossible. But here again the true significance of partisan
advocacy lies deeper, touching once more the integrity of the adjudicative process itself. It is only
through the advocate's participation that the hearing may remain in fact what it purports to be in
theory; a public trial of the facts and issues. Each advocate comes to the hearing prepared to
present his proofs and arguments, knowing at the same time that his arguments may fail to
persuade and that his proofs may be rejected as inadequate. It is a part of his role to absorb these
possible disappointments. The deciding tribunal, on the other hand, comes to the hearing
uncommitted. It has not represented to the public that any fact can be proved, that any argument is
sound, or that any particular way of stating a litigant's case is the most effective expression of its
merits.

xxx xxx xxx

These, then, are the reasons for believing that partisan advocacy plays a vital and essential role in
one of the most fundamental procedures of a democratic society. But if we were to put all of these
detailed considerations to one side, we should still be confronted by the fact that, in whatever form
adjudication may appear, the experienced judge or arbitrator desires and actively seeks to obtain
an adversary presentation of the issues. Only when he has had the benefit of intelligent and
vigorous advocacy on both sides can he feel fully confident of his decision.
 Viewed in this light, the role of the lawyer as a partisan advocate appears, not as a regrettable
necessity, but as an indispensable part of a larger ordering of affairs. The institution of advocacy is
not a concession to the frailties of human nature, but an expression of human insight in the design
of a social framework within which man's capacity for impartial judgment can attain its fullest
realization. (44 American Bar Association Journal (1160-1161, 1958)

Provided the trial court has conducted proceedings where all relevant facts have been fully and properly developed,
where opposing counsel have been given opportunity to demolish the opposite party's case, and where the evidence
has been thoroughly weighed and considered, the suit or proceeding is appropriate.

The pertinent sections of Rule 108 provide:

SEC. 3. Parties — When cancellation or correction of an entry in the civil register is sought, the civil
registrar and all persons who have or claim any interest which would be affected thereby shall be
made parties to the proceeding.

SEC. 4. Notice and publication.— Upon the filing of the petition, the court shall, by an orde, fix the
time and place for the hearing of the same, and cause reasonable notice thereof to be given to the
persons named in the petition. The court shall also cause the order to be published once in a week
for three (3) consecutive weeks in a newspaper of general circulation in the province.

SEC, 5. Opposition. — The civil registrar and any person having or claiming any interest under the
entry whose cancellation or correction is sought may, within fifteen (15) days from notice of the
petition, or from the last date of publication of such notice, file his opposition thereto.

Thus, the persons who must be made parties to a proceeding concerning the cancellation or correction of an entry in
the civil register are-(1) the civil registrar, and (2) all persons who have or claim any interest which would be affected
thereby. Upon the filing of the petition, it becomes the duty of the court to-(l) issue an order fixing the time and place
for the hearing of the petition, and (2) cause the order for hearing to be published once a week for three (3)
consecutive weeks in a newspaper of general circulation in the province. The following are likewise entitled to oppose
the petition: (I) the civil registrar, and (2) any person having or claiming any interest under the entry whose
cancellation or correction is sought.

If all these procedural requirements have been followed, a petition for correction and/or cancellation of entries in the
record of birth even if filed and conducted under Rule 108 of the Revised Rules of Court can no longer be described
as "summary". There can be no doubt that when an opposition to the petition is filed either by the Civil Registrar or
any person having or claiming any interest in the entries sought to be cancelled and/or corrected and the opposition
is actively prosecuted, the proceedings thereon become adversary proceedings.

In the instant case, a petition for cancellation and/or correction of entries of birth of Bernardo Go and Jessica Go in
the Civil Registry of the City of Cebu was filed by respondent Leonor Valencia on January 27, 1970, and pursuant to
the order of the trial court dated February 4, 1970, the said petition was published once a week for three (3)
consecutive weeks in the, Cebu Advocate, a newspaper of general circulation in the City of Cebu. Notice thereof was
duly served on the Solicitor General. the Local Civil Registrar and Go Eng. The order likewise set the case for hearing
and directed the local civil registrar and the other respondents or any person claiming any interest under the entries
whose corrections were sought, to file their opposition to the said petition. An opposition to the petition was
consequently filed by the Republic on February 26, 1970. Thereafter a full blown trial followed with respondent
Leonor Valencia testifying and presenting her documentary evidence in support of her petition. The Republic on the
other hand cross-examined respondent Leonor Valencia.

We are of the opinion that the petition filed by the respondent in the lower court by way of a special proceeding for
cancellation and/or correction of entries in the civil register with the requisite notice and publication and the recorded
proceedings that actually took place thereafter could very well be regarded as that proper suit or appropriate action.

In Matias v. Republic (28 SCRA 31), we held that:

xxx xxx xxx

. . . In the case of petitioner herein, however, the proceedings were not summary, considering the
publication of the petition made by order of the court in order to give notice to any person that might
be interested, including direct service on the Solicitor General himself. Considering the peculiar
circumstances of this particular case, the fact that no doubt is cast on the truth of petitioner's
allegations, or upon her evidence in support thereof, the absence of any showing that prejudice
would be caused to any party interested (since petitioner's own father testified in her favor), and the
publicity given to the petition, we are of the opinion that the Ty Kong Tin doctrine is not controlling
this case. "

Only last year, we had occasion to clarify the Ty Kong Tin doctrine, further. In Republic v. Macli-ing (135 SCRA 367,
370-371), this Court ruled:

The principal ground relied upon in this appeal is that Rule 108 of the Rules of Court upon which
private respondents anchor their Petition is applicable only to changes contemplated in Article 412
of the Civil Code, which are clerical or innocuous errors, or to corrections that are not controversial
and are supported by indubitable evidence. (Tiong v. Republic, 15 SCRA 262 [1965]).

It is true that the change from Esteban Sy to Sy Piao would necessarily affect the Identity of the
father. (Barillo v. Republic, 3 SCRA 725 [1961]) In that sense, it can be said to be substantial.
However, we find indubitable evidence to support the correction prayed for. . . .
 xxx xxx xxx

In the case of Ty Kong Tin v. Republic, 94 Phil. 321 (1954), as well as subsequent cases
predicated thereon, we forbade only the entering of material corrections in the record of birth by
virtue of a judgment in a summary action. the proceedings below, although filed under Rule 108 of
the Rules of Court, were not summary. The Petition was published by order of the lower Court once
a week for three consecutive weeks in a newspaper of general circulation in accordance with law.
The Solicitor General was served with copy of the Petition as well as with notices of hearings. He
filed his Opposition to the Petition. The Local Civil Registrar of the City of Baguio was likewise duly
served with copy of the Petition. A Fiscal was always in attendance at the hearings in
representation of the Solicitor General. He participated actively in the proceedings, particularly, in
the cross-examination of witnesses. And, notwithstanding that all interested persons were cited to
appear to show cause why the petition should not be granted, no one appeared to oppose except
the State through the Solicitor General. But neither did the State present evidence in support of its
Opposition.

To follow the petitioner's argument that Rule 108 is not an appropriate proceeding without in any way intimating what
is the correct proceeding or if such a proceeding exists at all, would result in manifest injustice.

Apart from Bernardo Go and Jessica Go, there are four (4) other sisters and one (1) other brother born of the same
father and mother. Not only are all five registered as Filipino citizens but they have pursued careers which require
Philippine citizenship as a mandatory pre-requisite. To emphasize the strict policy of the government regarding
professional examinations, it was the law until recently that to take the board exams for pharmacist, the applicant
should possess natural born citizenship. (See. 18, Republic Act 5921 and Sec. 1, P.D. 1350)

The sisters and brother are:

1. Sally Go, born on April 29, 1934 was licensed as a Pharmacist after passing the government board examinations
in 1956.

2. Fanny Go, born on July 12, 1936 is a Registered Nurse who passed the government board examinations in 1960.

3. Corazon Go, born on June 20, 1939, during the trial of this case in 1970 was a fourth year medical student,
qualified to take the government board examinations after successfully completing the requirements for a career in
medicine, and presumably is a licensed physician now.

4. Antonio Go, born February 14, 1942 was an engineering student during the 1970 trial of the case and qualified by
citizenship to take government board examinations.

5. Remedios Go, born October 4, 1945 was a licensed Optometrist after passing the government board examinations
in 1967.

The above facts were developed and proved during trial. The petitioner failed to refute the citizenship of the minors
Bernardo and Jessica Go.

In this petition, it limits itself to a procedural reason to overcome substantive findings by arguing that the proper
procedure was not followed.

There are other facts on the record. Leonor Valencia is a registered voter and had always exercised her right of
suffrage from the time she reached voting age until the national elections immediately preceding the filing of her
petition. The five other sisters and brother are also registered voters and likewise exercised the right of suffrage.

An uncle of the mother's side had held positions in the government having been elected twice as councilor and twice
as vice-mayor of Victorias, Negros Occidental. Respondent Leonor Valencia has purchased and registered two (2)
parcels of land as per Transfer Certificate of Title No. T-46104 and Transfer Certificate of Title No. T-37275. These
allegations are well documented and were never contradicted by the Republic. As correctly observed by the lower
court.

The right of suffrage is one of the important rights of a citizen. This is also true with respect to the
acquisition of a real property. The evidence further shows that her children had been allowed to
take the Board Examinations given by the Government for Filipino citizens only.

It would be a denial of substantive justice if two children proved by the facts to be Philippine citizens, and whose five
sisters and brother born of the same mother and father enjoy all the rights of citizens, are denied the same rights on
the simple argument that the "correct procedure" not specified or even intimated has not been followed.

We are, therefore, constrained to deny the petition.

WHEREFORE, the petition is DENIED for lack of merit.

The decision of the lower court is AFFIRMED.

SO ORDERED.

FIRST DIVISION
 [G.R. No. 153883. January 13, 2004]

REPUBLIC OF THE PHILIPPINES, petitioner, vs. CHULE Y.

LIM, respondent.

DECISION
YNARES-SANTIAGO, J.:

This petition for review on certiorari under Rule 45 of the Rules of Court stemmed
from a petition for correction of entries under Rule 108 of the Rules of Court filed by
respondent Chule Y. Lim with the Regional Trial Court of Lanao del Norte, Branch 4,
docketed as Sp. Proc. No. 4933.
In her petition, respondent claimed that she was born on October 29, 1954 in Buru-
an, Iligan City. Her birth was registered in Kauswagan, Lanao del Norte but the
Municipal Civil Registrar of Kauswagan transferred her record of birth to Iligan City. She
alleged that both her Kauswagan and Iligan City records of birth have four erroneous
entries, and prays that they be corrected.
The trial court then issued an Order,[1] which reads:

WHEREFORE, finding the petition to be sufficient in form and substance, let the
hearing of this case be set on December 27, 1999 before this Court, Hall of Justice,
Rosario Heights, Tubod, Iligan City at 8:30 oclock in the afternoon at which date,
place and time any interested person may appear and show cause why the petition
should not be granted.

Let this order be published in a newspaper of general circulation in the City of Iligan
and the Province of Lanao del Norte once a week for three (3) consecutive weeks at
the expense of the petitioner.

Furnish copies of this order the Office of the Solicitor General at 134 Amorsolo St.,
Legaspi Vill., Makati City and the Office of the Local Civil Registrar of Iligan City at
Quezon Ave., Pala-o, Iligan City.

SO ORDERED.

During the hearing, respondent testified thus:

First, she claims that her surname Yu was misspelled as Yo. She has been using
Yu in all her school records and in her marriage certificate.[2] She presented a clearance
from the National Bureau of Investigation (NBI)[3] to further show the consistency in her
use of the surname Yu.
Second, she claims that her fathers name in her birth record was written as Yo Diu
To (Co Tian) when it should have been Yu Dio To (Co Tian).
Third, her nationality was entered as Chinese when it should have been Filipino
considering that her father and mother never got married. Only her deceased father was
Chinese, while her mother is Filipina. She claims that her being a registered voter
attests to the fact that she is a Filipino citizen.
Finally, it was erroneously indicated in her birth certificate that she was a legitimate
child when she should have been described as illegitimate considering that her parents
were never married.
Placida Anto, respondents mother, testified that she is a Filipino citizen as her
parents were both Filipinos from Camiguin. She added that she and her daughters
father were never married because the latter had a prior subsisting marriage contracted
in China.
 In this connection, respondent presented a certification attested by officials of the
local civil registries of Iligan City and Kauswagan, Lanao del Norte that there is no
record of marriage between Placida Anto and Yu Dio To from 1948 to the present.
The Republic, through the City Prosecutor of Iligan City, did not present any
evidence although it actively participated in the proceedings by attending hearings and
cross-examining respondent and her witnesses.
On February 22, 2000, the trial court granted respondents petition and rendered
judgment as follows:

WHEREFORE, the foregoing premises considered, to set the records of the petitioner
straight and in their proper perspective, the petition is granted and the Civil Registrar
of Iligan City is directed to make the following corrections in the birth records of the
petitioner, to wit:

1. Her family name from YO to YU;

2. Her fathers name from YO DIU TO (CO TIAN) to YU DIOTO (CO

TIAN);

3. Her status from legitimate to illegitimate by changing YES to NO in answer

to the question LEGITIMATE?; and,

4. Her citizenship from Chinese to Filipino.

SO ORDERED. [4]

The Republic of the Philippines appealed the decision to the Court of Appeals which
affirmed the trial courts decision.[5]
Hence, this petition on the following assigned errors:
I

THE COURT OF APPEALS ERRED IN ORDERING THE CORRECTION OF THE

CITIZENSHIP OF RESPONDENT CHULE Y. LIM FROM CHINESE TO
FILIPINO DESPITE THE FACT THAT RESPONDENT NEVER
DEMONSTRATED ANY COMPLIANCE WITH THE LEGAL REQUIREMENTS
FOR ELECTION OF CITIZENSHIP.

II

THE COURT OF APPEALS ERRED IN ALLOWING RESPONDENT TO

CONTINUE USING HER FATHERS SURNAME DESPITE ITS FINDING THAT
RESPONDENT IS AN ILLEGITIMATE CHILD. [6]

To digress, it is just as well that the Republic did not cite as error respondents
recourse to Rule 108 of the Rules of Court to effect what indisputably are substantial
corrections and changes in entries in the civil register. To clarify, Rule 108 of the
Revised Rules of Court provides the procedure for cancellation or correction of entries
in the civil registry. The proceedings under said rule may either be summary or
adversary in nature. If the correction sought to be made in the civil register is clerical,
then the procedure to be adopted is summary. If the rectification affects the civil status,
citizenship or nationality of a party, it is deemed substantial, and the procedure to be
adopted is adversary. This is our ruling in Republic v. Valencia[7] where we held that
even substantial errors in a civil registry may be corrected and the true facts established
under Rule 108 provided the parties aggrieved by the error avail themselves of the
appropriate adversary proceeding. An appropriate adversary suit or proceeding is one
where the trial court has conducted proceedings where all relevant facts have been fully
and properly developed, where opposing counsel have been given opportunity to
demolish the opposite partys case, and where the evidence has been thoroughly
weighed and considered.[8]
As likewise observed by the Court of Appeals, we take it that the Republics failure
to cite this error amounts to a recognition that this case properly falls under Rule 108 of
the Revised Rules of Court considering that the proceeding can be appropriately
classified as adversarial.
Instead, in its first assignment of error, the Republic avers that respondent did not
comply with the constitutional requirement of electing Filipino citizenship when she
reached the age of majority. It cites Article IV, Section 1(3) of the 1935 Constitution,
which provides that the citizenship of a legitimate child born of a Filipino mother and an
alien father followed the citizenship of the father, unless, upon reaching the age of
majority, the child elected Philippine citizenship.[9] Likewise, the Republic invokes the
provision in Section 1 of Commonwealth Act No. 625, that legitimate children born of
Filipino mothers may elect Philippine citizenship by expressing such intention in a
statement to be signed and sworn to by the party concerned before any officer
authorized to administer oaths, and shall be filed with the nearest civil registry. The said
party shall accompany the aforesaid statement with the oath of allegiance to the
Constitution and the Government of the Philippines.[10]
Plainly, the above constitutional and statutory requirements of electing Filipino
citizenship apply only to legitimate children. These do not apply in the case of
respondent who was concededly an illegitimate child, considering that her Chinese
father and Filipino mother were never married. As such, she was not required to comply
with said constitutional and statutory requirements to become a Filipino citizen. By being
an illegitimate child of a Filipino mother, respondent automatically became a Filipino
upon birth.Stated differently, she is a Filipino since birth without having to elect Filipino
citizenship when she reached the age of majority.
In Ching, Re: Application for Admission to the Bar,[11] citing In re Florencio
Mallare,[12] we held:

Esteban Mallare, natural child of Ana Mallare, a Filipina, is therefore himself a

Filipino, and no other act would be necessary to confer on him all the rights and
privileges attached to Philippine citizenship (U.S. vs. Ong Tianse, 29 Phil. 332; Santos
Co vs. Government of the Philippine Islands, 42 Phil. 543; Serra vs. Republic, L-
4223, May 12, 1952; Sy Quimsuan vs. Republic, L-4693, Feb. 16, 1953; Pitallano vs.
Republic, L-5111, June 28, 1954). Neither could any act be taken on the erroneous
belief that he is a non-Filipino divest him of the citizenship privileges to which he is
rightfully entitled.
[13]

This notwithstanding, the records show that respondent elected Filipino citizenship
when she reached the age of majority. She registered as a voter in Misamis Oriental
when she was 18 years old.[14] The exercise of the right of suffrage and the participation
in election exercises constitute a positive act of election of Philippine citizenship. [15]
In its second assignment of error, the Republic assails the Court of Appeals
decision in allowing respondent to use her fathers surname despite its finding that she is
illegitimate.
The Republics submission is misleading. The Court of Appeals did not allow
respondent to use her fathers surname. What it did allow was the correction of her
fathers misspelled surname which she has been using ever since she can remember. In
this regard, respondent does not need a court pronouncement for her to use her fathers
surname.
We agree with the Court of Appeals when it held:

Firstly, Petitioner-appellee is now 47 years old. To bar her at this time from using her
fathers surname which she has used for four decades without any known objection
from anybody, would only sow confusion. Concededly, one of the reasons allowed for
changing ones name or surname is to avoid confusion.
Secondly, under Sec. 1 of Commonwealth Act No. 142, the law regulating the use of
aliases, a person is allowed to use a name by which he has been known since
childhood.

Thirdly, the Supreme Court has already addressed the same issue. In Pabellar v. Rep.
of the Phils., we held:
[16]

Section 1 of Commonwealth Act No. 142, which regulates the use of aliases, allows a
person to use a name by which he has been known since childhood (Lim Hok Albano
v. Republic, 104 Phil. 795; People v. Uy Jui Pio, 102 Phil. 679; Republic v.
Taada, infra). Even legitimate children cannot enjoin the illegitimate children of their
father from using his surname (De Valencia v. Rodriguez, 84 Phil. 222). [17]

While judicial authority is required for a change of name or surname, [18] there is no
such requirement for the continued use of a surname which a person has already been
using since childhood.[19]
The doctrine that disallows such change of name as would give the false impression
of family relationship remains valid but only to the extent that the proposed change of
name would in great probability cause prejudice or future mischief to the family whose
surname it is that is involved or to the community in general.[20] In this case, the Republic
has not shown that the Yu family in China would probably be prejudiced or be the object
of future mischief. In respondents case, the change in the surname that she has been
using for 40 years would even avoid confusion to her community in general.
WHEREFORE, in view of the foregoing, the instant petition for review is
DENIED. The decision of the Court of Appeals in CA-G.R. CV No. 68893 dated May 29,
2002, is AFFIRMED. Accordingly, the Civil Registrar of Iligan City is DIRECTED to
make the following corrections in the birth record of respondent Chule Y. Lim, to wit:

1. Her family name from YO to YU;

2. Her fathers name from YO DIU TO (CO TIAN) to YU DIOTO (CO TIAN);

3. Her status from legitimate to illegitimate by changing YES to NO in answer to the

question LEGITIMATE?; and,

4. Her citizenship from Chinese to Filipino.

SO ORDERED.
Davide, Jr., C.J., (Chairman), Panganiban, Carpio, and Azcuna, JJ., concur.

Republic of the Philippines

SUPREME COURT
Manila

SECOND DIVISION

G.R. No. L-33152 January 30, 1982

LUIS PARCO and VIRGINIA BAUTISTA, petitioners,

vs.
HONORABLE COURT OF APPEALS, HON. UNION C. KAYANAN, Judge, COURT OF FIRST INSTANCE OF
QUEZON (BRANCH IV), CALAUAG, and FRANCISCO RODRIGUEZ, JR., Legal Guardian of the Incompetent
SOLEDAD RODRIGUEZ, respondents.

DE CASTRO, J.:

By this petition for review on certiorari, petitioners seek to set aside the Resolution of the Court of Appeals dated
January 20, 1971 1 which revived and declared in full force and effect its decision on August 20,
1970 2 dismissing the petition for certiorari with preliminary injunction in CA-G.R. No. 43732, entitled "Luis
Parco, et al. vs. Hon. Judge of the Court of First Instance of Quezon, Branch IV, Calauag, et al., " and
pray that the decision dated April 15, 1969 3 and all subsequent orders 4 issued by respondent Judge of
Branch IV-Calauag, Court of First Instance of Quezon in Special Proceedings No. 2641 be declared as
null and void.

This case, G. R. No. L-33152, started from Special Proceedings No. 2641. a guardianship proceedings for the
incompetent Soledad Rodriguez of Sriaya, Quezon, which originally pertained to Branch 1, Court of First Instance of
Quezon, then presided by the late Hon. Judge Vicente Arguelles, 5 later on succeded by Hon. Judge Ameurfina
Melencio-Herrera (now Associate Justice of the Supreme Court). In 1966, respondent Judge of Branch
IV-Calauag of the Court of First Instance of Quezon, Hon. Union C. Kayanan, took cognizance of Special
Proceedings No. 2641 when the Secretary of Justice authorized respondent Judge to help unclog the
docket of Branch I at Lucena City, Quezon.

For clarity, We have hereunder summarized the sequence of events and material dates as it appears in the records
from the time respondent Judge of Branch IV of the Court of First Instance of Quezon took cognizance of Special
Proceedings No. 2641.

On December 20, 1966, respondent Judge authorized and approved, upon motion of Fransisco Rodriguez, Jr.
(guardian of Soledad Rodriguez), hereinafter referred to as private respondent, the sale to Luis Parco and Virginia
Bautista, hereinafter referred to as the petitioners, of Lot Nos. 3437 (613 sq. meters) and 4389 (4,068 sq. meters)
covered by TCT Nos. 16939 and 18035, respectively, for the sum of P4,400.00 for the support, maintenance and
medical treatment of the ward Soledad Rodriguez.

On January 6, 1967, respondent Judge again approved and authorized, upon motion of private respondent, the sale
to petitioners of Lot No. 1207 covered by TCT No. 16944 containing an area of 63,598 sq. meters, more or less, for
the same reason. All the sales of the three (3) lots being absolute, new transfer certificates of title were issued in the
name of petitioners.

On May 13, 1968, or almost one year and five months from the approval of the sale of Lot Nos. 3437, 4389, and
1207, private respondent filed an urgent petition in the Court of First Instance of Quezon, Ninth Judicial District,
invoking Section 6 Rule 96 of the Revised Rules of Court, praying that an order be immediately issued requiring
petitioners to appear before the court so that they can be examined as regards the three (3) lots in question which are
allegedly in danger of being lost, squandered, concealed and embezzled and upon failure to do so or to comply with
any order that may be issued in relation therewith to hold them in contempt of court. The pertinent allegations read as
follows:

xxx xxx xxx

1. That as legal guardian (private respondent) of the abovenamed incompetent and upon
authorization by this Hon. Court he has transferred in good faith to the spouses LUIS PARCO and
VIRGINIA (UY) BAUTISTA, both of Atimonan, Quezon, the titles over the following realties
belonging to his ward, namely:

a. A parcel of land (Lot No. 3437 of the Cadastral Survey of Sariaya) with the
improvements thereon situated in the Municipality of Sariaya ... containing an
area of Six Hundred Thirteen (613) sq. meters, more or less;

b. A parcel of land (Lot No. 4389 of the Cadastral Survey of Sariaya) situated in
the Municipality of Sariaya ... containing an area of Four Thousand And Sixty-
Eight (4,068) sq. meters, more or less;

c. A parcel of land (Lot No. 1207 of the Cadastral Survey of Sariaya) situated in
the Municipality of Sariaya ... containing an area of Sixty-three Thousand Five
Hundred and Ninety-eight (63,598) sq. meters, more or less.

2. That anent the first TWO (2) PARCELS above-described he transferred the titles thereto in favor
of the recited spouses under a loan agreement (not an absolute sale thereto and with the express
commitment in writing that he can recover the same within three (3) months from December 19,
1966, ...

That prior to the expiration of the cited period of three months, he tried to recover the stated two
parcels of land from them, however, the same was not carried out because he was then transacting
with them the sale of PARCEL THREE and under the Agreement that they will not sell cede, or
convey the mentioned two (2) lots to anyone (except to petitioner now private respondent herein)
and once the stated PARCEL THREE has been sold at the price of P48,000.00 the borrowed
amount of P4,400.00 shall be deducted therefrom and said two parcels shall be returned to him;

3. That recently, he discovered that the cited couple, in bad faith and in violation of their agreement
and of the trust and confidence which he had reposed upon them, have fraudulently ceded and
transferred the titles over the stated two parcels of land to another person, allegedly for a price of
(over P30,000.00) and in spite of his repeated request upon them to reconvey to him the titles
thereto or to turn over to him the total proceeds they have received (minus the sum of P4,400.00),
they have maliciously and unjustly refused to do so, and are intending to keep and retain said
amount for their own personal use and benefit;

4. That as already adverted to in the previous paragraph hereof, the mentioned couple induced him
to transfer to them the title of parcel three, so that they can sell the same for the agreed price of
 P48,000.00 and believing in good faith that the cited spouses are honest and trustworthy, he
agreed and executed the requisite document transferring the title to them subject to the following
conditions:

a. They shall pay to him the amount of Twelve Thousand (Pl2,000.00) Pesos
after they have secured a buyer of the property, ...

b. They shall pay to NIEVES ALCALA and PURA AGCAOILE (who are private
respondent's agents and representatives in negotiating the sale of parcel three)
the sum of Fifteen Thousand (P15,000.00) Pesos after they have sold the realty,
...

5. That recently, he discovered that the cited couple have already sold and ceded the mentioned
parcel three to another person, and despite his repeated request upon them to pay and deliver to
him or to Nieves Alcala the sum of money specified in the foregoing paragraph, they have
maliciously and unjustly failed and refused to do so, and have fraudulently retained the said amount
of money for thier own personal use and benefit;

6. That the enumerated parcels of land together with all the proceeds derived therefrom,
undeniably belonged to his ward as trust properties, which are subject to the disposition of this
Hon. Court, and due to the mentioned fraudulent, malicious and dishonest acts of the above-
named couple, are in danger of being lost, squandered, concealed and embezzled;

xxx xxx xxx

In an answer dated June 5, 1968, petitioners contended mainly, among others, that the three lots have been
conveyed to them by deeds of absolute sale which were duly approved by the guardianship court.

Pre-trial hearings were set for possible amicable settlement beginning on September 6, 1968 but was postponed and
reset to October 9, 1968 on petitioners' counsel motion. On October 9, 1968, both parties and their counsels
appeared but failed to reach any amicable settlement. Again, the pre-trial hearing was reset to November 28 and 29,
1968 but was likewise postponed to January 8, 1969 at petitioners' counsel motion.

On January 8, 1969, for failure to petitioners and their counsel to appear although there was a telegram requesting
for postponement, respondent Judge issued an order, 6 authorizing private respondent to present evidence
before the Clerk of Court who was instructed to make the corresponding report which shall be made as
the basis of this decision.

In a petition dated January 30, 1969, petitioners prayed for the reconsideration of the order of January 8, 1969
pointing out, among others, that there was a First Order dated July 29, 1968, 7 issued by then Judge Ameurfina
M. Herrera, Presiding Judge of Branch I, Court of First Instance of Quezon that said branch "will
henceforth take cognizance of this case" and thus, asked for the transfer of the incident sought before
Branch IV to Branch I for proper action.

On February 20, 1969, respondent Judge, finding the petition for reconsideration well-grounded, issued an order
directing the Clerk of Court to transmit the records of the case to the Court of First Instance, Branch I, Lucena City,
quoted below:

ORDER

Acting on the Petition for Reconsideration filed by counsel for the respondent on February 4, 1969,
considering that Hon. A. Melencio-Herrera, Presiding Judge of Branch 1, CFI, Lucena City, issued
an order on July 29, 1968, the dispositive portion of which is quoted as follows. 'WHEREFORE, it is
hereby confirmed that this court will henceforth take cognizance of this case,' and considering that
this special proceedings actually belongs to Branch I, although incidents therein were taken
cognizance of by the Presiding Judge of CFI, Branch IV when he was holding court session in
Lucena City and notwithstanding Administrative Order No. 261 dated October 7, 1968 which states
that 'This administrative order shall not apply to cases pending in the different salas which have
been partially tried and shall remain therein for final disposition', because to case was originally
filed during the incumbency of the late Judge Vicente Arguelles, finding therefore the said petition
to be well-grounded, the Clerk of Court is hereby authorized to transmit these records to the Deputy
Clerk of Court, CFI, Branch I, of Lucena City.

SO ORDERED.

Given at Calauag, Quezon this 20th day of February, 1969.

(SGD.) UNION C. KAYANAN Judge

On March 24, 1969, Private respondent, without the assistance of a counsel, filed before Branch IV, Court of First
Instance of Quezon an amended petition praying that the three (3) lots subject matter of the original urgent petition be
ordered reconveyed to the ward in said Special Proceedings No. 2641 for he was informed that petitioners win
transfer and properties to third person.

On March 26, 1969, the Clerk of Court of Branch IV, Court of First Instance of Quezon, issued the notice of hearing of
the amended petition filed by private respondent dated March 24, 1969 notifying counsel for both parties that the
case will be heard before Branch IV on April 10, 1969 at 2:30 p.m. at Calauag, Quezon. On the date set for hearing,
counsels for both parties appeared but for failure of the petitioners to appear respondent Judge issued an
order 8reiterating its previous order dated January 8, 1969 allowing private respondent to present his
evidence ex-parte and considered the case submitted for resolution.

On April 15, 1969, respondent Judge rendered a decision 9 on the basis of the report of the Clerk of Court dated
February 19, 1969 ordering petitioners to reconvey the three (3) parcels of land to private respondent.

On June 14, 1969, petitioners moved to reconsider the decision stating, among others, that respondent Judge has no
authority to take cognizance of the case which, according to petitioners, is an issue raised in the petition for
reconsideration of the court order of January 8, 1969, and that the decision was without legal basis. Petitioners
prayed that the case or incident be transferred to the proper court which had taken cognizance of this case.

On June 23, 1969, respondent Judge denied the petition for reconsideration for lack of merit. Petitioners' counsel
received the said order of denial on June 26, 1969.

Meanwhile, on June 21, 1969, private respondent filed an urgent motion in Branch IV praying that petitioners be
required to appear before the court to be examined as regards the properties of the ward and to explain why they
should not be cited for contempt for not complying with a final order of the court directing the reconveyance of the
three (3) parcels of land to private respondent.

directing petitioners to
On June 23, 1969, respondent Judge, acting on the urgent motion, issued an order 10

explain why they should not be cited for contempt of court pursuant to par. (b) Section 3 Rule 71 of the
Revised Rules of Court.

On June 27, 1969, petitioners filed an urgent motion claiming that the urgent motion for contempt of court was
premature considering that the decision ordering the reconveyance of the properties in question has not yet become
final and executory and is still subject to appeal. In their prayer for the setting aside of the order of June 23, 1969,
petitioners informed the court that they win appeal the decision to the Court of Appeals and that the corresponding
notice of appeal, appeal bond and the record on appeal will be filed in due time.

The following day, June 28, 1969, petitioners filed the notice of appeal and appeal bond with a manifestation that the
record on appeal will be filed in due time.

On July 3, 1963, respondent Judge issued an orderdenying for lack of merit petitioners' urgent motion of
11

June 27, 1969, thus declaring that the order dated June 23, 1969 stands considering that petitioners' right
to appeal has already lapsed. In the same order, petitioners were given ten (10) days upon receipt to
explain why they should not be cited for contempt pursuant to Section 4, Rule 71 in relation to Section 6,
Rule 96 of the Revised Rules of Court.

On July 7, 1969, petitioners filed a petition for extension of ten (10) days to expire on July 20, 1969 within which to file
the record on appeal. In an order 12 dated July 9, 1969, respondent Judge denied the said petition for having
been filed beyond the reglementary period.

On July 10, 1969, petitioners filed an unverified second petition for reconsideration of the decision dated April 15,
1969 and the order of July 3, 1969 contending that Branch IV lost its jurisdiction over the raise from the time the order
dated February 20, 1969 was issued by Judge A. Melencio- Herrera; that the proceedings under Section 6 Rule 96
do not authorize the Hon. Court (Branch IV) to determine the question of right over the property or to order delivery
thereof; that the purpose is merely to elicit information or secure evidence from the person suspected of having
embezzled, concealed or conveyed away any personal property of the ward; that if the court finds sufficient evidence
showing ownership on the part of the ward, it is the duty of the guardian to bring the proper action.

On the other hand, on July 17, 1969, a motion for reconsideration of the order dated July 9, 1969 was filed by
petitioners claiming that all the pleadings related to the intended appeal were filed within the period allowed by the
Revised Rules of Court. After an opposition was filed, respondent Judge issued an order on 13 July 18, 1969
denying the second petition for reconsideration for lack of basis and on the ground that the period to
appeal either the decision or any of the previous orders had already expired.

On August 20, 1969, petitioners went to the Court of Appeals on a petition for certiorari with preliminary injunction
pleading nullity of the decision of the Court of First Instance, Branch IV,

Quezon dated April 15, 1969 on grounds of lack of jurisdiction and grave abuse of discretion in denying their right of
appeal.

On motion by petitioners,
On September 27, 1969, the Court of Appeals dismissal the petition for lack of merit. 14

the dismissal was reconsidered in a split resolution dated December 15, 1969 thereby giving due course
to the petition, and private respondent was required to answer.

After private respondent filed their answer and the parties submitted their respective memoranda, the Court of
Appeals, in a three-to-two vote decision 15 dated August 21, 1970 dismissed the petition.

16 dated October 10,

On motion for reconsideration filed by petitioners, the Court of Appeals, in a split resolution
1970 granted the motion for reconsideration and set aside the decision dated August 20,1970.
However, upon motion for reconsideration filed by private respondent, the Court of Appeals, in a three-to-two vote
resolution 17 dated January 20, 1971, reverted to its decision of August 21, 1970 dismissing the petition.

Hence, the instant petition for review on the following assignment of errors, to wit:

THE MAJORITY OF THE DIVISION OF FIVE JUSTICES OF THE COURT OF APPEALS ERRED
IN SUSTAINING THE RETENTION BY THE RESPONDENT JUDGE OF BRANCH IV-CALAUAG
OF THE CASE OF BRANCH I-LUCENA CITY AFTER HE ORDERED THE RETURN OF THE
CASE TO BRANCH I,LUCENA CITY TO WHICH THE CASE BELONGS AND AFTER THE
PRESIDING JUDGE OF BRANCH I LUCENA CITY HAD RESUMED AND EXERCISED HER
JURISDICTION OVER SAID CASE.

II

ASSUMING THAT THE RESPONDENT JUDGE COULD LEGALLY AND VALIDLY RETAIN
JURISDICTION OVER THE CASE OF BRANCH I LUCENA CITY DESPITE THE
CIRCUMSTANCES ADVERTED TO IN THE FIRST ASSIGNED ERROR, THE MAJORITY OF
THE DIVISION OF FIVE JUSTICES OF THE COURT OF APPEALS ERRED IN SANCTIONING
THE RESPONDENT JUDGE'S ASSUMPTION OF JURISDICTION TO ADJUDICATE THE ISSUE
OF OWNERSHIP AND/OR ORDER RECONVEYANCE OF PETITIONERS' PROPERTY SOLD TO
THEM AND TITLED IN THEIR NAMES, NOTWITHSTANDING THE LIMITED JURISDICTION OF
A GUARDIANSHIP COURT.

III

THE MAJORITY OF THE DIVISION OF FIVE JUSTICES OF THE COURT OF APPEALS ERRED
IN NOT HOLDING THAT THE JUDICIAL AUTHORITY AND APPROVAL OF THE SALES ARE
CONCLUSIVE UPON THE VALIDITY AND REGULARITY OF SAID SALES BETWEEN THE
PARTIES AND THEIR SUCCESSORS IN INTEREST.

IV

THE MAJORITY OF THE DIVISION OF FIVE JUSTICES OF THE COURT OF APPEALS ERRED
IN SANCTIONING BY SILENCE THE QUESTIONED ORDER OF THE RESPONDENT JUDGE
ENFORCING HIS DECISION BY CONTEMPT PROCEEDINGS.

THE MAJORITY OF THE DIVISION OF FIVE JUSTICES OF THE COURT OF APPEALS ERRED
IN SANCTIONING DENIAL OF PETITIONERS' RIGHT TO APPEAL.

This petition was given due course in view of the peculiar incidents during its trial stage where, as borne out by the
records, two (2) branches of the Court of First Instance of Quezon Province, 9th Judicial District assert jurisdiction
over Special Proceedings No. 2641, which, when the decision rendered by one branch was brought in the Court of
Appeals on certiorari with preliminary injunction, the Special Division of Five Justices, in a three-to-two vote resolution
in four (4) occasions after its dismissal for lack of merit on September 27, 1968, reconsidered the same and was
given due course on December 15, 1968, again dismissed on August 21, 1970, but again reconsidered on October
10, 1970, until finally dismissed on January 20, 1971 when the Special Division of Five reverted to its August 21,
1970 resolution. The Special Division was equally split on the issue whether or not the Court of First Instance, Branch
IV, Calauag, Quezon, acting with limited jurisdiction as a guardianship court under Section 6 Rule 96 of the Rules of
Court, has the authority to adjudicate the question of ownership and order the reconveyance of the three (3) parcels
of land in question to private respondent, guardian of the ward Soledad Rodriguez. On these two (2) principal issues,
We are called upon to finally resolve the legal controversy peculiar on this case.

After the parties submitted their respective briefs, the case was deemed submitted for decision on October 28, 1971.

In a Resolution 18 of this Court dated November 29, 1978, the urgent manifestation and motion of Leonisa
S. Rodriguez, the surviving spouse of Mario Rodriguez (brother of the ward) that the ward Soledad
Rodriguez died on September 15, 1970 and private respondent Francisco Rodriguez, Jr. died on October
24, 1973; and that the heirs of the ward be substituted as the private respondents in this case was noted.
To begin with, the principal issue al hand is whether or not respondent Judge of the Court of First
Instance of Quezon, Branch IV-Calauag has the authority or power to take further action in Special
Proceedings No. 2641 after the Presiding Judge of the Court of First Instance of Quezon, Branch I-
Lucena City asserted its jurisdiction by issuing two (2) orders dated July 29, 1968 and respondent Judge
correspondingly ordered the return of the case to Branch I in an order dated February 20,1969.

Petitioners maintain that respondent Judge of Branch IV, Court of First Instance of Quezon has no power or authority
to retain jurisdiction over Special Proceedings No. 2641 which, at its inception, originally pertained to Branch I-
Lucena City, Court of First Instance of Quezon. To support such chum, petitioners contend that the Second Order
dated July 29, 1968 requiring private respondent for an inventory and accounting of the ward's property confirms that
the Presiding Judge of Branch I has resumed its jurisdiction over said case, more so, when respondent Judge
ordered on February 20, 1969 the transmittal of the records of the case to the Deputy Clerk of Court, Court of First
Instance, Branch I-Lucena City.

Private respondent, on the other hand, justifies the retention of jurisdiction by respondent Judge over Special
Proceedings No. 2641 contending, among others, that the two (2) orders dated July 29, 1968 issued by then Judge
A. Melencio-Herrera are not sufficient bases for claiming that Branch IV has been deprived of its, jurisdiction because
jurisdiction is vested upon the court not upon any particular branch or judge thereof and the issuance of such orders
constitute undue interference with the processes and proceedings already undertaken by respondent Judge; that
petitioners are guilty of estoppel when they failed to raise the issue of jurisdiction from the very beginning and when
they voluntarily appeared before respondent Judge, filed their answer and other pleadings, and moved for
postponements of the scheduled dates of hearing.

We sustain petitioners' stand. Of course, jurisdiction is vested in the court not in any particular branch or judge, and
as a corollary rule, the various branches of the Court of First Instance of a judicial district are a coordinate and co-
equal courts 19 one branch stands on the same level as the other. Undue interference by one on the
proceedings and processes of another is prohibited by law. In the language of this Court, the various
branches of the Court of First Instance of a province or city, having as they have the same or equal
authority and exercising as they do concurrent and coordinate jurisdiction should not, cannot, and are not
permitted to interfere with their respective cases, much less with their orders or judgments. 20 A contrary
rule would obviously lead to confusion and might seriously hinder the administration of justice. A judge is
competent to act so long as the case remains before him, but after it passed from his branch to the other,
the case could be acted upon by the judge of the latter branch. 21 Otherwise, an anomalous situation
would occur at the detriment of the party litigants who are likewise confused where to appear and plead
their cause.

In the case before Us, there is no dispute that both Branch I and Branch IV of the Court of First Instance of Quezon,
have jurisdiction over the subject matter, a guardianship proceedings under Section 1, Rule 92 of the Rules of Court
and Section 44(a) of the Judiciary Act of 1948. While it is recognized that when a case is filed in one branch,
jurisdiction over the case does not attach to the branch or judge alone, to the exclusion of the other branches, 22 We
are of the view however, considering the unusual circumstances and incidents attendant in this case the
situation in the case at bar is different. Here, it must be noted that the Presiding Judge of Branch I
asserted and resumed its prior jurisdiction by issuing two (2) orders, one of which requires private
respondent to render an inventory and accounting of the property of the ward. On the other hand,
respondent Judge of Branch IV, in confirmation of such resumption of jurisdiction, ordered the return of
the records of Special Proceedings No. 2641 to Branch I-Lucena City, Court of First Instance of Quezon,
but, instead of regularly relinquishing jurisdiction over the case, respondent Judge continued to take
further action on the case in total disregard of the two (2) orders of the Presiding Judge of Branch I.
Should one branch be permitted to equally assert, assume or retain jurisdiction over a case or
controversy over which another coordinate or co-equal branch has already resumed its jurisdiction, We
would then sanction undue interference by one branch over another. With that, the judicial stability of the
decrees or orders of the courts would be a meaningless precept in a well-ordered administration of
justice.

There is no question that the prior proceedings had in Branch IV by respondent Judge were valid and regular as they
were admittedly authorized by the Secretary of Justice. It must be emphasized however, that Branch IV lost its
jurisdiction over Special Proceedings No. 2641 when respondent Judge ordered the return of the records to Branch I
after having been informed in a motion for reconsideration filed on January 30, 1969 of the existence of the two (2)
orders issued by the Presiding Judge of Branch 1. From that point of time, all subsequent proceedings and processes
in connection with or related to Special Proceedings No. 2641 undertaken by the respondent Judge became irregular.
It amounted to an undue interference with the processes and proceedings of Branch I.

Nevertheless, from the standpoint of the pertinent law on the matter, it may be observed that the detail of respondent
Judge of Branch IV stationed permanently in Calauag, Quezon to Branch I in Lucena City, Quezon authoritatively
rests on the provision of Section 51 of the Judiciary Act of 1948 which reads:

Section 51. Detail of judge to another district or province.-Whenever a judge stationed in. any
province or branch of a court in a province shag certify to the Secretary of Justice that the condition
of the docket in his court is such as to require the assistance of an additional judge, or when there
is any vacancy in any court or branch of a court in a province, the Secretary of Justice may, in the
interest of justice, with the approval of the Supreme Court and for a period of not more than three
months for each time, assign any judge of any court or province, whose docket permits his
temporary absence from said court, to hold sessions in the court needing such assistance or
whether such vacancy exists. No judge so detailed shall take cognizance of any case when any of
the parties thereto objects and the objection is sustained by the Supreme Court. (emphasis
supplied)

xxx xxx xxx

Apparently, when the circumstances contemplated under Section 51 of the Judiciary Act of 1948 occur, the detailed
Judge holds sessions in the court needing such assistance or where such vacancy exists as if he is the presiding
judge of that particular branch where the clogged docket or vacancy exists. The detailed Judge does not hold
sessions therein as if he is the Presiding Judge of the branch where he is originally or permanently designated. In the
case before Us, respondent Judge Kayanan was duly authorized to help unclog the docket of Branch I stationed in
Lucena City, Quezon which at that time was rendered vacant due to the death of Judge Vicente Arguelles. When
respondent Judge Kayanan took cognizance of the cases left by Judge Arguelles, pending the designation of a
replacement, he merely sits as a judge of Branch I, Court of First Instance of Quezon Province. In the event of
designation of a new Presiding Judge of Branch 1, accepted practice and procedure of speedy administration of
justice requires that the detailed judge turns over the cases he took cognizance of to the new Presiding Judge.
Justification for the continued retention of jurisdiction over those cases in the case at bar appears to be not
convincing.

We find no plausible indication how estoppel could operate against petitioners. It is true that petitioners filed their
answer to the urgent petition of private respondent and appeared before respondent Judge of Branch IV without
questioning the latter's authority to hear the case. The answer to the urgent petition of private respondent dated May
13, 1968 was filed by petitioners on June 5, 1968 or almost two (2) months before Judge Melencio-Herrera of Branch
I issued the two (2) orders dated July 29, 1968 asserting jurisdiction over the case. The appearances of petitioners
and counsel in the sala of respondent Judge during the intervening period from July 29, 1968 were apparently due to
the fact that petitioners came to know only of the two orders of Branch I when they examined the records of the case
prompted by the manifestation of the counsel of private respondent, in the course of the proceedings in Branch IV, to
submit for an accounting in connection with the administration of the properties of the ward Soledad Rodriguez.
Petitioners manifested such information to respondent Judge in a petition for reconsideration of the order of January
8, 1968 authorizing the presentation of evidence ex parte. The silence or inaction of petitioners was therefore due to
their lack of knowledge of respondent Judge's lack of authority to retain or take further action on the case. Such lack
of authority was confirmed when respondent Judge, acting on the petition for reconsideration dated January 30,
1969, issued on February 20, 1969 an order authorizing the return of the records of the case to Branch I. In claiming
that the records referred to by the order concern the first portion of the records of Special Proceedings No. 2641 and
not the second portion containing the urgent petition filed by private respondent on May 13, 1968, private respondent
would then encourage split jurisdiction of courts which is abhorred by the law.

Assuming that Branch IV-Calauag, Court of First Instance of Quezon has jurisdiction over Special Proceedings No.
2641 notwithstanding the attendant circumstances adverted to earlier, We now dwell on another issue, which
standing alone would decisively resolve the assigned errors raised in this petition, that is, whether or not Branch IV
exercising limited and special, jurisdiction as a guardianship court under Section 6 Rule 96 of the Rules of Court has
jurisdiction to order the delivery or reconveyance of the three parcels of land in question to the ward, represented
herein by private respondent.

In two leading cases, Castillo vs. Bustamante, 64 Phil. 839 and Cui vs. Piccio et al, 91 Phil. 712, this Court laid the
rule on the issue raised before Us as interpreted in the light of Section 6 Rule 96 of the Rules of Court which reads:

Section 6. Proceedings when person suspected of embezzling or concealing property of the

ward.— Upon complaint of the guardian or ward, or of any person having actual or prospective
interest in the estate of the ward as creditor, heir, or otherwise, that anyone is suspected of having
embezzled, concealed, or conveyed away any money, goods, or interest, or a written instrument,
belonging to the ward or his estate, the court may cite the suspected person to appear for
examination touching such money, goods, interests, or instrument, and make such orders as will
secure the estate against such embezzlement, concealment or conveyance.

In Cui vs. Piccio et al., supra, this Court held that the jurisdiction of the court in guardianship proceedings, ordinarily,
is to cite persons suspected of having embezzled, concealed or conveyed the property belonging to the ward for the
purpose of obtaining information which may be used in an action later to be instituted by the guardian to protect the
right of the ward. Generally, the guardianship court exercising special and limited jurisdiction cannot actually order the
delivery of the property of the ward found to be embezzled, concealed or conveyed. In a categorical language of this
Court, only in extreme cases, where property clearly belongs to the ward or where his title thereto has been already
judicially decided, may the court direct its delivery to the guardian. 23 In effect, there can only be delivery or
return of the embezzled, concealed or conveyed property of the ward, where the right or title of said ward
is clear and undisputable. However, where title to any property said to be embezzled, concealed or
conveyed is in dispute, under the Cuicase, the determination of said title or right whether in favor of the
person said to have embezzled, concealed or conveyed the property must be determined in a separate
ordinary action and not in guardianship proceedings.

In the case at bar, We are not prepared to say, at this premature stage, whether or not, on the basis alone of the
pleadings of the parties in the trial court, the title or right of the ward Soledad Rodriguez over the three (3) parcels of
land in question is clear and undisputable. What is certain here is the fact that the sale of the properties in question
were duly approved by the respondent Judge in accordance with the provisions on selling and encumbering of the
property of the ward under Rule 97 of the Rules of Court. It must be noted that while the original urgent petition dated
May 13, 1968 prayed for the examination of petitioners herein regarding the alleged concealing, conveyancing and
embezzling of the questioned properties, the amended petition dated March 24, 1969 asked for reconveyance.

Moreover, it may be observed that private respondent contended that the sale of the first two lots was actually a loan
agreement with right of recovery while that of the third lot was subject to condition, hence, a fictitious or simulated
sale. On the other hand, according to petitioners, the sales were all absolute and protected by the Torrens System
since new transfer certificate of titles were issued in their name. Apparently, there is a cloud of doubt as to who has a
better right or title to the disputed properties. This, We believe, requires the determination of title or ownership of the
three parcels of land in dispute which is beyond the jurisdiction of the guardianship court and should be threshed out
in a separate ordinary action not a guardianship proceedings as held in Cui vs. Piccio supra.

The ruling in Castillo vs. Bustamante, 64 Phil. 839, relied upon by private respondent finds no application in the
instant case. As differentiated from the case at bar, in Castillo case, the right or title of the ward to the property in
dispute was clear and undisputable as the same was donated to her through compromise agreement approved by
the court which title had the authority of res judicata. As enunciated above, the right or title of the ward to the
properties in question is in dispute and as such should be determined in a separate ordinary action.

Furthermore, private respondent's claim that petitioners are barred by laches to raise the issue of jurisdiction is
without merit. In support of such claim, private respondent invoked the exception laid down in Tijam vs.
Sibonghanoy, 23 SCRA 29, to the rule that the lack of jurisdiction over the subject matter is fatal and may be raised at
any stage of the proceedings; that it is conferred only by law, and in the manner prescribed by law and an objection
on the lack of jurisdiction cannot be waived by the parties; and the infirmity cannot be cured by silence,
acquiescence, or even by express consent, or win of the parties. 24

The doctrine laid down in Tijam vs. Sibonghanoy, supra, and in the latter case of Rodriguez vs. Court of
Appeals, 29 SCRA 419 is not applicable in the case at bar. In Tijam case, the appellant had all the
opportunity to challenged the court's jurisdiction in the court a quo as well as in the Court of Appeals but
instead invoked its jurisdiction to obtain affirmative relief and submitted its case for final adjudication on
the merits. It was only after an adverse decision was rendered by the Court of Appeals and fifteen (15)
years later from the inception of the case that it finally chose to raise the question of j jurisdiction. I t is
clear that t the circumstances present in Tijam case are not present here. The petitioners in the instant
case challenged the authority of the trial court to take further cognizance of the case the moment they
become aware of Branch I assuming jurisdiction. The lack of jurisdiction was raised in a petition for
reconsideration of the order dated January 8, 1969, in a petition for reconsideration of the decision dated
April 15, 1969, in a second petition for reconsideration of the said decision, and alleged as an additional
ground in the petition for certiorari in the Court of Appeals. In any case, the operation of the principle of
estoppel on the question of jurisdiction seemingly depends upon whether the lower court actually had
jurisdiction. If it had no jurisdiction, but the case was tried and decided upon the theory that it had
jurisdiction, the parties are not barred, on appeal, from assailing such jurisdiction, for the same must exist
as a matter of law, and may not be conferred by consent of the parties or by estoppel. 25

As respondent trial court has no jurisdiction, We deem it unnecessary to pass upon the assigned errors
raised in the petition.

WHEREFORE, the Resolution of the Court of Appeals dated January 20, 1971 is hereby reversed and set aside, and
the decision rendered by respondent Judge of Branch IV-Calauag, Court of First Instance of Quezon dated April 15,
1969 and the orders issued thereafter are declared null and void, and the case is hereby remanded to Branch I-
Lucena City, Court of First Instance of Quezon for further proceedings.

SO ORDERED.

Barredo (Chairman), Concepcion, Jr., Abad Santos, Ericta and Escolin, JJ., concur.

Separate Opinions

AQUINO, J.:, dissenting:

I dissent. I vote for the affirmance of the decision of Judge Union C. Kayanan, Calauag Branch IV of the Court of First
Instance of Quezon Province dated April 15, 1969 in Special Proceeding No. 2641, entitled "Guardianship of the
Incompetent Soledad Rodriguez, Francisco Rodriguez, Jr., Guardian".

In that decision, Judge Kayanan ordered the spouses Luis Parco and Virginia Bautista to reconvey Lot No. 3437 (613
square meters), Lot No. 4389 (4,069 square meters) and Lot No. 1207 (63,598 square meters), all of the Sariaya,
Tayabas cadastre, to the guardian Francisco Rodriguez, Jr. upon the latter's payment to the said spouses of the sum
of twelve thousand pesos which he had borrowed from them (p. 65, Rollo).

Since the ward died intestate on September 15, 1970 and the guardian died on October 24, 1973, the reconveyance
should be made to the ward's heirs, namely, her sisters, Concepcion Rodriguez- Sapalo and Milagros Rodriguez-
Sanchez, and the children of the ward's deceased brother Mario Rodriguez (who died on March 8, 1972), namely,
Mario, Jr., Ramoncito, Liza and Rodulfo, all surnamed Rodriguez, represented by their guardian, their mother,
Leonisa S. Rodriguez (pp. 232-236, Rollo). Said heirs should pay the Parco spouses the sum of twelve thousand
pesos as a condition for the reconveyance.

It should be noted that the said guardianship proceedings was assigned originally to Branch I presided over by Judge
Ameurfina Melencio-Herrera. It was transferred to Branch IV presided over by Judge Kayanan who was detailed at
Lucena City to assist in decongesting the dockets of Branches I and II.

Judge Kayanan had authorized the sale of the three lots to the Parco spouses so that the proceeds of the sale could
be used for the maintenance of the ward. it turned out that the sales or transfers were made under certain conditions
which were violated by the Parco spouses.

A copy of Judge Kayanan's decision was received by petitioners' counsel on May 29, 1969. Sixteen days later or on
June 14, they filed a motion for reconsideration. The order denying that motion was received by the petitioners on
June 26. They filed their notice of appeal and appeal bond on June 28 (pp- 86 and 92, CA Rollo).

The last day for submitting the record on appeal was July 10. The petitioners asked for a ten-day extension within
which to file their record on appeal Instead of submitting it, they filed on July 10 a second motion for reconsideration
on the ground of lack of jurisdiction.

The lower court denied the motion for extension of time within which to file the record on appeal It also denied the
second motion for reconsideration in its order of July 18, 1969.

The petitioners did not file any record on appeal They filed on August 20, 1969 a petition for certiorari in the Court of
Appeals to set aside the said decision of April 15. The Court of Appeals in its extended resolution of September 27,
1969 dismissed the petition on the ground that the petitioners' remedy was an appeal which they had abandoned.
That resolution was reconsidered. The petition was given due course. The Court of Appeals in its decision of August
21, 1970 dismissed the petition. (Per Justice Eulogio Serrano with Alvendia and Nolasco JJ., concurring. Justice
Enriquez and Yatco dissented.)

Petitioners' motion for the reconsideration of that decision was denied in the resolution of January 20, 197 1. (Per
Justice Eulogio Serrano with Justices Nolasco and Soriano concurring. Justices Enriquez and Alvendia dissented.)

The petitioners appealed to this Court. The decision of the Court of Appeals should be affirmed because (1) the
petitioners inexcusably did not file a record on appeal (2) the question as to whether the guardianship court should
set aside the conveyances to the petitioners is not a jurisdictional question but merely a procedural matter which
could be waived (Lachenal vs. Salas, L-42257 June 14, 1976, 71 SCRA 262) and (3) the petitioners and the guardian
hoodwinked the guardianship court to the ward's prejudice.

It is the duty of the courts, in the exercise of the State's prerogative to protect persons under disability (parents
patriae) to set aside the transfers to the petitioners and thus avoid unjust enrichment at the expense of the ward and
do justice in this case. Technicalities should be eschewed.

As to the power of a branch of the Court of First Instance to act in a case transferred to it from another sala of the
same court, see Eleazar vs. Zandueta, 48 Phil. 193; Hizon Mercado vs. Ocampo, 72 Phil. 318; San Miguel Brewery,
Inc. vs. Court of Industrial Relations, 91 Phil. 178.

Separate Opinions

AQUINO, J.:, dissenting:

I dissent. I vote for the affirmance of the decision of Judge Union C. Kayanan, Calauag Branch IV of the Court of First
Instance of Quezon Province dated April 15, 1969 in Special Proceeding No. 2641, entitled "Guardianship of the
Incompetent Soledad Rodriguez, Francisco Rodriguez, Jr., Guardian".

In that decision, Judge Kayanan ordered the spouses Luis Parco and Virginia Bautista to reconvey Lot No. 3437 (613
square meters), Lot No. 4389 (4,069 square meters) and Lot No. 1207 (63,598 square meters), all of the Sariaya,
Tayabas cadastre, to the guardian Francisco Rodriguez, Jr. upon the latter's payment to the said spouses of the sum
of twelve thousand pesos which he had borrowed from them (p. 65, Rollo).

Since the ward died intestate on September 15, 1970 and the guardian died on October 24, 1973, the reconveyance
should be made to the ward's heirs, namely, her sisters, Concepcion Rodriguez- Sapalo and Milagros Rodriguez-
Sanchez, and the children of the ward's deceased brother Mario Rodriguez (who died on March 8, 1972), namely,
Mario, Jr., Ramoncito, Liza and Rodulfo, all surnamed Rodriguez, represented by their guardian, their mother,
Leonisa S. Rodriguez (pp. 232-236, Rollo). Said heirs should pay the Parco spouses the sum of twelve thousand
pesos as a condition for the reconveyance.

It should be noted that the said guardianship proceedings was assigned originally to Branch I presided over by Judge
Ameurfina Melencio-Herrera. It was transferred to Branch IV presided over by Judge Kayanan who was detailed at
Lucena City to assist in decongesting the dockets of Branches I and II.

Judge Kayanan had authorized the sale of the three lots to the Parco spouses so that the proceeds of the sale could
be used for the maintenance of the ward. it turned out that the sales or transfers were made under certain conditions
which were violated by the Parco spouses.

A copy of Judge Kayanan's decision was received by petitioners' counsel on May 29, 1969. Sixteen days later or on
June 14, they filed a motion for reconsideration. The order denying that motion was received by the petitioners on
June 26. They filed their notice of appeal and appeal bond on June 28 (pp- 86 and 92, CA Rollo).

The last day for submitting the record on appeal was July 10. The petitioners asked for a ten-day extension within
which to file their record on appeal Instead of submitting it, they filed on July 10 a second motion for reconsideration
on the ground of lack of jurisdiction.

The lower court denied the motion for extension of time within which to file the record on appeal It also denied the
second motion for reconsideration in its order of July 18, 1969.

The petitioners did not file any record on appeal They filed on August 20, 1969 a petition for certiorari in the Court of
Appeals to set aside the said decision of April 15. The Court of Appeals in its extended resolution of September 27,
1969 dismissed the petition on the ground that the petitioners' remedy was an appeal which they had abandoned.

That resolution was reconsidered. The petition was given due course. The Court of Appeals in its decision of August
21, 1970 dismissed the petition. (Per Justice Eulogio Serrano with Alvendia and Nolasco JJ., concurring. Justice
Enriquez and Yatco dissented.)

Petitioners' motion for the reconsideration of that decision was denied in the resolution of January 20, 197 1. (Per
Justice Eulogio Serrano with Justices Nolasco and Soriano concurring. Justices Enriquez and Alvendia dissented.)
The petitioners appealed to this Court. The decision of the Court of Appeals should be affirmed because (1) the
petitioners inexcusably did not file a record on appeal (2) the question as to whether the guardianship court should
set aside the conveyances to the petitioners is not a jurisdictional question but merely a procedural matter which
could be waived (Lachenal vs. Salas, L-42257 June 14, 1976, 71 SCRA 262) and (3) the petitioners and the guardian
hoodwinked the guardianship court to the ward's prejudice.

It is the duty of the courts, in the exercise of the State's prerogative to protect persons under disability (parents
patriae) to set aside the transfers to the petitioners and thus avoid unjust enrichment at the expense of the ward and
do justice in this case. Technicalities should be eschewed.

As to the power of a branch of the Court of First Instance to act in a case transferred to it from another sala of the
same court, see Eleazar vs. Zandueta, 48 Phil. 193; Hizon Mercado vs. Ocampo, 72 Phil. 318; San Miguel Brewery,
Inc. vs. Court of Industrial Relations, 91 Phil. 178.

Republic of the Philippines

SUPREME COURT
Manila

FIRST DIVISION

G.R. No. L-58319 June 29, 1982

PATRIA PACIENTE, petitioner,

vs.
HON. AUXENCIO C. DACUYCUY, Presiding Judge of the Juvenile and Domestic Relations Court of Leyte and
Southern Leyte; FELICIANA CALLE, court-appointed guardian of the minors Shirley and Leandro, both
surnamed HOMERES; the SOLICITOR GENERAL; THE CITY FISCAL OF TACLOBAN; and, THE REGISTER OF
DEEDS, Tacloban City, respondents.

RESOLUTION

GUTIERREZ, J.:

This is a petition for certiorari and prohibition challenging the validity of an April 24, 1981 order of the respondent
Juvenile and Domestic Relations Court of Leyte which required the petitioner and Conchita Dumdum to —

give and deposit with the clerk of this court the amount of TEN THOUSAND PESOS (PI0,000.00)
more as additional consideration of Lot No. 3085-G of the Tacloban Cadastre which the court
believes to be fair and reasonable price of the property. This amount should be deposited with the
clerk of this court on or before June 24, 1981; otherwise TCT No. T-13238 in the name of Patria
Paciente now subject of a mortgage in favor of the Consolidated Bank and Trust Corporation to
guarantee an obligation in the amount of P30,000.00, dated December 27, 1978, will be cancelled.

as well as the validity of its resolution dated August 21, 1981 which denied the motion for reconsideration of the
petitioner and Conchita Dumdum of the aforesaid order and directed the Register of Deeds of Tacloban City —

to cancel TCT No. 13238 of Patria Paciente and issue in lieu thereof a new transfer certificate of
title to the following present owners of Lot 3085- G of the Tacloban Cadastre: Patria Paciente, of
legal age, Filipino, married, residing in Tacloban City, 1/3; Shirley Homeres, 10 years old, residing
in Tacloban City, 1/3; and, Leandro Homeres, 10 years old, residing in Tacloban City, Philippines,
1/3, subject to the mortgage lien of the Consolidated Bank and Trust Corporation.

because of their failure to comply with the same aforestated order. The facts of the case are as follow:

In 1972, Leonardo Homeres died leaving his wife, Lilia Samson Homeres, and two minor children, Shirley and
Leandro, a parcel of land known as Lot No. 3085-G situated in Sagkahan, Tacloban City, covered by TCT No. 12138.
This lot which he had inherited from his deceased father, Felizardo Homeres, has an area of one thousand seven
hundred one (1,701) square meters.

On September 9, 19-76, Lilia S. Homeres, sold Lot No. 3085-G to Conchita Dumdum for P10,000.00.

On November 11, 1976, Lilia S. Homeres filed a petition for guardianship over the persons and estate of the minors.
The petition was granted on August 9, 1977. Lilia S. Homeres took her oath as guardian on September 13, 1977,

On September 21, 1977, Conchita Dumdum sold Lot No. 3085-G, which had been titled in her name under TCT No.
T-13121, to petitioner Patria Paciente for the amount of P15,000.00. Consequently, Patria Paciente was issued TCT
No. T-13238 by the Register of Deeds of Tacloban City.

On December 27, 1978, the petitioner mortgaged the lot to the Consolidated Bank and Trust Corporation for
P30,000.00.

On September 12, 1980, the Acting City Register of Deeds of Tacloban City, filed a manifestation informing
respondent court that Lot No. 3085-G which is the subject of the guardianship proceedings had been registered in the
name of the petitioner under TCT No. T-13238 and that it was mortgaged to the Consolidated Bank and Trust
Corporation to guarantee petitioner's loan of P30,000.00.

Upon being thus informed by the Register of Deeds, the respondent court issued an order on November 14, 1980,
directing the petitioner and the manager of the Consolidated Bank and Trust Corporation to appear before the court
on January 21, 1981 and show cause why TCT No. T-13238, covering a parcel of land co-owned by the minors,
Shirley and Leandro Homeres, should not be cancelled for having been alienated without authority from the court.

When January 21, 1981 came, the petitioner and the manager of Consolidated Bank and Trust Corporation did not
appear before the court. Instead, Conchita Dumdum appeared and explained to the respondent court that she sold
the lot which she acquired from Lilia S. Homeres to the petitioner without obtaining the approval of the court because
she was not aware of such requirement regarding the properties of the minors. On the same date, the respondent
court again issued an order requiring the petitioner and the manager of the Consolidated Bank and Trust Corporation
to explain why TCT No. T- 13238 should not be cancelled for their failure to first secure judicial authority before
disposing of the said property.

At the hearing on April 24, 1981, George Go, the petitioner's husband, apprised the court that the petitioner was an
innocent purchaser for value of the lot in question. Respondent court then issued the questioned order.

A motion for reconsideration filed by her and Conchita Dumdum having been denied, petitioner filed the present
petition.

The issue in this case is whether the respondent court acting as a guardianship court has jurisdiction to order the
Register of Deeds to cancel the transfer certificate of title of petitioner and to order the issuance of a new title to
include the minors as co-owners with the petitioner for her having failed to comply with the court's order directing her
to pay the minors the reasonable price of their property that their mother alienated without authority of a competent
court.

Relying on the cases of Cui, et al. vs. Piccio, et al. 91 Phil. 712, and Parco and Bautista vs. Court of Appeals, G.R.
No. L-33152, January 30, 1982, petitioner contends that respondent court in hearing a petition for guardianship is not
the proper situs for the cancellation of a Torrens Title. In the Cui case, this Court ruled:

... Out of the cases cited, the only one we find to have some relevancy is that of Castillo vs.
Bustamante, 64 Phil. 839. In this case, the court made a distinction between the provisions of
sections 709 and 593 of the Code of Civil Procedure which now correspond to section 6, Rule 88
and section 6 of Rule 97 of the Rules of Court. This Court in that case said in effect that while in
administration proceedings the court under section 709 may only question the person suspected of
having embezzled, concealed or conveyed away property belonging to the estate, section 593 of
the same Code of Civil Procedure authorizes the Judge or the court to issue such orders as maybe
necessary to secure the estate against concealment, embezzlement and conveyance, and this
distinction is now given emphasis by respondents' counsel. the way we interpret section 573 of the
Code of Civil Procedure as now embodied in Rule 97, section 6 of the Rules of Court in the light of
the ruling laid down in the case of Castillo vs. Bustamante, supra, is that the court may issue an
order directing the delivery or return of any property embezzled, concealed or conveyed which
belongs to a ward, where the right or title of said ward is clear and indisputable.

xxx xxx xxx

In conclusion, we hold that the respondent Judge had no jurisdiction to issue his order of
September 5, 1951, in the guardianship proceedings requiring the petitioners to deliver the rentals
collected by them to the guardian and authorizing the latter to collect rentals in the future, for the
reason that the jurisdiction of the court in guardianship proceedings, ordinarily, is to cite persons
suspected of having embezzled, concealed or conveyed property belonging to the ward for the
purpose of obtaining information which may be used in action later to be instituted by the guardian
to protect the right of the ward; and that only in extreme cases, where property clearly belongs to
the ward or where his title thereto has already been judicially decided, may the court direct its
delivery to the guardian.

and in the case of Parco and Bautista the ruling reads as follows:

In Cui vs. Piccio, et al., supra, this Court held that the jurisdiction of the court in guardianship
proceedings, ordinarily, is to cite persons suspected of having embezzled, concealed or conveyed
the property belonging to the ward for the purpose of obtaining information which may be used in
an action later to be instituted by the guardian to protect the right of the ward. Generally, the
guardianship court exercising special and limited jurisdiction cannot actually order the delivery of
the property of the ward found to be embezzled, concealed, or conveyed. In a categorical language
of this Court, only in extreme cases, where property clearly belongs to the ward or where his title
thereto has been already judicially decided, may the court direct its delivery to the guardian. In
effect, there can only be delivery or return of the embezzled, concealed or conveyed property of the
ward, where the right or title of said ward is clear and undisputable. However, where title to any
property said to be embezzled, concealed or conveyed is in dispute, under the Cui case, the
determination of said title or right whether in favor of the persons said to have embezzled,
concealed or conveyed the property must be determined in a separate ordinary action and not in a
guardianship proceedings.

Insofar as the acts of the guardianship court intended to effect the delivery or return of the property conveyed are
concerned, We find the orders of the respondent court valid. The petitioner's contentions in this regard are untenable.
Even the aforecited cases relied upon do not support her argument. While it is true that in these two cases We ruled
that where title to any property said to be embezzled, concealed or conveyed is in question, the determination of said
title or right whether in favor of the ward or in favor of the person said to have embezzled, concealed or conveyed the
property must be determined in a separate ordinary action and not in guardianship proceedings, We also emphasized
that if the right or title of the ward to the property is clear and indisputable the court may issue an order directing its
delivery or return.

In the present case the right or title of the two minors to the property is clear and indisputable. They inherited a part of
the land in question from their father. The sale of this land, where they are co-owners, by their mother without the
authority of the guardianship court is illegal (Yuson de Pua vs. San Agustin, 106 SCRA 7, 16).

In issuing the above questioned order and resolution, the respondent court did not exceed its jurisdiction but merely
exercised its duty to protect persons under disability.

The respondent court's order directing the deposit of an additional consideration of P10,000.00 is a different matter. It
was issued without a hearing to determine not only the valuation of the property but the time frame for fixing said
valuation which is not clear. It is, consequently, null and void.

It is true that when the petitioner and Conchita Dumdum failed to give the additional amount, the second order
directing the cancellation of the petitioner's title may be said to have superseded or cancelled the first order. The
second order directed the issuance of a new title over the land inherited by Leandro Homeres from his late father with
each heir getting title to one-third of the property. Considering, however, the petitioner's protestations of violations of
due process and the guardianship court's unusual procedures in dealing with the properties under guardianship, the
respondent court is directed to conduct regular hearings and take evidence on the reasonable price of Lot No. 3085-
G, if its alienation is found to be in the best interests of the wards and consistent with the rights of all parties involved.

WHEREFORE, the petition is dismissed. The guardianship court in Special Proceedings No. JP-0156 of the Juvenile
and Domestic Relations Court of Leyte is hereby ordered to conduct further hearings of the case as above indicated.

SO ORDERED,

Teehankee (Chairman), Makasiar, Plana, Vasquez and Relova, JJ., concur.

Melencio-Herrera, J., is on leave.

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. L-47867 November 13, 1942

CARMEN GARCHITORENA and JOAQUIN PEREZ, petitioners,

vs.
VICENTE SOTELO, as judicial guardian of the Gatchalian y Jarata minors, respondent.

Jose Ayala for petitioner Gabriel.

Monzon, Diaz and Sunico for petitioners Garchitorena and Perez.
Claro M. Recto for respondents.

OZAETA, J.:

The property involved in this litigation is the house and lot situate at 97 Sta. Potenciana Street, corner of Cabildo
Street, Manila. Originally it belonged to Asuncion Jarata, who mortgaged it to Perfecto Gabriel. The latter foreclosed
the mortgage and after buying the property at public auction transferred it to Carmen Garchitorena, who in turn
transferred it to Jesus Pellon in whose name the Torrens certificate of title now stands.

This action was commenced on June 3, 1932, by Vicente Sotelo, as judicial guardian of the eight minor children of
Asuncion Jarata, against Perfecto Gabriel and Carmen Garchitorena to annul the judgment obtained by Gabriel in the
foreclosure of his mortgage and the subsequent transfers of the mortgaged property on the ground that said
judgment had been obtained through fraud. Jesus Pellon was joined as party defendant after the property was
transferred to him by Carmen Garchitorena subsequent to the commencement of the action. On January 31, 1936,
the trial court rendered judgment in favor of the plaintiff, ordering that the new title in the name of Jesus Pellon be
canceled and replaced with a new one in the name of the minors. From that decision Gabriel and Garchitorena
appealed, but Pellon did not. On August 22, 1940, the Court of Appeals in banc, by a majority of nine justices (two
justices dissenting), affirmed the judgment of the trial court with modification as follows:

It is therefore our decision that the sales of the property described in the complaint by the sheriff to Perfecto
Gabriel, by Gabriel to Carmen Garchitorena, and by Garchitorena to Jesus Pellon should be and they are
hereby annulled; that the title to this property now standing in the name of Jesus Pellon should be cancelled
and a new certificate issued in the name of plaintiff's wards subject to the alleged mortgage in favor of the
Santa Clara Monastery; that the amount the plaintiff shall have paid on account of this mortgage shall be
deducted from the amounts due by the minors to Perfecto Gabriel or the Santa Clara Monastery, or both, it
being understood that the mortgage debts, P8,500, shall bear interest at the rate provided for in the
contracts of mortgage from the dates of last payments until full paid; and that Gabriel and Carmen
Garchitorena shall render an accounting of the income derived by them from the house between the date
the minors were ejected from it and the date it was placed under receivership.
 Whatever action Carmen Garchitorena may have against Perfecto Gabriel growing out of the annullment of
the sale by Gabriel to Garchitorena is hereby left open for determination in a separate suit.

With the modification above indicated, the judgment is affirmed.

Perfecto Gabriel and Carmen Garchitorena shall pay to plaintiff the costs of both instances.

From that decision Perfecto Gabriel and Carmen Garchitorena separately appealed to this Court by certiorari.

The facts may be briefly stated as follows:

On July 1, 1992, Asuncion Jarata mortgaged the property in question to Perfecto Gabriel to secure a loan of P6,000,
with interest at 12 per cent per annum. Less than two years and a half later, she died, leaving eight minor children by
her husband Celerino Gatchalian. Two days before her death she execute a will, prepared by Perfecto Gabriel,
whereby she devised the said property to her eight minor children and named Perfecto Gabriel as their guardian and
her husband Celerino Gatchalian as the executor of the will. On December 24, 1924, Perfecto Gabriel, as attorney for
Celerino Gatchalian, filed the will in the Court of First Instance of Manila for probate. On September 15, 1925, after
the will had been admitted to probate, Gabriel presented a project of partition in which Gatchalian waived his
usufructuary right over his wife's estate in favor of his children. The court thereupon entered an order declaring the
estate closed and relieving Gatchalian of all responsibility as executor. On September 23, 1925, Gabriel, upon his
own application, was appointed guardian of the persons and property of the minor children of Gatchalian. In his
application Gabriel acknowledged having received the only property of his wards consisting of the house and lot
above mentioned. But he did not inform the court that said property was mortgaged to him. For nearly six years
during which said mortgage subsisted, Gabriel acted as guardian and at the same time creditor of said minors; it was
only on March 23, 1931, the he relinquished the guardianship in favor of Gatchalian, whom the court appointed
guardian upon Gabriel's petition.

In the meantime the finances of the wards had deteriorated considerably. Gabriel's last accounts as guardian showed
a deficit of P3,730.10 as found by this Court in G. R. No. 42528. Aside from said deficit Gabriel as guardian had
executed a second mortgage on the property of his wards in favor of the Santa Clara Monastery, of which he was the
attorney in fact, to secure the payment of an additional loan of P2,500, with interest at 10 per cent per annum. That
amount was paid to Fernandez Hermanos on account of a larger sum misappropriated by Gatchalian.

After assuming the guardianship of the persons and property of his children, Celerino Gatchalian desired to raise
capital with which to engage in business and told Gabriel that one Navarro was willing to give him a loan of P12,000
on the house and lot in question. Gabriel suggested taking the house out of the court's custody as the most feasible
way to "make a transaction" on it. In order to do that Gabriel would sue Gatchalian, bid for the property, and resell it
to the latter. That scheme was agreed to by Gatchalian, and in pursuance thereof Gabriel, on October 13, 1931,
instituted an action of foreclosure of mortgage against Gatchalian as guardian of his minor children (civil case No.
40614 of the Court of First Instance of Manila), alleging that the defendant had failed to pay to him the principal of the
mortgage debt and the interest from August to October, 1931, amounting to P150. On the same date, October 13,
1931, Gatchalian filed an answer to the complaint of Gabriel, admitting each and every one of the allegations thereof.
On the following day, October 14, 1931, Gabriel, as attorney for the Santa Clara Monastery, filed a complaint in
intervention with a view to foreclosing its second mortgage of P2,500, alleging that the defendant had failed to pay
both the principal and the interest at the rate of P20.33 a month, the total interest due being P208. Together with that
complaint in intervention, Gatchalian's answer was filed, a pleading prepared either by Perfecto Gabriel himself or by
one of his assistants, in which Gatchalian admitted each and every one of the allegations thereof and prayed that
judgment be rendered accordingly. On October 16, 1931, judgment was rendered sentencing Celerino Gatchalian to
pay to Perfecto Gabriel P6,000, with interest thereon at 10 per cent per annum from August 1, 1931, and the Santa
Clara Monastery P2,500, with interest at 10 per cent per annum from November 1, 1931, until fully paid, plus an
additional amount of P208 as accumulated interest from January 1 to October 31, 1931.

On February 13, 1932, pursuant to said judgment, the sheriff sold the mortgaged property to Perfecto Gabriel as the
highest bidder for the sum of P9,600, in "complete satisfaction of the mortgage credit." On February 13, 1932,
pursuant to said judgment, the sheriff sold the mortgaged property to Perfecto Gabriel as the highest bidder for the
sum of P9,600, in "complete satisfaction of the mortgage credit." On February 17, before the sale was approved by
the court, Gabriel agreed to sell the property to Carmen Garchitorena, who then and there indorsed and delivered to
Gabriel a check for P1,000 issued by Co Leco and Company, on account of the purchase price. On the same date
Gabriel wrote to Gatchalian as follows:

MANILA, Feb. 1, 1932

Sr. CELERINO GATCHALIAN

CELERINO:

Te remito copia del recibo de P1,000 hecho por Dña. Carmen, de modo que se pretendes quedarte con la
finca puedes acudir a un abogado para que gestione lo conveniente a tus interes.

(Fdo.) PERFECTO GABRIEL

To quote from the decision of the Court of Appeals:

Gatchalian was taken aback and hurriedly went to see Gabriel but did not find him in his house. He found
only Ranoa, Gabriel's assistant, to whom he related his troubles. Ranoa said he knew nothing about the
case beyond that the motion to confirm the sale was to be heard the next day. Ranoa advised Gatchalian to
file a motion for postponement of Gabriel's motion to confirm the sale, and wrote a draft of such motion for
Gatchalian to sign. Gatchalian copied the draft at the Canal de Panama grocery store, signed the clean
 hearing of the petition for the confirmation of the sale was continued in accordance with Gatchalian's motion.
Then Gatchalian engaged Attorney Ernesto Zaragoza whose intervention was cut short by Gatchalian's
agreeing to the approval of the sale. According to Gatchalian, the reason why he withdraw his position was
because Gabriel renewed his promise to resell the property to him. He added that, relying on his promise, he
looked for a broker and found one Velilla who said he could get a loan of P11,000 on the house. Gatchalian
with Velilla and the prospective lender, a Chinese, went to Gabriel's law office and Ranoa drew a document
of sale in Gatchalian's favor. But after that document was finished Ranoa remarked that it would be improper
for Gatchalian to appear as the purchaser, he being the children's guardian in which observation Gabriel
concurred. The money lender upon this turn of affairs receded, whereupon Velilla said that he would bring
another `capitalist' within twenty-four hours and suggested that the sale be made in favor of the minor's
maternal grandmother. The next day Velilla and Gatchalian with another Chinese went to Gabriel's office but
found Carmen Garchitorena there already signing a mortgage deed. Gatchalian also testified that Jose
Machuca wanted to but the house for P18,000, of which P12,000 was to be paid down and the rest in sixty
days. Pedro Cantero, Machuca's representative, declared that he was told by Gabriel to come back after
three or four days but that before that time expired he was informed by Gatchalian that the house had been
sold. Velilla and Navarro gave evidence to corroborate Gatchalian's testimony in those particulars in
connection with which their names were mentioned.

On March 12, 1932, the sale was approved by the court. On March 16, Perfecto Gabriel executed a deed
conveying the property for the alleged sum of P10,367 to Carmen Garchitorena. Simultaneously Carmen
Garchitorena executed a deed mortgaging the same property to the Santa Clara Monastery to secure the
payment of a loan of P9,000 with interest at 8 per cent per annum, subject to the condition that the said
property shall not be sold nor encumbered without the previous authority in writing of the mortgage creditor.
It was at this stage that Vicente Sotelo complained of Gabriel to the judge handling the guardianship
proceedings, and was appointed guardian of the minors in substitution of Gatchalian so that this action might
be commenced. On October 11, 1932, more than four months after this action was commenced, Antonio V.
Rocha, Garchitorena's son-in-law, presented to Jesus Pellon for his signature two deeds, one of which
purported to be an absolute deed of conveyance of the questioned property by Carmen Garchitorena in
favor of Jesus Pellon for P12,000, subject to the mortgage in favor of the Santa Clara Monastery, and the
other a deed of sale by Pellon to the children of Carmen Garchitorena. Gabriel, as attorney in fact of the
Santa Clara Monastery, gave his conformity to the conveyance to Pellon but withheld his consent to the sale
by Pellon to Carmen Garchitorena's children until one year later. New certificates of title were successively
issued to Gabriel, Garchitorena, and Pellon, but the register of deeds refused to recognize the right of
Garchitorena's children to have a new certificate made in their name, and he was sustained by the Court of
First Instance on appeal.

The property in question was assessed for tax purposes at P14,829, and according to the receivers' report
filed on January 31, 1936, produced an income of P254 a month in rents.

The Court of Appeals found the parties in disagreement regarding the circumstances under which Gabriel
foreclosed the mortgage and Gatchalian confessed judgment and later gave his conformity to the sale of the
mortgaged property. But in this connection the court said: "The question is one of credibility and the trial
judge, weighing probabilities, gave credence to Gatchalian and other plaintiff's witnesses. Our independent
opinion is that these witnesses told the truth. Their story has the characteristic ring of verity and is the only
hypothesis compatible with the circumstances.

Upon the foregoing facts the Court of Appeals based its confirmatory judgment.

We cannot review and reverse those findings of fact. Consequently all the assignments of error discussed by the
petitioners in their respective briefs, endeavoring to establish a different factual foundation, must be deemed
overruled. We can only review the conclusions of law arrived at by the Court of Appeals, and shall proceed now to do
so.

First. Were the facts proven sufficient to establish collusion between Gabriel and Gatchalian in the foreclosure suit
instituted by the former against the latter? The Court of Appeals found as a fact that Gabriel and Gatchalian agreed to
take the property of the minors from the custody of the court by foreclosing the mortgage on it so that Gabriel could
buy the property at the sheriff's sale and later resell it to Gatchalian. Pursuant to that agreement Gatchalian entered a
confession of judgment to the complaints files by Gabriel in his own behalf and in that of his principal, the Santa Clara
Monastery; and it was in virtue of that confession of judgment that the court, unaware of the agreement behind it
between the former and the actual guardians, granted the prayers of the complaints of the two mortgagees, Perfecto
Gabriel and the Santa Clara Monastery.

It is insisted by petitioner Gabriel that Gatchalian had no defense anyway against the complaints of foreclosure of
mortgage and that his confession of judgment was not only proper but commendable in the interest of a prompt
administration of justice. But Gatchalian was not sued in his personal capacity; he was sued as guardian of the
property of his wards. And Gabriel, who sued him was his predecessor as guardian and was the one who executed
the Santa Clara mortgage on behalf of the minors. It had been his duty to preserve the estate of his wards. Moreover,
he was formerly the employer and legal counselor of Gatchalian. As the Court of Appeals said, "that relation has
exerted a predominating influence in Gatchalian's mind." In no relation, except perhaps that of parent and child or
husband and wife, are the elements of the confidence on one side and active good faith on the other more essential
than in the relation of guardian and ward. The Government itself is in a sense the supreme guardian whom the
individual guardian represents in its solicitude for the welfare of the wards. (25 Am. Jur., Guardian and Ward, sec.
205, p. 128.) If Gabriel wanted to collect his mortgage and the minors had no defense against its foreclosure, so that
a court action and a sheriff's sale would only entail unnecessary expense, honesty and fidelity to his trust required of
the guardian that he inform the court of the situation so that it could authorize the sale of the property to best
advantage and save something for the minors.

Under these circumstances, the agreement and the conduct of Gabriel and Gatchalian in connection with the
foreclosure proceeding cannot but be considered a collusion between them to induce the court into entering judgment
in favor of Gabriel without any trial and without giving the minors affected an opportunity to protect their interests.
Perfecto Gabriel's position in relation to the minors and the property in question is indefensible. He held a mortgage
on said property since July 1, 1992. Yet when he prepared the will of the mortgagor devising said property to the
minors, he allowed himself to be name guardian of their persons and property and, what is worse, he subsequently
applied to the court for his appointment as such guardian without informing the court that he held a mortgage on the
only property of said minors. As a lawyer of long experience, he knew or should have known that he could not serve
antagonistic interests, and that if the court had been apprised that he was creditor and mortgagee of the estate of
said minors, it would not have appointed him guardian. He not only failed to disclose to the court that he was
mortgagee but deliberately misinformed the court in the guardianship proceeding that the first mortgagee was not he
but the Santa Clara Monastery. Neither did he inform the court that he was the attorney-in-fact and the administrator
of the funds of that institution.

No man can serve two masters; for either he will hate the one, and love the other; or else he will hold to the
one, and despise the other." The truth of this Divine doctrine is exemplified in the guardianship of the
Gatchalian minors, wherein Perfecto Gabriel undertook to serve two masters; Perfecto Gabriel or the Santa
Clara Monastery as mortgagee and the said minors as mortgagors. Of course, the latter were "despised"
and had to institute a series of litigations lasting now over ten years to secure redress.

Second. Were the minors prejudiced by the foreclosure of the mortgage? It is contended by the petitioners that they
were not, because, after all, the mortgage obligation was due and payable and the price at which the sheriff sold the
mortgaged property to Gabriel was not unreasonably low. In this connection the petitioners vigorously assail the
finding of fact made by the Court of Appeals that Jose Machuca was anxious to buy the property for P18,000, while
Navarro and others were willing to give on it a loan more than sufficient to cover the obligation in favor of Gabriel and
the Santa Clara Monastery.

It is an undisputed fact, however, that Gabriel bought the property at P9,600 and immediately sold it to Garchitorena
for P10,367, thereby enriching himself at the expense of his former wards. Regardless of the Machuca offer to buy, or
the Navarro offer to loan on, the property in question, and assuming that the sale by Gabriel to Garchitorena was
genuine as contended by the petitioners, and not a mere scheme to frustrate the minors' recovery of said property as
contended by the respondent, Gabriel's attempt to profit, however little, at the expense of the minors cannot be
sanctioned by the Court. It was a breach of trust which the law condemns under any and all circumstances.

Third. The collusive conduct of the parties in the foreclosure suit constituted an extrinsic or collateral fraud by reason
of which the judgment rendered therein may be annulled in this separate action. (Anuran vs. Aquino and Ortiz, 38
Phil., 29.) Aside from the Anuran-Aquino case, innumerable authorities from other jurisdictions may be cited in
support of the annulment. But were there not any precedent to guide us, reason and justice would compel us to lay
down such doctrine for the first time.

Petitioners rely upon the decisions of this Court in G. R. No. 40658, Perfecto Gabriel vs. Vicente Sotelo and Hon.
Pedro Ma. Sison, promulgated December 13, 1933, and G. R. No. 42528, Vicente Sotelo vs. Perfecto Gabriel,
promulgated March 31. 1938, as a bar against the present action.

The first of said cases (G. R. No. 40658) was an outcrop of the foreclosure suit (civil case No. 40614 of the Court of
First Instance of Manila) that arose subsequent to the commencement of the present action, in the following manner:
On September 20, 1933, that is to say, more than a year after this action was commenced, the herein respondent
filed a motion in said civil case No. 40614 praying that the order approving the sale of the mortgaged property by the
sheriff to Gabriel be reconsidered and set aside. Upon that motion Judge Sison, on September 29, 1933, entered the
following order:

Apareciedo por los affidavits de los señores Celerino Gatchalian y el abogado Ernesto Zaragoza, y por las
alegaciones de la demanda enmendada unida a dicha mocion y marcada Exhibit A, que existe motivo de
accion contra los demandados en la cause civil No. 42092, y siendo como son bienes de menores los que
se discuten en ella, pr la presente se recosidera el Auto de este Juzgado de fecha 12 de marzo de 1932
dejandolo sin valor ni efecto legal, como se pide por el nuevo tutor Vicente Sotelo en su escrito de fecha 20
del actual. (Pages 157-158, brief for petitioner Perfecto Gabriel.)

Gabriel moved to reconsider said order, and that motion was resolved by the same judge as follows:

Constando en autos que el tutor Vicente Sotelo, de los menores llamados Celerino Gatchalian y otros ha
incoado una accion reividicatoria de la finca No. 97 de la Calle Santa Potenciana de la propriedad de los
menores cuyo objeto es anular la venta de la misma, NO HA LUGAR a proveer por ahora las mociones
presentadas por la representacion de Perfecto Gabriel, Carmen Garchitorena y su esposo Joaquin Perez de
fech 7 y 10 de octurbre, 1933, y se suspended toda la tranmitacion de este asunto hasta que se falle en
definitiva dicha accion reivindicatoria. Asi se ordena. (Pages 158-159, id.)

Thereupon Gabriel by certiorari sought from this Court the annulment of said orders, and this Court granted his
petition on the ground that eighteen months having elapsed after the approval of the sheriff's sale, the court lacked
jurisdiction to reopen the case.

The very fact that the order of Judge Sison had been entered without jurisdiction, for which reason it was annulled, is
sufficient to show that neither said order nor the judgment of this Court annulling it can be invoked as a basis for the
plea of res judicata. As a matter of fact the last order of Judge Sison merely held the matter in abeyance pending the
final result of this action. The holding of this Court that the foreclosure proceeding could not be reopened after the
lapse of the six months' period provided by section 113 of Act No. 190, does not imply that said proceeding cannot be
assailed and annulled in a separate action on the ground of extrinsic fraud practiced upon the court. The Anuran-
Aquino case above cited was instituted after a similar attempt under section 113 of the Code of Civil Procedure had
failed in the administration proceedings wherein the order assailed was entered; and this Court held that since the
application for relief under section 113 was denied for lack of jurisdiction, such denial could not be relied upon to
sustain the contention that the question of the validity and legality of the original order was res adjudicata.
The second case (G. R. No. 42528) was an incident in the guardianship proceeding that arose also subsequent to the
commencement of this action in the following manner: On October 4, 1933, that is to say, one year and four months
after the present action was commenced, the herein respondent questioned the accounts presented by the petitioner
Perfecto Gabriel as former guardian, and the court sustained him and ordered the ex-guardian to reimburse to the
minors the sum of P7,013.02. From that order Gabriel appealed to this Court, which found that the accounts of the
guardian, instead of showing a superavit of P7,013.02, showed a deficit of P3,730.12. In that accounting incident, the
present guardian claimed that the principal of the loan of P6,000 had been partly paid and reduced to P3,000. To
rebut that contention Gabriel invoked the confession of judgment made by Gatchalian in the foreclosure suit, but
Sotelo alleged that that confession of judgment was made pursuant to a collusion between Gabriel and Gatchalian.
This Court said that such collusion seemed to be untrue (parece inverosimil) and refused to consider it for the
purpose of indirectly attacking the validity of the judgment entered in the foreclosure suit. Thus this court said: "La
supuesta nulidad de dicha sentencia no puede ser discutida ni siquiera considerada a menos que se haya incoado
una accion directamente encaminada a tal fin." It is clear, therefore, that this Court did not and could not in said
incident pass upon the nullity of the judgment entered in the foreclosure proceeding. That being so, the validity of said
judgment is not res adjudicata. Indeed, how can the plea of res adjudicata prosper in the absence of identity both of
the subject matter and of the cause of action?

Petitioners vehemently invoke reasons of public policy which favor the stability of judicial decisions. Suffice it for us to
say that such reasons are mute in the presence of fraud, which the law abhors.

The annulment of the judgment entered in the foreclosure suit necessarily carries with it the annulment of the sale
made by the sheriff pursuant to said judgment as well as the annulment of the order of the court approving that sale.
The limbs cannot survive after the trunk has perished.

Fourth. It only remains for us to determine whether or not the sale by Gabriel to Gatchitorena was valid. The trial
court found that sale fictitious, and the Court of Appeals said that that conclusion was not without sufficient evidence
to support it. Nevertheless, the Court of Appeals did not base its judgment upon the finding that the sale was
simulated. It held that even assuming that the sale was genuine, Garchitorena was not a purchaser in good faith
because "she was fully aware of the history of the present case and of the house she bought"; that she could not
ignore Gatchalian's solicitude and eagerness to keep the said house for his children; but that when Gatchalian and
others met her in Gabriel's law office on march 16, 1932, and Gatchalian told her that he was coming back to talk to
her about the matter, she told Gatchalian not to come because, she said, she was leaving for Camarines that
afternoon.

On the other hand, petitioner Garchitorena maintains that she is an innocent purchaser for value and invokes the
Torrens system on the theory that she has a Torrens title to the property in question. It will be remembered, however,
that she agreed to buy the property from Perfecto Gabriel before the latter had secured a Torrens title thereto in his
name. In other words, she did not rely upon Gabriel's Torrens title but merely upon the sheriff's certificate of sale,
which had not yet even been approved by the court at the time she agreed to buy the property from Gabriel.

As a matter of act, Garchitorena has completely divested herself of the title to the property in question, which now
stands in the name of Jesus Pellon, who did not appeal and thereby acquiesced in the judgment ordering the
cancellation of said title. Garchitorena's conduct in simulating the transfer of the property in question to Jesus Pellon
after the commencement of this action was inconsistent with honesty and good faith.

After considering all the facts and circumstances, we are not inclined to disturb the conclusion of the Court of Appeals
that Garchitorena was not an innocent purchaser. We note further that Garchitorena has not filed any cross-complaint
against her co-defendant Gabriel to recover what she claims to have paid to him together with damages — which she
could properly have done. If such omission was voluntary, it would tend to strengthen the theory that she had acted
merely as Gabriel's dummy. But let us give her the benefit of the doubt, as the Court of Appeals apparently did my
making the prudent reservation in the appealed decision to the effect that whatever action Carmen Garchitorena may
have against Perfecto Gabriel to her is left open for determination in a separate suit.

The judgment appealed from is affirmed, with costs against the petitioners. So ordered.

Yulo, C.J., Moran, Bocobo and Generoso, JJ., concur.

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. L-10050 January 6, 1915

LUIS R. YANGCO, petitioner,

vs.
THE DIVISION OF THE COURT OF FIRST INSTANCE OF THE CITY OF MANILA PRESIDED OVER BY THE
HONORABLE A. S. CROSSFIELD AS JUDGE, and TEODORO R. YANGCO, respondents.

Gibbs, McDonough and Blanco for petitioner.

Haussermann, Cohn and Fisher for respondents.

MORELAND, J.:

This is a proceeding to obtain a writ of certiorari directed to the Court of First Instance of the city of Manila requiring it
to send to this court the record made in a proceeding to declare the petitioner for the writ in this case a spendthrift
and to appoint a guardian for his property and for a complete review of said record to the end that the judgment
decreeing the petitioner a spendthrift and appointing a guardian of his property be declared null and void and of no
effect upon the ground that the proceedings were had and the decree entered without notice to the petitioner, the
alleged spendthrift, and were and are, therefore, void, the court having acted without jurisdiction in the premises.

The question presented for determination arise out of the issue framed by the answer to the order to show cause
issued on the petition in this case. The record of the court below having been sent to this court and the petition and
answer presenting an issue of law, and the parties having been fully heard thereon and having finally submitted the
case, we proceed to its determination.

The material facts are undisputed. The petitioner herein was a young man, 21 years of age, the owner of property
valued at nearly P1,000,000, and temporarily traveling abroad at the time the proceedings were had which terminated
in the declaration that he was a spendthrift and the appointment of a guardian of his property.

The proceedings were begun by the respondent Teodoro R. Yangco in the Court of First Instance of the city of
Manila, he himself making the petition as a relative and friend. It is conceded that no notice was given to the
petitioner herein personally, the only notice of any kind in the proceedings being that set forth in the answer of
respondent to the other to show cause issued upon the filing of the petition in this proceeding. The answer says in
that regard:

That upon the filing of said petition hereinabove referred to (meaning the petition to have the petitioner
declared a spendthrift and a guardian appointed for his property), the said Court of First Instance, in the
continued absence from the jurisdiction of said court of the said plaintiff, and acting under and in pursuance
of the judicial discretion upon said court conferred by law, required that notice of said guardianship
proceedings be given unto Julia Stanton de Regidor and Cristobal Regidor, the mother-in- law and brother-
in-law, respectively, of the plaintiff, the latter being the acting manager of the business of the plaintiff.

It is undisputed that, in the ordinary acceptation of the term, the petitioner for the writ is a resident of the Philippine
Islands and that he was temporarily absent therefrom traveling abroad at the time the proceedings complained of
were instituted and the decree obtained.

We are of the opinion that the decree declaring the petitioner a spendthrift and appointing a guardian for his property
was and is void for lack of jurisdiction. In proceedings of this case notice as required by the statute is jurisdictional
and the lack of it deprives the court of power to make a valid decree in the premises. Section 559 of the Code of Civil
Procedure requires personal notice to the alleged spendthrift when he is a resident of the Philippine Islands. It
provides:

When it is represented to a Court of First Instance, or a judge thereof, by petition verified by oath of any
relative or friend, that any person who is an inhabitant or resident of the province, is insane or is a
spendthrift, incompetent to manage his estate, praying that a guardian may be appointed for such person,
such court or judge must cause a notice to be given to the supposed insane or incompetent person of the
time and place of hearing the petition, not less than five days before the time so appointed; and such
person, if able to attend, must be produced on the hearing.

The statute does not authorized a substitute service except in cases where, as provided in section 572, the person for
whose property the guardian is sought to the appointed is a resident of a foreign country. Personal notice being
essential under the statute, the notice to the mother-in-law and brother-in-law of the alleged spendthrift was of no
legal value. (Matter of Lambert, 134 Cal., 626; North vs. Joslin, 59 Mich., 624; Ex parte Dozier, 4 Baxt., Tenn., 81;
Coolidge vs. Allen, 82 Me., 23; Hathaway vs. Clark, 5 Pick., Mass., 490; Chase vs. Hathaway, 14 Mass., 222;
Shumway vs. Shumway, 2 Vt., 339.)

To declare a person of full age to be imcompetent to manage his affairs and thereby deprive him of the possession of
and right to hold and manage his property is a serious thing. It takes from him one of the greatest privileges of life in
contravention of those fundamental rights which all men naturally have to possess, control, manage and enjoy their
own property. It is for this reason that the courts generally hold that the statute permitting a declaration incompetency
and the appointment of guardians for the property of incompetents must be strictly followed, and any material
departure therefrom, especially with respect to notice, results in a loss of jurisdiction. (See cases already cited.) So
careful was the Legislature to see to it that no one should be declared an incompetent and deprived of his property
without full opportunity to be heard that, in framing section 559 of the Code of Civil Procedure, it not only
required personal notice to the alleged incompetent but also provided that he shall be present in court during the
proceedings, if he be able to attend; and the ability to attend does not, in our judgment, relate to absence but to
physical condition.

It has been urged that section 572 of the Code of Civil Procedure permits the practice adopted in this case. We do
not think so. That section provides;: "When a person liable to be put under guardianship, according to the provisions
of this chapter, resides without the Philippine Islands, and has estate therein, any friend of such person, or anyone
interested in his estate, in expectancy or otherwise, may apply to the judge of Court of First Instance in any province
in which there is any estate of such absent person, for the appointment of a guardian, and if, after notice given to all
interested, in such manner as such court orders, by publication or otherwise, and a full hearing and examination, it
appears proper, a guardian for such absent person may be appointed; and every guardian appointed under this
section shall have the same powers, and perform the same duties with respect to the estate of the ward found within
the Philippine Islands, and with respect to the person of the ward, if he shall come to reside therein, as are prescribed
with respect to any other guardians appointed under this chapter."

The word "resides" as used in that section has, as a matter of language, a meaning perfectly clear and definite and
requires no interpretation or construction to give it full significance. That the petitioner in this case did not reside
"without the Philippine Islands" is unchallenged by the facts in this case. He resided here and his absence was for
travel and not for residence.
While it is contended and courts have perhaps held that the word "resident" may mean this, that or the other thing,
dependent upon the circumstances of the case, we know of no decision which holds that, under the admitted facts of
this case, the word "resident" could be juggled into meaning that the petitioner was a nonresident within the purview
of section 572. There is no need for interpretation or construction of the word in the case before us. Its meaning is so
clear that interpretation and construction are unnecessary. Our simple duty is to leave untouched the meaning with
which the English language has endowed the word; and that is the meaning which the ordinary reader would accord
to it on reading a sentence in which it was found. Where language is plain, subtle refinements which tinge words so
as to give them the color of a particular judicial theory are not only unnecessary but decidedly harmful. That which
has caused so much confusion in the law, which has made it so difficult for the public to understand and know what
the law is with respect to a given matter, is in considerable measure the unwarranted interference by judicial tribunals
with English language as found in statutes and contracts, cutting out words here and inserting them there, making
them fit personal ideas of what the legislature ought to have done or what parties should have agreed upon, giving
them meanings which they do not ordinarily have, cutting, trimming, fitting, changing and coloring until lawyers
themselves are unable to advise their clients as to the meaning of a given statute or contract until it had been
submitted to some court for its "interpretation and construction." As we said in the case of Lizarraga
Hermanos vs. Yap Tico (24 Phil. Rep., 504, 513):

Construction and interpretation come only after it has been demonstrated that application is impossible or
inadequate without them. They are the very last functions which a court should exercise. The majority of the
laws need no interpretation or construction. They require only application, and if there were more application
and less construction, there would be more stability in the law, and more people would know what the law is.

See also Lambert vs. Fox (26 Phil. Rep., 588).

These considerations are especially forcible when it appears that subtle refinement and metaphysical interpretation
and construction are invoked for the purpose of declaring a resident of the country an incompetent and of depriving
him of the control and management of his estate without notice or opportunity to be heard. If construction and
interpretation are ever to be left unused, it should be in such a case.

But even if it be conceded that section 572 is applicable, still the notice required by the section has not been given.
That section requires notice "to all interested, in such manner as such court orders, by publication or otherwise." No
notice whatever was given to the alleged incompetent, either by publication or otherwise, and he certainly is one of
the parties "interested."

Another matter of grave importance in this case should be noted. Although no personal notice was given to the
alleged spendthrift, the only notice given at all being, as we have seen, solely to his mother-in-law and brother-in-law,
the court, nevertheless, made a decree declaring him a spendthrift and appointing a guardian of his property without
taking any evidence and with absolutely nothing before it to justify such a decree except the petition and the answer
thereto of Julia Stanton de Regidor and Cristobal Regidor. The latter consists of the following statement:

That we have read the petition signed by Teodoro R. Yangco in which he prays the appointment of a
guardian for the said Luis R. Yangco; that according to our information and belief the facts stated in said
petition are true, and we do not oppose the petition made by the said Teodoro R. Yangco.

Wherefore, we pray the court to decide the matter presented by the petition as justice requires.

No evidence of any kind was taken in the case so far as appears of record, and the court, in making the order of
prodigality and decreeing the appointment of a guardian, had no more knowledge of the alleged spendthrift's
incompetency to manage his affairs that he had before the petition was presented.

It would be a strange condition of affairs indeed if a citizen and resident of the Philippine Islands could be declared to
be an incompetent and his property taken from his management and control by the naked allegation of one stranger
admitted by the naked concession of another stranger. If Teodoro R. Yangco can allege the incompetency of Luis R.
Yangco and that incompetency be admitted by Julia Stanton de Regidor and Cristobal Regidor, and such allegation
and admission be sufficient of themselves to declare the person concerned incompetent and deprive him of his right
to manage and control his property, then surely property in the Philippine Islands is held by very precarious tenure.

Section 560 provides that the court shall appoint a guardian of his person and estate only "after a full hearing and
examination upon such petition" and where "it appears to the court or Judge" from such full hearing and examination
"that the person in question is incapable of taking care of himself and managing his property."

It is not a full hearing and examination to have A allege that B is an incompetent and to have C come in and admit the
allegation. The court, before it can make the decree as provided for in the law, must have before it competent
evidence demonstrating the facts necessary to sustain the decree, and that evidence must be clear and definite. The
law is not satisfied unless the court has before it facts which will justify the decree. In proper cases, of course, the
admissions made by way of answer or otherwise by the party alleged to be a spendthrift may be taken into
consideration by the court in the determination of the question involved and, under certain circumstances, will
doubtless be sufficient to sustain a decree of incompetency; but even such admissions should be received with
caution, for in cases of this character the foundation of the petition is, in a way, the incompetency of the person
against whom the petition is directed and the court should accept his admissions with considerable hesitation. If there
is doubt the court should, in spite of his admissions, proceed with the hearing of the case and require the production
of evidence substantiate the allegation of incompetency. Except by his own consent, it is legally impossible to declare
a and incompetent and deprive him of his property without clear and positive evidence upon which the declaration
and the deprivation are based.

We should not be understood as holding, even in this class of cases, that a decision of a court which has not
sufficient evidence to sustain it is void. A judgment with any evidence to sustain it is valid judgment and not subject to
attack as void. It may be appealed from and, if founded on insufficient evidence, reversed, but it is not void. Our
remarks relative to the lack of evidence to sustain the decree in this case are founded upon the fact that there is a
lack of any evidence whatsoever to sustain the decree; and we have said in the case of Edwards vs. McCoy (22 Phil.
Rep., 598), "a verdict or decision with absolutely nothing to support it is a nullity, at least when directly attacked."

It is the judgment of the court that the proceeding to declare that the petitioner for the writ is an incompetent and all
orders, judgments, and decrees made and entered in said proceedings are null and void, as having been done, had,
made and entered by the Court of First Instance without jurisdiction, and the same are hereby so declared.

Arellano, C.J., Torres and Araullo, JJ., concur.

Republic of the Philippines

SUPREME COURT
Manila

SECOND DIVISION

G.R. No. L-57438 January 3, 1984

FELICIANO FRANCISCO, petitioner,

vs.
HON. COURT OF APPEALS and PELAGIO FRANCISCO, respondents.

Nicomedes M. Jajardo for petitioner.

Crescini & Associates Law Office for private respondent.

GUERRERO, J.:

This petition for review on certiorari seeks the annulment of the decision and resolution of the defunct Court of
Appeals, now Intermediate Appellate Court, dated April 27, 1981. and June 26, 1981. respectively, dismissing the
petition for certiorari filed by petitioner Feliciano Francisco docketed as CA-G.R. No. 12172 entitled "Feliciano
Francisco versus Judge Jesus R. De Vega and Pelagio Francisco". In the said petition for certiorari, petitioner
Feliciano Francisco challenged the validity of the Order of the Court of First Instance of Bulacan, Fifth Judicial District,
Branch II, now Regional Trial Court, granting execution pending appeal of its decision by relieving petitioner Feliciano
Francisco as guardian of incompetent Estefania San Pedro and appointing respondent herein, Pelagio Francisco, in
his instead.

The antecedent facts as recited in the appealed decision of the Court of Appeals showed that:

Petitioner is the duly appointed guardian of the incompetent Estefania San Pedro in Special
Proceedings No. 532 of the Court of First Instance of Bulacan presided over by respondent Judge.
On August 30, 1974 respondent Pelagio Francisco, claiming to be a first cousin of Estefania San
Pedro, together with two others, said to be nieces of the incompetent, petitioned the court for the
removal of petitioner and for the appointment in his stead of respondent Pelagio Francisco. Among
other grounds, the petition was based on the failure of the guardian to submit an inventory of the
estate of his ward and to render an accounting.

It would seem that petitioner subsequently rendered an accounting but failed to submit an
inventory, for which reason the court on March 20, 1975 gave petitioner ten (10) days within which
to do so, otherwise he would be removed from guardianship Petitioner thereafter submitted an
inventory to which respondent Pelagio Francisco filed an objection on the ground that petitioner
actually received P14,000.00 for the sale of a residential land and not P12,000.00 only as stated in
the deed of sale and reported by him in his inventory. The respondent Judge found the claim to be
true, and, in his order of April 17, 1980 relieved the petitioner as guardian.

On motion of petitioner, however, the respondent Judge reconsidered his finding, relying on the
deed of sale as the best evidence of the price paid for the sale of the land. in his order dated
September 12, 1980, respondent judge acknowledged that his finding was "rather harsh and
somewhat unfair to the said guardian." Nevertheless, respondent Judge ordered the retirement of
petitioner on the ground of old age. The order states in part as follows:

"... considering the rather advanced age of the present guardian, this Court is
inclined and so decrees, that he should nevertheless be, as he is hereby, retired
to take effect upon the appointment by this court and the assumption of office of
his replacement, who shall be taken from the recommendees of the parties
herein. For this purpose, the present guardian is hereby given twenty (20) days
from receipt of a copy of this order within which to submit his proposal for a
replacement for himself and to comment on petitioner's recommendee and the
latter a like period within which to comment on the present guardian's proposed
substitute, after which the matter will be deemed submitted for resolution and
final action by the court.

SO ORDERED."
 Petitioner filed a motion for reconsideration, contending that he was only 72 years of age and still fit
to continue with the management of the estate of his ward as he had done with zeal for the past
twelve years. In an order dated November 13, 1980 the court denied his motion. Accordingly, on
December 17, 1980, petiti/ner filed a notice of appeal 'from the order issued by the court on
November 13, 1980' and paid the appeal bond. On February 2, 1981 he filed the record on
appeal. 1

Meanwhile, on January 27, 1981, the court, on motion of private respondent, required petitioner to submit within three
days his nomination for guardian of Estefania San Pedro as required in its order of September 12, 1980. In issuing the
order, the court stated that 'an indefinite discontinuance in office would defeat the intent and purpose of the said order
of September 12, 1980 relieving the present guardian.

Petitioner's motion for reconsideration was denied. Hence, this petition. (referring to CA-G.R. No.
SP-1217)"

On December 5, 1980, before the appeal was perfected, Pelagio Francisco filed an "Omnibus Motion" with the court
a quo with the prayer (1) to restrain guardian from exercising office; (2) order guardian to surrender to court all
properties of the ward; and (3) appoint new guardian . 2

Petitioner, on December 9, 1980 filed his opposition to the omnibus motion claiming that the same was
premature. The trial court, however, disregarded the opposition and required petitioner on January 27, 1981 to
3

submit within three (3) days his nomination for guardian of Estefania San Pedro as required in its order of September
12, 1980, the court holding that "an indefinite continuance in office would defeat the intent and purpose of the said
order of September 12, 1980, relieving the present guardian." 4

Petitioner moved for reconsideration of the said order, but the trial court overruled the same on March 4, 1981.
5

Subsequently, on March 11, 1981, the court a quo appointed respondent Pelagio Francisco as the new guardian of
6

the person and property of the incompetent Estefania San Pedro. 7

On March 13, 1981, petitioner filed with the defunct Court of Appeals a petition for certiorari challenging the validity of
the order of the trial court granting the execution pending appeal of its decision and appointing respondent Pelagio
Francisco as the new guardian despite the fact that respondent is five (5) years older than petitioner, docketed as
CA-G.R. No. 12172.

The Court of Appeals dismissed the petition on April 23, 1981, the pertinent portion of its decision reading as follows:

The Rules of Court authorizes executions pending appeal "upon good reasons to be stated in a
special order." (Rule 39, Sec. 2). In the case at bar, the retirement of petitioner was ordered on the
ground of old age. When this ground is considered in relation to the delay of the petitioner in the
making of an accounting and the submission of an inventory, the order amounts to a finding that
petitioner, considering his "rather advanced age," was no longer capable of managing the estate of
his ward. Rule 97, Sec. 2). Given this finding, it is clear that petitioner's continuance in office would
not be in the best interest of the ward.

It is of course true that the order of removal is not yet final. Considering the time -it normally takes
for appeals to be finally determined as well as the purpose of the order under appeal, which would
be frustrated if it is not immediately executed, we cannot say that respondent acted with grave and
irreparable damage and that the order of September 12, 1980 is not yet final, petitioner has not
demonstrated that in ordering execution pending appeal, the respondent Judge committed a grave
abuse of discretion.

Indeed, the granting of execution pending appeal ties within the sound discretion of a court.
Appellate courts win not interfere to discretion, unless it modify control or inquire into the exercise
of this be shown that there has been an abuse of that discretion. (2 Moran, Comments on the Rules
of Court, 260 [1979].

WHEREFORE, the petition for certiorari is DISMISSED, without pronouncement as to costs.

SO ORDERED. 8

Petitioner subsequently filed another motion for reconsideration advancing the following arguments: that to grant
execution pending appeal would render petitioner's appeal moot and academic that "advanced age" was not one of
the, grounds raised by private respondent in the court below; that the court a quo abuse its discretion in appointing
respondent as guardian despite the fact that private respondent is five (5) years older than petitioner. 9

The respondent appellate court, in its resolution dated June 26, 1981, denied petitioner's motion for reconsideration,
the court finding it unnecessary to repeat the discussion of the arguments which it had already considered and only
entertained the argument regarding the competency of the respondent as the new guardian. On this point,
respondent Court ruled:

The order of March 11, 1981 appointing respondent Francisco as guardian was never assailed in
the petition in this case. As already stated, this case concerns the validity only of the orders of
January 27, 1981 and March 4, 1981 which required petitioner to recommend his own replacement,
otherwise the court would appoint a new guardian. It does not appear that petitioner objected to the
appointment of respondent Francisco on the ground now invoked, namely, that Francisco is in fact
older than petitioner. Nor does it appear that petitioner filed a motion for reconsideration of the
order of March 11, 1981, calling attention to the fact that respondent Francisco is older than
petitioner, In short, the point now raised does not appear to have been urged in the lower court so
 that the latter could have rectified the error, if it was error at all, For this reason, it is not proper
ground for certiorari before this Court, much less for a motion for reconsideration.

WHEREFORE, the motion for reconsideration is DENIED for lack of merit.

SO ORDERED. 10

In the petition at bar, petitioner contends that (a) The Honorable Court of Appeals has committed grave abuse of discretion in holding that the
removal of petitioner as guardian of the ward Estefania San Pedro on the ground of old age is a good ground for the execution of the
decision pending appeal; and (b) The Honorable Court of Appeals committed grave misapprehension and misinterpretation of facts when it
declared that petitioner did not question the appointment of private respondent as guardian in his stead on the ground that the latter is older
than the former by five (5) years.

A guardianship is a trust relation of the most sacred character, in which one person, called a "guardian" acts for
another called the "ward" whom the law regards as incapable of managing his own affairs. 11 A guardianship is designed to
further the ward's well-being, not that of the guardian, It is intended to preserve the ward's property, as wen as to render any assistance that
the ward may personally require. It has been stated that while custody involves immediate care and control, guardianship indicates not only
those responsibilities, but those of one in loco parentis as well. 12

Having in mind that guardianship proceeding is instituted for the benefit and welfare of the ward, the selection of a guardian must, therefore,
suit this very purpose. Thus, in determining the selection of a guardian, the court may consider the financial situation, the physical condition,
the sound judgment, prudence and trustworthiness, the morals, character and conduct, and the present and past history of a prospective
appointee, as wen as the probability of his, being able to exercise the powers and duties of guardian for the full period during which
guardianship will be necessary. 13

A guardian is or becomes incompetent to serve the trust if he is so disqualified by mental incapacity, conviction of
crime, moral delinquency or physical disability as to be prevented from properly discharging the duties of his
office. 14 A guardian, once appointed may be removed in case he becomes insane or otherwise incapable of discharging his trust or
unsuitable therefor, or has wasted or mismanaged the estate, or failed for thirty (30) days after it is due to render an account or make a
return.15

We agree with the trial court and the appellate court that there is need for petitioner Feliciano Francisco to be retired from the guardianship
over the person and property of incompetent Estefania San Pedro. The conclusion reached by the trial court about the "rather advanced age"
of petitioner at 72 years old (petitioner is now 76 years old) finding him unfit to continue the trust cannot be disturbed. As correctly pointed out
by the appellate court, this finds direct support in the delay of the accounting and inventory made by petitioner. To sustain petitioner as
guardian would, therefore, be detrimental to the ward. While age alone is not a control criterion in determining a person's fitness or
qualification to be appointed or be retained as guardian, it may be a factor for consideration. 16

Considering the difficult and complicated responsibilities and duties of a guardian, We sustain the immediate
retirement of petitioner Feliciano Francisco as guardian, affirming thereby the rulings of both the trial court and the
appellate court.

With respect to the issue of execution pending appeal in appointing respondent Pelagio Francisco as guardian to
succeed petitioner while the latter's appeal was still pending, We hold and rule that respondent appellate court
correctly sustained the propriety of said execution pending appeal. Upon urgent and compelling reasons, execution
pending appeal is a matter of sound discretion on the part of the trial court, 17 and the appellate court will not interfere, control
or inquire into the exercise of this discretion, unless there has been an abuse thereof, 18 which We find none herein.

Inasmuch as the primary objective for the institution of guardianship is for the protection of the ward, there is more
than sufficient reason for the immediate execution of the lower court's judgment for the replacement of the first
guardian. We agree with the reason given by the appellate court in sustaining execution pending appeal that "an
indefinite continuance in office would defeat the intent and purpose of the order of September 12, 1980, relieving the
present guardian (Feliciano Francisco)."

As to the issue concerning the appointment of respondent Pelagio Francisco as the new guardian, We likewise agree
with the respondent appellate court in denying in its resolution of June 26, 1981 for lack of merit the motion for
reconsideration filed by petitioner questioning the appointment of private respondent Pelagio Francisco. We also find
no abuse of discretion committed by the appellate court.

The rule is well-established that appellate courts may not entertain issues brought before it for the first time on
appeal. (Jose Matienzo vs. Martin Servidad, 107 SCRA 276; Garcian vs. Court of Appeals, 102 SCRA 597; Director
of Lands vs. Dano 96 SCRA 160).

WHEREFORE, IN VIEW OF THE FOREGOING, the assailed decision and resolution of the respondent court dated
April 27, 1981 and June 26, 1981, respectively, are hereby AFFIRMED. Costs against petitioner.

SO ORDERED.

Makasiar (Chairman), Concepcion, Jr. and De Castro, JJ., concur.

Separate Opinions

ABAD SANTOS, J., concurring:

I concur and I would have simply denied the petition for lack of merit without an extended decision.

Aquino, J., concur. The removal of a guardian, like the removal of an administrator, may be immediately executory
(Borromeo Bros. Estate, Inc. vs. CA, 105 Phil. 466).

Escolin J., concurs in the result.

Separate Opinions

ABAD SANTOS, J., concurring:

I concur and I would have simply denied the petition for lack of merit without an extended decision.

Aquino, J., concur. The removal of a guardian, like the removal of an administrator, may be immediately executory
(Borromeo Bros. Estate, Inc. vs. CA, 105 Phil. 466).

Escolin J., concurs in the result.

EN BANC
[G. R. No. 4898. March 19, 1909.]
SALVADOR GUERRERO, guardian of the minors Maria Manuela and Maria del Carmen Sanchez
Muñoz, Plaintiff-Appellee, vs. LEOPOLDO TERAN, Defendant-Appellant.

DECISION
JOHNSON, J.:
On the 18th day of March, 1908, the Plaintiff commenced an action against the Defendant to recover
the sum of P4,129. 56 and costs. This amount was claimed by the Plaintiff from the Defendant upon the
theory that the Defendant had been the administrator of the estate of Antonio Sanchez Munoz from the
1st day of September, 1901, until the 22d day of October, 1906. The Plaintiff made a part of his
complaint the following items of indebtedness: chanroble s virtualawlibrary

Difference, account of the property “Bonga” P10. 55

Difference, account of the property “Basag” 218. 75
Difference, small accounts “Bonga” and “Basag” 8. 80
Difference, account estate of A. Sanchez 150. 00
Difference, account heirs of J. M. Ceballos 224. 81
Difference, account hemp of “La Trinidad” 82. 87
Difference, account workmen at “La Trinidad” 80. 70
Difference, account lates of Ligao 2. 00
Small accounts of “Bonga” and “Basag” 3,676. 84
Cost of 1 lamp and 1 barometer 33. 50
Workmen at “La Trinidad” 5,709. 90
Excess of salaries paid account general expenses at “La Trinidad” 670. 00
Account of cockpit 34. 15
Account “late Caualog” 220. 10
Account Jesus Teran 235. 92
Account Antonio Moreda 1,029. 83
————
Total 12,388. 72
In answer to the said complaint, the Defendant admitted certain allegations and denied others.
The Defendant admitted that he owed the Plaintiff P188. 39 but claimed that the Plaintiff owed him the
sum of P482. 14, and that the Plaintiff, therefore, still owed to the Defendant the difference between
P188. 39 and P482. 14, or the sum of P293. 75, for which latter amount the Defendant prayed for
judgment, with interest and costs against the Plaintiff.
After hearing the evidence adduced during the trial of the cause, the lower court found from the
evidence that the Defendant, as administrator of the estate of Antonio Sanchez Muñoz, or that part of
the said estate belonging to the Plaintiff, owed the Plaintiff the sum of P3,447. 46, with interest at 6 per
cent until the same amount should be fully paid. From this decision of the lower court
the Defendant appealed and made the following assignments of error: chanrobles virtualawlibrary

“1. The court erred in holding that the Defendant, from September 17, 1901, to October 6,
1906, managed and administered the estate of Sanchez Muñoz as a judicial administrator or
executor.
“2. The court erred in holding that the Defendant was responsible to the Plaintiffs for the
loans made to different persons for different accounts, and for credits against the persons
mentioned in the complaint.
“3. The court erred in declaring in the judgment that the difference in the weight of the
scales was illegal.
“4. And the court erred in sentencing the Defendant to pay the costs specified in the
judgment. ”
With reference to the first above assignment of error, from the record to this court the following facts
appear:chanrobles virtualawlibrary

First. That the Defendant Leopoldo Teran was, on the 17th day of September, 1901, appointed as
administrator of said estate. The record also discloses that the Defendant entered into a bond in the
sum of 10,000 dollars, gold, for the faithful performance of his duties as such representative of the
estate of Antonio Sanchez Muñoz.
Second. The record further discloses that upon the 18th day of March, 1902, the Court of First Instance
of the Province of Albay appointed Maria Munoz y Gomez as guardian for the said Maria Manuela and
Maria del Carmen Sanchez Munoz, and that the said Maria Munoz y Gomez gave the required bond for
the faithful performance of her duties as such guardian.
Third. While there are some indications in the record that the Defendant continued to act as the
administrator of said estate after the appointment of the said Maria Munoz y Gomez, up to and
including the 6th day of October, 1906, yet the fact exists and must be accepted as true that the said
Maria Munoz Gomez was the actual representative of the said Maria Manuela and Maria del Carmen
Sanchez Munoz in the administration of their interests in the estate of the said Antonio Sanchez Munoz,
from and after the 18th day of March, 1902, until the 6th day of October, 1906, and therefore the said
Maria Munoz y Gomez, as such guardian and administratrix of the estate of the said minors, must be
held responsible for the property belonging to said minors during the period while she (Maria Munoz y
Gomez) was the actual guardian of said minors.
Fourth. On the 6th day of October, 1906, the Court of First Instance of the Province of Albay, for the
reason that the said Maria Munoz y Gomez was not a resident of the Philippine Islands at the time of her
appointment (the 18th day of March, 1902) removed her as such guardian and appointed as guardian of
said minors Felix Samson, and required from said Samson, as provisional guardian, a bond in the sum of
P2,000. On the 18th day of October, 1906, the said Samson duly executed the bond as required.
From the order of the judge annulling the appointment of the said Maria Munoz y Gomez her lawyers
appealed to the Supreme Court, which appeal was subsequently withdrawn. The order therefore
revoking the appointment of the said Maria Munoz y Gomez became final. The mere fact, however, that
she had been removed as said guardian did not relieve her, nor her bondsmen from liability to the
minors during the time that she was duly acting as said guardian. It must be clear, therefore, that the
said Maria Munoz y Gomez is responsible to said minors for the administration of their interests in the
estate of the said Antonio Sanchez Munoz from the time of her acceptance of said appointment on the
18th day of March, 1902, up to the time of her removal on the 6th day of October, 1906. If during this
time she allowed other persons to handle the property of her wards and if any mismanagement or loss
occurred thereby, the responsibility must fall upon her. Unquestionably, she may have an action against
the persons to whom she entrusted the direct management of said estate for any loss which they may
have negligently and corruptly occasioned her. Therefore, if any loss occurred to the Plaintiff between
the 18th day of March, 1902, and the 6th day of October, 1906, they have a right of action only against
the said Maria Munoz Gomez as their legal guardian and under the law the administratrix of the
property of their estate.
In the claim presented by the Plaintiff against the Defendant no dates are given showing the time of the
particular loss or losses occasioned by the Defendant. As was said above, the Defendant was liable for
losses only during the time that he was acting as the legal representative of the said minors in the
management of their estate, from the 17th day of September, 1901, up to the time that he was
superseded by the aid Maria Munoz y Gomez, on the 18th day of March, 1902. There is no proof
showing that any of the losses constituting the amount which the Plaintiff claims occurred within this
period. However, the Defendant acknowledged that of the amount claimed by the Plaintiff, he owes to
them the sum of P188. 39.
There is no claim of any loss or that the estate has not been properly managed since the appointment of
the said Felix Samson on the 6th day of October, 1906.
From a consideration of all of the evidence brought to this court, we reach the following conclusions: chanrobles virtualawlibrary

First. That the Defendant, Leopoldo Teran, was the duly appointed and recognized representative of the
minors Maria Manuela and Maria del Carmen Sanchez Munoz in the administration of their interests in
the estate of the said Antonio Sanchez Munoz from the 17th day of September, 1901, until the 18th day
of March, 1902.
Second. That the said Doña Munoz y Gomez was the duly appointed representative of the said minors in
the administration of their interests in the estate of the said Antonio Sanchez Munoz from the 18th day
of March, 1902, until the 6th day of October, 1906.
Third. That the said Leopoldo Teran was responsible to the Plaintiff (the said minors) for the fruits and
profits resulting from their interests in the estate of the said Antonio Sanchez Munoz from the said 17th
day of September, 1901, to the 18th day of March, 1902.
Fourth. That the said Doña Maria Munoz y Gomez was responsible to the Plaintiff (the said minors) for
the fruits and profits resulting from the management of the estate of the said Don Antonio Sanchez
Munoz from the 18th day of March, 1902, until the 6th day of October, 1906.
The record not disclosing that any of the amounts claimed by the Plaintiff were due as a result of the
management of the aid estate during the time while the said Defendant was administering their
interests therein, except the sum of P188. 39, admitted to be due by the Defendant, we are of the
opinion, and so hold, that the only amount which the Plaintiff is entitled to recover in this action is the
said amount of P188. 39.
Doña Maria Munoz y Gomez was, as above indicated, removed upon the theory that her appointment
was void because she did not reside in the Philippine Islands. There is nothing in the law which requires
the courts to appoint residents only as administrators or guardians. However, notwithstanding the fact
that there are no statutory requirements upon this question, the courts, charged with the
responsibilities of protecting the estates of deceased persons, wards of the estate, etc., will find much
difficulty in complying with this duty by appointing administrators and guardians who are not personally
subject to their jurisdiction. Notwithstanding that there is no statutory requirement, the courts should
not consent to the appointment of persons as administrators and guardians who are not personally
subject to the jurisdiction of our courts here.
We deem it unnecessary to discuss the other assignments of error for the reason that there is no
evidence in the record indicating any liability on the part of the Defendant other than his admission
above indicated.
For the reasons above stated, the judgment of the lower court is hereby reversed, without any special
finding as to costs.
Arellano, C.J., Torres and Mapa, JJ., concur.
Willard, J., concurs in the result.

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. L-16962 February 27, 1962

TRUSTEESHIP OF THE MINORS BENIGNO, ANGELA and ANTONIO, all surnamed PEREZ Y TUASON,
ANTONIO M. PEREZ, judicial-guardian-appellant,
vs.
J. ANTONIO ARANETA, trustee-appellee.

Alfonso L. Felix, Jr. for judicial-guardian-appellant.

Araneta and Araneta for trustee-appellee.
CONCEPCION, J.:

Appeal from an order denying a motion.

Sometime in 1948, Angela S. Tuason died leaving a will, paragraph 4 of which reads:

Instituyo como mis unicos herederos a mis mencionados tres hijos, a rason de una novena parte del caudal
hereditario que dejare para cada uno de ellos. Lego a mi hijo Antonio otra porcion equivalente a dos
novenas partes del caudal hereditario. Lego asimismo a mis nietos que fueren de mi hija Nieves, otra
porcion equivalente a dos novenas partes del caudal hereditario. Y finalmente lego a mis nietos que fueren
hijos de mi hija Angela otra porcion equivalente de dos novenas partes del caudal hereditario. Dichos tres
legados, sin embargo, estan sujetos a la manda que se menciona en el parrafo siguiente. Los dos legados,
a favor de mis mencionados nietos seran administrados por mi albacea, J. Antonio Araneta (y en defecto de
este, su hermano, Salvador Araneta), con amplios poderes de vender los mismos, y con suproducto adquirir
otros bienes, y con derecho a cobrar por su administracion, honorarios razonables. Los poderos de dicho
administrador seran los de un trustee con los poderes mas amplios permitidos por la ley. Deberasin
embargo, rendir trimestralmente, cuenta de su administracion a los legatarious que fueren mayores de
edad. Y asimismo, debera hacerles entrega de la participacion que a cada legatario corresponda en las
rentas netas de la administracion. La administracion sobre un grupo cesara cuando todos misnietos de
dicho grupo llegare a su mayoria de edad, y una mayoria de los mismos acordaren la terminacion de la
administracion. Por nietos, debe entederse no solamente a los nietos varones sino tambien a los nietos
mujeres.

In conformity with this provision of said will, the present trusteeship proceedings was instituted and certain properties
of the estate of the deceased, valued P900,00 were turned over in 1950 to J. Antonio Araneta, as trustee for the
benefit of Benigno, Angela and Antonio, all surnamed Perez y Tuason, the grandchildren of the decedent referred to
in her aforementioned will. Portions of said properties constituting the trust were sold in 1956, 1957 and 1958 at
prices exceedingly by P13,418.42, P4,023.52 and P81,386.94, respectively — aggregating P98,828.88 — the original
appraised value thereof. On September 28, 1959, the judicial guardian and father of said minors filed a motion in the
trusteeship proceedings alleging that said sum of P98,828.88 represents profits or income of the trusteeship to which
said minors are entitled, pursuant to the above quoted provision of the will, and praying that the trustee be
accordingly instructed to deliver said sum to the movant. The trustee objected to the motion, which, after due hearing,
was denied by an order dated March 10, 1960, from which said guardian has appealed.

The appeal hinges on whether or not the aforesaid sum of P98,828.88 is a profit or income which should be turned
over to the guardian of said minors according to the provisions of the will quoted above. Appellant maintains that it is,
because said sum was included as profit in the statements of profits and losses attached to the corresponding
income tax returns. This pretense is untenable.

To begin with, the issue as to whether or not the minors are entitled to the delivery of said sum of P98,828.88 is a
matter dependent exclusively upon the conditions upon which the trust had been established, as provided in the
above quoted paragraph of the will of the decedent, which in turn depends upon the latter's intent, as set forth in said
paragraph. Upon the other hand, the question whether the sum in question is a profit or not within the purview of our
internal revenue law depends upon the provisions of the latter, regardless of the will of the decedent. 1äwphï1.ñët

Secondly, the proceeds of the sale of portions of the real estate held in trust, merely take the place of the property
sold. What is more, the provision of the will of the decedent explicitly authorizing the trustee to sell the property held
in trust and to acquire, with the proceeds of the sale, other property ("con amplios poderos de vender los mismos, y
con su producto adquirir otros bienes,") leaves no room for doubt about the intent of the testatrix to keep, as part of
the trust, said proceeds of the sale, and not to turn the same over to the beneficiary as net rentals ("rentas netas").

Thirdly, under the principles of general law on trust, insofar as not in conflict with the Civil Code, the Code of
Commerce, the Rules of Court and Special laws, are now part of our laws (Article 1442, Civil Code of the
Philippines). Pursuant to the general law on trust, "a provision in the instrument to the effect that the beneficiary shall
be entitled to the 'income and profits of' of the trust estate is not ordinarily sufficient to indicate an intention that he
should be entitled to receive gains arising from the sale of trust property ..." ( In re Account of Houston's Trustees,
165 Atl. 132; Lauman v. Foster, 50 A.L.R. 531; Guthrie's Trustee v. Akers, 157 Ky. 649; Estate of Gartenlaule, 198
Cal. 204, 244 Pac. 348, 48 A.L.R. [M.S. 793]). Indeed:.

The corpus of the estate, no matter what changes of form it undergoes, should be regarded as the same
property. That the trust property is originally money, later becomes bonds, and still later real estate, ought
not to affect the status of the property as the capital fund. (In re Graham's Estate, 198 Pa. 216, 219, 47 A.
1108; See Bogert on Trusts, 2d Ed., p. 436.)

Hence, it is well settled that profits realized in the sale of trust properties are part of the capital held in trust to which
the beneficiaries are not entitled as income. (First Nat. Bank of Carlisle v. Lee, 23 Ky. L. Rep. 1897; Coleman vs.
Grimes, 33 Ky. L. Rep. 455; Bains v. Globe Bank & Trust Co., 136 Ky. 332; Smith v. Hooper, 95 Md. 16; Chase v.
Union National Bank, 275 Mass. 503; First National Bank of Canton vs. Mulholland, 13 A.L.R. 1000 [1920] [land];
Stewart v. Phelps, 75 N. & Supp. 526 Rathbun v. Colton, 15 Pick. 471; Gibson v. Cooke, 1 Met. 75; See Scott on
Trusts Vol. 2 p. 1259.) In the language of the Restatement of the Law:.

Subject to the allocation of receipts from unproductive or wasting property, and except as stated in
Comment c, money or other property received by the trustee as the proceeds of a sale or exchange of the
principal of trust property is principal. Similarly, where trust property is taken on eminent domain, the
proceeds received by the trustee are principal. If trust property is destroyed by fire or other casualty, the
proceeds of insurance thereon received by the trustee are principal. .... "Where it is provided by the terms of
the trust that the 'income and profits' of the trust estate shall be paid to the life beneficiary, it is a question of
interpretation whether the life beneficiary is to receive more than he would receive if it were provided that the
 'income' should be paid to him. Ordinarily the inference is that he is not to receive more, and if trust property
is sold at a profit, the profit is principal. (Restatement of the Law, Trusts, Vol. I, pp. 682 and 691.)

WHEREFORE, the order appealed from is hereby affirmed, with costs against appellant, Antonio M. Perez. It is so
ordered.

Bengzon, C.J., Padilla, Bautista Angelo, Labrador, Reyes, J.B.L., Barrera, Paredes, Dizon and De Leon, JJ., concur.

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. 46390 September 30, 1939

Testate estate of Petrona Francisco, deceased. CASIMIRO TIANGCO and MARIA TIANGCO, fiduciaries-
appellants,
vs.
PROCESO FRANCISCO, petitioner-appellee.

Ortega and Ortega for appellant.

Clemente E. Felix for appellee.

LAUREL, J.:

Petrona Francisco provided in her last will that the income derived from the one-half portion of her fishpond in the
barrio of Gasak, Navotas, Rizal, shall be devoted to the celebration of the "Flores de Mayo" in Malabon, Rizal, and for
other religious activities mentioned in the will. Upon probate of the will the Court of First Instance of Rizal appointed
Casimiro Tiangco as trustee. Shortly afterwards, on March 16, 1922, Maria Tiangco was also appointed co-trustee to
act with Casimiro Tiangco in supervising the affairs of the trust. The records of the case disclose that from the
beginning the submission of annual reports to the court was very irregular. When the accounts for the year 1935 were
submitted, Proceso Francisco, the herein oppositor-appellee, filed an opposition. Meanwhile, the court appointed the
clerk of court as commissioner to make a detailed examination of the accounts already submitted, and declared its
order of January 30, 1937, approving the said accounts over the objection of Proceso Francisco, of no legal force and
effect. The trustees entered an opposition to this decree. Upon the other hand, the oppositor-appellee, on March 22,
1937, requested for the temporary substitution of the trustees. The report for the year 1936 having been filed on April
13, 1937, an order for the joint hearing of the two annual accounts was issued. Again, Proceso Francisco made
several objections to the accounts for the year 1936 with reference to certain items. In the meantime, the clerk of
court submitted his report. On April 26, 1938, the court issued the following order requiring the resignation of the
trustees within ten days, and appointed Father L.R. Arcaira as temporary trustee:

It appearing from the evidence submitted by the commissioner, regarding the account of the trustees, that
the said trustees have not faithfully discharged their duties and that their continuance in office would cause
further prejudice to the estate under trusteeship, they are hereby given ten days within which to submit their
resignation. It is understood that action on the resignation will be taken by the court upon the filing and
settlement of their account to be submitted by the trustees pursuant to the order of this court dated April 20,
1938. In the meantime, the parish priest of Malabon, Father L.A. Arcaira is hereby appointed temporarily
trustee to take immediate possession of the property under trust and manage the same until regular trustee
is duly appointed. So ordered.

Pasig, Rizal, Philippines, April 26, 1938.

SIXTO DE LA COSTA
Judge

Appellants assign various errors, the principal bearing on the power of the lower court to require the resignation of the
trustees and the legal sufficiency of the above-questioned order for this purpose.

The will of the deceased, Petrona Francisco, created a continuing trust, but no particular persons were named as
beneficiaries. The appellants themselves did not have anything to do with the trust until their appointment by the
lower court, and they were so commissioned not because of any beneficial interest they had in the estate but t
because their selection was approved by the lower court in the belief that they would faithfully perform their
obligations. The same court found later that they "have not faithfully discharged their duties and that their continuance
in office would cause further prejudice to the estate under trusteeship," and we cannot, on appeal, override the action
of the lower court by reversing its finding, and indirectly sanction the violation of an unquestioned and legally existing
trust.

It is also contended that the order appealed from does not contain a finding of facts, as required by section 133 of the
Code of Civil Procedure, and for this reason, the order is ineffectual. We find that the order read in conjunction with
the report of the clerk of court as commissioner, exhibits a finding upon all the evidence presented during the trial,
and is sufficient compliance with the requirements of the law. (Aringo vs. Arena, 14 Phil., 263, 266.)

The appellants likewise contend that the trial court committed grave abuse of discretion in ordering the resignation of
the trustees-appellants. The power to appoint a trustee is discretionary with the court before whom application is
made, and this court will decline to interfere except in case of clear abuse. Thereafter, upon proper showing that the
interests of justice would be adequately served with the removal of the incumbent trustees, it is likewise within its
discretion to do so (section 587, Code of Civil Procedure), and this court will refuse to interfere in the absence of a
showing of grave abuse or whimsical and capricious exercise of that discretion.

The order appealed from is confirmed, with costs against the appellants. So ordered.

Avanceña, C.J., Villa-Real, Imperial, Diaz, Concepcion, and Moran, JJ., concur.