participate, directly or indirectly, in the establishment or
Simon, Jr. vs. Commission on Human Rights
G.R. No. 100150. January 5, 1994.*
BRIGIDO R. SIMON, JR., CARLOS QUIMPO, CARLITO ABELARDO,
AND GENEROSO OCAMPO, petitioners, vs. COMMISSION ON
HUMAN RIGHTS, ROQUE FERMO, AND OTHERS AS JOHN DOES,
respondents.
Constitutional Law; Bill of Rights; Human Rights; Commission on
Human Rights; Creation of.—The Commission on Human Rights
was created by the 1987 Constitution. It was formally constituted
by then President Corazon Aquino via Executive Order No. 163,
issued on 5 May 1987, in the exercise of her legislative power at
the time. It succeeded, but so superseded as well, the Presidential
Committee on Human Rights.
Same; Same; Same; Same; Words and Phrases; The phrase
“human rights” is so generic a term that any attempt to define it
could at best be described as inconclusive.—It can hardly be
disputed that the phrase “human rights” is so generic a term that
any attempt to define it, albeit not a few have tried, could at best
be described as inconclusive. The Universal Declaration of Human
Rights, or more specifically, the International Covenant on
Economic, Social and Cultural Rights and International Covenant
on Civil and Political Rights, suggests that the scope of human
rights can be understood to include those that relate to an
individual’s social, economic, cultural, political and civil relations.
It thus seems to closely identify the term to the universally
accepted traits and attributes of an individual, along with what is
generally considered to be his inherent and inalienable rights,
encompassing almost all aspects of life.
Same; Same; Same; Same; Same; “Civil Rights”, defined.—The
term “civil rights,” has been defined as referring—“(to) those
(rights) that belong to every citizen of the state or country, or, in
a wider sense, to all its inhabitants, and are not connected with
the organization or administration of government. They include
the rights of property, marriage, equal protection of the laws,
freedom of contract, etc. Or, as otherwise defined civil rights are
rights appertaining to a person by virtue of his citizenship in a
state or community. Such term may also refer, in its general
sense, to rights capable of being enforced or redressed in a civil
action.” Also quite often mentioned are the guaran-
tees against involuntary servitude, religious persecution,
unreasonable searches and seizures, and imprisonment for debt.
Same; Same; Same; Same; Same; “Political Rights”, explained.—
Political rights, on the other hand, are said to refer to the right to
administration of government, the right of suffrage, the right to
hold public office, the right of petition and, in general, the right
appurtenant to citizenship vis-a-vis the management of
government.
Same; Same; Same; Same; The Constitutional Commission
delegates envisioned a Commission on Human Rights that would
focus its attention to the more severe cases of human rights
violations.—Recalling the deliberation of the Constitutional
Commission, aforequoted, it is readily apparent that the delegates
envisioned a Commission on Human Rights that would focus its
attention to the more severe cases of human rights violations.
Delegate Garcia, for instance, mentioned such areas as the “(1)
protection of rights of political detainees, (2) treatment of
prisoners and the prevention of tortures, (3) fair and public trials,
(4) cases of disappearances, (5) salvagings and hamletting, and
(6) other crimes committed against the religious.” While the
enumeration has not likely been meant to have any preclusive
effect, more than just expressing a statement of priority, it is,
nonetheless, significant for the tone it has set. In any event, the
delegates did not apparently take comfort in peremptorily making
a conclusive delineation of the CHR’s scope of investigatorial
jurisdiction. They have thus seen it fit to resolve, instead, that
“Congress may provide for other cases of violations of human
rights that should fall within the authority of the Commission,
taking into account its recommendation.”
Same; Same; Same; Same; Demolition of stalls, sari-sari stores
and carinderia does not fall within the compartment of “human
rights violations involving civil and political rights” intended by the
Constitution.—In the particular case at hand, there is no cavil that
what are sought to be demolished are the stalls, sari-sari stores
and carinderia, as well as temporary shanties, erected by private
respondents on a land which is planned to be developed into a
“People’s Park.” More than that, the land adjoins the North EDSA
of Quezon City which, this Court can take judicial notice of, is a
busy national highway. The consequent danger to life and limb is
not thus to be likewise simply ignored. It is indeed paradoxical
that a right which is claimed to have been violated is one that
cannot, in the first place, even be invoked, if it is not, in fact,
extant. Be that as it may, looking at the standards hereinabove
discoursed vis-a-vis the circumstances obtaining in this
instance, we are not prepared to conclude that the order for the
demolition of the stalls, sari-sari stores and carinderia of the
private respondents can fall within the compartment of “human
rights violations involving civil and political rights” intended by the
Constitution.
Same; Same; Same; Same; Contempt; The CHR is constitutionally
authorized to cite or hold any person in direct or indirect
contempt.—On its contempt powers, the CHR is constitutionally
authorized to “adopt its operational guidelines and rules of
procedure, and cite for contempt for violations thereof in
accordance with the Rules of Court.” Accordingly, the CHR acted
within its authority in providing in its revised rules, its power “to
cite or hold any person in direct or indirect contempt, and to
impose the appropriate penalties in accordance with the
procedure and sanctions provided for in the Rules of Court.” That
power to cite for contempt, however, should be understood to
apply only to violations of its adopted operational guidelines and
rules of procedure essential to carry out its investigatorial powers.
To exemplify, the power to cite for contempt could be exercised
against persons who refuse to cooperate with the said body, or
who unduly withhold relevant information, or who decline to
honor summons, and the like, in pursuing its investigative work.
Same; Same; Same; Same; An “order to desist”, however, is not
investigatorial in character but prescinds from an adjudicative
power that the CHR does not possess.—The “order to desist” (a
semantic interplay for a restraining order) in the instance before
us, however, is not investigatorial in character but prescinds from
an adjudicative power that it does not possess.
Prohibition; Moot and Academic; Prohibition not moot simply
because the hearings in the proceedings sought to be restrained
have been terminated where resolution of the issues raised still to
be promulgated.—The public respondent explains that this
petition for prohibition filed by the petitioners has become moot
and academic since the case before it (CHR Case No. 90-1580)
has already been fully heard, and that the matter is merely
awaiting final resolution. It is true that prohibition is a preventive
remedy to restrain the doing of an act about to be done, and not
intended to provide a remedy for an act already accomplished.
Here, however, said Commission admittedly has yet to
promulgate its resolution in CHR Case No. 90-1580. The instant
petition has been intended, among other things, to also prevent
CHR from precisely doing that.
SPECIAL CIVIL ACTION for prohibition.
The facts are stated in the opinion of the Court.
The City Attorney for petitioners.
The Solicitor General for public respondent.
VITUG, J.:
The extent of the authority and power of the Commission on
Human Rights (“CHR”) is again placed into focus in this petition
for prohibition, with prayer for a restraining order and preliminary
injunction. The petitioners ask us to prohibit public respondent
CHR from further hearing and investigating CHR Case No. 90-
1580, entitled “Fermo, et al. vs. Quimpo, et al.”
The case all started when a “Demolition Notice,” dated 9 July
1990, signed by Carlos Quimpo (one of the petitioners) in his
capacity as an Executive Officer of the Quezon City Integrated
Hawkers Management Council under the Office of the City Mayor,
was sent to, and received by, the private respondents (being the
officers and members of the North EDSA Vendors Association,
Incorporated). In said notice, the respondents were given a
grace-period of three (3) days (up to 12 July, 1990) within which
to vacate the questioned premises of North EDSA.1 Prior to their
receipt of the demolition notice, the private respondents were
informed by petitioner Quimpo that their stalls should be removed
to give way to the “People’s Park.”2 On 12 July 1990, the group,
led by their President Roque Fermo, filed a letter-complaint
(Pinag-samang Sinumpaang Salaysay) with the CHR against the
petitioners, asking the late CHR Chairman Mary Concepcion
Bautista for a letter to be addressed to then Mayor Brigido Simon,
Jr., of Quezon City to stop the demolition of the private
respondents’ stalls, sari-sari stores, and carinderia along NORTH
EDSA. The complaint was docketed as CHR Case No. 90-1580.3
On 23 July 1990, the CHR issued an order, directing the
petitioners “to desist from demolishing the stalls and shanties at
North EDSA pending resolution of the vendors/squatters’
complaint before the Commission” and ordering said petitioners
to appear before the CHR.4
On the basis of the sworn statements submitted by the private
respondents on 31 July 1990, as well as CHR’s own ocular
inspection, and convinced that on 28 July 1990 the petitioners
carried out the demolition of private respondents’ stalls, sari-sari
stores and carinderia,5 the CHR, in its resolution of 1 August
1990, ordered the disbursement of financial assistance of not
more than P200,000.00 in favor of the private respondents to
purchase light housing materials and food under the Commission’s
supervision and again directed the petitioners to “desist from
further demolition, with the warning that violation of said order
would lead to a citation for contempt and arrest.”6
A motion to dismiss,7 dated 10 September 1990, questioned
CHR’s jurisdiction. The motion also averred, among other things,
that:
“1. this case came about due to the alleged violation by the
(petitioners) of the Inter-Agency Memorandum of Agreement
whereby Metro-Manila Mayors agreed on a moratorium in the
demolition of the dwellings of poor dwellers in Metro-Manila;
“* * * * * *
“3. * * *, a perusal of the said Agreement (revealed) that the
moratorium referred to therein refers to moratorium in the
demolition of the structures of poor dwellers;
“4. that the complainants in this case (were) not poor dwellers but
independent business entrepreneurs even this Honorable Office
admitted in its resolution of 1 August 1990 that the complainants
are indeed vendors;
“5. that the complainants (were) occupying government land,
particularly the sidewalk of EDSA corner North Avenue, Quezon
City; * * * and
“6. that the City Mayor of Quezon City (had) the sole and
exclusive discretion and authority whether or not a certain
business establishment (should) be allowed to operate within the
jurisdiction of Quezon City, to revoke or cancel a permit, if already
issued, upon grounds clearly specified by law and ordinance.”8
During the 12 September 1990 hearing, the petitioners moved for
postponement, arguing that the motion to dismiss set for 21
September 1990 had yet to be resolved. The petitioners likewise
manifested that they would bring the case to the courts.
On 18 September 1990, a supplemental motion to dismiss was
filed by the petitioners, stating that the Commission’s authority
should be understood as being confined only to the investigation
of violations of civil and political rights, and that “the rights
allegedly violated in this case (were) not civil and political rights,
(but) their privilege to engage in business.”9
On 21 September 1990, the motion to dismiss was heard and
submitted for resolution, along with the contempt charge that had
meantime been filed by the private respondents, albeit vigorously
objected to by the petitioners on the ground that the motion to
dismiss was still then unresolved.10
In an Order,11 dated 25 September 1990, the CHR cited the
petitioners in contempt for carrying out the demolition of the
stalls, sari-sari stores and carinderia despite the “order to desist,”
and it imposed a fine of P500.00 on each of them.
On 1 March 1991,12 the CHR issued an Order, denying
petitioners’ motion to dismiss and supplemental motion to
dismiss, in this wise:
“Clearly, the Commission on Human Rights under its constitutional
mandate had jurisdiction over the complaint filed by the
squatters-vendors who complained of the gross violations of their
human and constitutional rights. The motion to dismiss should be
and is hereby DENIED for lack of merit.”13
The CHR opined that “it was not the intention of the
(Constitutional) Commission to create only a paper tiger limited
only to investigating civil and political rights, but it (should) be
(considered) a quasi-judicial body with the power to provide
appropriate legal measures for the protection of human rights of
all persons
within the Philippines * * *.” It added:
“The right to earn a living is a right essential to one’s right to
development, to life and to dignity. All these brazenly and
violently ignored and trampled upon by respondents with little
regard at the same time for the basic rights of women and
children, and their health, safety and welfare. Their actions have
psychologically scarred and traumatized the children, who were
witness and exposed to such a violent demonstration of Man’s
inhumanity to man.”
In an Order,14 dated 25 April 1991, petitioners’ motion for
reconsideration was denied.
Hence, this recourse.
The petition was initially dismissed in our resolution15 of 25 June
1991; it was subsequently reinstated, however, in our
resolution16 of 18 June 1991, in which we also issued a
temporary restraining order, directing the CHR to “CEASE and
DESIST from further hearing CHR No. 90-1580.”17
The petitioners pose the following:
Whether or not the public respondent has jurisdiction:
a) to investigate the alleged violations of the “business rights” of
the private respondents whose stalls were demolished by the
petitioners at the instance and authority given by the Mayor of
Quezon City;
b) to impose the fine of P500.00 each on the petitioners; and
c) to disburse the amount of P200,000.00 as financial aid to the
vendors affected by the demolition.
In the Court’s resolution of 10 October, the Solicitor General was
excused from filing his document for public respondent CHR. The
latter thus filed its own comment,18 through Hon. Samuel
Soriano, one of its Commissioners. The Court also resolved to
dispense with the comment of private respondent Roque Fermo,
who had since failed to comply with the resolution, dated 18 July
1991, requiring such comment.
The petition has merit.
The Commission on Human Rights was created by the 1987
Constitution.19 It was formally constituted by then President
Corazon Aquino via Executive Order No. 163,20 issued on 5 May
1987, in the exercise of her legislative power at the time. It
succeeded, but so superseded as well, the Presidential Committee
on Human Rights.21
The powers and functions22 of the Commission are defined by
the 1987 Constitution, thus: to—
“(1) Investigate, on its own or on complaint by any party, all
forms of human rights violation involving civil and political rights;
“(2) Adopt its operational guidelines and rules of procedure, and
cite for contempt for violations thereof in accordance with the
Rules of Court;
“(3) Provide appropriate legal measures for the protection of
human rights of all persons within the Philippines, as well as
Filipinos residing abroad, and provide for preventive measures
and legal aid services to the underprivileged whose human rights
have been violated or need protection;
“(4) Exercise visitorial powers over jails, prisons, or detention
facilities;
“(5) Establish a continuing program of research, education, and
information to enhance respect for the primary of human rights;
“(6) Recommend to the Congress effective measures to promote
human rights and to provide for compensation to victims of
violations of human rights, or their families;
“(7) Monitor the Philippine Government’s compliance with
international treaty obligations on human rights;
“(8) 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;
“(9) Request the assistance of any department, bureau, office, or
agency in the performance of its functions;
“(10) Appoints its officers and employees in accordance with law;
and
“(11) Perform such other duties and functions as may be provided
by law.”
In its Order of 1 March 1991, denying petitioners’ motion to
dismiss, the CHR theorizes that the intention of the members of
the Constitutional Commission is to make CHR a quasi-judicial
body.23 This view, however, has not heretofore been shared by
this Court. In Carino v. Commission on Human Rights,24 The
Court, through then Associate Justice, now Chief Justice Andres
Narvasa, has observed that it is “only the first of the enumerated
powers and functions that bears any resemblance to adjudication
or adjudgment,” but that resemblance can in no way be
synonymous to the adjudicatory power itself. The Court
explained:
“* * * (T)he Commission on Human Rights * * * was not meant
by the fundamental law to be another court or quasi-judicial
agency in this country, or duplicate much less take over the
functions of the latter.
“The most that may be conceded to the Commission in the way of
adjudicative power is that it may investigate, i.e., receive
evidence and make findings of fact as regards claimed human
rights violations involving civil and political rights. But fact finding
is not adjudication, and cannot be likened to the judicial function
of a court of justice, or even a quasi-judicial agency or official.
The function of receiving evidence and ascertaining therefrom the
facts of a controversy is not a judicial function, properly speaking.
To be considered such, the faculty of receiving evidence and
making factual conclusions in a controversy must be accompanied
by the authority of applying the law to those factual conclusions
to the end that the controversy may be decided or determined
authoritatively, finally and definitively, subject to such appeals or
modes of review as may be provided by law. This function, to
repeat, the Commission does not have.”
After thus laying down at the outset the above rule, we now
proceed to the order kernel of this controversy and, it is, to
determine the extent of CHR’s investigative power.
It can hardly be disputed that the phrase “human rights” is so
generic a term that any attempt to define it, albeit not a few have
tried, could at best be described as inconclusive. Let us observe.
In a symposium on human rights in the Philippines, sponsored by
the University of the Philippines in 1977, one of the questions that
has been propounded is “(w)hat do you understand by ‘human
rights?” The participants representing different sectors of the
society, have given the following varied answers:
“Human rights are the basic rights which inhere in man by virtue
of his humanity. They are the same in all parts of the world,
whether the Philippines or England, Kenya or the Soviet Union,
the United States or Japan, Kenya or Indonesia * * *.
“Human rights include civil rights, such as the right to life, liberty,
and property; freedom of speech, of the press, of religion,
academic freedom, and the rights of the accused to due process
of law; political rights, such as the right to elect public officials, to
be elected to public office, and to form political associations and
engage in politics; and social rights, such as the right to an
education, employment, and social services.”25
“Human rights are the entitlement that inhere in the individual
person from the sheer fact of his humanity. * * * Because they
are inherent, human rights are not granted by the State but can
only be recognized and protected by it.”26
“(Human rights include all) the civil, political, economic, social,
and cultural rights defined in the Universal Declaration of Human
Rights.”27
“Human rights are rights that pertain to man simply because he is
human. They are part of his natural birth right, innate and
inalienable.”28
The Universal Declaration of Human Rights, as well as, or more
specifically, the International Covenant on Economic, Social and
Cultural Rights and International Covenant on Civil and Politi-
cal Rights, suggests that the scope of human rights can be
understood to include those that relate to an individual’s social,
economic, cultural, political and civil relations. It thus seems to
closely identify the term to the universally accepted traits and
attributes of an individual, along with what is generally considered
to be his inherent and inalienable rights, encompassing almost all
aspects of life.
Have these broad concepts been equally contemplated by the
framers of our 1986 Constitutional Commission in adopting the
specific provisions on human rights and in creating an
independent commission to safeguard these rights? It may be of
value to look back at the country’s experience under the martial
law regime which may have, in fact, impelled the inclusions of
those provisions in our fundamental law. Many voices have been
heard. Among those voices, aptly representative perhaps of the
sentiments expressed by others, comes from Mr. Justice J.B.L.
Reyes, a respected jurist and an advocate of civil liberties, who, in
his paper, entitled “Present State of Human Rights in the Philip-
pines,”29 observes:
“But while the Constitution of 1935 and that of 1973 enshrined in
their Bill of Rights most of the human rights expressed in the
International Covenant, these rights became unavailable upon the
proclamation of Martial Law on 21 September 1972. Arbitrary
action then became the rule. Individuals by the thousands
became subject to arrest upon suspicion, and were detained and
held for indefinite periods, sometimes for years, without charges,
until ordered released by the Commander-in-Chief or this
representative. The right to petition for the redress of grievances
became useless, since group actions were forbidden. So were
strikes. Press and other mass media were subjected to censorship
and short term licensing. Martial law brought with it the
suspension of the writ of habeas corpus, and judges lost
independence and security of tenure, except members of the
Supreme Court. They were required to submit letters of
resignation and were dismissed upon the acceptance thereof.
Torture to extort confessions were practiced as declared by
international bodies like Amnesty International and the
International Commission of Jurists.”
Converging our attention to the records of the Constitutional
Commission, we can see the following discussion during its 26
August 1986 deliberations:
“MR. GARCIA. * * *, the primacy of its (CHR) task must be made
clear in view of the importance of human rights and also because
civil and political rights have been determined by many
international covenants and human rights legisla-tions in the
Philippines, as well as the Constitution, specifically the Bill of
Rights and subsequent legislation. Otherwise, if we cover such a
wide territory in area, we might diffuse its impact and the precise
nature of its task, hence, its effectivity would also be curtailed.
“So, it is important to delineate the parameters of its task so that
the commission can be most effective.
“MR. BENGZON. That is precisely my difficulty because civil and
political rights are very broad. The Article on the Bill of Rights
covers civil and political rights. Every single right of an individual
involves his civil right or his political right. So, where do we draw
the line?
“MR. GARCIA. Actually, these civil and political rights have been
made clear in the language of human rights advocates, as well as
in the Universal Declaration of Human Rights which addresses a
number of articles on the right to life, the right against torture,
the right to fair and public hearing, and so on. These are very
specific rights that are considered enshrined in many international
documents and legal instruments as constituting civil and political
rights, and these are precisely what we want to defend here.
“MR. BENGZON. So, would the commissioner say civil and political
rights as defined in the Universal Declaration of Human Rights?
“MR. GARCIA. Yes, and as I have mentioned, the International
Covenant of Civil and Political Rights distinguished this right
against torture.
“MR. BENGZON. So as to distinguish this from the other rights
that we have?
“MR. GARCIA. Yes because the other rights will encompass social
and economic rights, and there are other violations of rights of
citizens which can be addressed to the proper courts and
authorities.
“* * *
“MR. BENGZON. So, we will authorize the commission to define its
functions, and, therefore, in doing that the commission will be
authorized to take under its wings cases which perhaps heretofore
or at this moment are under the jurisdiction of the ordinary
investigative and prosecutorial agencies of the government. Am I
correct?
“MR. GARCIA. No. We have already mentioned earlier that we
would like to define the specific parameter which cover civil and
political rights as covered by the international standards
governing the behavior of governments regarding the particular
political and civil rights of citizens, especially of political detainees
or prisoners. This particular aspect we have experienced during
martial law which we would now like to safeguard.
“MR. BENGZON. Then, I go back to that question that I had.
Therefore, what we are really trying to say is, perhaps, at the
proper time we could specify all those rights stated in the
Universal Declaration of Human Rights and defined as human
rights. Those are the rights that we envision here?
“MR. GARCIA. Yes. In fact, they are also enshrined in the Bill of
Rights of our Constitution. They are integral parts of that.
“MR. BENGZON. Therefore, is the Gentleman saying that all the
rights under the Bill of Rights covered by human rights?
“MR. GARCIA. No, only those that pertain to civil and political
rights.
“* * *
“MR. RAMA. In connection with the discussion on the scope of
human rights. I would like to state that in the past regime,
everytime we invoke the violation of human rights, the Marcos
regime came out with the defense that, as a matter of fact, they
had defended the rights of people to decent living, food, decent
housing and a life consistent with human dignity.
“So, I think we should really limit the definition of human rights to
political rights. Is that the sense of the committee, so as not to
confuse the issue?
“MR. SARMIENTO. Yes, Madam President.
“MR. GARCIA. I would like to continue and respond also to
repeated points raised by the previous speaker.
There are actually six areas where this Commission on Human
Rights could act effectively: 1) protection of rights of political
detainees; 2) treatment of prisoners and the prevention of
tortures; 3) fair and public trials; 4) cases of disappearances; 5)
salvagings and hamletting; and 6) other crimes committed against
the religious.
“* * *
“The PRESIDENT. Commissioner Guingona is recognized.
“MR. GUINGONA. Thank you Madam President.
“I would like to start by saying that I agree with Commissioner
Garcia that we should, in order to make the proposed Commission
more effective, delimit as much as possible, without prejudice to
future expansion. The coverage of the concept and jurisdictional
area of the term ‘hu-man rights.’ I was actually disturbed this
morning when the reference was made without qualification to
the rights embodied in the Universal Declaration of Human Rights,
although later on, this was qualified to refer to civil and political
rights contained therein.
“If I remember correctly, Madam President, Commissioner Garcia,
after mentioning the Universal Declaration of Human Rights of
1948, mentioned or linked the concept of human right with other
human rights specified in other convention which I do not
remember. Am I correct? “MR. GARCIA. Is Commissioner
Guingona referring to the Declaration of Torture of 1985?
“MR. GUINGONA. I do not know, but the commissioner mentioned
another.
“MR. GARCIA. Madam President, the other one is the
International Convention on Civil and Political Rights of which we
are signatory.

“MR. GUINGONA. I see. The only problem is that, although I have
a copy of the Universal Declaration of Human Rights here, I do
not have a copy of the other covenant mentioned. It is quite
possible that there are rights specified in that other convention
which may not be specified here. I was wondering whether it
would be wise to link our concept of human rights to general
terms like ‘convention,’ rather than specify the rights contained in
the convention.
“As far as the Universal Declaration of Human
Rights is concerned, the Committee, before the period of
amendments, could specify to us which of these articles in the
Declaration will fall within the concept of civil and political rights,
not for the purpose of including these in the proposed
constitutional article, but to give the sense of the Commission as
to what human rights would be included, without prejudice to
expansion later on, if the need arises. For example, there was no
definite reply to the question of Commissioner Regalado as to
whether the right to marry would be considered a civil or a social
right. It is not a civil right?
“MR. GARCIA. Madam President, I have to repeat the various
specific civil and political rights that we felt must be envisioned
initially by this provision—freedom from political detention and
arrest prevention of torture, right to fair and public trials, as well
as crimes involving disappearance salvagings, hamlettings and
collective violations. So, it is limited to politically related crimes
precisely to protect the civil and political rights of a specific group
of individuals, and therefore, we are not opening it up to all of the
definite areas.
“MR. GUINGONA. Correct. Therefore, just for the record, the
Gentlemen is no longer linking his concept or the concept of the
Committee on Human Rights with the so-called civil or political
rights as contained in the Universal Declaration of Human Rights.
“MR. GARCIA. When I mentioned earlier the Universal Declaration
of Human Rights, I was referring to an international instrument.
“MR. GUINGONA. I know.
“MR. GARCIA. But it does not mean that we will refer to each and
every specific article therein, but only to those that pertain to the
civil and politically related, as we understand it in this Commission
on Human Rights.
“MR. GUINGONA. Madam President, I am not even clear as to the
distinction between civil and social rights.
“MR. GARCIA. There are two international covenants: the
International Covenant and Civil and Political Rights and the
International Covenant on Economic, Social and Cultural Rights.
The second covenant contains all the different rights—the rights
of labor to organize, the right to education, housing, shelter,
etcetera.
“MR. GUINGONA. So we are just limiting at the moment the
sense of the committee to those that the Gentlemen has
specified.
“MR. GARCIA. Yes, to civil and political rights.
“MR. GUINGONA. Thank you.
“* * *
“SR. TAN. Madam President, from the standpoint of the victims of
human rights, I cannot stress more on how much we need a
Commission on Human Rights. * * *
“* * * human rights victims are usually penniless. They cannot
pay and very few lawyers will accept clients who do not pay. And
so, they are the ones more abused and oppressed. Another
reason is, the cases involved are very delicate—torture, salvaging,
picking up without any warrant of arrest, massacre—and the
persons who are allegedly guilty are people in power like
politicians, men in the military and big shots. Therefore, this
Human Rights Commission must be independent.
“I would like very much to emphasize how much we need this
commission, especially for the little Filipino, the little individual
who needs this kind of help and cannot get it And I think we
should concentrate only on civil and political violations because if
we open this to land, housing and health, we will have no place to
go again and we will not receive any response. * * *”30 (italics
supplied.)
The final outcome, now written as Section 18, Article XIII, of the
1987 Constitution, is a provision empowering the Commission on
Human Rights to “investigate, on its own or on complaint by any
party, all forms of human rights violations involving civil and
political rights” (Sec. 1).
The term “civil rights,”31 has been defined as referring—
“(to) those (rights) that belong to every citizen of the state or
country, or, in a wider sense, to all its inhabitants, and are not
connected with the organization or administration of government.
They include the rights of property, marriage, equal protection of
the laws, freedom of contract, etc. Or, as otherwise defined civil
rights are rights appertaining to a person by virtue of his
citizenship in a state or community. Such term may also refer, in
its general sense, to rights capable of being enforced or redressed
in a civil action.”
Also quite often mentioned are the guarantees against involuntary
servitude, religious persecution, unreasonable searches and
seizures, and imprisonment for debt.32
Political rights,33 on the other hand, are said to refer to the right
to participate, directly or indirectly, in the establishment or
administration of government, the right of suffrage, the right to
hold public office, the right of petition and, in general, the rights
appurtenant to citizenship vis-a-vis the management of
government.34
Recalling the deliberations of the Constitutional Commission,
aforequoted, it is readily apparent that the delegates envisioned a
Commission on Humans Rights that would focus its attention to
the more severe cases of human rights violations. Delegate
Garcia, for instance, mentioned such areas as the “(1) protection
of rights of political detainees, (2) treatment of prisoners and the
prevention of tortures, (3) fair and public trials, (4) cases of
disappearances, (5) salvagings and hamletting, and (6) other
crimes committed against the religious.” While the enumeration
has not likely been meant to have any preclusive effect, more
than just expressing a statement of priority, it is, nonetheless,
significant for the tone it has set. In any event, the delegates did
not apparently take comfort in peremptorily making a conclusive
delineation of the CHR’s scope of investigatorial jurisdiction. They
have thus seen it fit to resolve, instead, that “Congress may
provide for other cases of violations of human rights that should
fall within the authority of the Commission, taking into account its
recommendation.”35
In the particular case at hand, there is no cavil that what are
sought to be demolished are the stalls, sari-sari stores and
carinderia, as well as temporary shanties, erected by private
respondents on a land which is planned to be developed into a
“People’s Park.” More than that, the land adjoins the North EDSA
of Quezon City which, this Court can take judicial notice of, is a
busy national highway. The consequent danger to life and limb is
not thus to be likewise simply ignored. It is indeed paradoxical
that a right which is claimed to have been violated is one that
cannot, in the first place, even be invoked, if it is not, in fact,
extant. Be that as it may, looking at the standards hereinabove
discoursed vis-a-vis the circumstances obtaining in this instance,
we are not prepared to conclude that the order for the demolition
of the stalls, sari-sari stores and carinderia of the private
respondents can fall within the compartment of “human rights
violations involving civil and political rights” intended by the
Constitution.
On its contempt powers, the CHR is constitutionally authorized to
“adopt its operational guidelines and rules of procedure, and cite
for contempt for violations thereof in accordance with the Rules of
Court.” Accordingly, the CHR acted within its authority in
providing in its revised rules, its power “to cite or hold any person
in direct or indirect contempt, and to impose the appropriate
penalties in accordance with the procedure and sanctions
provided for in the Rules of Court.” That power to cite for
contempt, however, should be understood to apply only to
violations of its adopted operational guidelines and rules of
procedure essential to carry out its investigatorial powers. To
exemplify, the power to cite for contempt could be exercised
against persons who refuse to cooperate with the said body, or
who unduly withhold relevant information, or who decline to
honor summons, and the like, in pursuing its investigative work.
The “order to desist” (a semantic interplay for a restraining order)
in the instance before us, however, is not investigatorial in
character but prescinds from an adjudicative power that it does
not possess. In Export Processing Zone Authority vs. Commission
on Human Rights,36 the Court, speaking through Madame
Justice Carolina Griño-Aquino, explained:
“The constitutional provision directing the CHR to ‘provide for
preventive measures and legal aid services to the underprivileged
whose human rights have been violated or need protection’ may
not be construed to confer jurisdiction on the Commission to issue
a restraining order or writ of injunction for, it that were the
intention, the Constitution would have expressly said so.
‘Jurisdiction is conferred only by the Constitution or by law.’ It is
never derived by implication.” “Evidently, the ‘preventive
measures and legal aid services’ mentioned in the Constitution
refer to extrajudicial and judicial remedies (including a writ of
preliminary injunction) which the CHR may seek from the proper
courts on behalf of the victims of human rights violations. Not
being a court of justice, the CHR itself has no jurisdiction to issue
the writ, for a writ of preliminary injunction may only be issued
‘by the judge of any court in which the action is pending [within
his district], or by a Justice of the Court of Appeals, or of the
Supreme Court. * * *. A writ of preliminary injunction is an
ancillary remedy. It is available only in a pending principal action,
for the preservation or protection of the rights and interest of a
party thereto, and for no other purpose.” (footnotes omitted)
The Commission does have legal standing to indorse, for
appropriate action, its findings and recommendations to any
appropriate agency of government.37
The challenge on the CHR’s disbursement of the amount of
P200,000.00 by way of financial aid to the vendors affected by
the demolition is not an appropriate issue in the instant petition.
Not only is there lack of locus standi on the part of the petitioners
to question the disbursement but, more importantly, the matter
lies with the appropriate administrative agencies concerned to
initially consider.
The public respondent explains that this petition for prohibition
filed by the petitioners has become moot and academic since the
case before it (CHR Case No. 90-1580) has already been fully
heard, and that the matter is merely awaiting final resolution. It is
true that prohibition is a preventive remedy to restrain the doing
of an act about to be done, and not intended to provide a
remedy for an act already accomplished.38 Here, however, said
Commission admittedly has yet to promulgate its resolution in
CHR Case No. 90-1580. The instant petition has been intended,
among other things, to also prevent CHR from precisely doing
that.39
WHEREFORE, the writ prayed for in this petition is GRANTED. The
Commission on Human Rights is hereby prohibited from further
proceeding with CHR Case No. 90-1580 and from implementing
the P500.00 fine for contempt. The temporary restraining order
heretofore issued by this Court is made permanent. No costs.
Cariño vs. Commission on Human Rights
G.R. No. 96681. December 2,1991.*
HON. ISIDRO CARIÑO, in his capacity as Secretary of the
Department of Education, Culture 6, Sports, DR. ERLINDA
LOLARGA, in her capacity as Superintendent of City Schools of
Manila, petitioners, vs. THE COMMISSION ON HUMAN RIGHTS,
GRACIANO BUDOY, JULIETA BABARAN, ELSA IBABAO, HELEN
LUPO, AMPARO GONZALES, LUZ DEL CASTILLO, ELSA REYES and
APOLINARIO ESBER, respondents.
Constitutional Law; Jurisdiction; Commission on Human Rights;
Court declares the Commission on Human Rights to have no
jurisdiction on adjudicatory powers over certain specific type of
cases like alleged human rights violations involving civil or political
rights.—The threshold question is whether or not the Commission
on Human Rights has the power under the Constitution to do so;
whether or not, like a court of justice, or even a quasi-judicial
agency, it has jurisdiction or adjudicatory powers over, or the
power to try and decide, or hear and determine, certain specific
type of cases, like alleged human
rights violations in volving civil or political rights. The Court
declares the Commission on Human Rights to have no such
power; and that it was not meant by the fundamental law to be
another court or quasijudicial agency in this country, or duplicate
much less take over the functions of the latter.
Same; Same; Same; Same; The most that may be conceded to
the Commission in the way of adjudicative power is that it may
investigate, i.e., receive evidence and make findings of fact as
regards claimed human rights violations involving civil and political
rights.—The most that may be conceded to the Commission. in
the way of adjudicative power is that it may investigate, i.e.,
receive evidence and make findings of fact as regards claimed
human rights violations involving civil and political rights. But fact-
finding is not adjudication, and cannot be likened to the judicial
function of a court of justice, or even a quasi-judicial agency or
official. The function of receiving evidence and ascertaining
therefrom the facts of a controversy is not a judicial function,
properly speaking. To be considered such, the faculty of receiving
evidence and making factual conclusion in a controversy must be
accompanied by the authority of applying the law to those factual
conclusions to the end that the controversy may be decided or
determined authoritatively, finally and definitively, subject to such
appeals or modes of review as may be provided by law. This
function, to repeat, the Commission does not have.
Same; Same; Same; Same; Same; The Constitution clearly and
categorically grants to the Commission the power to investigate
all forms of human rights violations invoking civil and political
rights.—As should at once be observed, only the first of the
enumerated powers and functions bears any resemblance to
adjudication or adjudgment. The Constitution clearly and
categorically grants to the Commission the power to investigate
all forms of human rights violations involving civil and political
rights. It can exercise that power on its own initiative or on
complaint of any person. It may exercise that power pursuant to
such rules of procedure as it may adopt and, in cases of violations
of said rules, cite for contempt in accordance with the Rules of
Court. In the course of any investigation conducted by it or under
its authority, it may 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.
It may also request the assistance of any department, bureau,
office, or agency in the performance of its functions, in the
conduct of its investigation or in extending such remedy as may
be required by its findings.
Same; Same; Same; Same; Same; It cannot try and decide cases
(or hear and determine causes) as courts of justice or even quasi-
judicial bodies do.—But it cannot try and decide cases (or hear
and determine causes) as courts of justice, or even quasi-judicial
bodies do. To investigate is not to adjudicate or adjudge. Whether
in the popular or the technical sense, these terms have well
understood and quite distinct meanings.
Same; Same; Same; Same; Same; Same; The Commission on
Human Rights having merely the power to investigate cannot and
should not try and resolve on the merits the matters involved in
Striking Teachers HRC Case No. 90–775.—Hence it is that the
Commission on Human Rights, having merely the power “to
investigate,” cannot and should not “try and resolve on the
merits” (adjudicate) the matters involved in Striking Teachers HRC
Case No. 90–775, as it has announced it means to do; and it
cannot do so even if there be a claim that in the administrative
disciplinary proceedings against the teachers in question, initiated
and conducted by the DECS, their human rights, or civil or
political rights had been transgressed.
Same; Same; Same; Same; Same; Same; Same; The matters are
undoubtedly and clearly within the original jurisdiction of the
Secretary of Education and also within the appellate jurisdiction of
the Civil Service Commission.—These are matters undoubtedly
and clearly within the original jurisdiction of the Secretary of
Education, being within the scope of the disciplinary powers
granted to him under the Civil Service Law, and also, within the
appellate jurisdiction of the Civil Service Commission.
SPECIAL CIVIL ACTION of certiorari and prohibition to review the
order of the Commission on Human Rights.
The facts are stated in the opinion of the Court.
NARVASA, J.:
The issue raised in the special civil action of certiorari and
prohibition at bar, instituted by the Solicitor General, may be
formulated as follows: where the relief sought from the
Commission on Human Rights by a party in a case consists of the
review and reversal or modification of a decision or order issued
by a court of justice or government agency or official exercising
quasi-judicial functions, may the Commission take cognizance
of the case and grant that relief? Stated otherwise, where a
particular subject-matter is placed by law within the jurisdiction of
a court or other government agency or official for purposes of trial
and adjudgment, may the Commission on Human Rights take
cognizance of the same subject-matter for the same purposes of
hearing and adjudication?
The facts narrated in the petition are not denied by the
respondents and are hence taken as substantially correct for
purposes of ruling on the legal questions posed in the present
action. These facts,1 together with others involved in related
cases recently resolved by this Court,2 or otherwise undisputed
on the record, are hereunder set forth.
1. On September 17, 1990, a Monday and a class day, some 800
public school teachers, among them members of the Manila Public
School Teachers Association (MPSTA) and Alliance of Concerned
Teachers (ACT) undertook what they described as “mass
concerted actions” to “dramatize and highlight” their plight
resulting from the alleged failure of the public authorities to act
upon grievances that had time and again been brought to the
latter’s attention. According to them they had decided to
undertake said “mass concerted actions” after the protest rally
staged at the DECS premises on September 14, 1990 without
disrupting classes as a last call for the government to negotiate
the granting of demands had elicited no response from the
Secretary of Education. The “mass actions” consisted in staying
away from their classes, converging at the Liwasang Bonifacio,
gathering in peaceable assemblies, etc. Through their
representatives, the teachers participating in the mass actions
were served with an order of the Secretary of Education to return
to work in 24 hours or face dismissal, and a memorandum
directing the DECS officials concerned to initiate dismissal
proceedings against those who did not comply and to hire their
replacements. Those directives notwithstanding, the mass actions
continued into the week, with more teachers
joining in the days that followed.3
Among those who took part in the “concerted mass actions” were
the eight (8) private respondents herein, teachers at the Ramon
Magsaysay High School, Manila, who had agreed to support the
non-political demands of the MPSTA.4
2. “For failure to heed the return-to-work order, the CHR
complainants (private respondents) were administratively charged
on the basis of the principal’s report and given five (5) days to
answer the charges. They were also preventively suspended for
ninety (90) days ‘pursuant to Section 41 of P.D. 807' and
temporarily replaced (unmarked CHR Exhibits, Annexes F, G, H).
An investigation committee was consequently formed to hear the
charges in accordance with P.D. 807."5
3. In the administrative case docketed as Case No. DECS 90–082
in which CHR complainants Graciano Budoy, Jr., Julieta Babaran,
Luz del Castillo, Apolinario Esber were, among others, named
respondents,6 the latter filed separate answers, opted for a
formal investigation, and also moved “for suspension of the
administrative proceedings pending resolution by xx (the
Supreme) Court of their application for issuance of an injunctive
writ/temporary restraining order.” But when their motion for
suspension was denied by Order dated November 8, 1990 of the
Investigating Committee, which later also denied their motion for
reconsideration orally made at the hearing of November 14,1990,
“the respondents led by their counsel staged a walkout signifying
their intent to boycott the entire proceedings."7 The case
eventually resulted in a Decision of Secretary Cariño dated
December 17, 1990, rendered after evaluation of the evidence as
well as the answers, affidavits and documents submitted by the
respondents, decreeing dismissal from the
service of Apolinario Esber and the suspension for nine (9)
months of Babaran, Budoy and del Castillo.8
4. In the meantime, the “MPSTA filed a petition for certiorari
before the Regional Trial Court of Manila against petitioner
(Cariño), which was dismissed (unmarked CHR Exhibit, Annex I).
Later, the MPSTA went to the Supreme Court (on certiorari, in an
attempt to nullify said dismissal, grounded on the) alleged
violation of the striking teachers’ right to due process and
peaceable assembly docketed as G.R. No. 95445, supra. The ACT
also filed a similar petition before the Supreme Court xx docketed
as G.R. No. 95590."9 Both petitions in this Court were filed in
behalf of the teacher associations, a few named individuals, and
“other teacher-members so numerous similarly situated” or “other
similarly situated public school teachers too numerous to be
impleaded.”
5. In the meantime, too, the respondent teachers submitted
sworn statements dated September 27, 1990 to the Commission
on Human Rights to complain that while they were participating in
peaceful mass actions, they suddenly learned of their
replacements as teachers, allegedly without notice and
consequently for reasons completely unknown to them.10
6. Their complaints—and those of other teachers also “ordered
suspended by the xx (DECS)," all numbering forty-two (42)—were
docketed as “Striking Teachers CHR Case No. 90–775." In
connection therewith the Commission scheduled a “dialogue” on
October 11,1990, and sent a subpoena to Secretary Cariño
requiring his attendance therein.11
On the day of the “dialogue,” although it said that it was “not
certain whether he (Sec. Cariño) received the subpoena which
was served at his office, xx (the) Commission, with the Chairman
presiding, and Commissioners Hesiquio R. Mallilin and Narciso C.
Monteiro, proceeded to hear the case;” it heard the complainants’
counsel (a) explain that his clients had been “denied due process
and suspended without formal notice, and unjustly, since they did
not join the mass leave,” and (b) expatiate on the grievances
which were “the cause of the mass leave of MPSTA teachers,
(and) with which causes they (CHR complainants) sympathize."12
The Commission thereafter issued an Order13 reciting these facts
and making the following disposition:
“To be properly apprised of the real facts of the case and be
accordingly guided in its investigation and resolution of the
matter, considering that these forty two teachers are now
suspended and deprived of their wages, which they need very
badly, Secretary Isidro Cariño, of the Department of Education,
Culture and Sports, Dr. Erlinda Lolarga, school superintendent of
Manila and the Principal of Ramon Magsaysay High School,
Manila, are hereby enjoined to appear and enlighten the
Commission en banc on October 19,1990 at 11:00 A.M. and to
bring with them any and all documents relevant to the allegations
aforestated herein to assist the Commission in this matter.
Otherwise, the Commission will resolve the complaint on the basis
of complainants’ evidence.
x x x.”
7. Through the Office of the Solicitor General, Secretary Cariño
sought and was granted leave to file a motion to dismiss the case.
His motion to dismiss was submitted on November 14, 1990
alleging as grounds therefor, “that the complaint states no cause
of action and that the CHR has no jurisdiction over the case."14
8. Pending determination by the Commission of the motion to
dismiss, judgments affecting the “striking teachers” were
promulgated in two (2) cases, as aforestated, viz.:
a) The Decision dated December 17, 1990 of Education Secretary
Cariño in Case No. DECS 90–082, decreeing dismissal from the
service of Apolinario Esber and the suspension for nine (9)
months of Babaran, Budoy and del Castillo;15 and
b) The joint Resolution of this Court dated August 6, 1991 in G.R.
Nos. 95445 and 95590 dismissing the petitions “without prejudice
to any appeals, if still timely, that the individual petitioners may
take to the Civil Service Commission on the matters complained
of,"16 and inter alia “ruling that it was prima facie lawful for
petitioner Cariño to issue return-to-work orders, file administrative
charges against recalcitrants, preventively suspend them, and
issue decision on those charges."17
9. In an Order dated December 28,1990, respondent Commission
denied Sec. Cariño’s motion to dismiss and required him and
Superintendent Lolarga “to submit their counter-affidavits within
ten (10) days x x (after which) the Commission shall proceed to
hear and resolve the case on the merits with or without
respondents counter affidavit."18 It held that the “striking
teachers” “were denied due process of law; x x they should not
have been replaced without a chance to reply to the
administrative charges;” there had been a violation of their civil
and political rights which the Commission was empowered to
investigate; and while expressing its “utmost respect to the
Supreme Court xx the facts before xx (it) are different from those
in the case decided by the Supreme Court” (the reference being
ummistakably to this Court’s joint Resolution of August 6,1991 in
G.R. Nos. 95445 and 95590, supra).
It is to invalidate and set aside this Order of December 28, 1990
that the Solicitor General, in behalf of petitioner Cariño, has
commenced the present action of certiorari and prohibition.
The Commission on Human Rights has made clear its position that
it does not feel bound by this Court’s joint Resolution
in G.R. Nos. 95445 and 95590, supra. It has also made plain its
intention “to hear and resolve the case (i.e., Striking Teachers
HRC Case No. 90–775) on the merits.” It intends, in other words,
to try and decide or hear and determine, i.e., exercise jurisdiction
over the following general issues:
1) whether or not the striking teachers were denied due process,
and just cause exists for the imposition of administrative
disciplinary sanctions on them by their superiors; and
2) whether or not the grievances which were “the cause of the
mass leave of MPSTA teachers, (and) with which causes they
(CHR complainants) sympathize,” justify their mass action or
strike.
The Commission evidently intends to itself adjudicate, that is to
say, determine with character of finality and definiteness, the
same issues which have been passed upon and decided by the
Secretary of Education, Culture 6, Sports, subject to appeal to the
Civil Service Commission, this Court having in fact, as
aforementioned, declared that the teachers affected may take
appeals to the Civil Service Commission on said matters, if still
timely.
The threshold question is whether or not the Commission on
Human Rights has the power under the Constitution to do so;
whether or not, like a court of justice,19 or even a quasi-judicial
agency,20 it has jurisdiction or adjudicatory powers over, or the
power to try and decide, or hear and determine, certain specific
type of cases, like alleged human rights violations involving civil or
political rights.
The Court declares the Commission on Human Rights to have no
such power; and that it was not meant by the fundamental law to
be another court or quasi-judicial agency in this country, or
duplicate much less take over the functions of the latter.
The most that may be conceded to the Commission in the way of
adjudicative power is that it may investigate, i.e., receive
evidence and make findings of fact as regards claimed human
rights violations involving civil and political rights. But fact-finding
is not adjudication, and cannot be likened to the judicial function
of a court of justice, or even a quasi-judicial agency or official.
The function of receiving evidence and ascertaining therefrom the
facts of a controversy is not a judicial function, properly speaking.
To be considered such, the faculty of receiving evidence and
making factual conclusions in a controversy must be accompanied
by the authority of applying the law to those factual conclusions
to the end that the controversy may be decided or determined
authoritatively, finally and definitively, subject to such appeals or
modes of review as may be provided by law.21 This function, to
repeat, the Commission does not
have. 22
The proposition is made clear by the constitutional provisions
specifying the powers of the Commission on Human Rights. The
Commission was created by the 1987 Constitution as an
independent office.23 Upon its constitution, it succeeded and
superseded the Presidential Committee on Human Rights existing
at the time of the effectivity of the Constitution,24 Its powers and
functions are the following:25
"(1) Investigate, on its own or on complaint by any party, all
forms of human rights violations involving civil and political rights;
(2) Adopt its operational guidelines and rules of procedure, and
cite for contempt for violations thereof in accordance with the
Rules of Court;
(3) Provide appropriate legal measures for the protection of
human rights of all persons within the Philippines, as well as
Filipinos residing abroad, and provide for preventive measures
and legal aid services to the underprivileged whose human rights
have been violated or need protection;
(4) Exercise visitorial powers over jails, prisons, or detention
facilities;
(5) Establish a continuing program of research, education, and
information to enhance respect for the primacy of human rights;
(6) Recommend to the Congress effective measures to promote
human rights and to provide for compensation to victims of
violations of human rights, or their families;
(7) Monitor the Philippine Government’s compliance with
international treaty obligations on human rights;
(8) 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;
(9) Request the assistance of any department, bureau, office, or
agency in the performance of its functions;
(10) Appoint its officers and employees in accordance with law;
and
(11) Perform such other duties and functions as may be provided
by law.”
As should at once be observed, only the first of the enumerated
powers and functions bears any resemblance to adjudication or
adjudgment. The Constitution clearly and categorically grants to
the Commission the power to investigate all forms of human
rights violations involving civil and political rights. It can exercise
that power on its own initiative or on complaint of any person. It
may exercise that power pursuant to such rules of procedure as it
may adopt and, in cases of violations of said rules, cite for
contempt in accordance with the Rules of Court. In the course of
any investigation conducted by it or under its authority, it may
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. It may also request the
assistance of any department, bureau, office, or agency in the
performance of its functions, in the conduct of its investigation or
in extending such remedy as
may be required by its findings.26
But it cannot try and decide cases (or hear and determine causes)
as courts of justice, or even quasi-judicial bodies do. To
investigate is not to adjudicate or adjudge. Whether in the
popular or the technical sense, these terms have well understood
and quite distinct meanings.
“Investigate” commonly understood, means to examine, explore,
inquire or delve or probe into, research on, study. The dictionary
definition of “investigate” is “to observe or study closely: inquire
into systematically: “to search or inquire into: xx to subject to an
official probe x x: to conduct an official inquiry."27 The purpose of
investigation, of course, is to discover, to find out, to learn, obtain
information. Nowhere included or intimated is the notion of
settling, deciding or resolving a controversy involved in the facts
inquired into by application of the law to the facts established by
the inquiry.
The legal meaning of “investigate” is essentially the same: "(t)o
follow up step by step by patient inquiry or observation, To trace
or track; to search into; to examine and inquire into with care and
accuracy; to find out by careful inquisition; examination; the
taking of evidence; a legal inquiry;"28 “to inquire; to make an
investigation,” “investigation” being in turn described as "(a)n
administrative function, the exercise of which ordinarily does not
require a hearing. 2 Am J2d Adm L Sec. 257; x x an inquiry,
judicial or otherwise, for the discovery and collection of
facts concerning a certain matter or matters."29
“Adjudicate,” commonly or popularly understood, means to
adjudge, arbitrate, judge, decide, determine, resolve, rule on,
settle. The dictionary defines the term as “to settle finally (the
rights and duties of the parties to a court case) on the merits of
issues raised: xx to pass judgment on: settle judicially: xx act as
judge."30 And “adjudge” means “to decide or rule upon as a
judge or with judicial or quasi-judicial powers: xx to award or
grant judicially in a case of controversy xx."31
In the legal sense, “adjudicate” means: “To settle in the exercise
of judicial authority. To determine finally. Synonymous with
adjudge in its strictest sense;” and “adjudge” means: “To pass on
judicially, to decide, settle or decree, or to sentence or condemn.
xx Implies a judicial determination of a fact, and the entry of a
judgment."32
Hence it is that the Commission on Human Rights, having merely
the power “to investigate,” cannot and should not “try and resolve
on the merits” (adjudicate) the matters involved in Striking
Teachers HRC Case No. 90–775, as it has announced it means to
do; and it cannot do so even if there be a claim that in the
administrative disciplinary proceedings against the teachers in
question, initiated and conducted by the DECS, their
human rights, or civil or political rights had been transgressed.
More particularly, the Commission has no power to “resolve on
the merits” the question of (a) whether or not the mass concerted
actions engaged in by the teachers constitute a strike and are
prohibited or otherwise restricted by law; (b) whether or not the
act of carrying on and taking part in those actions, and the failure
of the teachers to discontinue those actions and return to their
classes despite the order to this effect by the Secretary of
Education, constitute infractions of relevant rules and regulations
warranting administrative disciplinary sanctions, or are justified by
the grievances complained of by them; and (c) what where the
particular acts done by each individual teacher and what
sanctions, if any, may properly be imposed for said acts or
omissions,
These are matters undoubtedly and clearly within the original
jurisdiction of the Secretary of Education, being within the scope
of the disciplinary powers granted to him under the Civil Service
Law, and also, within the appellate jurisdiction of the Civil Service
Commission.
Indeed, the Secretary of Education has, as above narrated,
already taken cognizance of the issues and resolved them,33 and
it appears that appeals have been seasonably taken by the
aggrieved parties to the Civil Service Commission; and even this
Court itself has had occasion to pass upon said issues.34
Now, it is quite obvious that whether or not the conclusions
reached by the Secretary of Education in disciplinary cases are
correct and are adequately based on substantial evidence;
whether or not the proceedings themselves are void or defective
in not having accorded the respondents due process; and whether
or not the Secretary of Education had in truth committed “human
rights violations involving civil and political rights,” are matters
which may be passed upon and determined through a motion for
reconsideration addressed to the Secretary of Education himself,
and in the event of an adverse verdict, may be reviewed by the
Civil Service Commission and eventually by the Supreme Court.
The Commission on Human Rights simply has no place in this
scheme of things. It has no business intruding into the jurisdiction
and functions of the Education Secretary or the Civil Service
Commission. It has no business going over the same ground
traversed by the latter and making its own judgment on the
questions involved. This would accord success to what may well
have been the complaining teachers’ strategy to abort, frustrate
or negate the judgment of the Education Secretary in the
administrative cases against them which they anticipated would
be adverse to them.
This cannot be done. It will not be permitted to be done.
In any event, the investigation by the Commission on Human
Rights would serve no useful purpose. If its investigation should
result in conclusions contrary to those reached by Secretary
Cariño, it would have no power anyway to reverse the Secretary’s
conclusions. Reversal thereof can only by done by the Civil Service
Commission and lastly by this Court. The only thing the
Commission can do, if it concludes that Secretary Cariño was in
error, is to refer the matter to the appropriate Government
agency or tribunal for assistance; that would be the Civil Service
Commission.35 It cannot arrogate unto itself the appellate
jurisdiction of the Civil Service Commission.
WHEREFORE, the petition is granted; the Order of December
29,1990 is ANNULLED and SET ASIDE, and the respondent
Commission on Human Rights and the Chairman and Members
thereof are prohibited “to hear and resolve the case (i.e., Striking
Teachers HRC Case No. 90–775) on the merits.”
SO ORDERED.
Melencio-Herrera, Cruz, Feliciano, Bidin, Griño-Aquino,
Medialdea, Regalado, Davide, Jr. and Romero, JJ., concur.
Gutierrez, Jr., J., In the result. The teachers are not to be
blamed for exhausting all means to overcome the Secretary’s
arbitrary act of not reinstating them.
Paras, J., See separate concurrence.
Padilla, J., I dissent. I vote to dismiss the petition for the same
reasons stated in my earlier separate opinion filed in this case.
CONCURRING OPINION
PARAS, J., Concurring:
I concur with the brilliant and enlightening decision of Chief
Justice Andres R. Narvasa.
I wish to add however that the Commission on Human Rights
should concern itself in this case and in many other similar cases:
(1) not only with the human rights of striking teachers but also
the human rights of students and their parents;
(2) not only with the human rights of the accused but also the
human rights of the victims and the latter’s families;
(3) not only with the human rights of those who rise against the
government but also those who defend the same;
(4) not only the human rights of striking laborers but also those
who as a consequence of strikes may be laid off because of
financial repercussions.
The defense of human rights is not a monopoly of a government
agency (such as the Commission on Human Rights) nor the
monopoly of a group of lawyers defending so-called “human
rights” but the responsibility of ALL AGENCIES (governmental or
private) and of ALL LAWYERS, JUDGES, and JUSTICES.
Finally, the Commission should realize that while there are
“human rights”, there are also corresponding “human obligations”
Petition granted. Order annulled and set aside.
Republic vs. Sandiganbayan
G.R. No. 104768. July 21, 2003.*
REPUBLIC OF THE PHILIPPINES, petitioner, vs. SANDIGANBAYAN,
MAJOR GENERAL JOSEPHUS Q. RAMAS and ELIZABETH
DIMAANO, respondents.
Administrative Law; Public Officers; Ill-Gotten Wealth; Presidential
Commission on Good Government (PCGG); Armed Forces of the
Philippines; The PCGG can only investigate the unexplained
wealth and corrupt practices of AFP personnel who have either (a)
accumulated ill-gotten wealth during the administration of former
President Marcos by being the latter’s immediate family, relative,
subordinate or close associate, taking undue advantage of their
public office or using their powers, authority, influence,
connections or relationships, or (b) involved in other cases of
graft and corruption provided the President assigns their cases to
the PCGG.—The PCGG, through the AFP Board, can only
investigate the unexplained wealth and corrupt practices of AFP
personnel who fall under either of the two categories mentioned
in Section 2 of EO No. 1. These are: (1) AFP personnel who have
accumulated ill-gotten wealth during the administration of former
President Marcos by being the latter’s immediate family, relative,
subordinate or close associate, taking undue advantage of their
public office or using their powers, influence x x x; or (2) AFP
personnel involved in other cases of graft and corruption provided
the President assigns their cases to the PCGG.
Same; Same; Same; Same; Same; Statutory Construction;
Ejusdem Generis; Words and Phrases; Mere position held by a
military officer does not automatically make him a “subordinate”
as this term is used in EO Nos. 1, 2, 14 and 14-A absent a
showing that he enjoyed close association with former President
Marcos; The term “subordinate” as used in EO Nos. 1 and 2 refers
to one who enjoys a close association with former President
Marcos and/or his wife, similar to the immediate family member,
relative and close associate in EO No. 1 and the close relative,
business association, dummy, agent or nominee in EO No. 2—
there must be a prima facie showing that the respondent
unlawfully accumulated wealth by virtue of his close association or
relation with former Pres. Marcos and/or his wife.—Mere position
held by a military officer does not automatically make him a
“subordinate” as this term is used in EO Nos. 1, 2, 14 and 14-A
absent a showing that he enjoyed close association with former
President Marcos. Migrino discussed this issue in this wise: A close
reading of EO No. 1 and related executive orders will readily show
what is contemplated within the term ‘subordinate.’ The Whereas
Clauses of EO No. 1 express the urgent need to recover the ill-
gotten wealth amassed by former President Ferdinand E. Marcos,
his immediate family, relatives, and close associates both here
and abroad. EO No. 2 freezes ‘all assets and properties in the
Philippines in which former President Marcos and/or his wife, Mrs.
Imelda Marcos, their close relatives, subordinates, business
associates, dummies, agents, or nominees have any interest or
participation.’ Applying the rule in statutory construction known as
ejusdem generis that is—‘[W]here general words follow an
enumeration of persons or things by words of a particular and
specific meaning, such general words are not to be construed in
their widest extent, but are to be held as applying only to persons
or things of the same kind or class as those specifically mentioned
[Smith, Bell & Co., Ltd. vs. Register of Deeds of Davao, 96 Phil.
53, 58, citing Black on Interpretation of Laws, 2nd Ed., 203].’
[T]he term “subordinate” as used in EO Nos. 1 & 2 refers to one
who enjoys a close association with former President Marcos
and/or his wife, similar to the immediate family member, relative,
and close associate in EO No. 1 and the close relative, business
associate, dummy, agent, or nominee in EO No. 2. x x x It does
not suffice, as in this case, that the respondent is or was a
government official or employee during the administration of
former President Marcos. There must be a prima facie showing
that the respondent unlawfully accumulated wealth by virtue of
his close association or relation with former Pres. Marcos and/or
his wife. (Emphasis supplied)
Same; Same; Same; Same; Same; Position alone as Commanding
General of the Philippine Army with the rank of Major General
does not suffice to make the occupant a “subordinate” of former
President Marcos for purpose of EO No. 1 and its amendments.—
Ramas’ position alone as Commanding General of the Philippine
Army with the rank of Major General does not suffice to make him
a “subordinate” of former President
Marcos for purposes of EO No. 1 and its amendments. The PCGG
has to provide a prima facie showing that Ramas was a close
associate of former President Marcos, in the same manner that
business associates, dummies, agents or nominees of former
President Marcos were close to him. Such close association is
manifested either by Ramas’ complicity with former President
Marcos in the accumulation of ill-gotten wealth by the deposed
President or by former President Marcos’ acquiescence in Ramas’
own accumulation of ill-gotten wealth if any.
Same; Same; Same; Same; Same; EO No. 1 created the PCGG for
a specific and limited purpose, and necessarily its powers must be
construed to address such specific and limited purpose.—Thus,
although the PCGG sought to investigate and prosecute private
respondents under EO Nos. 1, 2, 14 and 14-A, the result yielded a
finding of violation of Republic Acts Nos. 3019 and 1379 without
any relation to EO Nos. 1, 2, 14 and 14-A. This absence of
relation to EO No. 1 and its amendments proves fatal to
petitioner’s case. EO No. 1 created the PCGG for a specific and
limited purpose, and necessarily its powers must be construed to
address such specific and limited purpose.
Same; Same; Same; Same; Same; It is precisely a prima facie
showing that the ill-gotten wealth was accumulated by a
“subordinate” of former Pres. Marcos that vests jurisdiction on
PCGG.—Petitioner forgets that it is precisely a prima facie showing
that the ill-gotten wealth was accumulated by a “subordinate” of
former President Marcos that vests jurisdiction on PCGG. EO No. 1
clearly premises the creation of the PCGG on the urgent need to
recover all ill-gotten wealth amassed by former President Marcos,
his immediate family, relatives, subordinates and close associates.
Therefore, to say that such omission was not fatal is clearly
contrary to the intent behind the creation of the PCGG.
Same; Same; Same; Same; Same; The proper government
agencies, and not the PCGG, should investigate and prosecute
forfeiture petitions not falling under EO No. 1 and its
amendments.—The proper government agencies, and not the
PCGG, should investigate and prosecute forfeiture petitions not
falling under EO No. 1 and its amendments. The preliminary
investigation of unexplained wealth amassed on or before 25
February 1986 falls under the jurisdiction of the Ombudsman,
while the authority to file the corresponding forfeiture petition
rests with the Solicitor General. The Ombudsman Act or Republic
Act No. 6770 (“RA No. 6770”) vests in the Ombudsman the power
to conduct preliminary investigation and to file forfeiture
proceedings involving unexplained wealth amassed after 25
February 1986.
Same; Same; Same; Same; Same; Ombudsman; The PCGG
should have recommended the instant case to the Ombudsman
who has jurisdiction to conduct the preliminary investigation of
ordinary unexplained wealth and graft cases.—After the
pronouncements of the Court in Cruz, the PCGG still pursued this
case despite the absence of a prima facie finding that Ramas was
a “subordinate” of former President Marcos. The petition for
forfeiture filed with the Sandiganbayan should be dismissed for
lack of authority by the PCGG to investigate respondents since
there is no prima facie showing that EO No. 1 and its
amendments apply to respondents. The AFP Board Resolution and
even the Amended Complaint state that there are violations of RA
Nos. 3019 and 1379. Thus, the PCGG should have recommended
Ramas’ case to the Ombudsman who has jurisdiction to conduct
the preliminary investigation of ordinary unexplained wealth and
graft cases. As stated in Migrino: [But] in view of the patent lack
of authority of the PCGG to investigate and cause the prosecution
of private respondent for violation of Rep. Acts Nos. 3019 and
1379, the PCGG must also be enjoined from proceeding with the
case, without prejudice to any action that may be taken by the
proper prosecutory agency. The rule of law mandates that an
agency of government be allowed to exercise only the powers
granted to it.
Same; Same; Same; Same; Same; Actions; Jurisdictions, Waivers;
Where there is no jurisdiction to waive, as the PCGG cannot
exercise investigative or prosecutorial powers never granted to it,
then the respondent could not be deemed to have waived any
defect in the filing of the forfeiture petition by filing an answer
with counterclaim; Parties may raise lack of jurisdiction at any
stage of the proceeding.—Petitioner’s argument that private
respondents have waived any defect in the filing of the forfeiture
petition by submitting their respective Answers with counterclaim
deserves no merit as well. Petitioner has no jurisdiction over
private respondents. Thus, there is no jurisdiction to waive in the
first place. The PCGG cannot exercise investigative or
prosecutorial powers never granted to it. PCGG’s powers are
specific and limited. Unless given additional assignment by the
President, PCGG’s sole task is only to recover the ill-gotten wealth
of the Marcoses, their relatives and cronies. Without these
elements, the PCGG cannot claim jurisdiction over a case. Private
respondents questioned the authority and jurisdiction of the PCGG
to investigate and prosecute their cases by filing their Motion to
Dismiss as soon as they learned of the pronouncement of the
Court in Migrino. This case was decided on 30 August 1990, which
explains why private respondents only filed their Motion to
Dismiss on 8 October 1990. Nevertheless, we have held that the
parties may raise lack of jurisdiction at any stage of the
proceeding. Thus, we hold that there was no waiver of jurisdiction
in this case. Jurisdiction is vested by law and not by the parties to
an action.
Constitutional Law; Revolutionary Governments; Bill of Rights;
International Law; The resulting government following the EDSA
Revolution in February 1986 was indisputably a revolutionary
government bound by no constitution or legal limitations except
treaty obligations that the revolutionary government, as the de
jure government in the Philippines, assumed under international
law.—The EDSA Revolution took place on 23-25 February 1986.
As succinctly stated in President Aquino’s Proclamation No. 3
dated 25 March 1986, the EDSA Revolution was “done in defiance
of the provisions of the 1973 Constitution.” The resulting
government was indisputably a revolutionary government bound
by no constitution or legal limitations except treaty obligations
that the revolutionary government, as thede jure government in
the Philippines, assumed under international law.
Same; Same; Same; During the interregnum—i.e., after the actual
and effective take-over of power by the revolutionary government
up to 24 March 1986 (immediately before the adoption of the
Provisional Constitution)—a person could not invoke any
exclusionary right under a Bill of Rights because there was neither
a constitution nor a Bill of Rights then.—We hold that the Bill of
Rights under the 1973 Constitution was not operative during the
interregnum. However, we rule that the protection accorded to
individuals under the Covenant and the Declaration remained in
effect during the interregnum. During the interregnum, the
directives and orders of the revolutionary government were the
supreme law because no constitution limited the extent and scope
of such directives and orders. With the abrogation of the 1973
Constitution by the successful revolution, there was no municipal
law higher than the directives and orders of the revolutionary
government. Thus, during the interregnum, a person could not
invoke any exclusionary right under a Bill of Rights because there
was neither a constitution nor a Bill of Rights during the
interregnum.
Same; Same; Same; Sequestration Orders; To hold that the Bill of
Rights under the 1973 Constitution remained operative during the
interregnum would render void all sequestration orders issued by
the PCGG before the adoption of the Freedom Constitution.—To
hold that the Bill of Rights under the 1973 Constitution remained
operative during the interregnum would render void all
sequestration orders issued by the Philippine Commission on Good
Government (“PCGG”) before the adoption of the Freedom
Constitution. The sequestration orders, which direct the freezing
and even the take-over of private property by mere executive
issuance without judicial action, would violate the due process
and search and seizure clauses of the Bill of Rights. During the
interregnum, the government in power was concededly a
revolutionary government bound by no constitution. No one could
validly question the sequestration orders as violative of the Bill of
Rights because there was no Bill of Rights during the
interregnum. However, upon the adoption of the Freedom
Constitution, the sequestered companies assailed the
sequestration orders as contrary to the Bill of Rights of the
Freedom Constitution.
Same; Same; Same; International Law; International Covenant on
Civil and Political Rights (“Covenant”); Universal Declaration of
Human Rights (“Declaration”); Even during the interregnum the
Filipino people continued to enjoy, under the Covenant and the
Declaration, almost the same rights found in the Bill of Rights of
the 1973 Constitution.—Thus, to rule that the Bill of Rights of the
1973 Constitution remained in force during the interregnum,
absent a constitutional provision excepting sequestration orders
from such Bill of Rights, would clearly render all sequestration
orders void during the interregnum. Nevertheless, even during the
interregnum the Filipino people continued to enjoy, under the
Covenant and the Declaration, almost the same rights found in
the Bill of Rights of the 1973 Constitution. The revolutionary
government, after installing itself as the de jure government,
assumed responsibility for the State’s good faith compliance with
the Covenant to which the Philippines is a signatory. Article 2(1)
of the Covenant requires each signatory State “to respect and to
ensure to all individuals within its territory and subject to its
jurisdiction the rightsrecognized in the present Covenant.” Under
Article 17(1) of the Covenant, the revolutionary government had
the duty to insure that “[n]o one shall be subjected to arbitrary or
unlawful interference with his privacy, family, home or
correspondence.” The Declaration, to which the Philippines is also
a signatory, provides in its Article 17(2) that “[n]o one shall be
arbitrarily deprived of his property.” Although the signatories to
the Declaration did not intend it as a legally binding document,
being only a declaration, the Court has interpreted the Declaration
as part of the generally accepted principles of international law
and binding on the State. Thus, the revolutionary government
was also obligated under international law to observe the rights of
individuals under the Declaration.
Same; Same; Same; Same; Same; The Declaration is part of
customary international law, and that Filipinos as human beings
are proper subjects of the rules of international law laid down in
the Covenant.—The revolutionary government did not repudiate
the Covenant or the Declaration during the interregnum. Whether
the revolutionary government could have repudiated all its
obligations under the Covenant or the Declaration is another
matter and is not the issue here. Suffice it to say that the Court
considers the Declaration as part of customary international law,
and that Filipinos as human beings are proper subjects of the
rules of international law laid down in the Covenant. The fact is
the revolutionary government did not repudiate the Covenant or
the Declaration in the same way it repudiated the 1973
Constitution. As the de jure government, the revolu-
tionary government could not escape responsibility for the State’s
good faith compliance with its treaty obligations under
international law.
Same; Same; Same; Same; Same; It was only upon the adoption
of the Provisional Constitution on 25 March 1986 that the
directives and orders of the revolutionary government became
subject to a higher municipal law that, if contravened, rendered
such directives and orders void.—It was only upon the adoption of
the Provisional Constitution on 25 March 1986 that the directives
and orders of the revolutionary government became subject to a
higher municipal law that, if contravened, rendered such
directives and orders void. The Provisional Constitution adopted
verbatim the Bill of Rights of the 1973 Constitution. The
Provisional Constitution served as a self-limitation by the
revolutionary government to avoid abuses of the absolute powers
entrusted to it by the people.
Searches and Seizures; Search Warrants; A raiding team exceeds
its authority when it seizes items not included in the search
warrant unless contraband per se.—It is obvious from the
testimony of Captain Sebastian that the warrant did not include
the monies, communications equipment, jewelry and land titles
that the raiding team confiscated. The search warrant did not
particularly describe these items and the raiding team confiscated
them on its own authority. The raiding team had no legal basis to
seize these items without showing that these items could be the
subject of warrantless search and seizure. Clearly, the raiding
team exceeded its authority when it seized these items. The
seizure of these items was therefore void, and unless these items
are contraband per se, and they are not, they must be returned to
the person from whom the raiding seized them. However, we do
not declare that such person is the lawful owner of these items,
merely that the search and seizure warrant could not be used as
basis to seize and withhold these items from the possessor. We
thus hold that these items should be returned immediately to
Dimaano.
PUNO, J., Separate Opinion:
Political Law; Constitutional Law; Legal Philosophy; Revolutionary
Governments; The question of whether the Filipinos were bereft
of fundamental rights during the one month interregnum between
February 26 and March 24, 1986 is not as perplexing as the
question of whether the world was without a God in the three
days that God the Son descended into the dead before He rose to
life.—While I concur in the result of the ponencia of Mr. Justice
Carpio, the ruling on whether or not private respondent Dimaano
could invoke her rights against unreasonable search and seizure
and to the exclusion of evidence resulting therefrom compels this
humble opinion. The ponencia states that “(t)he correct issue is
whether the Bill of Rights was operative during the interregnum
from February 26, 1986 (the day Corazon C. Aquino took her oath
as President) to March 24, 1986
(immediately before the adoption of the Freedom
Constitution).”The majority holds that the Bill of Rights was not
operative, thus private respondent Dimaano cannot invoke the
right against unreasonable search and seizure and the
exclusionary right as her house was searched and her properties
were seized during the interregnum or on March 3, 1986. My
disagreement is not with the ruling that the Bill of Rights was not
operative at that time, but with the conclusion that the private
respondent has lost and cannot invoke the right against
unreasonable search and seizure and the exclusionary right. Using
a different lens in viewing the problem at hand, I respectfully
submit that the crucial issue for resolution is whether she can
invoke these rights in the absence of a constitution under the
extraordinary circumstances after the 1986 EDSA Revolution. The
question boggles the intellect, and is interesting, to say the least,
perhaps even to those not half-interested in the law. But the
question of whether the Filipinos were bereft of fundamental
rights during the one month interregnum is not as perplexing as
the question of whether the world was without a God in the three
days that God the Son descended into the dead before He rose to
life. Nature abhors a vacuum and so does the law.
Same; Same; Same; Natural Law; With the establishment of civil
government and a constitution, there arises a conceptual
distinction between natural rights and civil rights, difficult though
to define their scope and delineation.—With the establishment of
civil government and a constitution, there arises a conceptual
distinction between natural rights and civil rights,difficult though
to define their scope and delineation. It has been proposed that
natural rights are those rights that “appertain to man in right of
his existence.” These were fundamental rights endowed by God
upon human beings, “all those rights of acting as an individual for
his own comfort and happiness, which are not injurious to the
natural rights of others.” On the other hand, civil rights are those
that “appertain to man in right of his being a member of society.”
These rights, however, are derived from the natural rights of
individuals since: “Man did not enter into society to become worse
off than he was before, nor to have fewer rights than he had
before, but to have those rights better secured. His natural rights
are the foundation of all his rights.” Civil rights, in this sense,
were those natural rights—particularly rights to security and
protection—which by themselves, individuals could not safeguard,
rather requiring the collective support of civil society and
government, Thus, it is said: “Every civil right has for its
foundation, some natural right pre-existing in the individual, but
to the enjoyment of which his individual power is not, in all cases,
sufficiently competent.”
Same; Same; Same; Same; Words and Phrases; The distinction
between natural and civil rights is “between that class of natural
rights which man retains after entering into society, and those
which he throws into the common stock as a member of
society.”—The distinction between
natural and civil rights is “between that class of natural rights
which man retains after entering into society, and those which he
throws into the common stock as a member of society.” The
natural rights retained by the individuals after entering civil
society were “all the intellectual rights, or rights of the mind,” i.e.,
the rights to freedom of thought, to freedom of religious belief
and to freedom of expression in its various forms. The individual
could exercise these rights without government assistance, but
government has the role of protecting these natural rights from
interference by others and of desisting from itself infringing such
rights. Government should also enable individuals to exercise
more effectively the natural rights they had exchanged for civil
rights—like the rights to security and protection—when they
entered into civil society.
Same; Same; Same; Same; Same; “Natural Rights” and “Civil
Rights,” Distinguished.—American natural law scholars in the
1780s and early 1790s occasionally specified which rights were
natural and which were not. On the Lockean assumption that the
state of nature was a condition in which all humans were equally
free from subjugation to one another and had no common
superior, American scholars tended to agree that natural liberty
was the freedom of individuals in the state of nature. Natural
rights were understood to be simply a portion of this
undifferentiated natural liberty and were often broadly
categorized as the rights to life, liberty, and property; or life,
liberty and the pursuit of happiness. More specifically, they
identified as natural rights the free exercise of religion, freedom of
conscience, freedom of speech and press, right to self-defense,
right to bear arms, right to assemble and right to one’s
reputation. In contrast, certain other rights, such as habeas
corpus and jury rights, do not exist in the state of nature,but exist
only under the laws of civil government or the constitution
because they are essential for restraining government. They are
called civil rights not only in the sense that they are protected by
constitutions or other laws, but also in the sense that they are
acquired rights which can only exist under civil government. In his
Constitutional Law,Black states that natural rights may be used to
describe those rights which belong to man by virtue of his nature
and depend upon his personality. “His existence as an individual
human being, clothed with certain attributes, invested with certain
capacities, adapted to certain kind of life, and possessing a certain
moral and physical nature, entitles him, without the aid of law, to
such rights as are necessary to enable him to continue his
existence, develop his faculties, pursue and achieve his destiny.”
An example of a natural right is the right to life. In an organized
society, natural rights must be protected by law, “and although
they owe to the law neither their existence nor their sacredness,
yet they are effective only when recognized and sanctioned by
law.”Civil rights include natural rights as they are taken into the
sphere of law. However, there are civil rights which are not
natural rights such as the right of trial by jury. This right is not
founded in the nature of man, nor
does it depend on personality, but it falls under the definition of
civil rights which are the rights secured by the constitution to all
its citizens or inhabitants not connected with the organization or
administration of government which belong to the domain of
political rights. “Natural rights are the same all the world over,
though they may not be given the fullest recognition under all
governments. Civil rights which are not natural rights will vary in
different states or countries.”
Same; Same; Same; Same; Same; Similar to natural rights and
civil rights, human rights as the refurbished idea of natural right in
the 1940s, eludes definition—the usual definition that is the right
which inheres in persons from the fact of their humanity
seemingly begs the question.—Similar to natural rights and civil
rights, human rights as the refurbished idea of natural right in the
1940s, eludes definition. The usual definition that it is the right
which inheres in persons from the fact of their humanity
seemingly begs the question. Without doubt, there are certain
rights and freedoms so fundamental as to be inherent and natural
such as the integrity of the person and equality of persons before
the law which should be guaranteed by all constitutions of all
civilized countries and effectively protected by their laws. It is
nearly universally agreed that some of those rights are religious
toleration, a general right to dissent, and freedom from arbitrary
punishment. It is not necessarily the case, however, that what the
law guarantees as a human right in one country should also be
guaranteed by law in all other countries. Some human rights
might be considered fundamental in some countries, but not in
others. For example, trial by jury which we have earlier cited as
an example of a civil right which is not a natural right, is a basic
human right in the United States protected by its constitution, but
not so in Philippine jurisdiction. Similar to natural rights, the
definition of human rights is derived from human nature, thus
understandably not exact. The definition that it is a “right which
inheres in persons from the fact of their humanity,” however, can
serve as a guideline to identify human rights. It seems though
that the concept of human rights is broadest as it encompasses a
human person’s natural rights (e.g., religious freedom) and civil
rights created by law (e.g. right to trial by jury).
Same; Same; Same; Bill of Rights; Though the Tydings-McDuffie
law mandated a republican constitution and the inclusion of a Bill
of Rights, with or without such mandate, the Constitution would
have nevertheless been republican because the Filipinos were
satisfied with their experience of a republican government—a Bill
of Rights would have nonetheless been also included because the
people had been accustomed to the role of a Bill of Rights in the
past organic acts.—Aside from the heavy American influence, the
Constitution also bore traces of the Malolos Constitution, the
German Constitution, the Constitution of the Republic of Spain,
the Mexican Constitution, and the Constitutions of several South
American countries, and
the English unwritten constitution. Though the Tydings-McDuffie
law mandated a republican constitution and the inclusion of a Bill
of Rights, with or without such mandate, the Constitution would
have nevertheless been republican because the Filipinos were
satisfied with their experience of a republican government; a Bill
of Rights would have nonetheless been also included because the
people had been accustomed to the role of a Bill of Rights in the
past organic acts.
Same; Same; Same; Same; Because of the wide-scaled violation
of human rights during the dictatorship, the 1987 Constitution
contains of Bill of Rights which more jealously safeguards the
people’s “fundamental liberties in the essence of a constitutional
democracy.”—Pursuant to the Freedom Constitution, the 1986
Constitutional Commission drafted the 1987 Constitution which
was ratified and became effective on February 2, 1987. As in the
1935 and 1973 Constitutions, it retained a republican system of
government, but emphasized and created more channels for the
exercise of the sovereignty of the people through recall, initiative,
referendum and plebiscite. Because of the wide-scale violation of
human rights during the dictatorship, the 1987 Constitution
contains a Bill of Rights which more jealously safeguards the
people’s “fundamental liberties in the essence of a constitutional
democracy,” in the words of ConCom delegate Fr. Joaquin Bernas,
S.J. It declares in its state policies that “(t)he state values the
dignity of every human person and guarantees full respect for
human rights.” In addition, it has a separate Article on Social
Justice and Human Rights, under which, the Commission on
Human Rights was created.
Same; Same; Same; Same; Judgments; Legal Research;
Considering the American model and origin of the Philippine
constitution, it is not surprising that Filipino jurist and legal
scholars define and explain the nature of the Philippine
constitution in similar terms that American constitutional law
scholars explain their constitution.—Considering the American
model and origin of the Philippine constitution, it is not surprising
that Filipino jurists and legal scholars define and explain the
nature of the Philippine constitution in similar terms that American
constitutional law scholars explain their constitution. Chief Justice
Fernando, citing Laski, wrote about the basic purpose of a civil
society and government, viz.: “The basic purpose of a State,
namely to assure the happiness and welfare of its citizens is kept
foremost in mind. To paraphrase Laski, it is not an end in itself
but only a means to an end, the individuals composing it in their
separate and identifiable capacities having rights which must be
respected. It is their happiness then, and not its interest, that is
the criterion by which its behavior is to be judged; and it is their
welfare, and not the force at its command, that sets the limits to
the authority it is entitled to exercise.” (emphasis supplied)
Same; Same; Same; Same; Searches and Seizures; The power to
search in England was first used as an instrument to oppress
objectionable publications.—The power to search in England was
first used as an instrument to oppress objectionable publications.
Not too long after the printing press was developed, seditious and
libelous publications became a concern of the Crown, and a broad
search and seizure power developed to suppress these
publications. General warrants were regularly issued that gave all
kinds of people the power to enter and seize at their discretion
under the authority of the Crown to enforce publication licensing
statutes. In 1634, the ultimate ignominy in the use of general
warrants came when the early “great illuminary of the common
law,” and most influential of the Crown’s opponents, Sir Edward
Coke, while on his death bed, was subjected to a ransacking
search and the manuscripts of his Institutes were seized and
carried away as seditious and libelous publications.
Same; Same; Same; Same; Same; Right to Privacy; From Boyd
vs. United States, 116 US 616, 625 (1885), it may be derived that
our own Constitutional guarantee against unreasonable searches
and seizures, which is an almost exact copy of the Fourth
Amendment, seeks to protect rights to security of person and
property as well as privacy in one’s home and possessions.—
When the Convention patterned the 1935 Constitution’s guarantee
against unreasonable searches and seizures after the Fourth
Amendment, the Convention made specific reference to the Boyd
case and traced the history of the guarantee against unreasonable
search and seizure back to the issuance of general warrants and
writs of assistance in England and the American colonies. From
the Boyd case, it may be derived that our own Constitutional
guarantee against unreasonable searches and seizures, which is
an almost exact copy of the Fourth Amendment, seeks to protect
rights to security of person and property as well as privacy in
one’s home and possessions.
Same; Same; Same; Same; Same; Same; While there has been a
shift in focus of the Fourth Amendment in American jurisdiction,
from protection of the individual from arbitrary and oppressive
conduct to protection of privacy rather that property, the essence
of his right in Philippine jurisdiction has consistently been
understood as respect for one’s personality, property, home
privacy.—In the United States, jurisprudence on the Fourth
Amendment continued to grow from the Boyd case. The United
States Supreme Court has held that the focal concern of the
Fourth Amendment is to protect the individual from arbitrary and
oppressive official conduct. It also protects the privacies of life
and the sanctity of the person from such interference. In later
cases, there has been a shift in focus: it has been held that the
principal purpose of the guarantee is the protection of privacy
rather than property, “[f)or the Fourth Amendment protects
people, not places.” The tests that have more recently been
formulated in interpreting the provision focus on privacy rather
than intru-
sion of property such as the “constitutionally protected area” test
in the 1961 case of Silverman v. United States and the
“reasonable expectation of privacy” standard in Katz v. United
States which held that the privacy of communication in a public
telephone booth comes under the protection of the Fourth
Amendment. Despite the shift in focus of the Fourth Amendment
in American jurisdiction, the essence of this right in Philippine
jurisdiction has consistently been understood as respect for one’s
personality, property, home, and privacy.
Same; Same; Same; Same; Same; Same; Exclusionary Rule; It is
said that the exclusionary rule has three purposes—the major and
the most often invoked is the deterrence of unreasonable
searches and seizures, the second is the “imperative of judicial
integrity,” and the third is the more recent purpose pronounced
by some members of the United States Supreme Court which is
that “of assuring the people—all potential victims of unlawful
government conduct—that the government would not profit from
its lawless behavior, thus minimizing the risk of seriously
undermining popular trust in government.”—It is said that the
exclusionary rule has three purposes. The major and most often
invoked is the deterrence of unreasonable searches and seizures
as stated in Elkins v. United States and quoted in Mapp: “(t)he
rule is calculated to prevent, not repair. Its purpose is to deter—to
compel respect for constitutional guaranty in the only effective
available way—by removing the incentive to disregard it.” Second
is the “imperative of judicial integrity,” i.e., that the courts do not
become “accomplices in the willful disobedience of a Constitution
they are sworn to uphold . . . by permitting unhindered
governmental use of the fruits of such invasions. . . A ruling
admitting evidence in a criminal trial . . . has the necessary effect
of legitimizing the conduct which produced the evidence, while an
application of the exclusionary rule withholds the constitutional
imprimatur.” Third is the more recent purpose pronounced by
some members of the United States Supreme Court which is that
“of assuring the people—all potential victims of unlawful
government conduct—that the government would not profit from
its lawless behavior, thus minimizing the risk of seriously
undermining popular trust in government.” The focus of concern
here is not the police but the public. This third purpose is implicit
in the Mappdeclaration that “no man is to be conceived on
unconstitutional evidence.”
Same; Same; Same; Same; Same; Same; Same; Invoking natural
law because the history, tradition and moral fiber of a people
indubitably show adherence to it is an altogether different story,
for ultimately, in our political and legal tradition, the people are
the source of all government authority and the courts are their
creation—while it may be argued that the choice of a school of
legal thought is a matter of opinion, history is a fact against which
one cannot argue.—In deciding a case, invoking natural law as
solely a matter of the judge’s personal preference, invites criticism
that the
decision is a performative contradiction and thus self-defeating.
Critics would point out that while the decision invokes natural law
that abhors arbitrariness, that same decision is tainted with what
it abhors as it stands on the judge’s subjective and arbitrary
choice of a school of legal thought. Just as one judge will fight
tooth and nail to defend the natural law philosophy, another
judge will match his fervor in defending a contrary philosophy he
espouses. However, invoking natural law because the history,
tradition and moral fiber of a people indubitably show adherence
to it is an altogether different story, for ultimately, in our political
and legal tradition, the people are the source of all government
authority, and the courts are their creation. While it may be
argued that the choice of a school of legal thought is a matter of
opinion, history is a fact against which one cannot argue—and it
would not be turning somersault with history to say that the
American Declaration of Independence and the consequent
adoption of a constitution stood on a modern natural law theory
foundation as this is “universally taken for granted by writers on
government.”
Same; Same; Same; Same; Same; Same; Same; It could
confidently be asserted that the spirit and letter of the 1935
Constitution, at least insofar as the system of government and the
Bill of Rights were concerned, still prevailed at the time of the
EDSA Revolution.—It is also well-settled in Philippine history that
the American system of government and constitution were
adopted by our 1935 Constitutional Convention as a model of our
own republican system of government and constitution. In the
words of Claro M. Recto, President of the Convention, the 1935
Constitution is “frankly an imitation of the American Constitution.”
Undeniably therefore, modern natural law theory, specifically
Locke’s natural rights theory, was used by the Founding Fathers
of the American constitutional democracy and later also used by
the Filipinos. Although the 1935 Constitution was revised in 1973,
minimal modifications were introduced in the 1973 Constitution
which was in force prior to the EDSA Revolution. Therefore, it
could confidently be asserted that the spirit and letter of the 1935
Constitution, at least insofar as the system of government and the
Bill of Rights were concerned, still prevailed at the time of the
EDSA Revolution. Even the 1987 Constitution ratified less than a
year from the EDSA Revolution retained the basic provisions of
the 1935 and 1973 Constitutions on the system of government
and the Bill of Rights, with the significant difference that it
emphasized respect for and protection of human rights and
stressed that sovereignty resided in the people and all
government authority emanates from them.
Same; Same; Same; Same; Same; Same; Same; Although
Filipinos have given democracy its own Filipino face, it is
undeniable that our political and legal institutions are American in
origin; When government not only defaults in its duty but itself
violates the very rights it was established
to protect, it forfeits its authority to demand obedience of the
governed and could be replaced with one to which the people
consent, and this highest of rights the Filipino people exercised in
the EDSA Revolution of February 1986.—Two facts are easily
discernible from our constitutional history. First, the Filipinos are a
freedom-loving race with high regard for their fundamental and
natural rights. No amount of subjugation or suppression, by rulers
with the same color as the Filipinos’ skin or otherwise, could
obliterate their longing and aspiration to enjoy these rights.
Without the people’s consent to submit their natural rights to the
ruler, these rights cannot forever be quelled, for like water,
seeking its own course and level, they will find their place in the
life of the individual and of the nation; natural right, as part of
nature, will take its own course. Thus, the Filipinos fought for and
demanded these rights from the Spanish and American colonizers,
and in fairly recent history, from an authoritarian ruler. They
wrote these rights in stone in every constitution they crafted
starting from the 1899 Malolos Constitution. Second, although
Filipinos have given democracy its own Filipino face, it is
undeniable that our political and legal institutions are American in
origin. The Filipinos adopted the republican form of government
that the Americans introduced and the Bill of Rights they
extended to our islands, and were the keystones that kept the
body politic intact. These institutions sat well with the Filipinos
who had long yearned for participation in government and were
jealous of their fundamental and natural rights. Undergirding
these institutions was the modern natural law theory which
stressed natural rights in free, independent and equal individuals
who banded together to form government for the protection of
their natural rights to life, liberty and property. The sole purpose
of government is to promote, protect and preserve these rights.
And when government not only defaults in its duty but itself
violates the very rights it was established to protect, it forfeits its
authority to demand obedience of the governed and could be
replaced with one to which the people consent. The Filipino
people exercised this highest of rights in the EDSA Revolution of
February 1986.
Same; Same; Same; Same; Same; Same; Same; Revolutionary
Governments; It is implicit from the pledge in Proclamation No. 1
dated February 25, 1986 that the president and the vice president
pledged “to do justice to the numerous victims of human rights
violations” that the new government recognized and respected
human rights.—I shall first deal with the right against
unreasonable search and seizure. On February 25, 1986, the new
president, Corazon Aquino, issued Proclamation No. 1 where she
declared that she and the vice president were taking power in the
name and by the will of the Filipino people and pledged “to do
justice to the numerous victims of human rights violations.” It is
implicit from this pledge that the new government recognized and
respected human rights. Thus, at the time of the search on March
3, 1986, it may be asserted that the government had the duty, by
its own pledge, to uphold human rights.
This presidential issuance was what came closest to a positive law
guaranteeing human rights without enumerating them.
Nevertheless, even in the absence of a positive law granting
private respondent Dimaano the right against unreasonable
search and seizure at the time her house was raided, I
respectfully submit that she can invoke her natural right against
unreasonable search and seizure.
Same; Same; Same; Same; Same; Same; Same; The rights
against unreasonable search and seizure is a core right implicit in
the natural right to life, liberty and property.—The right against
unreasonable search and seizure is a core right implicit in the
natural right to life, liberty and property. Our well-settled
jurisprudence that the right against unreasonable search and
seizure protects the people’s rights to security of person and
property, to the sanctity of the home, and to privacy is a
recognition of this proposition. 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 dates back even earlier
than the modern philosophers and the American and French
revolutions, but pervades the whole history of man. It touches
every aspect of man’s existence, thus it has been described, viz.:
“The right to personal security emanates in a person’s legal and
uninterrupted enjoyment of his life, his limbs, his body, his health,
and his reputation. It includes the right to exist, and the right to
enjoyment of life while existing, and it is invaded not only by a
deprivation of life but also of those things which are necessary to
the enjoyment of life according to the nature, temperament, and
lawful desires of the individual.”
Same; Same; Same; Same; Same; Same; Same; A natural right to
liberty indubitably includes the freedom to determine when and
how an individual will share the private part of his beings and the
extent of his sharing; Truly, the drapes of a man’s castle are but
an extension of the drapes on his body that cover the essentials—
in unreasonable searches and seizures, the prying eyes and the
invasive hands of the government prevent the individual from
enjoying his freedom to keep himself and to act undisturbed
within his zone of privacy.—A natural right to liberty indubitably
includes the freedom to determine when and how an individual
will share the private part of his being and the extent of his
sharing. And when he chooses to express himself, the natural
right to liberty demands that he should be given the liberty to be
truly himself with his family in his home, his haven of refuge
where he can “retreat from the cares and pressures, even at
times the oppressiveness of the outside world,” to borrow the
memorable words of Chief Justice Fernando. For truly, the drapes
of a man’s castle are but an extension of the drapes on his body
that cover the essentials. In unreasonable searches and seizures,
the prying eyes and the
invasive hands of the government prevent the individual from
enjoying his freedom to keep to himself and to act undisturbed
within his zone of privacy. Finally, indispensable to the natural
right to property is the right to one’s possessions. Property is a
product of one’s toil and might be considered an expression and
extension of oneself. It is what an individual deems necessary to
the enjoyment of his life. With unreasonable searches and
seizures, one’s property stands in danger of being rummaged
through and taken away. In sum, as pointed out in De Los Reyes,
persons are subjected to indignity by an unreasonable search and
seizure because at bottom, it is a violation of a person’s natural
right to life, liberty and property. It is this natural right which sets
man apart from other beings, which gives him the dignity of a
human being.
Same; Same; Same; Same; Same; Same; Same; A reflective
grasp of what it means to be human and how one should go
about performing the functions proper to his human nature can
only be done by the rational person himself in the confines of his
private space—only he himself in his own quiet time can examine
his life knowing that an unexamined life is not worth living.—It is
understandable why Filipinos demanded that every organic law in
their history guarantee the protection of their natural right against
unreasonable search and seizure and why the UDHR treated this
right as a human right. It is a right inherent in the right to life,
liberty and property; it is a right “appertain(ing) to man in right of
his existence,” a right that “belongs to man by virtue of his nature
and depends upon his personality,” and not merely a civil right
created and protected by positive law. The right to protect oneself
against unreasonable search and seizure, being a right
indispensable to the right to life, liberty and property, may be
derived as a conclusion from what Aquinas identifies as man’s
natural inclination to self-preservation and self-actualization. Man
preserves himself by leading a secure life enjoying his liberty and
actualizes himself as a rational and social being in choosing to
freely express himself and associate with others as well as by
keeping to and knowing himself. For after all, a reflective grasp of
what it means to be human and how one should go about
performing the functions proper to his human nature can only be
done by the rational person himself in the confines of his private
space. Only he himself in his own quiet time can examine his life
knowing that an unexamined life is not worth living.
Same; Same; Same; Same; Same; Same; Same; Revolutionary
Governments; A revolution is staged only for the most
fundamental of reasons—such as the violation of fundamental and
natural rights—for prudence dictated that “governments long
established should not be changed for light and transient
reasons.”—Every organic law the Filipinos established (the
Malolos, 1935, 1973, and 1987 Constitutions) and embraced (the
Instruction, Philippine Bill of 1902, and Jones Law) in the last
century included a provision guaranteeing the people’s right
against unrea-
sonable search and seizure because the people ranked this right
as fundamental and natural. Indeed, so fundamental and natural
is this right that the demand for it spurred the American
revolution against the English Crown. It resulted in the
Declaration of Independence and the subsequent establishment of
the American Constitution about 200 years ago in 1789. A
revolution is staged only for the most fundamental of reasons—
such as the violation of fundamental arid natural rights—for
prudence dictates that ‘governments long established should not
be changed for light and transient reasons.”
Same; Same; Same; Same; Same; Same; Same; Same;
Considering that the right against unreasonable search and
seizure is a natural right, the government cannot claim that a
person was not entitled to the right for the reason alone that
there was no constitution granting the right at the time the search
was conducted—this right precedes the constitution and does not
depend on positive law since it is part of natural rights; Even in
the absence of the constitution, individuals had a fundamental
and natural right against unreasonable search and seizure under
natural law.—Considering that the right against unreasonable
search and seizure is a natural right, the government cannot claim
that private respondent Dimaano is not entitled to the right for
the reason alone that there was no constitution granting the right
at the time the search was conducted. This right of the private
respondent precedes the constitution, and does not depend on
positive law. It is part of natural rights. A violation of this right
along with other rights stirred Filipinos to revolutions. It is the
restoration of the Filipinos’ natural rights that justified the
establishment of the Aquino government and the writing of the
1987 Constitution. I submit that even in the absence of a
constitution, private respondent Dimaano had a fundamental and
natural right against unreasonable search and seizure under
natural law.
Same; Same; Same; Same; Same; Same; Same; Same; The
exclusionary rule is likewise a natural right that can be invoked
even in the absence of a constitution guaranteeing such right; To
be sure, though, the status of the exclusionary right is a natural
right is admittedly not as indisputable as the right against
unreasonable searches and seizures which is firmly supported by
philosophy and deeply entrenched in history.—We now come to
the right to the exclusion of evidence illegally seized. From
Stonehill quoting Mapp, we can distill that the exclusionary rule in
both the Philippine and American jurisdictions is a freedom
“implicit in the concept of ordered liberty” for it is a necessary
part of the guarantee against unreasonable searches and
seizures, which in turn is “an essential part of the right to privacy”
that the Constitution protects. If the exclusionary rule were not
adopted, it would be to “grant the right (against unreasonable
search and seizure) but in reality to withhold its privilege and
enjoyment.” Thus, the inevitable conclusion is that the
exclusionary rule is likewise a
natural right that private respondent Dimaano can invoke even in
the absence of a constitution guaranteeing such right. To be sure,
the status of the exclusionary right as a natural right is admittedly
not as indisputable as the right against unreasonable searches
and seizures which is firmly supported by philosophy and deeply
entrenched in history. On a lower tier, arguments have been
raised on the constitutional status of the exclusionary right. Some
assert, on the basis of United States v. Calandra,that it is only a
“judicially-created remedy designed to safeguard Fourth
Amendment rights generally through its deterrent effect, rather
than a personal constitutional right of the party aggrieved.” Along
the same line, others contend that the right against unreasonable
search and seizure merely requires some effective remedy, and
thus Congress may abolish or limit the exclusionary right if it
could replace it with other remedies of a comparable or greater
deterrent effect. But these contentions have merit only if it is
conceded that the exclusionary rule is merely an optional remedy
for the purpose of deterrence.
Same; Same; Same; Same; Same; Same; Same; Same; Without
the strength of history and with philosophy alone left as a leg to
stand on, the exclusionary right’s status as a fundamental and
natural right stands on unstable ground—the conclusion that it
can be invoked even in the absence of a constitution also rests on
shifting sands.—Unlike in the right against unreasonable search
and seizure, however, history cannot come to the aid of the
exclusionary right. Compared to the right against unreasonable
search and seizure, the exclusionary right is still in its infancy
stage in Philippine jurisdiction, having been etched only in the
1973 Constitution after the 1967 Stonehill ruling which finally laid
to rest the debate on whether illegally seized evidence should be
excluded. In the United States, the exclusionary right’s genesis
dates back only to the 1885 Boyd case on the federal level, and to
the 1961 Mapp case in the state level. The long period of non-
recognition of the exclusionary right has not caused an upheaval,
much less a revolution, in both the Philippine and American
jurisdictions. Likewise, the UDHR, a response to violation of
human rights in a particular period in world history, did not
include the exclusionary right. It cannot confidently be asserted
therefore that history can attest to its natural right status. Without
the strength of history and with philosophy alone left as a leg to
stand on, the exclusionary right’s status as a fundamental and
natural right stands on unstable ground. Thus, the conclusion that
it can be invoked even in the absence of a constitution also rests
on shifting sands.
Same; Same; Same; Same; Same; Same; Same; Same; The
exclusionary right is available to someone who invoked it when it
was already guaranteed by the Freedom Constitution and the
1987 Constitution.—Be that as it may, the exclusionary right is
available to private respondent Dimaano as she invoked it when it
was already guaranteed by the Freedom Consti-
tution and the 1987 Constitution. The AFP Board issued its
resolution on
Ramas’ unexplained wealth only on July 27, 1987. The PCGG’s
petition for forfeiture against Ramas was filed on August 1, 1987
and was later amended to name the Republic of the Philippines as
plaintiff and to add private respondent Dimaano as co-defendant.
Following the petitioner’s stance upheld by the majority that the
exclusionary right is a creation of the Constitution, then it could
be invoked as a constitutional right on or after the Freedom
Constitution took effect on March 25, 1986 and later, when the
1987 Constitution took effect on February 2, 1987.
Same; Same; Same; Revolutionary Governments; I cannot believe
and so hold that the Filipinos during the one month from February
25 to March 24, 1986 were stripped naked of all their rights,
including their natural rights as human beings—with the
extraordinary circumstances before, during and after the EDSA
Revolution, the Filipinos simply found themselves without a
constitution, but certainly not without fundamental rights.—The
Filipino people have fought revolutions, by the power of the pen,
the strength of the sword and the might of prayer to claim and
reclaim their fundamental rights. They set these rights in stone in
every constitution they established. I cannot believe and so hold
that the Filipinos during that one month from February 25 to
March 24, 1986 were stripped naked of all their rights, including
their natural rights as human beings. With the extraordinary
circumstances before, during and after the EDSA Revolution, the
Filipinos simply found themselves without a constitution, but
certainly not without fundamental rights. In that brief one month,
they retrieved their liberties and enjoyed them in their rawest
essence, having just been freed from the claws of an authoritarian
regime. They walked through history with bare feet, unshod by a
constitution, but with an armor of rights guaranteed by the
philosophy and history of their constitutional tradition. Those
natural rights inhere in man and need not be granted by a piece
of paper.
Same; Same; Same; Same; The 1986 EDSA Revolution was
extraordinary, one that borders the miraculous—it was the first
revolution of its kind in Philippine history, and perhaps even in the
history of this planet—and fittingly, this separate opinion is the
first of its kind in this Court, where history and philosophy are
invoked not as aids in the interpretation of a positive law, but to
recognize a right not written in a papyrus but inheres in man as
man.—I wish to stress that I am not making the duty of the Court
unbearably difficult by taking it to task every time a right is
claimed before it to determine whether it is a natural right which
the government cannot diminish or defeat by any kind of positive
law or action. The Court need not always twice measure a law or
action, first utilizing the constitution and second using natural law
as a yardstick. However, the 1986 EDSA Revolution was
extraordinary, one that borders the miraculous. It was the first
revolution of its kind in Philippine history, and
perhaps even in the history of this planet. Fittingly, this separate
opinion is the first of its kind in this Court, where history and
philosophy are invoked not as aids in the interpretation of a
positive law, but to recognize a right not written in a papyrus but
inheres in man as man. The unnaturalness of the 1986 EDSA
revolution cannot dilute nor defeat the natural rights of man,
rights that antedate constitutions, rights that have been the
beacon lights of the law since the Greek civilization. Without
respect for natural rights, man cannot rise to the full height of his
humanity.
VITUG, J., Separate Opinion:
Political Law: Revolutionary Governments; Words and Phrases; A
revolution results in a complete overthrow of established
government and of the existing legal order; A rebellion or
insurrection may change policies, leadership, and the political
institution, but not the social structure and prevailing values; A
coup d’etat in itself changes leadership and perhaps policies but
not necessarily more extensive and intensive than that; A war of
independence is a struggle of one community against the rule by
an alien community and does not have to involve changes in the
social structure of either community.—A revolution is defined by
Western political scholars as being a “rapid fundamental and
violent domestic change in the dominant values and myths of a
society in its political institutions, social structure, leadership, and
government activity and policies.” A revolution results in a
complete overthrow of established government and of the existing
legal order. Notable examples would be the French, Chinese,
Mexican, Russian, and Cuban revolutions. Revolution, it is pointed
out, is to be distinguished from rebellion, insurrection, revolt,
coup, and war of independence. A rebellion or insurrection may
change policies, leadership, and the political institution, but not
the social structure and prevailing values. Acoup d’etat in itself
changes leadership and perhaps policies but not necessarily more
extensive and intensive than that. A war of independence is a
struggle of one community against the rule by an alien community
and does not have to involve changes in the social structure of
either community.
Same; Same; Proclamation No. 3 is an acknowledgment by the
Aquino government of the continued existence, subject to its
exclusions, of the 1973 Charter.—The proclamations issued, as
well as the Provisional Constitution enacted by the Aquino
administration shortly after being installed, have revealed the new
government’s recognition of and its intention to preserve the
provisions of the 1973 Constitution on individual rights.
Proclamation No. 1, dated 25 February 1986, has maintained that
“sovereignty resides in the people and all government authority
emanates from them.” It has expressed that the government
would be “dedicated to uphold justice, morality and decency in
government, freedom and democracy.” In lifting the suspension
of the privilege of the writ of habeas corpus
throughout the Philippines, for, among other reasons, the “Filipino
people have established a new government bound to the ideals of
genuine liberty and freedom for all,” Proclamation No. 2 of March
1986, has declared: “Now, therefore, I, Corazon C. Aquino,
President of the Philippines, by virtue of the powers vested in me
by the Constitution and the Filipino people, do hereby x x x lift the
suspension of the privilege of the writ of habeas corpus x x x.”
What Constitution could the proclamation have been referring to?
It could not have been the Provisional Constitution, adopted only
later on 25 March 1986 under Proclamation No. 3 which, in fact,
contains and attests to the new government’s commitment to the
“restoration of democracy” and “protection of basic rights,”
announcing that the “the provisions of Article I (National
Territory), Article III (Citizenship), Article IV (Bill ofRights), Article
V (Duties and Obligations of Citizens), and Article VI (Suffrage) of
the 1973 Constitution, as amended, (shall) remain in force and
effect,” (emphasis supplied), superseding only the articles on “The
Batasang Pambansa,” “The Prime Minister and the Cabinet,”
“Amendments,” and “Transitory Provisions.” Verily, Proclamation
No. 3 is an acknowledgment by the Aquino government of the
continued existence, subject to its exclusions, of the 1973
Charter.
Same; Public International Law; It is no longer correct to state
that the State could only be the medium between international
law and its own nationals, for the law has often fractured this link
as and when it fails in its purpose; At bottom, the Bill of Rights
(under the 1973 Constitution), during the interregnum from 26
February to 24 March 1986 remained in force and effect not only
because it was so recognized by the 1986 People Power but also
because the new government was bound by international law to
respect the Universal Declaration of Human Rights.—It might then
be asked whether an individual is a proper subject of international
law and whether he can invoke a provision of international law
against his own nation state. International law, also often referred
to as the law of nations, has in recent times been defined as that
law which is applicable to states in their mutual relations and to
individuals in their relations with states. The individual as the end
of the community of nations is a member of the community, and
a member has status and is not a mere object. It is no longer
correct to state that the State could only be the medium between
international law and its own nationals, for the law has often
fractured this link as and when it fails in its purpose. Thus, in the
areas of black and white slavery, human rights and protection of
minorities, and a score of other concerns over individuals,
international law has seen such individuals, being members of the
international community, as capable of invoking rights and duties
even against the nation State. At bottom, the Bill of Rights (under
the 1973 Constitution), during the interregnum from 26 February
to 24 March 1986 remained in force and effect not only because it
was so recognized by the 1986 People Power but also because
the new gov-
ernment was bound by international law to respect the Universal
Declaration of Human Rights.
TINGA, J., Separate Opinion:
Political Law; Revolutionary Governments; The Freedom
Constitution made the Bill of Rights in the 1973 Constitution
operable from the incipiency of the Aquino government.—Going
back to the specific question as to the juridical basis for the
nullification of the questioned confiscation, I respectfully maintain
that it is no less than the Freedom Constitution since it made the
Bill of Rights in the 1973 Constitution operable from the incipiency
of the Aquino government. In the well-publicized so-called “OIC
cases,” this Court issued an en bane resolution dismissing the
petitions and upholding the validity of the removal of the
petitioners who were all elected and whose terms of office under
the 1973 Constitution were to expire on June 30, 1986, on the
basis of Article III, Section 2 of the Freedom Constitution, which
reads: SEC. 2. All elective and appointive officials and employees
under the 1973 Constitution shall continue in office until otherwise
provided by proclamation or executive order or upon the
designation or appointment and qualification of their successors, if
such appointment is made within a period of one year from
February 25, 1986. This Court perforce extended retroactive
effect to the above-quoted provision as the petitions except one
were filed before the adoption of the Freedom Constitution on
March 25, 1986. That being the case, with greater reason should
the Bill of Rights in the 1973 Constitution be accorded retroactive
application pursuant to the Freedom Constitution.
Same; Same; It was unmistakable thrust of the Freedom
Constitution to bestow uninterrupted operability to the Bill of
Rights in the 1973 Constitution.—But the more precise statement
is that it was the unmistakable thrust of the Freedom Constitution
to bestow uninterrupted operability to the Bill of Rights in the
1973 Constitution. For one thing, the title itself of Proclamation
No. 3 which ordained the Freedom Constitution, as well as one of
the vital premises or whereas clauses thereof, adverts to the
“protection of the basic rights” of the people. For another, the
Freedom Constitution in Article 1, Section 1 mandates that the Bill
of Rights and other provisions of the Freedom Constitution
specified therein “remain in force and effect and are hereby
adopted in toto as part of this Provisional Constitution.”
Same; Same; Even if it is supposed that the Freedom Constitution
had no retroactive effect or it did not extend the effectivity of the
Bill of Rights in the 1973 Constitution, still there would be no void
in the municipal or domestic law at the time as far as the
observance of the fundamental right is concerned—the Bill of
Rights in the 1973 Constitution would still be in force,
independently of the Freedom Constitution, or at least the pro-
33
visions thereof proscribing unreasonable search and seizure and
excluding evidence in violation of the proscription.—Of course,
even if it is supposed that the Freedom Constitution had no
retroactive effect or it did not extend the effectivity of the Bill of
Rights in the 1973 Constitution, still there would be no void in the
municipal or domestic law at the time as far as the observance of
fundamental rights is concerned. The Bill of Rights in the 1973
Constitution would still be in force, independently of the Freedom
Constitution, or at least the provisions thereof proscribing
unreasonable search and seizure and excluding evidence in
violation of the proscription. Markedly departing from the typical,
the revolutionary government installed by President Aquino was a
benign government. It had chosen to observe prevailing
constitutional restraints. An eloquent proof was the fact that
through the defunct Philippine Constabulary, it applied for a
search warrant and conducted the questioned search and seizure
only after obtaining the warrant. Furthermore, President Aquino
definitely pledged in her oath of office to uphold and defend the
Constitution, which undoubtedly was the 1973 Constitution,
including the Bill of Rights thereof.
PETITION for review on certiorari of the resolutions of the
Sandiganbayan.
The facts are stated in the opinion of the Court.
The Solicitor General for petitioner.
Luisito Baluyut for Ramas.
Armando S. Banaag for respondent Dimaano.
CARPIO, J.:
The Case
Before this Court is a petition for review on certiorari seeking to
set aside the Resolutions of the Sandiganbayan (First Division)1
dated 18 November 1991 and 25 March 1992 in Civil Case No.
0037. The first Resolution dismissed petitioner’s Amended
Complaint and ordered the return of the confiscated items to
respondent Elizabeth Dimaano, while the second Resolution
denied petitioner’s Motion for Reconsideration. Petitioner prays for
the grant of the reliefs sought in its Amended Complaint, or in the
alternative, for the remand of this case to the Sandiganbayan
(First Divi-
sion) for further proceedings allowing petitioner to complete the
presentation of its evidence.
Antecedent Facts
Immediately upon her assumption to office following the
successful EDSA Revolution, then President Corazon C. Aquino
issued Executive Order No. 1 (“EO No. 1”) creating the
Presidential Commission on Good Government (“PCGG”). EO No. 1
primarily tasked the PCGG to recover all ill-gotten wealth of
former President Ferdinand E. Marcos, his immediate family,
relatives, subordinates and close associates. EO No. 1 vested the
PCGG with the power “(a) to conduct investigation as may be
necessary in order to accomplish and carry out the purposes of
this order” and the power “(b) to promulgate such rules and
regulations as may be necessary to carry out the purpose of this
order.” Accordingly, the PCGG, through its then Chairman Jovito
R. Salonga, created an AFP Anti-Graft Board (“AFP Board”) tasked
to investigate reports of unexplained wealth and corrupt practices
by AFP personnel, whether in the active service or retired.2
Based on its mandate, the AFP Board investigated various reports
of alleged unexplained wealth of respondent Major General
Josephus Q. Ramas (“Ramas”). On 27 July 1987, the AFP Board
issued a Resolution on its findings and recommendation on the
reported unexplained wealth of Ramas. The relevant part of the
Resolution reads:
III. FINDINGS and EVALUATION:
Evidence in the record showed that respondent is the owner of a
house and lot located at 15-Yakan St., La Vista, Quezon City. He
is also the owner of a house and lot located in Cebu City. The lot
has an area of 3,327 square meters.
The value of the property located in Quezon City may be
estimated modestly at P700,000.00.
The equipment/items and communication facilities which were
found in the premises of Elizabeth Dimaano and were confiscated
by elements of the PC Command of Batangas were all covered by
invoice receipt in the name of CAPT. EFREN SALHDO, RSO
Command Coy, MSC, PA. These
in the possession of Elizabeth Dimaano if not given for her use by
respondent Commanding General of the Philippine Army.
Aside from the military equipment/items and communications
equipment, the raiding team was also able to confiscate money in
the amount of P2,870,000.00 and $50,000 US Dollars in the
house of Elizabeth Dimaano on 3 March 1986.
Affidavits of members of the Military Security Unit, Military
Security Command, Philippine Army, stationed at Camp Eldridge,
Los Baños, Laguna, disclosed that Elizabeth Dimaano is the
mistress of respondent. That respondent usually goes and stays
and sleeps in the alleged house of Elizabeth Dimaano in Barangay
Tengga, Itaas, Batangas City and when he arrives, Elizabeth
Dimaano embraces and kisses respondent. That on February 25,
1986, a person who rode in a car went to the residence of
Elizabeth Dimaano with four (4) attache cases filled with money
and owned by MGen Ramas.
Sworn statement in the record disclosed also that Elizabeth
Dimaano had no visible means of income and is supported by
respondent for she was formerly a mere secretary.
Taking in toto the evidence, Elizabeth Dimaano could not have
used the military equipment/items seized in her house on March
3, 1986 without the consent of respondent, he being the
Commanding General of the Philippine Army. It is also impossible
for Elizabeth Dimaano to claim that she owns the P2,870,000.00
and $50,000 US Dollars for she had no visible source of income.
This money was never declared in the Statement of Assets and
Liabilities of respondent. There was an intention to cover the
existence of these money because these are all ill-gotten and
unexplained wealth. Were it not for the affidavits of the members
of the Military Security Unit assigned at Camp Eldridge, Los
Baños, Laguna, the existence and ownership of these money
would have never been known.
The Statement of Assets and Liabilities of respondent were also
submitted for scrutiny and analysis by the Board’s consultant.
Although the amount of P2,870,000.00 and $50,000 US Dollars
were not included, still it was disclosed that respondent has an
unexplained wealth of P104,134.60.
IV. CONCLUSION:
In view of the foregoing, the Board finds that a prima facie case
exists against respondent for ill-gotten and unexplained wealth in
the amount of P2,974,134.00 and $50,000 US Dollars.
V. RECOMMENDATION:
Wherefore it is recommended that Maj. Gen. Josephus Q. Ramas
(ret.) be prosecuted and tried for violation of RA 3019, as
amended, otherwise known as “Anti-Graft and Corrupt Practices
Act” and RA 1379, as amended, otherwise known as “The Act for
the Forfeiture of Unlawfully Acquired Property.”3
Thus, on 1 August 1987, the PCGG filed a petition for forfeiture
under Republic Act No. 1379 (“RA No. 1379”)4 against Ramas.
Before Ramas could answer the petition, then Solicitor General
Francisco I. Chavez filed an Amended Complaint naming the
Republic of the Philippines (“petitioner”), represented by the
PCGG, as plaintiff and Ramas as defendant. The Amended
Complaint also impleaded Elizabeth Dimaano (“Dimaano”) as co-
defendant.
The Amended Complaint alleged that Ramas was the
Commanding General of the Philippine Army until 1986. On the
other hand, Dimaano was a confidential agent of the Military
Security Unit, Philippine Army, assigned as a clerk-typist at the
office of Ramas from 1 January 1978 to February 1979. The
Amended Complaint further alleged that Ramas “acquired funds,
assets and properties manifestly out of proportion to his salary as
an army officer and his other income from legitimately acquired
property by taking undue advantage of his public office and/or
using his power, authority and influence as such officer of the
Armed Forces of the Philippines and as a subordinate and close
associate of the deposed President Ferdinand Marcos.”5
The Amended Complaint also alleged that the AFP Board, after a
previous inquiry, found reasonable ground to believe that
respondents have violated RA No. 1379.6 The Amended
Complaint prayed for, among others, the forfeiture of
respondents’ properties, funds and equipment in favor of the
State.
Ramas filed an Answer with Special and/or Affirmative Defenses
and Compulsory Counterclaim to the Amended Complaint.
In his Answer, Ramas contended that his property consisted only
of a residential house at La Vista Subdivision, Quezon City, valued
at P700,000, which was not out of proportion to his salary and
other legitimate income. He denied ownership of any mansion in
Cebu City and the cash, communications equipment and other
items confiscated from the house of Dimaano.
Dimaano filed her own Answer to the Amended Complaint.
Admitting her employment as a clerk-typist in the office of Ramas
from January-November 1978 only, Dimaano claimed ownership
of the monies, communications equipment, jewelry and land titles
taken from her house by the Philippine Constabulary raiding team.
After termination of the pre-trial,7 the court set the case for trial
on the merits on 9-11 November 1988.
On 9 November 1988, petitioner asked for a deferment of the
hearing due to its lack of preparation for trial and the absence of
witnesses and vital documents to support its case. The court reset
the hearing to 17 and 18 April 1989.
On 13 April 1989, petitioner filed a motion for leave to amend the
complaint in order “to charge the delinquent properties with being
subject to forfeiture as having been unlawfully acquired by
defendant Dimaano alone x x x.”8
Nevertheless, in an order dated 17 April 1989, the Sandiganba-
yan proceeded with petitioner’s presentation of evidence on the
ground that the motion for leave to amend complaint did not
state when petitioner would file the amended complaint. The
Sandiganbayan further stated that the subject matter of the
amended complaint was on its face vague and not related to the
existing complaint. The Sandiganbayan also held that due to the
time that the case had been pending in court, petitioner should
proceed to present its evidence.
After presenting only three witnesses, petitioner asked for a
postponement of the trial.
On 28 September 1989, during the continuation of the trial,
petitioner manifested its inability to proceed to trial because of
the absence of other witnesses or lack of further evidence to
present. Instead, petitioner reiterated its motion to amend the
complaint to
conform to the evidence already presented or to change the
averments to show that Dimaano alone unlawfully acquired the
monies or properties subject of the forfeiture.
The Sandiganbayan noted that petitioner had already delayed the
case for over a year mainly because of its many postponements.
Moreover, petitioner would want the case to revert to its
preliminary stage when in fact the case had long been ready for
trial. The Sandiganbayan ordered petitioner to prepare for
presentation of its additional evidence, if any.
During the trial on 23 March 1990, petitioner again admitted its
inability to present further evidence. Giving petitioner one more
chance to present further evidence or to amend the complaint to
conform to its evidence, the Sandiganbayan reset the trial to 18
May 1990. The Sandiganbayan, however, hinted that the re-
setting was without prejudice to any action that private
respondents might take under the circumstances.
However, on 18 May 1990, petitioner again expressed its inability
to proceed to trial because it had no further evidence to present.
Again, in the interest of justice, the Sandiganbayan granted
petitioner 60 days within which to file an appropriate pleading.
The Sandiganbayan, however, warned petitioner that failure to
act would constrain the court to take drastic action.
Private respondents then filed their motions to dismiss based on
Republic v.Migrino,9 The Court held in Migrino that the PCGG
does not have jurisdiction to investigate and prosecute military
officers by reason of mere position held without a showing that
they are “subordinates” of former President Marcos.
On 18 November 1991, the Sandiganbayan rendered a resolution,
the dispositive portion of which states:
“WHEREFORE, judgment is hereby rendered dismissing the
Amended Complaint, without pronouncement as to costs. The
counter-claims are likewise dismissed for lack of merit, but the
confiscated sum of money, communications equipment, jewelry
and land titles are ordered returned to Elizabeth Dimaano.
The records of this case are hereby remanded and referred to the
Hon. Ombudsman, who has primary jurisdiction over the
forfeiture cases under R.A. No. 1379, for such appropriate action
as the evidence warrants.
This case is also referred to the Commissioner of the Bureau of
Internal Revenue for a determination of any tax liability of
respondent Elizabeth Dimaano in connection herewith.
SO ORDERED.”
On 4 December 1991, petitioner filed its Motion for
Reconsideration.
In answer to the Motion for Reconsideration, private respondents
filed a Joint Comment/Opposition to which petitioner filed its
Reply on 10 January 1992.
On 25 March 1992, the Sandiganbayan rendered a Resolution
denying the Motion for Reconsideration.
Ruling of the Sandiganbayan
The Sandiganbayan dismissed the Amended Complaint on the
following grounds:
(1.) The actions taken by the PCGG are not in accordance with
the rulings of the Supreme Court in Cruz, Jr. v.Sandiganbayan10
and Republic v.Migrino11 which involve the same issues.
(2.) No previous inquiry similar to preliminary investigations in
criminal cases was conducted against Ramas and Dimaano.
(3.) The evidence adduced against Ramas does not constitute a
prima facie case against him.
(4.) There was an illegal search and seizure of the items
confiscated.
The Issues
Petitioner raises the following issues:
A. RESPONDENT COURT SERIOUSLY ERRED IN CONCLUDING
THAT PETITIONER’S EVIDENCE CANNOT MAKE A CASE FOR
FORFEITURE AND THAT THERE WAS NO SHOWING OF
CONSPIRACY, COLLUSION OR RELATIONSHIP BY
CONSANGUINITY OR AFFINITY BY AND BETWEEN RESPONDENT
RAMAS AND RESPONDENT DIMAANO NOTWITHSTANDING THE
FACT THAT SUCH CONCLUSIONS WERE CLEARLY UNFOUNDED
AND PREMATURE,
HAVING BEEN RENDERED PRIOR TO THE COMPLETION OF THE
PRESENTATION OF THE EVIDENCE OF THE PETITIONER.
B. RESPONDENT COURT SERIOUSLY ERRED IN HOLDING THAT
THE ACTIONS TAKEN BY THE PETITIONER, INCLUDING THE
FILING OF THE ORIGINAL COMPLAINT AND THE AMENDED
COMPLAINT, SHOULD BE STRUCK OUT IN LINE WITH THE
RULINGS OF THE SUPREME COURT IN CRUZ, JR. v.
SANDIGANBAYAN, 194 SCRA 474 AND REPUBLIC v. MIGRINO,
189 SCRA 289, NOTWITHSTANDING THE FACT THAT:
1. The cases of Cruz, Jr. v. Sandiganbayan, supra,and Republic v.
Migrino, supra,are clearly not applicable to this case;
2. Any procedural defect in the institution of the complaint in Civil
Case No. 0037 was cured and/or waived by respondents with the
filing of their respective answers with counterclaim; and
3. The separate motions to dismiss were evidently improper
considering that they were filed after commencement of the
presentation of the evidence of the petitioner and even before the
latter was allowed to formally offer its evidence and rest its case;
C. RESPONDENT COURT SERIOUSLY ERRED IN HOLDING THAT
THE ARTICLES AND THINGS SUCH AS SUMS OF MONEY,
COMMUNICATIONS EQUIPMENT, JEWELRY AND LAND TITLES
CONFISCATED FROM THE HOUSE OF RESPONDENT DIMAANO
WERE ILLEGALLY SEIZED AND THEREFORE EXCLUDED AS
EVIDENCE.12
The Court’s Ruling
First Issue: PCGG’s Jurisdiction to Investigate Private Respondents
This case involves a revisiting of an old issue already decided by
this Court in Cruz, Jr. v. Sandiganbayan13 and Republic v.
Migrino.14
The primary issue for resolution is whether the PCGG has the
jurisdiction to investigate and cause the filing of a forfeiture
petition against Ramas and Dimaano for unexplained wealth
under RA No. 1379.
We hold that PCGG has no such jurisdiction.
The PCGG created the AFP Board to investigate the unexplained
wealth and corrupt practices of AFP personnel, whether in the
active service or retired.15 The PCGG tasked the AFP Board to
make the necessary recommendations to appropriate government
agencies on the action to be taken based on its findings.16 The
PCGG gave this task to the AFP Board pursuant to the PCGG’s
power under Section 3 ofEO No. 1 “to conduct investigation as
may be necessary in order to accomplish and to carry out the
purposes of this order.” EO No. 1 gave the PCGG specific
responsibilities, to wit:
SEC. 2. The Commission shall be charged with the task of
assisting the President in regard to the following matters:
(a) The recovery of all ill-gotten wealth accumulated by former
President Ferdinand E. Marcos, his immediate family, relatives,
subordinates and close associates, whether located in the
Philippines or abroad, including the takeover and sequestration of
all business enterprises and entities owned or controlled by them,
during his administration, directly or through nominees, by taking
undue advantage of their public office and/or using their powers,
authority, influence, connections or relationship.
(b) The investigation of such cases of graft and corruption as the
President may assign to the Commission from time to time.
x x x.
The PCGG, through the AFP Board, can only investigate the
unexplained wealth and corrupt practices of AFP personnel who
fall under either of the two categories mentioned in Section 2 of
EO No. 1. These are: (1) AFP personnel who have accumulated
illgotten wealth during the administration of former President
Marcos by being the latter’s immediate family, relative,
subordinate or close associate, taking undue advantage of their
public office or using their powers, influence x x x;17 or (2) AFP
personnel involved in other cases of graft and corruption provided
the President assigns their cases to the PCGG.18
Petitioner, however, does not claim that the President assigned
Ramas’ case to the PCGG. Therefore, Ramas’ case should fall
under the first category of AFP personnel before the PCGG could
exercise its jurisdiction over him. Petitioner argues that Ramas
was undoubtedly a subordinate of former President Marcos
because of his position as the Commanding General of the
Philippine Army. Petitioner claims that Ramas’ position enabled
him to receive orders directly from his commander-in-chief,
undeniably making him a subordinate of former President Marcos.
We hold that Ramas was not a “subordinate” of former President
Marcos in the sense contemplated under EO No. 1 and its
amendments.
Mere position held by a military officer does not automatically
make him a “subordinate” as this term is used in EO Nos. 1, 2, 14
and 14-A absent a showing that he enjoyed close association with
former President Marcos. Migrino discussed this issue in this wise:
A close reading of EO No. 1 and related executive orders will
readily show what is contemplated within the term ‘subordinate.’
The Whereas Clauses of EO No. 1 express the urgent need to
recover the ill-gotten wealth amassed by former President
Ferdinand E. Marcos, his immediate family, relatives, and close
associates both here and abroad.
EO No. 2 freezes ‘all assets and properties in the Philippines in
which former President Marcos and/or his wife, Mrs. Imelda
Marcos, their close relatives, subordinates, business associates,
dummies, agents, or nominees have any interest or participation.’
Applying the rule in statutory construction known as ejusdem
generis that is—
‘[W]here general words follow an enumeration of persons or
things by words of a particular and specific meaning, such general
words are not to be construed in their widest extent, but are to be
held as applying only to persons or things of the same kind or
class as those specifically mentioned [Smith, Bell & Co., Ltd. vs.
Register of Deeds of Davao, 96 Phil. 53, 58, citing Black on
Interpretation of Laws, 2nd Ed., 203].’
[T]he term “subordinate” as used in EO Nos. 1 & 2 refers to one
who enjoys a close association with former President Marcos
and/or his wife, similar to the immediate family member, relative,
and close associate in EO No. 1 and the close relative, business
associate, dummy, agent, or nominee in EO No. 2.
It does not suffice, as in this case, that the respondent is or was a
government official or employee during the administration of
former President Marcos. There must be a prima facie showing
that the respondent unlawfully accumulated wealth by virtue of
his close association or relation with former Pres. Marcos and/or
his wife. (Emphasis supplied)
Ramas’ position alone as Commanding General of the Philippine
Army with the rank of Major General19 does not suffice to make
him a “subordinate” of former President Marcos for purposes of
EO No. 1 and its amendments. The PCGG has to provide a prima
facie showing that Ramas was a close associate of former
President Marcos, in the same manner that business associates,
dummies, agents or nominees of former President Marcos were
close to him. Such close association is manifested either by
Ramas’ complicity with former President Marcos in the
accumulation of ill-gotten wealth by the deposed President or by
former President Marcos’ acquiescence in Ramas’ own
accumulation of ill-gotten wealth if any.
This, the PCGG failed to do.
Petitioner’s attempt to differentiate the instant case from Migrino
does not convince us. Petitioner argues that unlike in Migrino,the
AFP Board Resolution in the instant case states that the AFP
Board conducted the investigation pursuant to EO Nos. 1, 2, 14
and 14-A in relation to RA No. 1379. Petitioner asserts that there
is a presumption that the PCGG was acting within its jurisdiction
of investigating crony-related cases of graft and corruption and
that Ramas was truly a subordinate of the former President.
However, the same AFP Board Resolution belies this contention.
Although the Resolution begins with such statement, it ends with
the following recommendation:
V. RECOMMENDATION:
Wherefore it is recommended that Maj. Gen. Josephus Q. Ramas
(ret.) be prosecuted and tried for violation of RA 3019, as
amended, otherwise known as “Anti-Graft and Corrupt Practices
Act” and RA 1379, as amended, otherwise known as “The Act for
the Forfeiture of Unlawfully Acquired Property.”20
Thus, although the PCGG sought to investigate and prosecute
private respondents under EO Nos. 1, 2, 14 and 14-A, the result
yielded a finding of violation of Republic Acts Nos. 3019 and 1379
without any relation to EO Nos. 1, 2, 14 and 14-A. This absence
of relation to EO No. 1 and its amendments proves fatal to peti-
tioner’s case. EO No. 1 created the PCGG for a specific and limited
purpose, and necessarily its powers must be construed to address
such specific and limited purpose.
Moreover, the resolution of the AFP Board and even the Amended
Complaint do not show that the properties Ramas allegedly
owned were accumulated by him in his capacity as a
“subordinate” of his commander-in-chief. Petitioner merely
enumerated the properties Ramas allegedly owned and suggested
that these properties were disproportionate to his salary and other
legitimate income without showing that Ramas amassed them
because of his close association with former President Marcos.
Petitioner, in fact, admits that the AFP Board resolution does not
contain a finding that Ramas accumulated his wealth because of
his close association with former President Marcos, thus:
10. While it is true that the resolution of the Anti-Graft Board of
the New Armed Forces of the Philippines did not categorically find
a prima facie evidence showing that respondent Ramas unlawfully
accumulated wealth by virtue of his close association or relation
with former President Marcos and/or his wife, it is submitted that
such omission was not fatal. The resolution of the Anti-Graft
Board should be read in the context of the law creating the same
and the objective of the investigation which was, as stated in the
above, pursuant to Republic Act Nos. 3019 and 1379 in relation to
Executive Order Nos. 1, 2, 14 and 14-a;21 (Emphasis supplied)
Such omission is fatal. Petitioner forgets that it is precisely a
prima facie showing that the ill-gotten wealth was accumulated by
a “subordinate” of former President Marcos that vests jurisdiction
on PCGG. EO No. 122 clearly premises the creation of the PCGG
on the urgent need to recover all ill-gotten wealth amassed by
former President Marcos, his immediate family, relatives,
subordinates and close associates. Therefore, to say that such
omission was not fatal is clearly contrary to the intent behind the
creation of the PCGG.

In Cruz, Jr. v.Sandiganbayan,23 the Court outlined the cases that
fall under the jurisdiction of the PCGG pursuant to EO Nos. 1, 2,24
14,25 14-A;26
A careful reading of Sections 2(a) and 3 of Executive Order No. 1
in relation with Sections 1, 2 and 3 of Executive Order No. 14,
shows what the authority of the respondent PCGG to investigate
and prosecute covers:
(a) the investigation and prosecution of the civil action for the
recovery of ill-gotten wealth under Republic Act No. 1379,
accumulated by former President Marcos, his immediate family,
relatives, subordinates and close associates, whether located in
the Philippines or abroad, including the take-over or sequestration
of all business enterprises and entities owned or controlled by
them, during his administration, directly or through his nominees,
by taking undue advantage of their public office and/orusing their
powers, authority and influence, connections or relationships; and
(b) the investigation and prosecution of such offenses committed
in the acquisition of said ill-gotten wealth as contemplated under
Section 2(a) of Executive Order No. 1.
However, other violations of the Anti-Graft and Corrupt Practices
Act not otherwise falling under the foregoing categories, require a
previous authority of the President for the respondent PCGG to
investigate and prosecute in accordance with Section 2 (b) of
Executive Order No. 1. Otherwise, jurisdiction over such cases is
vested in the Ombudsman and other duly authorized investigating
agencies such as the provincial and city prosecutors, their
assistants, the Chief State Prosecutor and his assistants and the
state prosecutors. (Emphasis supplied)
The proper government agencies, and not the PCGG, should
investigate and prosecute forfeiture petitions not falling under EO
No. 1 and its amendments. The preliminary investigation of
unexplained wealth amassed on or before 25 February 1986 falls
under the jurisdiction of the Ombudsman, while the authority to
file the corresponding forfeiture petition rests with the Solicitor
General.27 The Ombudsman Act or Republic Act No. 6770 (“RA
No. 6770”) vests in the Ombudsman the power to conduct
preliminary investigation and to file forfeiture proceedings
involving unexplained wealth amassed after 25 February 1986.28
After the pronouncements of the Court in Cruz,the PCGG still
pursued this case despite the absence of a prima facie finding
that Ramas was a “subordinate” of former President Marcos. The
petition for forfeiture filed with the Sandiganbayan should be
dismissed for lack of authority by the PCGG to investigate
respondents since there is no prima facie showing that EO No. 1
and its amendments apply to respondents. The AFP Board
Resolution and even the Amended Complaint state that there are
violations of RA Nos. 3019 and 1379. Thus, the PCGG should have
recommended Ramas’ case to the Ombudsman who has
jurisdiction to conduct the preliminary investigation of ordinary
unexplained wealth and graft cases. As stated in Migrino:
[But] in view of the patent lack of authority of the PCGG to
investigate and cause the prosecution of private respondent for
violation of Rep. Acts Nos. 3019 and 1379, the PCGG must also be
enjoined from proceeding with the case, without prejudice to any
action that may be taken by the proper prosecutory agency. The
rule of law mandates that an agency of government be allowed to
exercise only the powers granted to it.
Petitioner’s argument that private respondents have waived any
defect in the filing of the forfeiture petition by submitting their
respective Answers with counterclaim deserves no merit as well.
Petitioner has no jurisdiction over private respondents. Thus,
there is no jurisdiction to waive in the first place. The PCGG
cannot exercise investigative or prosecutorial powers never
granted to it. PCGG’s powers are specific and limited. Unless given
additional assignment by the President, PCGG’s sole task is only to
recover the ill-gotten wealth of the Marcoses, their relatives and
cronies.29 Without these elements, the PCGG cannot claim
jurisdiction over a case.
Private respondents questioned the authority and jurisdiction of
the PCGG to investigate and prosecute their cases by filing their
Motion to Dismiss as soon as they learned of the pronouncement
of the Court in Migrino. This case was decided on 30 August 1990,
which explains why private respondents only filed their Motion to
Dismiss on 8 October 1990. Nevertheless, we have held that the
parties may raise lack of jurisdiction at any stage of the
proceeding.30 Thus, we hold that there was no waiver of
jurisdiction in this case. Jurisdiction is vested by law and not by
the parties to an action.31
Consequently, the petition should be dismissed for lack of
jurisdiction by the PCGG to conduct the preliminary investigation.
The Ombudsman may still conduct the proper preliminary
investigation for violation of RA No. 1379, and if warranted, the
Solicitor General may file the forfeiture petition with the
Sandiganbayan.32 The right of the State to forfeit unexplained
wealth under RA No. 1379 is not subject to prescription, laches or
estoppel.33
_______________
Second Issue: Propriety of Dismissal of Case Before
Completion of Presentation of Evidence
Petitioner also contends that the Sandiganbayan erred in
dismissing the case before completion of the presentation of
petitioner’s evidence.
We disagree.
Based on the findings of the Sandiganbayan and the records of
this case, we find that petitioner has only itself to blame for non-
completion of the presentation of its evidence. First, this case has
been pending for four years before the Sandiganbayan dismissed
it. Petitioner filed its Amended Complaint on 11 August 1987, and
only began to present its evidence on 17 April 1989. Petitioner
had almost two years to prepare its evidence. However, despite
this sufficient time, petitioner still delayed the presentation of the
rest of its evidence by filing numerous motions for postponements
and extensions. Even before the date set for the presentation of
its evidence, petitioner filed, on 13 April 1989, a Motion for Leave
to Amend the Complaint.34 The motion sought “to charge the
delinquent properties (which comprise most of petitioner’s
evidence) with being subject to forfeiture as having been
unlawfully acquired by defendant Dimaano alone x x x.”
The Sandiganbayan, however, refused to defer the presentation
of petitioner’s evidence since petitioner did not state when it
would file the amended complaint. On 18 April 1989, the
Sandiganbayan set the continuation of the presentation of
evidence on 28-29 September and 9-11 October 1989, giving
petitioner ample time to prepare its evidence. Still, on 28
September 1989, petitioner manifested its inability to proceed
with the presentation of its evidence. The Sandiganbayan issued
an Order expressing its view on the matter, to wit:
The Court has gone through extended inquiry and a narration of
the above events because this case has been ready for trial for
over a year and much of the delay hereon has been due to the
inability of the government to produce on scheduled dates for
pre-trial and for trial documents and witnesses, allegedly upon the
failure of the military to supply them for the preparation of the
presentation of evidence thereon. Of equal interest is the fact that
this Court has been held to task in public about its alleged
failure to move cases such as this one beyond the preliminary
stage, when, in view of the developments such as those of today,
this Court is now faced with a situation where a case already in
progress will revert back to the preliminary stage, despite a five-
month pause where appropriate action could have been
undertaken by the plaintiff Republic.35
On 9 October 1989, the PCGG manifested in court that it was
conducting a preliminary investigation on the unexplained wealth
of private respondents as mandated by RA No. 1379.36 The PCGG
prayed for an additional four months to conduct the preliminary
investigation. The Sandiganbayan granted this request and
scheduled the presentation of evidence on 26-29 March 1990.
However, on the scheduled date, petitioner failed to inform the
court of the result of the preliminary investigation the PCGG
supposedly conducted. Again, the Sandiganbayan gave petitioner
until 18 May 1990 to continue with the presentation of its
evidence and to inform the court of “what lies ahead insofar as
the status of the case is concerned x x x.”37 Still on the date set,
petitioner failed to present its evidence. Finally, on 11 July 1990,
petitioner filed its ReAmended Complaint.38 The Sandiganbayan
correctly observed that a case already pending for years would
revert to its preliminary stage if the court were to accept the Re-
Amended Complaint.
Based on these circumstances, obviously petitioner has only itself
to blame for failure to complete the presentation of its evidence.
The Sandiganbayan gave petitioner more than sufficient time to
finish the presentation of its evidence. The Sandiganbayan
overlooked petitioner’s delays and yet petitioner ended the long-
string of delays with the filing of a Re-Amended Complaint, which
would only prolong even more the disposition of the case.
Moreover, the pronouncements of the Court in Migrino and Cruz
prompted the Sandiganbayan to dismiss the case since the PCGG
has no jurisdiction to investigate and prosecute the case against
private respondents. This alone would have been sufficient legal
basis for the Sandiganbayan to dismiss the forfeiture case against
private respondents.
Thus, we hold, that the Sandiganbayan did not err in dismissing
the case before completion of the presentation of petitioner’s
evidence.
Third Issue: Legality of the Search and Seizure
Petitioner claims that the Sandiganbayan erred in declaring the
properties confiscated from Dimaano’s house as illegally seized
and therefore inadmissible in evidence. This issue bears a
significant effect on petitioner’s case since these properties
comprise most of petitioner’s evidence against private
respondents. Petitioner will not have much evidence to support its
case against private respondents if these properties are
inadmissible in evidence.
On 3 March 1986, the Constabulary raiding team served at
Dimaano’s residence a search warrant captioned “Illegal
Possession of Firearms and Ammunition.” Dimaano was not
present during the raid but Dimaano’s cousins witnessed the raid.
The raiding team seized the items detailed in the seizure receipt
together with other items not included in the search warrant. The
raiding team seized these items: one baby armalite rifle with two
magazines; 40 rounds of 5.56 ammunition; one pistol, caliber .45;
communications equipment, cash consisting of P2,870,000 and
US$50,000, jewelry, and land titles.
Petitioner wants the Court to take judicial notice that the raiding
team conducted the search and seizure “on March 3, 1986 or five
days after the successful EDSA revolution.”39 Petitioner argues
that a revolutionary government was operative at that time by
virtue of Proclamation No. 1 announcing that President Aquino
and Vice President Laurel were “taking power in the name and by
the will of the Filipino people.”40 Petitioner asserts that the
revolutionary government effectively withheld the operation of the
1973 Constitution which guaranteed private respondents’
exclusionary right.
Moreover, petitioner argues that the exclusionary right arising
from an illegal search applies only beginning 2 February 1987, the
date of ratification of the 1987 Constitution. Petitioner contends
that all rights under the Bill of Rights had already reverted to its
embryonic stage at the time of the search. Therefore, the
government may confiscate the monies and items taken from
Dimaano and use the same in evidence against her since at that
time of their seizure, private respondents did not enjoy any
constitutional right.
Petitioner is partly right in its arguments.
The EDSA Revolution took place on 23-25 February 1986. As
succinctly stated in President Aquino’s Proclamation No. 3 dated
25 March 1986, the EDSA Revolution was “done in defiance of the
provisions of the 1973 Constitution.”41 The resulting government
was indisputably a revolutionary government bound by no
constitution or legal limitations except treaty obligations that the
revolutionary government, as the de jure government in the
Philippines, assumed under international law.
The correct issues are: (1) whether the revolutionary government
was bound by the Bill of Rights of the 1973 Constitution during
the interregnum,that is, after the actual and effective takeover of
power by the revolutionary government following the cessation of
resistance by loyalist forces up to 24 March 1986 (immediately
before the adoption of the Provisional Constitution); and (2)
whether the protection accorded to individuals under the
International Covenant on Civil and Political Rights (“Covenant”)
and the Universal Declaration of Human Rights (“Declaration”)
remained in effect during the interregnum.
We hold that the Bill of Rights under the 1973 Constitution was
not operative during the interregnum. However, we rule that the
protection accorded to individuals under the Covenant and the
Declaration remained in effect during the interregnum.
During the interregnum, the directives and orders of the
revolutionary government were the supreme law because no
constitution limited the extent and scope of such directives and
orders. With the abrogation of the 1973 Constitution by the
successful revolution, there was no municipal law higher than the
directives and orders of the revolutionary government. Thus,
during the interregnum, a person could not invoke any
exclusionary right under a Bill of Rights because there was neither
a constitution nor a Bill of Rights during the interregnum. As the
Court explained in Letter of Associate Justice Reynato S. Puno:42
A revolution has been defined as “the complete overthrow of the
established government in any country or state by those who
were previously subject to it” or as “a sudden, radical and
fundamental change in the government or political system, usually
effected with violence or at least some acts of violence.” In
Kelsen’s book, General Theory of Law and State, it is defined as
that which “occurs whenever the legal order of a community is
nullified and replaced by a new order . . . a way not prescribed by
the first order itself.”
It was through the February 1986 revolution, a relatively peaceful
one, and more popularly known as the “people power revolution”
that the Filipino people tore themselves away from an existing
regime. This revolution also saw the unprecedented rise to power
of the Aquino government.
From the natural law point of view, the right of revolution has
been defined as “an inherent right of a people to cast out their
rulers, change their policy or effect radical reforms in their system
of government or institutions by force or a general uprising when
the legal and constitutional methods of making such change have
proved inadequate or are so obstructed as to be unavailable.” It
has been said that “the locus of positive law-making power lies
with the people of the state” and from there is derived “the right
of the people to abolish, to reform and to alter any existing form
of government without regard to the existing constitution.”
xxx
It is widely known that Mrs. Aquino’s rise to the presidency was
not due to constitutional processes; in fact, it was achieved in
violation of the provisions of the 1973 Constitution as a Batasang
Pambansa resolution had earlier declared Mr. Marcos as the
winner in the 1986 presidential election. Thus it can be said that
the organization of Mrs. Aquino’s Government which was met by
little resistance and her control of the state evidenced by the
appointment of the Cabinet and other key officers of the
administration, the departure of the Marcos Cabinet officials,
revamp of
the Judiciary and the Military signaled the point where the legal
system then in effect, had ceased to be obeyed by the Filipino.
(Emphasis supplied)
To hold that the Bill of Rights under the 1973 Constitution
remained operative during the interregnum would render void all
sequestration orders issued by the Philippine Commission on Good
Government (“PCGG”) before the adoption of the Freedom
Constitution. The sequestration orders, which direct the freezing
and even the take-over of private property by mere executive
issuance without judicial action, would violate the due process
and search and seizure clauses of the Bill of Rights.
During the interregnum, the government in power was
concededly a revolutionary government bound by no constitution.
No one could validly question the sequestration orders as violative
of the Bill of Rights because there was no Bill of Rights during the
interregnum. However, upon the adoption of the Freedom
Constitution, the sequestered companies assailed the
sequestration orders as contrary to the Bill of Rights of the
Freedom Constitution.
In Bataan Shipyard & Engineering Co., Inc. vs. Presidential
Commission on Good Government,43 petitioner Baseco, while
conceding there was no Bill of Rights during the interregnum,
questioned the continued validity of the sequestration orders upon
adoption of the Freedom Constitution in view of the due process
clause in its Bill of Rights. The Court ruled that the Freedom
Constitution, and later the 1987 Constitution, expressly recognized
the validity of sequestration orders, thus:
If any doubt should still persist in the face of the foregoing
considerations as to the validity and propriety of sequestration,
freeze and takeover orders, it should be dispelled by the fact that
these particular remedies and the authority of the PCGG to issue
them have received constitutional approbation and sanction. As
already mentioned, the Provisional or “Freedom” Constitution
recognizes the power and duty of the President to enact
“measures to achieve the mandate of the people to . . . (r)ecover
ill-gotten properties amassed by the leaders and supporters of the
previous regime and protect the interest of the people through
orders of sequestration or freezing of assets or accounts.” And as
also already adverted to, Section 26, Article XVIII of the 1987
Constitution treats of, and ratifies the “authority to issue
sequestration or freeze orders under Proclamation No. 3 dated
March 25, 1986.”
The framers of both the Freedom Constitution and the 1987
Constitution were fully aware that the sequestration orders would
clash with the Bill of Rights. Thus, the framers of both
constitutions had to include specific language recognizing the
validity of the sequestration orders. The following discourse by
Commissioner Joaquin G. Bernas during the deliberations of the
Constitutional Commission is instructive:
FR. BERNAS: Madam President, there is something schizophrenic
about the arguments in defense of the present amendment.
For instance, I have carefully studied Minister Salonga’s lecture in
the Gregorio Araneta University Foundation, of which all of us
have been given a copy. On the one hand, he argues that
everything the Commission is doing is traditionally legal. This is
repeated by Commissioner Romulo also. Minister Salonga spends
a major portion of his lecture developing that argument. On the
other hand, almost as an afterthought, he says that in the end
what matters are the results and not the legal niceties, thus
suggesting that the PCGG should be allowed to make some legal
shortcuts, another word for niceties or exceptions.
Now, if everything the PCGG is doing is legal, why is it asking the
CONCOM for special protection? The answer is clear. What they
are doing will not stand the test of ordinary due process, hence
they are asking for protection, for exceptions. Grandes malos,
grandes remedios, fine, as the saying stands, but let us not say
grandes malos, grande y malos remedios. That is not an allowable
extrapolation. Hence, we should not give the exceptions asked
for, and let me elaborate and give three reasons:
First, the whole point of the February Revolution and of the work
of the CONCOM is to hasten constitutional normalization. Very
much at the heart of the constitutional normalization is the full
effectivity of the Bill of Rights. We cannot, in one breath, ask for
constitutional normalization and at the same time ask for a
temporary halt to the full functioning of what is at the heart of
constitutionalism. That would be hypocritical; that would be a
repetition of Marcosian protestation of due process and rule of
law. The New Society word for that is “backsliding.” It is tragic
when we begin to backslide even before we get there.
Second, this is really a corollary of the first. Habits tend to
become ingrained. The committee report asks for extraordinary
exceptions from the Bill of Rights for six months after the
convening of Congress, and Congress may even extend this
longer.
Good deeds repeated ripen into virtue; bad deeds repeated
become vice. What the committee report is asking for is that we
should allow the new government to acquire the vice of
disregarding the Bill of Rights.
Vices, once they become ingrained, become difficult to shed. The
practitioners of the vice begin to think that they have a vested
right to its practice, and they will fight tooth and nail to keep the
franchise. That would be an unhealthy way of consolidating the
gains of a democratic revolution.
Third, the argument that what matters are the results and not the
legal niceties is an argument that is very disturbing. When it
comes from a staunch Christian like Commissioner Salonga, a
Minister, and repeated verbatim by another staunch Christian like
Commissioner Tingson, it becomes doubly disturbing and even
discombobulating. The argument makes the PCGG an auctioneer,
placing the Bill of Rights on the auction block. If the price is right,
the search and seizure clause will be sold. “Open your Swiss bank
account to us and we will award you the search and seizure
clause. You can keep it in your private safe.”
Alternatively, the argument looks on the present government as
hostage to the hoarders of hidden wealth. The hoarders will
release the hidden health if the ransom price is paid and the
ransom price is the Bill of Rights, specifically the due process in
the search and seizure clauses. So, there is something positively
revolving about either argument. The Bill of Rights is not for sale
to the highest bidder nor can it be used to ransom captive dollars.
This nation will survive and grow strong, only if it would become
convinced of the values enshrined in the Constitution of a price
that is beyond monetary estimation.
For these reasons, the honorable course for the Constitutional
Commission is to delete all of Section 8 of the committee report
and allow the new Constitution to take effect in full vigor. If
Section 8 is deleted, the PCGG has two options. First, it can
pursue the Salonga and the Romulo argument—that what the
PCGG has been doing has been completely within the pale of the
law. If sustained, the PCGG can go on and should be able to go
on, even without the support of Section 8. If not sustained,
however, the PCGG has only one honorable option, it must bow to
the majesty of the Bill of Rights.
The PCGG extrapolation of the law is defended by staunch
Christians. Let me conclude with what another Christian replied
when asked to toy around with the law. From his prison cell,
Thomas More said, “I’ll give the devil benefit of law for my
nation’s safety sake.” I ask the Commission to give the devil
benefit of law for our nation’s sake. And we should delete Section
8.
Thank you, Madam President. (Emphasis supplied)
Despite the impassioned plea by Commissioner Bernas against the
amendment excepting sequestration orders from the Bill of
Rights, the Constitutional Commission still adopted the
amendment as Section 26,44 Article XVIII of the 1987
Constitution. The framers of the Constitution were fully aware
that absent Section 26, sequestration orders would not stand the
test of due process under the Bill of Rights.
Thus, to rule that the Bill of Rights of the 1973 Constitution
remained in force during the interregnum, absent a constitutional
provision excepting sequestration orders from such Bill of Rights,
would clearly render all sequestration orders void during the
interregnum. Nevertheless, even during the interregnum the
Filipino people continued to enjoy, under the Covenant and the
Declaration, almost the same rights found in the Bill of Rights of
the 1973 Constitution.
The revolutionary government, after installing itself as the de
juregovernment, assumed responsibility for the State’s good faith
compliance with the Covenant to which the Philippines is a
signatory. Article 2(1) of the Covenant requires each signatory
State “to respect and to ensure to all individuals within its territory
and subject to its jurisdiction the rights45 recognized in the
present
Covenant.” Under Article 17(1) of the Covenant, the revolutionary
government had the duty to insure that “[n]o one shall be
subjected to arbitrary or unlawful interference with his privacy,
family, home or correspondence.”
The Declaration, to which the Philippines is also a signatory,
provides in its Article 17(2) that “[n]o one shall be arbitrarily
deprived of his property.” Although the signatories to the
Declaration did not intend it as a legally binding document, being
only a declaration, the Court has interpreted the Declaration as
part of the generally accepted principles of international law and
binding on the State.46 Thus, the revolutionary government was
also obligated under international law to observe the rights47 of
individuals under the Declaration.
The revolutionary government did not repudiate the Covenant or
the Declaration during the interregnum. Whether the
revolutionary government could have repudiated all its obligations
under the Covenant or the Declaration is another matter and is
not the issue here. Suffice it to say that the Court considers the
Declaration as part of customary international law, and that
Filipinos as human beings are proper subjects of the rules of
international law laid down in the Covenant. The fact is the
revolutionary government did not repudiate the Covenant or the
Declaration in the same way it repudiated the 1973 Constitution.
As the de jure government, the revolutionary government could
not escape responsibility for the State’s good faith compliance
with its treaty obligations under international law.
It was only upon the adoption of the Provisional Constitution on
25 March 1986 that the directives and orders of the revolutionary
government became subject to a higher municipal law that, if
contravened, rendered such directives and orders void. The
Provisional Constitution adopted verbatim the Bill of Rights of the
1973 Constitution.48 The Provisional Constitution served as a self-
limitation by the revolutionary government to avoid abuses of the
absolute powers entrusted to it by the people.
During the interregnum when no constitution or Bill of Rights
existed, directives and orders issued by government officers were
valid so long as these officers did not exceed the authority
granted them by the revolutionary government. The directives
and orders should not have also violated the Covenant or the
Declaration. In this case, the revolutionary government
presumptively sanctioned the warrant since the revolutionary
government did not repudiate it. The warrant, issued by a judge
upon proper application, specified the items to be searched and
seized. The warrant is thus valid with respect to the items
specifically described in the warrant.
However, the Constabulary raiding team seized items not included
in the warrant. As admitted by petitioner’s witnesses, the raiding
team confiscated items not included in the warrant, thus:
Direct Examination of Capt. Rodolfo Sebastian
AJ AMORES
Q.
According to the search warrant, you are supposed to seize only
for weapons. What else, aside from the weapons, were seized
from the house of Miss Elizabeth Dimaano?
A.
The communications equipment, money in Philippine currency and
US dollars, some jewelries, land titles, sir.
Q.
Now, the search warrant speaks only of weapons to be seized
from the house of Elizabeth Dimaano. Do you know the reason
why your team also seized other properties not mentioned in said
search warrant?
A.
During the conversation right after the conduct of said raid, I was
informed that the reason why they also brought the other items
not included in the search warrant was because the money and
other jewelries were contained in attaché cases and cartons with
markings “Sony Trinitron,” and I think three (3) vaults or steel
safes, Believing that the attaché cases and the steel safes were
containing firearms, they forced open these containers only to
find out that they contained money.
xxx
Q.
You said you found money instead of weapons, do you know the
reason why your team seized this money instead of weapons?
A.
I think the overall team leader and the other two officers assisting
him decided to bring along also the money because at that time it
was already dark and they felt most secured if they will bring that
because they might be suspected also of taking money out of
those items, your Honor.49
Cross-examination
Atty. Banaag
Q.
Were you present when the search warrant in connection with
this case was applied before the Municipal Trial Court of
Batangas, Branch 1?
A In the fiscal’s office?
A.
Yes, sir. A.
They just gave us still unconfirmed report about some hidden
Q. items, for instance, the communications equipment and money. Yes, sir.
However, I did not include that in the application for search
And the search warrant applied for by you was for the search and warrant considering that we have not established concrete evid Q.
seizure of five (5) baby armalite rifles M-16 and five (5) boxes of ence about that. So when . . .
ammunition? Because the armalite rifle you seized, as well as the .45 caliber
Q. pistol had a Memorandum Receipt in the name of Felino
A. Melegrito, is that not correct?
So that when you applied for search warrant, you had reason to
Yes, sir. believe that only weapons were in the house of Miss Elizabeth A.
xxx Dimaano?
I think that was the reason, sir.
AJ AMORES A. Q.

Q. Yes, your Honor.50 There were other articles seized which were not included in the
search warrant, like for instance, jewelries. Why did you seize the
Before you applied for a search warrant, did you conductsur- jewelries?
veillance in the house of Miss Elizabeth Dimaano? Q.
A.
A. You stated that a .45 caliber pistol was seized along with one
armalite rifle M-16 and how many ammunition? I think it was the decision of the overall team leader and his
The Intelligence Operatives conducted surveillance together with assistant to bring along also the jewelries and other items, sir, I
the MSU elements, your Honor. A. do not really know where it was taken but they brought along
also these articles. I do not really know their reason for bringing
Q. Forty, sir. the same, but I just learned that these were taken because they
might get lost if they will just leave this behind.
And this party believed there were weapons deposited in the Q.
house of Miss Elizabeth Dimaano? xxx
And this became the subject of your complaint with the issuing
A. Court, with the fiscal’s office who charged Elizabeth Dimaano for Q.
Illegal Possession of Firearms and Ammunition?
Yes, your Honor. How about the money seized by your raiding team, they were not
A. also included in the search warrant?
Q.
Yes, sir. A.
And they so swore before the Municipal Trial Judge?
Q. Yes sir, but I believe they were also taken considering that the
A. money was discovered to be contained in attaché cases. These
Do you know what happened to that case? attaché cases were suspected to be containing pistols or other
Yes, your Honor. high powered firearms, but in the course of the search the
A. contents turned out to be money. So the team leader also decided
Q. to take this considering that they believed that if they will just
I think it was dismissed, sir. leave the money behind, it might get lost also.
But they did not mention to you, the applicant for the search
warrant, any other properties or contraband which could be found Q. Q.
in the residence of Miss Elizabeth Dimaano?
That holds true also with respect to the other articles that were
seized by your raiding team, like Transfer Certificates of Title of
lands?
A.
Yes, sir. I think they were contained in one of the vaults that were
opened.51
It is obvious from the testimony of Captain Sebastian that the
warrant did not include the monies, communications equipment,
jewelry and land titles that the raiding team confiscated. The
search warrant did not particularly describe these items and the
raiding team confiscated them on its own authority. The raiding
team had no legal basis to seize these items without showing that
these items could be the subject of warrantless search and
seizure.52 Clearly, the raiding team exceeded its authority when it
seized these items.
The seizure of these items was therefore void, and unless these
items are contraband per se,53 and they are not, they must be
returned to the person from whom the raiding seized them.
However, we do not declare that such person is the lawful owner
of these items, merely that the search and seizure warrant could
not be used as basis to seize and withhold these items from the
possessor. We thus hold that these items should be returned
immediately to Dimaano.
WHEREFORE, the petition for certiorari is DISMISSED. The
questioned Resolutions of the Sandiganbayan dated 18 November
1991 and 25 March 1992 in Civil Case No. 0037, remanding the
records of this case to the Ombudsman for such appropriate
action as the evidence may warrant, and referring this case to the
Commissioner of the Bureau of Internal Revenue for a
determination of any tax liability of respondent Elizabeth
Dimaano, are AFFIRMED.
VOL. 150, MAY 22, 1987
181
Bataan Shipyard & Engineering Co., Inc. vs. Presidential
Commission on Good Government
No. L-75885. May 27, 1987.*
BATAAN SHIPYARD & ENGINEERING CO., INC. (BASECO),
petitioner, vs. PRESIDENTIAL COMMISSION ON GOOD
GOVERNMENT, CHAIRMAN JOVITO SALONGA, COMMISSIONER
MARY CONCEPCION BAUTISTA, COMMISSIONER RAMON DIAZ,
COMMISSIONER RAUL R. DAZA, COMMISSIONER QUINTIN S.
DOROMAL, CAPT. JORGE B. SIACUNCO, et al., respondents.
Constitutional Law; Executive Orders Nos. 1 and 2 issued to
implement a constitutional mandate, valid and constitutional—The
impugned executive orders are avowedly meant to carry out the
explicit command of the Provisional Constitution, ordained by
Proclamation No. 3, that the President—in the exercise of
legislative power which she was authorized to continue to wield
"(u)ntil a legislature is elected and convened under a new
Constitution"—"shall give priority to measures to achieve the
mandate of the people," among others to (r)ecover ill-gotten
properties amassed by the leaders and supporters of the previous
regime and protect the interest of the people through orders of
sequestration or freezing of assets or accounts."
Same; Same; Executive orders not bill of attainder.—Neither will
this Court sustain the theory that the executive orders in question
are a bill of attainder. "A bill of attainder is a legislative act which
inflicts punishment without judicial trial." "Its essence is the
substitution of a legislative for a judicial determination of guilt." In
the first place, nothing in the executive orders can be reasonably
construed as a determination or declaration of guilt. On the
contrary, the executive orders, inclusive of Executive Order No.
14, make it perfectly clear that any judgment of guilt in the
amassing or acquisition of "ill-gotten wealth" is to be handed
down by a judicial tribunal, in this case, the Sandiganbayan, upon
complaint filed and prosecuted by the PCGG. In the second place,
no punishment is inflicted by the executive orders, as the merest
glance at their provisions will immediately make apparent. In no
sense, therefore, may the executive orders be regarded as a bill
of attainder.
Presidential Commission on Good Government Bataan Shipyard &
Engineering Co., Inc. vs.
Same; Same; Same; Right against self-incrimination has no
application to juridical persons and the constitutional safeguard
against unreasonable searches and seizures finds no application
to the case at bar either.—BASECO also contends that its right
against self-incrimination and unreasonable searches and seizures
had been transgressed by the Order of April 18,1986 which
required it "to produce corporate records from 1973 to 1986
under pain of contempt of the Commission if it fails to do so." The
order was issued upon the authority of Section 3 (e) of Executive
Order No. 1, treating of the PCGG's power to "issue subpoenas
requiring * * the production of such books, papers, contracts,
records, statements of accounts and other documents as may be
material to the investigation conducted by the Commission," and
paragraph (3), Executive Order No. 2 dealing with its power to
"(r)equire all persons in the Philippines holding * * (alleged "ill-
gotten") assets or properties, whether located in the Philippines or
abroad, in their names as nominees, agents or trustees, to make
full disclosure of the same **." The contention lacks merit. It is
elementary that the right against self-incrimination has no
application to juridical persons. "While an individual may lawfully
refuse to answer incriminating questions unless protected by an
immunity statute, it does not follow that a corporation, vested
with special privileges and franchises, may refuse to show its
hand when charged with an abuse of such privileges. * *" At any
rate, Executive Order No. 14-A, amending Section 4 of Executive
Order No. 14 assures protection to individuals required to produce
evidence before the PCGG against any possible violation of his
right against self-incrimination. It gives them immunity from
prosecution on the basis of testimony or information he is
compelled to present. As amended, said Section 4 now provides
that—"* * * * 'The witness may not refuse to comply with the
order on the basis of his privilege against self-incrimination; but
no testimony or other information compelled under the order (or
any information directly or indirectly derived from such testimony,
or other information) may be used against the witness in any
criminal case, except a prosecution for perjury, giving a false
statement, or otherwise failing to comply with the order." The
constitutional safeguard against unreasonable searches and
seizures finds no application to the case at bar either. There has
been no search undertaken by any agent or representative of the
PCGG, and of course no seizure on the occasion thereof.
PCGG; Its creation and powers.—Executive Order No. 1 stresses
the "urgent need to recover all ill-gotten wealth," and pos-
tulates that "vast resources of the government have been
amassed by former President Ferdinand E. Marcos, his immediate
family, relatives, and close associates both here and abroad."
Upon these premises, the Presidential Commission on Good
Government was created, "charged with the task of assisting the
President in regard to * * (certain specified) matters," among
which was precisely—"* * The recovery of all ill-gotten wealth
accumulated by former President Ferdinand E. Marcos, his
immediate family, relatives, subordinates and close associates,
whether located in the Philippines or abroad, including the
takeover or sequestration of all business enterprises and entities
owned or controlled by them, during his administration, directly or
through nominees, by taking undue advantage of their public
office and/or using their powers, authority, influence, connections
or relationship." In relation to the takeover or sequestration that it
was authorized to undertake in the fulfillment of its mission, the
PCGG was granted "power and authority" to do the following
particular acts, to wit: 1. 'To sequester or place or cause to be
placed under its control or possession any building or office
wherein any ill-gotten wealth or properties may be found, and any
records pertaining thereto, in order to prevent their destruction,
concealment or disappearance which would frustrate or hamper
the investigation or otherwise prevent the Commission from
accomplishing its task." 2. "To provisionally take over in the public
interest or to prevent the disposal or dissipation, business
enterprises and properties taken over by the government of the
Marcos Administration or by entities or persons close to former
President Marcos, until the transactions leading to such acquisition
by the latter can be disposed of by the appropriate authorities." 3.
'To enjoin or restrain any actual or threatened commission of acts
by any person or entity that may render moot and academic, or
frustrate or otherwise make ineffectual the efforts of the
Commission to carry out its task under this order." So that it
might ascertain the facts germane to its objectives, it was granted
power to conduct investigations; require submission of evidence
by subpoenae ad testificandum and duces tecum; administer
oaths; punish for contempt. It was given power also to
promulgate such rules and regulations as may be necessary to
carry out the purposes of * * (its creation)." Executive Order No.
2 gives additional and more specific data and directions respecting
"the recovery of ill-gotten properties amassed by the leaders and
supporters of the previous regime." It declares that: 1) "* * the
Government of the Philippines is in possession of evidence
showing that there are assets and properties purportedly
pertaining to former Fer-
dinand E. Marcos, and/or his wife Mrs. Imelda Romualdez Marcos,
their close relatives, subordinates, business associates, dummies,
agents or nominees which had been or were acquired by them
directly or indirectly, through or as a result of the improper or
illegal use of funds or properties owned by the government of the
Philippines or any of its branches, instrumentalities, enterprises,
banks or financial institutions, or by taking undue advantage of
their office, authority, influence, connections or relationship,
resulting in their unjust enrichment and causing grave damage
and prejudice to the Filipino people and the Republic of the
Philippines;" and 2) "* * said assets and properties are in the
form of bank accounts, deposits, trust accounts, shares of stocks,
buildings, shopping centers, condominiums, mansions, residences,
estates, and other kinds of real and personal properties in the
Philippines and in various countries of the world." Upon these
premises, the President—1) froze "all assets and properties in the
Philippines in which former President Marcos and/or his wife, Mrs.
Imelda Romualdez Marcos, their close relatives, subordinates,
business associates, dummies, agents, or nominees have any
interest or participation;" 2) prohibited former President Ferdinand
Marcos and/or his wife * *, their close relatives, subordinates,
business associates, dummies, agents, or nominees from
transferring, conveying, encumbering, concealing or dissipating
said assets or properties in the Philippines and abroad, pending
the outcome of appropriate proceedings in the Philippines to
determine whether any such assets or properties were acquired
by them through or as a result of improper or illegal use of or the
conversion of funds belonging to the Government of the
Philippines or any of its branches, instrumentalities, enterprises,
banks or financial institutions, or by taking undue advantage of
their official position, authority, relationship, connection or
influence to unjustly enrich themselves at the expense and to the
grave damage and prejudice of the Filipino people and the
Republic of the Philippines;" 3) prohibited "any person from
transferring, conveying, encumbering or otherwise depleting or
concealing such assets and properties or from assisting or taking
part in their transfer, encumbrance, concealment or dissipation
under pain of such penalties as are prescribed by law;" and 4)
required "all persons in the Philippines holding such assets or
properties, whether located in the Philippines or abroad, in their
names as nominees, agents or trustees, to make full disclosure of
the same to the Commission on Good Government within thirty
(30) days from publication of * (the) Executive Order, * *." A
third executive order is relevant: Executive Order No. 14, by
which the PCGG is empowered, "with the
assistance of the Office of the Solicitor General and other
government agencies, * * to file and prosecute all cases
investigated by it * * as may be warranted by its findings." All
such cases, whether civil or criminal, are to be filed "with the
Sandiganbayan, which shall have exclusive and original
jurisdiction thereof." Executive Order No. 14 also pertinently
provides that "(c)ivil suits for restitution, reparation of damages,
or indemnification for consequential damages, forfeiture
proceedings provided for under Republic Act No. 1379, or any
other civil actions under the Civil Code or other existing laws, in
connection with * * (said Executive Orders Numbered 1 and 2)
may be filed separately from and proceed independently of any
criminal proceedings and may be proved by a preponderance of
evidence;" and that, moreover, the "technical rules of procedure
and evidence shall not be strictly applied to * * (said) civil cases.''
Same; Same; PCGG is not and was never intended to act as a
judge; General functions of PCGG.—It should also by now be
reasonably evident from what has thus far been said that the
PCGG is not, and was never intended to act as, a judge. Its
general function is to conduct investigations in order to collect
evidence establishing instances of "ill-gotten wealth;" issue
sequestration, and such orders as may be warranted by the
evidence thus collected and as may be necessary to preserve and
conserve the assets of which it takes custody and control and
prevent their disappearance, loss or dissipation; and eventually
file and prosecute in the proper court of competent jurisdiction all
cases investigated by it as may be warranted by its findings. It
does not try and decide, or hear and determine, or adjudicate
with any character of finality or compulsion, cases involving the
essential issue of whether or not property should be forfeited and
transferred to the State because "ill-gotten" within the meaning of
the Constitution and the executive orders. This function is
reserved to the designated court, in this case, the Sandiganbayan.
There can therefore be no serious regard accorded to the
accusation, leveled by BASECO, that the PCGG plays the
perfidious role of prosecutor and judge at the same time.
Same; Same; Same; PCGG is not an owner but a conservator who
can exercise only powers of administration over property
sequestered, frozen or provisionally taken over.—One thing is
certain, and should be stated at the outset: the PCGG cannot
exercise acts of dominion over property sequestered, frozen or
provisionally taken over. As already earlier stressed with no little
insistence, the act of
Bataan Shipyard & Engineering Co., Inc, vs. Presidential
Commission on Good Government
sequestration, freezing or provisional takeover of property does
not import or bring about a divestment of title over said property;
does not make the PCGG the owner thereof. In relation to the
property sequestered, frozen or provisionally taken over, the
PCGG is a conservator, not an owner. Therefore, it can not
perform acts of strict ownership; and this is specially true in the
situations contemplated by the sequestration rules where, unlike
cases of receivership, for example, no court exercises effective
supervision or can upon due application and hearing, grant
authority for the performance of acts of dominion. Equally evident
is that the resort to the provisional remedies in question should
entail the least possible interference with business operations or
activities so that, in the event that the accusation of the business
enterprise being "ill-gotten" be not proven, it may be returned to
its rightful owner as far as possible in the same condition as it
was at the time of sequestration. The PCGG may thus exercise
only powers of administration over the property or business
sequestered or provisionally taken over, much like a court-
appointed receiver, such as to bring and defend actions in its own
name; receive rents; collect debts due; pay outstanding debts;
and generally do such other acts and things as may be necessary
to fulfill its mission as conservator and administrator. In this
context, it may in addition enjoin or restrain any actual or
threatened commission of acts by any person or entity that may
render moot and academic, or frustrate or otherwise make
ineffectual its efforts to carry out its task; punish for direct or
indirect contempt in accordance with the Rules of Court; and seek
and secure the assistance of any office, agency or instrumentality
of the government. In the case of sequestered businesses
generally (i.e., going concerns, businesses in current operation),
as in the case of sequestered objects, its essential role, as already
discussed, is that of conservator, caretaker, "watchdog" or
overseer. It is not that of manager, or innovator, much less an
owner.
Same; Same; Same; Same; Need of provisional measures to
collect and conserve assets pending suits; Provisional remedies
prescribed by law.—Nor may it be gainsaid that pending the
institution of the suits for the recovery of such "ill-gotten wealth"
as the evidence at hand may reveal, there is an obvious and
imperative need for preliminary, provisional measures to prevent
the concealment, disappearance, destruction, dissipation, or loss
of the assets and properties subject of the suits, or to restrain or
foil acts that may render moot and academic, or effectively
hamper, delay, or negate efforts to recover the same. To answer
this need, the law has prescribed three
(3) provisional remedies. These are: (1) sequestration; (2) freeze
orders; and (3) provisional takeover. Sequestration and freezing
are remedies applicable generally to unearthed instances of "ill-
gotten wealth." The remedy of "provisional takeover" is peculiar
to cases where "business enterprises and properties (were) taken
over by the government of the Marcos Administration or by
entities or persons close to former President Marcos."
Same; Same; Same; Same; Same; Sequestration, Freeze Order
and Provisional Takeover, meaning.—By the clear terms of the
law, the power of the PCGG to sequester property claimed to be
"illgotten" means to place or cause to be placed under its
possession or control said property, or any building or office
wherein any such property and any records pertaining thereto
may be found, including "business enterprises and entities,"—for
the purpose of preventing the destruction, concealment or
dissipation of, and otherwise conserving and preserving, the same
—until it can be determined, through appropriate judicial
proceedings, whether the property was in truth "ill-gotten," i.e.,
acquired through or as a result of improper or illegal use of or the
conversion of funds belonging to the Government or any of its
branches, instrumentalities, enterprises, banks or financial
institutions, or by taking undue advantage of official position,
authority, relationship, connection or influence, resulting in unjust
enrichment of the ostensible owner and grave damage and
prejudice to the State. And this, too, is the sense in which the
term is commonly understood in other jurisdictions. A "freeze
order" prohibits the person having possession or control of
property alleged to constitute "ill-gotten wealth" "from
transferring, conveying, encumbering or otherwise depleting or
concealing such property, or from assisting or taking part in its
transfer, encumbrance, concealment, or dissipation." In other
words, it commands the possessor to hold the property and
conserve it subject to the orders and disposition of the authority
decreeing such freezing. In this sense, it is akin to a garnishment
by which the possessor or ostensible owner of property is
enjoined not to deliver, transfer, or otherwise dispose of any
effects or credits in his possession or control, and thus becomes
in a sense an involuntary depositary thereof, In providing for the
remedy of "provisional takeover," the law acknowledges the
apparent distinction between "ill-gotten" "business enterprises
and entities" (going concerns, businesses in actual operation),
generally, as to which the remedy of sequestration applies, it
being necessarily inferred that the remedy entails no interference,
or the least possible
interference with the actual management and operations thereof;
and "business enterprises which were taken over by the
government of the Marcos Administration or by entities or persons
close to him," in particular, as to which a "provisional takeover" is
authorized, "in the public interest or to prevent disposal or
dissipation of the enterprises." Such a "provisional takeover"
imports something more than sequestration or freezing, more
than the placing of the business under physical possession and
control, albeit without or with the least possible interference with
the management and carrying on of the business itself. In a
"provisional takeover," what is taken into custody is not only the
physical assets of the business enterprise or entity, but the
business operation as well. It is in fine the assumption of control
not only over things, but over operations or on-going activities.
But, to repeat, such a "provisional takeover" is allowed only as
regards "business enterprises * * taken over by the government
of the Marcos Administration or by entities or persons close to
former President t Marcos.''
Same; Same; Same; Same; Same; Same; Same; Remedies maybe
resorted to by PCGG only for a particular exigency. The law was
not meant to divest title or right of the owner over the property
sequestered, frozen or takenover.—lt may perhaps be well at this
point to stress once again the provisional, contingent character of
the remedies just described. Indeed the law plainly qualifies the
remedy of takeover by the adjective, "provisional." These
remedies may be resorted to only for a particular exigency: to
prevent in the public interest the disappearance or dissipation of
property or business, and conserve it pending adjudgment in
appropriate proceedings of the primary issue of whether or not
the acquisition of title or other right thereto by the apparent
owner was attended by some vitiating anomaly. None of the
remedies is meant to deprive the owner or possessor of his title or
any right to the property sequestered, frozen or taken over and
vest it in the sequestering agency, the Government or other
person. This can be done only for the causes and by the
processes laid down by law. That this is the sense in which the
power to sequester, freeze or provisionally take over is to be
understood and exercised, the language of the executive orders in
question leaves no doubt. Executive Order No. 1 declares that the
sequestration of property the acquisition of which is suspect shall
last "until the transactions leading to such acquisition * * can be
disposed of by the appropriate authorities." Executive Order No. 2
declares that the assets or properties therein mentioned shall
remain frozen "pending the out-
come of appropriate proceedings in the Philippines to determine
whether any such assets or properties were acquired" by illegal
means. Executive Order No. 14 makes clear that judicial
proceedings are essential for the resolution of the basic issue of
whether or not particular assets are "ill-gotten," and resultant
recovery thereof by the Government is warranted.
Same; Same; Same; Same; Same; Same; Same; Same; Same;
Duration of these provisional remedies.—There is thus no cause
for the apprehension voiced by BASECO that sequestration,
freezing or provisional takeover is designed to be an end in itself,
that it is the device through which persons may be deprived of
their property branded as "ill-gotten," that it is intended to bring
about a permanent, rather than a passing, transitional state of
affairs. That this is not so is quite explicitly declared by the
governing rules. Be this as it may, the 1987 Constitution should
allay any lingering fears about the duration of these provisional
remedies. Section 26 of its Transitory Provisions lays down the
relevant rule in plain terms, apart from extending ratification or
confirmation (although not really necessary) to the institution by
presidential fiat of the remedy of sequestration and freeze orders:
"SEC. 26. The authority to issue sequestration or freeze orders
under Proclamation No. 3 dated March 25, 1986 in rela-tion to the
recovery of ill-gotten wealth shall remain operative f or not more
than eighteen months after the ratification of this Constitution.
However, in the national interest, as certified by the President,
the Congress may extend said period. "A sequestration or freeze
order shall be issued only upon showing of a prima facie case.
The order and the list of the sequestered or frozen properties
shall forthwith be registered with the proper court. For orders
issued before the ratification of this Constitution, the
corresponding judicial action or proceeding shall be filed within six
months from its ratification. For those issued after such
ratification, the judicial action or proceeding shall be commenced
within six months from the issuance thereof. "The sequestration
or freeze order is deemed automatically lifted if no judicial action
or proceeding is commenced as herein provided." As thus
described, sequestration, freezing and provisional takeover are
akin to the provisional remedy of preliminary attachment, or
receivership. By attachment, a sheriff seizes property of a
defendant in a civil suit so that it may stand as security for the
satisfaction of any judgment that may be obtained, and not
disposed of, or dissipated, or lost intentionally or otherwise,
pending the action. By receivership, property, real or personal,
which is subject of litigation, is
placed in the possession and control of a receiver appointed by
the Court, who shall conserve it pending final determination of the
title or right of possession over it. All these remedies—
sequestration, freezing, provisional takeover, attachment and
receivership—are provisional, temporary, designed for particular
exigencies, attended by no character of permanency or finality,
and always subject to the control of the issuing court or agency.
Same; Same; Same; Same; Same; Same; Same; Same; Same;
Same; Same; Remedies non-judicial and writs may be issued
exparte.—Parenthetically, that writs of sequestration or freeze or
takeover orders are not issued by a court is of no moment. The
Solicitor General draws attention to the writ of distraint and levy
which since 1936 the Commissioner of Internal Revenue has been
by law authorized to issue against property of a delinquent
taxpayer. BASECO itself declares that it has not manifested "a
rigid insistence on sequestration as a purely judicial remedy * *
(as it feels) that the law should not be ossified to a point that
makes it insensitive to change." What it insists on, what it
pronounces to be its "unyielding position, is that any change in
procedure, or the institution of a new one, should conform to due
process and the other prescriptions of the Bill of Rights of the
Constitution." It is, to be sure, a proposition on which there can
be no disagreement. Like the remedy of preliminary attachment
and receivership, as well as delivery of personal property in
replevin suits, sequestration and provisional takeover writs may
issue ex parte. And as in preliminary attachment, receivership,
and delivery of personalty, no objection of any significance may
be raised to the ex parte issuance of an order of sequestration,
freezing or takeover, given its fundamental character of
temporariness or conditionality; and taking account specially of
the constitutionally expressed "mandate of the people to recover
ill-gotten properties amassed by the leaders and supporters of the
previous regime and protect the interest of the people;" as well as
the obvious need to avoid alerting suspected possessors of "ill-
gotten wealth" and thereby cause that disappearance or loss of
property precisely sought to be prevented, and the fact, just as
self-evident, that "any transfer, disposition, concealment or
disappearance of said assets and properties would frustrate,
obstruct or hamper the efforts of the Government" at the just
recovery thereof.
Same; Same; Same; Same; Same; Same; Same; Same; Same;
Same; Same; Same; Requisites for validity of sequestration,
freeze or
takeover order.—What is indispensable is that, again as in the
case of attachment and receivership, there exist a prima facie
factual foundation, at least, for the sequestration, freeze or
takeover order, and adequate and fair opportunity to contest it
and endeavor to cause its negation or nullification. Both are
assured under the executive orders in question and the rules and
regulations promulgated by the PCGG. Executive Order No. 14
enjoins that there be "due regard to the requirements of fairness
and due process." Executive Order No. 2 declares that with
respect to claims on allegedly "ill-gotten" assets and properties, "it
is the position of the new democratic government that President
Marcos * * (and other parties affected) be afforded fair
opportunity to contest these claims before appropriate Philippine
authorities." Section 7 of the Commission's Rules and Regulations
provides that sequestration or freeze (and takeover) orders issue
upon the authority of at least two commissioners, based on the
affirmation or complaint of an interested party, or motu proprio
when the Commission has reasonable grounds to believe that the
issuance thereof is warranted. A similar requirement is now found
in Section 26, Art. XVIII of the 1987 Constitution, which requires
that a "sequestration or freeze order shall be issued only upon
showing of a prima facie case." And Sections 5 and 6 of the same
Rules and Regulations lay down the procedure by which a party
may seek to set aside a writ of sequestration or freeze order, viz:
"SECTION 5. Who may contend—The person against whom a writ
of sequestration or freeze or hold order is directed may request
the lifting thereof in writing, either personally or through counsel
within five (5) days from receipt of the writ or order, or in the
case of a hold order, from date of knowledge thereof. "SECTION
6. Procedure for review of writ or order.—After due hearing or
motu proprio for good cause shown, the Commission may lift the
writ or order unconditionally or subject to such conditions as it
may deem necessary, taking into consideration the evidence and
the circumstance of the case. The resolution of the Commission
may be appealed by the party concerned to the Office of the
President of the Philippines within fifteen (15) days from receipt
thereof." Parenthetically, even if the requirement for a prima facie
showing of "ill-gotten wealth" were not expressly imposed by
some rule or regulation as a condition to warrant the
sequestration or freezing of property contemplated in the
executive orders in question, it would nevertheless be exigible in
this jurisdiction in which the Rule of Law prevails and official acts
which are devoid of rational basis in fact or law, or are whimsical
and capricious, are condemned and struck down.
Same; Same; Same; Same; Same; Same; Same; Same; Same;
Same; Same; Same; Same; Remedies and authority of PCGG to
issue writs and orders, constitutionality approved and sanctioned.
—lf any doubt should still persist in the face of the foregoing
considerations as to the validity and propriety of sequestration,
freeze and takeover orders, it should be dispelled by the fact that
these particular remedies and the authority of the PCGG to issue
them have received constitutional approbation and sanction. As
already mentioned, the Provisional or "Freedom" Constitution
recognizes the power and duty of the President to enact
"measures to achieve the mandate of the people to * * *
(r)ecover ill-gotten properties amassed by the leaders and
supporters of the previous regime and protect the interest of the
people through orders of sequestration or freezing of assets or
accounts." And as also already adverted to, Section 26, Article
XVIII of the 1987 Constitution treats of, and ratifies the "authority
to issue sequestration or freeze orders under Proclamation No. 3
dated March 25, 1986." The institution of these provisional
remedies is also premised upon the State's inherent police power,
regarded as "the power of promoting the public welfare by
restraining and regulating the use of liberty and property," and as
"the most essential, insistent and illimitable of powers * * in the
promotion of general welfare and the public interest," and said to
be "co-extensive with self-protection and * * not inaptly termed
(also) the 'law of overruling necessity.' "
SPECIAL CIVIL ACTION for certiorari and prohibition to review the
order of the Presidential Commission on Good Government.
The facts are stated in the opinion of the Court.
Apostol, Bernas, Gumaru, Ona and Associates for petitioner.
Vicente G. Sison for intervenor A.T. Abesamis.
NARVASA, J.:
Challenged in this special civil action of certiorari and prohibition
by a private corporation known as the Bataan Shipyard and
Engineering Co., Inc. are: (1) Executive Orders Numbered 1 and
2, promulgated by President Corazon C. Aquino on February 28,
1986 and March 12, 1986, respectively, and (2) the sequestration,
takeover, and other orders issued,
and acts done, in accordance with said executive orders by the
Presidential Commission on Good Government and/or its
Commissioners and agents, affecting said corporation.
1. The Sequestration, Takeover, and Other Orders Complained of
a. The Basic Sequestration Order
The sequestration order which, in the view of the petitioner
corporation, initiated all its misery, was issued on April 14, 1986
by Commissioner Mary Concepcion Bautista. It was addressed to
three of the agents of the Commission, hereafter simply referred
to as PCGG. It reads as follows:
"RE: SEQUESTRATION ORDER
By virtue of the powers vested in the Presidential Commission on
Good Government, by authority of the President of the
Philippines, you are hereby directed to sequester the following
companies:
1. Bataan Shipyard and Engineering Co., Inc. (Engineering Island
Shipyard and Mariveles Shipyard)
2. Baseco Quarry
3. Philippine Jai-Alai Corporation
4. Fidelity Management Co., Inc.
5. Romson Realty, Inc.
6. Trident Management Co.
7. New Trident Management
8. Bay Transport
9. And all affiliate companies of Alfredo "Bejo" Romualdez
You are hereby ordered:
1. To implement this sequestration order with a minimum
disruption of these companies' business activities.
2. To ensure the continuity of these companies as going concerns,
the care and maintenance of these assets until such time that the
Office of the President through the Commission on Good
Government should decide otherwise.
3. To report to the Commission on Good Government
periodically.
Further, you are authorized to request for Military/Security
Support from the Military/Police authorities, and such other acts
essential to the achievement of this sequestration order."1
b. Order for Production of Documents
On the strength of the above sequestration order, Mr. Jose M.
Balde, acting for the PCGG, addressed a letter dated April 18,
1986 to the President and other officers of petitioner firm,
reiterating an earlier request for the production of certain
documents, to wit:
1. Stock Transfer Book
2. Legal documents, such as:
2.1. Articles of Incorporation
2.2. By-Laws
2.3. Minutes of the Annual Stockholders Meeting from 1973 to
1986
2.4. Minutes of the Regular and Special Meetings of the Board of
Directors from 1973 to 1986
2.5. Minutes of the Executive Committee Meetings from 1973 to
1986
2.6. Existing contracts with suppliers/contractors/others.
3. Yearly list of stockholders with their corresponding
share/stockholdings from 1973 to 1986 duly certified by the
Corporate Secretary.
4. Audited Financial Statements such as Balance Sheet, Profit &
Loss and others from 1973 to December 31, 1985.
5. Monthly Financial Statements for the current year up to March
31, 1986.
6. Consolidated Cash Position Reports from January to April 15,
1986.
7. Inventory listings of assets updated up to March 31, 1986.
8. Updated schedule of Accounts Receivable and Accounts
Payable.
9. Complete list of depository banks for all funds with the
authorized signatories for withdrawals thereof.
10. Schedule of company investments and placements.2
The letter closed with the warning that if the documents were not
submitted within five days, the officers would be cited for
"contempt in pursuance with Presidential Executive Order Nos. 1
and 2."
c. Orders Re Engineer Island
(1) Termination of Contract for Security Services
A third order assailed by petitioner corporation, hereafter referred
to simply as BASECO, is that issued on April 21, 1986 by a Capt.
Flordelino B. Zabala, a member of the task force assigned to carry
out the basic sequestration order. He sent a letter to BASECO's
Vice-President for Finance,3 terminating the contract for security
services within the Engineer Island compound between BASECO
and "Anchor and FAIRWAYS" and "other civilian security
agencies/' CAPCOM military personnel having already been
assigned to the area.
(2) Change of Mode of Payment of Entry Charges
On July 15, 1986, the same Capt. Zabala issued a Memorandum
addressed to "Truck Owners and Contractors," particularly a "Mr.
Buddy Ondivilla, National Marine Corporation/' advising of the
amendment in part of their contracts with BASECO in the sense
that the stipulated charges for use of the BASECO road network
were made payable "upon entry and not anymore subject to
monthly billing as was originally agreed upon."4
d. Aborted Contract for Improvement of Wharf at Engineer Island
On July 9,1986, a PCGG fiscal agent, S. Berenguer, entered into a
contract in behalf of BASECO with Deltamarine Integrated Port
Services, Inc., in virtue of which the latter undertook to introduce
improvements costing approximately P210,000.00 on the BASECO
wharf at Engineer Island, allegedly then in poor condition,
avowedly to "optimize its utilization and in return maximize the
revenue which would flow into the government coffers," in
consideration of Deltamarine's being granted "priority in using the
improved portion of the wharf ahead of anybody" and exemption
"from the payment of any charges for the use of wharf including
the area where it may install its bagging equipments" "until the
improvement remains in a condition suitable for port
operations."5 It seems however that this contract was never
consummated. Capt. Jorge B. Siacunco, "Head-(PCGG) BASECO
Management Team," advised Deltamarine by letter dated July 30,
1986 that "the new management is not in a position to honor the
said contract" and thus "whatever improvements * * (may be
introduced) shall be deemed unauthorized * * and shall be at * *
(Deltamarine's) own risk.''6
e. Order for Operation of Sesiman Rock Quarry, Mariveles, Bataan
By Order dated June 20, 1986, Commissioner Mary Bautista first
directed a PCGG agent, Mayor Melba O. Buenaventura, "to plan
and implement progress towards maximizing the continuous
operation of the BASECO Sesiman Rock Quarry * * by
conventional methods;" but afterwards, Commissioner Bautista, in
representation of the PCGG, authorized another party, A.T.
Abesamis, to operate the quarry, located at Mariveles, Bataan, an
agreement to this effect hav-
ing been executed by them on September 17, 1986.7
f. Order to Dispose of Scrap, etc.
By another Order of Commissioner Bautista, this time dated June
26, 1986, Mayor Buenaventura was also "authorized to clean and
beautify the Company's compound," and in this connection, to
dispose of or sell "metal scraps" and other materials, equipment
and machineries no longer usable, subject to specified guidelines
and safeguards including audit and verification.8
g. The TAKEOVER Order
By letter dated July 14,1986, Commissioner Ramon A. Diaz
decreed the provisional takeover by the PCGG of BASECO, "the
Philippine Dockyard Corporation and all their affiliated
companies."9 Diaz invoked the provisions of Section 3 (c) of
Executive Order No. 1, empowering the Commission—
"* * To provisionally takeover in the public interest or to prevent
its disposal or dissipation, business enterprises and properties
taken over by the government of the Marcos Administration or by
entities or persons close to former President Marcos, until the
transactions leading to such acquisition by the latter can be
disposed of by the appropriate authorities."
A management team was designated to implement the order,
headed by Capt. Siacunco, and was given the following powers:
'' 1. Conducts all aspect s of oper ation of the subj ect companies;
2. Installs key officers, hires and terminates personnel as
necessary;
_______________
3. Enters into contracts related to management and operation of
the companies;
4. Ensures that the assets of the companies are not dissipated
and used effectively and efficiently; revenues are duly accounted
for; and disburses funds only as may be necessary;
5. Does actions including among others, seeking of military
support as may be necessary, that will ensure compliance to this
order;
6. Holds itself fully accountable to the Presidential Commission on
Good Government on all aspects related to this take-over order."
h. Termination of Services of BASECO Officers
Thereafter, Capt. Siacunco sent letters to Hilario M. Ruiz, Manuel
S. Mendoza, Moises M. Valdez, Gilberto Pasimanero, and Benito R.
Cuesta I, advising of the termination of their services by the
PCGG.10
2. Petitioner's Plea and Postulates
It is the foregoing specific orders and acts of the PCGG and its
members and agents which, to repeat, petitioner B ASECO would
have this Court nullify. More particularly, BASECO prays that this
Court—
1) declare unconstitutional and void Executive Orders Numbered 1
and 2;
2) annul the sequestration order dated April 14, 1986, and all
other orders subsequently issued and acts done on the basis
thereof, inclusive of the takeover order of July 14,1986 and the
termination of the services of the B ASECO executives.11
a. Re Executive Orders No. 1 and 2, and the Sequestration and
Takeover Orders
While BASECO concedes that "sequestration, without
resorting to judicial action, might be made within the context of
Executive Orders Nos. 1 and 2 before March 25, 1986 when the
Freedom Constitution was promulgated, under the principle that
the law promulgated by the ruler under a revolutionary regime is
the law of the land, it ceased to be acceptable when the same
ruler opted to promulgate the Freedom Constitution on March 25,
1986 wherein under Section 1 of the same, Article IV (Bill of
Rights) of the 1973 Constitution was adopted providing, among
others, that 'No person shall be deprived of life, liberty and
property without due process of law.' (Const, Art. IV, Sec. 1)."12
It declares that its objection to the constitutionality of the
Executive Orders "as well as the Sequestration Order * * and
Takeover Order * * issued purportedly under the authority of said
Executive Orders, rests on four fundamental considerations: First,
no notice and hearing was accorded * * (it) before its properties
and business were taken over; Second, the PCGG is not a court,
but a purely investigative agency and therefore not competent to
act as prosecutor and judge in the same cause; Third, there is
nothing in the issuances which envisions any proceeding, process
or remedy by which petitioner may expeditiously challenge the
validity of the takeover after the same has been effected; and
Fourthly, being directed against specified persons, and in
disregard of the constitutional presumption of innocence and
general rules and procedures, they constitute a Bill of
Attainder."13
b. Re Order to Produce Documents
It argues that the order to produce corporate records from 1973
to 1986, which it has apparently already complied with, was
issued without court authority and infringed its constitutional right
against self-incrimination, and unreasonable search and
seizure.14
c. Re PCGG's Exercise of Right of Ownership and Management
BASECO further contends that the PCGG had unduly interfered
with its right of dominion and management of its business affairs
by—
1) terminating its contract for security services with Fairways &
Anchor, without the consent and against the will of the
contracting parties; and amending the mode of payment of entry
fees stipulated in its Lease Contract with National Stevedoring &
Lighterage Corporation, these acts being in violation of the non-
impairment clause of the constitution;15
2) allowing PCGG Agent Silverio Berenguer to enter into an
"anomalous contract" with Deltamarine Integrated Port Services,
Inc., giving the latter free use of BASECO premises;16
3) authorizing PCGG Agent, Mayor Melba Buenaventura, to
manage and operate its rock quarry at Sesiman, Mariveles;17
4) authorizing the same mayor to sell or dispose of its metal
scrap, equipment, machinery and other materials;18
5) authorizing the takeover of BASECO, Philippine Dockyard
Corporation, and all their affiliated companies;
6) terminating the services of BASECO executives: President
Hilario M. Ruiz; EVP Manuel S. Mendoza; GM Moises M. Valdez;
Finance Mgr. Gilberto Pasimanero; Legal Dept. Mgr. Benito R.
Cuesta I;19
7) planning to elect its own Board of Directors;20
8) "allowing willingly or unwillingly its personnel to take, steal,
carry away from petitioner's premises at Mariveles * *
rolls of cable wires, worth P600,000.00 on May 11,1986;"21
9) allowing "indiscriminate diggings" at Engineer Island to retrieve
gold bars supposed to have been buried therein.22
3. Doubts, Misconceptions regarding Sequestration, Freeze and
Takeover Orders
Many misconceptions and much doubt about the matter of
sequestration, takeover and freeze orders have been engendered
by misapprehension, or incomplete comprehension if not indeed
downright ignorance of the law governing these remedies. It is
needful that these misconceptions and doubts be dispelled so that
uninformed and useless debates about them may be avoided, and
arguments tainted by sophistry or intellectual dishonesty be
quickly exposed and discarded. Towards this end, this opinion will
essay an exposition of the law on the matter. In the process many
of the objections raised by B ASECO will be dealt with.
4. The Governing Law
a. Proclamation No. 3
The impugned executive orders are avowedly meant to carry out
the explicit command of the Provisional Constitution, ordained by
Proclamation No. 3,23 that the President—in the exercise of
legislative power which she was authorized to continue to wield
"(u)ntil a legislature is elected and convened under a new
Constitution"—"shall give priority to measures to achieve the
mandate of the people," among others to (r)ecover ill-gotten
properties amassed by the leaders and supporters of the previous
regime and protect the interest of the people through orders of
sequestration or freezing of assets or accounts. "24
b. Executive Order No. 1
Executive Order No. 1 stresses the "urgent need to recover all ill-
gotten wealth," and postulates that "vast resources of the
government have been amassed by former President Ferdinand E.
Marcos, his immediate family, relatives, and close associates both
here and abroad."25 Upon these premises, the Presidential
Commission on Good Government was created,26 "charged with
the task of assisting the President in regard to * * (certain
specified) matters," among which was precisely—
"* * The recovery of all ill-gotten wealth accumulated by former
President Ferdinand E. Marcos, his immediate family, relatives,
subordinates and close associates, whether located in the
Philippines or abroad, including the takeover or sequestration of
all business enterprises and entities owned or controlled by them,
during his administration, directly or through nominees, by taking
undue advantage of their public office and/or using their powers,
authority, influence, connections or relationship."27
In relation to the takeover or sequestration that it was authorized
to undertake in the fulfillment of its mission, the PCGG was
granted "power and authority" to do the following particular acts,
to wit:
1. "To sequester or place or cause to be placed under its control
or possession any building or office wherein any ill-gotten wealth
or properties may be found, and any records pertaining thereto,
in order to prevent their destruction, concealment or
disappearance which would frustrate or hamper the investigation
or otherwise prevent the Commission from accomplishing its
task."
2. "To provisionally take over in the public interest or to prevent
the disposal or dissipation, business enterprises and properties
taken over by the government of the Marcos Administration or by
entities or persons close to former President Marcos, until the
transactions leading to such acquisition by the latter can be
disposed of
by the appropriate authorities."
3. "To enjoin or restrain any actual or threatened commission of
acts by any person or entity that may render moot and academic,
or frustrate or otherwise make ineffectual the efforts of the
Commission to carry out its task under this order."28
So that it might ascertain the facts germane to its objectives, it
was granted power to conduct investigations; require submission
of evidence by subpoenae ad testificandum and duces tecum;
administer oaths; punish for contempt.29 It was given power also
to promulgate such rules and regulations as may be necessary to
carry out the purposes of * * (its creation)."30
c. Executive Order No. 2
Executive Order No. 2 gives additional and more specific data and
directions respecting "the recovery of ill-gotten properties
amassed by the leaders and supporters of the previous regime." It
declares that:
1) "* * the Government of the Philippines is in possession of
evidence showing that there are assets and properties purportedly
pertaining to former Ferdinand E. Marcos, and/or his wife Mrs.
Imelda Romualdez Marcos, their close relatives, subordinates,
business associates, dummies, agents or nominees which had
been or were acquired by them directly or indirectly, through or
as a result of the improper or illegal use of funds or properties
owned by the government of the Philippines or any of its
branches, instrumentalities, enterprises, banks or financial
institutions, or by taking undue advantage of their office,
authority, influence, connections or relationship, resulting in their
unjust enrichment and causing grave damage and prejudice to
the Filipino people and the Republic of the Philippines;" and
2) "* * said assets and properties are in the form of bank
accounts, deposits, trust accounts, shares of stocks, buildings,
shop
ping centers, condominiums, mansions, residences, estates, and
other kinds of real and personal properties in the Philippines and
in various countries of the world. "31
Upon these premises, the President—
1)froze "all assets and properties in the Philippines in which
former President Marcos and/or his wife, Mrs. Imelda Romualdez
Marcos, their close relatives, subordinates, business associates,
dummies, agents, or nominees have any interest or participation;"
2)prohibited former President Ferdinand Marcos and/or his wife *
*, their close relatives, subordinates, business associates,
dummies, agents, or nominees from transferring, conveying,
encumbering, concealing or dissipating said assets or properties in
the Philippines and abroad, pending the outcome of appropriate
proceedings in the Philippines to determine whether any such
assets or properties were acquired by them through or as a result
of improper or illegal use of or the conversion of funds belonging
to the Government of the Philippines or any of its branches,
instrumentalities, enterprises, banks or financial institutions, or by
taking undue advantage of their official position, authority,
relationship, connection or influence to unjustly enrich themselves
at the expense and to the grave damage and prejudice of the
Filipino people and the Republic of the Philippines;"
3)prohibited "any person from transferring, conveying,
encumbering or otherwise depleting or concealing such assets and
properties or from assisting or taking part in their transfer,
encumbrance, concealment or dissipation under pain of such
penalties as are prescribed by law;" and
4)required "all persons in the Philippines holding such assets or
properties, whether located in the Philippines or abroad, in their
names as nominees, agents or trustees, to make full disclosure of
the same to the Commission on Good Government within thirty
(30) days from publication of * (the) Executive Order, **."32
d. Executive Order No. 14
A third executive order is relevant: Executive Order No.
14,33 by which the PCGG is empowered, "with the assistance of
the Office of the Solicitor General and other government agencies,
* * to file and prosecute all cases investigated by it * * as may be
warranted by its findings."34 All such cases, whether civil or
criminal, are to be filed "with the Sandiganbayan, which shall
have exclusive and original jurisdiction thereof."35 Executive
Order No. 14 also pertinently provides that "(c)ivil suits for
restitution, reparation of damages, or indemnification for
consequential damages, forfeiture proceedings provided for under
Republic Act No. 1379, or any other civil actions under the Civil
Code or other existing laws, in connection with * * (said Executive
Orders Numbered 1 and 2) may be filed separately from and
proceed independently of any criminal proceedings and may be
proved by a preponderance of evidence;" and that, moreover, the
"technical rules of procedure and evidence shall not be strictly
applied to * * (said) civil cases.''36
5. Contemplated Situations
The situations envisaged and sought to be governed are
selfevident, these being:
1) that "(i)ll-gotten properties (were) amassed by the leaders and
supporters of the previous regime";37
a) more particularly, that "(i)ll-gotten wealth (was) accumulated
by former President Ferdinand E. Marcos, his immediate family,
relatives, subordinates and close associates, * * located in the
Philippines or abroad, * * (and) business enterprises and entities
(came to be) owned or controlled by them, during * * (the
Marcos) administration, directly or through nominees, by taking
undue advantage of their public
office and/or using their powers, authority, influence, connections
or relationship;''38

b) otherwise stated, that "there are assets and properties
purportedly pertaining to former President Ferdinand E. Marcos,
and/or his wife Mrs. Imelda Romualdez Marcos, their close
relatives, subordinates, business associates, dummies, agents or
nominees which had been or were acquired by them directly or
indirectly, through or as a result of the improper or illegal use of
funds or properties owned by the Government of the Philippines
or any of its branches, instrumentalities, enterprises, banks or
financial institutions, or by taking undue advantage of their office,
authority, influence, connections or relationship, resulting in their
unjust enrichment and causing grave damage and prejudice to
the Filipino people and the Republic of the Philippines";39
c) that "said assets and properties are in the form of bank
accounts, deposits, trust accounts, shares of stocks, buildings,
shopping centers, condominiums, mansions, residences, estates,
and other kinds of real and personal properties in the Philippines
and in various countries of the world;"40 and
2) that certain "business enterprises and properties (were) taken
over by the government of the Marcos Administration or by
entities or persons close to former President Marcos."41
6. Government's 'Right and Duty to Recover All Illgotten Wealth
There can be no debate about the validity and eminent propriety
of the Government's plan "to recover all ill-gotten wealth."
Neither can there be any debate about the proposition that
assuming the above described factual premises of the Executive
Orders and Proclamation No. 3 to be true, to be
demonstrable by competent evidence, the recovery from Marcos,
his family and his minions of the assets and properties involved, is
not only a right but a duty on the part of Government.
But however plain and valid that right and duty may be, still a
balance must be sought with the equally compelling necessity that
a proper respect be accorded and adequate protection assured,
the fundamental rights of private property and free enterprise
which are deemed pillars of a free society such as ours, and to
which all members of that society may without exception lay
claim.
" * * Democracy, as a way of life enshrined in the Constitution,
embraces as its necessary components freedom of conscience,
freedom of expression, and freedom in the pursuit of happiness.
Along with these freedoms are included economic freedom and
freedom of enterprise within reasonable bounds and under proper
control. * * Evincing much concern for the protection of property,
the Constitution distinctly recognizes the preferred position which
real estate has occupied in law for ages. Property is bound up
with every aspect of social life in a democracy as democracy is
conceived in the Constitution. The Constitution realizes the
indispensable role which property, owned in reasonable quantities
and used legitimately, plays in the stimulation to economic effort
and the formation and growth of a solid social middle class that is
said to be the bulwark of democracy and the backbone of every
progressive and happy country."42
a. Need of Evidentiary Substantiation in Proper Suit
Consequently, the factual premises of the Executive Orders
cannot simply be assumed. They will have to be duly established
by adequate proof in each case, in a proper judicial proceeding,
so that the recovery of the ill-gotten wealth may be validly and
properly adjudged and consummated; although there are some
who maintain that the fact—that an immense fortune, and "vast
resources of the government have been
amassed by former President Ferdinand E. Marcos, his immediate
family, relatives, and close associates both here and abroad," and
they have resorted to all sorts of clever schemes and
manipulations to disguise and hide their illicit acquisitions—is
within the realm of judicial notice, being of so extensive notoriety
as to dispense with proof thereof. Be this as it may, the
requirement of evidentiary substantiation has been expressly
acknowledged, and the procedure to be followed explicitly laid
down, in Executive Order No. 14.
b. Need of Provisional Measures to Collect and Conserve Assets
Pending Suits
Nor may it be gainsaid that pending the institution of the suits for
the recovery of such "ill-gotten wealth" as the evidence at hand
may reveal, there is an obvious and imperative need for
preliminary, provisional measures to prevent the concealment,
disappearance, destruction, dissipation, or loss of the assets and
properties subject of the suits, or to restrain or foil acts that may
render moot and academic, or effectively hamper, delay, or
negate efforts to recover the same.
7. Provisional Remedies Prescribed by Law
To answer this need, the law has prescribed three (3) provisional
remedies. These are: (1) sequestration; (2) freeze orders; and (3)
provisional takeover.
Sequestration and freezing are remedies applicable generally to
unearthed instances of "ill-gotten wealth." The remedy of
"provisional takeover" is peculiar to cases where "business
enterprises and properties (were) taken over by the government
of the Marcos Administration or by entities or persons close to
former President Marcos."43
a. Sequestration
By the clear terms of the law, the power of the PCGG to se-
quester property claimed to be "ill-gotten" means to place or
cause to be placed under its possession or control said property,
or any building or office wherein any such property and any
records pertaining thereto may be found, including "business
enterprises and entities,"—for the purpose of preventing the
destruction, concealment or dissipation of, and otherwise
conserving and preserving, the same—until it can be determined,
through appropriate judicial proceedings, whether the property
was in truth "ill-gotten," i.e., acquired through or as a result of
improper or illegal use of or the conversion of funds belonging to
the Government or any of its branches, instrumentalities,
enterprises, banks or financial institutions, or by taking undue
advantage of official position, authority, relationship, connection
or influence, resulting in unjust enrichment of the ostensible
owner and grave damage and prejudice to the State.44 And this,
too, is the sense in which the term is commonly understood in
other jurisdictions.45
b. "Freeze Order"
A "freeze order" prohibits the person having possession or control
of property alleged to constitute "ill-gotten wealth" "from
transferring, conveying, encumbering or otherwise depleting or
concealing such property, or from assisting or taking part in its
transfer, encumbrance, concealment, or dissipation."46 In other
words, it commands the possessor to hold the property and
conserve it subject to the orders and disposition of the authority
decreeing such freezing. In this sense, it is akin to a garnishment
by which the possessor or ostensible owner of property is
enjoined not to deliver, transfer, or otherwise dispose of any
effects or credits in his possession or control, and thus becomes
in a sense an involuntary depositary thereof.47
c. Provisional Takeover
In providing for the remedy of "provisional takeover," the law
acknowledges the apparent distinction between "illgotten"
"business enterprises and entities" (going concerns, businesses in
actual operation), generally, as to which the remedy of
sequestration applies, it being necessarily inferred that the
remedy entails no interference, or the least possible interference
with the actual management and operations
thereof; and "business enterprises which were taken over by the
government of the Marcos Administration or by entities or persons
close to him," in particular, as to which a "provisional takeover" is
authorized, "in the public interest or to prevent disposal or
dissipation of the enterprises."48 Such a "provisional takeover"
imports something more than sequestration or freezing, more
than the placing of the business under physical possession and
control, albeit without or with the least possible interference with
the management and carrying on of the business itself. In a
"provisional takeover," what is taken into custody is not only the
physical assets of the business enterprise or entity, but the
business operation as well. It is in fine the assumption of control
not only over things, but over operations or on-going activities.
But, to repeat, such a "provisional takeover" is allowed only as
regards "business enterprises * * taken over by the government
of the Marcos Administration or by entities or persons close to
former President Marcos."
d. No Divestment of Title Over Property Seized
It may perhaps be well at this point to stress once again the
provisional, contingent character of the remedies just described.
Indeed the law plainly qualifies the remedy of takeover by the
adjective, "provisional." These remedies may be resorted to only
for a particular exigency: to prevent in the public interest the
disappearance or dissipation of property or business, and
conserve it pending adjudgment in appropriate proceedings of the
primary issue of whether or not the acquisition of title or other
right thereto by the apparent owner was attended by some
vitiating anomaly. None of the remedies is meant to deprive the
owner or possessor of his title or any right to the property
sequestered, frozen or taken over and vest it in the sequestering
agency, the Government or other person. This can be done only
for the causes and by the processes laid down by law.
That this is the sense in which the power to sequester, freeze or
provisionally take over is to be understood and exercised, the
language of the executive orders in question leaves no doubt.
Executive Order No. 1 declares that the sequestration of property
the acquisition of which is suspect shall last "until the transactions
leading to such acquisition * * can be disposed of by the
appropriate authorities."49 Executive "Order No. 2 declares that
the assets or properties therein mentioned shall remain frozen
"pending the outcome of appropriate proceedings in the
Philippines to determine whether any such assets or properties
were acquired" by illegal means. Executive Order No. 14 makes
clear that judicial proceedings are essential for the resolution of
the basic issue of whether or not particular assets are "ill-gotten,"
and resultant recovery thereof by the Government is warranted.
e. State of Seizure Not To Be Indefinitely Maintained; The
Constitutional Command
There is thus no cause for the apprehension voiced by BASECO50
that sequestration, freezing or provisional takeover is designed to
be an end in itself, that it is the device through which persons
may be deprived of their property branded as "ill-gotten," that it is
intended to bring about a permanent, rather than a passing,
transitional state of affairs. That this is not so is quite explicitly
declared by the governing rules.
Be this as it may, the 1987 Constitution should allay any lingering
fears about the duration of these provisional remedies. Section 26
of its Transitory Provisions51 lays down the relevant rule in plain
terms, apart from extending ratification or confirmation (although
not really necessary) to the institution by presidential fiat of the
remedy of sequestration and freeze orders:
"SEC. 26. The authority to issue sequestration or freeze orders
under Proclamation No. 3 dated March 25, 1986 in relation to the
recovery of ill-gotten wealth shall remain operative for not more
than eighteen months after the ratification of this Constitution.
However, in the national interest, as certified by the President,
the Congress may extend said period.
"A sequestration or freeze order shall be issued only upon
showing of a prima facie case. The order and the list of the
sequestered or frozen properties shall forthwith be registered with
the proper court. For orders issued before the ratification of this
Constitution, the corresponding judicial action or proceeding shall
be filed within six months from its ratification. For those issued
after such ratification, the judicial action or proceeding shall be
commenced within six months from the issuance thereof.
"The sequestration or freeze order is deemed automatically lifted
if no judicial action or proceeding is commenced as herein
provided."52
f. Kinship to A ttachment, Receivership
As thus described, sequestration, freezing and provisional
takeover are akin to the provisional remedy of preliminary
attachment, or receivership.53 By attachment, a sheriff seizes
property of a defendant in a civil suit so that it may stand as
security for the satisfaction of any judgment that may be
obtained, and not disposed of, or dissipated, or lost intentionally
or otherwise, pending the action.54 By receivership, property, real
or personal, which is subject of litigation, is placed in the
possession and control of a receiver appointed by the Court, who
shall conserve it pending final determination of the title or right of
possession over it.55 All these remedies—sequestration, freezing,
provisional, takeover, attachment and receivership—are
provisional, temporary, designed for particular exigencies,
attended by no character of permanency or finality,
and always subject to the control of the issuing court or agency.
g. Remedies, Non-Judicial
Parenthetically, that writs of sequestration or freeze or takeover
orders are not issued by a court is of no moment. The Solicitor
General draws attention to the writ of distraint and levy which
since 1936 the Commissioner of Internal Revenue has been by
law authorized to issue against property of a delinquent
taxpayer.56 BASECO itself declares that it has not manifested "a
rigid insistence on sequestration as a purely judicial remedy * *
(as it feels) that the law should not be ossified to a point that
makes it insensitive to change." What it insists on, what it
pronounces to be its "unyielding position, is that any change in
procedure, or the institution of a new one, should conform to due
process and the other prescriptions of the Bill of Rights of the
Constitution."57 It is, to be sure, a proposition on which there can
be no disagreement.
h. Orders May Issue Ex Parte
Like the remedy of preliminary attachment and receivership, as
well as delivery of personal property in replevin suits,
sequestration and provisional takeover writs may issue ex
parte.58 And as in preliminary attachment, receivership, and
delivery of personalty, no objection of any significance may be
raised to the ex parte issuance of an order of sequestration,
freezing or takeover, given its fundamental character of
temporariness or conditionality; and taking account specially of
the constitutionally expressed "mandate of the people to recover
ill-gotten properties amassed by the leaders and supporters of the
previous regime and protect the interest of the people;"59 as well
as the obvious need to avoid alerting suspected possessors of "ill-
gotten wealth" and thereby cause that disappearance or loss of
property precisely sought to be prevented, and the fact, just as
self-evident, that "any transfer, disposition, concealment or
disappearance of said assets and properties would frustrate,
obstruct or hamper the efforts of the Government" at the just
recovery thereof.60
8. Requisites for Validity
What is indispensable is that, again as in the case of attachment
and receivership, there exist a prima facie factual foundation, at
least, for the sequestration, freeze or takeover order, and
adequate and fair opportunity to contest it and endeavor to cause
its negation or nullification.61
Both are assured under the executive orders in question and the
rules and regulations promulgated by the PCGG.
a. Prima Facie Evidence as Basis for Orders
Executive Order No. 14 enjoins that there be "due regard to
the requirements of fairness and due process."62 Executive Order
No. 2 declares that with respect to claims on allegedly "ill-gotten"
assets and properties, "it is the position of the new democratic
government that President Marcos * * (and other parties
affected) be afforded fair opportunity to contest these claims
before appropriate Philippine authorities."63 Section 7 of the
Commission's Rules and Regulations provides that sequestration
or freeze (and takeover) orders issue upon the authority of at
least two commissioners, based on the affirmation or complaint of
an interested party, or motu proprio when the Commission has
reasonable grounds to believe that the issuance thereof is
warranted.64 A similar requirement is now found in Section 26,
Art. XVIII of the 1987 Constitution, which requires that a
"sequestration or freeze order shall be issued only upon showing
of a prima facie case.''65
b. Opportunity to Contest
And Sections 5 and 6 of the same Rules and Regulations lay down
the procedure by which a party may seek to set aside a writ of
sequestration or freeze order, viz:
"SECTION 5. Who may contend.—The person against whom a
writ of sequestration or freeze or hold order is directed may
request the lifting thereof in writing, either personally or through
counsel within five (5) days from receipt of the writ or order, or in
the case of a hold order, from date of knowledge thereof.
"SECTION 6. Procedure for review of writ or order.—After due
hearing or motu proprio for good cause shown, the Commission
may lift the writ or order unconditionally or subject to such
conditions as it may deem necessary, taking into consideration
the evidence and the circumstance of the case. The resolution of
the Commission may be appealed by the party concerned to the
Office of the President of the Philippines within fifteen (15) days
from receipt thereof."
Parenthetically, even if the requirement for a prima facie showing
of "ill-gotten wealth" were not expressly imposed by some rule or
regulation as a condition to warrant the sequestration or freezing
of property contemplated in the executive orders in question, it
would nevertheless be exigible in this jurisdiction in which the
Rule of Law prevails and official acts which are devoid of rational
basis in fact or law, or are whimsical and capricious, are
condemned and struck down.66
9. Constitutional Sanction of Remedies
If any doubt should still persist in the face of the foregoing
considerations as to the validity and propriety of sequestration,
freeze and takeover orders, it should be dispelled by the fact that
these particular remedies and the authority of the PCGG to issue
them have received constitutional approbation and sanction. As
already mentioned, the Provisional or "Freedom" Constitution
recognizes the power and duty of the President to enact
"measures to achieve the mandate of the people to * * * *
(r)ecover ill-gotten properties amassed by the leaders and
supporters of the previous regime and protect the interest of the
people through orders of sequestration or freezing of assets or
accounts." And as also already adverted to, Section 26, Article
XVIII of the 1987 Constitution67 treats of, and ratifies the
"authority to issue sequestration or freeze orders under
Proclamation No. 3 dated March 25, 1986."
The institution of these provisional remedies is also premised
upon the State's inherent police power, regarded, as "the power
of promoting the public welfare by restraining and regulating the
use of liberty and property,"68and as "the most essential,
insistent and illimitable of powers * * in the promo-
tion of general welfare and the public interest"69 and said to be
"co-extensive with self-protection and * * not inaptly termed
(also) the 'law of overruling necessity.' "70
10. PCGG not a "Judge"; General Functions
It should also by now be reasonably evident from what has thus
far been said that the PCGG is not, and was never intended to act
as, a judge. Its general function is to conduct investigations in
order to collect evidence establishing instances of "ill-gotten
wealth;" issue sequestration, and such orders as may be
warranted by the evidence thus collected and as may be
necessary to preserve and conserve the assets of which it takes
custody and control and prevent their disappearance, loss or
dissipation; and eventually file and prosecute in the proper court
of competent jurisdiction all cases investigated by it as may be
warranted by its findings. It does not try and decide, or hear and
determine, or adjudicate with any character of finality or
compulsion, cases involving the essential issue of whether or not
property should be forfeited and transferred to the State because
"ill-gotten" within the meaning of the Constitution and the
executive orders. This function is reserved to the designated
court, in this case, the Sandiganbayan.71 There can therefore be
no serious regard accorded to the accusation, leveled by B
ASECO,72 that the PCGG plays the perfidious role of prosecutor
and judge at the same time.
11. Facts Preclude Grant of Relief to Petitioner
Upon these premises and reasoned conclusions, and upon the
facts disclosed by the record, hereafter to be discussed, the
petition cannot succeed. The writs of certiorari and prohibition
prayed for will not be issued.
The facts show that the corporation known as B ASECO was
owned or controlled by President Marcos "during his
administration, through nominees, by taking undue advantage of
his public office and/or using his powers, authority, or influence,"
and that it was by and through the same means, that B ASECO
had taken over the business and/or assets of the National
Shipyard and Engineering Co., Inc., and other government-owned
or controlled entities.
12. Organization and Stock Distribution of BASECO
BASECO describes itself in its petition as "a shiprepair and
shipbuilding company * * incorporated as a domestic private
corporation * * (on Aug. 30, 1972) by a consortium of Filipino
shipowners and shipping executives. Its main office is at Engineer
Island, Port Area, Manila, where its Engineer Island Shipyard is
housed, and its main shipyard is located at Mariveles Bataan."73
Its Articles of Incorporation disclose that its authorized capital
stock is P60,000,000.00 divided into 60,000 shares, of which
12,000 shares with a value of P1 2,000,000.00 have been
subscribed, and on said subscription, the aggregate sum of
P3,035,000.00 has been paid by the incorporators.74 The same
articles identify the incorporators, numbering fifteen (15), as
follows: (1) Jose A. Rojas, (2) Anthony P. Lee, (3) Eduardo T.
Marcelo, (4) Jose P. Fernandez, (5) Generoso Tanseco, (6) Emilio
T. Yap, (7) Antonio M. Ezpeleta, (8) Zacarias Amante, (9)
Severino de la Cruz, (10) Jose Francisco, (11) Dioscoro Papa, (12)
Octavio Posadas, (13) Manuel S. Mendoza, (14) Magiliw Torres, Anthony P. Lee
and (15) Rodolfo Torres. 136,370 shares
1,248 shares
By 1986, however, of these fifteen (15) incorporators, six (6) had 16.
ceased to be stockholders, namely: (1) Generoso Tanseco, (2) 8.
Antonio Ezpeleta, (3) Zacarias Amante, (4) Octavio Manuel Jacela
Posadas, (5) Magiliw Torres, and (6) Rodolfo Torres. As of this Hilario M. Ruiz
year, 1986, there were twenty (20) stockholders listed in 1 share
BASECO's Stock and Transfer Book.75 Their names, and the 32 shares
number of shares respectively held by them are as follows: 17.
9.
1. Jonathan G. Lu
Constante L. Fariñas
Jose A. Rojas 1 share
8 shares
1,248 shares 18.
10.
2. Jose J. Tanchanco
Fidelity Management, Inc.
Severino G. de la Cruz 1 share
65,882 shares
1,248 shares 19.
11.
3. Dioscoro Papa
Trident Management
Emilio T. Yap 128 shares
7,412 shares
2,508 shares 20.
12.
4. Edward T. Marcelo
United Phil. Lines
Jose Fernandez 4 shares
1,240 shares
1,248 shares
13. TOTAL
5.
Renato M. Tanseco 218,819 shares.
Jose Francisco
8 shares 13. Acquisition of NASSCO by BASECO
128 shares
14. Barely six months after its incorporation, BASECO acquired from
6. National Shipyard & Steel Corporation, or NASSCO, a government-
Fidel Ventura owned or controlled corporation, the latter's shipyard at Mariveles,
Manuel S. Mendoza Bataan, known as the Bataan National Shipyard (BNS), and—
8 shares except for NASSCO's Engineer Island Shops and certain
96 shares equipment of the BNS, consigned for future negotiation—all its
15. structures, buildings, shops, quarters, houses, plants, equipment
7. and facilities, in stock or in transit. This it did in virtue of a
Metro Bay Drydock "Contract of Pur-
chase and Sale with Chattel Mortgage" executed on February 13,
1973. The price was P52,000,000.00. As partial payment thereof,
BASECO delivered to NASSCO a cash bond of P1 1,400,000.00,
convertible into cash within twenty-four (24) hours from
completion of the inventory undertaken pursuant to the contract.
The balance of P41,600,000.00, with interest at seven percent
(7%) per annum, compounded semi-annually, was stipulated to
be paid in equal semi-annual installments over a term of nine (9)
years, payment to commence after a grace period of two (2)
years from date of turnover of the shipyard to BASECO.76
14. Subsequent Reduction of Price; Intervention of Marcos
Unaccountably, the price of P52,000,000.00 was reduced by more
than one-half, to P24,311,550.00, about eight (8) months later. A
document to this effect was executed on October 9, 1973, entitled
"Memorandum Agreement, " and was signed for NASSCO by
Arturo Pacificador, as Presiding Officer of the Board of Directors,
and David R. Ines, as General Manager.77 This agreement bore,
at the top right corner of the first page, the word "APPROVED" in
the handwriting of President Marcos, followed by his usual full
signature. The document recited that a down payment of
P5,862,310.00 had been made by BASECO, and the balance of
P19,449,240.00 was payable in equal semi-annual installments
over nine (9) years after a grace period of two (2) years, with
interest at 7% per annum.
15. Acquisition of 300 Hectares from Export Processing Zone
Authority
On October 1, 1974, BASECO acquired three hundred (300)
hectares of land in Mariveles from the Export Processing Zone
Authority for the price of P10,047,940.00 of which, as set out in
the document of sale, P2,000.000.00 was paid upon its execution,
and the balance stipulated to be payable in installments.78
16. Acquisition of Other Assets of NASSCO; Intervention of Marcos
Some nine months afterwards, or on July 15, 1975, to be precise,
BASECO, again with the intervention of President Marcos,
acquired ownership of the rest of the assets of NASSCO which
had not been included in the first two (2) purchase documents.
This was accomplished by a deed entitled "Contract of Purchase
and Sale,"79 which, like the Memorandum of Agreement dated
October 9, 1973 supra also bore at the upper right-hand corner of
its first page, the handwritten notation of President Marcos
reading, "APPROVED, July 29, 1973," and underneath it, his usual
full signature. Transferred to BASECO were NASSCO's "ownership
and all its titles, rights and interests over all equipment and
facilities including structures, buildings, shops, quarters, houses,
plants and expendable or semi-expendable assets, located at the
Engineer Island, known as the Engineer Island Shops, including
all the equipment of the Bataan National Shipyards (BNS) which
were excluded from the sale of NBS to BASECO but retained by B
ASECO and all other selected equipment and machineries of
NASSCO at J. Panganiban Smelting Plant." In the same deed,
NASSCO committed itself to cooperate with BASECO for the
acquisition from the National Government or other appropriate
Government entity of Engineer Island. Consideration for the sale
was set at P5,000,000.00; a down payment of P1,000,000.00
appears to have been made, and the balance was stipulated to be
paid at 7% interest per annum in equal semiannual installments
over a term of nine (9) years, to commence after a grace period
of two (2) years. Mr. Arturo Pacificador again signed for NASSCO,
together with the general manager, Mr. David R. Ines.
17. Loans Obtained
It further appears that on May 27, 1975 BASECO obtained a loan
from the NDC, taken from "the last available Japanese war
damage fund of $19,000,000.00," to pay for "Japanese made
heavy equipment (brand new)."80 On September 3, 1975, it got
another loan also from the NDC in the amount of P30,000,000.00
(id.). And on January 28, 1976, it got still another loan, this time
from the GSIS, in the sum of P1 2,400,000.00.81 The claim has
been made that not a single centavo has been paid on these
loans.82
18. Reports to President Marcos
In September, 1977, two (2) reports were submitted to President
Marcos regarding BASECO. The first was contained in a letter
dated September 5, 1977 of Hilario M. Ruiz, BASECO president.83
The second was embodied in a confidential memorandum dated
September 16, 1977 of Capt. A.T. Romualdez.84 They further
disclose the fine hand of Marcos in the affairs of BASECO, and
that of a Romualdez, a relative by affinity.
a. BASECO President's Report
In his letter of September 5, 1977, BASECO President Ruiz
reported to Marcos that there had been "no orders or demands
for ship construction" for some time and expressed the fear that if
that state of affairs persisted, BASECO would not be able to pay
its debts to the Government, which at the time stood at the not
inconsiderable amount of P165,854,000.00.85 He suggested that,
to "save the situation," there be a "spin-off
(of their) shipbuilding activities which shall be handled exclusively
by an entirely new corporation to be created;" and towards this
end, he informed Marcos that BASECO was—
"* * inviting NDC and LUSTEVECO to participate by converting the
NDC shipbuilding loan to BASECO amounting to P341.165M and
assuming and converting a portion of BASECO's shipbuilding loans
from REPACOM amounting to P52.2M or a total of P83.365M as
NDC's equity contribution in the new corporation. LUSTEVECO will
participate by absorbing and converting a portion of the
REPACOM loan of Bay Shipyard and Drydock, Inc., amounting to
P32.538M."86
b. Romualdez' Report
Capt. A.T. Romualdez' report to the President was submitted
eleven (11) days later. It opened with the following caption:
"MEMORANDUM:
FOR :
The President
SUB JECT:
A n Evaluation and Re-assessment of a
Performance of a Mission
FROM " :
Capt. A.T. Romualdez."
Like Ruiz, Romualdez wrote that BASECO faced great difficulties in
meeting its loan obligations due chiefly to the fact that "orders to
build ships as expected * * did not materialize.
He advised that five stockholders had "waived and/or assigned
their holdings in blank," these being: (1) Jose A. Rojas, (2)
Severino de la Cruz, (3) Rodolfo Torres, (4) Magiliw Torres, and
(5) Anthony P. Lee. Pointing out that "Mr. Magiliw Torres * * is
already dead and Mr. Jose A. Rojas had a major heart attack," he
made the following quite revealing, and it may be added, quite
cynical and indurate recommendation, to wit:
"* * (that) their replacements (be effected) so we can register
their names in the stock book prior to the implementation of your
instructions to pass a board resolution to legalize the transfers
under SEC regulations;
"2. By getting their replacements, the families cannot question us
later on; and
"3.We will owe no further favors from them.''87
He also transmitted to Marcos, together with the report, the f
ollowing documents:88
1."Stock certificates indorsed and assigned in blank with
assignments and waivers;"89
2. The articles of incorporation, the amended articles, and the by-
laws of BASECO;
3. "Deed of Sales, wherein NASSCO sold to BASECO four (4)
parcels of land in 'Engineer Island', Port Area, Manila;"
4. "Transfer Certificate of Title No. 124822 in the name of
BASECO, covering 'Engineer Island';"
5. "Contract dated October 9, 1973, between NASSCO and
BASECO re-structure and equipment at Mariveles, Bataan;"
6. "Contract dated July 16, 1975, between NASSCO and BASECO
re-structure and equipment at Engineer Island, Port Area Manila;"
7. "Contract dated October 1, 1974, between EPZA and BASECO
re 300 hectares of land at Mariveles, Bataan;"
8. "List of BASECO's fixed assets;"
9. "Loan Agreement dated September 3, 1975, BASECO's loan
from NDC of P30,000,000.00;"
10. "BASECO-REPACOM Agreement dated May 27, 1975;"
11. "GSIS loan to BASECO dated January 28, 1976 of
P12,400,000.00 for the housing facilities for BASECO's rank-and-
file employees."90
Capt. Romualdez also recommended that BASECO's loans be
restructured "until such period when BASECO will have enough
orders for ships in order for the company to meet loan
obligations," and that—
"An LOI may be. issued to government agencies using floating
equipment, that a linkage scheme be applied to a certain percent
of BASECO's net profit as part of BASECO's amortization payments
to make it justifiable for you, Sir. "91
It is noteworthy that Capt. A.T. Romualdez does not appear to be
a stockholder or officer of B ASECO, yet he has presented a report
on BASECO to President Marcos, and his report demonstrates
intimate familiarity with the firm's affairs and problems.
19. Marcos' Response to Reports
President Marcos lost no time in acting on his subordinates'
recommendations, particularly as regards the "spin-off' and the
"linkage scheme" relative to "BASECO's amortization payments."
a. Instructions re ''Spin-Off"
Under date of September 28, 1977, he addressed a Memorandum
to Secretary Geronimo Velasco of the Philippine National Oil
Company and Chairman Constante Fariñas of the National
Development Company, directing them "to participate in the
formation of a new corporation resulting from the spin-off of the
shipbuilding component of BASECO along the following guidelines:
a. Equity participation of government shall be through
LUSTEVECO and NDC in the amount of P1 15,903,000 consisting
of the following obligations of BASECO which are hereby
authorized to be converted to equity of the said new corporation,
to wit:
1.
NDC
P83,865,000 (P31.165M loan &
P52.2M Reparation)
2.
LUSTEVECO
P32,538,000 (Reparation)
b. Equity participation of government shall be in the form of non-
voting shares.
For immediate compliance. "92
Mr. Marcos' guidelines were promptly complied with by his
subordinates. Twenty-two (22) days after receiving their
president's memorandum, Messrs. Hilario M. Ruiz, Constante L.
Fariñas and Geronimo Z. Velasco, in representation of their
respective corporations, executed a PRE-INCORPORATION
AGREEMENT dated October 20, 1977.93 In it, they undertook to
form a shipbuilding corporation to be known as "PHIL-ASIA
SHIPBUILDING CORPORATION," to bring to realization their
president's instructions. It would seem that the new corporation
ultimately formed was actually named "Philippine Dockyard
Corporation (PDC)."94
b. Letter of Instructions No. 670
Mr. Marcos did not forget Capt. Romualdez' recommendation for a
letter of instructions. On February 14, 1978, he issued Letter of
Instructions No. 670 addressed to the Reparations Commission
(REPACOM), the Philippine National Oil Company (PNOC), the
Luzon Stevedoring Company (LUSTEVECO), and the National
Development Company (NDC). What is commanded therein is
summarized by the Solicitor General, with pithy and not
inaccurate observations as to the effects thereof (in italics), as
follows:
"* * 1) the shipbuilding equipment procured by BASECO through
reparations be transferred to NDC subject to reimbursement by
NDC to BASECO (of) the amount of P18.285M allegedly represen-
ting the handling and incidental expenses incurred by BASECO in
the installation of said equipment (so instead of NDC getting paid
on its loan to BASECO, it was made to pay BASECO instead the
amount of P18.285M); 2) the shipbuilding equipment procured
from reparations through EPZA, now in the possession of BASECO
and BSDI (Bay Shipyard & Drydocking, Inc.) be transferred to
LUSTEVECO through PNOC; and 3) the shipbuilding equipment
(thus) transferred be invested by LUSTEVECO, acting through
PNOC and NDC, as the government's equity participation in a
shipbuilding corporation to be established in partnership with the
private sector."
"* * * * * *
"And so, through a simple letter of instruction and memorandum,
BASECO's loan obligation to NDC and REPACOM * * in the total
amount of P83.365M and BSD's REPACOM loan of P32.438M were
wiped out and converted into non-voting preferred shares."95
20. Evidence of Marcos'
Ownership of BASECO
It cannot therefore be gainsaid that, in the context of the
proceedings at bar, the actuality of the control by President
Marcos of B ASECO has been sufficiently shown.
Other evidence submitted to the Court by the Solicitor General
proves that President Marcos not only exercised control over
BASECO, but also that he actually owns well nigh one hundred
percent of its outstanding stock.
It will be recalled that according to petitioner itself, as of April 23,
1986, there were 218,819 shares of stock outstanding, ostensibly
owned by twenty (20) stockholders.96 Four of these twenty are
juridical persons: (1) Metro Bay Drydock, recorded as holding
136,370 shares; (2) Fidelity Management, Inc., 65,882 shares; (3)
Trident Management, 7,412 shares; and (4) United Phil. Lines,
1,240 shares. The first three corporations, among themselves,
own an aggregate of 209,664 shares of
BASECO stock, or 95.82% of the outstanding stock.
Now, the Solicitor General has drawn the Court's attention to the
intriguing circumstance that found in Malacañang shortly after the
sudden flight of President Marcos, were certificates corresponding
to more than ninety-five percent (95%) of all the outstanding
shares of stock of BASECO, endorsed in blank, together with
deeds of assignment of practically all the outstanding shares of
stock of the three (3) corporations above mentioned (which hold
95.82% of all BASECO stock), signed by the owners thereof
although not notarized.97
More specifically, found in Malacañang (and now in the custody of
the PCGG) were:
1) the deeds of assignment of all 600 outstanding shares of
Fidelity Management Inc.—which supposedly owns as aforesaid
65,882 shares of BASECO stock;
2) the deeds of assignment of 2,499,995 of the 2,500,000
outstanding shares of Metro Bay Drydock Corporation—which
allegedly owns 136,370 shares of BASECO stock;
3) the deeds of assignment of 800 outstanding shares of Trident
Management Co., Inc.—which allegedly owns 7,412 shares of B
ASECO stock, assigned in blank;98 and
4) stock certificates corresponding to 207,725 out of the 218,819
outstanding shares of BASECO stock; that is, all but 5%—all
endorsed in blank."99
While the petitioner's counsel was quick to dispute this asserted
fact, assuring this Court that the BASECO stockholders were still
in possession of their respective stock certificates and had "never
endorsed * * them in blank or to anyone else,"100 that denial is
exposed by his own prior and
subsequent recorded statements as a mere gesture of defiance
rather than a verifiable f actual declaration.
By resolution dated September 25, 1986, this Court granted
BASECO's counsel a period of 10 days "to SUBMIT, as undertaken
by him, * * the certificates of stock issued to the stockholders of
* * BASECO as of April 23, 1986, as listed in Annex 'P' of the
petition.'101 Counsel thereafter moved for extension; and in his
motion dated October 2,1986, he declared inter alia that "said
certificates of stock are in the possession of third parties, among
whom being the respondents themselves * * and petitioner is still
endeavoring to secure copies thereof from them."102 On the
same day he filed another motion praying that he be allowed "to
secure copies of the Certificates of Stock in the name of Metro
Bay Drydock, Inc., and of all other Certificates, of Stock of
petitioner's stockholders in possession of respondents.''103
In a Manifestation dated October 10, 1986,,104 the Solicitor
General not unreasonably argued that counsel's aforestated
motion to secure copies of the stock certificates "confirms the fact
that stockholders of petitioner corporation are not in possession of
* * (their) certificates of stock," and the reason, according to him,
was "that 95% of said shares * * have been endorsed in blank
and found in Malacañang after the former President and his family
fled the country." To this manifestation BASECO's counsel replied
on November 5, 1986, as already mentioned, stubbornly insisting
that the firm's stockholders had not really assigned their
stock.105
In view of the parties' conflicting declarations, this Court resolved
on November 27, 1986 among other things "to require * * the
petitioner * * to deposit upon proper receipt with Clerk of Court
Juanito Ranjo the originals of the stock certificates alleged to be
in its possession or accessible to it, mentioned and
described in Annex 'P' of its petition, * * (and other pleadings) * *
within ten (10) days from notice."106 In a motion filed on
December 5, 1986,107 BASECO's counsel made the statement,
quite surprising in the premises, that "it will negotiate with the
owners (of the BASECO stock in question) to allow petitioner to
borrow from them, if available, the certificates referred to" but
that "it needs a more sufficient time therefor" (sic). BASECO's
counsel however eventually had to confess inability to produce
the originals of the stock certificates, putting up the feeble excuse
that while he had "requested the stockholders to allow * * (him)
to borrow said certificates, * * some of * * (them) claimed that
they had delivered the certificates to third parties by way of
pledge and/or to secure performance of obligations, while others
allegedly have entrusted them to third parties in view of last
national emergency.''108 He has conveniently omitted, nor has he
offered to give the details of the transactions adverted to by him,
or to explain why he had not impressed on the supposed
stockholders the primordial importance of convincing this Court of
their present custody of the originals of the stock, or if he had
done so, why the stockholders are unwilling to agree to some sort
of arrangement so that the originals of their certificates might at
the very least be exhibited to the Court. Under the circumstances,
the Court can only conclude that he could not get the originals
from the stockholders for the simple reason that, as the Solicitor
General maintains, said stockholders in truth no longer have them
in their possession, these having already been assigned in blank
to then President Marcos.
21. Facts Justify Issuance of Sequestration and Takeover Orders
In the light of the affirmative showing by the Government that,
prima facie at least, the stockholders and directors of
BASECO as of April, 1986109 were mere "dummies," nominees or
alter egos of President Marcos; at any rate, that they are no
longer owners of any shares of stock in the corporation, the
conclusion cannot be avoided that said stockholders and directors
have no basis and no standing whatever to cause the filing and
prosecution of the instant proceeding; and to grant relief to
BASECO, as prayed for in the petition, would in effect be to
restore the assets, properties and business sequestered and taken
over by the PCGG to persons who are "dummies," nominees or
alter egos of the former president.
From the standpoint of the PCGG, the facts herein stated at some
length do indeed show that the private corporation known as
BASECO was "owned or controlled by former President Ferdinand
E. Marcos * * during his administration, * * through nominees, by
taking advantage of * * (his) public office and/or using * * (his)
powers, authority, influence * *," and that NASSCO and other
property of the government had been taken over by BASECO; and
the situation justified the sequestration as well as the provisional
takeover of the corporation in the public interest, in accordance
with the terms of Executive Orders No. 1 and 2, pending the filing
of the requisite actions with the Sandiganbayan to cause
divestment of title thereto from Marcos, and its adjudication in
favor of the Republic pursuant to Executive Order No. 14.
As already earlier stated, this Court agrees that this assessment of
the facts is correct; accordingly, it sustains the acts of
sequestration and takeover by the PCGG as being in accord with
the law, and, in view of what has thus far been set out in this
opinion, pronounces to be without merit the theory that said acts,
and the executive orders pursuant to which they were done, are
fatally defective in not according to the parties affected prior
notice and hearing, or an adequate remedy to impugn, set aside
or otherwise obtain relief therefrom, or that the PCGG had acted
as prosecutor and judge at the same time.
22. Executive Orders Not a Bill of Attainder
Neither will this Court sustain the theory that the executive orders
in question are a bill of attainder.110 " A bill of attainder is a
legislative act which inflicts punishment without judicial trial."111
"Its essence is the substitution of a legislative for a judicial
determination of guilt."112
In the first place, nothing in the executive orders can be
reasonably construed as a determination or declaration of guilt.
On the contrary, the executive orders, inclusive of Executive
Order No. 14, make it perfectly clear that any judgment of guilt in
the amassing or acquisition of "ill-gotten wealth" is to be handed
down by a judicial tribunal, in this case, the Sandiganbayan, upon
complaint filed and prosecuted by the PCGG. In the second place,
no punishment is inflicted by the executive orders, as the merest
glance at their provisions will immediately make apparent. In no
sense, therefore, may the executive orders be regarded as a bill
of attainder.
23. No Violation of Right against Self-Incrimination and
Unreasonable Searches and Seizures
BASECO also contends that its right against selfincrimination and
unreasonable searches and seizures had been transgressed by the
Order of April 18, 1986 which required it "to produce corporate
records from 1973 to 1986 under pain of contempt of the
Commission if it fails to do so." The order was issued upon the
authority of Section 3 (e) of Executive Order No. 1, treating of the
PCGG's power to "issue subpoenas requiring * * the production of
such books, papers,
contracts, records, statements of accounts and other documents
as may be material to the investigation conducted by the
Commission," and paragraph (3), Executive Order No. 2 dealing
with its power to "(r)equire all persons in the Philippines holding *
* (alleged "ill-gotten") assets or properties, whether located in the
Philippines or abroad, in their names as nominees, agents or
trustees, to make full disclosure of the same **." The contention
lacks merit.
It is elementary that the right against self-incrimination has no
application to juridical persons.
"While an individual may lawfully refuse to answer incriminating
questions unless protected by an immunity statute, it does not
follow that a corporation, vested with special privileges and
franchises, may refuse to show its hand when charged with an
abuse of such privileges * *"113
Relevant jurisprudence is also cited by the Solicitor General.114
"* * corporations are not entitled to all of the constitutional
protections which private individuals have. * * They are not at all
within the privilege against self-incrimination, although this court
more than once has said that the privilege runs very closely with
the 4th Amendment's Search and Seizure provisions. It is also
settled that an officer of the company cannot refuse to produce
its records in its possession, upon the plea that they will either
incriminate him or may incriminate it" (Oklahoma Press Publishing
Co. v. Walling, 327 U.S. 186; emphasis, the Solicitor General's).
"* * The corporation is a creature of the state. It is presumed to
be incorporated for the benefit of the public. It received certain
special privileges and franchises, and holds them subject to the
laws of the state and the limitations of its charter. Its powers are
limited by law. It can make no contract not authorized by its
charter. Its rights to act as a corporation are only preserved to it
so long as it obeys the laws of its creation. There is a reserve
right in the legislature to investigate its contracts and find out
whether it has ex-
ceeded its powers. It would be a strange anomaly to hold that a
state, having chartered a corporation to make use of certain
franchises, could not, in the exercise of sovereignty, inquire how
these franchises had been employed, and whether they had been
abused, and demand the production of the corporate books and
papers for that purpose. The defense amounts to this, that an
officer of the corporation which is charged with a criminal
violation of the statute may plead the criminality of such
corporation as a refusal to produce its books. To state this
proposition is to answer it. While an individual may lawfully refuse
to answer incriminating questions unless protected by an
immunity statute, it does not follow that a corporation, vested
with special privileges and franchises may refuse to show its hand
when charged with an abuse of such privileges. (Wilson v. United
States, 55 Law Ed., 771, 780 [emphasis, the Solicitor General's])"
At any rate, Executive Order No. 14-A, amending Section 4 of
Executive Order No. 14 assures protection to individuals required
to produce evidence before the PCGG against any possible
violation of his right against self-incrimination. It gives them
immunity from prosecution on the basis of testimony or
information he is compelled to present. As amended, said Section
4 now provides that—
'* * * *
"The witness may not refuse to comply with the order on the
basis of his privilege against self-incrimination; but no testimony
or other information compelled under the order (or any
information directly or indirectly derived from such testimony, or
other information) may be used against the witness in any
criminal case, except a prosecution for perjury, giving a false
statement, or otherwise failing to comply with the order."
The constitutional safeguard against unreasonable searches and
seizures finds no application to the case at bar either. There has
been no search undertaken by any agent or representative of the
PCGG, and of course no seizure on the occasion thereof.
24. Scope and Extent of Powers of the PCGG
One other question remains to be disposed of, that respect-
ing the scope and extent of the powers that may be wielded by
the PCGG with regard to the properties or businesses placed
under sequestration or provisionally taken over. Obviously, it is
not a question to which an answer can be easily given, much less
one which will suffice for every conceivable situation.
a. PCGG May Not Exercise Acts of Ownership
One thing is certain, and should be stated at the outset: the PCGG
cannot exercise acts of dominion over property sequestered,
frozen or provisionally taken over. As already earlier stressed with
no little insistence, the act of sequestration; freezing or
provisional takeover of property does not import or bring about a
divestment of title over said property; does not make the PCGG
the owner thereof. In relation to the property sequestered, frozen
or provisionally taken over, the PCGG is a conservator, not an
owner. Therefore, it can not perform acts of strict ownership; and
this is specially true in the situations contemplated by the
sequestration rules where, unlike cases of receivership, for
example, no court exercises effective supervision or can upon due
application and hearing, grant authority for the performance of
acts of dominion.
Equally evident is that the resort to the provisional remedies in
question should entail the least possible interference with
business operations or activities so that, in the event that the
accusation of the business enterprise being "illgotten" be not
proven, it may be returned to its rightful owner as far as possible
in the same condition as it was at the time of sequestration.
b. PCGG Has Only Powers of Administration
The PCGG may thus exercise only powers of administration over
the property or business sequestered or provisionally taken over,
much like a court-appointed receiver,115 such as to bring and
defend actions in its own name; receive rents; collect debts due;
pay outstanding debts; and generally do such other
acts and things as may be necessary to fulfill its mission as
conservator and administrator. In this context, it may in addition
enjoin or restrain any actual or threatened commission of acts by
any person or entity that may render moot and academic, or
frustrate or otherwise make ineffectual its efforts to carry out its
task; punish for direct or indirect contempt in accordance with the
Rules of Court; and seek and secure the assistance of any office,
agency or instrumentality of the government.116 In the case of
sequestered businesses generally (i.e., going concerns,
businesses in current operation), as in the case of sequestered
objects, its essential role, as already discussed, is that of
conservator, caretaker, "watchdog" or overseer. It is not that of
manager, or innovator, much less an owner.
c. Powers over Business Enterprises Taken Over by Marcos or
Entities or Persons Close to him; Limitations Thereon
Now, in the special instance of a business enterprise shown by
evidence to have been "taken over by the government of the
Marcos Administration or by entities or persons close to former
President Marcos,"117 the PCGG is given power and authority, as
already adverted to, to "provisionally take (it) over in the public
interest or to prevent * * (its) disposal or dissipation;" and since
the term is obviously employed in reference to going concerns, or
business enterprises in operation, something more than mere
physical custody is connoted; the PCGG may in this case exercise
some measure of control in the operation, running, or
management of the business itself. But even in this special
situation, the intrusion into management should be restricted to
the minimum degree necessary to accomplish the legislative will,
which is "to prevent the disposal or dissipation" of the business
enterprise. There should be no hasty, indiscriminate, unreasoned
replacement or substitution of management officials or change of
policies, par-
ticularly in respect of viable establishments. In fact, such a
replacement or substitution should be avoided if at all possible,
and undertaken only when justified by demonstrably tenable
grounds and in line with the stated objectives of the PCGG, And it
goes without saying that where replacement of management
officers may be called for, the greatest prudence, circumspection,
care and attention should accompany that undertaking to the end
that truly competent, experienced and honest managers may be
recruited. There should be no role to be played in this area by
rank amateurs, no matter how well meaning. The road to hell, it
has been said, is paved with good intentions. The business is not
to be experimented or played around with, not run into the
ground, not driven to bankruptcy, not fleeced, not ruined. Sight
should never be lost sight of the ultimate objective of the whole
exercise, which is to turn over the business to the Republic, once
judicially established to be "ill-gotten." Reason dictates that it is
only under these conditions and circumstances that the
supervision, administration and control of business enterprises
provisionally taken over may legitimately be exercised.
d. Voting of Sequestered Stock; Conditions Therefor
So, too, it is within the parameters of these conditions and
circumstances that the PCGG may properly exercise the
prerogative to vote sequestered stock of corporations, granted to
it by the President of the Philippines through a Memorandum
dated June 26, 1986. That Memorandum authorizes the PCGG,
"pending the outcome of proceedings to determine the ownership
of * * (sequestered) shares of stock," "to vote such shares of
stock as it may have sequestered in corporations at all
stockholders' meetings called for the election of directors,
declaration of dividends, amendment of the Articles of
Incorporation, etc." The Memorandum should be construed in
such a manner as to be consistent with, and not contradictory of
the Executive Orders earlier promulgated on the same matter.
There should be no exercise of the right to vote simply because
the right exists, or because the stocks sequestered constitute the
controlling or a substantial part of the corporate
voting power. The stock is not to be voted to replace directors, or
revise the articles or by-laws, or otherwise bring about substantial
changes in policy, program or practice of the corporation except
for demonstrably weighty and defensible grounds, and always in
the context of the stated purposes of sequestration or provisional
takeover, i.e., to prevent the dispersion or undue disposal of the
corporate assets. Directors are not to be voted out simply because
the power to do so exists. Substitution of directors is not to be
done without reason or rhyme, should indeed be shunned if at all
possible, and undertaken only when essential to prevent
disappearance or wastage of corporate property, and always
under such circumstances as assure that the replacements are
truly possessed of competence, experience and probity.
In the case at bar, there was adequate justification to vote the
incumbent directors out of office and elect others in their stead
because the evidence showed prima facie that the former were
just tools of President Marcos and were no longer owners of any
stock in the firm, if they ever were at all. This is why, in its
Resolution of October 28, 1986;118 this Court declared that—
"Petitioner has failed to make out a case of grave abuse or excess
of jurisdiction in respondents' calling and holding of a
stockholders' meeting for the election of directors as authorized
by the Memorandum of the President * * (to the PCGG) dated
June 26, 1986, particularly, where as in this case, the government
can, through its designated directors, properly exercise control
and management over what appear to be properties and assets
owned and belonging to the government itself and over which the
persons who appear in this case on behalf of BASECO have failed
to show any right or even any shareholding in said corporation."
It must however be emphasized that the conduct of the PCGG
nominees in the BASECO Board in the management of the
company's affairs should henceforth be guided and governed by
the norms herein laid down. They should never for a mo-
ment allow themselves to forget that they are conservators, not
owners of the business; they are fiduciaries, trustees, of whom
the highest degree of diligence and rectitude is, in the premises,
required.
25. No Sufficient Showing of Other Irregularities
As to the other irregularities complained of by BASECO, i.e., the
cancellation or revision, and the execution of certain contracts,
inclusive of the termination of the employment of some of its
executives,119 this Court cannot, in the present state of the
evidence on record, pass upon them. It is not necessary to do so.
The issues arising therefrom may and will be left for initial
determination in the appropriate action. But the Court will state
that absent any showing of any important cause therefor, it will
not normally substitute its judgment for that of the PCGG in these
individual transactions. It is clear however, that as things now
stand, the petitioner cannot be said to have established the
correctness of its submission that the acts of the PCGG in
question were done without or in excess of its powers, or with
grave abuse of discretion.
WHEREFORE, the petition is dismissed. The temporary restraining
order issued on October 14,1986 is lifted.
Export Processing Zone Authority vs. Commission on Human
Rights
G.R. No. 101476. April 14, 1992.*
EXPORT PROCESSING ZONE AUTHORITY, petitioner, vs. THE
COMMISSION ON HUMAN RIGHTS, TERESITA VALLES, LORETO
ALEDIA and PEDRO ORDOÑEZ, respondents.
Political Law; Constitutional Law; Commission on Human Rights;
The Commission on Human Rights is a creation of the Constitution
although it is not on the same level as the Constitutional
Commission. In essence, the Commission’s power is only
investigative.—The constitutional provision directing the CHR to
“provide for preventive measures and legal aid services to the
underprivileged whose human rights have been violated or need
protection” may not be construed to confer
jurisdiction on the Commission to issue a restraining order or writ
of injunction for, if that were the intention, the Constitution would
have expressly said so. “Jurisdiction is conferred only by the
Constitution or by law (Oroso, Jr. vs. Court of Appeals, G.R. Nos.
76828-32, 28 January 1991; Bacalso vs. Ramolete, G.R. No. L-
22488, 26 October 1967, 21 SCRA 519). It is never derived by
implication. (Garcia, et al. vs. De Jesus, et al., G.R. No. 88158;
Tobon Uy vs. Commission on Elections, et al., G.R. Nos. 97108-
09, March 4, 1992.)
Remedial Law; Courts; Jurisdiction; A preliminary injunction is an
order granted at any stage of an action prior to final judgment,
requiring a person to refrain from a particular act. It may be
granted by the judge of any court in which the action is pending,
or by a Justice of the Court of Appeals or of the Supreme Court.—
Evidently, the “preventive measures and legal aid services”
mentioned in the Constitution refer to extrajudicial and judicial
remedies (including a preliminary writ of injunction) which the
CHR may seek from the proper courts on behalf of the victims of
human rights violations. Not being a court of justice, the CHR
itself has no jurisdiction to issue the writ, for a writ of preliminary
injunction may only be issued “by the judge of any court in which
the action is pending [within his district], or by a Justice of the
Court of Appeals, or of the Supreme Court. It may also be granted
by the judge of a Court of First Instance [now Regional Trial
Court] in any action pending in an inferior court within his
district.” (Sec. 2, Rule 58, Rules of Court). A writ of preliminary
injunction is an ancillary remedy. It is available only in a pending
principal action, for the preservation or protection of the rights
and interests of a party thereto, and for no other purpose.
SPECIAL CIVIL ACTION for certiorari and prohibition to review the
orders of the Commission on Human Rights.
The facts are stated in the opinion of the Court.
The Government Corporate Counsel for petitioner.
Marvic M.V.F. Leonen for respondents Valles, Aledia and
Ordoñez.
GRIÑO-AQUINO, J.:
On May 30, 1980, P.D. 1980 was issued reserving and designating
certain parcels of land in Rosario and General Trias, Cavite, as the
“Cavite Export Processing Zone” (CEPZ). For
purposes of development, the area was divided into Phases I to
IV. A parcel in Phase IV was bought by the Filoil Refinery
Corporation, formerly Filoil Industrial Estate, Inc. The same parcel
was later sold by Filoil to the Export Processing Zone Authority
(EPZA).
Before EPZA could take possession of the area, several individuals
had entered the premises and planted agricultural products
therein without permission from EPZA or its predecessor, Filoil. To
convince the intruders to depart peacefully, EPZA, in 1981, paid a
P10,000-financial-assistance to those who accepted the same and
signed quitclaims. Among them were Teresita Valles and Alfredo
Aledia, father of respondent Loreto Aledia.
Ten years later, on May 10, 1991, respondent Teresita Valles,
Loreto Aledia and Pedro Ordoñez filed in the respondent
Commission on Human Rights (CHR) a joint complaint
(Pinagsamahang Salaysay) praying for “justice and other reliefs
and remedies” (“Katarungan at iba pang tulong”). The CHR
conducted an investigation of the complaint.
According to the CHR, the private respondents, who are farmers,
filed in the Commission on May 10, 1991 a verified complaint for
violation of their human rights. They alleged that on March 20,
1991, at 10:00 o’clock in the morning, Engineer Neron
Damondamon, EPZA Project Engineer, accompanied by his
subordinates and members of the 215th PNP Company, brought a
bulldozer and a crane to level the area occupied by the private
respondents who tried to stop them by showing a copy of a letter
from the Office of the President of the Philippines ordering
postponement of the bulldozing. However, the letter was
crumpled and thrown to the ground by a member of
Damondamon’s group who proclaimed that: “The President in
Cavite is Governor Remulla!”
On April 3, 1991, mediamen who had been invited by the private
respondents to cover the happenings in the area were beaten up
and their cameras were snatched from them by members of the
Philippine National Police and some government officials and their
civilian followers.
On May 17, 1991, the CHR issued an Order of injunction
commanding EPZA, the 125th PNP Company and Governor
Remulla and their subordinates to desist from committing further
acts of demolition, terrorism, and harassment until further orders
from the Commission and to appear before the Commission on
May 27, 1991 at 9:00 a.m. for a dialogue (Annex A).
On May 25, 1991, two weeks later, the same group accompanied
by men of Governor Remulla, again bulldozed the area. They
allegedly handcuffed private respondent Teresita Valles, pointed
their firearms at the other respondents, and fired a shot in the air.
On May 28, 1991, CHR Chairman Mary Concepcion Bautista issued
another injunction Order reiterating her order of May 17, 1991
and expanded it to include the Secretary of Public Works and
Highways, the contractors, and their subordinates. The order
reads as follows:
“Considering the sworn statements of the farmers whose
farmlands are being bulldozed and the wanton destruction of their
irrigation canals which prevent cultivation of the farmlands as well
as the claim of ownership of the lands by some farmers-
complainants, and their possession and cultivation thereof
spanning decades, including the failure of the officials concerned
to comply with the Constitutional provision on the eviction of rural
‘squatters’, the Commission reiterates its Order of May 17, 1991,
and further orders the Secretary of Public Works and Highways,
their Contractors and representatives to refrain and desist from
bulldozing the farmlands of the complainantsfarmers who have
come to the Commission for relief, during the pendency of this
investigation and to refrain from further destruction of the
irrigation canals in the area until further orders of the
Commission.
“This dialogue is reset to June 10, 1991 at 9:00 a.m. and the
Secretary of the Department of Public Works and Highways or his
representative is requested to appear.” (p. 20, Rollo; italics ours.)
On July 1, 1991, EPZA filed in the CHR a motion to lift the Order
of Injunction for lack of authority to issue injunctive writs and
temporary restraining orders.
On August 16, 1991, the Commission denied the motion.
On September 11, 1991, the petitioner, through the Government
Corporate Counsel, filed in this Court a special civil action of
certiorari and prohibition with a prayer for the issuance of a
restraining order and/or preliminary injunction, alleging that the
CHR acted in excess of its jurisdiction and with grave abuse of
discretion in issuing the restraining order and injunctive writ; that
the private respondents have no clear, positive right to be
protected by an injunction; that the CHR abused its discretion in
entertaining the private respondent’s complaint because the
issues raised therein had been decided by this Court, hence, it is
barred by prior judgment.
On September 19, 1991, this Court issued a temporary restraining
order, ordering the CHR to cease and desist from enforcing
and/or implementing the questioned injunction orders.
In its comment on the petition, the CHR asked for the immediate
lifting of this Court’s restraining order, and for an order restraining
petitioner EPZA from doing further acts of destruction and
harassment. The CHR contends that its principal function under
Section 18, Art. 13 of the 1987 Constitution, “is not limited to
mere investigation” because it is mandated, among others, to:
“a. Investigate, on its own or on complaint by any party, all forms
of human rights violations involving civil and political rights;
“b. Adopt its operational guidelines and rules of procedure, and
cite for contempt for violations thereof in accordance with the
Rules of Court;
“c. Provide appropriate legal measures for the protection of
human rights of all persons within the Philippines, as well as
Filipinos residing abroad, and provide for preventive measures
and legal aid services to the under privileged whose human rights
have been violated or need protection;
“d. Monitor the Philippine Government’s compliance with
international treaty obligations on human rights. (Italics ours.)”
(p. 45, Rollo.)
On November 14, 1991, the Solicitor General filed a Manifestation
and Motion praying that he be excused from filing a Comment for
the CHR on the ground that the Comment filed by the latter “fully
traversed and squarely met all the issues raised and discussed in
the main Petition for Certiorari and Prohibition” (p. 83, Rollo.)
Does the CHR have jurisdiction to issue a writ of injunction or
restraining order against supposed violators of human rights, to
compel them to cease and desist from continuing the acts
complained of?
In “Hon. Isidro Cariño, et al. vs. Commission on Human Rights, et
al.,” G.R. No. 96681, December 2, 1991, we held that the CHR is
not a court of justice nor even a quasi-judicial body.
“The most that may be conceded to the Commission in the way of
adjudicative power is that it may investigate, i.e., receive
evidence and make findings of fact as regards claimed human
rights violations involving civil and political rights. But fact-finding
is not adjudication, and cannot be likened to the judicial function
of a court of justice, or even a quasi-judicial agency or official.
The function of receiving evidence and ascertaining therefrom the
facts of a controversy is not a judicial function, properly speaking.
To be considered such, the faculty of receiving evidence and
making factual conclusions in a controversy must be accompanied
by the authority of applying the law to those factual conclusions
to the end that the controversy may be decided or determined
authoritatively, finally and definitively, subject to such appeals or
modes of review as may be provided by law. This function, to
repeat, the Commission does not have.
“xxx xxx xxx.
“Hence it is that the Commission on Human Rights, having merely
the power ‘to investigate,’ cannot and should not ‘try and resolve
on the merits’ (adjudicate) the matters involved in Striking
Teachers HRC Case No. 90-775, as it has announced it means to
do; and it cannot do so even if there be a claim that in the
administrative disciplinary proceedings against the teachers in
question, initiated and conducted by the DECS, their human
rights, or civil or political rights had been transgressed. More
particularly, the Commission has no power to `resolve on the
merits’ the question of (a) whether or not the mass concerted
actions engaged in by the teachers constitute a strike and are
prohibited or otherwise restricted by law; (b) whether or not the
act of carrying on and taking part in those actions, and the failure
of the teachers to discontinue those actions and return to their
classes despite the order to this effect by the Secretary of
Education, constitute infractions of relevant rules and regulations
warranting administrative disciplinary sanctions, or are justified by
the grievances complained of by them; and (c) what were the
particular acts done by each individual teacher and what
sanctions, if any, may properly be imposed for said acts or
omissions.” (pp. 5 & 8.)
The constitutional provision directing the CHR to “provide for
preventive measures and legal aid services to the underprivileged
whose human rights have been violated or need protection” may
not be construed to confer jurisdiction on the Commission to issue
a restraining order or writ of injunction for, if that were the
intention, the Constitution would have expressly said so.
“Jurisdiction is conferred only by the Constitution or by law”
(Oroso, Jr. vs. Court of Appeals, G.R. Nos. 76828-32, 28 January
1991; Bacalso vs. Ramolete, G.R. No. L-22488, 26 October 1967,
21 SCRA 519). It is never derived by implication. (Garcia, et al. vs.
De Jesus, et al., G.R. No. 88158; Tobon Uy vs. Commission on
Elections, et al., G.R. Nos. 97108-09, March 4, 1992.)
Evidently, the “preventive measures and legal aid services”
mentioned in the Constitution refer to extrajudicial and judicial
remedies (including a preliminary writ of injunction) which the
CHR may seek from the proper courts on behalf of the victims of
human rights violations. Not being a court of justice, the CHR
itself has no jurisdiction to issue the writ, for a writ of preliminary
injunction may only be issued “by the judge of any court in which
the action is pending [within his district], or by a Justice of the
Court of Appeals, or of the Supreme Court. It may also be granted
by the judge of a Court of First Instance [now Regional Trial
Court] in any action pending in an inferior court within his
district.” (Sec. 2, Rule 58, Rules of Court). A writ of preliminary
injunction is an ancillary remedy. It is available only in a pending
principal action, for the preservation or protection of the rights
and interests of a party thereto, and for no other purpose.
WHEREFORE, the petition for certiorari and prohibition is
GRANTED. The orders of injunction dated May 17 and 28, 1991
issued by the respondent Commission on Human Rights, are
hereby ANNULLED and SET ASIDE and the temporary restraining
order which this Court issued on September 19, 1991, is hereby
made PERMANENT.
G.R. No. 182498. December 3, 2009.*
GEN. AVELINO I. RAZON, JR., Chief, Philippine National Police
(PNP); Police Chief Superintendent RAUL CASTAÑEDA, Chief,
Criminal Investigation and Detection Group (CIDG); Police Senior
Superintendent LEONARDO A. ESPINA, Chief, Police Anti-Crime
and Emergency Response (PACER); and GEN. JOEL R. GOLTIAO,
Regional Director of ARMM, PNP, petitioners, vs. MARY JEAN B.
TAGITIS, herein represented by ATTY. FELIPE P. ARCILLA, JR.,
Attorney-in-Fact, respondent.
Writs of Amparo; Nature; Words and Phrases; The Writ of Amparo
—a protective remedy against violations or threats of violation
against the rights to life, liberty and security—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 refers to the measure
of remedies that should be addressed to those who exhibited
involvement in the enforced disappearance without bringing the
level of their complicity to the level of responsibility defined
above; or who are imputed with knowledge relating to the
enforced disappearance and who carry the burden of disclosure;
or those who carry, but have failed to discharge, the burden of
extraordinary diligence in the investigation of the enforced
disappearance.—This Decision reflects the nature of the Writ of
Amparo—a protective remedy against violations or threats of
violation against the rights to life, liberty and security. It
embodies, as a remedy,
the court’s directive to police agencies to undertake specified
courses of action to address the disappearance of an individual, in
this case, Engr. Morced N. Tagitis. It does not determine guilt nor
pinpoint criminal culpability for the disappearance; rather, it
determines responsibility, or at least accountability, for the
enforced disappearance for purposes of imposing the appropriate
remedies to address the disappearance. Responsibility refers to
the extent the actors have been established by substantial
evidence to have participated in whatever way, by action or
omission, in an enforced disappearance, as a measure of the
remedies this Court shall craft, among them, the directive to file
the appropriate criminal and civil cases against the responsible
parties in the proper courts. Accountability, on the other hand,
refers to the measure of remedies that should be addressed to
those who exhibited involvement in the enforced disappearance
without bringing the level of their complicity to the level of
responsibility defined above; or who are imputed with knowledge
relating to the enforced disappearance and who carry the burden
of disclosure; or those who carry, but have failed to discharge,
the burden of extraordinary diligence in the investigation of the
enforced disappearance. In all these cases, the issuance of the
Writ of Amparo is justified by our primary goal of addressing the
disappearance, so that the life of the victim is preserved and his
liberty and security are restored.
Same; Same; The Amparo Rule should be read, too, as a work in
progress, as its directions and finer points remain to evolve
through time and jurisprudence and through the substantive laws
that Congress may promulgate.—We highlight this nature of a
Writ of Amparo case at the outset to stress that the unique
situations that call for the issuance of the writ, as well as the
considerations and measures necessary to address these
situations, may not at all be the same as the standard measures
and procedures in ordinary court actions and proceedings. In this
sense, the Rule on the Writ of Amparo (Amparo Rule) issued by
this Court is unique. The Amparo Rule should be read, too, as a
work in progress, as its directions and finer points remain to
evolve through time and jurisprudence and through the
substantive laws that Congress may promulgate.
Same; Pleadings and Practice; While, as in any other initiatory
pleading, the pleader must of course state the ultimate facts
constituting the cause of action, omitting the evidentiary details,
in an Amparo petition, however, this requirement must be read in
light of the nature and purpose of the proceeding, which
addresses a situation of 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.—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 victim’s rights. As in
any other initiatory pleading, the pleader must of course state the
ultimate facts constituting the cause of action, omitting the
evidentiary details. In an Amparo petition, however, this
requirement must be read in light of the nature and purpose of
the proceeding, which addresses a situation of uncertainty; the
petitioner may not be able to describe with certainty how the
victim exactly disappeared, or who actually acted to kidnap,
abduct or arrest him or her, or where the victim is detained,
because these information may purposely be hidden or covered
up by those who caused the disappearance. In this type of
situation, to require the level of specificity, detail and precision
that the petitioners apparently want to read into the Amparo Rule
is to make this Rule a token gesture of judicial concern for
violations of the constitutional rights to life, liberty and security.
To read the Rules of Court requirement on pleadings while
addressing the unique Amparo situation, the test in reading the
petition should be to determine whether it contains the details
available to the petitioner under the circumstances, while
presenting a cause of action showing a violation of the victim’s
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.
Same; Same; Where the petitioner has substantially complied with
the requirement by submitting a verified petition sufficiently
detailing the facts relied upon, the strict need for the sworn
statement that an affidavit represents is essentially fulfilled.—If a
defect can at all be attributed to the petition, this defect is its lack
of supporting affidavit, as required by Section 5(c) of the Amparo
Rule. Owing to the summary nature of the proceedings for the
writ and to facilitate the resolution of the petition, the Amparo
Rule incorporated the requirement for supporting affidavits, with
the annotation that these can be used as the affiant’s direct
testimony. This requirement, however, should not be read as an
absolute one that necessarily leads to the dismissal of the petition
if not strictly followed. Where, as in this case, the petitioner has
substantially complied with the requirement by submitting a
verified petition sufficiently detailing the facts relied upon, the
strict need for the sworn statement that an affidavit represents is
essentially fulfilled. We note that the failure to attach the required
affidavits was fully cured when the respondent and her witness
(Mrs. Talbin) personally testified in the CA hearings held on
January 7 and 17 and February 18, 2008 to swear to and flesh
out the allegations of the petition. Thus, even on this point, the
petition cannot be faulted.
Same; Same; Section 5(e) is in the Amparo Rule to prevent the
use of a petition—that otherwise is not supported by sufficient
allegations to constitute a proper cause of action—as a means to
“fish” for evidence.—These allegations, to our mind, sufficiently
specify that reports have been made to the police authorities, and
that investigations should have followed. That the petition did not
state the manner and results of the investigation that the Amparo
Rule requires, but rather generally stated the inaction of the
police, their failure to perform their duty to investigate, or at the
very least, their reported failed efforts, should not be a reflection
on the completeness of the petition. To require the respondent to
elaborately specify the names, personal circumstances, and
addresses of the investigating authority, as well the manner and
conduct of the investigation is an overly strict interpretation of
Section 5(d), given the respondent’s frustrations in securing an
investigation with meaningful results. Under these circum-
stances, 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. The
petitioners contend that the respondent’s 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 Court’s intervention.
Same; Extralegal Killings and Enforced Disappearances; The
phenomenon of enforced disappearance arising from State action
first attracted notice in Adolf Hitler’s Nact und Nebel Erlass or
Night and Fog Decree of December 7, 1941; In the mid-1970s,
the phenomenon of enforced disappearances resurfaced, shocking
and outraging the world when individuals, numbering anywhere
from 6,000 to 24,000, were reported to have “disappeared”
during the military regime in Argentina.—The phenomenon of
enforced disappearance arising from State action first attracted
notice in Adolf Hitler’s Nact und Nebel Erlass or Night and Fog
Decree of December 7, 1941. The Third Reich’s Night and Fog
Program, a State policy, was directed at persons in occupied
territories “endangering German security”; they were transported
secretly to Germany where they disappeared without a trace. In
order to maximize the desired intimidating effect, the policy
prohibited government officials from providing information about
the fate of these targeted persons. In the mid-1970s, the
phenomenon of enforced disappearances resurfaced, shocking
and outraging the world when individuals, numbering anywhere
from 6,000 to 24,000, were reported to have “disappeared”
during the military regime in Argentina. Enforced disappearances
spread in Latin America, and the issue became an international
concern when the world noted its widespread and systematic use
by State security forces in that continent under Operation Condor
and during the Dirty War in the 1970s and 1980s. The escalation
of the practice saw political activists secretly arrested, tortured,
and killed as part of governments’ counter-insurgency
campaigns. As this form of political brutality became routine
elsewhere in the continent, the Latin American media
standardized the term “disappearance” to describe the
phenomenon. The victims of enforced disappearances were called
the “desaparecidos,” which literally means the “disappeared
ones.”
Same; Same; Three Different Kinds of “Disappearance” Cases.—
In general, there are three different kinds of “disappearance”
cases: 1) those of people arrested without witnesses or without
positive identification of the arresting agents and are never found
again; 2) those of prisoners who are usually arrested without an
appropriate warrant and held in complete isolation for weeks or
months while their families are unable to discover their
whereabouts and the military authorities deny having them in
custody until they eventually reappear in one detention center or
another; and 3) those of victims of “salvaging” who have
disappeared until their lifeless bodies are later discovered.
Same; Same; Words and Phrases; Although the writ of amparo
specifically covers “enforced disappearances,” this concept is
neither defined nor penalized in this jurisdiction; As the law now
stands, extrajudicial killings and enforced disappearances in this
jurisdiction are not crimes penalized separately from the
component criminal acts undertaken to carry out these killings
and enforced disappearances and are now penalized under the
Revised Penal Code and special laws.—The Amparo Rule expressly
provides that the “writ shall cover extralegal killings and enforced
disappearances or threats thereof.” We note that although the
writ specifically covers “enforced disappearances,” this concept is
neither defined nor penalized in this jurisdiction. The records of
the Supreme Court Committee on the Revision of Rules
(Committee) reveal that the drafters of the Amparo Rule initially
considered providing an elemental definition of the concept of
enforced disappearance: x x x In the end, the Committee took
cognizance of several bills filed in the House of Representatives
and in the Senate on extrajudicial killings and enforced
disappearances, and resolved to do away with a clear textual
definition of these terms in the Rule. The Committee instead
focused on the nature and scope of the concerns within its power
to address and provided the appropriate remedy therefor, mindful
that an elemental definition may intrude into the ongoing
legislative efforts. As the law now stands, extrajudicial killings and
enforced disappearances in this jurisdiction are not crimes
penalized separately from the component criminal acts
undertaken to carry out these killings and enforced
disappearances and are now penalized under the Revised Penal
Code and special laws. The simple reason is that the Legislature
has not spoken on the matter; the determination of what acts are
criminal and what the corresponding penalty these criminal acts
should carry are matters of substantive law that only the
Legislature has the power to enact under the country’s
constitutional scheme and power structure.
Same; Same; Supreme Court; Even without the benefit of directly
applicable substantive laws on extrajudicial killings and enforced
disappearances, however, the Supreme Court is not powerless to
act under its own constitutional mandate to promulgate “rules
concerning the protection and enforcement of constitutional
rights, pleading, practice and procedure in all courts,” since
extrajudicial killings and enforced disappearances, by their nature
and purpose, constitute State or private party violation of the
constitutional rights of individuals to life, liberty and security—the
legal protection that the Court can provide can be very
meaningful through the procedures it sets in addressing
extrajudicial killings and enforced disappearances.—Even without
the benefit of directly applicable substantive laws on extrajudicial
killings and enforced disappearances, however, the Supreme
Court is not powerless to act under its own constitutional mandate
to promulgate “rules concerning the protection and enforcement
of constitutional rights, pleading, practice and procedure in all
courts,” since extrajudicial killings and enforced disappearances,
by their nature and purpose, constitute State or private party
violation of the constitutional rights of individuals to life, liberty
and security. Although the Court’s 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.
Same; Same; Same; The Court’s intervention is in determining
whether an enforced disappearance has taken place and who is
responsible or accountable for this disappearance, and to define
and impose the appropriate remedies to address it; The burden
for the public authorities to discharge in these situations, under
the Rule on the Writ of Amparo, is twofold: the first is to ensure
that all efforts at disclosure and investigation are undertaken
under pain of indirect contempt from this Court when
governmental efforts are less than what the individual situations
require; and, the second is to address the disappearance, so that
the life of the victim is preserved and his or her liberty and
security restored.—Lest this Court intervention be misunderstood,
we clarify once again that we do not rule on any issue of criminal
culpability for the extrajudicial killing or enforced disappearance.
This is an issue that requires criminal action before our criminal
courts based on our existing penal laws. Our intervention is in
determining whether an enforced disappearance has taken place
and who is responsible or accountable for this disappearance, and
to define and impose the appropriate remedies to address it. The
burden for the public authorities to discharge in these situations,
under the Rule on the Writ of Amparo, is twofold. The first is to
ensure that all efforts at disclosure and investigation are
undertaken under pain of indirect contempt from this Court when
governmental efforts are less than what the individual situations
require. The second is to address the disappearance, so that the
life of the victim is preserved and his or her liberty and security
restored. In these senses, our orders and directives relative to the
writ are continuing efforts that are not truly terminated until the
extrajudicial killing or enforced disappearance is fully addressed
by the complete determination of the fate and the whereabouts of
the victim, by the production of the disappeared
person and the restoration of his or her liberty and security, and,
in the proper case, by the commencement of criminal action
against the guilty parties.
Same; Same; International Law; From the International Law
perspective, involuntary or enforced disappearance is considered
a flagrant violation of human rights.—From the International Law
perspective, involuntary or enforced disappearance is considered
a flagrant violation of human rights. It does not only violate the
right to life, liberty and security of the desaparecido; it affects
their families as well through the denial of their right to
information regarding the circumstances of the disappeared family
member. Thus, enforced disappearances have been said to be “a
double form of torture,” with “doubly paralyzing impact for the
victims,” as they “are kept ignorant of their own fates, while
family members are deprived of knowing the whereabouts of their
detained loved ones” and suffer as well the serious economic
hardship and poverty that in most cases follow the disappearance
of the household breadwinner. The UN General Assembly first
considered the issue of “Disappeared Persons” in December 1978
under Resolution 33/173. The Resolution expressed the General
Assembly’s deep concern arising from “reports from various parts
of the world relating to enforced or involuntary disappearances,”
and requested the “UN Commission on Human Rights to consider
the issue of enforced disappearances with a view to making
appropriate recommendations.”
Same; Same; Same; Convention for the Protection of All Persons
from Enforced Disappearance (Convention); In 1992, in response
to the reality that the insidious practice of enforced disappearance
had become a global phenomenon, the United Nations General
Assembly adopted the Declaration on the Protection of All Persons
from Enforced Disappearance, and fourteen years later (or on
December 20, 2006), the UN General Assembly adopted the
International Convention for the Protection of All Persons from
Enforced Disappearance.—In 1992, in response to the reality that
the insidious practice of enforced disappearance had become a
global phenomenon, the UN General Assembly adopted the
Declaration on the Protection of All Persons from Enforced
Disappearance (Declaration). This Declaration, for the first time,
provided in its third preambular clause a working description of
enforced disappearance, as follows: Deeply concerned that in
many countries, often in a persistent manner, enforced
disappearances occur, in the sense that persons are arrested,
detained or abducted against their will or otherwise deprived of
their liberty by officials of different branches or levels of
Government, or by organized groups or private individuals acting
on behalf of, or with the support, direct or indirect, consent or
acquiescence of the Government, followed by a refusal to disclose
the fate or whereabouts of the persons concerned or a refusal to
acknowledge the deprivation of their liberty, which places such
persons outside the protection of the law. Fourteen years after (or
on December 20, 2006), the UN General Assembly adopted the
International Convention for the Protection of All Persons from
Enforced Disappearance (Convention). The Convention was
opened for signature in Paris, France on February 6, 2007. Article
2 of the Convention defined enforced disappearance as follows:
For the purposes of this Convention, “enforced disappearance” is
considered to be the arrest, detention, abduction or any other
form of deprivation of liberty by agents of the State or by persons
or groups of persons acting with the authorization, support or
acquiescence of the State, followed by a refusal to acknowledge
the deprivation of liberty or by concealment of the fate or
whereabouts of the disappeared person, which place such a
person outside the protection of the law.
Same; Same; Same; Same; The Convention is the first universal
human rights instrument to assert that there is a right not to be
subject to enforced disappearance and that this right is non-
derogable.—The Convention is the first universal human rights
instrument to assert that there is a right not to be subject to
enforced disappearance and that this right is non-derogable. It
provides that no one shall be subjected to enforced disappearance
under any circumstances, be it a state of war, internal political
instability, or any other public emergency. It obliges State Parties
to codify enforced disappearance as an offense punishable with
appropriate penalties under their criminal law. It also rec-
ognizes the right of relatives of the disappeared persons and of
the society as a whole to know the truth on the fate and
whereabouts of the disappeared and on the progress and results
of the investigation. Lastly, it classifies enforced disappearance as
a continuing offense, such that statutes of limitations shall not
apply until the fate and whereabouts of the victim are established.
Same; Same; Same; Same; To date, the Philippines has neither
signed nor ratified the Convention, so that the country is not yet
committed to enact any law penalizing enforced disappearance as
a crime.—To date, the Philippines has neither signed nor ratified
the Convention, so that the country is not yet committed to enact
any law penalizing enforced disappearance as a crime. The
absence of a specific penal law, however, is not a stumbling block
for action from this Court, as heretofore mentioned; underlying
every enforced disappearance is a violation of the constitutional
rights to life, liberty and security that the Supreme Court is
mandated by the Constitution to protect through its rule-making
powers.
Same; Same; Same; Same; Separately from the Constitution (but
still pursuant to its terms), the Court is guided, in acting on
Amparo cases, by the reality that the Philippines is a member of
the UN, bound by its Charter and by the various conventions we
signed and ratified, particularly the conventions touching on
humans rights.—Separately from the Constitution (but still
pursuant to its terms), the Court is guided, in acting on Amparo
cases, by the reality that the Philippines is a member of the UN,
bound by its Charter and by the various conventions we signed
and ratified, particularly the conventions touching on humans
rights. Under the UN Charter, the Philippines pledged to “promote
universal respect for, and observance of, human rights and
fundamental freedoms for all without distinctions as to race, sex,
language or religion.” Although no universal agreement has been
reached on the precise extent of the “human rights and
fundamental freedoms” guaranteed to all by the Charter, it was
the UN itself that issued the Declaration on enforced
disappearance, and this Declaration states: Any act of enforced
disappearance is
an offence to dignity. It is condemned as a denial of the purposes
of the Charter of the United Nations and as a grave and flagrant
violation of human rights and fundamental freedoms proclaimed
in the Universal Declaration of Human Rights and reaffirmed and
developed in international instruments in this field. As a matter of
human right and fundamental freedom and as a policy matter
made in a UN Declaration, the ban on enforced disappearance
cannot but have its effects on the country, given our own
adherence to “generally accepted principles of international law as
part of the law of the land.”
Same; Same; Same; Same; The most widely accepted statement
of sources of international law today is Article 38(1) of the Statute
of the International Court of Justice, which provides that the
Court shall apply “international custom, as evidence of a general
practice accepted as law.”—The most widely accepted statement
of sources of international law today is Article 38(1) of the Statute
of the International Court of Justice, which provides that the
Court shall apply “international custom, as evidence of a general
practice accepted as law.” The material sources of custom include
State practice, State legislation, international and national judicial
decisions, recitals in treaties and other international instruments,
a pattern of treaties in the same form, the practice of
international organs, and resolutions relating to legal questions in
the UN General Assembly. Sometimes referred to as “evidence” of
international law, these sources identify the substance and
content of the obligations of States and are indicative of the
“State practice” and “opinio juris” requirements of international
law.
Same; Same; Same; Same; Enforced disappearance as a State
practice has been repudiated by the international community so
that the ban on it is now a generally accepted principle of
international law, which we should consider a part of the law of
the land, and which we should act upon to the extent already
allowed under our laws and the international conventions that
bind us.—While the Philippines is not yet formally bound by the
terms of the Convention on enforced disappearance (or by the
specific terms of the Rome Statute) and has not formally declared
enforced disappearance as a specific crime, the above recital
shows that enforced disappearance as a State practice has been
repudiated by the international community, so that the ban on it
is now a generally accepted principle of international law, which
we should consider a part of the law of the land, and which we
should act upon to the extent already allowed under our laws and
the international conventions that bind us.
Same; Same; Past experiences in other jurisdictions relative to
enforced disappearances show that the evidentiary difficulties are
generally threefold: first, there may be a deliberate concealment
of the identities of the direct perpetrators; second, deliberate
concealment of pertinent evidence of the disappearance is a
distinct possibility; and, third is the element of denial.—These
difficulties largely arise because the State 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. Experts
note that abductors are well organized, armed and usually
members of the military or police forces. Second, deliberate
concealment of pertinent evidence of the disappearance is a
distinct possibility; the central piece of evidence in an enforced
disappearance—i.e., the corpus delicti or the victim’s body—is
usually concealed to effectively thwart the start of any
investigation or the progress of one that may have begun. The
problem for the victim’s family is the State’s virtual monopoly of
access to pertinent evidence. The Inter-American Court of Human
Rights (IACHR) observed in the landmark case of Velasquez
Rodriguez that inherent to the practice of enforced disappearance
is the deliberate use of the State’s power to destroy the pertinent
evidence. The IACHR described the concealment as a clear
attempt by the State to commit the perfect crime. Third is the
element of denial; in many cases, the State authorities
deliberately deny that the enforced disappearance ever occurred.
“Deniability” is central to the policy of enforced disappearances,
as the absence of any proven disappearance makes it easier to
escape
the application of legal standards ensuring the victim’s human
rights. Experience shows that government officials typically
respond to requests for information about desaparecidos by
saying that they are not aware of any disappearance, that the
missing people may have fled the country, or that their names
have merely been invented.
Same; Same; Evidence; Burden of Proof; The characteristics of
the Amparo Rule of being summary and the use of substantial
evidence as the required level of proof (in contrast to the usual
preponderance of evidence or proof beyond reasonable doubt in
court proceedings)—reveal the clear intent of the framers to have
the equivalent of an administrative proceeding, albeit judicially
conducted, in addressing Amparo situations; In these
proceedings, the Amparo petitioner needs only to properly comply
with the substance and form requirements of a Writ of Amparo
petition, as discussed above, and prove the allegations by
substantial evidence, and once a rebuttable case has been
proven, the respondents must then respond and prove their
defenses based on the standard of diligence required.—These
characteristics—namely, of being summary and the use of
substantial evidence as the required level of proof (in contrast to
the usual preponderance of evidence or proof beyond reasonable
doubt in court proceedings)—reveal the clear intent of the framers
of the Amparo Rule to have the equivalent of an administrative
proceeding, albeit judicially conducted, in addressing Amparo
situations. The standard of diligence required—the duty of public
officials and employees to observe extraordinary diligence—point,
too, to the extraordinary measures expected in the protection of
constitutional rights and in the consequent handling and
investigation of extrajudicial killings and enforced disappearance
cases. Thus, in these proceedings, the Amparo petitioner needs
only to properly comply with the substance and form
requirements of a Writ of Amparo petition, as discussed above,
and prove the allegations by substantial evidence. Once a
rebuttable case has been proven, the respondents must then
respond and prove their defenses based on the standard of
diligence required. The rebuttable case, of course, must show that
an enforced disappearance took place under circumstances
showing a violation of the victim’s constitu-
tional rights to life, liberty or security, and the failure on the part
of the investigating authorities to appropriately respond.
Same; Same; Same; Quantum of Evidence; Substantial Evidence;
Words and Phrases; The landmark case of Ang Tibay v. Court of
Industrial Relations, 69 Phil. 635 (1940), provided the Court its
first opportunity to define the substantial evidence required to
arrive at a valid decision in administrative proceedings.—The
landmark case of Ang Tibay v. Court of Industrial Relations
provided the Court its first opportunity to define the substantial
evidence required to arrive at a valid decision in administrative
proceedings. To directly quote Ang Tibay: Substantial evidence is
more than a mere scintilla. It means such relevant evidence as a
reasonable mind might accept as adequate to support a
conclusion. [citations omitted] The statute provides that ‘the rules
of evidence prevailing in courts of law and equity shall not be
controlling.’ The obvious purpose of this and similar provisions is
to free administrative boards from the compulsion of technical
rules so that the mere admission of matter which would be
deemed incompetent in judicial proceedings would not invalidate
the administrative order. [citations omitted] But this assurance of
a desirable flexibility in administrative procedure does not go so
far as to justify orders without a basis in evidence having rational
probative force.
Same; Same; Same; Same; Same; The fair and proper rule is to
consider all the pieces of evidence adduced in their totality, and to
consider any evidence otherwise inadmissible under our usual
rules to be admissible if it is consistent with the admissible
evidence adduced—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.—
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.
Same; Same; Convention for the Protection of All Persons from
Enforced Disappearance; Elements of Enforced Disappearance.—
The Convention defines enforced disappearance as “the arrest,
detention, abduction or any other form of deprivation of liberty by
agents of the State or by persons or groups of persons acting with
the authorization, support or acquiescence of the State, followed
by a refusal to acknowledge the deprivation of liberty or by
concealment of the fate or whereabouts of the disappeared
person, which place such a person outside the protection of the
law.” Under this definition, the elements that constitute enforced
disappearance are essentially fourfold: (a) arrest, detention,
abduction or any form of deprivation of liberty; (b) carried out by
agents of the State or persons or groups of persons acting with
the authorization, support or acquiescence of the State; (c)
followed by a refusal to acknowledge the detention, or a
concealment of the fate of the disappeared person; and (d)
placement of the disappeared person outside the protection of the
law.
Same; Same; Evidence; Witnesses; As a rule, minor
inconsistencies indicate truthfulness rather than prevarication and
only
tend to strengthen their probative value, in contrast to
testimonies from various witnesses dovetailing on every detail —
the latter cannot but generate witnesses that the material
circumstances they testified to were integral parts of a well
thought of and prefabricated story.—Upon deeper consideration
of these inconsistencies, however, what appears clear to us is that
the petitioners never really steadfastly disputed or presented
evidence to refute the credibility of the respondent and her
witness, Mrs. Talbin. The inconsistencies the petitioners point out
relate, more than anything else, to details that should not affect
the credibility of the respondent and Mrs. Talbin; the
inconsistencies are not on material points. We note, for example,
that these witnesses are lay people in so far as military and police
matters are concerned, and confusion between the police and the
military is not unusual. As a rule, minor inconsistencies such as
these indicate truthfulness rather than prevarication and only tend
to strengthen their probative value, in contrast to testimonies
from various witnesses dovetailing on every detail; the latter
cannot but generate suspicion that the material circumstances
they testified to were integral parts of a well thought of and
prefabricated story. Based on these considerations and the unique
evidentiary situation in enforced disappearance cases, we hold it
duly established that Col. Kasim informed the respondent and her
friends, based on the informant’s 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 respondent’s and Mrs. Talbin’s
testimonies cannot simply be defeated by Col. Kasim’s plain denial
and his claim that he had destroyed his informant’s letter, the
critical piece of evidence that supports or negates the parties’
conflicting claims. Col. Kasim’s 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. For brevity, we shall call the evidence of
what Col. Kasim reported to the respondent to be the “Kasim
evidence.”
; Same; The Amparo Rule was not promulgated with the intent to
make it a token gesture of concern for constitutional rights. It was
promulgated to provide effective and timely remedies, using and
profiting from local and international experiences in extrajudicial
killings and enforced disappearances, as the situation may require
—the Court has no choice but to meet the evidentiary difficulties
inherent in enforced disappearances with the flexibility that these
difficulties demand.—To say that this piece of evidence is
incompetent and inadmissible evidence of what it substantively
states is to acknowledge—as the petitioners effectively suggest—
that in the absence of any direct evidence, we should simply
dismiss the petition. To our mind, an immediate dismissal for this
reason is no different from a statement that the Amparo Rule—
despite its terms—is ineffective, as it cannot allow for the special
evidentiary difficulties that are unavoidably present in Amparo
situations, particularly in extrajudicial killings and enforced
disappearances. The Amparo Rule was not promulgated with this
intent or with the intent to make it a token gesture of concern for
constitutional rights. It was promulgated to provide effective and
timely remedies, using and profiting from local and international
experiences in extrajudicial killings and enforced disappearances,
as the situation may require. Consequently, we have no choice
but to meet the evidentiary difficulties inherent in enforced
disappearances with the flexibility that these difficulties demand.
Same; Same; Same; In sum, none of the reports on record
contains any meaningful results or details on the depth and extent
of the investigation 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 the missing subject;
Indisputably, the police authorities from the very beginning failed
to come up to the extraordinary diligence that the Amparo Rule
requires.—As the CA found through Task Force Tagitis, the
investigation was at best haphazard since the authorities were
looking for a man whose picture they initially did not even secure.
The returns and reports made to the CA fared no better, as the
CIDG efforts
themselves were confined to searching for custodial records of
Tagitis in their various departments and divisions. To point out
the obvious, if the abduction of Tagitis was a “black” operation
because it was unrecorded or officially unauthorized, no record of
custody would ever appear in the CIDG records; Tagitis, too,
would not be detained in the usual police or CIDG detention
places. In sum, none of the reports on record contains any
meaningful results or details on the depth and extent of the
investigation made. To be sure, reports of top police officials
indicating the personnel and units they directed to investigate can
never constitute exhaustive and meaningful investigation, or equal
detailed investigative reports of the activities undertaken to
search for Tagitis. Indisputably, the police authorities from the
very beginning failed to come up to the extraordinary diligence
that the Amparo Rule requires.
Same; Same; Same; The consistent but unfounded denials and
the haphazard investigations cannot but point to the conclusion
that there was government complicity in the disappearance, for
why would the government and its officials engage in their chorus
of concealment if the intent had not been to deny what they
already knew of the disappearance?—Based on these
considerations, we conclude that Col. Kasim’s 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 government’s
cap under the circumstances of the disappearance? From this
perspective, the evidence and developments, particularly the
Kasim evidence, already establish a concrete case of enforced
disappearance that the Amparo Rule covers. From the prism of
the UN Declaration, heretofore cited and quoted, the evidence at
hand and the developments in this case confirm the fact of the
enforced disappearance and government complicity, under a
background of consistent and unfounded government denials and
haphazard handling. The disappearance as well effectively placed
Tagitis outside the protection of the law—a situation that will
subsist unless this Court acts.
Same; Same; Same; The Court believes and so holds that the
government in general, through the Philippine National Police
(PNP) and the Criminal Investigation and Detention Group (PNP-
CIDG), and in particular, the Chiefs of these organizations
together with Col. Kasim, should be held fully accountable for the
enforced disappearance of Tagitis—the Court holds these
organizations accountable through their incumbent Chiefs who,
under this Decision, shall carry the personal responsibility of
seeing to it that extraordinary diligence, in the manner the
Amparo Rule requires, is applied in addressing the enforced
disappearnce of Tagitis.—Following the lead of this Turkish
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,” specifies the PNP as the
governmental office with the mandate “to investigate and prevent
crimes, effect the arrest of criminal offenders, bring offenders to
justice and assist in their prosecution.” The PNP-CIDG, as Col.
Jose Volpane Pante (then Chief of CIDG Region 9) testified, is the
“investigative arm” of the PNP and is mandated to “investigate
and prosecute all cases involving violations of the Revised Penal
Code, particularly those considered as heinous crimes.” Under the
PNP organizational structure, the PNP-CIDG is tasked to
investigate all major crimes involving violations of the Revised
Penal Code and operates against organized crime groups, unless
the President assigns the case exclusively to the National Bureau
of Investigation (NBI). No indication exists in this case showing
that the President ever directly intervened by assigning the
investigation of Tagitis’ disappearance exclusively to the NBI.
Given their mandates, the PNP and PNP-CIDG officials and
members were the
ones who were remiss in their duties when the government
completely failed to exercise the extraordinary diligence that the
Amparo Rule requires. We hold these organization accountable
through their incumbent Chiefs who, under this Decision, shall
carry the personal responsibility of seeing to it that extraordinary
diligence, in the manner the Amparo Rule requires, is applied in
addressing the enforced disappearance of Tagitis.
Same; Same; Same; The Court holds Col. Kasim accountable for
his failure to disclose under oath information relating to the
enforced disappearance, and for the purpose of this
accountability, he is impleaded as a party to this case.—We hold
Col. Kasim accountable for his failure to disclose under oath
information relating to the enforced disappearance. For the
purpose of this accountability, we order that Col. Kasim be
impleadead as a party to this case. The PNP is similarly held
accountable for the suppression of vital information that Col.
Kasim could and did not provide, and, as the entity with direct
authority over Col. Kasim, is held with the same obligation of
disclosure that Col. Kasim carries. We shall deal with Col. Kasim’s
suppression of evidence under oath when we finally close this
case under the process outlined below.
PETITION for review on certiorari of a decision of the Court of
Appeals.
The facts are stated in the opinion of the Court.
Rogelio T. Linzag for private respondent.
BRION, J.:
We review in this petition for review on certiorari1 the decision
dated March 7, 2008 of the Court of Appeals (CA)
in C.A.-G.R. AMPARO No. 00009.2 This CA decision confirmed the
enforced disappearance of Engineer Morced N. Tagitis (Tagitis)
and granted the Writ of Amparo at the petition of his wife, Mary
Jean B. Tagitis (respondent). The dispositive portion of the CA
decision reads:
“WHEREFORE, premises considered, petition is hereby GRANTED.
The Court hereby FINDS that this is an “enforced disappearance”
within the meaning of the United Nations instruments, as used in
the Amparo Rules. The privileges of the writ of amparo are hereby
extended to Engr. Morced Tagitis.
Consequently: (1) respondent GEN. EDGARDO M. DOROMAL,
Chief, Criminal Investigation and Detention Group (CIDG) who
should order COL. JOSE VOLPANE PANTE, CIDG-9 Chief,
Zamboanga City, to aid him; (2) respondent GEN. AVELINO I.
RAZON, Chief, PNP, who should order his men, namely: (a)
respondent GEN. JOEL GOLTIAO, Regional Director of ARMM PNP,
(b) COL. AHIRON AJIRIM, both head of TASK FORCE TAGITIS,
and (c) respondent SR. SUPERINTENDENT LEONARDO A. ESPINA,
Chief, Police Anti-Crime and Emergency Response, to aid him as
their superior- are hereby DIRECTED to exert extraordinary
diligence and efforts, not only to protect the life, liberty and
security of Engr. Morced Tagitis, but also to extend the privileges
of the writ of amparo to Engr. Morced Tagitis and his family, and
to submit a monthly report of their actions to this Court, as a way
of PERIODIC REVIEW to enable this Court to monitor the action of
respondents.
This amparo case is hereby DISMISSED as to respondent LT.
GEN. ALEXANDER YANO, Commanding General, Philippine Army,
and as to respondent GEN. RUBEN RAFAEL, Chief Anti-Terror Task
Force Comet, Zamboanga City, both being with the military, which
is a separate and distinct organization from
the police and the CIDG, in terms of operations, chain of
command and budget.”
This Decision reflects the nature of the Writ of Amparo—a
protective remedy against violations or threats of violation against
the rights to life, liberty and security.3 It embodies, as a remedy,
the court’s directive to police agencies to undertake specified
courses of action to address the disappearance of an individual, in
this case, Engr. Morced N. Tagitis. It does not determine guilt nor
pinpoint criminal culpability for the disappearance; rather, it
determines responsibility, or at least accountability, for the
enforced disappearance for purposes of imposing the appropriate
remedies to address the disappearance. Responsibility refers to
the extent the actors have been established by substantial
evidence to have participated in whatever way, by action or
omission, in an enforced disappearance, as a measure of the
remedies this Court shall craft, among them, the directive to file
the appropriate criminal and civil cases against the responsible
parties in the proper courts. Accountability, on the other hand,
refers to the measure of remedies that should be addressed to
those who exhibited involvement in the enforced disappearance
without bringing the level of their complicity to the level of
responsibility defined above; or who are imputed with knowledge
relating to the enforced disappearance and who carry the burden
of disclosure; or those who carry, but
have failed to discharge, the burden of extraordinary diligence in
the investigation of the enforced disappearance. In all these
cases, the issuance of the Writ of Amparo is justified by our
primary goal of addressing the disappearance, so that the life of
the victim is preserved and his liberty and security are restored.
We highlight this nature of a Writ of Amparo case at the outset to
stress that the unique situations that call for the issuance of the
writ, as well as the considerations and measures necessary to
address these situations, may not at all be the same as the
standard measures and procedures in ordinary court actions and
proceedings. In this sense, the Rule on the Writ of Amparo4
(Amparo Rule) issued by this Court is unique. The Amparo Rule
should be read, too, as a work in progress, as its directions and
finer points remain to evolve through time and jurisprudence and
through the substantive laws that Congress may promulgate.
The Factual Antecedents
The background facts, based on the petition and the records of
the case, are summarized below.
The established facts show that Tagitis, a consultant for the World
Bank and the Senior Honorary Counselor for the Islamic
Development Bank (IDB) Scholarship Programme, was last seen
in Jolo, Sulu. Together with Arsimin Kunnong (Kunnong), an IDB
scholar, Tagitis arrived in Jolo by boat in the early morning of
October 31, 2007 from a seminar in Zamboanga City. They
immediately checked-in at ASY Pension House. Tagitis asked
Kunnong to buy him a boat ticket for his return trip the following
day to Zamboanga. When Kunnong returned from this errand,
Tagitis
was no longer around.5 The receptionist related that Tagitis went
out to buy food at around 12:30 in the afternoon and even left his
room key with the desk.6 Kunnong looked for Tagitis and even
sent a text message to the latter’s 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:
“x x x x
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 [respondent’s]
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
subject’s 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 [respondent’s] 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 [respondent’s]
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 subject’s
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
“x x x x
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 o’clock 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 o’clock 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 o’clock 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
“x x x x
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 o’clock 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 o’clock 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-PACER15
Chief PS Supt. Leonardo A. Espina’s affidavit which alleged
that:16
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. TAGITIS 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
“x x x x
3) For the record:
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
o’clock 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;
633
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
18 CA Resolution dated January 9, 2008; Rollo, p. 275.
19 TSN, January 11, 2008, p. 39; CA Resolution dated January
11, 2008, Rollo, pp. 280-283.
20 The hearings were conducted on January 17, 2008, January
28, 2008, and February 11, 2008 respectively.
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 Ajirim’s replacement in the latter’s official desig-
nated post. Yet, P/Supt KASIM’s subpoena was returned to this
Court unserved. Since this Court was made to understand that it
was P/Supt KASIM who was the petitioner’s 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 court’s 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 Jema’ah 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 husband’s
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 No-
Program and a World Bank Consultant who was presumed to be
abducted in Jolo, Sulu on October 30, 2007;
During our meeting, I immediately called up my friends in the
military asking them a favor to help her to find the whereabouts
her husband Engr. Morced Tagitis;
After then, we faxed a letter to PCSUPT RODOLFO B. MENDOZA
JR. of the PHILIPPINE NATIONAL POLICE, CAMP CRAME,
QUEZON CITY appealing for assistance in locating/gathering
information on the abduction of Engr. Morced N. Tagitis. Exhibit
“C,” TSN, January 28, 2008, p. 8-9.
vember 5, 2007) to personally ask Kunnong to report her
husband’s disappearance to the Jolo Police Station, since she had
the impression that her husband could not communicate with her
because his cellular phone’s battery did not have enough power,
and that he would call her when he had fully-charged his cellular
phone’s 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
o’clock in the morning; we arrived at Zamboanga Airport at
around 10:00 o’clock. 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
he’s 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 he’ll do the best he
can to help me find my husband.
After a few weeks, Mr. Salvador called 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 don’t 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 inves-
tigation. 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.46
On cross-examination, Mrs. Talbin, clarified that the “raw report”
read to them by Col. Kasim indicated that Tagitis was last seen in
Talipapao, Sulu.47
Testimonies for the Petitioner
On January 28, 2008, on cross-examination by the Assistant
Solicitor General, Prof. Matli submitted a new affidavit dated
January 26, 2008 retracting the statements he made in his
affidavit dated January 4, 2008. Prof. Matli testified that he
reluctantly signed the January 4, 2008 affidavit which was
prepared by PS Supt. Pingay of the Jolo Police Station; he didn’t
want Pingay “to be disappointed or to be told as not cooperating
with the investigation” of Tagitis’ disappearance.48 Prof. Matli
confirmed that he knew Tagitis personally, as both of them were
Honorary Councilors in the IDB Scholarship program since the
1980s.49 He recounted that after reporting Tagitis’ disapperance
to the Jolo Police Station (where he also executed the January 4,
2008 affidavit), a certain Nuraya Lackin who was working in the
Office of Muslim Affairs in Manila called Cecille Chan, Tagitis’
secretary, to inquire about Tagitis’ whereabouts. Chan told him
personally over
_______________
the phone that “Prof., lalabas din yan.”50 Prof. Matli also
emphasized that despite what his January 4, 2008 affidavit
indicated,51 he never told PS Supt. Pingay, or made any
accusation, that Tagitis took away money entrusted to him.52
Prof. Matli confirmed, however, that that he had received an e-
mail report53 from Nuraya
Lackian of the Office of Muslim Affairs in Manila that the IDB was
seeking assistance of the office in locating the funds of IDB
scholars deposited in Tagitis’ personal account.54
On cross-examination by the respondent’s 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 respondent’s 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 respondent’s 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 latter’s 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 decision71 confirming that
the disappearance of Tagitis was an “enforced disappearance”
under the United Nations (UN) Declaration on the Protection of All
Persons from Enforced Dis-
appearances.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 respondent’s 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. Kasim’s asset, pointing to the CIDG’s
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. Kasim’s 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 respondent’s
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 CA’s 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 Court’s Ruling
We do not find the petition meritorious.
Sufficiency in Form and Substance
In questioning the sufficiency in form and substance of the
respondent’s 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 respondent’s
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 victim’s rights. As in any other initiatory pleading,
the pleader must of course state the ultimate facts constituting
the cause of action, omitting the evidentiary details.76 In an
Amparo petition, however, this
requirement must be read in light of the nature and purpose of
the proceeding, which addresses a situation of uncertainty; the
petitioner may not be able to describe with certainty how the
victim exactly disappeared, or who actually acted to kidnap,
abduct or arrest him or her, or where the victim is detained,
because these information may purposely be hidden or covered
up by those who caused the disappearance. In this type of
situation, to require the level of specificity, detail and precision
that the petitioners apparently want to read into the Amparo Rule
is to make this Rule a token gesture of judicial concern for
violations of the constitutional rights to life, liberty and security.
To read the Rules of Court requirement on pleadings while
addressing the unique Amparo situation, the test in reading the
petition should be to determine whether it contains the details
available to the petitioner under the circumstances, while
presenting a cause of action showing a violation of the victim’s
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 intel-
ligence 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 pleader’s 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
affiant’s direct testimony.78 This requirement, however, should
not be read as an absolute one that necessarily leads to the
dismissal of the petition if not strictly followed. Where, as in this
case, the petitioner has substantially complied with the
requirement by submitting a verified petition sufficiently detailing
the facts relied upon, the strict need for the sworn statement that
an affidavit represents is essentially fulfilled. We note that the
failure to attach the required affidavits was fully cured when the
respondent and her witness (Mrs. Talbin) personally testified in
the CA hear-
ings 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 respondent’s 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 respondent’s 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 respondent’s 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 respondent’s
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 Court’s intervention.
We do not see the respondent’s 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
respondent’s 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;
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
respondent’s] 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 subject’s
human and constitutional rights, except the issuance of a WRIT
OF AMPARO.
Based on these considerations, we rule that the respondent’s
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 Hitler’s Nact und Nebel Erlass
or Night and Fog Decree of December 7, 1941.82 The Third
Reich’s 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 Condor84 and during the Dirty War85
in the 1970s and 1980s. The escalation of the practice saw
political activists secretly arrested, tortured, and killed as part of
governments’ counter-insurgency campaigns. As
this form of political brutality became routine elsewhere in the
continent, the Latin American media standardized the term
“disappearance” to describe the phenomenon. The victims of
enforced disappearances were called the “desaparecidos,”86
which literally means the “disappeared ones.”87 In general, there
are three different kinds of “disappearance” cases:
1) those of people arrested without witnesses or without positive
identification of the arresting agents and are never found again;
2) those of prisoners who are usually arrested without an
appropriate warrant and held in complete isolation for weeks or
months while their families are unable to discover their
whereabouts and the military authorities deny having them in
custody until they eventually reappear in one detention center or
another; and
3) those of victims of “salvaging” who have disappeared until
their lifeless bodies are later discovered.88
In the Philippines, enforced disappearances generally fall within
the first two categories,89 and 855 cases were recorded during
the period of martial law from 1972 until 1986. Of this number,
595 remained missing, 132 surfaced alive and 127 were found
dead. During former President Corazon C. Aquino’s 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. Arroyo’s administration. The
Commission on Human Rights’ records show a total of 636 verified
cases of enforced disappearances from 1985 to 1993. Of this
number, 406 remained missing, 92 surfaced alive, 62 were found
dead, and 76 still have undetermined status.90 Currently, the
United Nations Working Group on Enforced or Involuntary
Disappearance91 reports 619 outstanding cases
of enforced or involuntary disappearances covering the period
December 1, 2007 to November 30, 2008.92
Enforced Disappearances
Under Philippine Law
The Amparo Rule expressly provides that the “writ shall cover
extralegal killings and enforced disappearances or threats
thereof.”93 We note that although the writ specifically covers
“enforced disappearances,” this concept is neither defined nor
penalized in this jurisdiction. The records of the Supreme Court
Committee on the Revision of Rules (Committee) reveal that the
drafters of the Amparo Rule initially considered providing an
elemental definition of the concept of enforced disappearance:94
JUSTICE MARTINEZ: I believe that first and foremost we should
come up or formulate a specific definition [for] extrajudicial
killings and enforced disappearances. From that definition,
then we can proceed to formulate the rules, definite rules
concerning the same.
CHIEF JUSTICE PUNO: … As things stand, there is no law
penalizing extrajudicial killings and enforced disappearances… so
initially also we have to [come up with] the nature of these
extrajudicial killings and enforced disappearances [to be covered
by the Rule] because our concept of killings and disappearances
will define the jurisdiction of the courts. So we’ll have to agree
among ourselves about the nature of killings and disappearances
for instance, in other jurisdictions, the rules only cover state
actors. That is an element incorporated in their concept of
extrajudicial killings and enforced disappearances. In other
jurisdictions, the concept includes acts and omissions not only of
state actors but also of non state actors. Well, more specifically in
the case of the Philippines for instance, should these rules include
the killings, the disappearances which may be authored by let us
say, the NPAs or the leftist organizations and others. So, again we
need to define the nature of the extrajudicial killings and enforced
disappearances that will be covered by these rules.” [Emphasis
supplied]95
In the end, the Committee took cognizance of several bills filed in
the House of Representatives96 and in the Senate97 on
extrajudicial killings and enforced disappear-
ances, 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, extrajudicial killings and enforced
disappearances in this jurisdiction are not crimes penalized
separately from the component criminal acts undertaken to carry
out these killings and enforced disappearances and are now
penalized under the Revised Penal Code and special laws.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 country’s constitutional scheme and power
structure.
Even without the benefit of directly applicable substantive laws on
extrajudicial killings and enforced disappearances, however, the
Supreme Court is not powerless to act under its own
constitutional mandate to promulgate “rules concerning the
protection and enforcement of constitutional rights, pleading,
practice and procedure in all courts,”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
Court’s 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 Assembly’s deep
concern arising from “reports from various parts of the world
relating to enforced or involuntary disappearances,” and
requested the “UN Commission on Human Rights to consider the
issue of enforced disappearances with a view to making
appropriate recommendations.”103
In 1992, in response to the reality that the insidious practice of
enforced disappearance had become a global phenomenon, the
UN General Assembly adopted the Declaration on the Protection
of All Persons from Enforced Disappearance (Declaration).104
This Declaration, for the first time, provided in its third
preambular clause a working description of enforced
disappearance, as follows:
“Deeply concerned that in many countries, often in a persistent
manner, enforced disappearances occur, in the sense that persons
are arrested, detained or abducted against their will or otherwise
deprived of their liberty by officials of different branches or levels
of Government, or by organized groups or private individuals
acting on behalf of, or with the support, direct or indirect, consent
or acquiescence of the Government, followed by a refusal to
disclose the fate or whereabouts of the persons concerned or a
refusal to acknowledge the deprivation of their liberty, which
places such persons outside the protection of the law.” [Emphasis
supplied]
Fourteen years after (or on December 20, 2006), the UN General
Assembly adopted the International Convention for the Protection
of All Persons from Enforced Disappearance (Convention).105 The
Convention was opened for signature in Paris, France on February
6, 2007.106 Article 2 of the Convention defined enforced
disappearance as follows:
“For the purposes of this Convention, “enforced disappearance”
is considered to be the arrest, detention, abduction or any other
form of deprivation of liberty by agents of the State or by persons
or groups of persons acting with the authorization, support or
acquiescence of the State, followed by a refusal to acknowledge
the deprivation of liberty or by concealment of the fate or
whereabouts of the disappeared person, which place such a
person outside the protection of the law.” [Emphasis supplied]
The Convention is the first universal human rights instrument to
assert that there is a right not to be subject to enforced
disappearance107 and that this right is non-derogable.108 It
provides that no one shall be subjected to enforced disappearance
under any circumstances, be it a state of war, internal political
instability, or any other public emergency. It obliges State Parties
to codify enforced disappearance as an offense punishable with
appropriate penalties under their criminal law.109 It also
recognizes the right of relatives of the disappeared persons and of
the society as a whole to know the truth on the fate and
whereabouts of the disappeared and on the progress
and results of the investigation.110 Lastly, it classifies enforced
disappearance as a continuing offense, such that statutes of
limitations shall not apply until the fate and whereabouts of the
victim are established.111
Binding Effect of UN
Action on the Philippines
To date, the Philippines has neither signed nor ratified the
Convention, so that the country is not yet committed to enact any
law penalizing enforced disappearance as a crime. The absence of
a specific penal law, however, is not a stumbling block for action
from this Court, as heretofore mentioned; underlying every
enforced disappearance is a violation of the constitutional rights
to life, liberty and security that the Supreme Court is mandated by
the Constitution to protect through its rule-making powers.
Separately from the Constitution (but still pursuant to its terms),
the Court is guided, in acting on Amparo cases, by the reality that
the Philippines is a member of the UN, bound by its Charter and
by the various conventions we signed and ratified, particularly the
conventions touching on humans rights. Under the UN Charter,
the Philippines pledged to “promote universal respect for, and
observance
of, human rights and fundamental freedoms for all without
distinctions as to race, sex, language or religion.”112 Although no
universal agreement has been reached on the precise extent of
the “human rights and fundamental freedoms” guaranteed to all
by the Charter,113 it was the UN itself that issued the Declaration
on enforced disappearance, and this Declaration states:114
Any act of enforced disappearance is an offence to dignity. It is
condemned as a denial of the purposes of the Charter of the
United Nations and as a grave and flagrant violation of human
rights and fundamental freedoms proclaimed in the Universal
Declaration of Human Rights and reaffirmed and developed in
international instruments in this field.” [Emphasis supplied]
As a matter of human right and fundamental freedom and as a
policy matter made in a UN Declaration, the ban on enforced
disappearance cannot but have its effects on the country, given
our own adherence to “generally accepted principles of
international law as part of the law of the land.”115
In the recent case of Pharmaceutical and Health Care Association
of the Philippines v. Duque III,116 we held that:
“Under the 1987 Constitution, international law can become part
of the sphere of domestic law either by transformation or
incorporation. The transformation method requires that an
international law be transformed into a domestic law through a
constitutional mechanism such as local legislation. The
incorporation method applies when, by mere constitutional
declaration, international law is deemed to have the force of
domestic law.” [Emphasis supplied]
We characterized “generally accepted principles of international
law” as norms of general or customary international law that are
binding on all states. We held further:117
“[G]enerally accepted principles of international law, by virtue of
the incorporation clause of the Constitution, form part of the laws
of the land even if they do not derive from treaty obligations. The
classical formulation in international law sees those customary
rules accepted as binding result from the combination [of] two
elements: the established, widespread, and consistent practice on
the part of States; and a psychological element known as the
opinion juris sive necessitates (opinion as to law or necessity).
Implicit in the latter element is a belief that the practice in
question is rendered obligatory by the existence of a rule of law
requiring it.” [Emphasis in the original]
The most widely accepted statement of sources of international
law today is Article 38(1) of the Statute of the International Court
of Justice, which provides that the Court shall apply “international
custom, as evidence of a general practice accepted as law.”118
The material sources of custom include State practice, State
legislation, international and national judicial decisions, recitals in
treaties and other international instruments, a pattern of treaties
in the same form, the practice of international organs, and
resolutions relating to legal questions in the UN General
Assembly.119 Sometimes referred to as “evidence” of
international law,120 these sources identify the substance and
content of the obligations of States and are indicative of the
“State practice” and “opinio juris” requirements of international
law.121 We note the following in these respects:
First, barely two years from the adoption of the Declaration, the
Organization of American States (OAS) General Assembly adopted
the Inter-American Convention on Enforced Disappearance of
Persons in June 1994.122 State parties undertook under this
Convention “not to practice, permit, or tolerate the forced
disappearance of persons, even in states of emergency or
suspension of individual
guarantees.”123 One of the key provisions includes the States’
obligation to enact the crime of forced disappearance in their
respective national criminal laws and to establish jurisdiction over
such cases when the crime was committed within their
jurisdiction, when the victim is a national of that State, and “when
the alleged criminal is within its territory and it does not proceed
to extradite him,” which can be interpreted as establishing
universal jurisdiction among the parties to the Inter-American
Convention.124 At present, Colombia, Guatemala, Paraguay, Peru
and Venezuela have enacted separate laws in accordance with the
Inter-American Convention and have defined activities involving
enforced disappearance to be criminal.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 Convention’s Article 2 on the
right to life; Article 3 on
_______________
123 Article 1,¶ 1 of the Inter-American Convention on Enforced
Disappearances. Article II of the Inter-American Convention
defined enforced disappearance as “the act of depriving a person
or persons of his or her freedom, in whatever way, perpetrated by
agents of the state or by persons or groups persons acting with
the authorization, support, or acquiescence of the state, followed
by an absence of information or a refusal to acknowledge that
deprivation of freedom, or to give information on the whereabouts
of that person, thereby impeding his or her recourse to the
applicable remedies and procedural guarantees.”
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 applicant’s 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
person’s 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-Irala130 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;
_______________
rected against any civilian population, with knowledge of the
attack: .xxx(i) Enforced disappearance of persons.”
136 Supra note 91, at 3. Enforced disappearances can also
involve serious breaches of international instruments that are not
conventions such as:
1) The Body of Principals for the Protection of All Persons under
Any Form of Detention or Imprisonment;
2) The Code of Conduct for Law Enforcement Officials, the
Standard Minimum Rules for the Treatment of Prisoners;
3) The Principles on the Effective Prevention and Investigation
of Extra-Legal, Arbitrary and Summary Executions and
4) The Declaration on the Protection of All Persons from
Enforced Disappearances. Id.
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 one’s 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.
Manalo144 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 victim’s 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 victim’s family is the State’s virtual
monopoly of access to pertinent evidence. The Inter-American
Court of Human Rights (IACHR) observed in the landmark case of
Velasquez Rodriguez146 that inherent to the practice of enforced
disappearance is the deliberate use of the State’s 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 victim’s 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 extrajudicial killings and enforced disappearance
cases.
Thus, in these proceedings, the Amparo petitioner needs only to
properly comply with the substance and form requirements of a
Writ of Amparo petition, as discussed above, and prove the
allegations by substantial evidence. Once a rebuttable case has
been proven, the respondents must then respond and prove their
defenses based on the
standard of diligence required. The rebuttable case, of course,
must show that an enforced disappearance took place under
circumstances showing a violation of the victim’s 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
Relations151 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 Court’s 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 real-
istic 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 Velásquez
(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 Velásquez, the victim’s
sister, who described Manfredo’s 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 hear-
say 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 Witness157 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 ad-
mission 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 de-
positing 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 respondent’s allegation that Tagitis 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 Tagitis 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 respondent’s 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?
696
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: Jema’ah 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, ma’am.
Q: And a certain Col. Kasim told you that your husband was
abducted and under custodial investigation?
A: Yes, ma’am.

Q: And you mentioned that he showed you a report?
A: Yes, ma’am.
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,
ma’am.
Q: But you were able to read the contents?
A:  No. But he read it in front of us, my friends, ma’am.
Q:  How many were you when you went to see Col. Kasim?
A: There were three of us, ma’am.
Q: Who were your companions?
A: Mrs. Talbin, tapos yung dalawang friends nya from Mati City,
Davao Oriental, ma’am.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, ma’am.”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, ma’am.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
I’ve 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
don’t know if it was computerized but I’m certain that it was
typewritten. I’m 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 I’ve 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 respondent’s and Mrs. Talbin’s 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. Talbin’s 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 prevarication169 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 informant’s 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 respondent’s and Mrs. Talbin’s
testimonies cannot simply be defeated by Col. Kasim’s plain denial
and his claim that he had destroyed his informant’s letter, the
critical piece of evidence that supports or negates the parties’
conflicting claims. Col. Kasim’s admitted destruction of this letter
—effectively, a suppression of this evidence—raises the
presumption that the letter, if produced, would be proof of what
the respondent claimed.171 For brevity, we shall call the evidence
of what Col. Kasim reported to the respondent to be the “Kasim
evidence.”
Given this evidence, our next step is to decide whether we can
accept this evidence, in lieu of direct evidence, as proof that the
disappearance of Tagitis was due to action with government
participation, knowledge or consent and that he was held for
custodial investigation. We note in this regard that Col. Kasim was
never quoted to have said that the custodial investigation was by
the CIDG Zamboanga. The Kasim evidence only implies
government intervention through the use of the term “custodial
investigation,” and does not at all point to CIDG Zamboanga as
Tagitis’ custodian.
Strictly speaking, we are faced here with a classic case of hearsay
evidence—i.e., evidence whose probative value is not based on
the personal knowledge of the witnesses (the respondent, Mrs.
Talbin and Col. Kasim himself) but on the knowledge of some
other person not on the witness stand (the informant).172
To say that this piece of evidence is incompetent and inadmissible
evidence of what it substantively states is to acknowledge—as the
petitioners effectively suggest—that in the absence of any direct
evidence, we should simply dismiss the petition. To our mind, an
immediate dismissal for this reason is no different from a
statement that the Amparo Rule—despite its terms—is ineffective,
as it cannot allow for the special evidentiary difficulties that are
unavoidably present in Amparo situations, particularly in
extrajudicial killings and enforced disappearances. The Amparo
Rule was not promulgated with this intent or with the intent to
make it a token gesture of concern for constitutional rights. It was
promulgated to provide effective and timely remedies, using and
profiting from local and international experiences in extrajudicial
killings and enforced
disappearances, as the situation may require. Consequently, we
have no choice but to meet the evidentiary difficulties inherent in
enforced disappearances with the flexibility that these difficulties
demand.
To give full meaning to our Constitution and the rights it protects,
we hold that, as in Velasquez, we should at least take a close look
at the available evidence to determine the correct import of every
piece of evidence—even of those usually considered inadmissible
under the general rules of evidence—taking into account the
surrounding circumstances and the test of reason that we can use
as basic minimum admissibility requirement. In the present case,
we should at least determine whether the Kasim evidence before
us is relevant and meaningful to the disappearance of Tagistis and
reasonably consistent with other evidence in the case.
The evidence about Tagitis’ personal circumstances surrounded
him with an air of mystery. He was reputedly a consultant of the
World Bank and a Senior Honorary Counselor for the IDB who
attended a seminar in Zamboanga and thereafter proceded to
Jolo for an overnight stay, indicated by his request to Kunnong for
the purchase of a return ticket to Zamboanga the day after he
arrived in Jolo. Nothing in the records indicates the purpose of his
overnight sojourn in Jolo. A colleague in the IDB, Prof. Matli, early
on informed the Jolo police that Tagitis may have taken funds
given to him in trust for IDB scholars. Prof Matli later on stated
that he never accused Tagitis of taking away money held in trust,
although he confirmed that the IDB was seeking assistance in
locating funds of IDB scholars deposited in Tagitis’ personal
account. Other than these pieces of evidence, no other
information exists in the records relating to the personal
circumstances of Tagitis.
The actual disappearance of Tagitis is as murky as his personal
circumstances. While the Amparo petition recited that he was
taken away by “burly men believed to be police intelligence
operatives,” no evidence whatsoever was introduced to support
this allegation. Thus, the available direct evidence is that Tagitis
was last seen at 12.30 p.m. of October 30, 2007—the day he
arrived in Jolo—and was never seen again.
The Kasim evidence assumes critical materiality given the dearth
of direct evidence on the above aspects of the case, as it supplies
the gaps that were never looked into and clarified by police
investigation. It is the evidence, too, that colors a simple missing
person report into an enforced disappearance case, as it injects
the element of participation by agents of the State and thus
brings into question how the State reacted to the disappearance.
Denials on the part of the police authorities, and frustration on
the part of the respondent, characterize the attempts to locate
Tagitis. Initially in Jolo, the police informed Kunnong that Tagitis
could have been taken by the Abu Sayyaf or other groups fighting
the government. No evidence was ever offered on whether there
was active Jolo police investigation and how and why the Jolo
police arrived at this conclusion. The respondent’s 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. Kasim’s 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. Kasim’s 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 Ajirim’s replacement in the latter’s 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. Kasim’s “asset” and what he indeed wrote.
We glean from all these pieces of evidence and developments a
consistency in the government’s 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 govern-
ment’s dismissive approach to the disappearance, starting from
the initial response by the Jolo police to Kunnong’s initial reports
of the disappearance, to the responses made to the respondent
when she herself reported and inquired about her husband’s
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. Kasim’s
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 con-
clusion. 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 government’s 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
Abdulvahap’s 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 extraordinary
diligence that the Amparo Rule requires. We hold these
organization accountable through their incumbent Chiefs who,
under this Decision, shall carry the personal responsibility of
seeing to it that extraordinary diligence, in the manner the
Amparo Rule requires, is applied in addressing the enforced
disappearance of Tagitis.
We hold Col. Kasim accountable for his failure to disclose under
oath information relating to the enforced disappearance. For the
purpose of this accountability, we order that Col. Kasim be
impleadead as a party to this case. The PNP is similarly held
accountable for the suppression of vital information that Col.
Kasim could and did not pro-
vide, and, as the entity with direct authority over Col. Kasim, is
held with the same obligation of disclosure that Col. Kasim
carries. We shall deal with Col. Kasim’s suppression of evidence
under oath when we finally close this case under the process
outlined below.
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
4th quarter counted from the finality of this Decision;
These directives and those of the Court of Appeals’ made
pursuant to this Decision shall be given to, and shall be directly
enforceable against, whoever may be the incumbent Chiefs of the
Philippine National Police and its Criminal Investigation and
Detection Group, under pain of contempt from this Court when
the initiatives and efforts at disclosure and investigation constitute
less than the extraordinary diligence that the Rule on the Writ of
Amparo and the circumstances of this case demand. Given the
unique nature of Amparo cases and their varying attendant
circumstances, these directives—particularly, the referral back to
and monitoring by the CA—are specific to this case and are not
standard remedies that can be applied to every Amparo situation.
The dismissal of the Amparo petition with respect to General
Alexander Yano, Commanding General, Philippine Army, and
General Ruben Rafael, Chief, Anti-Terrorism Task Force Comet,
Zamboanga City, is hereby AFFIRMED.
SO ORDERED.
Guazon vs. De Villa
G.R. No. 80508. January 30, 1990.*
EDDIE GUAZON, JOSEFINA CABRERA, YOLANDA DACUNES,
VIOLETA SEVILLA, QUERUBIN BILLONES, ESTELITA BILLONES,
GORGONIA MACARAEG, LAUREANA JOAQUIN, CRESTITA LICUP,
SOLIDAD ABURDO, ROSALINA VILLARDA, CONRADA HOBALANE,
ERLINDA RESTORAN, VERIDIAN FLORA, ROSELA CONDE,
SOSIMA COSTO, JOSEFINA ALDIANO, ROSALINA DOMINGO,
ARESTIO YANGA, MILAGROS GONZALES, ESTRELITA ESTARES,
BONIFACIA ANTIVO, PATRIA VALLES, ERLINDA LEE, MELANIO
GAROFIL, ERIBERTO MATEO, FRANCISCO HORTILLANO,
ANATALIA PESIMO, LOSENDO GARBO, VIRGINIA LORESTO,
LYDIA ELA, RAFAEL VILLABRILLE, MA. RECHILDA SABALZA,
EDITHA MAAMO,
ELENIETA BANOSA, ALEXANDER LABADO, ANDREW GO,
WYNEFREDO REYES, ROSARIO SESPENE, ROSA MARTIN and
JAIME BONGAT, petitioners, vs. MAJ. GEN. RENATO DE VILLA,
BRIG. GEN ALEXANDER AGUIRRE, BRIG. GEN. RAMON
MONTANO, BRIG. GEN. ALFREDO LIM, and COL. JESUS GARCIA,
respondents.
Constitutional Law; Police Power; Nothing in the Constitution
denies the authority of the Chief Executive to order police actions
to stop unabated criminality, rising lawlessness and alarming
communist activities.—There is, of course, nothing in the
Constitution which denies the authority of the Chief Executive,
invoked by the Solicitor General, to order police actions to stop
unabated criminality, rising lawlessness, and alarming communist
activities. The Constitution grants to Government the power to
seek and cripple subversive movements which would bring down
constituted authority and substitute a regime where individual
liberties are suppressed as a matter of policy in the name of
security of the State. However, all police actions are governed by
the limitations of the Bill of Rights. The Government cannot adopt
the same reprehensible methods of authoritarian systems both of
the right and of the left, the enlargement of whose spheres of
influence it is trying hard to suppress. Our democratic institutions
may still be fragile but they are not in the least bit strengthened
through violations of the constitutional protections which are their
distinguishing features.
Same; Same; Illegal Searches and Seizures; Right to be left alone
in the privacy of his own house guaranteed under Article IV of the
1973 Constitution.—“That right is guaranteed in the following
provisions of Article IV of the 1973 Constitution: “SEC. 3. The
right of the people to be secure in their persons, houses, papers
and effects against unreasonable searches and seizures of
whatever nature and for any purpose shall not be violated, and no
search warrant or warrant of arrest shall issue except upon
probable cause to be determined by the judge, or such other
responsible officer as may be authorized by law, after examination
under oath or affirmation of the complainant and the witnesses he
may produce, and particularly describing the place to be
searched, and the persons or things to be siezed.”
Same; Same; Same; Same; Importance of the right against
unreasonable searches and seizure explained.—“It is deference to
one’s personality that lies at the core of this right, but it could be
also looked upon as a recognition of a constitutionally protected
area, primarily
one’s home, but not necessarily thereto confined. (Cf. Hoffa v.
United States, 385 US 293 [1966]) What is sought to be guarded
is a man’s prerogative to choose who is allowed entry to his
residence. In that haven of refuge, his individuality can assert
itself not only in the choice of who shall be welcome but likewise
in the kind of objects he wants around him. There the state,
however powerful, does not as such have access except under the
circumstances above noted, for in the traditional formulation, his
house, however humble, is his castle. Thus is outlawed any
unwarranted intrusion by government, which is called upon to
refrain from any invasion of his dwelling and to respect the
privacies of his life. (Cf. Schmerber v. California, 384 US 757
[1966], Brennan, J. and Boyd v. United States, 116 630 [1886]).
In the same vein, Landynski in his authoritative work (Search and
Seizure and the Supreme Court [1966]), could fitly characterize
constitutional right as the embodiment of a ‘spiritual concept: the
belief that to value the privacy of home and person and to afford
its constitutional protection against the long reach of government
is no less than to value human dignity, and that his privacy must
not be disturbed except in case of overriding social need, and
then only under stringent procedural safeguards.’
Same; Same; Police actions should not be characterized by
methods that offend a sense of justice.—The decision of the
United States Supreme Court in Rochin v. California, (342 US 165;
96 L. Ed. 183 [1952]) emphasizes clearly that police actions
should not be characterized by methods that offend a sense of
justice. The court ruled: “Applying these general considerations to
the circumstances of the present case, we are compelled to
conclude that the proceedings by which this conviction was
obtained do more than offend some fastidious squeamishness or
private sentimentalism about combatting crime too energetically.
This is conduct that shocks the conscience. Illegally breaking into
the privacy of the petitioner, the struggle to open his mouth and
remove what was there, the forcible extraction of his stomach’s
contents—this course of proceeding by agents of government to
obtain evidence is bound to offend even hardened sensibilities.
They are methods too close to the rack and the screw to permit of
constitutional differentiation.”
Same; Same; Same; It is not the police action per se which is
impermissible and which should be prohibited but the procedure
used or methods which offend even hardened sensibilities.—It is
significant that it is not the police action per se which is
impermissible and which should be prohibited. Rather, it is the
procedure used or in the words of the court, methods which
“offend even hardened sensibilities.”
De Villa
Same; Same; Zonings intended to flush out subversives and
criminal elements.—The areal target zonings in this petition were
intended to flush out subversives and criminal elements
particularly because of the blatant assassinations of public officers
and police officials by elements supposedly coddled by the
communities where the “drives” were conducted.
Same; Same; Where a violation of human rights is involved, it is
the duty of the court to stop the transgression.—Where a violation
of human rights specifically guaranteed by the Constitution is
involved, it is the duty of the court to stop the transgression and
state where even the awesome power of the state may not
encroach upon the rights of the individual.
Same; Same; Same; The remedy is not to stop all police actions
including the essential and legitimate ones.—The Court believes it
highly probable that some violations were actually committed.
This is so inspite of the alleged pleas of barangay officials for the
thousands of residents “to submit themselves voluntarily for
character and personal verification.” We cannot imagine police
actions of the magnitude described in the petitions and admitted
by the respondents, being undertaken without some undisciplined
soldiers and policemen committing certain abuses. However, the
remedy is not to stop all police actions, including the essential and
legitimate ones. We see nothing wrong in police making their
presence visibly felt in troubled areas. Police cannot respond to
riots or violent demonstrations if they do not move in sufficient
numbers. A show of force is sometimes necessary as long as the
rights of people are protected and not violated.
Same; Same; Same; Same; The problem is not initially for the
Supreme Court but basically one for the executive departments
and for trial courts.—The remedy is not an original action for
prohibition brought through a taxpayers’ suit. Where not one
victim complains and not one violator is properly charged, the
problem is not initially for the Supreme Court. It is basically one
for the executive departments and for trial courts. Well meaning
citizens with only second hand knowledge of the events cannot
keep on indiscriminately tossing problems of the executive, the
military, and the police to the Supreme Court as if we are the
repository of all remedies for all evils.
Same; Same; Same; Same; Same; The problem is appropriate for
the Commission on Human Rights.—The problem is appropriate
for the Commission on Human Rights. A high level conference
should bring together the heads of the Department of Justice,
Department of
National Defense and the operating heads of affected agencies
and institutions to devise procedures for the prevention of abuses.
CRUZ, J., Dissenting:
Constitutional Law; Criminal Procedure; Saturation drives not
among accepted instances where search or arrest may be made
without a warrant.—Saturation drives are not among the accepted
instances when a search or an arrest may be made without
warrant. They come under the concept of the fishing expeditions
stigmatized by law and doctrine. At any rate, if the majority is
really introducing the “zona” as another exception to the rule, it
must not equivocate. It must state that intention in forthright
language and not in vague generalizations that concede the
wrong but deny the right.
Same; Same; Evidence; Mere waging of saturation drives
unconstitutional even without proof of personal indignities.—I
urge my brethren to accept the fact that those drives are per se
unconstitutional. I urge them to accept that even without proof of
the hooded figure and the personal indignities and the loss and
destruction of properties and the other excesses allegedly
committed, the mere waging of the saturation drives alone is
enough to make this Court react with outraged concern.
Confronted with this clear case of oppression, we should not
simply throw up our hands and proclaim our helplessness. I
submit that this Court should instead declare categorically and
emphatically that these saturation drives are violative of human
rights and individual liberty and so should be stopped
immediately. While they may be allowed in the actual theater of
military operations against the insurgents, the Court should also
make it clear that Metro Manila is not such a battleground.
PADILLA, J., Separate Opinion:
Constitutional Law; Criminal Procedure; The stakes are too high
for this Court to avoid judicial confrontation.—Respondents,
fortunately, have branded petitioners’ allegations of such brutality,
as total lies. It is indeed difficult to even contemplate that such
methods reminiscent of a “police state” can exist in a society built
on a republican and constitutional system. Respondents must be
given a chance to face their accusers and prove that they are
indeed fabricating falsehoods. But the stakes, I submit, are too
high for this Court, as the guardian of individual liberties, to avoid
a judicial confrontation with the issue. I vote, therefore, to refer
this case (dispensing with normal venue requirements) to the
Executive Judge, RTC of Manila, for
him—to receive the evidences of all the parties, in support and in
reputation of the petitioners’ allegations; to decide the case
expeditiously on the bases of the evidence, subject to review by
this Court; to report to this Court on action taken.
SARMIENTO, J., Dissenting:
Constitutional Law; Criminal Procedure; In saturation drives police
officers are fishing for evidence of offenses, hence, a warrant is
necessary.—I find allusions to the last aborted coup d’etat inapt.
In that case, our men in uniform had all the right to act amidst
crimes being committed in flagrante. The instant case is quite
different. There are no offenses being committed, but rather,
police officers fishing for evidence of offenses that may have been
committed. As I said, in that event, a court warrant is
indispensable.
Same; Same; Same.—Worse, it is passing the buck. The
petitioners, precisely, have a grievance to raise, arising from
abuses they pinpoint to the lower offices of the Executive (which
presumably has its imprimatur). To make it an executive problem,
so I hold, is to make the Executive judge and jury of its own acts,
and hardly, a neutral arbiter.
GUTIERREZ, JR., J.:
This is a petition for prohibition with preliminary injunction to
prohibit the military and police officers represented by public
respondents from conducting “Areal Target Zonings” or “Satu-
ration Drives” in Metro Manila.
The forty one (41) petitioners state that they are all of legal age,
bonafide residents of Metro Manila and taxpayers and leaders in
their respective communities. They maintain that they have a
common or general interest in the preservation of the rule of law,
protection of their human rights and the reign of peace and order
in their communities. They claim to represent “the citizens of
Metro Manila who have similar interests and are so numerous that
it is impracticable to bring them all before this Court.”
The public respondents, represented by the Solicitor General,
oppose the petition contending inter alia that petitioners lack
standing to file the instant petition for they are not the proper
parties to institute the action.
According to the petitioners, the following “saturation drives”
were conducted in Metro Manila:
1. March 5, 1987 at about 9:30 PM in Tindalo, Kagitingan, and
Magdalena Streets, Tondo, Manila.
2. June 19, 1987 at about 10:00 PM in Mata Street, Panday Pira
Extension and San Sebastian Street, Tondo, Manila.
3. July 20, 1987 at about 8:00 AM in Bangkusay Street, Tondo,
Manila.
4. August 11 to 13, 1987 between 11:00 PM and 2:00 AM in six
blocks along Aroma Beach up to Happy Land, Magsaysay Village,
Tondo, Manila.
5. August 19, 1987 at 9:00 PM in Herbosa Extension, Quirino
Street, and Pacheco Street, Tondo, Manila.
6. August 28, 1987 at 10:30 PM, in Block 34, Dagat-dagatan,
Navotas, Metro Manila.
7. August 30, 1987 at 9:30 PM at Paraiso Extension, Magsaysay
Village, Tondo, Manila.
8. October 12, 1987 at 12:00 midnight in Apelo Cruz Compound,
Quezon City.
9. October 17, 1987 at 11:00 PM in Quirino Street, Tondo, Manila.
10. October 23, 1987 at 2:30 A.M. in Sun Valley Drive, Manila
International Airport, Pasay City.
11. November 1, 1987 at 4:00 A.M. in Cordillera Street, Sta.
Mesa, Manila.
12. November 3, 1987 at 5:00 A.M. in Lower Maricaban, Pasay
City, Metro Manila.
According to the petitioners, the “areal target zonings” or
“saturation drives” are in critical areas pinpointed by the military
and police as places where the subversives are hiding. The arrests
range from seven (7) persons during the July 20 saturation drive
in Bangkusay, Tondo to one thousand five hundred (1,500)
allegedly apprehended on November 3 during the drive at Lower
Maricaban, Pasay City. The petitioners claim that the saturation
drives follow a common pattern of human rights abuses. In all
these drives, it is alleged that the following were committed:
“1. Having no specific target house in mind, in the dead of the
night or early morning hours, police and military units without any
search warrant or warrant of arrest cordon an area of more than
one residence and sometimes whole barangay or areas of
barangay in Metro Manila. Most of them are in civilian clothes and
without name-plates or identification cards.
“2. These raiders rudely rouse residents from their sleep by
banging on the walls and windows of their homes, shouting,
kicking their doors open (destroying some in the process), and
then ordering the residents within to come out of their respective
residences.
“3. The residents at the point of high-powered guns are herded
like cows, the men are ordered to strip down to their briefs and
examined for tattoo marks and other imagined marks.
“4. While the examination of the bodies of the men are being
conducted by the raiders, some of the members of the raiding
team force their way into each and every house within the
cordoned off area and then proceed to conduct search of the said
houses without civilian witnesses from the neighborhood.
“5. In many instances, many residents have complained that the
raiders ransack their homes, tossing about the residents’
belongings without total regard for their value. In several
instances, walls are destroyed, ceilings are damaged in the
raiders’ illegal effort to ‘fish’ for incriminating evidence.
“6. Some victims of these illegal operations have complained with
increasing frequency that their money and valuables have
disappeared after the said operations.
“7. All men and some women who respond to these illegal and
unwelcome intrusions are arrested on the spot and hauled off to
waiting vehicles that take them to detention centers where they
are interrogated and ‘verified.’ These arrests are all conducted
without any warrants of arrest duly issued by a judge, nor under
the conditions that will authorize warrantless arrest. Some hooded
men are used to fingerpoint suspected subversives.
“8. In some instances, arrested persons are released after the
expiration of the period wherein they can be legally detained
without any charge at all. In other instances, some arrested
persons are released without charge after a few days of arbitrary
detention.
“9. The raiders almost always brandish their weapons and point
them at the residents during these illegal operations.
“10. Many have also reported incidents of ‘on-the-spot beatings’,
maulings and maltreatment.
“11. Those who are detained for further ‘verification’ by the raid-
ers are subjected to mental and physical torture to extract
confessions and tactical information.” (Rollo, pp. 2-4)
The public respondents stress two points in their Comment which
was also adopted as their Memorandum after the petition was
given due course.
First, the respondents have legal authority to conduct saturation
drives. And second, they allege that the accusations of the
petitioners about a deliberate disregard for human rights are total
lies.
Insofar as the legal basis for saturation drives is concerned, the
respondents cite Article VII, Section 17 of the Constitution which
provides:
“The President shall have control of all the executive departments,
bureaus and offices. He shall ensure that the laws be faithfully
executed. (Emphasis supplied by the respondents.)
They also cite Section 18 of the same Article which provides:
“The President shall be the Commander-in-Chief of all armed
forces of the Philippines and whenever it becomes necessary, he
may call out such armed forces to prevent or suppress lawless
violence, invasion or rebellion. x x x.”
There can be no question that under ordinary circumstances, the
police action of the nature described by the petitioners would be
illegal and blantantly violative of the express guarantees of the Bill
of Rights. If the military and the police must conduct concerted
campaigns to flush out and catch criminal elements, such drives
must be consistent with the constitutional and statutory rights of
all the people affected by such actions.
There is, of course, nothing in the Constitution which denies the
authority of the Chief Executive, invoked by the Solicitor General,
to order police actions to stop unabated criminality, rising
lawlessness, and alarming communist activities. The Constitution
grants to Government the power to seek and cripple subversive
movements which would bring down constituted authority and
substitute a regime where individual liberties are suppressed as a
matter of policy in the name of security of the State. However, all
police actions are governed by the limitations of the Bill of Rights.
The Government cannot adopt the same reprehensible methods
of authoritarian systems both
of the right and of the left, the enlargement of whose spheres of
influence it is trying hard to suppress. Our democratic institutions
may still be fragile but they are not in the least bit strengthened
through violations of the constitutional protections which are their
distinguishing features.
In Roan v. Gonzales (145 SCRA 687; 690-691 [1986]), the Court
stated:
“One of the most precious rights of the citizen in a free society is
the right to be left alone in the privacy of his own house. That
right has ancient roots, dating back through the mists of history
to the mighty English kings in their fortresses of power. Even
then, the lowly subject had his own castle where he was monarch
of all he surveyed. This was his humble cottage from which he
could bar his sovereign lord and all the forces of the Crown.
“That right has endured through the ages albeit only in a few
libertarian regimes. Their number, regrettably, continues to
dwindle against the onslaughts of authoritarianism. We are
among the fortunate few, able again to enjoy this right after the
ordeal of the past despotism. We must cherish and protect it all
the more now because it is like a prodigal son returning.
“That right is guaranteed in the following provisions of Article IV
of the 1973 Constitution:
“SEC. 3. The right of the people to be secure in their persons,
houses, papers and effects against unreasonable searches and
seizures of whatever nature and for any purpose shall not be
violated, and no search warrant or warrant of arrest shall issue
except upon probable cause to be determined by the judge, or
such other responsible officer as may be authorized by law, after
examination under oath or affirmation of the complainant and the
witnesses he may produce, and particularly describing the place
to be searched, and the persons or things to be seized.”
xxx xxx xxx
Only last year, the Court again issued this reminder in 20th
Century Fox Film Corporation v. Court of Appeals (164 SCRA 655;
660-661 [1988]):
“This constitutional right protects a citizen against wanton and
unreasonable invasion of his privacy and liberty as to his person,
papers and effects. We have explained in the case of People vs.
Burgos
(144 SCRA 1) citing Villanueva v. Querubin (48 SCRA 345) why
the right is so important:
“ ‘It is deference to one’s personality that lies at the core of this
right, but it could be also looked upon as a recognition of a
constitutionally protected area, primarily one’s home, but not
necessarily thereto confined. (Cf. Hoffa v. United States, 385 US
293 [1966]) What is sought to be guarded is a man’s prerogative
to choose who is allowed entry to his residence. In that haven of
refuge, his individuality can assert itself not only in the choice of
who shall be welcome but likewise in the kind of objects he wants
around him. There the state, however powerful, does not as such
have access except under the circumstances above noted, for in
the traditional formulation, his house, however humble, is his
castle. Thus is outlawed any unwarranted intrusion by
government, which is called upon to refrain from any invasion of
his dwelling and to respect the privacies of his life. (Cf. Schmerber
v. California, 384 US 757 [1966], Brennan, J. and Boyd v. United
States, 116 630 [1886]). In the same vein, Landynski in his
authoritative work (Search and Seizure and the Supreme Court
[1966]), could fitly characterize constitutional right as the
embodiment of a ‘spiritual concept: the belief that to value the
privacy of home and person and to afford its constitutional
protection against the long reach of government is no less than to
value human dignity, and that his privacy must not be disturbed
except in case of overriding social need, and then only under
stringent procedural safeguards.’ (ibid, p. 74.)”
The decision of the United States Supreme Court in Rochin v.
California, (342 US 165; 96 L. Ed. 183 [1952]) emphasizes clearly
that police actions should not be characterized by methods that
offend a sense of justice. The court ruled:
“Applying these general considerations to the circumstances of
the present case, we are compelled to conclude that the
proceedings by which this conviction was obtained do more than
offend some fastidious squeamishness or private sentimentalism
about combatting crime too energetically. This is conduct that
shocks the conscience. Illegally breaking into the privacy of the
petitioner, the struggle to open his mouth and remove what was
there, the forcible extraction of his stomach’s contents—this
course of proceeding by agents of government to obtain evidence
is bound to offend even hardened sensibilities. They are methods
too close to the rack and the screw to permit of constitutional
differentiation.”
It is significant that it is not the police action per se which is
impermissible and which should be prohibited. Rather, it is the
procedure used or in the words of the court, methods which
“offend even hardened sensibilities.” In Breithaupt v. Abram (352
US 432, 1 L. Ed. 2nd 448 [1957]), the same court validated the
use of evidence, in this case blood samples involuntarily taken
from the petitioner, where there was nothing brutal or offensive in
the taking. The Court stated:
“Basically the distinction rests on the fact that there is nothing
‘brutal’ or ‘offensive’ in the taking of a sample of blood when
done, as in this case, under the protective eye of a physician. To
be sure, the driver here was unconscious when the blood was
taken, but the absence of conscious consent, without more, does
not necessarily render the taking a violation of a constitutional
right; and certainly the rest was administered here would not be
considered offensive by even the most delicate. Furthermore, due
process is not measured by the yardstick of personal reaction or
the sphygmogram of the most sensitive person, but by that whole
community sense of ‘decency and fairness’ that has been woven
by common experience into the fabric of acceptable conduct. x x
x.”
The individual’s right to immunity from such invasion of his body
was considered as “far outweighed by the value of its deterrent
effect” on the evil sought to be avoided by the police action.
It is clear, therefore, that the nature of the affirmative relief
hinges closely on the determination of the exact facts surrounding
a particular case.
The violations of human rights alleged by the petitioners are
serious. If an orderly procedure ascertains their truth, not only a
writ of prohibition but criminal prosecutions would immediately
issue as a matter of course. A persistent pattern of wholesale and
gross abuse of civil liberties, as alleged in the petition, has no
place in civilized society.
On the other hand, according to the respondents, the statements
made by the petitioners are a complete lie.
The Solicitor General argues:
“This is a complete lie.
Just the contrary, they had been conducted with due regard to
human rights. Not only that, they were intelligently and carefully
planned months ahead of the actual operation. They were
executed in coordination with barangay officials who pleaded with
their constituents to submit themselves voluntarily for character
and personal verification. Local and foreign correspondents, who
had joined these operations, witnessed and recorded the events
that transpired relative thereto. (After Operation Reports:
November 5, 1987, Annex 12; November 20, 1987, Annex 13;
November 24, 1987, Annex 14). That is why in all the drives so
far conducted, the alleged victims who numbered thousands had
not themselves complained.
“In her speech during turn-over rites on January 26, 1987 at
Camp Aguinaldo, President Aquino branded all accusations of
deliberate disregard for human rights as ‘total lies’. Here are
excerpts from her strongest speech yet in support of the military:
“‘All accusations of a deliberate disregard for human rights have
been shown up to be total lies.
“ ‘x x x To our soldiers, let me say go out and fight, fight with
every assurance that I will stand by you through thick and thin to
share the blame, defend your actions, mourn the losses and enjoy
with you the final victory that I am certain will be ours.
“ ‘You and I will see this through together.
“ ‘I’ve sworn to defend and uphold the Constitution.
“ ‘We have wasted enough time answering their barkings for it is
still a long way to lasting peace. x x x. The dangers and hardships
to our men in the field are great enough as it is without having
them distracted by this worthless carping at their backs.
“‘Our counter-insurgency policy remains the same: economic
development to pull out the roots—and military operations to
slash the growth—of the insurgency.
“ ‘The answer to terror is force—now.
“ ‘Only feats of arms can buy us the time needed to make our
economic and social initiatives bear fruit. x x x. Now that the
extreme Right has been defeated, I expect greater vigor in the
prosecution of the war against the communist insurgency, even as
we continue to watch our backs against attacks from the Right.
(Philippine Star, January 27, 1988, p. 1, Annex 15; italics ours.)’
“Viewed in the light of President Aquino’s observation on the
matter, it can be said that petitioners misrepresent as human
rights violations the military and police’s zealous vigilance over the
people’s right to live in peace and safety.” (Rollo, pp. 36-38)
Herein lies the problem of the Court. We can only guess the truth.
Everything before us consists of allegations. According to the
petitioners, more than 3,407 persons were arrested in the
saturation drives covered by the petition. No estimates are given
for the drives in Block 34, Dagat-dagatan, Navotas; Apelo Cruz
Compound, Pasig; and Sun Valley Drive near the Manila
International Airport area. Not one of the several thousand
persons treated in the illegal and inhuman manner described by
the petitioners appears as a petitioner or has come before a trial
court to present the kind of evidence admissible in courts of
justice. Moreover, there must have been tens of thousands of
nearby residents who were inconvenienced in addition to the
several thousand allegedly arrested. None of those arrested has
apparently been charged and none of those affected has
apparently complained.
A particularly intriguing aspect of the Solicitor General’s comments
is the statement that local and foreign correspondents actually
joined the saturation drives and witnessed and recorded the
events. In other words, the activities sought to be completely
proscribed were in full view of media. The sight of hooded men
allegedly being used to fingerpoint suspected subversives would
have been good television copy. If true, this was probably
effected away from the ubiquitous eye of the TV cameras or, as
the Solicitor General contends, the allegation is a “complete lie.”
The latest attempt to stage a coup d’etat where several thousand
members of the Armed Forces of the Philippines sought to
overthrow the present Government introduces another aspect of
the problem and illustrates quite clearly why those directly
affected by human rights violations should be the ones to institute
court actions and why evidence of what actually transpired should
first be developed before petitions are filed with this Court.
Where there is large scale mutiny or actual rebellion, the police or
military may go in force to the combat areas, enter affected
residences or buildings, round up suspected rebels and otherwise
quell the mutiny or rebellion without having to secure search
warrants and without violating the Bill of Rights. This is exactly
what happened in the White Plains Subdivision and the
commercial center of Makati during the first week of
December, 1989.
The areal target zonings in this petition were intended to flush out
subversives and criminal elements particularly because of the
blatant assassinations of public officers and police officials by
elements supposedly coddled by the communities where the
“drives” were conducted.
It is clear from the pleadings of both petitioners and respondents,
however, that there was no rebellion or criminal activity similar to
that of the attempted coup d’ etats. There appears to have been
no impediment to securing search warrants or warrants of arrest
before any houses were searched or individuals roused from sleep
were arrested. There is no strong showing that the objectives
sought to be attained by the “areal zoning” could not be achieved
even as the rights of squatter and low income families are fully
protected.
Where a violation of human rights specifically guaranteed by the
Constitution is involved, it is the duty of the court to stop the
transgression and state where even the awesome power of the
state may not encroach upon the rights of the individual.
It is the duty of the court to take remedial action even in cases
such as the present petition where the petitioners do not
complain that they were victims of the police actions, where no
names of any of the thousands of alleged victims are given, and
where the prayer is a general one to stop all police “saturation
drives,” as long as the Court is convinced that the event actually
happened.
The Court believes it highly probable that some violations were
actually committed. This is so inspite of the alleged pleas of
barangay officials for the thousands of residents “to submit
themselves voluntarily for character and personal verification.” We
cannot imagine police actions of the magnitude described in the
petitions and admitted by the respondents, being undertaken
without some undisciplined soldiers and policemen committing
certain abuses. However, the remedy is not to stop all police
actions, including the essential and legitimate ones. We see
nothing wrong in police making their presence visibly felt in
troubled areas. Police cannot respond to riots or violent
demonstrations if they do not move in sufficient numbers. A show
of force is sometimes necessary as long as the rights of people
are protected and not violated. A blanket prohibition such as that
sought by the petitioners would limit all police actions to one on
one confrontations where search warrants and warrants of arrests
against specific individuals are easily procured. Anarchy may reign
if the military and the police decide to sit down in their offices
because all concerted drives where a show of force is present are
totally prohibited.
The remedy is not an original action for prohibition brought
through a taxpayers’ suit. Where not one victim complains and
not one violator is properly charged, the problem is not initially for
the Supreme Court. It is basically one for the executive
departments and for trial courts. Well meaning citizens with only
second hand knowledge of the events cannot keep on
indiscriminately tossing problems of the executive, the military,
and the police to the Supreme Court as if we are the repository of
all remedies for all evils. The rules of constitutional litigation have
been evolved for an orderly procedure in the vindication of rights.
They should be followed. If our policy makers sustain the
contention of the military and the police that occasional saturation
drives are essential to maintain the stability of government and to
insure peace and order, clear policy guidelines on the behavior of
soldiers and policemen must not only be evolved, they should also
be enforced. A method of pinpointing human rights abuses and
identifying violators is necessary.
The problem is appropriate for the Commission on Human Rights.
A high level conference should bring together the heads of the
Department of Justice, Department of National Defense and the
operating heads of affected agencies and institutions to devise
procedures for the prevention of abuses.
Under the circumstances of this taxpayers’ suit, there is no erring
soldier or policeman whom we can order prosecuted. In the
absence of clear facts ascertained through an orderly procedure,
no permanent relief can be given at this time. Further
investigation of the petitioners’ charges and a hard look by
administration officials at the policy implications of the prayed for
blanket prohibition are also warranted.
In the meantime and in the face of a prima facie showing that
some abuses were probably committed and could be committed
during future police actions, we have to temporarily restrain the
alleged banging on walls, the kicking in of doors, the herd-
ing of half-naked men to assembly areas for examination of tattoo
marks, the violation of residences even if these are humble
shanties of squatters, and the other alleged acts which are
shocking to the conscience.
WHEREFORE, the petition is hereby REMANDED to the Regional
Trial Courts of Manila, Malabon, and Pasay City where the
petitioners may present evidence supporting their allegations and
where specific erring parties may be pinpointed and prosecuted.
Copies of this decision are likewise forwarded to the Commission
on Human Rights, the Secretary of Justice, the Secretary of
National Defense, and the Commanding General PC-INP for the
drawing up and enforcement of clear guidelines to govern police
actions intended to abate riots and civil disturbances, flush out
criminal elements, and subdue terrorist activities.
In the meantime, the acts violative of human rights alleged by the
petitioners as committed during the police actions are ENJOINED
until such time as permanent rules to govern such actions are
promulgated.
SO ORDERED.
FERDINAND E. MARCOS, IMELDA R. MARCOS, FERDINAND R.
MARCOS, JR., IRENE M. ARANETA, IMEE M. MANOTOC, TOMAS
MANOTOC, GREGORIO ARANETA, PACIFICO E. MARCOS,
NICANOR YÑIGUEZ and PHILIPPINE CONSTITUTION
ASSOCIATION (PHILCONSA), represented by its President,
CONRADO F. ESTRELLA, petitioners, vs. HONORABLE RAUL
MANGLAPUS, CATALINO MACA-RAIG, SEDFREY ORDOÑEZ,
MIRIAM DEFENSOR SANTIAGO, FIDEL RAMOS, RENATO DE
VILLA, in their capacity as Secretary of Foreign Affairs, Executive
Secretary, Secretary of Justice, Immigration Commissioner,
Secretary of National Defense and Chief of Staff, respectively,
respondents.

Political Law; Bill of Rights; Liberty of Abode; Right to Travel; The
right to return to one’s country is not among the rights specifically
guaranteed under the Bill of Rights, though it may well be
considered
as a generally accepted principle of international law which is part
of the law of the land.—The right to return to one’s country is not
among the rights specifically guaranteed in the Bill of Rights,
which treats only of the liberty of abode and the right to travel,
but it is our wellconsidered view that the right to return may be
considered, as a generally accepted principle of international law
and, under our Constitution, is part of the law of the land [Art. II,
Sec. 2 of the Constitution]. However, it is distinct and separate
from the right to travel and enjoys a different protection under
the International Covenant of Civil and Political Rights, i.e.,against
being “arbitrarily deprived” thereof [Art. 12 (4)].
Same; Same; The constitutional guarantees invoked by petitioners
are not absolute and inflexible, they admit of limits and must be
adjusted to the requirements of equally important public interests.
—The resolution of the problem is made difficult because the
persons who seek to return to the country are the deposed
dictator and his family at whose door the travails of the country
are laid and from whom billions of dollars believed to be ill-gotten
wealth are sought to be recovered. The constitutional guarantees
they invoke are neither absolute nor inflexible. For the exercise of
even the preferred freedoms of speech and of expression,
although couched in absolute terms, admits of limits and must be
adjusted to the requirements of equally important public interests
[Zaldivar v. Sandiganbayan, G.R. Nos. 79690-707, October 7,
1988].
Same; Separation of Powers; Executive Powers; The grant of
execu-tive power means a grant of all executive powers.—The
1987 Constitution has fully restored the separation of powers of
the three great branches of government. To recall the words of
Justice Laurel in Angara v. Electoral Commission [63 Phil. 139
(1936)], “the Constitution has blocked out with deft strokes and in
bold lines, allotment of power to the executive, the legislative and
the judicial departments of the government.” [At 157]. Thus, the
1987 constitution explicitly provides that “[t]he legislative power
shall be vested in the Congress of the Philippines” [Art. VI, Sec.
1], “[t]he executive power shall be vested in the President of the
Philippines” [Art. VII, Sec. 1], and “[t]he judicial power shall be
vested in one Supreme Court and in such lower courts as may be
established by law” [Art. VIII, Sec. 1]. These provisions not only
establish a separation of powers by actual division [Angara v.
Electoral Commission, supra] but also confer plenary legislative,
executive and judicial powers subject only to limitations provided
in the Constitution. For as the Supreme Court in Ocampo v.
Cabangis [15 Phil. 626, (1910)] pointed out “a grant of the
legislative power means a
grant of all legislative power; and a grant of the judicial power
means a grant of all the judicial power which may be exercised
under the government.” [At 631-632.] If this can be said of the
legislative power which is exercised by two chambers with a
combined membership of more than two hundred members and
of the judicial power which is vested in a hierarchy of courts, it
can equally be said of the executive power which is vested in one
official—the President.
Same; Same; Same; The President; The powers granted to the
President are not limited to those powers specifically enumerated
in the Constitution.—It would not be accurate, however, to state
that “executive power” is the power to enforce the laws, for the
President is head of state as well as head of government and
whatever powers inhere in such positions pertain to the office
unless the Constitution itself withholds it. Furthermore, the
Constitution itself provides that the execution of the laws is only
one of the powers of the President. It also grants the President
other powers that do not involve the execu-tion of any provision
of law, e.g.,his power over the country’s foreign relations. On
these premises, we hold the view that although the 1987
Constitution imposes limitations on the exercise of specificpowers
of the President, it maintains intact what is traditionally
considered as within the scope of “executive power.” Corollarily,
the powers of the President cannot be said to be limited only to
the specific powers enumerated in the Constitution. In other
words, executive power is more than the sum of specific powers
so enumerated.
Same; Same; Same; Same; Commander-In-Chief Powers: The
President can exercise Commander-In-Chief powers in order to
keep the peace and maintain public order and security even in the
absence of an emergency.—More particularly, this case calls for
the exercise of the President’s powers as protector of the peace.
[Rossiter, The Ameri-can Presidency.] The power of the President
to keep the peace is not limited merely to exercising the
commander-in-chief powers in times of emergency or to leading
the State against external and internal threats to its existence.
The President is not only clothed with extraordinary powers in
times of emergency, but is also tasked with attending to the day-
to-day problems of maintaining peace and order and ensuring
domestic tranquility in times when no foreign foe appears on the
horizon. Wide discretion, within the bounds of law, in fulfilling
presidential duties in times of peace is not in any way disminished
by the relative want of an emergency specified in the
commander-in-chief provision. For in making the President
commander-in-chief the enumeration of powers that follow cannot
be said to exclude the Presi-dent’s exercising as Commander-in-
Chief powers short of the calling of
the armed forces, or suspending the privilege of the writ of
habeas corpusor declaring martial law, in order to keep the peace,
and maintain public order and security.
Same; Same; Same; Same; The President has the power under
the Constitution to bar the Marcoses from returning to our
country.—That the President has the power under the
Constitution to bar the Marcoses from returning has been
recognized by members of the Legislature, and is manifested by
the Resolution proposed in the House of Representatives and
signed by 103 of its members urging the President to allow Mr.
Marcos to return to the Philippines “as a genuine unselfish gesture
for true national reconciliation and as irrevocable proof of our
collective adherence to uncompromising respect for human rights
under the Constitution and our laws.” [House Resolution No.
1342, Rollo, p. 321.] The Resolution does not question the
President’s power to bar the Marcoses from returning to the
Philippines, rather, it appeals to the President’s sense of
compassion to allow a man to come home to die in his country.
What we are saying in effect is that the request or demand of the
Marcoses to be allowed to return to the Philippines cannot be
considered in the light solely of the constitutional provisions
guaranteeing liberty of abode and the right to travel, subject to
certain exceptions, or of case law which clearly never
contemplated situations even remotely similar to the present one.
It must be treated as a matter that is appropriately addressed to
those residual unstated powers of the President which are implicit
in and correlative to the paramount duty residing in that office to
safeguard and protect general welfare. In that context, such
request or demand should submit to the exercise of a broader
discretion on the part of the President to determine whether it
must be granted or denied.
Same; Same; Same; Power of Judicial Review; Political Question
Doctrine; The present Constitution limits resort to the political
question doctrine and broadens the scope of judicial inquiry.—
Under the Constitution, judicial power includes the duty to
determine whether or not there has been a grave abuse of
discretion amounting to lack or excess of jurisdiction on the part
of any branch or instrumentality of the Goverment.” [Art. VIII,
Sec. 1.] Given this wording, we cannot agree with the Solicitor
General that the issue constitutes a political question which is
beyond the jurisdiction of the Court to decide. The present
Constitution limits resort to the political question doctrine and
broadens the scope of judicial inquiry into areas which the Court,
under previous constitutions, would have normally left to the
political departments to decide. But nonetheless there remain
issues beyond the Court’s jurisdiction the determination of which
is exclusively for
the President, for Congress or for the people themselves through
a plebiscite or referendum. We cannot, for example, question the
President’s recognition of a foreign government, no matter how
premature or improvident such action may appear. We cannot set
aside a presidential pardon though it may appear to us that the
beneficiary is totally undeserving of the grant. Nor can we amend
the Constitution under the guise of resolving a dispute brought
before us because the power is reserved to the people.
Same; Same; Same; Same; In the exercise of the power of
judicial review, the function of the court is merely to check, not to
supplant the Executive.—There is nothing in the case before us
that precludes our determination thereof on the political question
doctrine. The deliberations of the Constitutional Commission cited
by petitioners show that the framers intended to widen the scope
of judicial review but they did not intend courts of justice to settle
all actual controversies before them. When political questions are
involved, the Constitution limits the determination to whether or
not there has been a grave abuse of discretion amounting to lack
or excess of jurisdiction on the part of the official whose action is
being questioned. If grave abuse is not established, the Court will
not substitute its judgment for that of the official concerned and
decide a matter which by its nature or by law is for the latter
alone to decide. In this light, it would appear clear that the
second paragraph of Article VIII, Section 1 of the Constitution,
defining “judicial power,” which specifically empowers the courts
to determine whether or not there has been a grave abuse of
discretion on the part of any branch or instrumentality of the
government, incorporates in the fundamental law the ruling in
Lansang v. Garcia [G.R. No. L-33964, December 11, 1971, 42
SCRA 448] that: Article VII of the [1935] Constitution vests in the
Executive the power to suspend the privilege of the writ of habeas
corpus under specified conditions. Pursuant to the principle of
separation of powers underlying our system of government, the
Executive is supreme within his own sphere. However, the
separation of powers, under the Constitution, is not absolute.
What is more, it goes hand in hand with the system of checks and
balances, under which the Executive is supreme, as regards the
suspension of the privilege, but only if and when he acts within
the sphere alloted to him by the Basic Law, and the authority to
determine whether or not he has so acted is vested in the Judicial
Department, which, in this respect, is, in turn, constitutionally
supreme. In the exercise of such authority, the function of the
Court is merely to check—not to supplant—the Executive, or to
ascertain merely whether he has gone beyond the constitutional
limits of his jurisdiction, not to exercise the power vested in him
or to determine the
wisdom of his act. . . . [At 479-480.]
Same; Same; Same; Same; The President did not act arbitrarily,
capriciously and whimsically in determining that the return of the
Marcoses poses a serious threat to national interest and welfare,
and in prohibiting their return.—We find that from the pleadings
filed by the parties, from their oral arguments, and the facts
revealed during the briefing in chambers by the Chief of Staff of
the Armed Forces of the Philippines and the National Security
Adviser, wherein petitioners and respondents were represented,
there exist factual basis for the President’s decision. The Court
cannot close its eyes to present realities and pretend that the
country is not besieged from within by a wellorganized communist
insurgency, a separatist movement in Mindanao, rightist
conspiracies to grab power, urban terrorism, the murder with
impunity of military men, police officers and civilian officials, to
mention only a few. The documented history of the efforts of the
Marcoses and their followers to destabilize the country, as earlier
narrated in thisponenciabolsters the conclusion that the return of
the Marcoses at this time would only exacerbate and intensify the
violence directed against the State and instigate more chaos. As
divergent and discordant forces, the enemies of the State may be
contained. The military establishment has given assurances that it
could handle the threats posed by particular groups. But it is the
catalytic effect of the return of the Marcoses that may prove to be
the proverbial final straw that would break the camel’s back. With
these before her, the President cannot be said to have acted
arbitrarily and capriciously and whimsically in determining that the
return of the Marcoses poses a serious threat to the national
interest and welfare and in prohibiting their return.
FERNAN, C.J., Concurring
Political Law; Executive Department; Presidential Power;
Presidential powers and prerogatives are not fixed and their limits
are dependent on the imperatives of events and contemporary
imponderables rather than on abstract theories of law.—
Presidential powers and prerogatives are not fixed but fluctuate.
They are not derived solely from a particular constitutional clause
or article or from an express statutory grant. Their limits are likely
to depend on the imperatives of events and contemporary
imponderables rather than on abstract theories of law. History
and time-honored principles of constitutional law have conceded
to the Executive Branch certain powers in times of crisis or grave
and imperative national emergency. Many terms are applied to
these powers: “residual,” “inherent,” “moral,” “implied,”
“aggregate,” “emergency.” Whatever they may be called, the fact
is that these powers exist, as they must if the governance
function of the Executive Branch is to be carried out effectively
and efficiently. It is in this context that the power of the President
to allow or disallow the Marcoses to return to the Philippines
should be viewed. By reason of its impact on national peace and
order in these admittedly critical times, said question cannot be
withdrawn from the competence of the Executive Branch to
decide.
GUTIERREZ, J., Dissenting
Political Law; The President; The Judiciary; Power of Judicial
Review; Political Question; For a political question to exist, there
must be in the Constitution a power exclusively vested in the
President or Congress, the exercise of which the courts should not
examine or prohibit. The issue as to the propriety of the
President’s decision to prohibit the Marcoses from returning is not
a political question.—The most often quoted definition of political
question was made by Justice William J. Brennan, Jr., who
penned the decision of the United States Supreme Court in Baker
v. Carr (369 US 186, 82 S. Ct. 691, L. Ed. 2d. 663 [1962]). The
ingredients of a political question as formulated in Baker v. Carr
are: “It is apparent that several formulations which vary slightly
according to the settings in which the questions arise may
describe a political question, which identifies it as essentially a
function of the separation of powers. Prominent on the surface of
any case held to involve a political question is found a textually
demonstrable constitutional commitment of the issue to a
coordinate political department; or a lack of judicially discoverable
and manageable standards for resolving it; or the impossibility of
deciding without an initial policy determination of a kind clearly
for non-judicial discretion; or the impossibility of a court’s
undertaking independent resolution without expressing lack of the
respect due coordinate branches of government; or an unusual
need for unquestioning adherence to a political decision already
made; or potentiality of embarassment from multifarious
pronouncements by various departments on one question.” For a
political question to exist, there must be in the Constitution a
power vested exclusively in the President or Congress, the
exercise of which the court should not examine or prohibit. A
claim of plenary or inherent power against a civil right which claim
is not found in a specific provision is dangerous. Neither should
we validate a roving commission allowing public officials to strike
where they please and to override everything which to them
represents evil. The entire Government is bound by the rule of
law. The respondents have not pointed to any provision of the
Constitution which commits or vests the determi-
nation of the question raised to us solely in the President.

Same; Same; Bill of Rights; Liberty of Abode; The liberty of abode
and of changing the same within the limits prescribed by law may
be impaired only upon a lawful order of the court, not of an
executive officer, not even the President.—Section 6 of the Bill of
Rights states categorically that the liberty of abode and of
changing the same within the limits prescribed by law may be
impaired only upon a lawful order of a court. Not by an executive
officer. Not even by the President. Section 6 further provides that
the right to travel, and this obviously includes the right to travel
out of or back into the Philippines, cannot be impaired except in
the interest of national security, public safety, or public health, as
may be provided by law.
Same; Same; Same; Same; The Court has the last word when it
comes to Constitutional liberties.—There is also no disrespect for
a Presidential determination if we grant the petition. We would
simply be applying the Constitution, in the preservation and
defense of which all of us in Government, the President and
Congress included, are sworn to participate. Significantly, the
President herself has stated that the Court has the last word when
it comes to constitutional liberties and that she would abide by
our decision.
Same; The Judiciary; Judicial Power; Political Questions; The
constitutional provision defining judicial power was enacted to
preclude the Court from using the political question doctrine as a
means to avoid controversial issues.—The second paragraph of
Section 1, Article VIII of the Constitution provides: “Judicial power
includes the duty of the courts of justice to settle actual
controversies involving rights which are legally demandable and
enforceable, and to determine whether or not there has been a
grave abuse of discretion amounting to lack or excess of
jurisdiction on the part of any branch or instrumentality of the
Government.” This new provision was enacted to preclude this
Court from using the political question doctrine as a means to
avoid having to make decisions simply because they are too
controversial, displeasing to the President or Congress,
inordinately unpopular, or which may be ignored and not
enforced. The framers of the Constitution believed that the free
use of the political question doctrine allowed the Court during the
Marcos years to fall back on prudence, institutional difficulties,
complexity of issues, momentousness of consequences or a fear
that it was extravagantly extending judicial power in the cases
where it refused to examine and strike down an exercise of
authoritarian power. Parenthetically, at least two of the
respondents and their counsel were among the most vigorous
critics of Mr. Marcos (the main petitioner) and his use of the
political question doctrine. The Constitution was accordingly
amended. We are now precluded by its mandate from refusing to
invalidate a political use of power through a convenient resort to
the political question doctrine. We are compelled to decide what
would have been non-justiceable under our decisions interpreting
earlier fundamental charters. This is not to state that there can be
no more political questions which we may refuse to resolve. There
are still some political questions which only the President,
Congress, or a plebiscite may decide. Definitely, the issue before
us is not one of them.
Same; Same; Bill of Rights; Liberty of Abode; Right to Travel; The
right to come home must be more preferred than any other
aspect of the right to travel.—With all due respect for the majority
opinion, I disagree with its dictum on the right to travel. I do not
think we should differentiate the right to return home from the
right to go abroad or to move around in the Philippines. If at all,
the right to come home must bemore preferred than any other
aspect of the right to travel. It was precisely the banning by Mr.
Marcos of the right to travel by Senators Benigno Aquino, Jr.,
Jovito Salonga, and scores of other “undesirables” and “threats to
national security” during that unfortunate period which led the
framers of our present Constitution not only to re-enact but to
strengthen the declaration of this right. Media often asks, “what
else is new?” I submit that we now have a freedom loving and
humane regime. I regret that the Court’s decision in this case sets
back the gains that our country has achieved in terms of human
rights, especially human rights for those whom we do not like or
those who are against us.
Same; Same; Same; Opposition to the government, no matter
how odious and disgusting is not sufficient to deny or ignore a
constitutional right.—It is indeed regrettable that some followers
of the former President are conducting a campaign to sow discord
and to divide the nation. Opposition to the government no matter
how odious or disgusting is, however, insufficient ground to
ignore a constitutional guarantee.
Same; Same; Same; Same; Denial of travel papers is not among
the powers granted to the government; There is no law
prescribing exile to a foreign land as a penalty for hurting the
nation.—Of course, the Government can act. It can have Mr.
Marcos arrested and tried in court. The Government has more
than ample powers under existing law to deal with a person who
transgresses the peace and imperils public safety. But the denial
of travel papers is not one of those powers
because the Bill of Rights says so. There is no law prescribing
exile in a foreign land as the penalty for hurting the Nation.
CRUZ, J., Dissenting
Political Law; Bill of Rights; Petitioner, as a Filipino, is entitled to
return to or live or die in his own country.—It is my belief that the
petitioner, as a citizen of the Philippines, is entitled to return to
and live—and die—in his own country. I say this with a heavy
heart but say it nonetheless. That conviction is not diminished one
whit simply because many believe Marcos to be beneath contempt
and undeserving of the very liberties he flouted when he was the
absolute ruler of this land.
Same; Same; Same; The government failed dismally to show that
the return of Marcos, dead or alive, would pose a threat to
national security.—In about two hours of briefing, the government
failed dismally to show that the return of Marcos dead or alive
would pose a threat to the national security as it had alleged. The
fears expressed by its representatives were based on mere
conjectures of political and economic destabilization without any
single piece of concrete evidence to back up their apprehensions.
Amazingly, however, the majority has come to the conclusion that
there exist “factual bases for the President’s decision” to bar
Marcos’s return. That is not my recollection of the impressions of
the Court after that hearing.
Same; Same; Same; Marcos is entitled to the same right to travel
and liberty of abode that Aquino then invoked.—Like the martyred
Ninoy Aquino who also wanted to come back to the Philippines
against the prohibitions of the government then, Marcos is
entitled to the same right to travel and the liberty of abode that
his adversary invoked. These rights are guaranteed by the
Constitution to allindividuals, including the patriot and the
homesick and the prodigal son returning, and tyrants and
charlatans and scoundrels of every stripe.
PARAS, J., Dissenting
Political Law; Bill of Rights; Right to Travel; The former President,
as a Filipino citizen, has the right to return to his own country,
except only if prevented by the demands of national safety and
national security.—There is no dispute that the former President is
still a Filipino citizen and both under the Universal Declaration of
Human Rights and the 1987 Constitution of the Philippines, he
has the right to return to his own country exceptonly if prevented
by the demands
of national safety and national security. Our Armed Forces have
failed to prove this danger. They are bereft of hard evidence, and
all they can rely on is sheer speculation. True, there is some
danger but there is no showing as to the extent.
PADILLA, J., Dissenting
Political Law; Bill of Rights; Right to Travel; Police Power; With or
without restricting legislation, the right to travel may be impaired
or restricted in the interest of national security, public safety and
public health; Power of the state to restrict the right to travel
finds abundant support in police power.—Petitioners contend that,
in the absence of restricting legislation, the right to travel is
absolute. I do not agree. It is my view that, with or without
restricting legislation, the interest of national security, public
safety or public health can justify and even require restrictions on
the right to travel, and that the clause “as may be provided by
law” contained in Article III, Section 6 of the 1987 Constitution
merely declares a constitutional leave or permission for Congress
to enact laws that may restrict the right to travel in the interest of
national security, public safety or public health. I do not,
therefore, accept the petitioners’ submission that, in the absence
of enabling legislation, the Philippine Government is powerless to
restrict travel even when such restriction is demanded by national
security, public safety or public health. The power of the State, in
particular cases, to restrict travel of its citizens finds abundant
support in the police power of the State, which may be exercised
to preserve and maintain government as well as promote the
general welfare of the greatest number of people. And yet, the
power of the State, acting through a government in authority at
any given time, to restrict travel, even if founded on police power,
cannot be absolute and unlimited under all circumstances, much
less, can it be arbitrary and irrational.
Same; Same; Same; The government failed to present convincing
evidence to defeat Marcos’ right to return to this country.—I have
given these questions a searching examination. I have carefully
weighed and assessed the “briefing” given the Court by the
highest military authorities of the land last 28 July 1989. I have
searched, but in vain, for convincing evidence that would defeat
and overcome the right of Mr. Marcos as a Filipino to return to
this country. It appears to me that the apprehensions entertained
and expressed by the respondents, including those conveyed
through the military, do not, with all due respect, escalate to
proportions of national security or public safety. They appear to
be more speculative than real, obsessive rather
than factual. Moreover, such apprehensions even if translated into
realities, would be “under control,” as admitted to the Court by
said military authorities, given the resources and facilities at the
command of government. But, above all, the Filipino people
themselves, in my opinion, will know how to handle any situation
brought about by a political recognition of Mr. Marcos’ right to
return, and his actual return, to this country. The Court, in short,
should not accept respondents’ general apprehensions, concerns
and perceptions at face value, in the light of a countervailing and
even irresistible, specific, clear, demandable, and enforceable
right asserted by a Filipino.
SARMIENTO, J., Dissenting
Political Law; Bill of Rights; Right to Travel; The right to return to
one’s own country cannot be distinguished from the right to travel
and freedom of abode.—I also find quite strained what the
majority would have as the “real issues” facing the Court: “The
right to return to one’s country,” pitted against “the right of travel
and freedom of abode,” and their supposed distinctions under
international law, as if such distinctions under international law, in
truth and in fact exist. There is only one right involved here,
whether under municipal or international law: the right of travel,
whether within one’s own country, or to another, and the right to
return thereto. The Constitution itself makes no distinctions; let,
then, no one make a distinction. Ubi lex non distinguit, nec nos
distinguere debemus.
Same; The President; Bill of Rights; While the President may
exercise powers not expressly granted by the Constitution but
may necessarily be implied therefrom, the latter must yield to the
paramountcy of the Bill of Rights.—While the Chief Executive
exercises powers not found expressly in the Charter, but has them
by constitutional implication, the latter must yield to the
paramountcy of the Bill of Rights. According to Fernando: “A
regime of constitutionalism is thus unthinkable without an
assurance of the primacy of a bill of rights. Precisely a constitution
exists to assure that in the discharge of the governmental
functions, the dignity that is the birthright of every human being
is duly safeguarded. To be true to its primordial aim, a
constitution must lay down the boundaries beyond which lies
forbidden territory for state action.” My brethren have not
demonstrated, to my satisfaction, how the President may override
the direct mandate of the fundamental law. It will not suffice, so I
submit, to say that the President’s plenitude of powers, as
provided in the Constitution, or by sheer constitutional implication,
prevail over express constitutional commands. “Clearly,” so I
borrow J.B.L. Reyes, in his own right, a
titan in the field of public law, “this argument . . . rests . . . not
upon the text of the [Constitution] . . . but upon a mere inference
therefrom,” For if it were, indeed, the intent of the Charter to
create an exception, that is, by Presidential action, to the right of
travel or liberty of abode and of changing the same—other than
what it explicitly says already (“limits prescribed by law” or “upon
lawful order of the court”)—the Charter could have specifically
declared so. As it is, the lone deterrents to the right in question
are: (1) decree of statute, or (2) lawful judicial mandate. Had the
Constitution intended a third exception, that is, by Presidential
initiative, it could have so averred. It would also have made the
Constitution, as far as limits to the said right are concerned, come
full circle: Limits by legislative, judicial, and executive processes.
Same; Same; Same; Same; Same; Under the new Constitution,
the right to travel may be impaired only within the limits provided
by law; The President has been divested of the implied power to
impair the right to travel.—Obviously, none of the twin legal bars
exist. There is no law banning the Marcoses from the country;
neither is there any court decree banishing him from Philippine
territory. It is to be noted that under the 1973 Constitution, the
right to travel is worded as follows: Sec. 5. The liberty of abode
and of travel shall not be impaired except upon lawful order of the
court, or when necessary in the interest of national security,
public safety, or public health. Under this provision, the right may
be abated: (1) upon a lawful court order, or (2) “when necessary
in the interest of national security, public safety, or public health.”
Arguably, the provision enabled the Chief Executive (Marcos) to
moderate movement of citizens, which, Bernas says, justified such
practices as “hamletting,” forced relocations, or the establishment
of free-fire zones. The new Constitution, however, so it clearly
appears, has divested the Executive’s implied power. And, as it so
appears, the right may be impaired only “within the limits
provided by law.” The President is out of the picture.
Same; Same; Same; Same; The determination of whether Marcos’
return poses a threat to national security should not be left solely
to the Chief Executive, the Court itself must be satisfied that the
threat is not only clear but also present.—Admittedly, the Chief
Executive is the “sole” judge of all matters affecting national
security and foreign affairs; the Bill of Rights—precisely, a form of
check against excesses of officialdom—is, in this case, a
formidable barrier against Presidential action. (Even on matters of
State security, this Constitution prescribes limits to Executive’s
powers as commander-in-chief.) Second: Assuming, ex hypothesi,
that the President may legally act, the
question that emerges is: Has it been proved that Marcos, or his
return, will, in fact, interpose a threat to the “national security,
public safety, or public health?” What appears in the records are
vehement insistences that Marcos does pose a threat to the
national good—and yet, at the same time, we have persistent
claims, made by the military top brass during the lengthy closed-
door hearing on July 25, 1989, that “this Government will not fall”
should the former first family in exile step on Philippine soil.
Which is which? At any rate, it is my opinion that we can not
leave that determination solely to the Chief Executive. The Court
itself must be content that the threat is not only clear, but more
so, present.
CORTÉS, J.:
Before the Court is a controversy of grave national importance.
While ostensibly only legal issues are involved, the Court’s
decision in this case would undeniably have a profound effect on
the political, economic and other aspects of national life.
We recall that in February 1986, Ferdinand E. Marcos was
deposed from the presidency via the non-violent “people power”
revolution and forced into exile. In his stead, Corazon C. Aquino
was declared President of the Republic under a revolutionary
government. Her ascension to and consolidation of power have
not been unchallenged. The failed Manila Hotel coup in 1986 led
by political leaders of Mr. Marcos, the takeover of television
station Channel 7 by rebel troops led by Col. Canlas with the
support of “Marcos loyalists” and the unsuccessful plot of the
Marcos spouses to surreptitiously return from Hawaii with
mercenaries aboard an aircraft chartered by a Lebanese arms
dealer [Manila Bulletin, January 30, 1987] awakened the nation to
the capacity of the Marcoses to stir trouble even from afar and to
the fanaticism and blind loyalty of their followers in the country.
The ratification of the 1987 Constitution enshrined the victory of
“people power” and also clearly reinforced the constitutional
moorings of Mrs. Aquino’s presidency. This did not, however, stop
bloody challenges to the government. On August 28, 1987, Col.
Gregorio Honasan, one of the major players in the February
Revolution, led a failed coup that left scores of people, both
combatants and civilians, dead. There were several other armed
sorties of lesser significance, but the message they con-
veyed was the same—a split in the ranks of the military
establishment that threatened civilian supremacy over the military
and brought to the fore the realization that civilian government
could be at the mercy of a fractious military.
But the armed threats to the Government were not only found in
misguided elements in the military establishment and among
rabid followers of Mr. Marcos. There were also the communist
insurgency and the secessionist movement in Mindanao which
gained ground during the rule of Mr. Marcos, to the extent that
the communists have set up a parallel government of their own in
the areas they effectively control while the separatists are virtually
free to move about in armed bands. There has been no let up in
these groups’ determination to wrest power from the government.
Not only through resort to arms but also through the use of
propaganda have they been successful in creating chaos and
destabilizing the country.
Nor are the woes of the Republic purely political. The
accumulated foreign debt and the plunder of the nation attributed
to Mr. Marcos and his cronies left the economy devastated. The
efforts at economic recovery, three years after Mrs. Aquino
assumed office, have yet to show concrete results in alleviating
the poverty of the masses, while the recovery of the ill-gotten
wealth of the Marcoses has remained elusive.
Now, Mr. Marcos, in his deathbed, has signified his wish to return
to the Philippines to die. But Mrs. Aquino, considering the dire
consequences to the nation of his return at a time when the
stability of government is threatened from various directions and
the economy is just beginning to rise and move forward, has
stood firmly on the decision to bar the return of Mr. Marcos and
his family.
The Petition
This case is unique. It should not create a precedent, for the case
of a dictator forced out of office and into exile after causing
twenty years of political, economic and social havoc in the country
and who within the short space of three years seeks to return, is
in a class by itself.
This petition for mandamus and prohibition asks the Court to
order the respondents to issue travel documents to Mr. Marcos
and the immediate members of his family and to enjoin the
implementation of the President’s decision to bar their return to
the Philippines.
The Issue
The issue is basically one of power: whether or not, in the
exercise of the powers granted by the Constitution, the President
may prohibit the Marcoses from returning to the Philippines.
According to the petitioners, the resolution of the case would
depend on the resolution of the following issues:
1.Does the President have the power to bar the return of former
President Marcos and his family to the Philippines?
a.Is this a political question?
2.Assuming that the President has the power to bar former
President Marcos and his family from returning to the Philippines,
in the interest of “national security, public safety or public
health”—
a.Has the President made a finding that the return of former
President Marcos and his family to the Philippines is a clear and
present danger to national security, public safety or public health?
b.Assuming that she has made that finding,—
(1)Have the requirements of due process been complied with in
making such finding?
(2)Has there been prior notice to petitioners?
(3)Has there been a hearing?
(4)Assuming that notice and hearing may be dispensed with, has
the President’s decision, including the grounds upon which it was
based, been made known to petitioners so that they may
controvert the same?
c.Is the President’s determination that the return of for-mer
President Marcos and his family to the Philippines is a clear and
present danger to national security, public safety, or public health
a political question?
d.Assuming that the Court may inquire as to whether the return
of former President Marcos and his family is a clear and present
danger to national security, public safety, or public health, have
respondents established such fact?
3.Have the respondents, therefore, in implementing the
President’s decision to bar the return of former President Marcos
and his family, acted and would be acting without jurisdiction, or
in excess of jurisdiction, or with grave abuse of discretion, in
performing any act which would effectively bar the return of
former President Marcos and his family to the Philippines?
[Memorandum for Petitioners, pp. 5-7; Rollo, pp. 234-236.]
The case for petitioners is founded on the assertion that the right
of the Marcoses to return to the Philippines is guaranteed under
the following provisions of the Bill of Rights, to wit:
Section 1. No person shall be deprived of life, liberty, or property
without due process of law, nor shall any person be denied the
equal protection of the laws.
xxx
Section 6 .The liberty of abode and of changing the same within
the limits prescribed by law shall not be impaired except upon
lawful order of the court. Neither shall the right to travel be
impaired except in the interest of national security, public safety,
or public health, as may be provided by law.
The petitioners contend that the President is without power to
impair the liberty of abode of the Marcoses because only a court
may do so “within the limits prescribed by law.” Nor may the
President impair their right to travel because no law has
authorized her to do so. They advance the view that before the
right to travel may be impaired by any authority or agency of the
government, there must be legislation to that effect.
The petitioners further assert that under international law, the
right of Mr. Marcos and his family to return to the Philippines is
guaranteed.
The Universal Declaration of Human Rights provides:
Article 13. (1)Everyone has the right to freedom of movement and
residence within the borders of each state.
(2)Everyone has the right to leave any country, including his own,
and to return to his country.
Likewise, the International Covenant on Civil and Political Rights,
which had been ratified by the Philippines, provides:
Article 12
1)Everyone lawfully within the territory of a State shall, within
that territory, have the right to liberty of movement and freedom
to choose his residence.
2)Everyone shall be free to leave any country, including his own.
3)The above-mentioned rights shall not be subject to any
restrictions except those which are provided by law, are necessary
to protect national security, public order (order public), public
health or morals or the rights and freedoms of others, and are
consistent with the other rights recognized in the present
Covenant.
4)No one shall be arbitrarily deprived of the right to enter his own
country.
On the other hand, the respondents’ principal argument is that
the issue in this case involves a political question which is non-
justiciable. According to the Solicitor General:
As petitioners couch it, the question involved is simply whether or
not petitioners Ferdinand E. Marcos and his family have the right
to travel and liberty of abode. Petitioners invoke these
constitutional rights in vacuo without reference to attendant
circumstances.
Respondents submit that in its proper formulation, the issue is
whether or not petitioners Ferdinand E. Marcos and family have
the right to return to the Philippines and reside here at this time
in the face of the determination by the President that such return
and residence will endanger national security and public safety.
It may be conceded that as formulated by petitioners, the
question is not a political question as it involves merely a
determination of what the law provides on the matter and
application thereof to petitioners Ferdinand E. Marcos and family.
But when the question is whether the two rights claimed by
petitioners Ferdinand E. Marcos and family impinge on or collide
with the more primordial and transcendental right of the State to
security and safety of its nationals, the question becomes political
and this Honorable Court can not consider it.
There are thus gradations to the question, to wit:
Do petitioners Ferdinand E. Marcos and family have the right to
return to the Philippines and reestablish their residence here? This
is clearly a justiciable question which this Honorable Court can
decide.
Do petitioners Ferdinand E. Marcos and family have their right to
return to the Philippines and reestablish their residence here even
if their return and residence here will endanger national security
and public safety? This is still a justiciable question which this
Honorable Court can decide.
Is there danger to national security and public safety if petitioners
Ferdinand E. Marcos and family shall return to the Philippines and
establish their residence here? This is now a political question
which this Honorable Court can not decide for it falls within the
exclusive authority and competence of the President of the
Philippines. [Memorandum for Respondents, pp. 9-11; Rollo, pp.
297-299.]
Respondents argue for the primacy of the right of the State to
national security over individual rights. In support thereof, they
cite Article II of the Constitution, to wit:
Section 4.The prime duty of the Government is to serve and
protect the people. The Government may call upon the people to
defend the State and, in the fulfillment thereof, all citizens may be
required, under conditions provided by law, to render personal,
military, or civil service.
Section 5.The maintenance of peace and order, the protection of
life, liberty, and property, and the promotion of the general
welfare are essential for the enjoyment by all the people of the
blessings of democracy.
Respondents also point out that the decision to ban Mr. Marcos
and his family from returning to the Philippines for reasons of
national security and public safety has international precedents.
Rafael Trujillo of the Dominican Republic, Anastacio Somoza, Jr.
of Nicaragua, Jorge Ubico of Guatemala, Fulgencio Batista of
Cuba, King Farouk of Egypt, Maximiliano Hernandez Martinez of El
Salvador, and Marcos Perez Jimenez of Venezuela were among
the deposed dictators whose return to their homelands was
prevented by their governments. [See Statement of Foreign
Affairs Secretary Raul S. Manglapus, quoted in Memorandum for
Respondents, pp. 26-32; Rollo, pp. 314-319.]
The parties are in agreement that the underlying issue is one of
the scope of presidential power and its limits. We, however, view
this issue in a different light. Although we give due weight to the
parties’ formulation of the issues, we are not bound by its
narrow confines in arriving at a solution to the controversy.
At the outset, we must state that it would not do to view the case
within the confines of the right to travel and the import of the
decisions of the U.S. Supreme Court in the leading cases of Kent
v. Dulles [357 U.S. 116, 78 SCt. 1113, 2 L Ed. 2d 1204] and Haig
v. Agee [453 U.S. 280, 101 SCt. 2766, 69 L Ed. 2d 640) which
affirmed the right to travel and recognized exceptions to the
exercise thereof, respectively.
It must be emphasized that the individual right involved is not the
right to travel from the Philippines to other countries or within the
Philippines. These are what the right to travel would normally
connote. Essentially, the right involved is the right to return to
one’s country, a totally distinct right under international law,
independent from although related to the right to travel. Thus,
the Universal Declaration of Humans Rights and the International
Covenant on Civil and Political Rights treat the right to freedom of
movement and abode within the territory of a state, the right to
leave a country, and the right to enter one’s country as separate
and distinct rights. The Declaration speaks of the “right to
freedom of movement and residence within the borders of each
state” [Art. 13(1)] separately from the “right to leave any country,
including his own, and to return to his country.” [Art. 13(2).] On
the other hand, the Covenant guarantees the “right to liberty of
movement and freedom to choose his residence” [Art. 12(1)] and
the right to “be free to leave any country, including his own.” [Art.
12(2)] which rights may be restricted by such laws as “are
necessary to protect national security, public order, public health
or morals or the separate rights and freedoms of others.” [Art.
12(3)] as distinguished from the “right to enter his own country”
of which one cannot be “arbitrarily deprived.” [Art. 12(4).] It
would therefore be inappropriate to construe the limitations to the
right to return to one’s country in the same context as those
pertaining to the liberty of abode and the right to travel.
The right to return to one’s country is not among the rights
specifically guaranteed in the Bill of Rights, which treats only of
the liberty of abode and the right to travel, but it is our
wellconsidered view that the right to return may be considered, as
a generally accepted principle of international law and, under our
Constitution, is part of the law of the land [Art. II, Sec. 2 of
the Constitution.] However, it is distinct and separate from the
right to travel and enjoys a different protection under the
International Covenant of Civil and Political Rights, i.e.,against
being “arbitrarily deprived” thereof [Art. 12 (4).]
Thus, the rulings in the cases of Kent and Haig,which refer to the
issuance of passports for the purpose of effectively exercising the
right to travel are not determinative of this case and are only
tangentially material insofar as they relate to a conflict between
executive action and the exercise of a protected right. The issue
before the Court is novel and without precedent in Philippine, and
even in American jurisprudence.
Consequently, resolution by the Court of the well-debated issue of
whether or not there can be limitations on the right to travel in
the absence of legislation to that effect is rendered unnecessary.
An appropriate case for its resolution will have to be awaited.
Having clarified the substance of the legal issue, we find now a
need to explain the methodology for its resolution. Our resolution
of the issue will involve a two-tiered approach. We shall first
resolve whether or not the President has the power under the
Constitution, to bar the Marcoses from returning to the
Philippines. Then, we shall determine, pursuant to the express
power of the Court under the Constitution in Article VIII, Section
1, whether or not the President acted arbitrarily or with grave
abuse of discretion amounting to lack or excess of jurisdiction
when she determined that the return of the Marcoses to the
Philippines poses a serious threat to national interest and welfare
and decided to bar their return.
Executive Power
The 1987 Constitution has fully restored the separation of powers
of the three great branches of government. To recall the words of
Justice Laurel in Angara v. Electoral Commission [63 Phil. 139
(1936)], “the Constitution has blocked but with deft strokes and in
bold lines, allotment of power to the executive, the legislative and
the judicial departments of the government.” [At 157.] Thus, the
1987 Constitution explicitly provides that “[t]he legislative power
shall be vested in the Congress of the Philippines” [Art. VI, Sec.
1], “[t]he executive power shall be
vested in the President of the Philippines” [Art. VII, Sec. 1], and
“[t]he judicial power shall be vested in one Supreme Court and in
such lower courts as may be established by law” [Art. VIII, Sec.
1.] These provisions not only establish a separation of powers by
actual division [Angara v. Electoral Commission, supra] but also
confer plenary legislative, executive and judicial powers subject
only to limitations provided in the Constitution. For as the
Supreme Court in Ocampo v. Cabangis [15 Phil. 626 (1910)]
pointed out “a grant of the legislative power means a grant of all
legislative power; and a grant of the judicial power means a grant
of all the judicial power which may be exercised under the
government.” [At 631-632.] If this can be said of the legislative
power which is exercised by two chambers with a combined
membership of more than two hundred members and of the
judicial power which is vested in a hierarchy of courts, it can
equally be said of the executive power which is vested in one
official—the President.
As stated above, the Constitution provides that “[t]he executive
power shall be vested in the President of the Philippines.” [Art.
VII, Sec. 1]. However, it does not define what is meant by
“executive power” although in the same article it touches on the
exercise of certain powers by the President, i.e.,the power of
control over all executive departments, bureaus and offices, the
power to execute the laws, the appointing power, the powers
under the commander-in-chief clause, the power to grant
reprieves, commutations and pardons, the power to grant
amnesty with the concurrence of Congress, the power to contract
or guarantee foreign loans, the power to enter into treaties or
international agreements, the power to submit the budget to
Congress, and the power to address Congress [Art. VII, Secs. 14-
23].
The inevitable question then arises: by enumerating certain
powers of the President did the framers of the Constitution intend
that the President shall exercise those specific powers and no
other? Are these enumerated powers the breadth and scope of
“executive power”? Petitioners advance the view that the
President’s powers are limited to those specifically enumerated in
the 1987 Constitution. Thus, they assert: “The President has
enumerated powers, and what is not enumerated is impliedly
denied to her. Inclusio unius est exclusio alterius.”
[Memorandum for Petitioners, p. 4; Rollo p. 233.] This argument
brings to mind the institution of the U.S. Presidency after which
ours is legally patterned.**
Corwin, in his monumental volume on the President of the United
States grappled with the same problem. He said:
Article II is the most loosely drawn chapter of the Constitution. To
those who think that a constitution ought to settle everything
beforehand it should be a nightmare; by the same token, to those
who think that constitution makers ought to leave considerable
leeway for the future play of political forces, it should be a vision
realized.
We encounter this characteristic of Article II in its opening words:
“The executive power shall be vested in a President of the United
States of America.” x x x. [The President: Office and Powers,
1787-1957,pp. 3-4.]
Reviewing how the powers of the U.S. President were exercised
by the different persons who held the office from Washington to
the early 1900’s, and the swing from the presidency by
commission to Lincoln’s dictatorship, he concluded that “what the
presidency is at any particular moment depends in important
measure on who is President.” [At 30.]
This view is shared by Schlesinger, who wrote in The Imperial
Presidency:
For the American Presidency was a peculiarly personal institution.
It remained, of course, an agency of government subject to
unvarying demands and duties no matter who was President. But,
more than most agencies of government, it changed shape,
intensity and ethos according to the man in charge. Each
President’s distinctive temperament and character, his values,
standards, style, his habits, expectations, idiosyncrasies,
compulsions, phobias recast the White
House and pervaded the entire government. The executive
branch, said Clark Clifford, was a chameleon, taking its color from
the character and personality of the President. The thrust of the
office, its impact on the constitutional order, therefore altered
from President to President. Above all, the way each President
understood it as his personal obligation to inform and involve the
Congress, to earn and hold the confidence of the electorate and
to render an accounting to the nation and posterity determined
whether he strengthened or weakened the constitutional order.
[At 212-213.]
We do not say that the presidency is what Mrs. Aquino says it is
or what she does but, rather, that the consideration of tradition
and the development of presidential power under the different
constitutions are essential for a complete understanding of the
extent of and limitations to the President’s powers under the 1987
Constitution. The 1935 Constitution created a strong President
with explicitly broader powers than the U.S. President. The 1973
Constitution attempted to modify the system of government into
the parliamentary type, with the President as a mere figurehead,
but through numerous amendments, the President became even
more powerful, to the point that he was also the de facto
Legislature. The 1987 Constitution, however, brought back the
presidential system of government and restored the separation of
legislative, executive and judicial powers by their actual
distribution among three distinct branches of government with
provision for checks and balances.
It would not be accurate, however, to state that “executive
power” is the power to enforce the laws, for the President is head
of state as well as head of government and whatever powers
inhere in such positions pertain to the office unless the
Constitution itself withholds it. Furthermore, the Constitution itself
provides that the execution of the laws is only one of the powers
of the President. It also grants the President other powers that do
not involve the execution of any provision of law, e.g.,his power
over the country’s foreign relations.
On these premises, we hold the view that although the 1987
Constitution imposes limitations on the exercise of specific powers
of the President, it maintains intact what is traditionally
considered as within the scope of “executive power.” Corollarily,
the powers of the President cannot be said to be limited only to
the specific powers enumerated in the Constitution. In
other words, executive power is more than the sum of specific
powers so enumerated.
It has been advanced that whatever power inherent in the
government that is neither legislative nor judicial has to be
executive. Thus, in the landmark decision of Springer v.
Government of the Philippine Islands, 277 U.S. 189 (1928), on the
issue of who between the Governor-General of the Philippines and
the Legislature may vote the shares of stock held by the
Government to elect directors in the National Coal Company and
the Philippine National Bank, the U.S. Supreme Court, in
upholding the power of the Governor-General to do so, said:
... Here the members of the legislature who constitute a majority
of the “board” and “committee” respectively, are not charged with
the performance of any legislative functions or with the doing of
anything which is in aid of performance of any such functions by
the legislature. Putting aside for the moment the question
whether the duties devolved upon these members are vested by
the Organic Act in the Governor-General, it is clear that they are
not legislative in character, and still more clear that they are not
judicial. The fact that they do not fall within the authority of either
of these two constitutes logical ground for concluding that they do
fall within that of the remaining one among which the powers of
government are divided. . . . [At 202-203; italics supplied.]
We are not unmindful of Justice Holmes’ strong dissent. But in his
enduring words of dissent we find reinforcement for the view that
it would indeed be a folly to construe the powers of a branch of
government to embrace only what are specifically mentioned in
the Constitution:
The great ordinances of the Constitution do not establish and
divide fields of black and white. Even the more specific of them
are found to terminate in a penumbra shading gradually from one
extreme to the other. x x x.
xxx
It does not seem to need argument to show that however we
may disguise it by veiling words we do not and cannot carry out
the distinction between legislative and executive action with
mathematical precision and divide the branches into watertight
compartments, were it ever so desirable to do so, which I am far
from believing that it is, or that the Constitution requires. [At 210-
211.]
The Power Involved
The Constitution declares among the guiding principles that “[t]he
prime duty of the Government is to serve and protect the people”
and that “[t]he maintenance of peace and order, the protection of
life, liberty, and property, and the promotion of the general
welfare are essential for the enjoyment by all the people of the
blessings of democracy.” [Art. II, Secs. 4 and 5.]
Admittedly, service and protection of the people, the maintenance
of peace and order, the protection of life, liberty and property,
and the promotion of the general welfare are essentially ideals to
guide governmental action. But such does not mean that they are
empty words. Thus, in the exercise of presidential functions, in
drawing a plan of government, and in directing implementing
action for these plans, or from another point of view, in making
any decision as President of the Republic, the President has to
consider these principles, among other things, and adhere to
them.
Faced with the problem of whether or not the time is right to
allow the Marcoses to return to the Philippines, the President is,
under the Constitution, constrained to consider these basic
principles in arriving at a decision. More than that, having sworn
to defend and uphold the Constitution, the President has the
obligation under the Constitution to protect the people, promote
their welfare and advance the national interest. It must be borne
in mind that the Constitution, aside from being an allocation of
power is also a social contract whereby the people have
surrendered their sovereign powers to the State for the common
good. Hence, lest the officers of the Government exercising the
powers delegated by the people forget and the servants of the
people become rulers, the Constitution reminds everyone that
“[s]overeignty resides in the people and all government authority
emanates from them.” [Art. II, Sec. 1.]
The resolution of the problem is made difficult because the
persons who seek to return to the country are the deposed
dictator and his family at whose door the travails of the country
are laid and from whom billions of dollars believed to be illgotten
wealth are sought to be recovered. The constitutional guarantees
they invoke are neither absolute nor inflexible. For the exercise of
even the preferred freedoms of speech and of
expression, although couched in absolute terms, admits of limits
and must be adjusted to the requirements of equally important
public interests [Zaldivar v. Sandiganbayan, G.R. Nos. 79690-707,
October 7, 1988].
To the President, the problem is one of balancing the general
welfare and the common good against the exercise of rights of
certain individuals. The power involved is the President’s residual
power to protect the general welfare of the people. It is founded
on the duty of the President, as steward of the people. To
paraphrase Theodore Roosevelt, it is not only the power of the
President but also his duty to do anything not forbidden by the
Constitution or the laws that the needs of the nation demand
[SeeCorwin,supra,at 153]. It is a power borne by the President’s
duty to preserve and defend the Constitution. It also may be
viewed as a power implicit in the President’s duty to take care
that the laws are faithfully executed [seeHyman, The American
President, where the author advances the view that an allowance
of discretionary power is unavoidable in any government and is
best lodged in the President].
More particularly, this case calls for the exercise of the President’s
powers as protector of the peace. [Rossiter, The American
Presidency]. The power of the President to keep the peace is not
limited merely to exercising the commander-in-chief powers in
times of emergency or to leading the State against external and
internal threats to its existence. The President is not only clothed
with extraordinary powers in times of emergency, but is also
tasked with attending to the day-to-day problems of maintaining
peace and order and ensuring domestic tranquility in times when
no foreign foe appears on the horizon. Wide discretion, within the
bounds of law, in fulfilling presidential duties in times of peace is
not in any way diminished by the relative want of an emergency
specified in the commander-in-chief provision. For in making the
President commander-in-chief the enumeration of powers that
follow cannot be said to exclude the President’s exercising as
Commander-in-Chief powers short of the calling of the armed
forces, or suspending the privilege of the writ of habeas corpus or
declaring martial law, in order to keep the peace, and maintain
public order and security.
That the President has the power under the Constitution to bar
the Marcoses from returning has been recognized by mem-
bers of the Legislature, and is manifested by the Resolution
proposed in the House of Representatives and signed by 103 of
its members urging the President to allow Mr. Marcos to return to
the Philippines “as a genuine unselfish gesture for true national
reconciliation and as irrevocable proof of our collective adherence
to uncompromising respect for human rights under the
Constitution and our laws.” [House Resolution No. 1342, Rollo, p.
321.] The Resolution does not question the President’s power to
bar the Marcoses from returning to the Philippines, rather, it
appeals to the President’s sense of compassion to allow a man to
come home to die in his country.
What we are saying in effect is that the request or demand of the
Marcoses to be allowed to return to the Philippines cannot be
considered in the light solely of the constitutional provisions
guaranteeing liberty of abode and the right to travel, subject to
certain exceptions, or of case law which clearly never
contemplated situations even remotely similar to the present one.
It must be treated as a matter that is appropriately addressed to
those residual unstated powers of the President which are implicit
in and correlative to the paramount duty residing in that office to
safeguard and protect general welfare. In that context, such
request or demand should submit to the exercise of a broader
discretion on the part of the President to determine whether it
must be granted or denied.
The Extent of Review
Under the Constitution, judicial power includes the duty to
determine whether or not there has been a grave abuse of
discretion amounting to lack or excess of jurisdiction on the part
of any branch or instrumentality of the Government.” [Art. VIII,
Sec. 1.] Given this wording, we cannot agree with the Solicitor
General that the issue constitutes a political question which is
beyond the jurisdiction of the Court to decide.
The present Constitution limits resort to the political question
doctrine and broadens the scope of judicial inquiry into areas
which the Court, under previous constitutions, would have
normally left to the political departments to decide. But
nonetheless there remain issues beyond the Court’s jurisdiction
the determination of which is exclusively for the President, for
Congress or for the people themselves through a plebiscite or
referendum. We cannot, for example, question the President’s
recognition of a foreign government, no matter how premature or
improvident such action may appear. We cannot set aside a
presidential pardon though it may appear to us that the
beneficiary is totally undeserving of the grant. Nor can we amend
the Constitution under the guise of resolving a dispute brought
before us because the power is reserved to the people.
There is nothing in the case before us that precludes our
determination thereof on the political question doctrine. The
deliberations of the Constitutional Commission cited by petitioners
show that the framers intended to widen the scope of judicial
review but they did not intend courts of justice to settle all actual
controversies before them. When political questions are involved,
the Constitution limits the determination to whether or not there
has been a grave abuse of discretion amounting to lack or excess
of jurisdiction on the part of the official whose action is being
questioned. If grave abuse is not established, the Court will not
substitute its judgment for that of the official concerned and
decide a matter which by its nature or by law is for the latter
alone to decide. In this light, it would appear clear that the
second paragraph of Article VIII, Section 1 of the Constitution,
defining “judicial power,” which specifically empowers the courts
to determine whether or not there has been a grave abuse of
discretion on the part of any branch or instrumentality of the
government, incorporates in the fundamental law the ruling in
Lansang v. Garcia [G.R. No. L-33964, December 11, 1971, 42
SCRA 448] that:
Article VII of the [1935] Constitution vests in the Executive the
power to suspend the privilege of the writ of habeas corpus under
specified conditions. Pursuant to the principle of separation of
powers underlying our system of government, the Executive is
supreme within his own sphere. However, the separation of
powers, under the Constitution, is not absolute. What is more, it
goes hand in hand with the system of checks and balances, under
which the Executive is supreme, as regards the suspension of the
privilege, but only if and when he acts within the sphere alloted to
him by the Basic Law, and the authority to determine whether or
not he has so acted is vested in the Judicial Department, which, in
this respect, is, in turn, constitutionally supreme.
In the exercise of such authority, the function of the Court is
merely to check—not to supplant—the Executive, or to ascertain
merely whether he has gone beyond the constitutional limits of
his jurisdiction, not to exercise the power vested in him or to
determine the wisdom of his act. . . . [At 479-480.]
Accordingly, the question for the Court to determine is whether or
not there exist factual bases for the President to conclude that it
was in the national interest to bar the return of the Marcoses to
the Philippines. If such postulates do exist, it cannot be said that
she has acted, or acts, arbitrarily or that she has gravely abused
her discretion in deciding to bar their return.
We find that from the pleadings filed by the parties, from their
oral arguments, and the facts revealed during the briefing in
chambers by the Chief of Staff of the Armed Forces of the
Philippines and the National Security Adviser, wherein petitioners
and respondents were represented, there exist factual bases for
the President’s decision.
The Court cannot close its eyes to present realities and pretend
that the country is not besieged from within by a wellorganized
communist insurgency, a separatist movement in Mindanao,
rightist conspiracies to grab power, urban terrorism, the murder
with impunity of military men, police officers and civilian officials,
to mention only a few. The documented history of the efforts of
the Marcoses and their followers to destabilize the country, as
earlier narrated in this ponencia bolsters the conclusion that the
return of the Marcoses at this time would only exacerbate and
intensify the violence directed against the State and instigate
more chaos.
As divergent and discordant forces, the enemies of the State may
be contained. The military establishment has given assurances
that it could handle the threats posed by particular groups. But it
is the catalytic effect of the return of the Marcoses that may prove
to be the proverbial final straw that would break the camel’s back.
With these before her, the President cannot be said to have acted
arbitrarily and capriciously and whimsically in determining that the
return of the Marcoses poses a serious threat to the national
interest and welfare and in prohibiting their return.
It will not do to argue that if the return of the Marcoses to the
Philippines will cause the escalation of violence against the State,
that would be the time for the President to step in and exercise
the commander-in-chief powers granted her by the Constitution to
suppress or stamp out such violence. The State, acting through
the Government, is not precluded from taking pre-emptive action
against threats to its existence if, though still nascent, they are
perceived as apt to become serious and direct. Protection of the
people is the essence of the duty of government. The
preservation of the State—the fruition of the people’s sovereignty
—is an obligation in the highest order. The President, sworn to
preserve and defend the Constitution and to see the faithful
execution the laws, cannot shirk from that responsibility.
We cannot also lose sight of the fact that the country is only now
beginning to recover from the hardships brought about by the
plunder of the economy attributed to the Marcoses and their close
associates and relatives, many of whom are still here in the
Philippines in a position to destabilize the country, while the
Government has barely scratched the surface, so to speak, in its
efforts to recover the enormous wealth stashed away by the
Marcoses in foreign jurisdictions. Then, We cannot ignore the
continually increasing burden imposed on the economy by the
excessive foreign borrowing during the Marcos regime, which
stifles and stagnates development and is one of the root causes of
widespread poverty and all its attendant ills. The resulting
precarious state of our economy is of common knowledge and is
easily within the ambit of judicial notice.

The President has determined that the destabilization caused by

the return of the Marcoses would wipe away the gains achieved
during the past few years and lead to total economic collapse.
Given what is within our individual and common knowledge of the
state of the economy, we cannot argue with that determination.

WHEREFORE, and it being our well-considered opinion that the

President did not act arbitrarily or with grave abuse of discretion
in determining that the return of former President Marcos and his
family at the present time and under present circumstances poses
a serious threat to national interest and welfare and in prohibiting
their return to the Philippines, the

instant petition is hereby DISMISSED.

SO ORDERED.