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FACTS:

Brothers Raymond and Reynaldo Manalo were abducted by military men belonging to the CAFGU on the suspicion that they were members and supporters of the NPA. After 18 months of detention and torture, the brothers escaped on August 13, 2007.

Ten days after their escape, they filed a Petition for Prohibition, Injunction, and Temporary Restraining Order to stop the military officers and agents from depriving them of their right to liberty and other basic rights. While the said case was pending, the Rule on the Writ of Amparo took effect on October 24, 2007. The Manalos subsequently filed a manifestation and omnibus motion to treat their existing petition as amparo petition.

On December 26, 2007, the Court of Appeals granted the privilege of the writ of amparo. The CA ordered the Secretary of National Defense and the Chief of Staff of the AFP to furnish the Manalos and the court with all official and unofficial investigation reports as to the Manalos custody, confirm the present places of official assignment of two military officials involved, and produce all medical reports and records of the Manalo brothers while under military custody. The Secretary of National Defense and the Chief of Staff of the AFP appealed to the SC seeking to reverse and set aside the decision promulgated by the CA.

HELD:

In upholding the CA decision, the Supreme Court ruled that there is a continuing violation of the Manalos right to security. xxx The Writ of Amparo is the most potent remedy available to any person whose right to life, liberty, and security has been violated or is threatened with violation by an unlawful act or omission by public officials or employees and by private individuals or entities. xxx Understandably, since their escape, the Manalos have been under concealment and protection by private citizens because of the threat to their life, liberty, and security. The circumstances of respondents abduction, detention, torture and escape reasonably support a conclusion that there is an apparent threat that they will again be abducted, tortured, and this time, even executed. These constitute threats to their liberty, security, and life, actionable through a petition for a writ of amparo, the Court explained. (GR No. 180906, The Secretary of National Defense v. Manalo, October 7, 2008)

Distinguish the production order under the Rule on the Writ of Amparo from a search warrant.

SUGGESTED ANSWER:

The production order under the Rule on the Writ of Amparo should not be confused with a search warrant for law enforcement under Art. III, sec. 2 of the 1987 Constitution. It said that the production order should be likened to the production of documents or things under sec. 1, Rule 27 of the Rules of Civil Procedure which states that upon motion of any party showing good cause therefor, the court in which an action is pending may (a) order any party to produce and permit the inspection and copying or photographing, by or on behalf of the moving party, of any designated documents, papers, books of accounts, letters, photographs, objects or tangible things, not privileged, which constitute or contain evidence material to any matter involved in the action and which are in his possession, custody or control. (GR No. 180906, The Secretary of National Defense v. Manalo, October 7, 2008)

EN BANC

REVEREND FATHER ROBERT P. REYES, Petitioner,

- versus -

COURT OF APPEALS, SECRETARY RAUL M. GONZALEZ, IN HIS CAPACITY AS THE SECRETARY OF THE DEPARTMENT OF JUSTICE, AND COMMISSIONER MARCELINO C. LIBANAN, IN HIS CAPACITY AS THE COMMISSIONER OF THE BUREAU OF IMMIGRATION, Respondents. G. R. No. 182161

Present:

PUNO, C.J., CARPIO, CORONA, CARPIO MORALES, CHICO-NAZARIO, VELASCO, JR., NACHURA, LEONARDO-DE CASTRO, BRION, PERALTA, BERSAMIN, DEL CASTILLO, ABAD, and VILLARAMA, JR., JJ.

Promulgated:

December 3, 2009 x--------------------------------------------------------------------------------------------x

DECISION

LEONARDO-DE CASTRO, J.:

For resolution is the petition for review under Rule 45 of the Rules of Court, assailing the February 4, 2008 Decision[1] of the Court of Appeals (CA) in CA-G.R. No. 00011 which dismissed the petition for the issuance of the writ of amparo under A.M. No. 07-9-12-SC, as amended. It also assails the CAs Resolution dated March 25, 2008, denying petitioners motion for reconsideration of the aforesaid February 4, 2008 Decision.

The undisputed facts as found by the CA are as follows:

Petitioner was among those arrested in the Manila Peninsula Hotel siege on November 30, 2007. In the morning of November 30, 2007, petitioner together with fifty (50) others, were brought to Camp Crame to await inquest proceedings. In the evening of the same day, the Department of Justice (DOJ) Panel of Prosecutors, composed of Emmanuel Y. Velasco, Phillip L. Dela Cruz and Aristotle M. Reyes, conducted inquest proceedings to ascertain whether or not there was probable cause to hold petitioner and the others for trial on charges of Rebellion and/or Inciting to Rebellion.

On December 1, 2007, upon the request of the Department of Interior and Local Government (DILG), respondent DOJ Secretary Raul Gonzales issued Hold Departure Order (HDO) No. 45 ordering respondent Commissioner of Immigration to include in the Hold Departure List of the Bureau of Immigration and Deportation (BID) the

name of petitioner and 49 others relative to the aforementioned case in the interest of national security and public safety.

On December 2, 2007, after finding probable cause against petitioner and 36 others for the crime of Rebellion under Article 134 of the Revised Penal Code, the DOJ Panel of Prosecutors filed an Information docketed as I.S. No. 2007-1045 before the Regional Trial Court, Branch 150 of Makati City.

On December 7, 2007, petitioner filed a Motion for Judicial Determination of Probable Cause and Release of the Accused Fr. Reyes Upon Recognizance asserting that the DOJ panel failed to produce any evidence indicating his specific participation in the crime charged; and that under the Constitution, the determination of probable cause must be made personally by a judge.

On December 13, 2007, the RTC issued an Order dismissing the charge for Rebellion against petitioner and 17 others for lack of probable cause. The trial court ratiocinated that the evidence submitted by the DOJ Panel of Investigating Prosecutors failed to show that petitioner and the other accused-civilians conspired and confederated with the accused-soldiers in taking arms against the government; that petitioner and other accused-civilians were arrested because they ignored the call of the police despite the deadline given to them to come out from the 2nd Floor of the Hotel and submit themselves to the police authorities; that mere presence at the scene of the crime and expressing ones sentiments on electoral and political reforms did not make them conspirators absent concrete evidence that the accused-civilians knew beforehand the intent of the accused-soldiers to commit rebellion; and that the cooperation which the law penalizes must be one that is knowingly and intentionally rendered.

On December 18, 2007, petitioners counsel Atty. Francisco L. Chavez wrote the DOJ Secretary requesting the lifting of HDO No. 45 in view of the dismissal of Criminal Case No. 07-3126.

On even date, Secretary Gonzales replied to petitioners letter stating that the DOJ could not act on petitioners request until Atty. Chavezs right to represent petitioner is settled in view of the fact that a certain Atty. J. V. Bautista representing himself as counsel of petitioner had also written a letter to the DOJ.

On January 3, 2008, petitioner filed the instant petition claiming that despite the dismissal of the rebellion case against petitioner, HDO No. 45 still subsists; that on December 19, 2007, petitioner was held by BID officials at the NAIA as his name is included in the Hold Departure List; that had it not been for the timely intervention of petitioners counsel, petitioner would not have been able to take his scheduled flight to Hong Kong; that on December 26, 2007, petitioner was able to fly back to the Philippines from Hong Kong but every time petitioner would present himself at the NAIA for his flights abroad, he stands to be detained and interrogated by BID officers because of the continued inclusion of his name in the Hold Departure List; and that the Secretary of Justice has not acted on his request for the lifting of HDO No. 45. Petitioner further maintained that immediate recourse to the Supreme Court for the availment of the writ is exigent as the continued restraint on petitioners right to travel is illegal.

On January 24, 2008, respondents represented by the Office of the Solicitor General (OSG) filed the Return of the Writ raising the following affirmative defenses: 1) that the Secretary of Justice is authorized to issue Hold Departure Orders under the DOJ Circulars No. 17, Series of 1998[2] and No. 18 Series of 2007[3] pursuant to his mandate under the Administrative Code of 1987 as ahead of the principal law agency of the government; 2) that HDO No. 45 dated December 1, 2007 was issued by the Sec. Gonzales in the course of the preliminary investigation of the case against herein petitioner upon the request of the DILG; 3) that the lifting of HDO No. 45 is premature in view of public respondents pending Motion for Reconsideration dated January 3, 2008 filed by the respondents of the Order dated December 13, 2007 of the RTC dismissing Criminal Case No. 07-3126 for Rebellion for lack of probable cause; 4) that petitioner failed to exhaust administrative remedies by filing a motion to lift HDO No. 45 before the DOJ; and 5) that the constitutionality of Circulars No. 17 and 18 can not be attacked collaterally in an amparo proceeding.

During the hearing on January 25, 2008 at 10:00 a.m. at the Paras Hall of the Court of Appeals, counsels for both parties appeared. Petitioners counsel Atty. Francisco Chavez manifested that petitioner is currently in Hong Kong; that every time petitioner would leave and return to the country, the immigration officers at the NAIA detain and interrogate him for several minutes because of the existing HDO; that the power of the DOJ Secretary to issue HDO has no legal basis; and that petitioner did not file a motion to lift the HDO before the RTC nor the DOJ because to do so would be tantamount to recognizing the power of the DOJ Secretary to issue HDO.

For respondents part, the Office of the Solicitor-General (OSG) maintained that the Secretary of the DOJs power to issue HDO springs from its mandate under the Administrative Code to investigate and prosecute offenders as the principal law agency of the government; that in its ten-year existence, the constitutionality of DOJ Circular No. 17 has not been challenged except now; and that on January 3, 2008, the DOJ Panel of Investigating Prosecutors had filed a Motion for Reconsideration of the Order of Dismissal of the trial court.

On February 1, 2008, petitioner filed a Manifestation attaching thereto a copy of the Order dated January 31, 2008 of the trial court denying respondent DOJs Motion for Reconsideration for utter lack of merit. The trial court also observed that the said Motion should be dismissed outright for being filed out of time. [4]

The petition for a writ of amparo is anchored on the ground that respondents violated petitioners constitutional right to travel. Petitioner argues that the DOJ Secretary has no power to issue a Hold Departure Order (HDO) and the subject HDO No. 45 has no legal basis since Criminal Case No. 07-3126 has already been dismissed.

On February 4, 2008, the CA rendered the assailed Decision dismissing the petition and denying the privilege of the writ of amparo.

Petitioners Motion for Reconsideration[5] thereon was also denied in the assailed Resolution[6] dated March 25, 2008.

Hence, the present petition which is based on the following grounds:

I.

THE DOJ SECRETARYS ARROGATION OF POWER AND USURPATION OF AUTHORITY TO ISSUE A HOLD DEPARTURE ORDER CANNOT BE JUSTIFIED THROUGH A RATIONALE THAT IT HAS SUPPOSEDLY BEEN REGULARLY EXERCISED IN THE PAST OR HAS NEVER BEEN QUESTIONED (IN THE PAST).

II.

THE DOJ HAS CLAIMED A POWER TO ISSUE AN HDO INDEPENDENT OF THAT OF THE REGIONAL TRIAL COURTS, HENCE, PETITIONER CANNOT MERELY RELY ON THE RESIDUAL POWER OF THE RTC MAKATI IN CRIMINAL CASE NO. 07-3126 TO ASSAIL SUCH CLAIMED POWER.

III.

THE UTMOST EXIGENCY OF THE PETITION IS EXEMPLIFIED BY THE CONTINUING ACTUAL RESTRAINT ON PETITIONERS RIGHT TO TRAVEL THROUGH THE MAINTENANCE OF HIS NAME IN THE HDO LIST AND DOES NOT SIMPLY HINGE ON THE QUESTION OF WHETHER OR NOT PETITIONER WAS ABLE TO TRAVEL DESPITE SUCH A RESTRAINT.

IV.

DOJ CIRCULAR 17 SERIES OF 1998 PROVIDES NO STATUTORY BASIS FOR THE DOJ SECRETARYS CLAIMED POWER TO ISSUE AN HDO FOR IT IS NOT A STATUTE. THE CIRCULAR ITSELF APPEARS NOT TO BE BASED ON ANY STATUTE, HENCE, IT DOES NOT HAVE THE FORCE OF LAW AND NEED NOT BE ATTACKED IN A DIRECT PROCEEDING.[7]

Petitioner maintains that the writ of amparo does not only exclusively apply to situations of extrajudicial killings and enforced disappearances but encompasses the whole gamut of liberties protected by the Constitution. Petitioner argues that [liberty] includes the right to exist and the right to be free from arbitrary personal restraint or servitude and includes the right of the citizens to be free to use his faculties in all lawful ways. Part of the right to liberty guaranteed by the Constitution is the right of a person to travel.

In their Comment,[8] both respondents Secretary Gonzalez and Commissioner Libanan argue that: 1) HDO No. 45 was validly issued by the Secretary of Justice in

accordance with Department of Justice Circular No. 17, Series of 1998,[9] and Circular No. 18, Series of 2007,[10] which were issued pursuant to said Secretarys mandate under the Administrative Code of 1987, as head of the principal law agency of the government, to investigate the commission of crimes, prosecute offenders, and provide immigration regulatory services; and; 2) the issue of the constitutionality of the DOJ Secretarys authority to issue hold departure orders under DOJ Circulars Nos. 17 and 18 is not within the ambit of a writ of amparo.

The case hinges on the issue as to whether or not petitioners right to liberty has been violated or threatened with violation by the issuance of the subject HDO, which would entitle him to the privilege of the writ of amparo.

The petition must fail.

Section 1 of the Rule on the Writ of Amparo provides:

SECTION 1. Petition. The petition for a writ of amparo is a remedy available to any person whose right to life, liberty and security is violated or threatened with violation by an unlawful act or omission of a public official or employee, or of a private individual or entity.

The writ shall cover extralegal killings and enforced disappearances or threats thereof.

The Court, in Secretary of National Defense et al. v. Manalo et al.,[11] made a categorical pronouncement that the Amparo Rule in its present form is confined to these two instances of extralegal killings and enforced disappearances, or to threats thereof, thus:

x x x As the Amparo Rule was intended to address the intractable problem of extralegal killings and enforced disappearances, its coverage, in its present form, is confined to these two instances or to threats thereof. Extralegal killings are killings committed without due process of law, i.e., without legal safeguards or judicial proceedings. On the other hand, enforced disappearances are attended

by the following characteristics: an arrest, detention or abduction of a person by a government official or organized groups or private individuals acting with the direct or indirect acquiescence of the government; the refusal of the State to disclose the fate or whereabouts of the person concerned or a refusal to acknowledge the deprivation of liberty which places such persons outside the protection of law.[12]

In Tapuz v. Del Rosario,[13] the Court laid down the basic principle regarding the rule on the writ of amparo as follows:

To start off with the basics, the writ of amparo was originally conceived as a response to the extraordinary rise in the number of killings and enforced disappearances, and to the perceived lack of available and effective remedies to address these extraordinary concerns. It is intended to address violations of or threats to the rights to life, liberty or security, as an extraordinary and independent remedy beyond those available under the prevailing Rules, or as a remedy supplemental to these Rules. What it is not, is a writ to protect concerns that are purely property or commercial. Neither is it a writ that we shall issue on amorphous and uncertain grounds. Consequently, the Rule on the Writ of Amparo in line with the extraordinary character of the writ and the reasonable certainty that its issuance demands requires that every petition for the issuance of the writ must be supported by justifying allegations of fact, to wit:

(a) The personal circumstances of the petitioner;

(b) The name and personal circumstances of the respondent responsible for the threat, act or omission, or, if the name is unknown or uncertain, the respondent may be described by an assumed appellation;

(c) The right to life, liberty and security of the aggrieved party violated or threatened with violation by an unlawful act or omission of the respondent, and how such threat or violation is committed with the attendant circumstances detailed in supporting affidavits;

(d) The investigation conducted, if any, specifying the names, personal circumstances, and addresses of the investigating authority or individuals, as well as the manner and conduct of the investigation, together with any report;

(e) The actions and recourses taken by the petitioner to determine the fate or whereabouts of the aggrieved party and the identity of the person responsible for the threat, act or omission; and

(f) The relief prayed for.

The petition may include a general prayer for other just and equitable reliefs.[14]

The writ shall issue if the Court is preliminarily satisfied with the prima facie existence of the ultimate facts determinable from the supporting affidavits that detail the circumstances of how and to what extent a threat to or violation of the rights to life, liberty and security of the aggrieved party was or is being committed. (Emphasis supplied)

Here, petitioner invokes this extraordinary remedy of the writ of amparo for the protection of his right to travel. He insists that he is entitled to the protection covered by the Rule on the Writ of Amparo because the HDO is a continuing actual restraint on his right to travel. The Court is thus called upon to rule whether or not the right to travel is covered by the Rule on the Writ of Amparo.

The rights that fall within the protective mantle of the Writ of Amparo under Section 1 of the Rules thereon are the following: (1) right to life; (2) right to liberty; and (3) right to security.

In Secretary of National Defense et al. v. Manalo et al.,[15] the Court explained the concept of right to life in this wise:

While the right to life under Article III, Section 1 guarantees essentially the right to be alive- upon which the enjoyment of all other rights is preconditioned - the right to security of person is a guarantee of the secure quality of this life, viz: The life to which each person has a right is not a life lived in fear that his person and property may be unreasonably violated by a powerful ruler. Rather, it is a life lived with the assurance that the government he established and consented to, will protect the

security of his person and property. The ideal of security in life and property pervades the whole history of man. It touches every aspect of mans existence. In a broad sense, the right to security of person emanates in a persons legal and uninterrupted enjoyment of his life, his limbs, his body, his health, and his reputation. It includes the right to exist, and the right to enjoyment of life while existing, and it is invaded not only by a deprivation of life but also of those things which are necessary to the enjoyment of life according to the nature, temperament, and lawful desires of the individual.[16]

The right to liberty, on the other hand, was defined in the City of Manila, et al. v. Hon. Laguio, Jr.,[17] in this manner:

Liberty as guaranteed by the Constitution was defined by Justice Malcolm to include the right to exist and the right to be free from arbitrary restraint or servitude. The term cannot be dwarfed into mere freedom from physical restraint of the person of the citizen, but is deemed to embrace the right of man to enjoy the facilities with which he has been endowed by his Creator, subject only to such restraint as are necessary for the common welfare. x x x

Secretary of National Defense et al. v. Manalo et al.[18] thoroughly expounded on the import of the right to security, thus:

A closer look at the right to security of person would yield various permutations of the exercise of this right.

First, the right to security of person is freedom from fear. In its whereas clauses, the Universal Declaration of Human Rights (UDHR) enunciates that a world in which human beings shall enjoy freedom of speech and belief and freedom from fear and want has been proclaimed as the highest aspiration of the common people. (emphasis supplied) Some scholars postulate that freedom from fear is not only an aspirational principle, but essentially an individual international human right. It is the right to security of person as the word security itself means freedom from fear. Article 3 of the UDHR provides, viz:

Everyone has the right to life, liberty and security of person.

xxx

The Philippines is a signatory to both the UDHR and the ICCPR.

In the context of Section 1 of the Amparo Rule, freedom from fear is the right and any threat to the rights to life, liberty or security is the actionable wrong. Fear is a state of mind, a reaction; threat is a stimulus, a cause of action. Fear caused by the same stimulus can range from being baseless to well-founded as people react differently. The degree of fear can vary from one person to another with the variation of the prolificacy of their imagination, strength of character or past experience with the stimulus. Thus, in the amparo context, it is more correct to say that the right to security is actually the freedom from threat. Viewed in this light, the threatened with violation Clause in the latter part of Section 1 of the Amparo Rule is a form of violation of the right to security mentioned in the earlier part of the provision.

Second, the right to security of person is a guarantee of bodily and psychological integrity or security. Article III, Section II of the 1987 Constitution guarantees that, as a general rule, ones body cannot be searched or invaded without a search warrant. Physical injuries inflicted in the context of extralegal killings and enforced disappearances constitute more than a search or invasion of the body. It may constitute dismemberment, physical disabilities, and painful physical intrusion. As the degree of physical injury increases, the danger to life itself escalates. Notably, in criminal law, physical injuries constitute a crime against persons because they are an affront to the bodily integrity or security of a person.

xxx

Third, the right to security of person is a guarantee of protection of ones rights by the government. In the context of the writ of amparo, this right is built into the guarantees of the right to life and liberty under Article III, Section 1 of the 1987 Constitution and the right to security of person (as freedom from threat and guarantee of bodily and psychological integrity) under Article III, Section 2. The right to security of person in this third sense is a corollary of the policy that the State guarantees full respect for human rights under Article II, Section 11 of the

1987 Constitution. As the government is the chief guarantor of order and security, the Constitutional guarantee of the rights to life, liberty and security of person is rendered ineffective if government does not afford protection to these rights especially when they are under threat. Protection includes conducting effective investigations, organization of the government apparatus to extend protection to victims of extralegal killings or enforced disappearances (or threats thereof) and/or their families, and bringing offenders to the bar of justice. x x x (emphasis supplied) [19]

The right to travel refers to the right to move from one place to another.[20] As we have stated in Marcos v. Sandiganbayan,[21] xxx a persons right to travel is subject to the usual constraints imposed by the very necessity of safeguarding the system of justice. In such cases, whether the accused should be permitted to leave the jurisdiction for humanitarian reasons is a matter of the courts sound discretion. [22]

Here, the restriction on petitioners right to travel as a consequence of the pendency of the criminal case filed against him was not unlawful. Petitioner has also failed to establish that his right to travel was impaired in the manner and to the extent that it amounted to a serious violation of his right to life, liberty and security, for which there exists no readily available legal recourse or remedy.

In Canlas et al. v. Napico Homeowners Association I XIII, Inc. et al.,[23] this Court ruled that:

This new remedy of writ of amparo which is made available by this Court is intended for the protection of the highest possible rights of any person, which is his or her right to life, liberty and security. The Court will not spare any time or effort on its part in order to give priority to petitions of this nature. However, the Court will also not waste its precious time and effort on matters not covered by the writ.

We find the direct recourse to this Court inappropriate, considering the provision of Section 22 of the Rule on the Writ of Amparo which reads:

Section 22. Effect of Filing of a Criminal Action. When a criminal action has been commenced, no separate petition for the writ shall be filed. The reliefs under the writ shall be available by motion in the criminal case.

The procedure under this Rule shall govern the disposition of the reliefs available under the writ of amparo.

Pursuant to the aforementioned Section 22, petitioner should have filed with the RTC-Makati a motion to lift HDO No. 45 in Criminal Case No. 07-3126. Petitioner, however, did not file in the RTC-Makati a motion to lift the DOJs HDO, as his coaccused did in the same criminal case. Petitioner argues that it was not the RTCMakati but the DOJ that issued the said HDO, and that it is his intention not to limit his remedy to the lifting of the HDO but also to question before this Court the constitutionality of the power of the DOJ Secretary to issue an HDO.[24] We quote with approval the CAs ruling on this matter:

The said provision [Section 22] is an affirmation by the Supreme Court of its pronouncement in Crespo v. Mogul[25] that once a complaint or information is filed in court, any disposition of the case such as its dismissal or its continuation rests on the sound discretion of the court. Despite the denial of respondents MR of the dismissal of the case against petitioner, the trial court has not lost control over Criminal Case No. 07-3126 which is still pending before it. By virtue of its residual power, the court a quo retains the authority to entertain incidents in the instant case to the exclusion of even this Court. The relief petitioner seeks which is the lifting of the HDO was and is available by motion in the criminal case. (Sec. 22, Rule on the Writ of amparo, supra).[26]

Even in civil cases pending before the trial courts, the Court has no authority to separately and directly intervene through the writ of amparo, as elucidated in Tapuz v. Del Rosario,[27] thus:

Where, as in this case, there is an ongoing civil process dealing directly with the possessory dispute and the reported acts of violence and harassment, we see no point in separately and directly intervening through a writ of amparo in the absence of any clear prima facie showing that the right to life, liberty or security the personal concern that the writ is intended to protect is immediately in danger or threatened, or that the danger or threat is continuing. We see no legal bar,

however, to an application for the issuance of the writ, in a proper case, by motion in a pending case on appeal or on certiorari, applying by analogy the provisions on the co-existence of the writ with a separately filed criminal case.

Additionally, petitioner is seeking the extraordinary writ of amparo due to his apprehension that the DOJ may deny his motion to lift the HDO.[28] Petitioners apprehension is at best merely speculative. Thus, he has failed to show any clear threat to his right to liberty actionable through a petition for a writ of amparo. The absence of an actual controversy also renders it unnecessary for us on this occasion to pass upon the constitutionality of DOJ Circular No. 17, Series of 1998 (Prescribing Rules and Regulations Governing the Issuance of Hold Departure Orders); and Circular No. 18, Series of 2007 (Prescribing Rules and Regulations Governing the Issuance and Implementation of Watchlist Orders and for Other Purposes).

WHEREFORE, the petition is DISMISSED. The assailed Decision of the CA dated February 4, 2008 in CA-G.R. No. 00011 is hereby AFFIRMED.

SO ORDERED.

SECOND DIVISION [G.R. No. 121087. August 26, 1999]

FELIPE NAVARRO, petitioner, vs. THE COURT OF APPEALS and the PEOPLE OF THE PHILIPPINES, respondents. DECISION MENDOZA, J.:

This is a petition for review on certiorari of the decision[1] of the Court of Appeals, dated December 14, 1994, which affirmed the judgment of the Regional Trial Court, Branch 5, Lucena City, dated July 27, 1992, finding petitioner Felipe Navarro guilty beyond reasonable doubt of homicide and sentencing him to ten (10) years of prision mayor, as minimum, and fourteen (14) years, eight (8) months, and one (1) day of reclusion temporal, as maximum, but increased the death indemnity

awarded to the heirs of the victim, Enrique Ike Lingan, from P30,000.00 to P50,000.00.

The information against petitioner alleged

That on or about the 4th day of February, 1990, in the nighttime, in the City of Lucena, Province of Quezon, Philippines, and within the jurisdiction of this Honorable Court, the said accused, being then a member of the Lucena Integrated National Police, with intent to kill, did then and there willfully, unlawfully and feloniously assault one Ike Lingan inside the Lucena police headquarters, where authorities are supposed to be engaged in the discharge of their duties, by boxing the said Ike Lingan in the head with the butt of a gun and thereafter when the said victim fell, by banging his head against the concrete pavement, as a consequence of which said Ike Lingan suffered cerebral concussion and shock which directly caused his death.

The evidence shows that, at around 8:40 in the evening of February 4, 1990, Stanley Jalbuena and Enrique Ike Lingan, who were reporters of the radio station DWTI in Lucena City, together with one Mario Ilagan, went to the Entertainment City following reports that it was showing nude dancers. After the three had seated themselves at a table and ordered beer, a scantily clad dancer appeared on stage and began to perform a strip act. As she removed her brassieres, Jalbuena brought out his camera and took a picture.[2]

At that point, the floor manager, Dante Liquin, with a security guard, Alex Sioco, approached Jalbuena and demanded to know why he took a picture.[3] Jalbuena replied: Wala kang pakialam, because this is my job.[4] Sioco pushed Jalbuena towards the table as he warned the latter that he would kill him.[5] When Jalbuena saw that Sioco was about to pull out his gun, he ran out of the joint followed by his companions.[6]

Jalbuena and his companions went to the police station to report the matter. Three of the policemen on duty, including petitioner Navarro, were having drinks in front of the police station, and they asked Jalbuena and his companions to join them. Jalbuena declined and went to the desk officer, Sgt. Aonuevo, to report the incident. In a while, Liquin and Sioco arrived on a motorcycle.[7]

Sioco and Liquin were met by petitioner Navarro who talked with them in a corner for around fifteen minutes.[8] Afterwards, petitioner Navarro turned to Jalbuena and, pushing him to the wall, said to him: Putang ina, kinakalaban mo si Kabo Liquin, anak yan ni Kabo Liquin, hindi mo ba kilala?[9] Petitioner Navarro then pulled out his firearm and cocked it, and, pressing it on the face of Jalbuena, said, Ano, uutasin na kita?[10]

At this point, Lingan intervened and said to petitioner Navarro: Huwag namang ganyan, pumarito kami para magpa-blotter, I am here to mediate.[11] Petitioner Navarro replied: Walang press, press, mag-sampu pa kayo.[12] He then turned to Sgt. Aonuevo and told him to make of record the behavior of Jalbuena and Lingan. [13]

This angered Lingan, who said: O, di ilagay mo diyan.[14] Petitioner Navarro retorted: Talagang ilalagay ko.[15] The two then had a heated exchange.[16] Finally, Lingan said: Masyado kang abusado, alisin mo yang baril mo at magsuntukan na lang tayo.[17] Petitioner Navarro replied: Ah, ganoon?[18]

As Lingan was about to turn away, petitioner Navarro hit him with the handle of his pistol above the left eyebrow. Lingan fell on the floor, blood flowing down his face. He tried to get up, but petitioner Navarro gave him a fist blow on the forehead which floored him.[19]

Petitioner Navarro turned to Jalbuena and said: Kita mo yan ha, buhay kang testigo, si Ike Lingan ang naghamon.[20] He said to Sgt. Aonuevo: Ilagay mo diyan sa blotter, sa harap ni Alex Sioco at Dante Liquin, na si Ike Lingan ang naghamon.[21] He then poked his gun at the right temple of Jalbuena and made him sign his name on the blotter.[22] Jalbuena could not affix his signature. His right hand was trembling and he simply wrote his name in print.[23]

Capt. Coronado, the station commander, called petitioner Navarro to his office, while a policeman took Lingan to the Quezon Memorial Hospital. The station manager of DWTI, Boy Casaada, arrived and, learning that Lingan had been taken to the hospital, proceeded there. But Lingan died from his injuries.[24]

Unknown to petitioner Navarro, Jalbuena was able to record on tape the exchange between petitioner and the deceased.[25] The following is an excerpt from the tape recording:

Lingan:

Pare, you are abusing yourself.

Navarro:

Who is that abusing?

Lingan: problem.

Im here to mediate. Do not include me in the problem. Im out of the

....

Navarro:

Wala sa akin yan. Ang kaso lang . . . .

Lingan: Kalaban mo ang media, pare. Ako at si Stanley, dalawa kami. Okay. Do not fight with me. I just came here to ayusin things. Do not say bad things against me. Im the number one loko sa media. Im the best media man. . . .

Navarro: Huwag tayong mag-lokohan sa ganyan! Huwag na tayong mag-takotan! Huwag mong sabihing loko ka!

Lingan:

Im brave also.

Navarro: Ay lalo na ako. Tahimik lang naman ako. Wala ka namang masasabi sa akin dahil nag-tatrabaho lang ako ng ayon sa serbisyo ko.

Lingan:

You are challenging me and him. . . .

Navarro: Ay walastik ka naman Ike! Pag may problema ka dito sinasabihan kita na may balita tayong maganda. Pambihira ka Ike. Huwag mong sabihin na . . . Parang minomonopoly mo eh.

Lingan:

Pati ako kalaban ninyo.

Navarro:

Talagang kalaban namin ang press. Lahat, hindi lang ikaw!

Lingan:

You are wrong. Bakit kalaban nyo ang press?

Navarro:

Pulis ito! Aba!

Lingan:

Alisin mo ang baril mo! Alisin mo ang baril mo! Suntukan tayo, sige.

Navarro:

Mayabang ka ah!

(Sounds of a scuffle)

Navarro: Hinamon ako nyan! Pare hinamon ako nyan! Pare hinamon ako nyan, testigo kayo. Alisin ko daw ang baril ko. Hinamon ako nyan. Pare, ilagay mo diyan, hinamon ako sa harap ni Stanley. Testigo kayo, hinamon ako. Pulis tayo eh. Puta, buti nga, suntok lang ang inabot nyan. Sa harap ni Alex, ni Joe, ni Stanley, hinamon ako. Pare, hinamon ako, kinig nyo ha. Hinamon ako nyan. Sige, dalhin nyo sa hospital yan.

Petitioner Felipe Navarro claims that it was the deceased who tried to hit him twice, but he (petitioner) was able to duck both times, and that Lingan was so drunk he fell on the floor twice, each time hitting his head on the concrete.[26]

In giving credence to the evidence for the prosecution, the trial court stated:

After a thorough and in-depth evaluation of the evidence adduced by the prosecution and the defense, this court finds that the evidence for the prosecution is the more credible, concrete and sufficient to create that moral certainty in the mind of the court that accused herein is criminally responsible.

The defenses evidence which consists of outright denial could not under the circumstance overturn the strength of the prosecutions evidence.

This court finds that the prosecution witnesses, more particularly Stanley Jalbuena, lacked any motive to make false accusation, distort the truth, testify falsehood or cause accusation of one who had neither brought him harm or injury.

Going over the evidence on record, the postmortem report issued by Dra. Eva Yamamoto confirms the detailed account given by Stanley Jalbuena on how Lingan sustained head injuries.

Said post-mortem report together with the testimony of Jalbuena sufficiently belie the claim of the defense that the head injuries of deceased Lingan were caused by the latters falling down on the concrete pavement head first.

The Court of Appeals affirmed:

We are far from being convinced by appellants aforesaid disquisition. We have carefully evaluated the conflicting versions of the incident as presented by both parties, and we find the trial courts factual conclusions to have better and stronger evidentiary support.

In the first place, the mere fact that Jalbuena was himself a victim of appellants aggression does not impair the probative worth of his positive and logical account of the incident in question. In fact, far from proving his innocence, appellants unwarranted assault upon Jalbuena, which the defense has virtually admitted, clearly betrays his violent character or disposition and his capacity to harm others. Apparently, the same motivation that led him into assailing Jalbuena must have

provoked him into also attacking Lingan who had interceded for Jalbuena and humiliated him and further challenged him to a fist fight.

....

On the other hand, appellants explanation as to how Lingan was injured is too tenuous and illogical to be accepted. It is in fact contradicted by the number, nature and location of Lingans injuries as shown in the post-mortem report (Exh. D). According to the defense, Lingan fell two times when he was outbalanced in the course of boxing the appellant. And yet, Lingan suffered lacerated wounds in his left forehead, left eyebrow, between his left and right eyebrows, and contusion in the right temporal region of the head (Exh. E). Certainly, these injuries could not have resulted from Lingans accidental fall.

Hence, this appeal. Petitioner Navarro contends:

THE HONORABLE COURT OF APPEALS HAS DECIDED THE CASE NOT IN ACCORD WITH LAW AND WITH THE APPLICABLE DECISIONS OF THE SUPREME COURT. ITS CONCLUSION IS A FINDING BASED ON SPECULATION, SURMISE OR CONJECTURE; THE INFERENCE IT MADE IS MANIFESTLY MISTAKEN, ABSURD OR IMPOSSIBLE; IT COMMITTED GRAVE ABUSE OF DISCRETION; ITS JUDGMENT IS BASED ON A MISAPPREHENSION OF FACTS; ITS FINDING IS CONTRADICTED BY EVIDENCE ON RECORD; AND ITS FINDING IS DEVOID OF SUPPORT IN THE RECORD.

The appeal is without merit.

First. Petitioner Navarro questions the credibility of the testimony of Jalbuena on the ground that he was a biased witness, having a grudge against him. The testimony of a witness who has an interest in the conviction of the accused is not, for this reason alone, unreliable.[27] Trial courts, which have the opportunity to observe the facial expressions, gestures, and tones of voice of a witness while testifying, are competent to determine whether his or her testimony should be given credence.[28] In the instant case, petitioner Navarro has not shown that the trial court erred in according weight to the testimony of Jalbuena.

Indeed, Jalbuenas testimony is confirmed by the voice recording he had made. It may be asked whether the tape is admissible in view of R.A. No. 4200, which prohibits wire tapping. The answer is in the affirmative. The law provides:

SECTION 1. It shall be unlawful for any person, not being authorized by all the parties to any private communication or spoken word, to tap any wire or cable, or by using any other device or arrangement, to secretly overhear, intercept, or record such communication or spoken word by using a device commonly known as a dictaphone or dictagraph or detectaphone or walkie-talkie or tape-recorder, or however otherwise described:

It shall also be unlawful for any person, be he a participant or not in the act or acts penalized in the next preceding sentence, to knowingly possess any tape record, wire record, disc record, or any other such record, or copies thereof, of any communication or spoken word secured either before or after the effective date of this Act in the manner prohibited by this law; or to replay the same for any other person or persons; or to communicate the contents thereof, either verbally or in writing, or to furnish transcriptions thereof, whether complete or partial, to any other person: Provided, That the use of such record or any copies thereof as evidence in any civil, criminal investigation or trial of offenses mentioned in section 3 hereof, shall not be covered by this prohibition.

....

SEC. 4. Any communication or spoken word, or the existence, contents, substance, purport, effect, or meaning of the same or any part thereof, or any information therein contained obtained or secured by any person in violation of the preceding sections of this Act shall not be admissible in evidence in any judicial, quasi-judicial, legislative or administrative hearing or investigation.

Thus, the law prohibits the overhearing, intercepting, or recording of private communications.[29] Since the exchange between petitioner Navarro and Lingan was not private, its tape recording is not prohibited.

Nor is there any question that it was duly authenticated. A voice recording is authenticated by the testimony of a witness (1) that he personally recorded the

conversation; (2) that the tape played in court was the one he recorded; and (3) that the voices on the tape are those of the persons such are claimed to belong.[30] In the instant case, Jalbuena testified that he personally made the voice recording; [31] that the tape played in court was the one he recorded;[32] and that the speakers on the tape were petitioner Navarro and Lingan.[33] A sufficient foundation was thus laid for the authentication of the tape presented by the prosecution.

Second. The voice recording made by Jalbuena established: (1) that there was a heated exchange between petitioner Navarro and Lingan on the placing in the police blotter of an entry against him and Jalbuena; and (2) that some form of violence occurred involving petitioner Navarro and Lingan, with the latter getting the worst of it.

Furthermore, Dr. Eva Yamamoto, who performed the autopsy on the body of Lingan, issued a medical certificate,[34] dated February 5, 1990, containing the following findings:

Post Mortem Findings:

= Dried blood, forehead & face

= No blood oozed from the ears, nose & mouth

= Swelling, 3 cm x 2 cm, temporal region, head, right

= Lacerated wound, 2 cm in length, 1-2 in depth, lateral, eyebrow, Left

= Lacerated wound, 0.5 cm in length, superficial, between the left & right eyebrow

= Lacerated wound, 2 cm in length, 1 cm in depth, forehead, Left

= Cyanosis of the tips of fingers & toes

CAUSE OF DEATH:

= CEREBRAL CONCUSSION & SHOCK

= BLOW ON THE HEAD

Dr. Yamamoto testified:

Q Give your opinion as to what was the possible cause of this findings number one, which is oozing of blood from the forehead?

It may be due to a blow on the forehead or it bumped to a hard object, sir.

Could a metal like a butt of a gun have caused this wound No. 1?

It is possible, sir.

Q And in the alternative, could have it been caused by bumping on a concrete floor?

Possible, sir.

FISCAL:

What could have been the cause of the contusion and swelling under your findings No. 2 doctor?

WITNESS:

It may be caused by bumping to a hard object, sir.

Could a butt of a gun have caused it doctor?

A The swelling is big so it could have not been caused by a butt of a gun because the butt of a gun is small, sir.

How about this findings No. 4?

By a bump or contact of the body to a hard object, sir.

And findings No. 5 what could have caused it?

Same cause, sir.

This findings No. 6 what could have caused this wound?

Same thing, sir.

Q How about this last finding, cyanosis of tips of fingers and toes, what could have caused it doctor?

WITNESS:

It indicates there was cardiac failure, sir.

FISCAL:

In this same post mortem report and under the heading cause of death it states: Cause of Death: Cerebral concussion and Shock, will you explain it?

A Cerebral concussion means in Tagalog naalog ang utak or jarring of the brain, sir.

What could have been the cause of jarring of the brain?

It could have been caused by a blow of a hard object, sir.

What about the shock, what could have caused it?

It was due to peripheral circulatory failure, sir.

Could any one of both caused the death of the victim?

Yes, sir.

Could cerebral concussion alone have caused the death of the deceased?

May be, sir.

How about shock?

Yes, sir.

FISCAL:

Which of these two more likely to cause death?

WITNESS:

Shock, sir.

Please explain further the meaning of the medical term shock?

It is caused by peripheral circulatory failure as I have said earlier, sir.

....

FISCAL:

Could a bumping or pushing of ones head against a concrete floor have caused shock?

WITNESS:

Possible, sir.

How about striking with a butt of a gun, could it cause shock?

Possible, sir.[35]

The above testimony clearly supports the claim of Jalbuena that petitioner Navarro hit Lingan with the handle of his pistol above the left eyebrow and struck him on the forehead with his fist.

Third. It is argued that the mitigating circumstance of sufficient provocation or threat on the part of the offended party immediately preceding the act should have been appreciated in favor of petitioner Navarro. Provocation is defined to be any unjust or improper conduct or act of the offended party, capable of exciting, inciting, or irritating anyone.[36] The provocation must be sufficient and should immediately precede the act.[37] People v. Paga, 79 SCRA 570 (1977).37 To be sufficient, it must be adequate to excite a person to commit the wrong, which must accordingly be proportionate in gravity.[38] And it must immediately precede the act so much so that there is no interval between the provocation by the offended party and the commission of the crime by the accused.[39]

In the present case, the remarks of Lingan, which immediately preceded the act of petitioner, constituted sufficient provocation. In People v. Macaso,[40] we appreciated this mitigating circumstance in favor of the accused, a policeman, who shot a motorist after the latter had repeatedly taunted him with defiant words. Hence, this mitigating circumstance should be considered in favor of petitioner Navarro.

Furthermore, the mitigating circumstance that the offender had no intention to commit so grave a wrong as that committed should also be appreciated in favor of petitioner. The frantic exclamations of petitioner Navarro after the scuffle that it was Lingan who provoked him shows that he had no intent to kill the latter. Thus, this mitigating circumstance should be taken into account in determining the penalty that should be imposed on petitioner Navarro. The allowance of this mitigating circumstance is consistent with the rule that criminal liability shall be incurred by any person committing a felony although the wrongful act done be different from that which he intended.[41] In People v. Castro,[42] the mitigating

circumstance of lack of intent to commit so grave a wrong as that committed was appreciated in favor of the accused while finding him guilty of homicide.

However, the aggravating circumstance of commission of a crime in a place where the public authorities are engaged in the discharge of their duties should be appreciated against petitioner Navarro. The offense in this case was committed right in the police station where policemen were discharging their public functions. [43]

The crime committed as found by the trial court and the Court of Appeals was homicide, for which the penalty under Art. 249 of the Revised Penal Code is reclusion temporal. As there were two mitigating circumstances and one aggravating circumstance, the penalty should be fixed in its minimum period.[44] Applying the Indeterminate Sentence Law, petitioner Navarro should be sentenced to an indeterminate penalty, the minimum of which is within the range of the penalty next lower in degree, i.e., prision mayor, and the maximum of which is reclusion temporal in its minimum period.[45]

The indemnity as increased by the Court of Appeals from P30,000.00 to P50,000.00 is in accordance with current jurisprudence.[46]

WHEREFORE, the decision of the Court of Appeals is AFFIRMED with the modification that petitioner Felipe Navarro is hereby SENTENCED to suffer a prison term of 8 years of prision mayor, as minimum, to 14 years and 8 months of reclusion temporal, as maximum.

SO ORDERED.

RAMIREZ V CA

7 NOV G.R. No. 93833 | September 28, 1995 | J. Katipunan

Facts:

A civil case damages was filed by petitioner Socorro Ramirez in the Quezon City RTC alleging that the private respondent, Ester Garcia, in a confrontation in the latters office, allegedly vexed, insulted and humiliated her in a hostile and furious mood and in a manner offensive to petitioners dignity and personality, contrary to morals, good customs and public policy.

In support of her claim, petitioner produced a verbatim transcript of the event and sought damages. The transcript on which the civil case was based was culled from a tape recording of the confrontation made by petitioner.

As a result of petitioners recording of the event and alleging that the said act of secretly taping the confrontation was illegal, private respondent filed a criminal case before the Pasay RTC for violation of Republic Act 4200, entitled An Act to prohibit and penalize wire tapping and other related violations of private communication, and other purposes.

Petitioner filed a Motion to Quash the Information, which the RTC later on granted, on the ground that the facts charged do not constitute an offense, particularly a violation of R.A. 4200.

The CA declared the RTCs decision null and void and denied the petitioners MR, hence the instant petition.

Issue:

W/N the Anti-Wiretapping Act applies in recordings by one of the parties in the conversation

Held:

Yes. Section 1 of R.A. 4200 entitled, An Act to Prohibit and Penalized Wire Tapping and Other Related Violations of Private Communication and Other Purposes, provides:

Sec. 1. It shall be unlawful for any person, not being authorized by all the parties to any private communication or spoken word, to tap any wire or cable, or by using any other device or arrangement, to secretly overhear, intercept, or record such communication or spoken word by using a device commonly known as a dictaphone or dictagraph or detectaphone or walkie-talkie or tape recorder, or however otherwise described.

The aforestated provision clearly and unequivocally makes it illegal for any person, not authorized by all the parties to any private communication to secretly record such communication by means of a tape recorder. The law makes no distinction as to whether the party sought to be penalized by the statute ought to be a party other than or different from those involved in the private communication. The statutes intent to penalize all persons unauthorized to make such recording is underscored by the use of the qualifier any. Consequently, as respondent Court of Appeals correctly concluded, even a (person) privy to a communication who records his private conversation with another without the knowledge of the latter (will) qualify as a violator under this provision of R.A. 4200.

A perusal of the Senate Congressional Records, moreover, supports the respondent courts conclusion that in enacting R.A. 4200 our lawmakers indeed contemplated to make illegal, unauthorized tape recording of private conversations or communications taken either by the parties themselves or by third persons.

The nature of the conversations is immaterial to a violation of the statute. The substance of the same need not be specifically alleged in the information. What R.A. 4200 penalizes are the acts of secretly overhearing, intercepting or recording

private communications by means of the devices enumerated therein. The mere allegation that an individual made a secret recording of a private communication by means of a tape recorder would suffice to constitute an offense under Section 1 of R.A. 4200. As the Solicitor General pointed out in his COMMENT before the respondent court: Nowhere (in the said law) is it required that before one can be regarded as a violator, the nature of the conversation, as well as its communication to a third person should be professed.

Petitioners contention that the phrase private communication in Section 1 of R.A. 4200 does not include private conversations narrows the ordinary meaning of the word communication to a point of absurdity. The word communicate comes from the latin word communicare, meaning to share or to impart. In its ordinary signification, communication connotes the act of sharing or imparting signification, communication connotes the act of sharing or imparting, as in a conversation, or signifies the process by which meanings or thoughts are shared between individuals through a common system of symbols (as language signs or gestures)

These definitions are broad enough to include verbal or non-verbal, written or expressive communications of meanings or thoughts which are likely to include the emotionally-charged exchange, on February 22, 1988, between petitioner and private respondent, in the privacy of the latters office. Any doubts about the legislative bodys meaning of the phrase private communication are, furthermore, put to rest by the fact that the terms conversation and communication were interchangeably used by Senator Taada in his Explanatory Note to the Bill.

Zulueta vs. Court of Appeals Case Digest

Zulueta vs. Court of Appeals [GR 107383, 20 February 1996]

Facts: Cecilia Zulueta is the wife of Dr. Alfredo Martin. On 26 March 1982, Zulueta entered the clinic of her husband, a doctor of medicine, and in the presence of her mother, a driver and Martins secretary, forcibly opened the drawers and cabinet in her husbands clinic and took 157 documents consisting of private correspondence between Dr. Martin and his alleged paramours, greetings cards, cancelled checks,

diaries, Dr. Martins passport, and photographs. The documents and papers were seized for use in evidence in a case for legal separation and for disqualification from the practice of medicine which Zulueta had filed against her husband. Dr. Martin brought the action for recovery of the documents and papers and for damages against Zulueta, with the Regional Trial Court of Manila, Branch X. After trial, the trial court rendered judgment for Martin, declaring him the capital/exclusive owner of the properties described in paragraph 3 of Martins Complaint or those further described in the Motion to Return and Suppress and ordering Zulueta and any person acting in her behalf to a immediately return the properties to Dr. Martin and to pay him P5,000.00, as nominal damages; P5,000.00, as moral damages and attorneys fees; and to pay the costs of the suit. On appeal, the Court of Appeals affirmed the decision of the Regional Trial Court. Zulueta filed the petition for review with the Supreme Court.

Issue: Whether the injunction declaring the privacy of communication and correspondence to be inviolable apply even to the spouse of the aggrieved party.

Held: The documents and papers are inadmissible in evidence. The constitutional injunction declaring the privacy of communication and correspondence [to be] inviolable is no less applicable simply because it is the wife (who thinks herself aggrieved by her husbands infidelity) who is the party against whom the constitutional provision is to be enforced. The only exception to the prohibition in the Constitution is if there is a lawful order [from a] court or when public safety or order requires otherwise, as prescribed by law. Any violation of this provision renders the evidence obtained inadmissible for any purpose in any proceeding. The intimacies between husband and wife do not justify any one of them in breaking the drawers and cabinets of the other and in ransacking them for any telltale evidence of marital infidelity. A person, by contracting marriage, does not shed his/her integrity or his right to privacy as an individual and the constitutional protection is ever available to him or to her. The law insures absolute freedom of communication between the spouses by making it privileged. Neither husband nor wife may testify for or against the other without the consent of the affected spouse while the marriage subsists. Neither may be examined without the consent of the other as to any communication received in confidence by one from the other during the marriage, save for specified exceptions. But one thing is freedom of communication; quite another is a compulsion for each one to share what one knows with the other. And this has nothing to do with the duty of fidelity that each owes to the other.

WATEROUS DRUG VS. NLRC [280 SCRA 735 ; G.R.NO. 113271; 16 OCT 1997] Tuesday, February 03, 2009 Posted by Coffeeholic Writes Labels: Case Digests, Political Law

Facts: Catolico was hired as a pharmacist by petitioner Waterous Drug Corporation on 15 August 1988. On 31 July 1989, Catolico received a memorandum from WATEROUS Vice President-General Manager Emma R. Co warning her not to dispense medicine to employees chargeable to the latter's accounts because the same was a prohibited practice. On the same date, Co issued another memorandum to Catolico warning her not to negotiate with suppliers of medicine without consulting the Purchasing Department, as this would impair the company's control of purchases and, besides she was not authorized to deal directly with the suppliers.

As regards the first memorandum, Catolico did not deny her responsibility but explained that her act was "due to negligence," since fellow employee Irene Soliven "obtained the medicines in bad faith and through misrepresentation when she claimed that she was given a charge slip by the Admitting Dept." Catolico then asked the company to look into the fraudulent activities of Soliven.

In a memorandum dated 21 November 1989, WATEROUS Supervisor Luzviminda E. Bautro warned Catolico against the "rush delivery of medicines without the proper documents." On 29 January 1990, WATEROUS Control Clerk Eugenio Valdez informed Co that he noticed an irregularity involving Catolico and Yung Shin Pharmaceuticals, Inc.

Forthwith, in her memorandum dated 37 January 1990, Co asked Catolico to explain, within twenty-four hours, her side of the reported irregularity. Catolico asked for additional time to give her explanation, and she was granted a 48-hour extension from 1 to 3 February 1990. However, on 2 February 1990, she was informed that effective 6 February 1990 to 7 March 1990, she would be placed on preventive suspension to protect the interests of the company.

In a letter dated 2 February 1990, Catolico requested access to the file containing Sales Invoice No. 266 for her to be able to make a satisfactory explanation. In said letter she protested Saldaa's invasion of her privacy when Saldaa opened an envelope addressed to Catolico.

In a letter to Co dated 10 February 1990, Catolico, through her counsel, explained that the check she received from YSP was a Christmas gift and not a "refund of overprice." She also averred that the preventive suspension was ill-motivated, as it sprang from an earlier incident between her and Co's secretary, Irene Soliven.

On 5 March 1990, WATEROUS Supervisor Luzviminda Bautro, issued a memorandum notifying Catolico of her termination. On 5 May 1990, Catolico filed before the Office of the Labor Arbiter a complaint for unfair labor practice, illegal dismissal, and illegal suspension. In his decision of 10 May 1993, Labor Arbiter Alex Arcadio Lopez found no proof of unfair labor practice against petitioners. Nevertheless, he decided in favor of Catolico because petitioners failed to "prove what alleged as complainant's dishonesty," and to show that any investigation was conducted. Hence, the dismissal was without just cause and due process. He thus declared the dismissal and suspension illegal but disallowed reinstatement.

Petitioners seasonably appealed from the decision and urged the NLRC to set it aside because the Labor Arbiter erred in finding that Catolico was denied due process and that there was no just cause to terminate her services.

In its decision of 30 September 1993, the NLRC affirmed the findings of the Labor Arbiter on the ground that petitioners were not able to prove a just cause for Catolico's dismissal from her employment. It found that petitioner's evidence consisted only of the check of P640.00 drawn by YSP in favor of complainant, which her co-employee saw when the latter opened the envelope. But, it declared that the check was inadmissible in evidence pursuant to Sections 2 and 3(1 and 2) of Article III of the Constitution. It concluded:

With the smoking gun evidence of respondents being rendered inadmissible, by virtue of the constitutional right invoked by complainants, respondents' case falls apart as it is bereft of evidence which cannot be used as a legal basis for complainant's dismissal.

The NLRC then dismissed the appeal for lack of merit, but modified the dispositive portion of the appealed decision by deleting the award for illegal suspension as the same was already included in the computation of the aggregate of the awards in the amount of P35,401.86.

Issue: Whether or Not the dismissal of the private respondent is in violation of the Constitution, under the Bill of Rights.

Held: As to the first and second grounds, petitioners insist that Catolico had been receiving "commissions" from YSP, or probably from other suppliers, and that the check issued to her on 9 November 1989 was not the first or the last. They also maintained that Catolico occupied a confidential position and that Catolico's receipt of YSP's check, aggravated by her "propensity to violate company rules," constituted breach of confidence. And contrary to the findings of NLRC, Catolico was given ample opportunity to explain her side of the controversy.

In her Comment, Catolico asserts that petitioners' evidence is too "flimsy" to justify her dismissal. The check in issue was given to her, and she had no duty to turn it over to her employer. Company rules do not prohibit an employee from accepting gifts from clients, and there is no indication in the contentious check that it was meant as a refund for overpriced medicines. Besides, the check was discovered in violation of the constitutional provision on the right to privacy and communication; hence, as correctly held by the NLRC, it was inadmissible in evidence.

Catolico was denied due process. Procedural due process requires that an employee be apprised of the charge against him, given reasonable time to answer the charge, allowed ample opportunity to be heard and defend himself, and assisted by a representative if the employee so desires. Ample opportunity connotes every kind of assistance that management must accord the employee to enable him to prepare adequately for his defense, including legal representation. In the case at bar, although Catolico was given an opportunity to explain her side, she was dismissed from the service in the memorandum of 5 March 1990 issued by her Supervisor

after receipt of her letter and that of her counsel. No hearing was ever conducted after the issues were joined through said letters.

Catolico was also unjustly dismissed. It is settled that the burden is on the employer to prove just and valid cause for dismissing an employee, and its failure to discharge that burden would result in a finding that the dismissal is unjustified. It clearly appears then that Catolico's dismissal was based on hearsay information. Catolico's dismissal then was obviously grounded on mere suspicion, which in no case can justify an employee's dismissal. Suspicion is not among the valid causes provided by the Labor Code for the termination of employment; and even the dismissal of an employee for loss of trust and confidence must rest on substantial grounds and not on the employer's arbitrariness, whims, caprices, or suspicion. Besides, Catolico was not shown to be a managerial employee, to which class of employees the term "trust and confidence" is restricted.

As regards the constitutional violation upon which the NLRC anchored its decision, that the Bill of Rights does not protect citizens from unreasonable searches and seizures perpetrated by private individuals. It is not true, as counsel for Catolico claims, that the citizens have no recourse against such assaults. On the contrary, and as said counsel admits, such an invasion gives rise to both criminal and civil liabilities.

Finally, since it has been determined by the Labor Arbiter that Catolico's reinstatement would not be to the best interest of the parties, he correctly awarded separation pay to Catolico. Separation pay in lieu of reinstatement is computed at one month's salary for every year of service. In this case, however, Labor Arbiter Lopez computed the separation pay at one-half month's salary for every year of service. Catolico did not oppose or raise an objection. As such, we will uphold the award of separation pay as fixed by the Labor Arbiter.

WHEREFORE, the instant petition is hereby DISMISSED and the challenged decision and resolution of the National Labor Relations Commission dated 30 September 1993 and 2 December 1993, respectively, in NLRC-NCR CA No. 005160-93 are AFFIRMED, except as to its reason for upholding the Labor Arbiter's decision, viz., that the evidence against private respondent was inadmissible for having been obtained in violation of her constitutional rights of privacy of communication and against unreasonable searches and seizures which is hereby set aside.

G.R. No. 135882June 27, 2001MARQUEZ VS. DESIERTOFACTS: Petitioner Marquez received an Order from the Ombudsman Aniano A. Desierto to produce several bank documents for purposes of inspection in camera relative to various accounts maintained at Union Bank of thePhilippines, Julia Vargas Branch, where she is the branch manager. The accounts to be inspected were involvedin a case pending with the Ombudsman entitled, Fact-Finding and Intelligence Bureau (FFIB) v. AmadoLagdameo, et al.The basis of the Ombudsman ordering an in camera

inspection of the accounts is a trail managers checkspurchased by one George Trivinio, a respondent in OMB-097-0411, pending with the office of the Ombudsmanby virtue of its power to investigate and to require the production and inspection of records and documentsgranted to it by RA No.6770.The Ombudsman issued an order directing petitioner to produce the bank documents relative to accounts inissue in line of her persistent refusal to comply with Ombudsman's order which they sais as an unjustified, andis merely intended to delay the investigation of the case; constitutes disobedience of or resistance to a lawfulorder issued by this office punishable as Indirect under R.A. 6770.Petitioner together with Union Bank of the Philippines filed a petition for declaratory relief, prohibition andinjunctions 8 with the Regional Trial Court, Makati City, against the Ombudsman.The lower court denied petitioner's petition.On August 21, 1998, petitioner received a copy of the motion to cite her for contempt, filed with the Office of the Ombudsman by Agapito B. Rosales, Director, Fact Finding and Intelligence Bureau (FFIB).Petitioner filed with the Ombudsman an opposition to the motion to cite her in contempt on the ground thatcompliance with the Ombudsmans orders would be in violation of RA. No. 1405.But petitioners motion for reconsideration was dismissed. Hence, the present petition. ISSUE:

Whether or not an in camera

inspection of the questioned account is allowed as an exception to the law onsecrecy of bank deposits (R.A. No.1405) HELD: The order of the Ombudsman to produce for in camera

inspection the subject accounts with the Union Bank of the Philippines, Julia Vargas Branch, is based on a pending investigation at the Office of the Ombudsmanagainst Amado Lagdameo, et. al. for violation of R.A. No. 3019, Sec. 3 (e) and (g) relative to the Joint VentureAgreement between the Public Estates Authority and AMARI.We rule that before an in camera

inspection may be allowed, there must be a pending case before a court of competent jurisdiction. Further, the account must be clearly identified, the inspection limited to the subjectmatter of the pending case before the court of competent jurisdiction. The bank personnel and the accountholder must be notified to be present during the inspection, and such inspection may cover only the accountidentified in the pending case. In the case at bar, there is yet no pending litigation before any court of competent authority. Whats existing is an investigation by the Office of the Ombudsman. In short, what the office of the ombudsman would wish to dois to fish for additional evidence to formally charge Amado Lagdameo, et. al., with the Sandiganbayan. Clearly,there was no pending case in court which would warrant the opening of the bank account for inspection.Zone of privacy are recognized and protected in our laws. Invasion of privacy is an offense in special laws likethe Anti-Wiretapping Law, the Secrecy of Bank Deposits Act , and the Intellectual Property Code

OPLE VS. TORRES, July 23, 1998

Puno, J.

Facts:

On December 12, 1996, then President FIDEL V. RAMOS issued Administrative Order No. 308 entitled ADOPTION OF A NATIONAL COMPUTERIZED IDENTIFICATION REFERENCE SYSTEM.

The AO seeks to have all Filipino citizens and foreign residents to have a Population Reference Number (PRN) generated by the National Statistics Office (NSO) through the use of BIOMETRICS TECHNOLOGY .

The AO was questioned by Senator Ople on the following grounds:

1. The establishment of the PRN without any law is an unconstitutional usurpation of the legislative powers of the Congress of the Philippines;

2. The appropriation of public funds for the implementation of the said AO is unconstitutional since Congress has the exclusive authority to appropriate funds for such expenditure; and

3. The AO violates the citizens right to privacy protected by the Bill of Rights of the Constitution.

Held:

1. The AO establishes a system of identification that is all-encompassing in scope, affects the life and liberty of every Filipino citizens and foreign residents and therefore, it is supposed to be a law passed by Congress that implements it, not by an Administrative Order issued by the President. Administrative Power, which is supposed to be exercised by the President, is concerned with the work of applying policies and enforcing orders as determined by proper governmental organs. It enables the President to fix a uniform standard of administrative efficiency and check the official conduct of his agents. Prescinding from the foregoing precepts, AO 308 involves a subject that is not appropriate to be covered by an Administrative Order. An administrative order is an ordinance issued by the President which relates to specific aspects in the administrative operation of the government. It must be in harmony with the law and should be for the sole purpose of implementing the law and carrying out the legislative policy. The subject of AO 308 therefore is beyond the power of the President to issue and it is a usurpation of legislative power.

2. The AO likewise violates the right to privacy since its main purpose is to provide a common reference number to establish a linkage among concerned agencies through the use of BIOMETRICS TECHNOLOGY. Biometry is the science of the application of statistical methods to biological facts; a mathematical analysis of a biological data. It is the confirmation of an individuals identity through a fingerprint, retinal scan, hand geometry or facial features. Through the PRN, the government offices has the chance of building a huge and formidable information base through the electronic linkage of the files of every citizen. The data, however, may be gathered for gainful and useful government purposes; but the existence of this vast reservoir of personal information constitutes a covert invitation to misuse, a temptation that may be too great for some of our authorities to resist.

Further, the AO does not even tells us in clear and unequivocal terms how these informations gathered shall be handled. It does not provide who shall control and access the data and under what circumstances and for what purpose. These factors are essential to safeguard the privacy and guaranty the integrity of the information. The computer linkage gives other government agencies access to the information. YET, THERE ARE NO CONTROLS TO GUARD AGAINST LEAKAGE OF INFORMATIONS. WHEN THE ACCESS CODE OF THE CONTROL PROGRAMS OF THE PARTICULAR COMPUTER SYSTEM IS BROKEN, AN INTRUDER, WITHOUT FEAR OF SANCTION OR PENALTY, CAN MAKE USE OF THE DATA FOR WHATEVER PURPOSE, OR WORSE, MANIPULATE THE DATA STORED WITHIN THE SYSTEM.

AO No. 308 is unconstitutional since it falls short of assuring that personal information gathered about our people will be used only for specified purposes thereby violating the citizens right to privacy.

KILUSANG MAYO UNO VS. EXECUTIVE SECRETARY EDUARDO ERMITA, ET AL., April 19, 2006 & June 20, 2006